IN THE MATTER OF SHIRLEY SAVAGE, DEPARTMENT OF HUMAN SERVICES, ANCORA PSYCHIATRIC HOSPITAL (CIVIL SERVICE COMMISSION) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1125-17T2
IN THE MATTER OF SHIRLEY
SAVAGE, DEPARTMENT OF
HUMAN SERVICES, ANCORA
PSYCHIATRIC HOSPITAL.
_____________________________
Submitted March 25, 2020 – Decided April 28, 2020
Before Judges Koblitz and Gooden Brown.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2013-2273 and 2013-2274.
Shirley Savage, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Department of Human Services, Ancora
Psychiatric Hospital (Donna Sue Arons, Assistant
Attorney General, of counsel; Elizabeth A. Davies,
Deputy Attorney General, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Dominic Larue
Giova, Deputy Attorney General, on the statement in
lieu brief).
PER CURIAM
Shirley Savage, a former human services assistant at Ancora Psychiatric
Hospital (Ancora), appeals from the September 21, 2017 final agency decision
of the Civil Service Commission (Commission), adopting the initial decision of
the administrative law judge (ALJ). The ALJ upheld Ancora's termination of
Savage's employment for conduct unbecoming a public employee, and other
sufficient cause, namely, violating facility-safety policies. We affirm.
We glean these facts from the record. While working at Ancora, Savage
was assigned to "one-to-one" continuous monitoring of a single at-risk patient.
She was expected to record her observations of the patient during her shift, and
she was not permitted to leave her post or sign out of her shift until relieved by
another staff member. Pursuant to Ancora's operating procedures, staff working
a double shift were to be relieved first.
On January 17, 2013, Savage was served with two preliminary notices of
disciplinary action related to two separate incidents during which she left her
work assignment without authorization. The first incident occurred on October
13, 2012, and the second occurred on January 11, 2013. Following departmental
hearings, Savage was served with two final notices of disciplinary action,
sustaining the charges and terminating her employment, effective January 22,
2013. Savage appealed both decisions and the matters were transmitted to the
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Office of Administrative Law (OAL) as contested cases. See N.J.S.A. 52:14B-
1 to -15; N.J.S.A. 52:14F-1 to -13.
During the ensuing OAL hearing, conducted on three non-consecutive
days, the matters were consolidated. A total of five staff members testified for
Ancora, and a video was introduced in connection with the January 11, 2013
incident. Savage testified on her own behalf as to both incidents.
Remi Etokhana, a human services assistant, testified that on both
occasions, Savage left her one-to-one patient before formally transferring her
duties to another staff member. Patricia Greer, an aide, James Ronchetti, a
nurse, and Adetutu Ogunleye, a charge nurse, corroborated portions of
Etokhana's accounts. Ogunleye explained that responsibility for a patient was
actually transferred from one staff person to another when the incoming staff
person takes the clipboard from the outgoing staff person and both sign off.
Edmund Dillon, Ancora's Section Chief, explained the shift change
policies and purpose. He testified that when a staff member is assigned to
relieve another, after the two discuss the patient's condition, the incoming staff
member "take[s] a clipboard" and "sign[s] off the outgoing [staff member]." The
outgoing staff member then "signs the final time," to certify the time the
outgoing staff member was relieved, and the incoming staff member "sign[s] at
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the bottom of the sheet," indicating that he or she assumed responsibility for the
patient at that time. At that point, the outgoing staff member is permitted to
leave. Dillon explained that staff members cannot leave one-to-one patients
unattended because of the risks posed by these patients. According to Dillon, in
one instance, an aggressive patient was left unattended and an employee was
stabbed as a result. Dillon also testified that under the shift-change policy, the
outgoing staff member will advise the incoming staff member who has worked
a double shift because that staff member should be relieved first.
Regarding the October 13, 2012 incident, Ogunleye testified she had
assigned Etokhana to relieve a pool nurse who had been working sixteen hours.
Etokhana testified that when she arrived at 11:30 p.m. to begin her shift, she
observed Savage walk away from her patient notwithstanding the fact that she
had informed Savage that she was not assigned to relieve her. Greer confirmed
that she observed Savage leave through the exit door of the ward at
approximately 11:40 p.m. Ogunleye caught up to Savage and directed her to
return to her patient because she had not been relieved of her duties. However,
Savage ignored her and walked away. Ogunleye then assigned Greer to take
responsibility for Savage's patient and reported the incident to her superior.
