NOT FOR PUBLICATION WITHOUT THE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-1687-15T4
IN THE MATTER OF JOHN
HUGATE, DEPARTMENT OF
TRANSPORTATION.
——————————————————————————————
Submitted June 6, 2017 – Decided July 17, 2017
Before Judges Gilson and Sapp-Peterson.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-1715.
Kamensky, Cohen & Riechelson, attorneys for
appellant John Hugate (Mark D. Laderman, on
the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Department of
Transportation (Melissa H. Raksa, Assistant
Attorney General, of counsel; Nonee Lee
Wagner, Deputy Attorney General, on the
brief).
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
John Hugate appeals from a final administrative determination
of the Civil Service Commission (Commission) that found that the
Department of Transportation (DOT) had properly suspended and then
terminated Hugate's employment because he threatened his
supervisor and threatened to shoot a co-worker. We affirm.
Hugate was employed as an automotive mechanic for the DOT
from 2004 to 2013. In 2013, Hugate felt that his supervisors and
co-workers were harassing him. A supervisor and some of Hugate's
co-workers, in contrast, believed that Hugate was not performing
his job duties and was engaging in threatening conduct.
On June 6, 2013, Hugate was asked to meet with Richard
Lawrence, who was one of his supervisors, and Steven Kryzwicki,
who was the president of the local union. At that meeting, Hugate
was told that either he could resign or criminal charges would be
brought against him. Hugate refused to resign and believed he had
done nothing wrong. Hugate secretly recorded the meeting.
Following the June 6, 2013 meeting, Hugate suffered from
stress and depression and took a two-month leave of absence from
work. Hugate returned to work on August 2, 2013.
On August 6, 2013, James Caffey, a co-worker, informed Hugate
that their immediate supervisor would be on leave and Lawrence
would be supervising him. Caffey testified that Hugate told him
"if [Lawrence] hounds me all day, I'm going to end up hurting
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him." Caffey reported that statement and a workplace violence
incident report was later filed with the DOT's Office of the
Inspector General.
On August 30, 2013, Hugate was informed that he would be
working in the garage and that the state vehicle that he normally
drove would not be available to him. Therefore, Dean Gephart, who
was another supervisor, told Hugate that Kryzwicki would be taking
him home to pick up his own vehicle. According to Gephart, Hugate
responded that problems would develop and he would shoot Kryzwicki
and drag him into the house. Gephart reported that threat.
Based on the reported threats, Hugate was suspended without
pay. Thereafter, the DOT determined that Hugate should be removed
from his employment. Hugate challenged that decision and the
matter was referred to the Office of Administrative Law for a
contested hearing. An administrative law judge (ALJ) heard four
days of testimony.
The ALJ found that Caffey and Gephart were credible and based
on their testimony found that Hugate had threatened Lawrence on
August 6, 2013, and that Hugate had also threatened to shoot
Kryzwicki on August 30, 2013. The ALJ found that the conduct
constituted a major disciplinary action warranting Hugate's
removal from employment.
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During the contested hearing, the ALJ also heard testimony
from Lawrence and Kryzwicki. The ALJ found their testimony to be
incredible. The ALJ also found, however, that that testimony did
not undercut the facts that Hugate had made the threats.
Hugate filed an administrative appeal to the Commission. On
November 9, 2015, the Commission issued a final agency decision.
The Commission adopted the fact-findings made by the ALJ. The
Commission then reviewed the disciplinary penalties de novo and
found that Hugate had been appropriately disciplined with a
fifteen-day suspension for the threat against Lawrence and with
termination for the threat to shoot a co-worker.
On appeal, Hugate makes two arguments. First, he contends
that the Commission's decision was arbitrary, capricious, or
unreasonable and was not supported by sufficient credible evidence
in the record. Second, he argues that the Commission erroneously
applied progressive discipline and he should not have been
terminated. We disagree.
Our review of a final agency decision is limited, and we "do
not ordinarily overturn such a decision 'in the absence of a
showing that it was arbitrary, capricious or unreasonable, or that
it lacked fair support in the evidence[.]'" In re Carter, 191
N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv.,
39 N.J. 556, 562 (1963)). Moreover, we may not substitute our
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judgment for that of the agency's when "substantial credible
evidence supports [the] agency's conclusion[.]" Greenwood v.
State Police Training Ctr., 127 N.J. 500, 513 (1992). To determine
whether an agency action is arbitrary, capricious, or
unreasonable, we examine
(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.
[In re Stallworth, 208 N.J. 182, 194 (2011)
(quoting Carter, supra, 191 N.J. at 482-83).]
Deference to agency decisions applies to the review of
disciplinary sanctions. In re Herrmann, 192 N.J. 19, 28 (2007).
"In light of the deference owed to such determinations, 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 In
re Polk, 90 N.J. 550, 578 (1982)). "The threshold of 'shocking'
the court's sense of fairness is a difficult one, not met whenever
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the court would have reached a different result." Id. at 29.
Accordingly, we will modify a sanction "when necessary to bring
the agency's action into conformity with its delegated authority."
Id. at 28 (quoting Polk, supra, 90 N.J. at 578). Moreover, we
will affirm a sanction that is not illegal or unreasonable. Ibid.
Applying these principles, we are satisfied that there is no
basis to reverse the Commission's decision sustaining appellant's
suspension and removal. A civil service employee's rights and
duties are governed by the Civil Service Act (the Act), N.J.S.A.
11A:1-1 to 12-6. A civil service employee may be subject to major
disciplinary action for a variety of offenses. See N.J.A.C. 4A:2-
2.3 (enumerating general causes for discipline). In such major
disciplinary actions, the employer has the burden of proof by a
preponderance of the evidence. N.J.A.C. 4A:2-1.4; Polk, supra,
90 N.J. at 560.
Here, the Commission adopted the ALJ's findings of fact that
Hugate had threatened both a supervisor and a co-worker on two
separate occasions. Those findings were supported by the
substantial credible testimony of Caffey and Gephart. Indeed, the
ALJ found that both Caffey and Gephart testified credibly.
The Commission also found that Hugate had a "disturbing
propensity for violent threats," and that his threat to shoot a
co-worker was sufficiently egregious to support the penalty of
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removal. Terminating Hugate's employment was not disproportionate
to the offense, in light of the circumstances, and does not rise
to the level of shocking the court's sense of fairness.
Accordingly, we find no basis for disturbing the Commission's
decision to affirm the DOT's suspension and removal of Hugate.
In that regard, we note that progressive discipline is not
"'a fixed and immutable rule to be followed without question'
because 'some disciplinary infractions are so serious that removal
is appropriate notwithstanding a largely unblemished prior
record.'" Stallworth, supra, 208 N.J. at 196 (quoting Carter,
supra, 191 N.J. at 484). Thus, we discern no abuse of discretion
in the Commission's conclusion that Hugate's conduct warranted his
removal.
Affirmed.
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