(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
In the Matter of Eva Taylor (A-35-98)
Argued March 29, 1999 -- Decided June 29, 1999
PER CURIAM
The issue in this appeal is whether the Court should sustain an order issued by the Merit System Board
that terminated an employee of a State psychiatric hospital for physical abuse of a patient.
Eva Taylor was employed for more than fifteen years at Greystone Park Psychiatric Hospital, a facility
run by the New Jersey Department of Human Services (DHS). On November 29, 1995, Taylor was suspended
without pay for physically abusing a patient. On January 5, 1996, after an administrative hearing, she was
removed from her job. Prior to the incident under review, Taylor had an unblemished disciplinary record.
The incident occurred during the afternoon dispensation of medication to patients. While waiting in line
for medication, two female patients, B.M. and E.S., began to argue. Taylor attempted to separate them. She
had difficulty calming B.M. and called for assistance from Anna Samji, a registered nurse. The remaining facts
underlying the incident were sharply disputed.
According to Taylor, when Samji did not respond immediately to her call for help, Taylor went to the
nurses' station. She found Samji in the station and informed her of the altercation. Samji ordered another
nurse, Georgia Edwards, to give B.M. an injection of a tranquilizer and directed Taylor to take B.M. to the
medication room for the injection. B.M. resisted and Taylor was unable to get her to the medication room
without the assistance of Linda Wright, a human services technician. Once B.M. was seated in the medication
room, Wright was able to secure Taylor's release from the grasp of B.M. Taylor left the medication room before
the injection was administered.
Samji's testimony was in stark contrast to Taylor's. According to Samji, she was in the nurses' station
when she heard Taylor call for assistance. Samji left the station and determined that B.M. needed a tranquilizer
to "calm her down." Samji went to check B.M.'s chart, which was in the nurses' station and then returned to the
medication room. At the half-opened door of the medication room, Samji saw Taylor hitting B.M. while
Edwards watched. The hitting consisted of Taylor using her clenched fist "up and down" on the patient. Samji
entered the room, told Taylor to stop hitting B.M., and had Wright come in and separate Taylor from B.M.
Later, B.M. told Samji that Taylor had hit her.
Samji wrote up an incident report before her shift was over. The report did not state that Taylor had
hit B.M. Samji reported Taylor's conduct to her supervisor the following day (his shift had already ended when
Samji called after the incident occurred). Samji's supervisor, Theodore Bryant, Edwards, and Wright all testified
in a manner that supported Taylor's version of the events. Two doctors examined B.M., one forty minutes after
the incident and the other the following day. Neither doctor found any bruises or other injuries.
After DHS terminated Taylor, she filed a timely appeal with the Merit System Board, which referred
the case to the Office of Administrative Law. After a hearing the Administrative Law Judge (ALJ), determined
that Taylor had physically abused B.M. The ALJ found Samji's version of events more credible than Taylor's
or the other witnesses'.
The Merit System Board adopted the ALJ's findings of fact and conclusions of law. Taylor appealed
to the Appellate Division. That court reversed the judgment below and directed the ALJ to reconsider the
matter because he had provided an insufficient explanation for his conclusion that Taylor had physically abused
the patient. The Court granted DHS's petition for certification.
HELD: The Appellate Division exceeded the proper scope of appellate review of this administrative matter by
failing to give appropriate deference to the factual findings of the Administrative Law Judge and by substituting
its own assessment of the weight to be accorded to the testimony of the witnesses. The evidence does not
support, however, the ALJ's legal determination of physical abuse of the patient.
1. The scope of appellate review of an administrative decision is whether the findings could reasonably have
been reached on sufficient credible evidence present in the record considering the proofs as a whole, giving due
regard to the opportunity of the one who heard the witnesses to judge their credibility. If the appellate court
finds sufficient credible evidence in the record to support the agency's conclusions, the court must uphold the
findings even if the court believes that it would have reached a different result. Only when the appellate court
determines that the findings are "arbitrary, capricious, and unreasonable" may it appraise the record as if it were
making the initial findings and conclusions. (pp. 12-17)
2. The Appellate Division failed to apply the foregoing principles properly in this matter. There was sufficient
credible evidence in the record to support the ALJ's findings of fact. (pp. 17-19)
3. Because the Court has upheld the ALJ's factual findings, it must also review the legal conclusion that Taylor's
conduct constituted "abuse" as defined by DHS. On this record, the Court concludes that the evidence was
insufficient to support the ALJ's legal determination that Taylor committed patient abuse. Taylor's conduct
constituted "inappropriate physical contact," a violation for which removal would be an excessive sanction. (pp.