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Savage denied leaving her patient unattended on October 13, 2012. She
explained that she gave Etokhana all the pertinent information about her patient,
who was sleeping, handed Etokhana the clipboard, and left. When Etokhana
came after her and protested that she was supposed to relieve the pool nurse,
who had not been working sixteen hours as Ogunleye claimed, Savage went to
the supervisor's office and was told to go back and check on the patient. When
she returned, Greer was sitting with the patient. According to Savage, when she
left, she was entitled to be relieved, and Etokhana, to whom she had signed off,
was now responsible for her patient. She explained that whenever she worked
sixteen hours, other staff members were relieved ahead of her "because of
favoritism." After she filed written complaints, the favoritism worsened.
Regarding the January 11, 2013 incident, Etokhana testified that although
Savage had been working a double shift, she relieved a different staff member ,
Ronchetti, because Savage refused to remove the dirty linens at her workstation
and instead left her patient unattended. Ronchetti confirmed Etokhana's
account. Ogunleye testified that when she arrived, Etokhana informed her that
Savage had walked away, leaving her one-to-one patient, who was a suicide risk,
unattended. The outgoing-shift nurse also told Ogunleye that Savage was not
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watching the patient when she made the rounds at 11:30 p.m. Ogunleye assigned
Greer to the patient and reported the incident to her superiors.
Greer testified that when she arrived at approximately 11:45 p.m., she
observed Savage's clipboard in an empty chair and Savage going out of the exit
door in the hallway leading to the supervisor's office. Greer signed off on
Savage's patient at 11:53 p.m., indicating that she took responsibility for the
patient at that time. She testified that when she signed, no one was present.
Greer also authenticated the video dated January 11, 2013, depicting her arriving
at 11:44 p.m. and Savage exiting through a rear door between 11:42 p.m. and
11:43 p.m.
Savage again denied leaving the patient unattended. She also denied
leaving before 11:45 p.m., when she signed off. She testified that when
Etokhana refused to relieve her after she had worked sixteen hours unless she
removed her linens, she told Etokhana the patient was fine, he was asleep, there
was no incident, and handed her the clipboard. Savage stated she initialed the
form and signed off. Savage explained that the relief procedure had nothing to
do with linens, and allowing Etokhana to relieve someone else because she
refused to remove her linens was a violation of the procedure mandating that
sixteen-hour employees had priority for relief. Savage also disputed the video
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as accurately depicting the time she left, explaining that the video was from an
entirely different date. In support, Savage stated that one of the patients in the
video was at Ancora in 2012, not 2013.
In her August 24, 2017 initial decision, the ALJ noted that "the parties
offered divergent views of what occurred" during both incidents. After
assessing the credibility of the witnesses, the ALJ made the following factual
findings:
Ogunleye . . . testified credibly that on the
disputed October 13, 2012[] night, she assigned . . .
Etokhana to relieve a pool nurse [who] had been
working sixteen hours. As it happened, Ogunleye was
in error regarding the pool nurse, who I [find] was at
that point starting the first portion of a two-shift night.
So, Savage was correct in asserting that under the shift
relief policy, she was the person who should have been
relieved. The testimony from various parties made
clear that there was some fluidity in the assignments, as
staff members often took responsibility for the first
person they saw. I [find] that Etokhana told Savage she
was not assigned to relieve her, but Savage forced the
issue by leaving anyway. I [find] that when Savage was
told to go back and check the patient, she did so, and
that by the time of her arrival, Greer had assumed
responsibility for the patient.
With regard to January 11, 2013, I [find] that the
fluidity in assignments was even more in play.
Etokhana testified credibly both that she had been
assigned to relieve [Ronchetti], and that she had a
conversation with Savage about relieving her instead
due to the fact that Savage had worked sixteen hours.
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The various comments regarding whether linen did or
did not belong on chairs and who was supposed to do
what in relation to it remains somewhat confused,
except for the obvious fact that some staff members
attached more significance to it than others did. . . .
