IN THE MATTER OF MARTY DIAS CITY OF EAST ORANGE

NOT FOR PUBLICATION WITHOUT THE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 MARTY DIAS,

CITY OF EAST ORANGE.

_________________________________

Argued April 27, 2015 Decided July 14, 2015

Before Judges Simonelli and Leone.

On appeal from the Civil Service Commission, Docket No. 2012-3126.

Nicholas A. Poberezhsky argued the cause for appellant Marty Dias (Caruso Smith Picini, PC, attorneys; Steven J. Kaflowitz, on the brief).

Marlin G. Townes, III, Assistant Corporation Counsel, argued the cause for City of East Orange Police Department (Khalifah Shabazz, Corporation Counsel for the City of East Orange, attorney; Mr. Townes, on the brief).

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

PER CURIAM

Petitioner Marty Dias, a now-retired East Orange Police officer, appeals from a final decision of the Civil Service Commission (CSC) that he was appropriately suspended for 180 days as a result of his chronic and excessive absenteeism. As the CSC's decision was neither arbitrary, capricious, nor unreasonable, and the 180-day suspension does not shock the conscience, we affirm.

I.

On November 24, 2011, the City Administrator of the East Orange Police Department (the Department) filed a Preliminary Notice of Disciplinary Action (PNDA) against Dias, charging him with "[c]hronic or excessive absenteeism" under N.J.A.C. 4A:2-2.3(a)(4). On April 5, 2012, a Final Notice of Disciplinary Action (FNDA) was issued against Dias for chronic or excessive absenteeism and imposed a disciplinary suspension of 180 "working" days without pay, beginning April 6, 2012, and ending October 3, 2012. Dias appealed the FNDA to the CSC, which transferred the matter to the Office of Administrative Law (OAL) for a de novo hearing. Hearings were conducted before an Administrative Law Judge (ALJ) on January 31, 2013, and May 3, 2013. Based on the testimony of the Department's witnesses, including Captain Raymond Brown (former medical officer), Lieutenant Christian Patrick (current medical officer), and Chief William C. Robinson, the ALJ found as follows.

Dias used a total of 42.75 sick days in 2010, even though officers are only allotted 20 days each calendar year under the collective bargaining agreement.1 The ALJ reviewed the 42.75 sick days, and found that except for three days, there was "virtually no documentary evidence to substantiate that [Dias] was ill on any of these occasions."

The focus of this litigation was Dias's absence from August 1 to September 13, 2010. On August 1, 2010, Dias was guarding a prisoner brought to the hospital when Dias began to experience palpitations. The hospital admitted Dias for treatment and he was released approximately two days later. No records of his hospital stay were provided.

On August 6, 2010, Dias was examined by cardiologist Dr. Shaikh Sultan Ahmed during a follow-up office visit. Dr. Ahmed's report indicated the following. Dias had been discharged from the hospital and was prescribed short-term beta blockers. Dias experienced lone atrial fibrillation "possibly stress-related at work," but "[r]esponded promptly to IV [C]ardizem." All exams and lab tests "were within normal limits," and "[n]o risk factor[s]" were indicated. Dr. Ahmed instructed Dias to gradually wean off the beta blockers. Dr. Ahmed's report requested Dias to return for a follow-up visit in six months. The report did not place any restrictions or limitations on Dias, and did not indicate he remained under medical care. It is unclear whether Dias ever followed up with Dr. Ahmed.

Department policy requires medical documentation, such as a note from the officer's personal physician, to justify absences that exceed three days. Dias did not provide medical documentation to support his absence from August 1 to September 13. He had been instructed to bring in a certificate from his personal physician before returning to work, but he did not provide such a certificate, and did not provide the Department with Dr. Ahmed's report. The only supporting documents the Department received regarding his absence were "police physician notes" from the Immedicenter.2 Although Dias's hospitalization was confirmed by the Immedicenter, Immedicenter confirmation does not necessarily "clear" an officer from discipline based on those particular absences.

Dias provided the following testimony before the ALJ. While at the hospital guarding the prisoner, his "heart went into a fibrillation," with a "heart rate [of] 190 beats per minute." Dias "was dizzy, nauseous," and experienced "a little numbness around the chest" during this episode. He was immediately admitted to the hospital. Dias did not alert the Department to his condition because his "immediate supervisor, Lieutenant Muse" and Captain Brown "came to visit [him] at the hospital." When Dias inquired about sick leave, Captain Brown allegedly told Dias: "'Listen, we know you have a heart condition. You're in the hospital . . . . Don't worry about it. You'll be fine.'"

