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In the Matter of

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 28, 2012

IN THE MATTER OF KELLY NELSON.

On appeal from the Civil Service Commission, Docket No. 2009-4294.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 22, 2012

Before Judges Simonelli and Waugh.

Kelly Nelson appeals the final agency decision of the Civil Service Commission (Commission) upholding her resignation not in good standing. We affirm.

I.

We discern the following facts and procedural history from the record on appeal, including the record of the hearing in the Office of Administrative Law (OAL).

Nelson was employed by the City of Newark (City) as a data processing technician from 2002 until 2009. Prior to 2009, Nelson received five warning notices and a one-day suspension. In 2009, Nelson was hospitalized between February 18 and 22 for anxiety and depression. Nelson provided the City with medical documentation for her absence from work during that period.

Nelson and the City agree that she was absent from work from March 16 through March 20. The City claimed Nelson was also absent on March 12 and 13, but Nelson maintained that she punched in and worked for at least part of both days, but forgot to punch out. According to Nelson, she notified the "front desk" regarding her absences. However, according to Nelson's supervisor, Alexander Dambach, Nelson did not contact him or any other supervisory employee with respect to her absence. Dambach testified that Nelson was previously notified several times, both verbally and in writing, that she was required to notify a supervisor when she was going to be absent from work or leave early.

When Nelson returned to work on March 23, Dambach served her with a preliminary notice of disciplinary action for "absence without notice for more than 5 days; neglect of duty; and failure to perform duties." She was temporarily suspended that day. The preliminary notice stated that the City was seeking Nelson's resignation not in good standing. Nelson provided the City with a short note from her doctor, dated March 29, stating "Nelson was out of work per [the doctor's] recommendation" from March 16 through March 27.

An internal departmental hearing was held on April 17. On June 5, the City issued a final notice of disciplinary action sustaining the charges and confirming Nelson's resignation not in good standing. Nelson appealed to the Commission on June 11. The case was transferred to the OAL as a contested case, and was heard by an administrative law judge (ALJ) on January 7 and 14, 2010.

The ALJ issued her initial decision on October 14. The ALJ found that both Nelson and Dambach were credible witnesses, and that Dambach's testimony "was relatively consistent" with Nelson's testimony. She also found that Nelson had previously "been on an authorized leave and had not been provided with FMLA*fn1 leave information" by the City.*fn2 The ALJ concluded that the City did not prove the charges by a preponderance of the evidence, that the decision to terminate Nelson was "inappropriate under the circumstances," and that "the circumstances of the case [did] not warrant a disciplinary action."

The City filed exceptions to the ALJ's decision with the Commission, and Nelson responded. On April 6, 2011, after a de novo review of the record before the ALJ, the Commission issued its final decision. The Commission rejected the ALJ's findings of fact and conclusions of law. It found that the City had proven its case and imposed discipline in the form of resignation not in good standing. The Commission found that Nelson was absent from March 16 through March 20 without notifying any supervisor or other employee in a position of authority that she would be absent on those days. The Commission further found that, pursuant to N.J.A.C. 4A:2-6.2(b), Nelson's absence was "sufficiently egregious to warrant termination," regardless of her prior disciplinary history. This appeal followed.

II.

On appeal, Nelson argues that the Commission's decision was arbitrary and capricious, erroneous as a matter of law, and that it erred in not requiring the City to engage in progressive discipline. Both the City and the Commission urge us to affirm.

Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord to the agency's exercise of its statutorily delegated responsibilities a strong presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).

An ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, an agency head reviews an ALJ's decision "de novo . . . based on the record" before the ALJ. See In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). However, "[a]n agency head reviewing an ALJ's credibility findings relating to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ's findings are arbitrary or not supported by the record." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002); see also N.J.S.A. 52:14B-10(c) (An agency head may only reject the ALJ's credibility findings after it determines "from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." In doing so, "the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.").

In reviewing administrative adjudications, an appellate court must undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985) (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). If, however, our review of the record leads us to conclude that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).

Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower, supra, 64 N.J. at 93, if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing Clowes, supra, 109 N.J. at 587).

N.J.A.C. 4A:2-6.2(b) provides that an "employee who is absent from duty for five or more consecutive business days without the approval of his or her supervisor shall be considered to have abandoned his or her position and shall be recorded as a resignation not in good standing." It also provides that approval "shall not be unreasonably denied." There is no factual issue that Nelson was absent for five consecutive business days and that she did not have the approval of her supervisor. Even if she reported her absence to a lower level employee, she did not comply with the requirements of the regulation by obtaining the permission of her supervisor, as she had been advised by him she was required to do. Based on the law and the undisputed facts, the Commission determined that the City had met its burden of proof, disagreeing with the ALJ's contrary determination.*fn3

Nelson argues that the Commission interpreted the regulation too literally by disallowing retroactive approval of her absence. We do not read the Commission's decision as precluding retroactive approval as a matter of law. In any event, Nelson's argument is premised on the assumption that she presented adequate grounds for such retroactive approval. Although there was one short, conclusory note from Nelson's doctor dated several days after she was suspended, there was no testimony or certification from the doctor at the OAL hearing supporting the medical necessity of the absence. We find no basis to conclude that the Commission's decision to uphold the City's finding of a violation of the applicable regulation was arbitrary, capricious, or inconsistent with applicable law.

Regarding Nelson's contentions that her conduct was not egregious enough to warrant removal and that progressive discipline was required, we note that the Supreme Court has said that "courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Carter, supra, 191 N.J. at 486. Our deference to agency decisions "applies to the review of disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28. "In light of the deference owed to such determinations, when reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (citations and internal quotation marks omitted). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.

The Commission addressed the issue of progressive discipline, noting that Nelson had some prior disciplinary infractions, albeit minor in nature. In addition, she had recently received specific verbal and written warnings concerning unauthorized absences from work, specifically leaving early without permission. She was warned that termination was a possible consequence of continued infractions. In addition, the concept of progressive discipline allows termination in serious cases, even without prior disciplinary action. Hermann, supra, 192 N.J. at 33.

The question is not whether we would have reached the same decision, but whether the Commission's decision was "shocking" to our "sense of fairness." We are satisfied that the Commission adequately explained its reasons for finding that Nelson should be considered to have resigned not in good standing, and that its determination in that regard was not arbitrary, capricious, or inconsistent with applicable law.

Affirmed.


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