Ronchetti testified credibly that Etokhana gave the
impression that she would have relieved Savage if
Savage had pulled the cover off the chair, but Savage
instead left. This harmonizes with Savage's
recollection that she recalled him telling her, "Shirley,
just help her out by removing the linen. That's all she
wants you to do." I [find] that Savage left, that
Etokhana did not relieve her, and that no one was
assigned to the patient when Greer arrived. I also find
credible Ronchetti's testimony that he yelled after
Savage that no one had relieved her.
The facility also charged Savage with neglect of
duty in relation to signing a sheet up to 11:45 PM when
she left at 11:40 PM. As the time on the video (11:43)
speaks for itself, the notation made beside the 11:45
time slot on the monitoring schedule must have been
made earlier. Therefore, I [find] that the entry was not
accurate.
After applying the applicable legal principles, the ALJ concluded that
Ancora met its "burden of proving the charges . . . by a preponderan ce of the
competent, relevant, and credible evidence." The ALJ explained
[Savage] is charged with conduct unbecoming and
other sufficient cause, namely, violating various
administrative policies and orders. Conduct
unbecoming is a term that encompasses actions
adversely affecting the morale or efficiency of a
governmental unit or having a tendency to destroy
public respect in the delivery of governmental services
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. . . .[1] While Savage's frustration with not getting
relieved promptly after sixteen hours of work is
understandable, it does not negate her duty to ensure
that patients who are a threat to their own safety and to
others are being watched in accordance with a
physician's orders. The time to take the error up with
higher level staff was after Savage had been relieved.
In October 2012, . . . Etokhana had been directed to
relieve someone else. While the fluidity suggested that
Etokhana did have some latitude to relieve Savage first,
Savage walked away without confirming that this had
occurred. There is some truth in Savage's argument that
Etokhana is the one that opened the possibility of harm
coming to the patient by deciding to go ahead and
relieve the other nurse, thereby creating the gap in
coverage. But two failures do not create a positive
result. Therefore, I [conclude] that savage violated the
policy against leaving a one-on-one patient before
another has signed onto the responsibility for that
patient, and that in doing so she also exhibited conduct
unbecoming by opening the patient and others to a risk
of harm.
The January 2013 incident is worse because not
one but two people—Etokhana and . . . Ronchetti—told
Savage she had not been relieved. Further, even if
Etokhana's linen-removal demand was unreasonable
(which is not clear), it involves a minor effort that
would not have significantly delayed Savage's
departure. For whatever reason, Savage again placed
her right to first relief above the patients' and other staff
members' rights to a safe environment. Thus, I
[conclude] that this action also amounted to conduct
unbecoming and other sufficient cause in the form of
violating facility-safety policies.
1
See Karins v. Atl. City, 152 N.J. 532, 554-55 (1998).
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The facility also charged her with neglect of duty
in relation to signing a sheet up to 11:45 p.m. when she
left at 11:40 p.m. Since she left before 11:45 p.m., the
entry was not accurate, and this action also amounted
to conduct unbecoming.
Turning to the penalty, the ALJ explained that in determining the
appropriate penalty, "[t]ypically, . . . numerous factors" were considered,
"including the nature of the offense, the concept of progressive discipline, and
the employee's prior record." Examining her prior record, the ALJ noted that
"[i]n her ten-year history at Ancora . . . , Savage has received a three-day
suspension in May 2008, a five-day suspension in April 2009, a reprimand in
September 2010, a thirty-day suspension in 2010, and a five-day suspension in
July 2012." Acknowledging that "progressive discipline [was] not a fixed and
immutable rule to be followed without question," the ALJ noted that "[s]ome
infractions [were] serious enough on their own to warrant termination." In
concluding "that termination [was] the appropriate penalty," the ALJ explained
that "although Savage was correct in believing that the facility's policy
prescribed relieving people who had worked sixteen hours first, her elevation of
that right above the safety of the patients and staff marked a very serious lapse
in judgment." The Commission adopted the ALJ's decision and this appeal
followed.
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On appeal, Savage challenges the sufficiency of the evidence, pointing to
the related infractions by her co-workers as justification for her actions; contests
the penalty of removal as severe; and claims her rights were violated because
evidence and transcripts of the OAL and departmental hearings were withheld,
tampered with or omitted from the record. We reject Savage's contentions
regarding the sufficiency of the evidence and the appropriateness of the penalty.
Because her remaining claims, particularly those related to the withholding of
the transcripts of the departmental hearings, are either irrelevant or
unsubstantiated, we reject them without further discussion in a written opinion.