Dias testified that upon his release from the hospital, he followed up with his personal physician, Dr. Cort, who advised him not to return to work until "around September 13th or 14th of 2010." Dias conceded, however, that Dr. Cort is not a cardiologist, and did not diagnose him with atrial fibrillation, but instead wrote down Dr. Ahmed's diagnosis.

Dias admitted Dr. Cort "didn't give [Dias] a report," but Dias claimed Dr. Cort "did write a letter to the Department stating that the time [Dias] took off . . . was justifiable under the circumstances." The "letter," entitled "Certification of Medical Care," dated October 7, 2010 had the following handwritten inserts. Dias had been under medical care "from 8/1/10 to 9/14/10," and may return to work/school "9/15/10" with the following restrictions: "[indecipherable]3 atrial fibrillation." Dias testified that he submitted a copy of this letter to the Immedicenter, and that the Immedicenter told him it would fax it to the medical officer. He alleged he also "made a copy and [] put [the letter] under [Internal Affairs'] door," and that he gave a copy of the letter to the "front desk."

Dias also received an examination certificate from an Immedicenter physician, Dr. Sachdev. Dias testified Dr. Sachdev conducted a half-hour long exam on September 7, 2010, which included taking his blood pressure and listening to his heart. Dr. Sachdev made the determination that Dias would not be permitted to return to work until September 12. Dias claimed this was in part because he was taking medication that resulted in "increased nausea" and "blurred vision," although the certificate itself makes no mention of medication or potential side effects.

In his September 23, 2013 initial decision, the ALJ credited the Department's witnesses, and noted Dias "did not have supportive medical documentation" to "indicate why [Dias] was absent for the indicated period of time." The ALJ pointed out that although Dias "claimed" to have been examined by "a cardiologist several times," Dias "admitted that he did not have supportive medical documentation," asserting he "left [the] documentation from his cardiologist at home rather than bringing it to the hearing." The ALJ also found Dias's claim that he was examined by Dr. Sachdev for half an hour to be "inherently incredible" and "[w]ithout substantiation," as the doctor only examined "two of his 'vitals.'"

The ALJ concluded that Dias's absence from August 1 to September 13 was unjustified. As there were "dozens of absences without any element of palliation or documentary justification," the ALJ found Dias's 42.75 days of sick leave in 2010 to be "both chronic and excessive."

The ALJ recommended that Dias be suspended for 180 days without pay. The ALJ noted Dias's "prior disciplines," including a suspension of "120 days for chronic absenteeism and abuse of sick leave privileges during 2007." Dias returned to work in 2007 "with a sick leave usage warning notice." Moreover, the ALJ observed

During September 2006 [Dias] was suspended 180 days for excessive absenteeism. During October 2005 [Dias] served a ten day suspension for excessive absenteeism within calendar year 2005. In January of 2000 [Dias] served a 120 day suspension for abuse of sick leave privileges in calendar years 1998 and 1999.

Dias field exceptions with the CSC and the Department filed cross-exceptions. On November 20, 2013, the CSC issued a final decision in which it summarized and adopted the ALJ's findings of fact conclusions and recommendation, and held "that the action of the appointing authority in suspending [Dias] for 180 calendar days was justified." The CSC "agree[d] with the ALJ's assessment of the charges," stating that "[c]learly, taking 42.75 sick days in one calendar year is chronic and excessive, especially in this case when there is no definitive evidence of the appellant's illness or his need for medical care during each of those days." The CSC added that although "there is some evidence that the appellant had a disability based on the documentation from Dr. Cort," that "evidence is not as persuasive as the cardiologist's documentation." Dias appeals the CSC's decision to this court.

II.

We must hew to our "limited" scope of review of a final administrative decision of the CSC. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). "An appellate court affords a 'strong presumption of reasonableness' to an administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). "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). "The burden of proving unlawful, arbitrary, or capricious action is on the appellant." In re Foglio, 207 N.J. 38, 47 (2011) (citing N.J.A.C. 4A:2-1.4(c)); see also N.J.A.C. 4A:7-3.2(m)(4).