19-21)
The judgment of the Appellate Division is MODIFIED and the matter is REMANDED to the Merit
System Board for further proceedings consistent with the Court's opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN,
and COLEMAN join in the Court's opinion.
SUPREME COURT OF NEW JERSEY
A-
35 September Term 1998
IN THE MATTER OF
EVA TAYLOR
Argued March 29, 1999 -- Decided June 29, 1999
On certification to the Superior Court,
Appellate Division.
Michael J. Haas, Assistant Attorney General,
argued the cause for appellants Department of
Human Services and Department of Personnel
(Peter Verniero, Attorney General of New
Jersey, attorney; Joseph L. Yannotti,
Assistant Attorney General, of counsel).
Joseph J. Bell, Jr., argued the cause for
respondent, Eva Taylor (Joseph J. Bell &
Associates, attorneys).
PER CURIAM
The issue in this appeal is whether this Court should
sustain an order issued by the Merit System Board that terminated
an employee of a State psychiatric hospital for physical abuse of
a patient. That inquiry requires us to determine whether the
Appellate Division applied the proper standard when it reviewed
the factual findings of the Administrative Law Judge (ALJ) on
which the Merit System Board (Board) relied in issuing its order.
We also address the legal conclusion of the ALJ and the Board
that the employee's conduct constituted patient abuse mandating
her removal.
Respondent Eva Taylor was employed for more than fifteen
years at the Greystone Park Psychiatric Hospital (Greystone), a
facility run by the New Jersey Department of Human Services
(DHS). Taylor began working at Greystone as a food service
worker in 1980, and in 1991 she was transferred within the
hospital to the direct care department where she served as a
human services technician. On November 29, 1995, Taylor was
suspended without pay for physically abusing a patient, conduct
officially proscribed by DHS Administrative Order 4:08-C.3. On
January 5, 1996, after an administrative hearing, Taylor was
permanently removed from her job at Greystone. Prior to the
incident under review, Taylor had an unblemished disciplinary
record.
Taylor's termination resulted from an incident that occurred
on November 11, 1995, the facts concerning which are sharply
disputed. On that day, Taylor was working the day shift and
around 3:30 p.m. was assisting the nurses in dispensing
medication to the patients. While waiting in the medication
dispensation line, two female patients, B.M. and E.S., began to
argue and Taylor attempted to separate them. Taylor had
difficulty calming B.M., who continued to argue with E.S.
Concerned that B.M. would become aggressive, Taylor called for
the help of Anna Samji, a registered nurse.
1. Taylor's Testimony
At the hearing conducted by the ALJ, Taylor testified that
Samji did not immediately respond to her request for help.
Because B.M. was becoming increasingly agitated, Taylor went to
the nurses' station. She opened the door of the station with her
key, found Samji reviewing patients' charts, and told Samji about
the altercation. Without responding to Taylor, Samji walked out
of the nurses' station, ordered Georgia Edwards, a licensed
practical nurse, to give B.M. an injection of a tranquilizer, and
directed Taylor to take B.M. into the medication room for the
injection. B.M., uncooperative and refusing to go into the
medication room, grabbed Taylor by the collar of her shirt and
would not let go. Although Taylor grabbed B.M.'s wrists, as she
was trained to do with an aggressive patient, Taylor was unable
to remove B.M.'s hands from her collar. Linda Wright, a human
services technician, helped Taylor get B.M., who continued to
hold onto Taylor's collar, into a chair in the medication room.
Once B.M. was seated in the medication room, Wright was able
to release Taylor from B.M.'s grasp. When asked whether she
recalled whether the door to the medication room was open or
closed, Taylor stated that she did not recall, noting that
[Y]ou can't afford to take your eye off the
patient and worry about this door here. Your
first concern is, make sure that [the
patient] doesn't do anything to hurt herself,
make sure that you don't do anything to hurt
her, nor let her hurt you. So you have to
keep your head back, your arms have to be
out, because [the patients] will head butt
you.