R. 2:11-3(e)(1)(E). See Appeal of Darcy, 114 N.J. Super. 454, 459 (App. Div.
1971) ("On appeal to the Civil Service Commission from a departmental
determination a hearing de novo is held at which all relevant testimony may be
introduced," and while "[t]he [d]e novo hearing before the Commission on an
administrative appeal is limited to the charges made below, it is not confined to
the precise testimony below." (citation omitted)).
Our scope of "review of a final agency decision is limited," In re Carter,
191 N.J. 474, 482 (2007), because the "final determination of an administrative
agency . . . is entitled to substantial deference." In re Eastwick Coll. LPN-to RN
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Bridge Program, 225 N.J. 533, 541 (2016) (citing Univ. Cottage Club of
Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007)).
An appellate court will not reverse an agency's final
decision unless the decision is "arbitrary, capricious, or
unreasonable," the determination "violate[s] express or
implied legislative policies," the agency's action
offends the United States Constitution or the State
Constitution, or "the findings on which [the decision]
was based were not supported by substantial, credible
evidence in the record."
[Ibid. (alterations in original) (quoting Univ. Cottage
Club, 191 N.J. at 48).]
"The burden of demonstrating that the agency's action was arbitrary,
capricious[,] or unreasonable rests upon the [party] challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.
2006). Pertinent to this appeal, when the challenge involves findings of fact,
"[g]enerally, an appellate court does not substitute its judgment of the facts for
that of an administrative agency." Campbell v. N.J. Racing Comm'n, 169 N.J.
579, 587 (2001). "[T]he choice of accepting or rejecting testimony from
witnesses resides with the administrative agency, and so long as that choice is
reasonably made it is accorded deference on appeal." Id. at 588. "Although an
appellate court is 'in no way bound by the agency's interpretation of a statute or
its determination of a strictly legal issue,' if substantial evidence supports the
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agency's decision, 'a court may not substitute its own judgment for the agency's
even though the court might have reached a different result.'" Carter, 191 N.J.
at 483 (citations omitted).
"That deferential standard applies to the review of disciplinary sanctions
as well." In re Herrmann, 192 N.J. 19, 28 (2007). "A reviewing court should
alter a sanction imposed by an administrative agency only 'when necessary to
bring the agency's action into conformity with its delegated authority.'" Ibid.(quoting In re Polk, 90 N.J. 550, 578 (1982)). Thus, "when reviewing
administrative sanctions, 'the test . . . "is whether such punishment is so
disproportionate to the offense, in light of all the circumstances, as to be
shocking to one's sense of fairness."'" Id. at 28-29 (alteration in original)
(quoting Polk, 90 N.J. at 578).
In Herrmann, the Court "acknowledged that discipline based in part on the
consideration of past misconduct can be a factor in the determination of the
appropriate penalty for present misconduct," id. at 29 (citing West New York v.
Bock, 38 N.J. 500, 522 (1962)), and "principles of progressive discipline can
support the imposition of a more severe penalty for a public employee who
engages in habitual misconduct." Id. at 30. The Court explained:
Although progressive discipline is a recognized
and accepted principle that has currency in the
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[agency's] sensitive task of meting out an appropriate
penalty to classified employees in the public sector, that
is not to say that incremental discipline is a principle
that must be applied in every disciplinary setting. To
the contrary, judicial decisions have recognized that
progressive discipline is not a necessary consideration
when reviewing an agency head's choice of penalty
when the misconduct is severe, when it is unbecoming
to the employee's position or renders the employee
unsuitable for continuation in the position, or when
application of the principle would be contrary to the
public interest.
Thus, progressive discipline has been bypassed
when an employee engages in severe misconduct,
especially when the employee's position involves
public safety and the misconduct causes risk of harm to
persons or property.
[Id. at 33.]
Applying these principles, we are satisfied that the ALJ's factual findings,
credibility determinations, and legal conclusions, which were adopted by the
Commission under N.J.S.A. 52:14B-10(c), are supported by sufficient, credible
evidence in the record as a whole, R. 2:11-3(e)(1)(D), and are neither arbitrary,
capricious, nor unreasonable. We are equally satisfied that, given the
circumstances, the penalty of termination was not so disproportionate to the
infraction as to shock our sense of fairness.
Affirmed.
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