Kimberly Hayes, CSC Docket No. 2017-1833

BackgroundThe appeal of Kimberly Hayes, Human Service Assistant, New Jersey Veterans Memorial Home -Vineland, Department of Military and Veterans Affairs, removal effective December 6, 2016 on charges was heard by Administrative Law Judge Jeffrey R. Wilson, who rendered his initial decision on June 3, 2019. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ's initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on July 9, 2019, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision as well as his recommendation to reverse the removal.

DISCUSSION

Since the Commission substantially agrees with the ALJ’s Findings of Facts and Conclusions, as well as his recommendation to uphold the removal, no extended discussion is necessary. However, the Commission will briefly address the exceptions filed by the appointing authority.

In its exceptions, the appointing authority argues that the ALJ’s credibility determinations finding witness Lisa Powell not credible and the appellant credible were in error. In this regard, it contends that while the ALJ found Powell's testimony to be inconsistent with her written statement, the ALJ would not permit the in camera review of the unredacted statement to show that, in fact, her testimony was consistent with that statement. In support, it recites portions of the transcript where the ALJ discusses the issue of the in camera review of the statement.

In her reply to the exceptions, the appellant argues that even if the exceptions are true, Powell’s testimony was found to be not credible by the ALJ for other reasons. Further, it contends that Powell's testimony was inconsistent on other issues.

The Commission is not persuaded by the appointing authority’s exceptions. Regarding credibility, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally 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 In re Taylor, 158 N.J. 644 (1999) (quoting State 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. Jd. 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 the credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Nevertheless, upon its review of the entire record, the Commission finds that there is sufficient evidence in the record to support the ALJ’s credibility determinations, regardless of whether Powell’s unredacted statement was reviewed. The ALJ explicitly indicated that he found the appellant's testimony credible as compared to Powell’s. Further, it is clear he based that determination not merely on the purported inconsistency between Powell’s testimony and statement. Specifically, the ALJ found Powell’s overall testimony “defensive” while he indicated “(hjaving considered the testimonial and documentary evidence presented and observing the demeanor of Powell and the appellant while testifying, I accept the testimony offered by the appellant to be highly credible. The appellant’s demeanor throughout the hearing was calm. Her testimony was consistent and free of any histrionics.” Clearly, it cannot be considered arbitrary, capricious or unreasonable for the ALJ to have found Powell's testimony not credible given his direct observation and assessment of her demeanor and his conclusion that her overall testimony was defensive. In that regard, the Commission is satisfied that regardless of what Powell's unredacted statement may have revealed, the ALJ’s credibility determinations were not compromised in any way by the failure to review the unredacted statement and are worthy of the customary deference afforded such determinations.

Since the removal has been reversed, the appellant is entitled to mitigated back pay, benefits, and seniority from the date of separation until the date of reinstatement pursuant to N.J.A.C. 4A:2-2.10, as well as reasonable counsel fees pursuant to and N.JA.C. 4A:2-2.12.

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, 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 or counsel fees 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 reverses that action and grants the appeal of Kimberly Hayes. The Commission further orders that appellant be granted back pay, benefits, and seniority from the first date of separation 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.

The Commission further orders that counsel fees be awarded to the attorney for appellant pursuant to N.dJ.A.C. 4A:2-2.12. An affidavit of services in support of reasonable counsel fees 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 and N.JA.C. 4A:2-2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay and counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay or counsel fee dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay and counsel fees 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.