IN THE MATTER OF DAMIEN JOHNSON CITY OF LINDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4390-08T34390-08T3

IN THE MATTER OF DAMIEN JOHNSON,

CITY OF LINDEN.

________________________________________________________________

Argued June 7, 2010 - Decided June 28, 2010

Before Judges Baxter and Alvarez.

On appeal from a Final Administrative Decision of the Civil Service Commission, Docket No. 2008-1646.

Daniel J. McCarthy, Assistant Municipal Attorney, argued the cause for appellant City of Linden (Edward J. Kologi, Municipal Attorney; Mr. McCarthy, on the briefs).

Kevin P. McGovern argued the cause for respondent Damien Johnson (Mets Schiro & McGovern, LLP, attorneys; Mr. McGovern, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

The City of Linden (City) appeals from an April 16, 2009 final decision of the Civil Service Commission (Commission) that reversed an Administrative Law Judge's (ALJ) order that upheld the City's termination of its employee, respondent Damien Johnson. Although the Commission affirmed the ALJ's determination that Johnson's conduct warranted discipline, the Commission modified Johnson's removal to a three-month suspension and ordered his immediate reinstatement with appropriate back pay, benefits and seniority. The City maintains that the Commission's reduction of the penalty was arbitrary and capricious. We disagree and affirm.

I.

Johnson's employment with the City as a sanitation worker began in May 2002. Although he incurred no disciplinary infractions in the first sixteen months of his employment, he was disciplined on three different occasions between September 29, 2003 and October 10, 2003. The three incidents included: attacking a supervisor after the supervisor chastised him for throwing garbage cans; cursing at and threatening a City resident; and becoming involved in a verbal and physical altercation with a fellow employee.

The incident in question occurred on September 24, 2004 when Johnson initiated a fist fight with a supervisor, Richard Kovac. Johnson angrily pulled Kovac, a much older man, out of the driver's seat of a garbage truck and began a physical altercation with him. The record demonstrates that although Johnson was the one who initiated the incident by pulling Kovac out of the driver's seat and threatening him, it was actually Kovac who threw the first punch. Because of the serious nature of the incident, and because Johnson had sustained so many citations for violent and threatening behavior in less than two years, the City removed him from his position and terminated his employment. The City's decision was affirmed by the ALJ in a written decision, from which Johnson appealed.

Upon its de novo review of the record, the Commission agreed with the ALJ's assessment of the charges but did not agree with her recommendation to uphold the removal. The Commission reasoned:

In determining the proper penalty, in addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the [Commission] also utilizes, when appropriate, the concept of progressive discipline. It is settled that the theory of progressive discipline is not "a fixed and immutable rule to be followed without question." Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant's offense, the concept of progressive discipline, and the employee's prior record. In the instant matter, the appellant's prior disciplinary history since his employment in 2002 includes a three-day suspension in October 2003 for an incident in which the appellant threw a garbage can while on duty and when confronted by his supervisor, he became hostile and cursed repeatedly; and a one-day suspension in November 2003 for a verbal and physical confrontation with a co-worker. It also noted that the appellant was served with a F[inal] N[otice] [of] D[isciplinary] A[ction] dated October 15, 2003 which indicated that he cursed at a City resident and it was agreed upon at the time of the hearing that he would seek help from the Employee Assistance Program.

Given that the record only evidences minor discipline for similar infractions, the [Commission] does not find the appellant's conduct so egregious as to warrant removal without following the tenets of progressive discipline. While the [Commission] is mindful of the seriousness of the appellant's conduct, the [Commission] notes that the evidence indicates that the appellant did not extend the incident. Rather, Kovac reinitiated the altercation after he and the appellant had been separated. Additionally, the [Commission] notes that Kovac only received a three-day suspension for his conduct. Therefore, the [Commission] determines that the appropriate penalty is a three-month suspension. It is noted that the three-month suspension is a severe major disciplinary action which places the appellant on notice that any future infractions may lead to more serious penalties, up to removal. Accordingly, the foregoing circumstances provide a sufficient basis to modify the removal imposed by the appointing authority to a three-month suspension.

Since the penalty has been reduced, the appellant is entitled to mitigated back pay, benefits and seniority pursuant to N.J.A.C. 4A:2-2.10.

[(Citations omitted).]

On March 27, 2008, the Commission denied the City's request for a stay. On April 16, 2009, the Commission ordered the City to issue Johnson back pay in the amount of $21,151. The City appealed from the September 17, 2007 and April 16, 2009 orders of the Commission.

On appeal, the City maintains that the Commission's September 17, 2007 and April 16, 2009 decisions "overlook Damien Johnson's history of altercations and discipline prior to his termination," that fighting and violence in the workplace cannot be tolerated and that when, as here, the conduct in question is extremely serious, progressive discipline is not required. For that reason, the City maintains that the Commission's insistence on progressive discipline when it reversed Johnson's termination of employment and reduced the penalty to a ninety-day suspension represented arbitrary and capricious agency action that this court should reverse.

II.

