William Able, CSC Docket No. 2018-3594

BackgroundWilliam Able, a Senior Custodian with Newark School District, represented by Lesley Sotolongo, Esq., seeks enforcement of the attached Civil Service Commission (Commission) decision rendered on April 4, 2018, granting him mitigated back pay, benefits and seniority.

As background, the appellant was removed from employment effective September 16, 2015, on charges of conduct unbecoming a public employee, misuse of public property and other sufficient cause. Upon his appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing. Following a hearing and the Commission's de novo review, the appellant’s removal was modified to a six-month suspension. Further, the Commission ordered that the appellant be reinstated and awarded mitigated back pay, benefits and seniority for the period following the six-month suspension to the date of actual reinstatement. The appellant indicates that he returned to work on June 18, 2018.' However, the parties have been unable to agree on the amount of the back pay due, and the appellant has requested Civil Service Commission (Commission) review.

Initially, it is noted that the appellant does not submit any proposed calculations concerning the gross amount of back pay owed to him. Rather, he contends in one affidavit that he did not receive any unemployment benefits or other compensation during the time he was separated from his position. The

' The appellant’s County and Municipal Personnel System (CAMPS) records do not indicate that the appellant returned to work.

Appellant's argumentappellant also claims that although he made reasonable efforts to obtain employment, he was unable to find alternate employment. Specifically, in his affidavit, the appellant argues that he applied for “approximately six different head custodian positions” and to a position with Home Depot. The appellant indicates that he interviewed for a head custodian position with Millburn Public Schools in November 2015, but was not appointed.? In support of his request, the appellant submits unsigned tax returns for 2015 and 2016.3 However, in the submitted tax returns for 2015 and 2016, the appellant indicated that he received a combined total of $16,796 in unemployment benefits for 2015 and 2016, and $7,230 in income in 2016.‘ He also submits a second, unsworn affidavit, in which he indicates that he received an unspecified amount of unemployment benefits and other compensation while he was separated from employment. The appellant observes that the appointing authority bears the burden of demonstrating that he failed to mitigate his damages in the instant matter and argues that it has not presented any evidence to counter his claim that he attempted to find comparable employment opportunities.

In response, the appointing authority, represented by Bernard Mercado. Senior Corporation Counsel indicates that the appellant is owed a total of $159,044.84 in gross, unmitigated back pay salary, minus all standard salary and tax deductions. Moreover, the appointing authority argues that there are discrepancies between the appellant’s tax documents and his affidavit. For instance, he admitted to receiving $4,522 in unemployment benefits in 2015 and an additional $21,323.66 in extra income above his salary, but indicated in his affidavit that he did not receive any income or unemployment benefits. The appointing authority observes that the appellant’s 2015 and 2016 tax returns are unsigned and there is no indication that they were actually filed. It also notes that the appellant did not indicate how much income he earned in 2017 because he did not file a 2017 income tax return. Finally, the appointing authority argues that the appellant did not make a reasonable effort to mitigate his losses. It argues that the appellant's claim that he applied to only six jobs in the nearly three years he was separated is insufficient to meet the standard, especially considering he does not provide any evidence other than his attempt at employment with Millburn Public Schools to demonstrate his effort to obtain employment.

CONCLUSION

Pursuant to N.J.A.C. 4A:2-2.10(d), an award of back pay shall include unpaid salary, including regular wages, overlap shift time, increments and across-the- Commission adjustments. N.J.A.C. 4A:2-2.10(d)3 provides that an award of back

Appellant's argument2 The appellant provides a copy of an email from Millburn Public Schools, dated January 11, 2017. which informs him that he was not appointed to the position.

