IN THE MATTER OF MARQUITA TEEL MERCER COUNTY BOARD OF SOCIAL SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1055-10T3

IN THE MATTER OF

MARQUITA TEEL,

MERCER COUNTY BOARD

OF SOCIAL SERVICES.

____________________________________________

March 27, 2012

Submitted October 26, 2011 - Decided

Before Judges Lihotz and St. John.

On appeal from the Civil Service Commission, Docket Nos. 2010-162 and 2010-714.

Law Offices of Saponaro & Sitzler, attorneys for appellant, Marquita Teel (George R. Saponaro, on the brief).

Joshua L. Markowitz, attorney for respondent, Mercer County Board of Social Services.

Paula T. Dow, Attorney General, attorney for respondent, New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Marquita Teel appeals the Final Administrative Action of the Civil Service Commission (the Commission) terminating her employment with the Mercer County Board of Social Services (the

Board). The Commission adopted the findings of fact of the Office of Administrative Law (OAL) as presented in the recommendation of the Administrative Law Judge (ALJ). In light of the record and applicable law, and following our review of the arguments on appeal, we affirm.

We discern the following facts leading to the administrative determination under review.

Teel was employed as a file clerk by the Board for approximately four years. During that time, she was disciplined on multiple occasions before the events in 2009 that precipitated her discharge. Teel was served with two Final Notices of Disciplinary Action within a two-month period. The first was issued on June 9, 2009, asserting Teel acted insubordinately and engaged in conduct unbecoming an employee, pursuant to N.J.A.C.4A:2-2.3, based on several incidents occurring between April 27 and April 30, 2009. These charges resulted in Teel's suspension.

The second notice, dated July 23, 2009, pertained to a threatening phone call made by Teel on April 28, 2009, asserting that she engaged in conduct unbecoming an employee pursuant to N.J.A.C.4A:2-2.3, and violated the provisions of Section 10.4 of the Board's Employee Handbook (Handbook). Additionally, the notice stated Teel violated Section 14.2 of the Handbook regarding "Professional Conduct." A departmental hearing was held on July 16, 2009, and Teel's employment with the Board was terminated.

Teel appealed both notices to the Commission. The cases were sent to the OAL where they were consolidated and heard on May 25, 2010, by ALJ Lisa James-Beavers, who issued an Initial Decision on August 16, 2010.

At the hearing, Teel, several fact witnesses, and representatives of the Board testified. The ALJ heard testimony concerning, among other things, a threat made by Teel, and also an incident which occurred on April 27, 2009, in Trenton's Lamberton Park. Omira Andino, a client of the Board, knew of Teel because Andino's daughter and Teel's son have the same father, Joaquin Ortiz. Andino stated that on April 27, she was at Lamberton Park with her three daughters and Ortiz's mother, Dawn, when Teel approached Andino making threatening remarks. A physical altercation ensued, and Teel "maced" both Andino and her one-year-old daughter. Dawn and Joaquin Ortiz's sister testified and corroborated these events. After the incident, Dawn, Andino, and her children returned to Andino's home. The police were notified and responded, but no report was filed as police stated they were unable to observe what had transpired.

The following day, Andino testified she went to Dawn's home to use the phone because her cell phone was lost during the April 27 encounter with Teel. While Dawn was taking a nap, Andino answered Dawn's phone and recognized Teel's voice, asking to speak with Dawn. Upon realizing Andino had answered, Teel made more threatening remarks. Andino took note of the incoming phone number and called it back. A recording at that number indicated "Social Services Record Room." Later that day, Andino called Board investigator Mark Stillitano, and left a message that Teel called her from the Board's office phone and threatened her.

Michael Danbury, the Supervising Clerk of the Board's records room, testified that he was Teel's supervisor. On April 30, 2009, he witnessed Teel acting very agitated because Teel knew someone had called the Board to complain about her. Danbury overheard Teel using profanity in a conversation with another employee. Danbury stated he instructed her to stop, and she replied that she understood. As he walked away, he heard Teel make a comment that it was okay for him to have conversations, but not for her. Danbury testified he told Teel he would not accept such behavior in the office. Teel acknowledged his reprimand and walked away. Danbury then went to his supervisor, Charmaigne Martel, who spoke to Teel and told her that if she is unable to perform her duties, she should go home. As a result of Danbury speaking to Martel, Teel refused to speak to Danbury. Later that day, Teel was again reprimanded about her attitude towards Danbury and was cited for her behavior. Teel was charged with insubordination and conduct unbecoming a public employee. A six-day suspension was imposed.

Annette Lartigue, Chief of Administrative Services at the Board and supervisor of the records room, testified that the Board took steps to provide Teel with training on several occasions. Teel was also issued the Handbook, which addresses appropriate office behavior both off-site and on-site, as well as phone use, attire, safety and security. It further discusses treatment of clients and co-workers. Anger management training was also available.

