IN THE MATTER OF KATHLEEN CARR, TRENTON PSYCHIATRIC HOSPITAL, DEPARTMENT OF HUMAN SERVICES(NEW JERSEY CIVIL SERVICE COMMISSION)(CONSOLIDATED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-3771-13T2
A-3772-13T2
IN THE MATTER OF KATHLEEN
CARR, TRENTON PSYCHIATRIC
HOSPITAL, DEPARTMENT OF
HUMAN SERVICES.
______________________________
Argued September 12, 2016 – Decided August 7, 2017
Before Judges Nugent and Haas.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2012-1708 and 2012-
2828.
Dominick Bratti argued the cause for appellant
(Budd Larner, P.C., attorneys; Mr. Bratti, of
counsel and on the briefs).
Christopher J. Hamner, Deputy Attorney
General, argued the cause for respondent
Trenton Psychiatric Hospital (Christopher S.
Porrino, Attorney General, attorney; Melissa
H. Raksa, Assistant Attorney General, of
counsel; Christopher M. Kurek, Deputy Attorney
General, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent Civil Service
Commission (Pamela N. Ullman, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Appellant Kathleen Carr appeals from two
Civil Service Commission (CSC) final administrative decisions,
both issued March 13, 2014. The first decision upheld her
suspension and demotion; the second decision upheld her removal
from office. For the reasons that follow, we affirm.1
During the time she committed the infractions that resulted
in her suspension and demotion, and removal, appellant was employed
at Trenton Psychiatric Hospital (TPH) in the position of Personnel
Assistant 1. On May 24, 2011, TPH served appellant with a
Preliminary Notice of Disciplinary Action (PNDA) proposing a
twenty-day suspension and a demotion from her position as Personnel
Assistant 1 to Personnel Assistant 2 (the suspension action).
The PNDA specified the following charges: incompetency,
inefficiency or failure to perform duties, N.J.A.C. 4A:2-
2.3(a)(1); insubordination, N.J.A.C. 4A:2-2.3(a)(2); conduct
unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of
duty, N.J.A.C. 4A:2-2.3(a)(7); other sufficient cause, N.J.A.C.
4A:2-2.3(a)(11); falsification, Administrative Order 4:08-C8;
insubordination, Administrative Order 4:08-C9; violation of a
rule, regulation, policy, procedure, order or administrative
action, Administrative Order 4:08-E1; and intentional abuse or
1
Appellant filed separate appeals. We have consolidated the
appeals for purposes of this opinion.
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misuse of authority or position, Administrative Order 4:08-E2.
The PNDA summarized appellant's infractions:
You began your employment at Trenton
Psychiatric Hospital after being transferred
from Ancora Psychiatric Hospital on November
20, 2010. Since your transfer to Trenton
Psychiatric Hospital, you have violated
policies and procedures, misused your
authority to perform actions where there is a
direct conflict of interest, failed to carry
out an order, failed to complete assignments
in a timely manner, acted in an insubordinate
manner, and falsified information.
Following an October 19, 2011 departmental hearing, TPH
prepared a Final Notice of Disciplinary Action (FNDA) on November
9, 2011, which imposed a twenty-day suspension and a demotion to
the position of Personnel Assistant 2. The FNDA did not include
the effective dates of the sanctions.
Appellant filed an administrative appeal, which the CSC
transmitted to the Office of Administrative Law (OAL) as a
contested matter. The OAL received the matter on January 17,
2012. A month later, on February 23, 2012, TPH filed an amended
FNDA, which included the dates appellant was to serve her
suspension – July 8, 2011 to August 4, 2011 – as well as the
effective date of her demotion, July 8, 2011.
Meanwhile, within two months of serving appellant with the
PNDA, TPH served appellant with a second PNDA seeking her removal
from office (the removal action). The PNDA enumerated the
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following charges: failure or excessive delay in carrying out an
order which would not result in danger to persons, Administrative
Order B4-1; insubordination, N.J.A.C. 4A:2-2.3(a)(2); conduct
unbecoming a public employee N.J.A.C. 4A:2-2.3(a)(6); other
sufficient cause N.J.A.C. 4A:2-2.3(a)(11); insubordination -
intentional disobedience or refusal to accept a reasonable order,
disrespect or use of insulting or abusive language, Administrative
Order C9-3; and, divulging confidential information without proper
authority, Administrative Order C10-1.
