IN THE MATTER OF JAMES BELLAMY

NOT FOR PUBLICATION WITHOUT THE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 JAMES

BELLAMY, DEPARTMENT OF

CHILDREN AND FAMILIES.

_______________________________

June 20, 2014

Telephonically argued March 18, 2014 - Decided

 

Before Judges Sapp-Peterson and Lihotz.

 

On appeal from the Civil Service Commission, Docket Nos. 2009-3810, 2009-3889 and 2011-4633.

 

Bernard A. Campbell, Jr., argued the cause for appellant, James Bellamy (Destribats Campbell, LLC, attorneys; Mr. Campbell, on the brief).

 

Adam Verone, Deputy Attorney General, argued the cause for respondent, New Jersey Department of Children and Families (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Verone, on the brief).

 

PER CURIAM

Appellant James Bellamy appeals from a final Civil Service Commission (CSC) disciplinary action terminating his employment effective January 6, 2004. In a two-pronged attack on the determination, appellant maintains the motion for reconsideration of the CSC's adoption of the Administrative Law Judge's (ALJ) determination that recommended his reinstatement was untimely and the grant of reconsideration was unfounded. We are not persuaded and affirm.

These facts are taken from the agency record. Appellant began working for the State in 2001. In January 2003, he transferred to the Personnel Office in the Department of Children and Families (Department). The office was comprised of approximately fifty employees, who were supervised by Linda Dobron, the Manager of Human Resources. Appellant's title was Technical Assistant 3 and his duties included manning the reception desk, answering the telephone, and managing office correspondence.

Appellant also held employment as a noncommissioned officer in United States Army Reserve. In this role, he served as a drill sergeant and instructor for the National Guard and Reserve Officer Training Corps.

Over time, appellant perceived office tensions arose from absences related to his military service. He believed he was required to submit excessive documentation of his military leaves. On the other hand, Dobron viewed appellant as disruptive and non-compliant with requirements for documentation when he performed military leave. At the departmental hearing, Dobron testified appellant would occasionally raise his voice to inappropriate levels while working at the front reception desk. On one occasion, she counseled him because his loud telephone conversation disrupted the office.

In September 2003, appellant began treating with psychiatrist Alvaro Argueta, M.D., who diagnosed him as suffering from work-related stress and major depression. Dr. Argueta's diagnosis warranted appellant's medical leave, which commenced in September and lasted through November 2003. Initially, Dr. Argueta wrote advising appellant could return to work on November 6, 2003, if he were able to "transfer[] to a different department." Dobron responded that the Department was not able to accept a conditional authorization for appellant's return. She stated if appellant was unable to return without restrictions, he should request an extension of his medical leave. Her letter also provided requisite procedures appellant had to follow to modify his position or transfer to a different department and included direction to file a complaint with the Office of Labor Relations, which investigates workplace harassment, if he had such a complaint. On December 19, 2003, Dr. Argueta released appellant stating he "[was] capable to return to work on December 22, 2003 with out [sic] any restrictions."

In accordance with Dobron's instructions, appellant filed a complaint seeking an accommodation for his mental stress disability in the form of a transfer. The complaint was assigned for investigation to the Department's Equal Employment Opportunity/Affirmative Action Officer, Darren J. Bolden. Appellant also applied for another position and formally filed a hostile work environment complaint, seeking accommodation through reassignment to another department. There is no record of Bolden's findings. Dobron informed appellant the job he sought would not be filled by the Department. Victor Green, Manager of the Department's Labor Relations Office, acknowledged appellant's request for reassignment, but advised action could not be taken until appellant provided an updated medical note, as he was considered on unauthorized medical leave.1

Green arranged for appellant's evaluation with Gerald E. Galietta, M.D., a psychiatrist engaged to assess appellant's fitness to return to work. In his report, Dr. Galietta recited the scope of his assignments:

Specifically, you requested this evaluation to determine if [appellant] was fit to perform his duties from which he had been placed on temporary disability since September of 2003 because of "stress and depression[,]" which was stated in his physician's notes. More specifically[,] your concern centered on the sporadic attendance of [appellant] since 12/28/02 and stated that he had worked but only 95 days out of a possible 196 days, between 12/28/02 and 10/03/03. You specifically noted that many of his absences were secondary to called military duty[,] which have been granted without question.