Pursuant to N.J.A.C. 4A:2-2.3(a), a public employee "may be subject to discipline for . . . (4) Chronic or excessive absenteeism or lateness[.]" However, Dias argues his suspension was irrational because Chief Robinson testified he would "absolutely" not discipline an officer for excessive absenteeism if he or she had a legitimate medical reason.

The evidence presented at the hearing demonstrates the decision to discipline Dias was based on his lack of documentary support for his extended absences. Contrary to the Department's policy, Dias failed to submit a note or certificate from his personal physician stating he needed to take sick leave from August 1 to September 13. Captain Brown, Lieutenant Patrick, and Chief Robinson testified that an officer must provide the Department with such a note, in addition to any documents from the Immedicenter, if the officer took more than three consecutive days of sick time. The ALJ credited this testimony, and the CSC accepted the ALJ's findings and credibility determinations.

Dias argues he did provide such documentation in the form of both the Immedicenter's physician's certificate, and the Certificate of Medical Care from Dr. Cort. Indeed, Dr. Sachdev's certificate indicated that Dias was "incapacitated for duty" and could "not return to work before 9/12/10 (next shift)." However, Dr. Sachdev did not examine Dias until September 7, and Dias was absent from work since August 6. Dias did not provide any documentation justifying his sick leave between the time he was released from the hospital, and September 7, when Dr. Sachdev examined him. In any event, the testimony showed that Immedicenter certificates are not enough to justify extended absences, and the ALJ disbelieved Dias's claims that Dr. Sachdev examined him.

Dias additionally argues that the "Certificate of Medical Care" from Dr. Cort is "the critical evidence in this case," and that it should have "disposed of this matter in his favor," because it was a note from his personal doctor "establishing that Officer Dias was not fit to return to work until mid-September." However, the ALJ and CSC properly found Dr. Cort's certificate unpersuasive for several reasons.

First, Dr. Cort's certificate was dated October 7, 2010, one month after Dias reported to the Immedicenter, and two months after Dias was released from the hospital. Dias provided no explanation, either at the hearing or in his appellate brief, as to why it took him until October 7 to obtain a physician's note. Nevertheless, Dias argues the Department must have not only received Dr. Cort's certificate, but also been satisfied with it. However, Captain Brown, Lieutenant Patrick, and Chief Robinson each testified that Dias's file did not contain a certificate or note from a personal physician. Although Dias testified that he submitted a copy of the certificate to the Department, he failed to present witnesses or other evidence to corroborate his testimony, which the ALJ discredited. Even if Dias did submit the certificate, he could not have done so until October 7, a month after he returned to work.

Second, Dr. Cort's certificate indicated Dias was "under medical care" between August 1, 2010, and September 14, 2010, but there is no credible evidence indicating Dias sought medical treatment after August 6. Moreover, Dr. Cort pointedly did not fill in the portion of the certificate regarding whether Dias was incapacitated from August 1 to September 14. The certificate also does not specify whether Dias was under any restrictions. Instead, Dr. Cort's certificate only states the diagnosis "atrial fibrillation."

Dias complains the ALJ misrepresented his testimony as to Dr. Cort's certificate. The ALJ's initial decision stated that Dias "testified that [the certificate] read that he is 'incapacitated for duty and may not return to work before 9/12/10.' The document contains no such statement." In actuality, Dias's testimony was referencing the certificate from Dr. Sachdev, which contained that very language. Although the ALJ misapprehended Dias's reference, the ALJ was correct in noting the certificate from Dr. Cort "contain[ed] no such statement." The ALJ also correctly recounted Dr. Sachdev's certification elsewhere in his opinion. Thus, any error committed was harmless. R. 2:10-2; see also Jacobs v. Stephens, 139 N.J. 212, 219 (1995) (applying harmless error principles to a review of an administrative proceeding). Moreover, the ALJ was correct in noting that the certificate did not contain any indication that Dias's condition or medication, or the side effects thereof, prevented him from returning to work.

III.