The scope of our review of a final determination of an administrative agency is very limited. In re Carter, 191 N.J. 474, 482 (2007). We will not interfere unless there is a clear showing that the decision is "arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Our review is restricted to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard . . . to the agency's expertise where such expertise is a pertinent factor.'" Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (alteration added). The burden of showing that an agency's decision was arbitrary, capricious or unreasonable lies with the appellant. See Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Our review is confined to the following factors:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]

"When an agency's decision meets those criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28 (2007). "Deference controls even if the court would have reached a different result in the first instance." Ibid.

The deferential standard of review applicable to agency decisions also applies to the review of disciplinary sanctions. Ibid. In Herrmann, the Court concluded that the Appellate Division exceeded its scope of review when it reversed the termination of employment imposed both by the appointing authority and by the ALJ and remanded for the imposition of a lesser penalty. Id. at 39. The Court held that the panel "impermissibly imposed its own judgment as to the proper penalty . . . when the [Merit System Board's] penalty could not be said to be either illegal or unreasonable, let alone 'shocking' any sense of fairness." Ibid.

In so doing, the Court agreed with the Merit System Board that "when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property," removal from office may be appropriate even though normal principles of progressive discipline would have required a lesser sanction. Id. at 33. For that reason, the City, relying on Herrmann, urges us to reverse the Commission's decision and reinstate the ALJ's order removing Johnson from his position.

Johnson also relies upon Herrmann, although for a different reason. He points to the Court's observation in Herrmann that because the Commission "is the entity charged with keeping State-government-wide standards of employee performance relatively consistent in disciplinary matters," id. at 37, we should refrain from substituting our judgment for that of the Commission. He maintains it was for that very reason that the Court in Herrmann established a stringent standard that sharply limits the authority of a reviewing court to modify a disciplinary sanction imposed by the Commission. The Court held in Herrmann:

A reviewing court should alter a sanction imposed by an administrative agency only when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency. 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. 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 28-29 (internal quotations and citations omitted).]

Applying that standard, we are satisfied that the ninety-day sanction imposed by the Commission was neither "illegal," nor unreasonable, id. at 39, nor was it so disproportionate to the offense as to be shocking to our sense of fairness, id. at 29. While we do not condone Johnson's physical altercations with his fellow employees, we also recognize that of the three prior incidents, only one involved a member of the public. That incident did not involve a physical altercation, but instead Johnson cursed at the homeowner. His conduct, while certainly less than one might hope for from a public employee, does not involve the "severe misconduct," id. at 33, that was involved in Herrmann, where a Division of Youth and Family Services caseworker waved a lit cigarette lighter in the face of a five-year-old child whom she was interviewing about a child abuse allegation, id. at 24.

Our review of the record satisfies us that the Commission's insistence on the application of progressive discipline was not "'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 (quoting In re Polk, 90 N.J. 550, 578 (1982)). The Commission's conclusion that, though not commendable, Johnson's conduct was not so egregious as to warrant removal without following the tenets of progressive discipline, does not strike us as so wide of the mark as to warrant our interference. We also do not disagree with the Commission's observation that the three-month suspension it imposed is a "severe major disciplinary action" that puts Johnson on notice that any future infractions "may lead to more serious penalties, up to removal."

In concluding that the Commission did not act in an arbitrary or capricious fashion when it modified the sanction imposed by the ALJ, we note that Johnson's conduct was vastly different from the many instances in which either we or the Supreme Court have upheld a departure from principles of progressive discipline because the misconduct was extremely severe. See e.g., Carter, supra, 191 N.J. at 476 (police officer sleeping on duty); Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980) (prison guard submitted falsified report of his discovery of marijuana); Klusaritz v. Cape May County, 387 N.J. Super. 305, 316 (App. Div. 2006) (accountant's incompetence and inability to perform basic accounting functions), certif. denied, 191 N.J. 318 (2007); State-Operated School Dist. of Newark v. Gaines, 309 N.J. Super. 327, 333 (App. Div.) (school security guard required to maintain a valid driver's license while operating school district's motor vehicles nonetheless continued to operate the vehicles even while license was suspended), certif. denied, 156 N.J. 381 (1998); Div. of State Police v. Jiras, 305 N.J. Super. 476, 478 (App. Div. 1997) (State Trooper's unprovoked assault on a prisoner), certif. denied, 153 N.J. 52 (1998). In those cases, unlike the situation presented here, the employees' misconduct went to the very heart of their job responsibilities and was so severe as to warrant termination even though progressive discipline would ordinarily have resulted in a lesser penalty. This is not such a case. Therefore, we will not disturb the Commission's reduction of the sanction to a ninety-day suspension.

 
Affirmed.

On June 30, 2008, P.L. 2008, c. 29 was enacted and took effect, changing the name of the Merit System Board to the Civil Service Commission, abolishing the Department of Personnel and transferring its functions, powers and duties primarily to the Civil Service Commission. For ease of discussion, we shall refer to actions which took place prior June 30, 2008 as actions of the Civil Service Commission.

Because Johnson subsequently found employment at a higher rate of pay, Johnson agreed to refrain from insisting upon reinstatement of his employment.

(continued)

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