                            NOT FOR PUBLICATION WITHOUT THE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-0587-17T2


IN THE MATTER OF CURTIS
DIAZ, MERCER COUNTY
DEPARTMENT OF PUBLIC SAFETY.


               Submitted November 28, 2018 - Decided January 2, 2019

               Before Judges Accurso and Vernoia.

               On appeal from the New Jersey Civil Service
               Commission, Docket No. 2012-3507.

               Alterman & Associates, LLC, attorneys for appellant
               Curtis Diaz (Stuart J. Alterman, of counsel and on the
               brief).

               Paul R. Adezio, Mercer 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
      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 Commission 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 available leave time or

extending his FMLA (Family and Medical Leave Act, 29 U.S.C. §§ 2612 to

2654) leave period.

      Diaz claims the Commission's decision was arbitrary and capricious

because the ALJ "disregarded material evidence pertaining to whether Diaz was

ever apprised of the six-month expiration" of his FMLA leave and that a six-day

suspension was inappropriate because his several days of absence stemmed from

a "singular 'honest mistake.'" Having reviewed the record and those arguments

in light of applicable law, we affirm.

      The 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, the letter advised Diaz

the 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 FMLA


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

draw on his FMLA leave. At 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; December 21 and

December 25, 28 and 29, 2011. He received minor discipline in the form of two

written reprimands 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 prior violations, the County charged Diaz with a "step 3" violation for his

absences 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 hearing, 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 that he thought he had been


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                                      3
granted a full year of intermittent FMLA leave. Finding the material facts

alleged by the County to be undisputed, see 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, the ALJ found they

supported the charge of excessive absenteeism, even accepting Diaz's

uncertified assertion that he mistakenly believed his FMLA leave was for a year

and not six months. The ALJ dismissed the remaining charges, finding the other

sufficient cause charge to be redundant and the conduct unbecoming charge

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 the

expiration of his FMLA leave. Specifically, he argues that "[d]espite evidence

of Diaz 'having received' 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 limited. 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,


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                                        4
or that it lacks fair support in the record." Id. at 27-28. This same deferential

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

be 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 4:46-2 for

summary 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)).

      Applying 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

rule. . . . Even more egregious is the attempted presentation of facts which are


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                                        5
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 Mill 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).

      Affirmed.




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