TONYA HOWARD, CSC Docket No. 2019-1398

BackgroundTonya Howard, a Police Communications Clerk with the City of Newark (Newark), represented by Samuel Wenocur, Esq., requests back pay and benefits in accordance with the attached Civil Service Commission (Commission) decision rendered on April 4, 2018.

By way of background, the appointing authority issued a Final Notice of Disciplinary Action (FNDA) removing the petitioner on charges of violations of the Newark Police Department Rules and Regulations, effective September 22, 2016. Upon her 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 of the record, the Commission modified the removal to a 45 working day suspension. Further, the Commission ordered that the petitioner undergo a pre-reinstatement drug test, noting, that in relevant part, if she passed, she was to be immediately reinstated. The Commission further ordered that the petitioner be granted back pay, benefits and seniority for the period after the imposition of her 45 working day suspension through the actual date of her reinstatement. The record reflects that the petitioner was reinstated on May 27, 2018. However, the parties were unable to agree on the amount of back pay and benefits due, and the petitioner has requested Commission review.

AnalysisIn the instant matter, the petitioner asserts that the parties disagree about whether the 45 working day suspension should start on September 22, 2016, the date of her immediate suspension, or on December 27, 2016, the date on which the FNDA was issued. The petitioner states that the appointing authority considers the effective date of her 45 working day suspension to be December 27, 2016 and that it does not believe she is entitled to back pay for the period between September 22, 2016 and February 28, 2017, particularly as she did not seek interim relief for her immediate suspension. The petitioner argues that her decision not to seek interim relief does not negate her entitlement to back pay outside of her 45 working day suspension.

The petitioner indicates that the appointing authority has remitted to her $1,698.25 for 2017 and $14,335.89 for 2018, based upon its calculation of back pay owed to her. The petitioner asserts that the appointing authority’s back pay calculation in September 2018 included deductions for $7,088 in unemployment benefits! she received between December 2016 and June 2017 and a $20,645 gross disbursement she received from the Public Employment Retirement System (PERS) in September 2017 after she closed her account.

The petitioner also questions how the New Jersey Division of Unemployment Insurance (Division of Unemployment) should be reimbursed for the $11,518 she received in unemployment benefits. Specifically, the petitioner maintains that the unemployment benefits she received should not have been deducted from her overall award of back pay, as the appointing authority has refused to reimburse the Division of Unemployment for that amount. The petitioner, citing Bellamy v. Essex County Hospital Center, 95 N.J.A.R.2d (CSV) 652 (1994), contends that if Newark refuses to remit the $11,518 back to the Division of Unemployment, then it must remit that amount to her so she can reimburse the Division of Unemployment herself.

Additionally, the petitioner contends that the $20,645 disbursement from

PERS should not be deducted from her back pay award. She explains that the appointing authority treated this amount as income for mitigation purposes because, in September 2018, her attorney adviscd the appointing authority that the PERS disbursement was income because it did not have to be repaid. However, she indicates that she subsequently learned that she was required to repay these funds with the reinstatement of her PERS account and she states that she has been repaying PERS through additional paycheck deductions. In support, she submits documentation from PERS dated April 1, 2019, which states that the money she withdrew from her account had to be repaid.

1 The petitioner, in an affidavit of mitigation that she furnished to the appointing authority, dated August 1, 2018, stated that she received $7,088 in unemployment benefits between December 31, 2016 and June 26, 2017. On appeal, the petitioner submits an updated affidavit of mitigation, dated February 4, 2019, in which she states that the correct figure for the unemployment benefits she received during this period was $11,518. She also provides supporting documentation from the Department of Labor and Workforce Development.

The petitioner also maintains that the appointing authority is required to provide her with sick, vacation and other benefit days for the entire length of her wrongful termination. The petitioner acknowledges that she utilized her full allotment of vacation and sick days prior to the December 27, 2016 FNDA and that she received a prorated amount of vacation and sick days for 2018 upon her return to work on May 27, 2018. However, she states that she has not received any payment or other benefits to compensate her for any other benefits days owed to her in 2017 or 2018. Rather, she asserts that the payments she has received only partially compensate her for the salary she would have earned during this period of time.