 

You also noted that [appellant] had failed to follow requested policies and procedures for requesting time off from work whether it be for sickness or military leave. You enclosed with your request a number of documentary statements primarily from his supervisor Linda Dobron, which stated the expectation of the [Department] as well as the specific infractions thereof. Also noted were [appellant]'s responses[,] which implied lack of procedural knowledge for absences, as well as his irritation with the supervisory personnel relative to his behavior.

 

During the almost one-hour evaluation, appellant told Dr. Galietta he harbored "violent feelings toward [Dobron] and 'her flunk[ie]s' to the point of inflicting pain or harm upon them." Dr. Galietta reported that "[w]hen confronted with the violent out[-]of[-]control content of his thought, and the possibility of it being merely an expression, [appellant] stated, 'No. I definitely will do it if she harasses me.'" Dr. Galietta questioned appellant further regarding whether he actually intended "to express his violent thoughts toward anyone," and appellant responded: "Definitely yes. If I return to work and my supervisor (Linda Dobron) and any of her flunkies harass me, I will grab her about the neck and rip her eyes out." Dr. Galietta explained to appellant "[t]hat is a violent thought" and asked him to promise "[he] would not act on those thoughts and feelings because of their potentially homicidal nature[.]" Appellant responded: "No sir, I [cannot] promise you that. That is the way she has caused me [to] feel and I will do what I said." Appellant further stated he was not responsible for his actions if provoked. Dr. Galietta cautioned appellant his violent thoughts were "a serious problem that would have to be made known to his supervisor."

The day following appellant's evaluation, Dr. Galietta contacted Green about appellant's remarks and thereafter faxed a synopsis of appellant's threatening statements. Green informed Dobron a threat had been made against her. The Department did not notify law enforcement or investigate further. Green consulted with other managers, and it was decided appellant had threatened another employee and disciplinary sanctions were to be imposed.

When he returned to work in late December 2003, appellant was informed disciplinary proceedings had been initiated and he was escorted from the building. A preliminary notice of disciplinary action (PNDA) was served on December 23, 2003. It charged appellant with threatening a fellow employee, in violation of Section C-25 of the Department of Personnel's Disciplinary Action Program. Appellant was suspended without pay. Following an informal pre-termination hearing, appellant's employment was terminated. Appellant appealed. A department hearing was held, which resulted in a final notice of disciplinary action (FNDA) sustaining the charge against appellant and removing him from employment, effective January 6, 2004.

On November 12, 2004, appellant filed a notice of appeal with the CSC.2 However, when appellant received military orders deploying him to Iraq, the proceedings were suspended pending his return.3 Appellant returned to New Jersey and requested the proceedings resume, at which time the CSC transmitted the matter to the Office of Administrative Law as a contested case.

An evidentiary hearing was conducted over three non-continuous days from November 5, 2007 to February 26, 2008.4 Dr. Galietta's testimony was consistent with his report and his prior departmental hearing testimony. Appellant testified on his own behalf. He also presented testimony from Heather Bellamy, his wife, Sergeant James Ott, his military superior, and Dr. Argueta.

In his testimony, appellant described the consultation with Dr. Galietta as a "doctor-patient session" "similar to his therapy sessions with his own physician." He recalled being asked a series of hypothetical questions during which he was "frank in expressing his anger and frustration at his treatment at work and the stress it had placed him under." He also denied he intended to threaten anyone. Appellant's witnesses concurred appellant was not a violent person.

In reviewing the evidence, the ALJ credited Dr. Galietta's "assertion that [appellant] discussed his feelings of anger toward those he saw as responsible for his job-related stress and that he used words such as 'grab her by the neck and rip her eyes out.'" The ALJ viewed Dr. Galietta's decision to report the statements as "err[ing] on the side of caution."5 The ALJ also credited appellant's statements that he "assumed . . . the interview with [Dr.] Galietta was one between a doctor and a patient in which he could freely discuss his feelings in a therapeutic setting"; appellant's statements were denoted as "expressions of those emotions under questioning by Dr. Galietta and were not intended as threats."

