Shandor Wine, CSC Docket No. 2018-3206

BackgroundThe Jersey City Public Library, represented by Ronald C. Hunt, Esq., petitions the Civil Service Commission (Commission) for reconsideration of the attached final administrative decision, rendered on April 18, 2018, in which the Commission modified Shandor Wine’s removal to a 45 day suspension and granted back pay, benefits, and seniority.

By way of background, the appointing authority removed Wine from his position of Building Maintenance Worker on charges of conduct unbecoming a public employee. Specifically, the appointing authority asserted that Wine pushed and elbowed a co-worker causing her to seek medical attention. Upon Wine’s appeal to the Commission, the matter was referred to the Office of Administrative Law (OAL) for a hearing. The ALJ set forth in her initial decision that a co-worker of the appellant, Beata Rogowska, alleged that the appellant had assaulted her when he forcibly walked in a door that she had opened and struck her right lower breast area with his elbow. Rogowska testified that she immediately informed Library Assistant Mary Bonner that Wine had assaulted her and Bonner’s testimony corroborated Rogowska’s assertions. Further, Rogowska testified that the next morning a large bruise appeared where the appellant had struck her. Wine testified that he had no contact with Rogowska before or during the alleged incident. The ALJ found the testimony of Rogowska to be credible as her testimony was consistent with the report of the incident she had authored. Moreover, the ALJ found Wine’s testimony to be inherently improbable and not “hanging together” with, and discredited by, other credible evidence in the record. Therefore, the ALJ concluded that the appointing authority had sustained its burden of proving by a preponderance of the evidence that Wine’s conduct was egregious enough to warrant removal. Upon its de novo review of the record, the Commission agreed with the ALJ’s determination regarding the charges but did not agree with the ALJ’s recommendation to uphold the removal. in determining the proper penalty, the Commission found that while it was clear the Wine’s actions were improper, other than the victim’s belief, there was nothing in the record to support any sort of malicious or nefarious intent on Wine’s part. Accordingly, the Commission imposed a 45 working day suspension.

AnalysisIn the instant matter, the appointing authority argues that the Commision erred by modifying the penalty of removal it had imposed on Wine. Additionally, it contends that the Commision should defer judgement of the witnesses’ credibilty to the ALJ. Specifically, it asserts that if Rogowska’s testimony was found credible then the Commision should have found that Wine’s actions were committed with malicious or nefarious intent. It contends that the medical records and the other photographs of the bruise support her testimony as well as the testimony from the witnesses. Further, it indicated that Wine’s supervisor Teresa Fairly, testified that there were three sepreate incidents involving Wine prior to the incident in question. Although none of the incidents resulted in formal discpline, these incidents raise concerns with Wine’s ability to work cooperatively with female co-workers.

——= Moreover, the appointing authorty argues that Wine’s conduct was egregious in nature and that the penalty of removal was appropriate. In this regard it asserts that Wine is unsuitable for continued employment within its workforce and that the application of progressive discpline in this case would be contrary to the public interest and send a dangerous message to its staff.

In reply, Wine takes issue with Fairly’s testimony concerning one of his alleged prior incidents. Wine argues that he was improperly subjected to a hostile work enviroment by Fairly and ancther co-worker. He asserts that his claims were not acted upon and that he was retaliated against.

CONCLUSION

RuleN.d.A.C, 4A:2-1.6(b) sets forth the standards by which a prior decision may be reconsidered. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding.

AnalysisIn the instant matter, the appointing authority argues that the Commission erred in modifying Wine’s removal to a 45 day suspension. It contends that Rogowska’s testimony, the testimony of the other witnesses, and the medical and photographic evidence all indicate that Wine’s action in striking her in the chest was done with malicious or nefarious intent. The Commission does not agree. The fact that Rogowska told co-workers about the incident and the fact that she received a bruise does not conclusively indicate that Wine intended to strike her with malicious or nefarious intent. Therefore, in the absence of such an intent, Wine’s actions cannot be considered egregious enough to warrant removal and the concept of progressive discipline must be applied. Further, while the appointing authority relies on three prior incidents involving Wine, none of those incidents resulted in disciplinary action. In determining the proper penalty, the Commission imposed a major disciplinary action of a 45 day suspension which served as an indication that any further infractions committed by Wine would potentially subject him to removal from employment. Accordingly, based on the foregoing, the appointing authority has not presented any persuasive evidence or arguments that the Commission erred in its prior decision and its request for reconsideration is 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. The matter concerning backpay is currently pending a decision by the Commission.

ORDER

Therefore, it is ordered that the appointing authority’s request be denied.