IN THE MATTER OF KEVIN KINGSTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF KEVIN

KINGSTON, TOWNSHIP OF VERONA.

_________________________________

June 2, 2015

Submitted November 13, 2014 Decided

Before Judges Alvarez, Maven, and Carroll.

On appeal from the Civil Service Commission, Docket No. 2010-1906.

Wilentz,Goldman &Spitzer, P.A.,attorneys for appellant Township of Verona (Dominick J.Bratti, ofcounsel andon thebriefs; Annemarie T. Greenan, on the briefs).

Bramnick, Rodriguez, Mitterhoff, Grabas & Woodruff, LLC, attorneys for respondent Kevin Kingston (Stephanie Ann Mitterhoff, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

The Township of Verona (Verona) appeals from the final administrative decision of the Civil Service Commission (Commission) ordering the reversal of Verona's decision to terminate petitioner Kevin Kingston's employment with the Verona Department of Public Works (DPW). The Commission's order is contingent upon Kingston's successful completion of a psychological fitness-for-duty examination. We affirm.

Kingston was employed as a laborer by the Verona DPW in excess of twenty years. Prior to October 22, 2008, Kingston had never been disciplined. On that date, Kingston overheard comments made by a long-time coworker and friend regarding Kingston's attendance at work. During the confrontation that ensued, Kingston grabbed his coworker and pushed him against a lab table. No punches were thrown and no injuries were sustained during the altercation. Both men then went back to their work.

Following the incident, Verona issued a preliminary notice of disciplinary action charging Kingston with insubordination, conduct unbecoming a public employee, neglect of duty, and unfitness for duty. At a hearing on the charges on November 25, 2008, the parties entered into a settlement agreement. Pursuant to the agreement, Kingston pled guilty to the unbecoming conduct charge, was suspended without pay for 130 days, and was required to supply Verona with a fitness-for-duty evaluation by a licensed psychologist no later than January 15, 2009. The agreement also reserved Verona's "right to send [] Kingston for a fitness[-]for[-]duty exam."

Kingston was unable to contact his psychologist to schedule the evaluation before January 15. Consequently, the parties agreed to stay the examination requirement for five months.

On January 26, 2009, Kingston was examined by Betty McLendon, Psy.D., a licensed psychologist retained by Verona. In her February 6, 2009 report, McLendon concluded that she could not find Kingston fit for duty until he participated in a treatment program to address anger and stress management issues. After a follow-up evaluation on June 24, 2009, McLendon opined in a second report that Kingston remained psychologically unfit for duty.

In the interim, Kingston retained Henry J. Srednicki, Ph.D., a licensed psychologist, who performed a fitness-for-duty evaluation on June 2, 2009. In his June 3 report, Srednicki found Kingston fit for duty and able to return to work without restriction. Srednicki also provided individual psychotherapy to Kingston for anxiety, anger, and depression, until May 2010.

After reviewing the three fitness-for-duty reports, on November 10, 2009, Verona's township manager, Joseph Martin, issued a final notice of disciplinary action removing Kingston from his employment at the DPW. Kingston then appealed his removal to the Commission, which transmitted the case to the Office of Administrative Law (OAL).

At the OAL hearing, Martin explained that, in recommending Kingston's termination, he found McLendon's evaluation to be more "compelling and thoughtful," while Srednicki's report was "tentative and cursory." Martin also testified that, notwithstanding Kingston's termination as a DPW laborer, he remains an active firefighter in Verona. As a member of the fire department, Kingston has not been subject to any discipline.

McLendon testified regarding the two fitness-for-duty evaluations she conducted. Her first examination revealed that Kingston was suffering from chronic and pervasive personality traits including depression, compulsivity, and self-defeating behaviors. These conditions were a result of various stresses in his life including continuing trauma stemming from sexual abuse as a child, a past criminal charge of disruptive behavior for attempting to separate two bar patrons who were in a fight, the death of his father, and the loss of a close relative. McLendon opined that these stresses were "triggering factor[s]" and that "[Kingston's] inability to handle stress . . . was pervasive across his social life as well as his professional life."

On cross-examination, McLendon admitted that her initial report did not render a diagnosis of mental illness, nor did it indicate that Kingston was a danger to himself or others. Rather, she reported that Kingston's "history does not reveal ongoing atypical aggression, hostility[,] [or] willful intent to do harm." McLendon also conceded that she was unaware of any other work incidents in which Kingston was involved either prior or subsequent to the October 22, 2008 altercation.

Following this first evaluation, McLendon advised Kingston to seek treatment for his stress-related issues since he was not actively receiving treatment at that time. McLendon testified that, despite her recommendation, Kingston had not obtained treatment prior to his second evaluation.

Kingston testified to his history of anxiety disorder and depression. He explained that he previously sought treatment for his anxiety from Dr. Lacara and Dr. Messina, but was no longer receiving treatment. He also recounted the details of the October 22, 2008 incident, insisting that he lost his temper and that he and his coworker engaged in mutual grabbing and shoving.

