IN THE MATTER OF AYODELE AKINOLA

NOT FOR PUBLICATION WITHOUT THE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 AYODELE

AKINOLA, WOODBRIDGE

DEVELOPMENTAL CENTER,

DEPARTMENT OF HUMAN SERVICES.

____________________________

September 17, 2013

Argued September 9, 2013 Decided

Before Judges Parrillo and Harris.

On appeal from the Civil Service Commission, CSC Docket No. 2013-17.

Lawrence N. Lavigne argued the cause for appellant, Ayodele Akinola.

Peter H. Jenkins, Deputy Attorney General argued the cause for respondent, Woodbridge Developmental Center, Department of Human Services, (John J. Hoffman, Acting Attorney General, attorney; Mr. Jenkins, on the brief).

PER CURIAM

Appellant Ayodele Akinola appeals from the January 9, 2013 final administrative action of the Civil Service Commission (the Commission), which upheld the Department of Human Services's (the Department's) removal of Akinola from her position as a cottage training technician at the Woodbridge Development Center (the Center). We affirm.

The facts are undisputed.1 On February 28, 2012, Akinola was assigned to monitor R.B., a developmentally disabled individual, who resided at the Center. According to Akinola's supervisor, Akinola was required to change R.B.'s adult diaper in the course of her duties. As Akinola was assisting R.B., his "hand accidentally went inside [Akinola's] glasses . . . [a]nd as it went inside her glasses, you can imagine as he, . . . making noise, [was] agitated." The supervisor recounted what she saw:

All of a sudden, all I know, Ms. Akinola to me reacted so fast and quickly on the response of that you know, him poking her in the eye, moving the glasses up. And slammed like the right . . . side of his face against the wardrobe. She reacted. She that's to me, she reacted. I do not believe she did it on purpose, but she reacted.

When the supervisor reproached Akinola for the violence she had just witnessed, Akinola said, "What? What are you talking about? What did I do? I do nothing. He broke my glasses." R.B. was immediately medically checked, and found with "a big red mark on the side of his face," but was otherwise uninjured.

Akinola was charged by the Department with "[p]hysical abuse of a client" and "conduct unbecoming a State employee." After being removed from employment effective on April 6, 2012, Akinola appealed, and the matter was transferred to the Office of Administrative Law as a contested case. After a testimonial hearing on November 2, 2012, the administrative law judge (ALJ) rendered an initial decision on November 21, 2012, sustaining the charges and affirming Akinola's removal.

The ALJ found the version of events as recounted by Akinola's supervisor to be "clear and consistent," and declared it "credible testimony." As for Akinola's testimony, the ALJ stated that it was not credible. The ALJ found that, at the time Akinola was helping R.B. with the diaper, she was irritated because she was unable to secure any assistance from her supervisor. Thus, although R.B. "poked her in the eye as she was bending from the waist[,] Akinola then slammed R.B.'s head into the wardrobe of his room with sufficient force to cause redness on the right side of his head."

Based upon this factual determination, the ALJ held that such conduct constituted "physical abuse of a client," which was defined by the Department as

a physical act directed at a . . . resident of a type that could tend to cause pain, injury, anguish, and/or suffering. Such acts include but are not limited to the . . . resident being kicked, pinched, bitten, punched, hit, pushed, dragged, and/or struck with a thrown or held object.

Accordingly, Akinola had engaged in conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and "the penalty of removal for Akinola's offense against a defenseless developmentally disabled resident is appropriate." On January 9, 2013, the Commission entered a final administrative action adopting the ALJ's initial decision. This appeal followed.

On appeal, Akinola does not take issue with the factual findings of the ALJ (as adopted by the Commission), but argues that her conduct was a

clearly instantaneous, defensive and reflexive reaction by Akinola to being forcibly poked in the eye. There is simply no evidence in this case to support a conclusion that the event was anything more than the result of a human reflex to a noxious stimulus, i.e., being poked in the eye!

Thus, because such act was not directed at R.B., and was only a "defensive action directed at the noxious stimulus," Akinola claims she cannot be disciplined for her innate humanity.

"Courts provide the widest possible interpretation of the [Civil Service] Act as it was designed to procure efficient public service and to maintain stability and continuity in ordinary public employment." In the Matter of John C. Johnson, ___ N.J. ___, ___ (2013) (slip op. at 12) (citing State, Dep t of Civil Serv. v. Clark, 15 N.J. 334, 341 (1954); Aparin v. Cnty. of Gloucester, 345 N.J. Super. 41, 35 (Law Div. 2000), aff d o.b., 345 N.J Super. 24 (App. Div. 2001). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

In general, appellate review is limited to determining:

(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.

[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"'[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result.'" In re Carluccio, 426 N.J. Super. 15, 24 (App. Div. 2012) (quoting In re Taylor, 158 N.J. 644, 657 (1999)).

With these principles in mind, we disagree with Akinola's argument that there was insufficient evidence to sustain the charges. As noted in the ALJ's initial decision, Akinola's actions violated the Department's clearly expressed expectation that employees safely and respectfully treat residents at all times. We find no provenance in the law for Akinola's "defensive-action-directed-at-a-noxious-stimulus" defense. Plainly, Akinola physically directed herself against R.B., which resulted in harm to the resident. In the specialized setting in which she found herself, Akinola's forceful reaction to R.B.'s accidental, albeit painful, touching was sufficient to warrant the legal conclusions of the ALJ and the Commission. We have no grounds to substitute our vision of what constitutes appropriate conduct under these circumstances for those of the agency.

Additionally, we owe substantial deference to the agency's "'choice of remedy or sanction, seeing it as a matter of broad discretion, . . . especially where considerations of public policy are implicated.'" In re Herrmann, 192 N.J. 19, 34-35 (quoting N.J. Div. of State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div. l997), certif. denied, l 53 N.J. 52 (l998)). Considering the nature of Akinola's conduct in the context of our deference to the Commission, we do not find the sanction of removal "shocking to one's sense of fairness." In re Carter, supra, l9l N.J. at 484.

1 Although Akinola testified at the hearing in the Office of Administrative Law, her appellate brief states: "Appellant accepts the testimony of the [sole eye] witness and submits that testimony does not support the [administrative law judge's] sustaining Appellant's firing and the [Commission's] affirming same."