The ALJ concluded the Department failed to meet its burden of proving the charge by the preponderance of the evidence, stating appellant's "remarks regarding his feelings toward his supervisors were made in an interview session with a psychiatrist which he assumed was confidential and where he could give voice to his stressful emotions." The ALJ recommended the charge be dismissed and appellant be reinstated.

The Department filed exceptions. The CSC issued a decision on April 17, 2009, adopting the findings and conclusions contained in the ALJ's initial decision. Accordingly, the CSC reversed appellant's dismissal and ordered his employment reinstated with back pay, benefits and seniority.

The Department requested a stay pending consideration of its motion for reconsideration, which was timely filed. See N.J.A.C. 4A:2-1.6 (requiring petitions for reconsideration to be filed within forty-five days of the date of the final decision). Consideration of the motion and appellant's opposition were deferred pending settlement discussions, which were unsuccessful. Appellant requested the matter be finalized and he moved for entry of judgment on the amount of back pay and benefits.

It was not until January 11, 2013 that the CSC issued a decision regarding the Department's request for reconsideration and appellant's cross-motion for enforcement of the prior order.6 Following its review, the CSC concluded the ALJ's decision it had previously adopted contained clear material errors and granted reconsideration. In its review of the evidential record and the applicable law, the CSC rejected the ALJ's conclusions drawn from the facts, upheld appellant's removal from employment, and dismissed as moot his motions for enforcement. Appellant timely filed this appeal.

It is well settled that a "strong presumption of reasonableness attaches to the actions of administrative agencies," In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (internal quotation marks and citation omitted), certif. denied, 170 N.J. 85 (2001), limiting our review of an agency's final decision. In re Herrmann, 192 N.J. 19, 27 (2007). We have "no power to act independently" to reweigh the evidence or substitute our judgment for that of the agency. Id. at 28. Accordingly, in our review we will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). See also Twp. Pharmacy v. Div. of Med. Assistance and Health Servs., 432 N.J. Super. 273, 283-84 (App. Div. 2013) (stating appellate review is "guided by three major inquiries: (1) 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"). To prevail, the party challenging the administrative action has the burden to establish the agency's action was arbitrary, capricious or unreasonable. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). However, an agency's interpretation of a statute or any legal determination is not accorded the same deference. We review legal issues de novo. In re Hearn, 417 N.J. Super. 289, 298 (App. Div. 2010).

Reconsideration is specifically governed by N.J.A.C. 4A:2-1.6, which states:

(a) Within 45 days of receipt of a decision, a party to the appeal may petition the Commissioner or Board for reconsideration.

 

(b) A petition for reconsideration shall be in writing signed by the petitioner or his or her representative and must show the following:

 

1. The new evidence or additional information not presented at the original proceeding which would change the outcome and the reasons that such evidence was not presented at the original proceeding; or

 

2. That a clear material error has occurred.

 

Accordingly, "[a]bsent legislative restriction, administrative agencies have the inherent authority to reopen and modify previous orders." In re D'Aconti, 316 N.J. Super. 1, 10 (App. Div. 1998) (citing Skulski v. Nolan, 68 N.J. 179, 195 (1975)).

Appellant challenges the exercised authority of the CSC to reconsider its previous final decision, maintaining the CSC "had no new facts before it" and the prior decision, which was heavily dependent on credibility determinations, contained no clear material error, which must amount to more than mere disagreement with the outcome. Appellant asserts the CSC erred in disregarding the ALJ's credibility determinations, noting these findings must be accorded particular deference in the agency's review. See In re Taylor, 158 N.J. 644, 660 (1999) ("[T]rial courts' credibility findings . . . are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." (quoting State v. Locurto, 157 N.J. 463, 474 (1999) (alteration in original)).

We are not persuaded. Following our review, we determine the CSC did not ignore the ALJ's credibility determinations, but rather rejected the conclusions drawn from these factual findings. This discerning review reveals clear material errors warranting reconsideration and supporting rejection of the ALJ's conclusions.

The ALJ credited, and appellant does not dispute, Dr. Galietta's recitation of the offending statements made by appellant, that is, "[i]f I return to work and [Dobron] and any of her flunkies harass me, I will grab her about the neck and rip her eyes out." The ALJ also found appellant's "direct, intense manner in discussing his feelings concerned [Dr.] Galietta." Notwithstanding these findings, the ALJ concluded the Department had not proven appellant violated Section C-25, as he had not threatened, intimidated, coerced or interfered with his fellow employees.7 This conclusion drawn from the established facts was erroneous.