Dias argues the CSC's final decision improperly concluded Dr. Ahmed's report trumped the reports of Drs. Sachdev and Cort. In its final decision, the CSC opined

while there is some evidence that [Dias] had a disability based on documentation from Dr. Cort and the appointing authority's . . . September 7, 2010 physician[] certificate[] noting his incapacity, the evidence is not as persuasive as the cardiologist's documentation. The latter must be afforded more weight since the report is from a cardiologist and detailed a cardiac examination. Further, the documentation is significant because [Dias] is primarily attributing his absences from August 2010 to September 2010 to a heart condition.

In an administrative proceeding, "[t]he evidence 'admitted shall be accorded whatever weight the judge deems appropriate taking into account the nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability.'" L.A. v. Bd. of Educ., 221 N.J. 192, 205 n.3 (2015) (quoting N.J.A.C. 1:1-15.5). As such, it was not improper for the ALJ or the CSC to afford more weight to the report of Dr. Ahmed than the reports of the other physicians. Dr. Ahmed is a cardiologist, and Dr. Cort and Dr. Sachdev are not. Moreover, Dr. Ahmed performed a cardiac exam on Dias, while it is unclear what, if any, examination was performed by Dr. Cort and Dr. Sachdev. It was not arbitrary, capricious, or unreasonable for the CSC to weigh the evidence in the manner it saw fit, and Dias has not proffered adequate evidence on appeal to warrant an intervention by this court.

IV.

Dias asserts it should be shocking to this court's sense of fairness that he was sanctioned by a suspension of 180 days for taking sick days as a result of suffering a "near heart attack" while on duty.

Dias was disciplined based on a system of progressive discipline. "The progressive discipline concept finds its origins in [the Supreme Court's] decision [20] in" Town of West New York v. Bock, 38 N.J. 500, 523 (1962). In re Carter, 191 N.J. 474, 483 (2007). "There, by finding that a firefighter's prior disciplinary record was 'inherently relevant' to determining an appropriate penalty for a subsequent offense, [the Supreme Court] rejected the argument that a proposed sanction must be based on the severity of the current infraction alone." Ibid. (citation omitted).

The "concept of progressive discipline has been utilized in two ways: (1) to 'ratchet-up' or 'support imposition of a more severe penalty for a public employee who engages in habitual misconduct'; and (2) 'to mitigate the penalty' for an employee who has a record largely unblemished by significant disciplinary infractions." In re Stallworth, 208 N.J. 182, 196 (2011) (some internal quotation marks omitted). "'While a single instance may not be sufficient, numerous occurrences over a reasonably short space of time, even though sporadic, may evidence an attitude of indifference amounting to neglect of duty.'" Carter, supra, 191 N.J. at 483 (quoting Bock, supra,, 38 N.J. at 523).

This court's "deferential standard" of review is also applicable in determining whether the amount of discipline is warranted. Stallworth, supra, 208 N.J. at 195. "Accordingly, when reviewing administrative sanctions, appellate courts should consider whether the 'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Ibid. (quoting Carter, supra, 191 N.J. at 484). Moreover, as our Supreme Court has "cautioned, 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." Carter, supra, 191 N.J. at 486.

Dias contends the 180-day sanction was excessive in light of his "near heart attack," and because he "gave non-contradicted testimony that he returned to work as soon as it was possible to do so." However, the ALJ found Dias to be an incredible witness, and that Dias did not provide evidentiary support that he suffered a "near heart attack." Moreover, Dias violated the Department's regulations by taking 42.75 days of sick time, exceeding his twenty-day allotment, without sufficient documentary support. Most importantly, Dias did so despite his extensive history of discipline for excessive absenteeism including his most recent suspension of 120 days and his prior suspensions of 180 days and 120 days. Accordingly, Dias has failed to demonstrate the ALJ and CSC's decisions were arbitrary, capricious, or unreasonable.4

Affirmed.

1 Any time an officer exceeds the twenty-day maximum for sick time in the calendar year, an investigation is commenced to assess whether disciplinary action is warranted.

2 The Immedicenter appears to serve as a medical clinic for police personnel, but its actual function or relation to the Department is not defined in the record before this court.

3 The handwritten word is hard to read, but may be "diagnosis."

4 Thus, we need not reach the Department's argument that Dr. Cort's certificate constituted a net opinion. See generally Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 508 (App. Div. 2013), aff d, 219 N.J. 481 (2014). We also need not consider the CSC's position that Dias's sick leave usage was chronic and excessive even if he had legitimate reasons for his absences.