Taylor left the medication room before an injection was
administered.
2. Samji's Testimony
Samji's testimony is in stark contrast to Taylor's.
According to Samji, she was in the nurses' station reviewing
patients' medical charts when she heard Taylor call for her
assistance. Samji left the nurses' station, determined that B.M.
was agitated and needed some medication to "calm her down," and
ordered Edwards to give B.M. an injection of a tranquilizer.
Samji went to check B.M.'s chart, which was at the nurses'
station, and then returned to the medication room. There, Samji
observed over the half door enclosing the medication room B.M.
sitting on a chair in the medication room and
Eva Taylor was hitting her. And Edwards was
standing on this side, holding on the
medication cart, and one hand on her like
this and she was standing and watching the
scene.
. . . .
[Taylor] was hitting -- she was hitting
[with] both her hands, clenched fist. Was
going up and down on her. She was standing
like this in front of the patient, the
patient was sitting on the chair, and the
patient was not seen, because she was
covering her almost, and I never saw any
movement of the patient's hand or anything.
I only saw this going on, up and down, on the
patient.
Samji opened the half door, told Taylor to stop hitting B.M., and
unsuccessfully tried to pull Taylor, described as "big" and
"tall" by Samji, away from B.M. Wright eventually came in and
separated Taylor from B.M.
Once Taylor and B.M. were separated, Samji turned her
attention to other patients who had been waiting outside the
medication room, some of whom had become upset as a result of the
incident between Taylor and B.M. When Samji returned to the
medication room, she was unable to get in because the door was
closed and locked. She knocked, but no one opened the door.
Eventually, B.M. came out and told Samji, "Anna, Eva [Taylor] hit
me."
Before her shift was over, Samji wrote an incident report
regarding the altercation between B.M. and E.S.; she did not
state in that report that Taylor had hit B.M. Samji called her
supervisor, Theodore Bryant, to report the altercation between
E.S. and B.M. and the alleged abuse by Taylor. Bryant refused to
take her call because it was the end of his shift, and instead
gave the phone to the night-shift supervisor. Although Samji
reported the patient-to-patient altercation to the night-shift
supervisor, Samji believed that the incident involving Taylor was
a sensitive issue that should be discussed only with her
immediate supervisor. Samji therefore waited until the following
day to report that incident to Bryant.
3. Other Witnesses' Testimony
Bryant, Edwards, and Wright provided testimony at the
hearing that substantially comported with that of Taylor.
Bryant, a registered nurse and Supervisor of Patient Services,
testified that on November 11, 1995, he was working the day shift
and received a phone call from Samji around 4:20, after his shift
had ended. When Samji began explaining that there had been an
altercation, Bryant handed the phone to the night-shift
supervisor. The following day Samji told Bryant that she needed
to speak with him. Bryant and Samji met in private, and Samji
told Bryant that B.M. had grabbed and struck Taylor but that
Taylor had struck B.M. back.
Although Bryant asked Samji to write a report on the
incident, Bryant testified that he conducted his own
investigation of the incident. He first questioned Taylor, who
appeared "dumbfounded" when he informed her of the allegations
against her. He then spoke to B.M., who recalled her altercation
with E.S. but denied having been struck by a staff member.
Bryant also spoke to every employee on the ward during the day
shift, including Edwards and Wright, and no one corroborated
Samji's version of the events and allegation of abuse.
Nurse Edwards testified that, at approximately 3:30, Samji
asked her to administer an injection to B.M., who had been
involved in an altercation with another patient and who appeared
to be "out of control." Taylor and Wright brought B.M. into the
medication room and assisted Edwards in administering the
injection because B.M. was resisting and would not sit still.
Edwards denied seeing Taylor hit B.M., but she acknowledged that
her back was to the patient while she prepared the injection.
Additionally, although Edwards saw Samji come into the medication
room, she did not see Samji touch Taylor or hear Samji speak to
Taylor.
