Kimberly Mitchell, CSC Docket No. 2016-1588

BackgroundThe appeal of Kimberly Mitchell, Keyboarding Clerk 1, Cumberland County, Sheriffs Department, removal, effective August 25, 2015, was heard by Administrative Law Judge Carl V. Buck, [II (ALJ), who rendered his initial decision on December 9, 2024. Exceptions were filed on behalf of both parties.

AnalysisHaving considered the record and the ALJ's initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on January 15, 2025, adopted the ALJ’s Findings of Facts and Conclusions of Law, except as noted below. However, it did not agree with the recommendation to uphold the removal. Rather, the Commission imposed a 30 working day suspension.

Initially, the Commission does not adopt the ALJ’s recommendation to dismiss the charges of chronic or excessive absenteeism, That charge was dismissed at the departmental level and was not contained on the Final Notice of Disciplinary Action. As such, the ALJ should not have considered it. Regardless, the Commission finds the ALJ’s upholding of the other charges appropriate.

The Commission makes the following comments. The ALJ’s initial decision was thorough and comprehensive. Notwithstanding that, the appellant argues in her exceptions that the ALJ did not consider that the appointing authority violated State and federal leave laws. The Commission is not persuaded. In this matter, the credible evidence in the record indicates that the appellant was not medically restricted from performing the duties of her position after being cleared by Dr. Bernardini, and as such, the appointing authority would not have been required to grant such leave thereafter. Moreover, the appellant’s exceptions argue in that regard that the ALJ should not have credited two employees’ testimony regarding the duties of the position since he did not hear their testimony.! She also contends that the ALJ did not present a credibility determination regarding her testimony even though he did hear some portions of it. The Commission rejects these contentions. Generally, the ALJ, who has the benefit of hearing and seeing the witnesses, is in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings . . . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting Siate v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Here, while the ALJ did not “hear” the two employees’ testimony, he did find their recitation of the duties of the position more persuasive than the appellant’s. Moreover, the Commission finds no persuasive evidence in the record or in the appellant’s exceptions to demonstrate that the ALJ’s findings and conclusions based on his assessments in that regard were arbitrary, capricious or unreasonable.

Regarding the penalty, similar to its review of the underlying charges, the Commission's review of the penalty is de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Commission also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant’s offense, the concept of progressive discipline, and the employee’s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d (CSV) 463. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (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).

In this matter, the Commission finds reason to impose a penalty less than removal. Initially, the record does not indicate that the appellant had any prior disciplinary history, and the testimony in the record otherwise indicates that there were not any issues with her work performance. Additionally, notwithstanding that the final doctor’s opinion found the appellant clear to work, the appellant’s belief,

| This matter was reassigned to the current ALJ after the original ALJ was appointed to the Superior Court.

albeit mistaken, that she was entitled to remain on her already approved Family and Medical Leave Act leave until its original expiration date further mitigates against the removal. While this mistaken belief supports that the underlying charges were properly sustained as the appellant did not follow the orders to return, to impose removal in such a circumstance is inappropriate. Accordingly, while the Commission is not minimizing the appellant’s misconduct in any way, it finds that the appropriate penalty in this matter is a 30 working day suspension, which shall serve as a warning to the appellant that any future misconduct may lead to more severe disciplinary penalty, including removal.

Since the removal has been modified, the appellant is entitled to be reinstated with back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from 30 working days after the first date of separation without pay until the date of actual reinstatement. However, she is not entitled to counsel fees. N.J.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): In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, while the removal was modified by the Commission, charges were sustained, and major discipline was imposed. Consequently, as the 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, per the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, 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. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to her permanent position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies that action to a 30 working day suspension.

The Commission orders that the appellant be granted back pay, benefits, and seniority from 30 working days after the first date of separation without pay to the actual date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A:2-2.10. Proof of income earned, and 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 shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay dispute.

Counsel fees are denied.

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.