JESSENIA JIMENEZ v. CAPE MAY COUNTY SOCIAL SERVICES

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3379-15T3


JESSENIA JIMENEZ,

        Petitioner-Respondent,

v.

CAPE MAY COUNTY SOCIAL
SERVICES,

     Respondent-Appellant.
______________________________

              Submitted April 24, 2018 – Decided May 25, 2018

              Before Judges Reisner and Hoffman.

              On appeal from the New Jersey Civil Service
              Commission, Docket No. 2015-1204.

              James B. Arsenault, County Counsel, attorney
              for appellant (Lauren F. Fogarty, Assistant
              County Counsel, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Cape May County (County) appeals from a March 21, 2016 final

decision of the Civil Service Commission (Commission) reversing

the    action    terminating     the   employment     of   respondent    Jessenia
Jimenez as Keyboarding Clerk 1 at the end of her working test

period (WTP).    The Commission's final decision was based upon the

evidence presented to an Administrative Law Judge (ALJ) whose

Initial Decision reversing the County's actions was deemed adopted

by the Commission, pursuant to 
N.J.S.A. 52:14B-10(c).    On appeal,

the County argues the ALJ's initial decision was arbitrary and

capricious.     We affirm.

     We summarize the facts found by the ALJ. In May 2014, Jimenez

applied for a job with Cape May County Board of Social Services

(Board).1   On her employment application, respondent listed a bank

as her employer, and wrote she began working there in June 2011.

She signed the last page of the application, which included a

certification that applicant provided "true and complete" answers

and understands that "false or misleading information . . . may

result in discharge."

     In late June 2014, the Board hired respondent as a Keyboarding

Clerk 1; at this point, her WTP began.      The Board – apparently

unaware it had hired respondent within the previous week – filed

a Special Civil Part complaint against her on July 1, 2014.      The

complaint sought a monetary judgment and alleged, in pertinent

part:



1 On June 28, 2015, the County abolished the Board and replaced
it with a department within the County.

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            [Respondent] was a participant in the Work
            First New Jersey General Assistance program
            and Supplemental Nutrition Assistance program
            (SNAP), formerly known as food stamp program
            during the months of August 2011 through
            December   2011.       During   this   period
            [respondent] failed to report her employment
            with [a bank] creating a WFNJ/GA overpayment
            in the amount of $700 and a SNAP program
            overpayment in the amount of $1,000.

                . . . .

            [Respondent] was a participant in the Work
            First New Jersey General Assistance program
            and . . . SNAP . . . during the months of
            January 2012 through June 2012. During this
            period [respondent] failed to report her
            continued employment with [the bank] and a
            receipt of unemployment insurance benefits
            creating a WFNJ/GA overpayment in the amount
            of $731.46 and WFNJ/GA related Medicaid
            overpayment in the amount of $410.11 and a
            SNAP program . . . overpayment in the amount
            of $1,030.

    Jeffrey Lindsay, the Director of Human Resources for the

Board, met with respondent to discuss her sixty-day evaluation in

mid-September 2014.       Before the meeting, Lindsay learned that

respondent "potentially had an intentional program violation or

lied to [the] Board . . . ."        According to Lindsay, he marked

"unsatisfactory" on the evaluation and informed respondent she

"shouldn't offer any statements at that time" because they would

"hold a fact finding[,] at which time she'd be able to explain."

Lindsay told respondent that if the hearing shows he received

incorrect   information,    he   would   change   the   "unsatisfactory"

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evaluation to a "satisfactory" one, at the ninety-day evaluation,

and it would not affect her employment.                   Eventually, Lindsay

terminated respondent due to the allegations she "potentially

committed    fraud    against    or   intentionally       provided     inaccurate

information to the [Board] in connection with [her] application

for benefits."

       Respondent appealed to the Commission, which referred the

matter to the Office of Administrative Law for a hearing before

the ALJ.      At the hearing, the ALJ heard testimony from six

witnesses, including Lindsay and respondent.                In a December 22,

2015    opinion,     the   ALJ    reversed      the     decision       terminating

respondent's    employment,      finding    that      nothing   in     the    record

demonstrated that respondent received notice of any deficiencies

in her work and that, based on the evidence adduced at the hearing,

if she lied, it was on her application for welfare benefits, not

on her employment application.          According to the ALJ, the trial

testimony    and     evidence    demonstrated      that    "the      only     reason

[respondent] was terminated was because Lindsay was concerned that

in some way liability for some future action by [respondent] could

be imputed to the County . . . ."

       The Civil Service Commission did not have a quorum at the

time that it was supposed to make its final decision.                   After one

extension,    respondent    declined       to   consent    to     an    additional

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extension, resulting in the adoption of the ALJ's recommended

decision as the Commission's final agency decision, pursuant to


N.J.S.A. 52:14B-10(c).       The Commission's final decision clarified

the limited scope of the ALJ's Initial Decision:

           Since the [respondent's] release at the end
           of the WTP has been reversed, she is entitled
           to   reinstatement    to   the   position   of
           Keyboarding Clerk 1.        However, as the
           Commission does not generally grant permanent
           status in such matters, and the ALJ did not
           do   so   in   his   initial   decision,   the
           [respondent] is not entitled to permanent
           status in that position. Nor is she entitled
           to back pay, benefits or seniority for the
           period from the onset of her release at the
           end of the WTP until she is actually
           reinstated. Rather, she is only entitled to
           reinstatement with the opportunity to complete
           a new WTP.