When asked whether the door to the medication room was
closed, Edwards testified that in the interest of the patient's
privacy she usually closes the door when medication is being
administered. Edwards recalled that the door was closed when she
administered the injection to B.M., that she heard a knock on the
door while she was taking care of the patient, and that she told
the person at the door to wait "just a minute." Before she
opened the door Edwards finished administering the injection,
recorded the injection according to protocol, and washed her
hands.
Wright testified that she responded to Taylor's request for
help in separating B.M. and E.S. As Wright and Taylor tried to
move B.M. into the medication room, B.M. grabbed Taylor by the
collar. Wright tried to calm B.M. down and was eventually able
to remove B.M.'s hands from Taylor's collar. Wright did not see
Taylor strike B.M., did not see Samji in the medication room, and
did not notice whether the medication room door was open or
closed.
During the hearing, both Taylor and Samji were questioned
about their working relationship. Samji testified that she had
had some minor differences with Taylor, such as insubordination,
but that their differences were not significant. Taylor
testified that she and Samji had "had disagreements" but that she
was not sure she would describe their relationship as tainted by
"bad blood."
Although two doctors examined B.M., one forty minutes after
the alleged altercation with Taylor and one the following day, no
bruises or other injuries were found. Nevertheless, on November
29, 1995, the New Jersey Department of Human Services (DHS)
suspended Taylor without pay for physically abusing a patient,
conduct officially proscribed in DHS Administrative Order 4:08-C.3 ("Physical or mental abuse of a patient, client, resident, or
employee"). Physical or mental abuse is defined in the
Administrative Order as "a malicious act directed toward a
patient, resident, client, or employee with the intent to cause
pain, injury, suffering or anguish." Under the Administrative
Order, an employee must be removed from employment after the
employee's first infraction.
Taylor requested and was given a hearing by DHS, and the
hearing officer sustained the charges of physical abuse. On
receipt of a Final Notice of Disciplinary Action that informed
Taylor of her permanent suspension from her job at Greystone,
Taylor filed a timely appeal with the Merit System Board which
referred the matter to the Office of Administrative Law for a
hearing.
After a hearing before the ALJ, the ALJ determined that
Taylor had physically abused B.M., thereby sustaining Taylor's
permanent suspension. In a written decision, the ALJ found
Samji's version of events more credible than Taylor's or the
other witnesses'. Specifically, the ALJ concluded:
Based . . . upon my review and
consideration of the testimony, the
documentary evidence and my intuition and
experience, I am compelled to conclude that
despite the greater number of witnesses who
either denied or could not corroberate the
version of the alleged incident offered by
Sa[m]ji, her credibility outweighed that of
Taylor and the others and in my judgment did
establish the truth of the charge against
Taylor by a preponderance of the evidence.
Although there were intimations of previous
problems between Sa[m]ji and Taylor, having
had the opportunity closely to observe
Sa[m]ji's demeanor during the course of her
testimony, I believe that her version of the
events [has] the greater "ring of truth" to
it. No viable reason was apparent, nor was
any offered, to support the assertion that
Sa[m]ji would concoct her version of the
incident simply in order to falsely harm
Taylor. Sa[m]ji had nothing to gain by doing
so and perhaps much to lose in terms of
exacerbating her relationships with persons
with and for whom she worked. It is most
unlikely that this registered nurse, having
testified as she did, was not telling me the
truth. She was unshaken with respect to her
version of what she observed and her
testimony essentially corroborated exactly
what she contemporanously had put down both
in her report . . . and her written
statement. . . . While it is not uncommon
for individual observations of the same
incident to vary, what happened here cannot
be explained that way. Sa[m]ji was there and
she credibly related that she did see Taylor
hit B.M.
The Merit System Board adopted the ALJ's findings of fact and
conclusions of law, and thus affirmed Taylor's termination.
Taylor filed an appeal with the Appellate Division. In an
unpublished, per curiam opinion, the Appellate Division reversed
and remanded the matter to the ALJ for reconsideration. The
court held that the ALJ provided an "insufficient explanation for
his conclusion that petitioner abused the patient" and concluded
that "[a]fter carefully reviewing the evidence, and in light of
the severity of the discliplinary action taken, . . . only
limited deference [to the ALJ's findings of fact] is warranted in
this case."