The PNDA specified instances of appellant's failure to update
management or Employee Relations concerning an employee's job
performance; making unprofessional comments about a member of TPH
management; breaching confidentiality; and discussing the
disciplinary history of another TPH employee.
The PNDA concluded: "You have been served with two (2)
separate [d]isciplinary [a]ctions for [i]nsubordination and
[c]onduct [u]nbecoming. Your continual refusal to conduct
yourself in a proper and professional manner has led to this third
[d]isciplinary [a]ction."
Following a January 31, 2012 departmental hearing, TPH
personnel prepared a February 24, 2012 FNDA, which imposed the
removal effective August 5, 2011.
4 A-3771-13T2
Appellant filed an administrative appeal, which the CSC
transmitted to the OAL. The Administrative Law Judge (ALJ) to
whom the suspension and removal actions were assigned conducted
hearings over seven non-consecutive days commencing September 25,
2012, and concluding February 14, 2013. The ALJ held the hearing
records open until May 29, 2013, when he received final post-
hearing briefs. On August 16, 2013, the ALJ issued comprehensive
written opinions in both actions.
In the suspension action, after comprehensively recounting
the evidence, including the examination and cross-examination of
the witnesses, the ALJ upheld appellant's suspension and demotion.
Significantly, the ALJ determined the witnesses presented on
behalf of TPH were credible:
I FIND that, although appellant attempted to
discredit the testimony of all of those TPH
witnesses through cross-examination, the
absence of any direct testimony by either
appellant (who, it is noted, did not testify)
or any witnesses on her behalf as it applied
to the plethora of charges and specifications
which were generated in the
suspension/demotion discipline caused the
bulk of the testimony of the TPH witnesses to
remain intact, viable and credible at the
conclusion of the matter. Thus, appellant's
efforts to attempt to discredit the
testimonies of the TPH witnesses on cross-
examination failed even though she attempted
to bootstrap a global defense, and
[2]
particularly a Winters type defense, based
2
Winters v. N. Hudson Reg'l Fire and Rescue, 212 N.J. 67
(2012).
5 A-3771-13T2
upon those witnesses' testimonies. And I so
FIND. Each of those witnesses presented
cogent, relevant testimony regarding the
respective roles they played in this matter.
The ALJ determined, among other findings, that upon
appellant's permanent transfer to TPH from Ancora Psychiatric
Hospital, she was tasked with preparing a step-by-step manual to
a new electronic payroll system, New Jersey Electronic Cost
Accounting and Timesheet System (eCATS). Despite inquiries from
supervisors, the TPH Deputy Chief Executive Officer, and personnel
in the main office of the Department of Human Services, appellant
never completed the manual. Rather, she challenged the "ASAP"
nature of completing the project, questioned its urgency, and
eventually produced some type of manual that had been used at
Ancora but was unsuitable for the payroll transition occurring at
TPH. When preparation of the manual was ultimately tasked to
another employee, the employee completed a draft within five days.
The ALJ further determined appellant had committed numerous
other offenses, which included failing to produce information
regarding three employees who had been overpaid certain benefits,
and deleting a personal identifier. These were examples of
appellant's recurrent failure to respond to periodic directives
from supervisors.
In addition to the foregoing findings, the ALJ determined
from the evidence appellant had "violated numerous policies and
6 A-3771-13T2
procedures regarding her handling of her own personal matters."
These included scheduling her own fingerprinting at TPH while she
was still employed at Ancora, "inappropriately provid[ing] a code
which authorized TPH to pay for her fingerprinting and, in the
process, [failing] to obtain the proper authorizations to
appropriately obligate TPH to pay for [the] fingerprinting."
These were not all of the violations of policy, procedure,
or ethics the ALJ found appellant committed. Others included
completing and reviewing her own FMLA leave application;
submitting an employment application with glaring deficiencies,
including the omission of two previous periods of employment with
the State; exhibiting a loud, aggressive and abusive attitude
toward another TPH employee; and processing another employee's
leave request after being told by a supervisor not to do so without
first consulting the supervisor.
The ALJ concluded TPH had proved the charges of incompetency,
inefficiency or failure to perform duties; insubordination;
conduct unbecoming a public employee; and other sufficient cause,
including falsification; insubordination; and intentional abuse
or misuse of authority or position. The ALJ upheld the penalty
of suspension and demotion.