Srednicki testified that, based on his evaluation, Kingston does not suffer from any mental disability that would render him unable to perform his DPW duties. The doctor indicated that a person with anxiety, depression, and low self-esteem can complete the routine job duties of a laborer. Srednicki noted that respondent's level of impairment is mild. He concurred that Kingston was not a danger to himself or others.

Following the fitness-for-duty evaluation, Srednicki provided cognitive behavior therapy to Kingston until May 2010. The doctor's records indicated that Kingston attended treatment on a bimonthly to monthly basis, completed homework assignments, and reached most of his treatment goals.

On November 26, 2012, the Administrative Law Judge (ALJ) issued a comprehensive twenty-six-page Initial Decision, finding that Verona had failed to establish that Kingston was psychologically unfit for duty as a DPW laborer. The judge enumerated fourteen findings of fact, supported by detailed credibility findings that included the following

The testimony of all witnesses presented similar timelines of events and descriptions of circumstances and was credible. [Kingston's testimony] in regard to being unable to locate[] Dr. Messina was believable and supported by two doctors who were also trying to locate Dr. Messina. [Kingston's] presentation about seeking psychological hel[p] and reaching out for help when he needs it, is credible. The testimony of Dr. Srednicki with his description of tests and purposes for testing was clear and credible. Dr. Srednicki and Dr. McLendon each devoted six hours of time for [Kingston's] intake screening and testing. Dr. Srednicki's explanations about [Kingston's] anxiety and depression was presented methodically [and] was clear and credible. It was noted that Dr. McLendon is a known expert in many areas of New Jersey with a practice catered to municipalities. Dr. McLendon submits a preliminary examination report to the municipal attorney for review, prior to preparing a final written report. Dr. McLendon's second report incorrectly assumed that [Kingston] had not followed through on her recommendation to commence therapy. Dr. McLendon acknowledged that she made no mental diagnosis for [Kingston] and that she could not understand how [Kingston] was fit-for-duty to be a firefighter, but not fit-for-duty to be a DPW laborer. Dr. McLendon and Dr. Srednicki agree with each other that [Kingston] can perform the job duties of a laborer and has no mental condition that would cause him to do harm to himself or others.

After a lengthy legal discussion, the judge concluded

When applying the law to the facts in this case and weighing the testamentary and documentary evidence, I [conclude] that a preponderance of the evidence indicates that the Township manager did not have a diagnosis regarding [Kingston's] mental/psychological condition that would render [him] unfit to return to duty as a DPW laborer. I also [conclude] that both [parties'] experts find that [Kingston] is capable of performing the job of a laborer and further find that [he] is not a danger to himself and others. I [conclude] that based on the testimony of both psychologists that there is no rationale in terminating [Kingston] as a laborer and retaining his services as a fire fighter since both positions require similar attributes from the worker, with the fire fighter holding a higher standard for duty of care and requirement for fitness-for-duty. Therefore, I [conclude] that . . . Verona has failed to sustain its burden by a preponderance of relevant and credible evidence . . . that [Kingston] is psychologically unfit for duty as a DPW laborer. I also [conclude] that removal is excessive and unwarranted when applying progressive discipline and acknowledging that that there has never been another offense . . . by [Kingston] and the facts of the case lack evidence to prove psychological unfitness for duty.

The ALJ reversed the penalty of removal and, since "[m]ore than three years ha[d] passed since [Kingston's] last fitness-for-duty exam," ordered him to complete a standard fitness-for-duty exam prior to returning to employment. The ALJ also awarded Kingston back pay, benefits, seniority, and reasonable counsel fees.

Verona filed exceptions and, in a February 7, 2013 final decision, the Commission accepted and adopted the ALJ's factual findings. The Commission also concurred with the ALJ's recommendation that Kingston submit to a current evaluation by a psychiatrist or psychologist, to be selected by agreement of both parties. The Commission determined that Kingston's removal "[should] be reversed[,] contingent upon his successful completion of [the] psychological fitness[-]for[-]duty examination. The outcome of that examination shall determine whether [he] is entitled to be reinstated or removed."

On appeal, Verona argues that the Commission's decision is arbitrary, capricious, and unreasonable. It contends that the decision is not supported by sufficient, competent, and credible evidence, and that the Commission erred in failing to enforce the parties' settlement agreement and order Kingston's removal. Having considered these arguments in light of the record and applicable standards, we conclude that the Commission's decision is supported by sufficient credible evidence, and that Verona's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D), (E). We add the following comments.

Our review of a final administrative agency decision is limited. In re Stallworth, 208 N.J.182, 194 (2011). A "'strong presumption of reasonableness attaches to the actions of the administrative agencies.'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super.199, 205 (App. Div. 1993), aff'd, 135 N.J.306 (1994)), certif. denied, 170 N.J.85 (2001).

