Sherman Abrams Northern State Prison, CSC Docket No. 2018-1874

BackgroundThe appeal of Sherman Abrams, Operating Engineer Repairer, Northern State Prison, Department of Corrections, removal effective December 19, 2017, on charges, was heard by Administrative Law Judge Kimberly A. Moss (ALJ), who rendered her initial decision on April 13, 2021 reversing the removal. Exceptions were filed on behalf of the appointing authority and exceptions in support of the initial decision was filed by the appellant.

AnalysisHaving considered the record and the ALJ initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on May 19, 2021, did not adopt and Conclusion as contained in the attached ALJ’s initial decision to reverse the removal. Rather, the Commission imposed a 15 working day suspension.

DISCUSSION

The appellant in this matter was charged with chronic or excessive absenteeism or lateness in violation of the department’s policies. Specifically, the appointing authority alleged that the appellant violated its time and attendance policy and improperly took three unauthorized sick days off without sufficient leave balances to cover the absences.

Administrative Law JudgeIn her initial decision, the ALJ recommended reversing the removal, finding that the appointing authority had not sustained the charges. She also specifically, found that “Abrams was not charged with [violation of] the Internal Management Provision NSP.PSM 3.005, no show, no call unexcused absence.” Accordingly, she recommended reversing the removal.

AnalysisIn its exceptions, the appointing authority argues that the appellant was charged under its comprehensive time and attendance policy, which includes NSP.PSM 3.005, indicating that an employee who calls out sick “must call the Shift Commander at least one hour prior to their scheduled time on duty.” In this regard, it contends that the appellant did not do so as the ALJ did not discredit the appellant’s supervisor’s testimony that the appellant did not call him on the days in question. Accordingly, it contends he should be found to have violated the above policy. Additionally, based on the appellant’s prior disciplinary history, it argues that removal is the appropriate penalty.

In his exceptions in support of the initial decision, the appellant indicates that he did, indeed have leave time available to cover his absences. He also argues that the ALJ’s conclusions regarding the appointing authority not establishing the charges by a preponderance of the evidence was correct and should be affirmed.

After its de novo review of the record in this matter, the Commission agrees that removal is not appropriate. However, for the reasons below, it finds that the appropriate penalty in this matter is a 15 working day suspension.

Administrative Law JudgeIn her initial decision, the ALJ rejected that the appellant violated NSP.PSM 3.005. However, the Commission disagrees. Based on the specifications in the Final Notice of Disciplinary Action as well as the testimony at the hearing, it is clear that the appellant was on notice that one of the allegations against him was that he failed to follow the call-in procedure. Further, the ALJ did not explicitly indicate that the appellant’s supervisor’s testimony was not credible. Rather, she found that he did not “deny that Abrams called in but denied that Abrams called him.” However, the appellant did not indicate speaking with anyone but his supervisor. The ALJ also substantially relied on the fact that the appellant did, indeed, have sufficient leave time to cover his absences. However, absent other evidence, it cannot be concluded that the appellant properly called in. Accordingly, he would be considered in violation of NSP.PSM 3.005. Nevertheless, given the circumstances, a penalty far less severe than removal is warranted.

AnalysisIn determining the proper penalty, the Commission’s review 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 assessing the penalty in relation to the employee’s conduct, it is important to emphasize that the nature of the offense must be balanced against mitigating circumstances, including any prior disciplinary history. 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).

While the appellant does have an extensive prior disciplinary history regarding attendance-related infractions, several mitigating factors require a penalty far short of removal. First, the appellant was not guilty of the charge that he did not have sufficient leave balances to cover his absences as he did have such time.' Further, while the appellant violated NSP.PSM 3.005, this infraction was clearly not egregious. Finally, the circumstances surrounding his absences were emergent in nature, and while that does not excuse his violation of NSP.PSM 3.005, it certainly bears upon the severity of the penalty. Accordingly, given the above, the Commission finds that a 15 working day suspension is an appropriate penalty. This penalty should impress upon the appellant that further such infractions will not be tolerated and could lead to more severe disciplinary penalties, up to and including removal.

Since the removal has been modified, the appellant is entitled to mitigated back pay, benefits and seniority pursuant to N.J.A.C. 4A:2-2.10 from 15 working days after his initial removal date to the date of actual reinstatement. However, the appellant is not entitled to counsel fees. Pursuant to N.J.A.C. 4A:2-2.12(a), an award of counsel fees is appropriate 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 any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. 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. Mar. 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 case, the Commission dismissed some of the charges against the appellant, but it has sustained a charge and imposed major discipline. Therefore, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12(a), 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, 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 his permanent position.

' Indeed, the appointing authority withdrew this charge.

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ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies the removal to a 15 working suspension. The Commission further orders that the appellant be granted back pay, benefits and seniority as specified above. The amount of back pay awarded is to be reduced and mitigated as provided for in N.d.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 any dispute as to the amount of back pay.

Counsel fees are denied pursuant to N.d.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 RA. 2:2-3(a)(2). After such time, any further review of this matter should be pursued in the Superior Court of New Jersey, Appellate Division.