     This appeal followed, with the County arguing the Initial

Decision of the ALJ was arbitrary and capricious because he

concluded the termination decision must relate to the employee's

job performance deficiencies.          The County argues that it had the

authority to terminate respondent's employment on the basis of her

"conduct   and    fitness"   because    she   "gave   false   or   misleading

information during an interview," which she agreed could result

in her termination.

     Typically, where an agency issues a final decision, our review

is limited.      Lavezzi v. State, 
219 N.J. 163, 172 (2014).          We will

not disturb the final determination of an agency unless shown that

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it   was   "arbitrary,   capricious       or   unreasonable   or   it    is   not

supported by substantial credible evidence in the record as a

whole." Id. at 171 (citing Prado v. State, 
186 N.J. 413, 427

(2006)).    That deference extends to decisions relating to employee

discipline and punishment, including termination.             In re Herrmann,


192 N.J. 19, 28 (2007).

      However, "when the lack of a quorum attributable to vacancies

cause[s]    the   agency    inaction       [in    response    to    an     ALJ's

recommendation], the current version of the deemed-adopted statute

does not require traditional deferential appellate review of the

ALJ's decision."     In re Hendrickson, 
451 N.J. Super. 262, 266

(App. Div.), certif. granted, 
231 N.J. 143 (2017).                 Instead, we

apply "the standard of review for bench trials," where we will

affirm an ALJ's factual findings "to the extent they are supported

by substantial credible evidence in the record."                   Id. at 273

(citing Zaman v. Felton, 
219 N.J. 199, 215 (2014)).            "No deference

will be accorded to . . . legal conclusions; they will be reviewed

de novo."    Ibid. (citing Zaman, 
219 N.J. at 216).

      Applying this standard of review, we turn first to the ALJ's

determination     that   the   "the       only   reason   [respondent]        was

terminated was because Lindsey was concerned that in some way

liability for some future action by [respondent] could be imputed



                                      6                                  A-3379-15T3
to the County, an issue which he stated he dealt [with] in private

practice before becoming the Director of Human Resources."

       The County terminated respondent after her WTP.                N.J.A.C.

4A:1-1.3 defines a WTP as "a part of the examination process after

regular appointment, during which time the work performance and

conduct of the employee is evaluated to determine if permanent

status    is     merited."      "An   employee    may      be   separated       for

unsatisfactory performance at the end of the [WTP]." N.J.A.C.

4A:4-5.4.      The WTP permits "an appointing authority to determine

whether an employee satisfactorily performs the duties of a title."


N.J.S.A. 11A:4-15.        "The whole purpose of a . . . [WTP] . . . is

to supplement the examining process by providing a means for

testing an employee's fitness through observed job performance

under actual working conditions."           Dodd v. Van Riper, 
135 N.J.L.
 167, 171 (1947).

       In its brief, the County does not contend it terminated

respondent because she lied to the Board before her employment

with   the     Board   began;   instead,    the   County    asserts   it     fired

respondent for lying during her fact finding interview.                On this

point, the ALJ found that, if respondent lied, she lied on her

application for welfare benefits, years before her employment with

the Board.      The record supports this finding.           Lindsay testified

that, at the fact finding hearing, he asked respondent whether she

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was employed with the bank listed on her application from June

2011 up to a short time before she started with the Board, and

respondent stated that she was not sure.

       The definition of WTP found in N.J.A.C. 4A:1-1.3 includes a

review of the employee's "conduct"; however, the plain language

of the statute makes clear that the "conduct" examined is the

conduct that takes place during the WTP.                  See DiProspero v. Penn,


183 N.J.   477,   492   (2005)    ("The      Legislature's     intent   is    the

paramount goal when interpreting a statute and, generally, the

best   indicator     of    that   intent       is   the   statutory   language.").

Therefore, respondent's conduct prior to her employment should not

have been a factor in the decision to terminate her employment,

following her WTP.

       We conclude the evidence supported the ALJ's determination

to reject the County's claim that it terminated respondent's

employment because she lied during an interview.                  The record also

supports the ALJ's finding that respondent did not lie on her job

application or during her interview.                 Additionally, the evidence

supported     the    ALJ's    determination          that   Lindsay    recommended

terminating     respondent's        employment        because   he    believed    an

employee who had lied to the Board prior to her employment was a

"liability."



                                           8                               A-3379-15T3
     Since the County eliminated the Board in favor of a department

within the County, the ALJ noted that respondent "is a Keyboarding

Clerk 1 employed by the County of Cape May.          As such, she may be

placed anywhere in the County where a Keyboarding Clerk 1 is

utilized."

     Because the Board failed to follow proper procedures in the

way it completed its evaluation of respondent (e.g., providing no

reasons for giving her an unsatisfactory sixty-day evaluation),

and relied upon conduct that long preceded her employment by the

Board,   we   do   not   find   arbitrary   or   unreasonable   the     order

reinstating respondent to her position as Keyboarding Clerk 1,

with a new WTP, but with no back pay, benefits or seniority.

     Any arguments not addressed lack sufficient merit to warrant

discussion in a written opinion.         R. 2:11-3(e)(1)(E).

     Affirmed.




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