We afford deference to such a determination unless our review reveals it is arbitrary, capricious, unsupported by substantial credible evidence in the record, or in violation of legislative policy. In re Taylor, 158 N.J.644, 656-57 (1999); Karins v. City of Atlantic City, 152 N.J.532, 540 (1998); In reJuvenile Det. Officer Union Cnty., 364 N.J. Super.608, 614 (App. Div. 2003). Deference is particularly appropriate when the agency has adopted the findings of the ALJ because the ALJ, and not the agency, has the opportunity to hear "live testimony" and "judge the witnesses' credibility." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988). We do not independently assess the evidence. Id. at 588. Rather, "considering 'the proofs as a whole,'" and giving due regard to the opportunity of the ALJ to judge the credibility of the witnesses, we determine only whether the agency's findings could reasonably have been reached on sufficient credible evidence found in the record. Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted). The party challenging the agency's action has the burden of proving that the action was arbitrary, capricious, or unreasonable. DiNapoli v. Bd. of Educ., 434 N.J. Super. 233, 236 (App. Div.) (citing In re Arenas, 385 N.J. Super.440, 443-44 (App. Div.), certif. denied, 188 N.J.219 (2006)), certif. denied, 217 N.J.589 (2014).

Certainly, however, we do not merely rubber-stamp the agency's decision, Taylor, supra, 158 N.J. at 657, and a manifestly erroneous determination must be set aside, L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). Moreover, we are not bound by an agency's interpretation of a statute or resolution of a question of law. Taylor, supra, 158 N.J. at 658. See also Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Our review of legal issues is de novo. Ibid.

Verona argues that the ALJ and the Commission applied the incorrect standard in reversing Verona's decision to terminate Kingston's employment. It asserts that the only issue properly before the ALJ and the Commission was whether the decision to terminate Kingston was in compliance with the parties' settlement agreement. Accordingly, Verona contends that Kingston had the burden to prove that the municipality breached the settlement agreement.

Contrary to Verona's argument, the settlement agreement was silent as to Kingston's termination. Instead, it provided only that Kingston serve a 130-day unpaid suspension. It further obligated Kingston to supply Verona with a "fitness[-]for[-]duty" report, and Verona reserved the right to send Kingston for a similar evaluation. The settlement agreement did not expressly condition Kingston's continued employment on a satisfactory evaluation. More importantly, it did not provide what would happen if the parties obtained conflicting reports, as occurred here.

Verona subsequently terminated Kingston in reliance on McLendon's report deeming him psychologically unfit for duty, which assessment Kingston then challenged. In major disciplinary appeals,1 the appointing authority has the burden of proof, N.J.S.A. 11A:2-21 and N.J.A.C. 4A:2-1.4, and must establish the truth of the charges by a preponderance of the evidence. In re Polk, 90 N.J. 550, 560 (1982); Atkinson v. Parsekian, 37 N.J. 143, 149 (1962).

When an employer attempts to disqualify an employee based on psychological testing, the employer must follow a three-step validation process: (1) "the employer must specify the trait or characteristic that the selection device is being used to identify or measure;" (2) "the employer must establish that the particular trait or characteristic is an important element of work behavior;" and (3) "the employer must demonstrate by professionally acceptable methods that the selection device is predictive of or significantly correlated with the element of work behavior identified in the second step." Vey, supra, 124 N.J. at 540-41 (citations and internal quotation marks omitted).

Accordingly, we conclude that the ALJ applied the correct standard in requiring that Verona "demonstrate by a professionally acceptable validation method that the traits or characteristics used to disqualify [Kingston] were actually related to job performance." Likewise, the Commission in its de novo review of the record properly determined that Verona had the burden of proving Kingston's psychological unfitness for work.

Giving deference, as we must, to the ALJ's credibility determinations, there is sufficient evidence in the record to support the ALJ's findings and conclusions, which the Commission, in turn, substantially adopted. The ALJ appropriately found that Kingston's personality traits were not demonstrated in any manner to correlate with his job performance or to be predictors of his future performance. Srednicki testified that Kingston does not suffer from any disability that would render him incapable of performing the particular job duties of a DPW laborer. McLendon opined that Kingston did not suffer from any mental impairment and had the cognitive ability to understand and perform the duties of the job. Additionally, both experts testified that an individual suffering from personality traits similar to those displayed by Kingston would be able to perform the various duties of a laborer such as shoveling snow and trimming hedges. In short, the record is completely devoid of any evidence equating Kingston's personality traits to an inability to perform the duties of his job.

Noting the three-year lapse of time since the last fitness-for-duty report, the ALJ ordered Kingston to submit to an updated evaluation. The Commission concurred with the ALJ's recommendation, and felt constrained not to "order[] [Kingston's] reinstatement without some assurance that he is fully capable of performing the duties of his position." Consequently, the Commission expressly conditioned Kingston's reinstatement, or removal, on the results of an updated psychological fitness-for-duty examination. The Commission's ultimate determination represents a reasoned exercise of discretion, and is not so wide of the mark as to justify a substitution of our own judgment for that of the Commission.

Affirmed.

1 Major discipline includes removal, disciplinary demotion, and suspension or fine of more than five days. N.J.A.C. 4A:2-2.2.