Analysis* The appellant indicated in his affidavit that he did not file a tax return for 2017. ‘The appellant failed to provide a W-2 or any other explanation of the source of this income.

pay shall be reduced by the amount of money that was actually earned during the period of separation, including any unemployment insurance benefits received, subject to any applicable limitations set forth in (d)4. Further, N./.A.C. 4A:2- 2.10{d)4 states that where a removal or a suspension for more than 30 working days has been reversed or modified and the employee has been unemployed or underemployed for all or a part of the period of separation, and the employee has failed to make reasonable efforts to find suitable employment during the period of separation, the employee shall not be eligible for back pay for any period during which the employee failed to make such reasonable efforts. “Reasonable efforts” may include, but not be limited to, reviewing classified advertisements in newspapers or trade publications; reviewing Internet or on-line job listings or services; applying for suitable positions; attending job fairs; visiting employment agencies; networking with other people; and distributing resumes. The determination as to whether the employee has made reasonable efforts to find suitable employment shall be based upon the totality of the circumstances, including, but not limited to, the nature of the disciplinary action taken against the employee; the nature of the employee's public employment; the employee’s skills, education, and experience; the job market; the existence of advertised, suitable employment opportunities; the manner in which the type of employment involved is commonly sought; and any other circumstances deemed relevant based upon the particular facts of the matter. The burden of proof shall be on the employer to establish that the employee has not made reasonable efforts to find suitable employment. See N.J.A.C. 4A:2-2.10(d)4, et seq.

Initially, the record is unclear whether the appellant received unemployment benefits because he submitted conflicting affidavits and tax returns. In this regard, although in the appellant’s sworn affidavit he states that he did not receive any unemployment benefits, the 2015 and 2016 tax returns he submits indicate he received unemployment compensation. Although there is a presumption that the receipt of unemployment insurance benefits evidences that an employee sufficiently mitigated during the period of separation, since searching for employment is a condition to receiving such benefits, this presumption may be rebutted where the appellant did not make a diligent effort to seek employment. See In the Maiter of Donald Hicks, Docket No. A-3568-03T5 (App. Div. September 6, 2005). Accordingly, even assuming arguendo the appellant received such benefits, as described below, the appellant has not submitted sufficient evidence to demonstrate a reasonable effort to mitigate his damages.

After a review of the record, the Commission finds that the appellant failed to make reasonable efforts to find suitable employment. The appellant indicates that he applied to “approximately six different head custodian positions” and for a position with Home Depot during the nearly three years he was separated from employment. However, except for the position he applied for with Millburn Public Schools in which the appellant submits an email from Millburn Public Schools, the appellant does not provide any further details about any of the other positions he applied for, such as the dates he submitted his applications or, except for Home Depot, the names of the employers he submitted applications to. The appellant had an obligation to seek substitute employment in good faith and could have sought employment in any of a number of fields to which he may be suited. Simply stated, applying for “approximately six different head custodian positions” and for a position with Home Depot in nearly three years does not constitute a reasonable effort to secure employment. See In the Matter of Manuel Oliveira, (CSC, decided January 14, 2009) (The Commission found that the petitioner's application for four positions in five years was not a reasonable effort of mitigation); In the Matter of Donald Hicks (MSB, decided December 20, 2006) (The Board found an appellant who only presented an affidavit of mitigation containing the names of five potential employers had not demonstrated that he made sufficient efforts to mitigate his damages). The Commission notes that an individual is not required to obtain employment while attempting to mitigate damages, but merely required to make a good faith effort to seek employment. See, In the Matter of Robert Jordan (MSB, decided June 11, 2008). The totality of the record in this matter clearly indicates that the appellant did not do so. Accordingly, the Commission finds that the appellant failed to make reasonable efforts to find suitable employment.

Finally, as noted above, the appellant’s CAMPS records do not indicate that the appellant returned to work. Therefore, the appointing authority is ordered update the appellant's CAMPS record accordingly.

ORDER

Therefore, it is ordered that the appellant’s request for backpay is denied. It is further ordered that the Newark School District immediately update William Able’s CAMPS record as described in this decision. If the appointing authority does not adhere to the 30-day timeframe for proper recording, it may be subject to fines up to a maximum of $10,000. See N.J.S.A. 11A:10-3 and N.J.A.C. 4A:10-2.1,

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.