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

NOT FOR PUBLICATION WITHOUT THE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.
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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. 52:14B1 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 preponderance 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).
10 A-1125-17T2

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 
13 A-1125-17T2

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.