Appellant's statements described not a desire or fantasy but an objective to commit physically violent acts directed towards his supervisor, Dobron, and his coworkers, "her flunkies." The ALJ's characterization of these "remarks" as merely appellant's "response to continued hypothetical questions" is unsupported. Dr. Galietta confronted appellant's violent statements when made, stating:

"That is a violent thought. Can you promise me you would not act on those thoughts and feelings because of their potentially homicidal nature?" [Appellant] replied "No sir, I [cannot] promise you that. That is the way she has caused me [to] feel and I will do what I said."

This dialogue signifies Dr. Galietta's direct request regarding the nature of appellant's current intentions. He was not posting a hypothetical situation. Given multiple opportunities to clarify or retreat from the stance expressed, appellant instead boldly asserted he would "do what [he] said." His statements depict neither theoretical musings nor cathartic releases. Rather, appellant succinctly expressed his intended retaliation if he perceived he was not properly treated. Indeed, appellant harbored intense anger and desire for revenge despite months of being away from Dobron and his employment environment. Without question, the statements made about Dobron and her staff were threats prohibited by Section C-25.

The ALJ also mistakenly concluded appellant and Dr. Galietta engaged in a "doctor-patient consultation." This legal conclusion is incorrect.

Further, there is no evidence to support appellant's bald assertion he reasonably believed an expectation of privacy attached to his comments. Nor do the facts support the ALJ's finding the session between appellant and Dr. Galietta was therapeutic.

Appellant was not seeking a diagnosis or treatment when he attended the appointment with Dr. Galietta. Unlike the psychotherapeutic process that requires a patient's full disclosure to obtain diagnosis and effective treatment, appellant was very aware he was being evaluated on his fitness to return to work and that Green scheduled the psychiatric appointment on behalf of the Department. Also, appellant was informed the results would be reported to the Department, refuting any expectation of privacy. Cf. Runyon v. Smith, 322 N.J. Super. 236, 243 (App. Div. 1999) (discussing waiver of psychologist-patient privilege).

Upon reviewing this matter on reconsideration, the CSC recognized the ALJ's interpretation of the law and the legal consequences drawn from the established facts were incorrect and unsupported, thus constituting clear material error not entitled to deference. In this circumstance, reconsideration was properly granted and, upon review, the invalid determinations were rejected.

In a related argument, appellant suggests the Department's request for reconsideration fell outside the time limitation set forth in N.J.S.A. 52:14B-10(c). This contention lacks merit.

The forty-five day window, set forth in N.J.S.A. 52:14B-10(c), delineates the time frame for an agency head to review the decision of an ALJ as follows:

The head of the agency, upon a review of the record submitted by the administrative law judge, shall adopt, reject or modify the recommended report and decision no later than 45 days after receipt of such recommendations. In reviewing the decision of an administrative law judge, the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.

 

The "automatic-approval provision" set forth in this statute is "intended to thwart undue delay in agency action." King v. N.J. Racing Comm'n, 103 N.J. 412, 419 (1986). It does not address timely reconsideration of an entered final decision governed by N.J.A.C. 4A:2-1.6. The Department sought reconsideration within forty-five days of the April 2009 final CSC decision in accordance with N.J.A.C. 4A:2-1.6(a). The circumstances causing delay by the CSC in issuing its final decision are immaterial.

Further, appellant contends his statements to Dr. Galietta "d[id] not constitute a threat of violence [made] in the workplace," specifically asserting the Department failed to show evidence of his intent to harass or terrorize Dobron and her coworkers. To support his position, appellant improperly grafts the elements of the criminal offenses of terroristic threats, N.J.S.A. 2C:12-3, and harassment, N.J.S.A. 2C:33-4(a), onto the language of the disciplinary policy stated in Section C-25, and arguing the Department failed to meet its burden of proof.