Lartigue testified Section 10.4 of the Handbook regulates employees' use of the phone system. The Board's policy states that the office phone is for business use only. Personal calls, if they must be made, must be kept brief and the Board must be reimbursed for them. Section 10.4 reads: "Extensive personal use is grounds for discipline. All employees are expected to conduct themselves professionally. . . . Employees who act unprofessionally will face discipline up to and including termination."

Frank Cirillo, the Board's Director of Welfare, discussed the Board's policy of progressive discipline, and that there were a number of disciplinary actions leading to Teel's termination. The parties stipulated to Teel's disciplinary history.

Teel testified that the Lamberton Park incident never occurred. She admitted placing the call on the Board's phone to Dawn, who was the grandmother of her child, but stated she did so in compliance with the Board's personal-call policy. She explained the reason for the call was because Dawn was babysitting Teel's child and she needed to inform her of a pick-up time. Teel stated she only spoke to Dawn and did not threaten anyone. The testimony was directly contradicted by Dawn and Andino. Dawn testified that she has not taken care of Teel's child since 2000. Prior to this incident, Teel had obtained a restraining order against Dawn preventing her from visiting Teel's son. Teel offered no testimony with regard to the June 9, 2009, or the July, 23, 2009 charges.

The ALJ reviewed the evidence and, regarding the June 9, 2009 Final Notice Of Disciplinary Action, found: (1) Teel was not insubordinate on April 30, 2009, and dismissed that charge; and (2) Teel used profanity in the office and talked about her supervisor to her co-workers after he gave her an order, and that conduct adversely affected the morale of government employees and the efficiency of the office sustaining the charge that such conduct was unbecoming a public employee.

With regard to the July 23, 2009 Final Notice Of Disciplinary Action, the ALJ found the Board's witnesses' testimony to be credible. The ALJ concluded that Teel used the Board's phone to threaten Andino, which conduct has the tendency to destroy public respect for government employees and confidence in public services, and therefore she sustained the charge of conduct unbecoming a public employee. Further, the ALJ concluded Teel used the Board's phone for non-business use and, in doing so, acted unprofessionally in violation of Sections 10.4 and 14.2 of the Handbook.

Neither party filed exceptions with the Commission, which issued its decision on September 17, 2010. The Commission found that the action of the Board in first suspending and then removing Teel was justified. The Commission affirmed those actions and dismissed Teel's appeal.

Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. See In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The burden is on Teel to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

"Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our own judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).

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 (internal quotations and citations 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.

With those principles in mind, we turn to Teel's contentions. She first challenges the ALJ's decision, asserting that the "conduct unbecoming" charge related to the use of the office phone is not supported by substantial and reliable evidence. She also argues that the decision did not conform with relevant law. Finally, Teel contends that even if the record supports the finding of the infractions, the discipline is arbitrary, unreasonable, and capricious because the ALJ failed to apply progressive discipline.

We agree the ALJ's findings in adopting the testimony of Dawn and Andino, while rejecting Teel's testimony to the contrary, is supported by the finding that Teel's denial of any incident at the park, "makes her testimony regarding the call unbelievable." Further, we defer to the ALJ's credibility determinations with regard to Danbury and Latrigue's testimony that Teel used profanity in the workplace and used the Board's phone for an unauthorized purpose, in violation of the Handbook.

We conclude the ALJ's findings of fact, as adopted by the Commission, were based on substantial credible evidence, and as such, the Commission's determination that appellant acted improperly in her role as a Board employee was neither arbitrary nor capricious.

Teel argues that the ALJ misapplied the Supreme Court's holding in Karins v. City of Atlantic City, 152 N.J. 532 (1998), and our decision in In re Emmons, 63 N.J. Super. 136 (App. Div. 1992), to the facts of her case. We disagree.

In applying the standard of "conduct unbecoming," the Court noted:

"[t]he phrase is an elastic one," that "has been defined as any conduct which adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services."

[Karins, supra, 152 N.J. at 554 (quoting Emmons, supra, 163 N.J. Super. at 140) (additional internal quotation marks and citation omitted).]

As a public employee, Teel's use of the Board's phone to make threats to a client of the Board certainly destroys "public respect for municipal employees." Ibid. Further, Teel's insubordinate behavior toward her supervisor not only negatively affected the morale of her colleagues, it also frustrated the efficiency of operations at the Board. Teel's actions meet the standard of conduct unbecoming.

Regarding Teel's contentions that her conduct was not egregious enough to warrant removal, and that progressive discipline was required, the Court has said, "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." In re Carter, 191 N.J. 474, 486 (2007). "[W]hen 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.'" Herrmann, 192 N.J. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)). The Board should not have to continue to countenance an employee who used its phone to make a threatening call, and also behaved so inappropriately in the workplace. Teel's removal from her public position as a result of her conduct does not shock our sense of fairness.

Based on our analysis of the record within the perspective of our limited standard of review, we are not persuaded Teel has carried her burden of demonstrating the Board's actions were arbitrary, unreasonable, or capricious.

A