In so holding, the Appellate Division questioned the ALJ's
"total reliance on Samji's testimony, when she herself testified
that her view of the patient in the medication room was
obstructed by Taylor's person," and noted that "[i]f the patient
had been struck repeatedly with a clenched fist on her head and
shoulders by a person who apparently towered over her, one has to
wonder why no sign of injury appeared." The court concluded that
"what appeared to [Samji] to be a serious assault was at most an
inappropriate physical contact," defined and proscribed by
Administrative Order 4.08-C.5. The court held that, on remand,
the ALJ must "further explain his determination with respect to
the credibility of the witnesses" and not impose a penalty
greater than that provided in Administrative Order 4:08-C.5.
We granted DHS's petion for certification.
156 N.J. 427
(1998).
Under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -24, an ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are "based upon sufficient, competent, and credible evidence." N.J.S.A. 52:14B-10(c); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 586-89 (1988) (citing N.J.S.A. 52:14B-10(c) and explaining relationship between decision of ALJ and final decision of agency). Although the agency may adopt, reject or modify the ALJ's findings, the decision of the ALJ will be deemed adopted as the final decision of the agency unless the agency modifies or rejects the report within forty-five days of its receipt. N.J.S.A. 52:14B-10(c). In this proceeding the Merit System board issued an Order that affirmatively adopted the findings of fact and conclusions of law made by the ALJ.
Once the agency has issued its final decision, "the Appellate Division's initial review of that decision is a limited one." Clowes, supra, 109 N.J. at 587; see also Brady v. Board of Review, 152 N.J. 197, 210 (1997) ("The judicial capacity to review administrative agency decisions is limited."); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981) (holding that "appellate review of an administrative agency's factual determinations is circumscribed"). The scope of review of an administrative decision "is the same as that [for] an appeal in any nonjury case, i.e., 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Under that standard, the scope of judicial review of an agency's decision is restricted to four inquiries:
(1) whether the agency's decision offends the State or Federal Constitution;
(2) whether the agency's action violates express or implied legislative policies;
(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and
(4) 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.
[Brady, supra, 152 N.J. at 210-11 (quoting George Harms Constr. Co. v. New Jersey Turnpike Auth., 137 N.J. 8, 27 (1994).]
Additionally, as we recently stated in State v. Locurto,
157 N.J. 463, 471 (1999), an appellate court may not "engage in an
independent assessment of the evidence as if it were the court of
first instance." We frequently have observed that findings of
fact made by a trial judge "are considered binding on appeal when
supported by adequate, substantial and credible evidence," Rova
Farms Resort, Inc. v. Investors Ins. Co.,
65 N.J. 474, 484
(1974), and that standard is equally applicable to reviews of
administrative decisions, see Close, supra, 44 N.J. at 599
(holding that scope of review of administrative decision "is the
same as that [for] an appeal in any nonjury case").
Accordingly, if in reviewing an agency decision an appellate
court finds sufficient credible evidence in the record to support
the agency's conclusions, that court must uphold those findings
even if the court believes that it would have reached a different
result. Clowes, supra, 109 N.J. at 588; Goodman, supra, 86 N.J.
at 28-29. "[A]n appellate court will reverse the decision of the
administrative agency only if it is arbitrary, capricious or
unreasonable or it is not supported by substantial credible
evidence in the record as a whole." Henry v. Rahway State
Prison,
81 N.J. 571, 581 (1980); see also Brady, supra, 152 N.J.
at 210 ("Unless a [c]ourt finds that the agency's action was
arbitrary, capricious, or unreasonable, the agency's ruling
should not be disturbed."). If the appellate court determines
that the findings made below are arbitrary, capricious and
unreasonable, "then, and only then, [the appellate court] should
appraise the record as if it were deciding the matter at
inception and make its own findings and conclusions." Johnson,
supra, 42 N.J. at 162.