In major disciplinary actions, such as removal, the burden of proof is on the employer, N.J.S.A. 11A:2-21, who must prove a given offense by a preponderance of the evidence. See Atkinson v. Parsekian, 37 N.J. 143, 149 (1962) ("In proceedings before an administrative agency . . . it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt."). However, appellant's inapposite analogy to the burden of proof mandated in the criminal code to defeat the plain language of Section C-25 is rejected as legally flawed. As we have discussed above, appellant's statements were clearly threats and the Department satisfied its burden to show appellant engaged in threatening conduct toward a fellow employee, satisfying the first requirement of Section C-25.

The second prong of Section C-25 states the conduct occur "on State property." Appellant suggests CSC erred by concluding the Department met this provision by appellant's statements made "during a fitness for duty examination [conducted] off site." We disagree.

The policies underlying the Civil Service Act, designed to "ensure equal employment opportunity at all levels of public service," N.J.S.A. 11A:1-2(d), must assure employees are not subject to "[t]hreatening, intimidating, coercing or interfering" conduct with respect to their performance of State employment as denounced in the workplace policy of Section C-25. The fact that the evaluation occurred at a location other than on State property was immaterial. A sufficient nexus was established between the workplace and appellant's fitness for work evaluation by a State-engaged psychiatrist, Dr. Galietta. The evaluation was a prerequisite to appellant's resumption of employment and its purpose was designed to effectuate safe public employment for appellant and his coworkers. Appellant was aware of the purpose of the examination and its connection to his position.

Given the deference we accord to the CSC in interpreting its own regulations, see Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) ("Appellate courts must defer to an agency's expertise and superior knowledge of a particular field."); H.K. v. Div. of Med. Assistance & Health Servs., 379 N.J. Super. 321, 327 (App. Div. 2005) ("[A]n agency's interpretation of its own regulations is entitled to substantial deference."), we discern no error in the CSC finding the Department's evidence supported a finding that appellant violated Section C-25.

In summary, we uphold the CSC's determination that reconsideration was warranted because the final agency decision had misapplied the law to the established facts and incorrectly interpreted legal principles regarding the relationship between Dr. Galietta and appellant. Further, after evaluation of the established facts, the evidence of record amply showed appellant made threats toward his coworkers while engaging in a work-required evaluation, and, therefore, his conduct violated Section C-25 of the Department's policy for the prevention of workplace violence. See H.K., supra, 379 N.J. Super. at 327. Accordingly, we have no basis to interfere with the CSC's grant of reconsideration, N.J.A.C. 4A:2-1.6(b)(2), and its rejection of the ALJ's erroneous conclusions based on the established facts. The CSC's decision on review determined the preponderance of the credible evidence in the record established appellant's conduct violated Section C-25 and concluded the disciplinary sanction of removal was warranted. This conclusion is not arbitrary, capricious and unreasonable and will be upheld. Russo v. Bd. of Trs., Police and Firemen's Ret. Sys., 206 N.J. 14, 27 (2011).

Affirmed.

 

 

1 These facts are recited in the agency decisions and apparently are not disputed; however, the underlying documentation is not in the record.

2 At the time the matter was pending it was presented before the Merit System Board (Board). On June 30, 2008, the Board was replaced by the CSC, which assumed all functions, powers, and duties previously exercised by the Board. L. 2008, c. 29, 77 (amending N.J.S.A. 11A:11-1). To avoid confusion in our opinion, we refer to all matters as if they occurred before the CSC.

3 Appellant was on active duty in Iraq from October 3, 2004 until October 9, 2005 and placed on active duty in New Jersey from May 1, 2006 to April 30, 2009.

4

The record does not contain the hearing transcripts.

5 N.J.S.A. 2A:62A-16(b)(1) confers a "duty to warn" upon psychiatrists if: "The patient has communicated to that practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out the threat[.]" See also N.J.S.A. 2A:62A-16(d) (providing psychiatrists are immune from civil liability accompanying disclosure of a privileged communication in compliance with N.J.S.A. 2A:62A-16).

6 Various motions and letters were exchanged between the parties and the CSC regarding this matter. Notwithstanding these submissions, subsequent email communication suggests the CSC mistakenly considered the motion for reconsideration "abandoned," explaining the delay in its final disposition.

7 Section C-25 of the Department's Disciplinary Action Program prohibits conduct in the workplace that includes "[t]hreatening, intimidating, coercing or interfering with fellow employees on State property."