On appeal from the Civil Service Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Hoffman.
Walter Graham (Graham) appeals from a final determination of the Civil Service Commission (Commission), which upheld Graham's removal from his position as a corrections sergeant in the New Jersey Department of Corrections (Department) and set aside sanctions that the Administrative Law Judge (ALJ) had imposed upon the Department. We affirm.
Graham was employed at the Department's Southern State Correctional Facility (SSCF). On October 16, 2008, the Department served Graham with a preliminary notice of disciplinary action, charging him with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); insubordination, N.J.A.C. 4A:2-2.3(a)(2); and violation of a rule, regulation, policy, procedure, order or administrative decision, and intentional misstatement of a material fact in connection with the work, N.J.A.C. 4A:2-2.3(a)(11). The charges arose out of Graham's failure to provide a urine sample for a drug test despite repeated orders that he do so.
After holding an initial hearing on the charges, the Department served Graham with a final notice of disciplinary action and removed him from his position effective April 22, 2009. Graham appealed the Department's action to the Commission, which referred the matter to the Office of Administrative Law (OAL) for a hearing before an ALJ.
While the matter was pending at the OAL, the Department sent Graham a letter indicating that it intended to call Dr. George F. Jackson, Ph.D. (Jackson), Director of the State's Toxicology Laboratory, to testify about the effects that time has on the presence of drugs in the human body. Graham objected to the testimony and on October 23, 2009, the ALJ entered an order barring Jackson from testifying. The Department filed an interlocutory appeal to the Commission, which reversed the ALJ's ruling.
Evidentiary hearings before the ALJ followed. At the hearings, the State presented evidence indicating that on August 25, 2008, Graham was randomly selected for drug testing. Principal Investigator Jeffrey McCart (McCart) instructed Senior Investigator Eugene Johnson (Johnson) to obtain a urine sample from Graham. At approximately 8:30 a.m., Johnson called and asked to speak to Lieutenant Walters (Walters), who was Graham's shift supervisor that day.
Walters was on another phone call. Johnson then asked to speak with Graham, and Graham picked up the phone. Johnson told Graham to report to his office to provide a urine sample. According to Johnson, Graham replied, "Okay." However, Graham did not report to Johnson's office as directed. Around 10:30 a.m., Graham went to Walters and asked if he could go home because he was not feeling well. Graham then left the SSCF.
When Graham failed to appear and provide the urine sample, Johnson contacted McCart, who instructed him to inform Captain James Atkinson (Atkinson). Jackson called Atkinson, who spoke with Walters and learned that Graham had gone home sick. Atkinson told Walters that Graham had been instructed to provide a urine sample.
Atkinson tried to call Graham. He had three different telephone numbers that Graham had provided. Atkinson called two of the numbers and left voice mail messages instructing Graham to contact him at the SSCF. Atkinson called the third number and spoke with Graham's mother. Atkinson told her he was trying to get in touch with her son. She said she would attempt to contact her son and tell him to call Atkinson. Graham's mother later called Atkinson and said she had been unable to reach Graham.
Thereafter, Atkinson dispatched Lieutenant Dennis Bindewald (Bindewald) and Captain Allen Sheppard, Jr. (Sheppard) to Graham's residence to direct him to return to the SSCF. Sheppard rang the doorbell at Graham's home and knocked on the front door, but no one answered. Sheppard noticed that Graham's pickup truck was in the driveway. Sheppard and Bindewald remained at Graham's house for about five minutes and returned to the SSCF. They left a note on the door telling Graham to contact the shift commander at the SSCF immediately.
Graham denied receiving Johnson's calls or any subsequent orders from his superiors to contact or immediately return to the SSCF. Graham said that he suffers from high blood pressure and cholesterol and had a stroke in 1995. He testified that on August 25, 2008, around 8:00 a.m., he began to feel lightheaded and had trouble focusing. He requested leave, which was granted. Graham left the ...