We note that although the scope of review of an agency's
decision is circumscribed, an appellate court's review of an
agency decision is "not simply a pro forma exercise in which [the
court] rubber stamp[s] findings that are not reasonably supported
by the evidence." Chou v. Rutgers,
283 N.J. Super. 524, 539
(App. Div. 1995), certif. denied,
145 N.J. 374 (1996); see also
Costantino v. New Jersey Merit Sys. Bd.,
313 N.J. Super. 212, 225
(App. Div. 1998) (noting that Appellate Division does not engage
in "pro forma" review of agency decisions and "need not defer to
an agency decision that is manifestly mistaken"), certif. denied,
157 N.J. 544 (1998). Appellate courts must engage in a "careful
and principled consideration of the agency record and findings."
Mayflower Sec. Co. v. Bureau of Sec.,
64 N.J. 85, 93 (1973).
Furthermore, "[a]n appellate tribunal is . . . in no way bound by
the agency's interpretation of a statute or its determination of
a strictly legal issue." Ibid.
When this Court "is called upon to review the action of the
Appellate Division in passing upon a claim that the trial court's
fact findings were wrong," we must first determine whether the
Appellate Division applied the proper standard of review,
Johnson, supra, 42 N.J. at 163, i.e., whether the Appellate
Division engaged in a determination of whether the findings made
could reasonably have been reached on sufficient credible
evidence, id. at 162. If we determine that the Appellate
Division did not apply the appropriate standard of review and
that "the Appellate Division . . . was manifestly mistaken in
concluding that the trial court had gone too wide of the mark,"
we must then "treat the case as the intermediate tribunal should
have." Id. at 163. That inquiry requires us to determine
whether the agency's decision could reasonably have been reached
on sufficient credible evidence present in the record. Close,
supra, 44 N.J. at 599. If we determine that the decision of the
agency is arbitrary, capricious, or unreasonable or that it is
not supported by substantial credible evidence, we must then
"appraise the record as if . . . deciding the matter at inception
and make [our] own findings and conclusions." Clowes, supra, 109
N.J. at 588 (quoting Johnson, supra, 42 N.J. at 162).
We first consider whether the Appellate Division below
applied the appropriate standard of review. Johnson, supra, 42
N.J. at 163. That inquiry requires us to determine whether the
Appellate Division considered "whether the findings made could
reasonably have been reached on sufficient credible evidence."
Id. at 162. We conclude that the Appellate Division failed to
make that determination.
Specifically, the Appellate Division exceeded the proper
scope of review by failing to give appropriate deference to the
ALJ's findings of fact and by substituting its own assessment of
the weight to be accorded to the testimony of the witnesses. See
Clowes, supra, 109 N.J. at 587 ("[T]he reviewing court should
give 'due regard to the opportunity of the one who heard the
witnesses to judge of their credibility.'") (quoting Close,
supra, 44 N.J. at 599); Goodman, supra, 86 N.J. at 28-29 ("Though
an independent de novo examination of the record might lead a
reviewing court to an opposite conclusion, [an appellate] court's
obligation is to examine the record in order to determine whether
the evidence and the reasonable inferences to be drawn therefrom
could reasonably support the decision."). The court below stated
that "only limited deference is warranted in this case," thereby
"question[ing] the judge's total reliance on Samji's testimony."
The proper inquiry, however, was whether Samji's testimony alone
was a sufficiently credible basis on which to conclude that
Taylor had engaged in the conduct with which she was charged.
Thus, we find that the court did not focus on the issue of
whether "the findings made could reasonably have been reached on
sufficient credible evidence." Close, supra, 44 N.J. at 599.
Because we find that the Appellate Division failed to apply the
proper standard of review, we must "treat the case as [the
Appellate Division] should have." Johnson, supra, 42 N.J. at
163.
We conclude that there was sufficient credible evidence to
support the ALJ's findings of fact and that the Appellate
Division erroneously found that the ALJ provided "insufficient
explanation for his conclusion that [Taylor] abused the patient."
As recently explained in Locurto, supra, credibility findings
need not be explicitly enunciated if the record as a whole makes
the findings clear. 157 N.J. at 474. We find that the ALJ's
explanation of his ruling adequately supports his factual
findings. Furthermore, the ALJ made specific findings about
Samji's credibility. For example, the ALJ found that Samji's
version of the events had a "greater 'ring of truth,'" that Samji
was consistent in her version of events, and that Samji had no
motive to fabricate the incident.
