SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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IN THE MATTER OF CURTIS DIAZ, MERCER COUNTY DEPARTMENT OF PUBLIC SA FETY

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Submit ted November 28, 2018

- Decided Bef ore Judges Accurso and Vernoia. On appeal from the New Jersey Civil Service Commission, Docket No. 2012

- 3507. Alterman & Associates, LLC, att orney s for appella nt Curtis Diaz ( Stuart J. Alterman , of counsel and on the brief). Paul R. Adezio, Mer cer County Counsel, attorney for respondent Mercer County Department of Public Safety (Kristina E. Chubenko , Assistant County Counsel, of counsel and on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission ( Cameryn J. Hinton , Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon a ny court."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.

January 2, 20192 A

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Curtis Diaz , a corrections officer with the Mercer County Department of Public Safety, appeals from an August 22, 2017 final agency decision of the Civil Service Commission . The Com mission adopted the initial decision of the administrative law judge on summary disposition that Diaz be suspended for six days for excessive absenteeism pursuant to N.J.A.C. 4A:2

- 2.3 (a )(4), by calling out of work on December 25, 28 and 29, 2011 , without a vailable leave time or
exten ding his FMLA (Family and Medical Leave Act , 29 U.S.C. §§ 2612 to 2654 ) leave period. Diaz claims the Commission's decisio n was arbitrary and capricious
because the ALJ " disregarded material evidence pertaining to whether Diaz w as ever apprised of the six

- month expiration" of his FMLA leave and tha t a six

- d ay suspension was inappropriate because his several days of absence stemmed from a "singular 'honest mistake.'" Having reviewed the record and tho se arguments in light of appl icable law, we affirm.
T he County submitted two certifications in support of its motion for summary disposition alleging it approved Diaz's request for intermittent FMLA leave by letter of June 3, 2011. According to the County, t he letter advised Diaz
t he leave period was from June 1 through December 1, 2011, and that he would be required to exhaust his accrued sick time before resorting to his unpaid FMLA3 A

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leave. Diaz exhausted his sick time on June 27, 2011 , and thereafter began to draw on his FMLA leave

. A t the time his leave period expired on December 1, 2011, Diaz had forty days of FMLA leave still available to him. He did not, however, take any action to have his leave extended for another six months. Diaz called out of work on December 9 and 10; De cember 21 and December 25, 28 and 29, 2011. He received m inor discipline in the form of two written reprimand s for his first absences in December; one for the December 9 and 10 absences and another for the absence on December 21. Because of those
two pri or violations, the County charged Diaz with a "step 3" violation for his
absence s on December 25, 28 and 29. Specifically, the County charged Diaz with excessive absenteeism, N.J.A.C. 4A:2

- 2.3 (a )(4); conduct unbecoming,
N.J.A.C. 4A:2

- 2.3(a )(6) ; and other sufficient cause, N.J.A.C. 4A:2

- 2.3(a )(11), namely violation of Section A

- 4 of the Mercer County Table of Offenses and Penalties

— chronic or excessive absenteeism with the potential for ten days' suspension. The charges were sustained at a departmental h earing, but the penalty was reduced to a six

- day suspension. Although Diaz opposed the motion , arguing his conduct did not support the charges and the suspension was excessive, he did not submit his own
certification . Instead, Diaz argued in his brief tha t he thought he had been4 A

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granted a full year of intermittent FMLA leave. Find ing the material facts alleged by the County to be undisputed, s ee N.J.A.C. 1:1

- 12.5(a), specifically , that Diaz received the notice advising him of the particulars of his leave and its duration and that he was absent for the days in question, t he ALJ found they supported the charge of excessive absenteeism, e ven accepting Diaz's
uncertified assertion that he mistakenly believed his FMLA leave was for a year and not six months. T he ALJ dismissed the remaining charges, finding the other sufficien t cause charge to be redundant and the conduct unbecoming cha rge unsupported by the evidence , and sustained the six

- day suspension. The Civil Service Commission adopted the ALJ's decision. On appeal, Diaz reprises the arguments he made in the agency and claims the ALJ disregarded "known material facts" as to whether Diaz had notice of t he expiration of his FMLA leave. Specifically, he argues that "[d]espite evidence of Diaz 'having receive d' a letter from the U.S. Department of Labor, there are material facts of him misplacing the letter without ever reading it

— facts that were not considered by the ALJ in the summary decision analysis. " Our review of administrative agency actions is limit ed. In re Herrmann , 192 N.J. 19, 27 (2007). We will not upset an agency's final quasi

- judicial decision absent a "clear showing that it is arbitrary, capricious, or unreasonable,5 A

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or that it lacks fair support in the record." Id. at 27

- 28. This same def erential standard applies to our review of the agency's choice of a disciplinary sanction. Id. at 28. We review discipline only to determine whether the "'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to b e shocking to one's sense of fairness.'" In re Stallworth , 208 N.J. 182, 195 (2011) (quoting In re Carter , 191 N.J. 474, 484 (2007)). The standard governing agency determinations for summary disposition under N.J.A.C. 1:1

- 12.5 is

" ' substantially the same as that governing a motion under Rule 4:46

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summa ry judgment in civil litigation, ' " and our review is de novo. L.A. v. Bd. of Educ. of City of Trenton, Mercer Cty. , 221 N.J. 192, 203 (2015) (quoting Contini v. Bd. of Educ. of Newark , 286 N.J. Super. 106, 121

- 22 (App. Div. 1995) )

. Appl ying those standards here, Diaz has provided us no reason to reverse the findings of the ALJ, as adopted by the Civil Service Commission. The ALJ's refusal to accept statements by counsel in Diaz's opposition brief as " facts" was not error, it was required

. See Pressler & Verniero, Current N.J. Court Rules , cmt. on R. 1:6

- 6 (2019 ) ("It is . . . clear that the mere appending of relevant documents to the motion brief does not constitute compliance with this
rul e. . . . Even more egregious is the attempted presentation of facts which are6 A

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neither of record, judicially noticeable, nor stipulated, by way of statements of counsel made in supporting briefs , memoranda and oral argument

. "); see also Mazur v. Crane's Mi ll Nursing Home , 441 N.J. Super. 168, 180 (App. Div. 2015)

. As we have previously noted, " [t] hese are not merely formal requirements. They go to the heart of procedural due process. " Celino v. Gen.
Accident Ins. , 211 N.J. Super. 538, 544 (App. Div. 1986)

. We further agree with the ALJ that Diaz's failure to read the letters approving his FMLA leave is not a defense to the charge. Our review makes plain the decision of the Civil Service Commission is supported by sufficient credible evidence on the record as a whole and the sanction of a six

- day suspension was justified. See R. 2:11

- 3(e)(1)(D); Carter , 191 N.J. at 484. Diaz 's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. See R. 2:11

- 3(e)(1)(E).
Affir med.