NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Appellant Department of Human Services (DHS) appeals from a final agency decision of the Civil Service Commission (Commission) that reduced the DHS's penalty of employment termination to a twenty-working-day suspension for respondent Nicholas Manla, an employee at the DHS's North Jersey Developmental Center (the Center). We affirm.
We discern the following facts from the record. Manla had been employed for over four years as a Cottage Training Technician at the Center, which houses developmentally disabled adults. On July 30, 2010, one of the resident patients, J.M. (Jared),1 became agitated and aggressive with his roommate in a hallway and started hitting him. Manla attempted to intervene by telling Jared to go back to his room. When Jared refused and continued to kick at everyone in the hallway, Manla attempted to escort Jared to his room.
According to Manla, while standing to Jared's left with his arm over Jared's right shoulder, he playfully "side-kicked" Jared in the buttocks in order to "lighten the mood" while he tried to convince him to go back to his room. He stated that the side-kicks were made with very little force and he was not trying to hurt Jared. Manla admitted that he used poor judgment, but stated that Jared did not appear distressed by the side-kicks, he had developed a close relationship with Jared over the years, and his conduct was similar to how one would play with a friend.
Edward Brauchle, a licensed practical nurse at the Center, stepped out of the nurse's station and observed Manla escorting Jared down the hallway while side-kicking him. Brauchle was standing about fifteen feet behind them and recounted that Manla was holding Jared by the shoulders, pushing him forward, and kicking him. Another resident approached Brauchle and said "you saw that, didn't you[?] [W]hat are you going to do about it?" Brauchle called his nursing supervisor, who performed a physical inspection of Jared, where they both observed three red abrasions on Jared's right buttock near the sacral area.
Following an internal investigation, the Center issued a Preliminary Notice of Disciplinary Action to Manla. After an internal hearing, the Center issued a Final Notice of Disciplinary Action on May 18, 2011, removing Manla from his position based on a determination that Manla had physically abused Jared.
Manla appealed, and the Commission transmitted the contested case to the Office of Administrative Law. On October 14, 2011, an Administrative Law Judge (ALJ) presided over the trial. The ALJ heard testimony from Manla, Brauchle, and other witnesses, including Manla's supervisor Eric McKenzie. McKenzie stated that Manla had a good rapport with the clients, and that they "laugh ... joke, nothing out of the normal." He testified that he had never seen Manla act inappropriately with a resident in the four years that he had known him.
On November 7, 2011, the ALJ issued a thorough fourteen-page written opinion setting forth his fact-findings and conclusions of law. The ALJ found Manla and his witnesses particularly credible and determined that Manla's actions constituted horseplay with a client with whom there was a mutual familiarity, that Manla exhibited no anger and Jared exhibited no distress from the side-kicks, and that the side-kicks did not cause the abrasions on Jared's buttocks.2 The ALJ, relying on In re Taylor, 158 N.J. 644, 661 (1999), determined that, since there was no evidence of malicious intent, Manla did not commit physical or mental abuse of a patient; rather, he committed a lesser offense of inappropriate physical contact with a patient consistent with a charge of conduct unbecoming of a public employee. The judge determined that applying progressive discipline was more appropriate than removal considering Manla's lack of disciplinary history over the years and because he was considered a superlative employee. The ALJ concluded that a twenty-working-day suspension was appropriate.
In a January 25, 2012 written decision, the Commission accepted and adopted the ALJ's findings of fact, specifically that Manla's conduct constituted horseplay. However, the Commission found that Manla's actions fell within the DHS's definition of the physical abuse. At the time of the incident that gave rise to this matter, the DHS's Administrative Order 4:08 defined "physical abuse" as:
a physical act directed at a client, patient or resident of a type that could tend to cause pain, injury, anguish, and/or suffering. Such acts include but are not limited to the client, patient, or resident being kicked, pinched, bitten, punched, slapped, hit, pushed, dragged, and/or struck with a thrown or held object.
The Commission concluded the ALJ erred in determining that Manla did not commit physical abuse as the malicious intent required in Taylor, supra, 158 N.J. at 661, was not applicable in this case because the definition of physical abuse had subsequently been changed to eliminate that requirement. Nevertheless, based on the mitigating factors of Manla's lack of malicious intent and his lack of prior disciplinary history, the Commission agreed that removal was not warranted, and imposed a twenty-working-day suspension.
The DHS moved for reconsideration, which the Commission denied. In its written decision, the Commission noted that the DHS's penalty schedule specifically provided for the consideration of mitigating factors, and in any event, the Commission was not bound by DHS's penalty schedule as its consideration of the penalty was de novo. The Commission concluded
[w]hile the Commission does not condone any form of patient abuse as the appointing authority defines it, it must be recognized that not every contact that can be characterized as [physical abuse] is worthy of the harshest penalty of removal. The instant matter is an illustration of one such case where removal is not warranted. As noted in the prior decision, the credible evidence in the record demonstrated that the appellant was not acting with malice when he came into contact with the patient. On the contrary, his intentions were good.... [T]hose actions were aimed at redirecting the patient away from a volatile situation. This is simply not a situation where an employee was striking a patient out of anger or frustration, which is intolerable.
On appeal, the DHS argues that the Commission's decision reinstating Manla to his position working with developmentally disabled residents after he was found to have abused a resident in his care is arbitrary and capricious and interferes with the DHS's express legislative mandate to protect the vulnerable residents from abuse. We disagree.
An ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, N.J.S.A. 11A:2-6(b) authorizes the Commission to review the ALJ's decision "de novo on the written record and render a final administrative decision in those matters." In re Juvenile Det. Officer Union Cnty., 364 N.J.Super. 608, 614 (App. Div. 2003) (emphasis omitted).