"[T]rial courts' credibility findings . . . are often
influenced by matters such as observations of the character and
demeanor of witnesses and common human experience that are not
transmitted by the record." Locurto, supra, 157 N.J. at 474.
Observing that of all the witnesses who testified Samji was the
most credible, the ALJ determined that Taylor did strike B.M. We
find that determination to be adequately supported by evidence in
the record and accordingly sustain it.
Our conclusion that the ALJ's factual findings must be
upheld does not end our inquiry. We also consider whether the
evidence supports the ALJ's legal conclusion that Taylor's
conduct constituted "abuse" as defined by DHS, in order to
support the sanction of permanent removal from employment. See
N.J.S.A. 52:14B-10(c) ("A recommended report and decision [shall]
contain findings of fact and conclusions of law. . . ."). Our
review of that determination is de novo. See Mayflower Sec. Co.,
supra, 64 N.J. at 93 (holding that appellate court is not "bound
by the agency's interpretation of a statute or its determination
of a strictly legal issue").
We are unpersuaded that the ALJ's conclusion of law -- that
Taylor physically "abused" a patient -- is a correct one. The
ALJ found Taylor committed patient abuse in violation of
Administrative Order 4:08-C.3. That provision defines physical
abuse as "a malicious act directed toward a patient, resident,
client, or employee with the intent to cause pain, injury,
suffering or anguish." The mandatory sanction for such an
infraction is removal. However, the ALJ did not consider whether
Taylor's conduct was more properly characterized as
"inappropriate physical conduct" as defined by Administrative
Order 4:08-C.5, which provides that "[i]nappropriate physical
contact or mistreatment of a patient," for which there is no
intent requirement, carries a mandatory sanction of an oral
reprimand or removal.
While crediting the factual findings of the ALJ, we note
that this matter involved highly conflicting testimony, much of
which corroborated Taylor's version of events. We believe that
on this record the evidence was insufficient to support the ALJ's
legal conclusion that Taylor committed patient abuse. That
Samji's view of the incident was obstructed is not disputed, nor
is it disputed that the patient grabbed Taylor and had to be
separated from her. The ALJ made no finding that Taylor acted
maliciously toward B.M., nor did he conclude that Taylor intended
to cause B.M. pain, injury, or anguish. The evidence established
that B.M. did not suffer any physical injury and that she did not
recall being hit by Taylor. We do not sustain the ALJ's legal
conclusion that Taylor engaged in physical abuse of a patient as
defined by Administrative Order 4:08-C.3. On this record, we are
satisfied that Taylor's conduct constituted "inappropriate
physical contact" within the meaning of Administrative Order
4:08-C.5 and that removal would be an excessive sanction. Accord
Harcum v. New Lisbon Dev. Center,
96 N.J.A.R 2d (CSV) 324 (1996)
(reducing physical abuse charge to charge of inappropriate
physical contact because employee did not act with malice and
patient was not injured); Lyew v. Morris View Nursing Home,
93 N.J.A.R 2d (CSV) 673, aff'd,
94 N.J.A.R 2d (CSV) 718 (App. Div.
1994) (holding that sanction of removal for nursing home
attendant, who was found to have hit patient suffering from
dementia, should be reduced to penalty of six-month suspension,
because act of hitting patient was "isolated instance" in which
patient was aggressor).
We acknowledge the responsibility of DHS to ensure that
vulnerable patients in their care are shielded from any form of
abuse by their caretakers. Balanced against that concern,
however, we also must ensure that the rights of public employees
who work under extremely difficult conditions also are protected.
Accordingly, we reject the ALJ's legal conclusion, and the Merit
System Board's adoption thereof, that Taylor committed patient
abuse and that she must be removed from her position at
Greystone. We find that the evidence established that Taylor
committed "inappropriate physical contact or mistreatment of a
patient" as set forth in Administrative Order 4:08-C.5. We
modify the judgment of the Appellate Division and remand the
matter to the Merit System Board to determine the appropriate
sanction and for further proceedings consistent with this
opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in this PER CURIAM opinion.
NO. A-35 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF
EVA TAYLOR
DECIDED June 29, 1999
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINIONS BY