Edward Olszewski South Woods State Prison, CSC Docket No. 2015-2921

BackgroundThe appeal of Edward Olszewski, Heavy Equipment Operator, South Woods State Prison, Department of Corrections, 120 working day suspension, on charges, was heard by Administrative Law Judge (ALJ) Jeffrey R. Wilson, who rendered his initial decision on May 8, 2020. Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the Administrative Law Judge’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on June 3, 2020, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge’s initial decision. However, the Commission did not agree with the ALJ’s recommendation to uphold the 120 working day suspension. Rather, the Commission modified the 120 working day suspension to a 45 working day suspension.

In this case, the appellant was charged with insubordination. Specifically, the appointing authority alleged that the appellant refused a direct order to transport a trailer to a location for delivery and pickup. In his initial decision, the ALJ found that based on the testimony of the appointing authority’s witnesses, as well as the appellant’s admission, he was guilty of the proffered charges. Regarding the penalty, the ALJ noted that the appellant’s disciplinary record included six incidents of discipline, including three prior disciplines for insubordination. The insubordination matters resulted in a five working day suspension in 2000, a 10 working day suspension in 2001 and a 10 working day suspension in 2009. Based on this history, the ALJ found that the 120 working day suspension was appropriate.

In his exceptions, the appellant argues that the ALJ improperly failed to consider his motion to dismiss the matter. Alternatively, he contends that the penalty imposed was too severe and should be reduced to a 10 working day suspension.

In response, the appointing authority argues that the appellant’s exceptions are without merit and the ALJ’s initial decision should be affirmed in its entirety.

Upon its de novo review of this matter, the Commission agrees with the ALJ regarding the charges. However, it disagrees that the 120 working day suspension was appropriate. Rather, it finds that suspension to be unduly harsh. In determining the proper penalty, the Commission’s review is also de novo. In addition to considering the seriousness of the underlying incident in determining the proper penalty, the Commission utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). Although the Commission applies the concept of progressive discipline in determining the level and propriety of penalties, an individual’s prior disciplinary history may be outweighed if the infraction at issue is of a serious nature. Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.J. 474 (2007). However, where an infraction has not been found to be egregious, the tenets of progressive discipline are generally followed. See In the Matter of Anthony Stallworth, 208 N.J. 182 (2011).

In this case, while the appellant's infraction is serious, the Commission does not find it worthy of the penalty imposed by the appointing authority. While it is clear that the appellant has a history of insubordination, with three prior disciplinary actions for such behavior, those matters occurred in 2000, 2001 and 2009. The current offense occurred in 2015, nearly six years after the 2009 offense. Further, while the Commission does not condone any form of insubordination, the nature of the appellant’s misconduct in this matter is not so significant as to support the serious penalty imposed. In this regard, the Commission notes that a 120 working day suspension is equivalent to a six-month suspension, which is the most severe suspension allowed for non-criminal behavior in Civil Service law and rules. Moreover, the record indicates that at the time of the infraction, the appellant had been employed by the appointing authority for over 17 years. In this case, given the appellant’s years of service, the nature of this specific incident and the fact that his prior disciplines for insubordination are both remote in time and were for a maximum of 10 working days, the Commission finds the 120 working day suspension disproportionate to the offense. Accordingly, based on the above, and in line with the tenets of progressive discipline, the Commission finds that the appropriate penalty in this matter is a 45 working day suspension. This significant suspension in no way minimizes the appellant’s misconduct and should serve as a warning that any future infractions would support a disciplinary penalty up to and including removal.

Since the suspension has been reduced, the appellant is entitled to 75 working days of back pay, benefits and seniority pursuant to N.JA.C, 4A:2-2.10. Regarding counsel fees, N.dJ.A.C. 4A:2-2.12(a) provides for the award of counsel fees only where an employee has prevailed on all or substantially all of the primary issues in an appeal of a major disciplinary action. The primary issue in the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No. A-1489-02T2 (App. Div. March 18, 2004); In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In this matter, while the penalty was modified, the charges were sustained, and major discipline was imposed. Therefore, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12, counsel fees must be denied. This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, unpublished, Docket No. A-5581-01T2F (App. Div. Feb. 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay are finally resolved.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. However, the Commission modifies the 120 working day suspension to a 45 working day suspension. Pursuant to N.j.A.C, 4A:2-2.10, the appellant is entitled to receive 75 working days of mitigated back pay, benefits and seniority. An affidavit of mitigation shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to N.J.A.C. 4A:2-2.10, the parties are encouraged to make a good faith effort to resolve any dispute as to back pay.

Counsel fees are denied pursuant to N.J.A.C. 4A:2-2.12

The parties must inform the Commission, in writing, if there is any dispute as to back pay within 60 days of issuance of this decision. In the absence of such notice, the Commission will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter shall be pursued in the Superior Court of New Jersey, Appellate Division.