In the removal action, the ALJ also found TPH's witnesses
credible. The ALJ found:
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although appellant repeatedly attempted to
discredit the testimony of all of the TPH
witnesses through cross-examination or by
curiously calling them even as her own
witnesses, the absence of any direct testimony
by appellant herself caused the bulk of the
testimony of the TPH witnesses to remain
intact, viable and credible at the conclusion
of the matter.
The ALJ also found "the only real witness on behalf of [appellant]"
turned out to be "as much of a corroborating witness on behalf of
TPH as were the other witnesses."
Based on the testimony presented by TPH's witnesses, the ALJ
determined appellant breached confidentiality and privacy
principles by ranting to a "subordinate employee" about another
employee's discipline, and in the process, referring to yet a
third employee by a derogatory name and a vulgar epithet. The ALJ
characterized appellant's conduct as "reprehensible and a direct
example of unbecoming conduct by a public employee."
In addition to this incident, the ALJ determined appellant
disregarded completely verbal and written orders to assess the
time and attendance of her staff as well as their performance.
The ALJ found appellant's conduct insubordinate, unbecoming, and
particularly egregious since appellant was a management
supervisor.
Although rejecting certain charges, the ALJ concluded:
failure or excessive delay in carrying out an
order which would not result in danger to
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persons under Administrative Order 4:08 B4;
Insubordination under N.J.A.C. 4A:2-2.3(a)2;
Conduct unbecoming a public employee under
N.J.A.C. 4A:2-2.3(a)6; and Other sufficient
cause under 4A:2-2.3(a) (then and previously)
(11) to wit, and specifically, (1)
insubordination under Administrative Order
4:08 C9, and (2) divulging of confidential
information without proper authority under
Administrative Order 4:08 C10 have been
established by TPH and that those charges are
AFFIRMED.
The ALJ upheld the removal of appellant from office.
The CSC adopted the ALJ's findings and upheld the discipline
imposed in both the suspension and removal actions. These appeals
followed.
In the eleven points appellant raises on her appeal of the
suspension action, she challenges as arbitrary and capricious, or
as unsupported by the evidence, virtually every material factual
finding the ALJ made. She asserts the ALJ erred by failing to
make specific credibility findings and by relying on testimony
implicitly or explicitly found to be suspect. She claims the ALJ
failed to properly address her argument that the accumulation of
a series of alleged infractions was fundamentally unfair and
pretextual, as well as her objection to TPH's allegedly illegal
conduct. Appellant also argues the CSC erred in failing to find
or even address her contention the ALJ was biased against her.
In the removal action, appellant makes similar arguments on
appeal. She contends the ALJ's determinations that she disregarded
9 A-3771-13T2
directions from a supervisor and was insubordinate are not
supported by credible evidence. She also contends the ALJ erred
in determining she disclosed confidential information. She
asserts the ALJ failed to properly address her argument that the
accumulation of a series of alleged infractions was fundamentally
unfair and pretextual. Lastly, she argues the ALJ made no findings
concerning either her prima facie case of retaliation or her claim
concerning TPH's allegedly pretextual conduct.
Our review of the CSC's decision is limited. Karins v. City
of Atl. City, 152 N.J. 532, 540 (1998) (citation omitted). We
will not disturb the CSC's final determination unless it is
arbitrary, capricious or unreasonable or lacks fair support in the
record. Ibid. (citation omitted). A "strong presumption of
reasonableness attaches" to the CSC's final administrative
decisions. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.),
certif. denied, 170 N.J. 85 (2001). That is so because agencies
generally have "expertise and superior knowledge of a particular
field." Outland v. Bd. of Trs. of the Teachers' Pension & Annuity
Fund, 326 N.J. Super. 395, 400 (App. Div. 1999). "If the original
findings are supported by substantial credible evidence in the
record as a whole, we must accept them." Ibid. (citation omitted).
Having considered appellant's arguments in light of the
record on appeal and our limited standard of review, we affirm the
10 A-3771-13T2
CSC's final agency decisions, substantially for the reasons
expressed by the ALJ and by the Commissioner. The final agency
decisions are supported by sufficient credible evidence on the
record as a whole. R. 2:11-3(e)(1)(D). Appellant's arguments
are without sufficient merit to warrant further discussion. R.
2:11-3(e)(1)(E).
Affirmed.
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