IN THE MATTER OF WILLIAM BOYD CITY OF TRENTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4264-08T1

IN THE MATTER OF

WILLIAM BOYD,

CITY OF TRENTON.

_________________________________

Argued March 21, 2011 - Decided May 6, 2011

Before Judges Reisner and Sabatino.

On appeal from a Final Administrative Decision of the Civil Service Commission, Docket No. 2008-563-I.

William Boyd, appellant, argued the cause pro se.

Vincent M. Avery argued the cause for respondent City of Trenton (Ruderman & Glickman, P.C., attorneys; Stephen E. Trimboli and Alex W. Klein, on the brief).

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

PER CURIAM

This appeal arises out of an administrative agency decision of the Merit System Board ("the Board")1 dated May 12, 2008. Appellant William Boyd, a former employee of the City of Trenton ("the City"), contests the Board's decision, which had imposed upon him a sixty-day suspension from his employment with the City as a penalty for insubordinate conduct. Applying the limited standard of appellate review that governs such administrative cases, we affirm the Board's determination.

The pertinent facts were developed at a hearing in the Office of Administrative Law ("OAL") before Administrative Law Judge Douglas Hurd ("the ALJ"). Appellant was employed as a laborer in the City's water works division for approximately four years. During that time, he was disciplined on multiple occasions before the events in 2007 that precipitated the instant case.

According to appellant, he was traumatized after witnessing a co-worker urinate into a water filtration tank in January 2007. Appellant reported the co-worker's wrongful behavior to management, resulting in the co-worker being disciplined. Appellant contends that he thereafter became anxious, had difficulty concentrating and sleeping, and was unable to work. He consulted a psychologist.

Appellant stopped reporting to work after April 17, 2007. On April 18, his psychologist issued a one-page handwritten note on office stationery, addressed "to whom it may concern." The note stated that the psychologist was treating appellant for generalized anxiety disorder, allegedly resulting from the incident with the co-worker that appellant had witnessed some three months earlier. According to the psychologist, appellant had shown "symptoms of anxiety and worry which are making it impossible for [him] to function at work." The psychologist indicated that he would continue to see appellant twice each week until he returned to his normal level of functioning.

The following day, April 19, the psychologist issued a second handwritten note on his letterhead. This second note stated that appellant had begun treatment that day, despite the fact that the first note of April 18 had stated that treatment had already begun. The second note further stated, without elaboration, that appellant "will need three months to recover from his Generalized Anxiety Disorder and will be ready to return [to work] on July 19, 2007."

Appellant provided his employer with the two notes from the psychologist. He thereafter provided a form dated April 30, 2007, issued by the Hamilton Healthcare Center, which recommended in a conclusory manner that appellant be excused from work from April 30 through May 30, 2007.

The City found appellant's submissions inadequate to substantiate the medical reasons for his absence from work. Appellant's supervisor sent him a letter, which was hand-delivered to his home. The letter advised appellant that his request for a leave would not be granted, given the brevity of his submissions and the fact that he had not previously complained at work about being traumatized by the co-worker's conduct.

The supervisor's letter pointedly instructed appellant that, in order for his leave request to be further considered, "[he] must produce sufficient medical verification from a qualified health care provider, including all appropriate medical facts regarding the alleged psychological condition, and an explanation why this alleged psychological condition prevents [appellant] from working." (Emphasis in original). The letter further admonished that "[u]ntil then, [appellant is] expected to report to work and any further absences will be considered unauthorized absences and [appellant's] pay will be docked." (Emphasis in original). The letter specifically warned appellant that "[c]ontinued unauthorized absences will lead to [his] termination." (Emphasis in original).

Despite these instructions, appellant did not respond to the supervisor's letter. Appellant testified at the OAL hearing that he had given the supervisor's letter to his psychologist for a response. However, no such response was provided on his behalf, and the psychologist did not testify at the OAL hearing to corroborate appellant's account.

When appellant continued to be absent from his duties, the City's director of public works sent him a follow-up letter on May 14, 2007, advising that he was considered "absent without official leave" and that he had "acted in an insubordinate manner by refusing to comply with [his] supervisor's instructions." The letter made clear that "[d]isciplinary action will follow." Appellant continued to be absent.

As a result, the City initiated disciplinary action against appellant, charging him with insubordination, absenteeism, and other violations. The City also took the position that appellant had abandoned his position under N.J.A.C. 4A:2-6.2(b) and (c). The charges were sustained within the City's administrative process, and appellant consequently was terminated.

Appellant, a civil service employee, then sought review by the Board, and the matter was tried as a contested case in the OAL. Upon considering the testimony and other proofs, the ALJ concluded that the City had acted reasonably in seeking additional medical documentation from appellant, and was justified in terminating appellant when he failed to do so. The ALJ also found that appellant had acted inappropriately in not returning to work following the letters from his supervisor and the public works director, and also in failing to call them immediately to advise that he was in the process of gathering more information from his medical providers.

Based on his factual findings, the ALJ concluded that the City was justified in sanctioning appellant. However, the ALJ reduced the sanction from termination of employment to a sixty-day suspension. The City did not file an exception to this modified sanction.

Thereafter, the Board issued a decision on May 12, 2008, adopting the ALJ's findings of fact and conclusions of law in all respects. The Board deferred, however, the related issue of whether appellant would be entitled to any back pay for the period beyond the sixty-day suspension, taking into account income that appellant could have earned elsewhere in mitigation. Thereafter, upon further review, the Board (by that point re-named the Commission), issued a final decision on March 30, 2009, concluding that appellant was not entitled to back pay because he had not mitigated his damages by seeking other work and because he had taken himself out of the work force by enrolling in truck driver training.

Appellant contends that the agency's decision was unreasonable, arbitrary, and capricious in finding that he had been insubordinate. He argues that the record from the OAL hearing lacks sufficient credible evidence to support that finding and the sixty-day suspension. He asks that the suspension be reversed. His pro se brief does not seem to contest the agency's denial of back pay, which, in any event, appears to be a well-founded decision.

It is well settled that our scope of appellate review of administrative agency decisions is limited. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

As the Supreme Court noted in Herrmann, "[t]hree channels of inquiry inform the appellate review function." Id. at 28. These are:

(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.

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

"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid. In particular, we customarily accord such deference to the Board (now known as the Commission) in applying its expertise in civil service matters such as the case before us. See, e.g., In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001).

Applying this limited standard of review here, we sustain the Board's final decision. The factual findings of the ALJ, which the Board adopted, are supported by substantial credible evidence from the hearing. The Board did not act arbitrarily or capriciously, and, in fact, tempered the employer's response to appellant's insubordination by reducing the sanction to a sixty-day suspension. The agency's decision also has not been shown to be contrary to the applicable law. We have no basis to set it aside.

1 As the result of a statutory reorganization effective June 30, 2008, the Board is now known as the Civil Service Commission ("the Commission"). See P.L. 2008, c. 29; N.J.S.A. 11A:2-1 and N.J.S.A. 11A:11-3.