The Commission may reject or modify fact findings as well as legal conclusions and interpretations of agency policy made by the ALJ. N.J.S.A. 52:14B-10(c). However, rejection or modification of an ALJ's "findings of fact as to issues of credibility of lay witness testimony" is impermissible unless the Commission "first determined from a review of a record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." Ibid. The Commission may also "increase or decrease the penalty imposed by the appointing authority[.]" N.J.S.A. 11A:2-19.
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). The agency's final decision will be sustained unless an appellate court finds the decision to be "`arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980)). The burden of showing that the agency's decision was arbitrary, unreasonable, or capricious rests with the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J.Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
To determine whether the Commission's final decision is arbitrary, capricious, or unreasonable, the reviewing court must examine the following three prongs:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Stallworth, supra, 208 N.J. at 194 (internal quotation marks and citation omitted).]
"When an agency's decision meets those criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28 (2007) (citing In re License Issued to Zahl, 186 N.J. 341, 353 (2006)). "Deference controls even if the court would have reached a different result in the first instance." Ibid. (citing Taylor, supra, 158 N.J. at 657). Deference "applies to the review of disciplinary sanctions as well." Ibid. (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32, (1975)).
"A useful calculus for the first prong of this agency review test, violation of express or implied legislative policies, is the inquiry whether the decision `was not premised upon a consideration of all relevant factors [ ] [or conversely] a consideration of irrelevant or inappropriate factors.'" In re Warren, 117 N.J. 295, 297 (1989) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). One relevant factor is the employee's disciplinary history. A reviewing court may intervene in an agency's modification of a penalty when the agency fails to consider the significance of the employee's prior record. See Stallworth, supra, 208 N.J. at 200 (remanding where Commission reduced penalty without fully addressing employee's record of misconduct).
Another relevant factor is the severity of the conduct. A reviewing court may intervene when the agency fails to consider the seriousness of the misconduct within the overall context of the work environment as it relates to public safety and the safety of other employees. See Henry, supra, 81 N.J. at 580-81 (remanding where Commission reduced penalty of terminated corrections officer without considering how his conduct could "disrupt and destroy order and discipline in a prison"); Bowden v. Bayside State Prison, 268 N.J.Super. 301, 305-06 (App. Div. 1993) (reversing Commission decision to reinstate corrections officer noting that the agency failed to consider the severity of his conduct in light of the fact that prisons, "if not properly operated, have a capacity to become `tinderboxes'"), certif. denied, 135 N.J. 469 (1994).
After thoroughly reviewing the record in light of the relevant legal principles and standard of review, we are convinced that the Commission's decision to impose a twenty-working-day suspension upon Manla was not arbitrary, capricious or unreasonable, and the decision is supported by sufficient credible evidence. See Stallworth, supra, 208 N.J. at 194. Put another way, the DHS did not meet its burden on appeal to show that (1) the Commission's decision did not follow the law; (2) the record did not contain substantial evidence to support the decision; or (3) the Commission's decision could not reasonably have been made based on the relevant factors. Ibid.
In applying the first prong, the record reveals that the Commission in its comprehensive written opinion of January 25, 2012, gave careful consideration to the severity of Manla's conduct in light of his duty to protect the residents' "health, safety and welfare" pursuant to N.J.S.A. 30:4-25.7, and after considering the mitigating circumstances, ultimately concluded that his conduct constituted "serious charges," that deserved a major disciplinary action pursuant to N.J.A.C. 4A:2-2.2(a)(3), but stopped short of requiring removal. We also find it noteworthy, as the Commission pointed out in denying reconsideration, that the DHS's own penalty schedule permits the consideration of mitigating circumstances when fashioning a penalty.
Furthermore, nothing in the record demonstrates that the Commission's decision "`was not premised upon a consideration of all relevant factors'" Warren, supra, 117 N.J. at 297 (quoting Bender, supra, 80 N.J. at 93). The DHS's reliance on Henry, supra, 81 N.J. at 580-81, and Bowden, supra, 268 N.J. Super. at 305-06, is misplaced. Manla's misconduct of playfully side-kicking Jared to lighten the mood and encourage him go back to his room did not create a comparable risk of disrupted order and discipline as would occur in a prison context. Indeed, "the situation with respect to correction facilities ... are sui generis." Bowden, supra, 268 N.J. Super. at 305. Thus, the record amply supports the notion that the Commission's decision does not violate any express or implied legislative policies. See Stallworth, supra, 208 N.J. at 194.
Regarding the second prong, the record demonstrates that the Commission's decision was based upon sufficient credible evidence. Ibid. In fact, the DHS does not contend on appeal that the Commission erroneously accepted the ALJ's findings or that the credibility findings were arbitrary, capricious or unreasonable pursuant to N.J.S.A. 52:14B-10(c). Here, the ALJ's decision evidences a thorough review of testimony of numerous employees and witnesses and a consideration of numerous reports, photographs, and other materials. After evaluating the evidence and testimony, the ALJ cogently rendered his findings of fact and conclusions of law in a comprehensive opinion, which the Commission accepted after making its own de novo review. Having also reviewing the record, we are satisfied that the Commission's decision was based upon sufficient credible evidence. Stallworth, supra, 208 N.J. at 194.
In applying the third prong, it is clear from the record that the Commission could reasonably determine that Manla's misconduct warranted a progressive discipline approach based upon an assessment of the severity of his conduct in light of his clean disciplinary record, lack of malicious intent, and his positive motive of defusing a volatile situation. The Commission's decision is not "so wide of the mark as to justify this Court's substitution of its judgment." Herrmann, supra, 192 N.J. at 36. After considering the record in light of our standard of review, we find no reason to interfere with the Commission's sanction of a twenty-working-day suspension.
Affirmed.