The petitioner submits an affidavit of mitigation and an updated affidavit of mitigation, wherein she states, in relevant part, that she received unemployment benefits in the amount of $11,518, searched online for work and received a total of $1,512 in Supplemental Nutrition Assistance Program (SNAP) benefits between April 2017 and June 2017.

In response, the appointing authority, represented by France Casseus, Assistant Corporation Counsel, asserts that the 45 working day suspension should begin on December 27, 2016. In this regard, it asserts that Howard’s immediate suspension on September 22, 2016 was necessary to maintain the safety, health and effective direction of public services after she tested positive for marijuana. The appointing authority argues that because the petitioner did not seek interim relief for the immediate suspension,” there is no basis to provide her with back pay between September 22, 2016 and December 26, 2016.

The appointing authority states that it remitted $1,698.25 and $14,335.89 for 2017 and 2018, respectively. It asserts that these amounts represent the total back pay the petitioner is entitled to. In this regard, it states that the petitioner's annual salary was $39,712.50 in 2016, $41,112.50 in 2017 and $42,712.50 in 2018.

The appointing authority contends that the $20,645 that the petitioner received from PERS should be counted as income for mitigation purposes because it was money she received which it asserts did not have to be repaid. In support, it submits an email dated September 13, 2018 from the petitioner's attorney indicating that the money did not have to be repaid. The appointing authority also states that the $504 per month the petitioner received in SNAP benefits from April 2017 to May 2018 and the unemployment insurance benefits she received were counted as mitigation income and deducted from the sum it paid to the petitioner. It maintains that there is no basis for the Commission to address the issue of repayment of unemployment benefits. In this regard, it contends that the appropriate venue for such an action would be Superior Court, and it notes that

* The appointing authority also maintains that even if she had requested interim relief, she would not have prevailed.

there is no evidence that the Division of Unemployment has sought repayment from the petitioner for her unemployment benefits.

The appointing authority states that the petitioner used all of her sick and vacation time prior to her suspension in 2016. With respect to vacation and sick leave time for 2017, the appointing authority states that the back amount the petitioner received also served to compensate her for the vacation and sick leave time she would have otherwise received for that year. It also indicates that she received a prorated allotment of vacation and sick leave days for 2018 in August 2018, based upon her May 27, 2018 return to work date.!

CONCLUSION

Initially, the petitioner asserts that the 45 working day suspension should have started on September 22, 2016, the date she was immediately suspended from work. However, the appointing authority asserts that she is not entitled to back pay for any part of 2016 because she did not challenge her immediate suspension from September 22, 2016 to December 26, 2016 and her 45 working day suspension did not take effect until December 27, 2016. The Commission finds that the effective date of the petitioner's working day suspension was September 22, 2016, In this regard, the Commission emphasizes that an immediate suspension is not a final disciplinary action. It is merely a mechanism to remove an employee from the workplace if the appointing authority can meet the strict standards found in NJAC. 44:2-2.5(a)1. Accordingly, the Commission finds that with its modification of the petitioner's removal to a 45 working day suspension, her suspension is deemed to have been in effect between September 22, 2016 and November 23, 2016. Accordingly, her entitlement to back pay would begin on November 24, 2016 and continue until her reinstatement on May 28, 2018.

Pursuant to NJAC. 44:2-2.10(d), an award of back pay shall include unpaid salary, including regular wages, overlap shift time, increments and across-the-board adjustments. Benefits shall include vacation and sick leave credits and additional amounts expended by the employee to maintain health insurance coverage during the period of improper suspension or removal. Additionally, N.J.A.C. 4A:2-2.10(d)1 states that back pay shall not include items such as overtime pay, holiday premium pay and retroactive clothing, uniform or equipment allowances for periods in which the employee was not working. N./.A.C. 4A:2-2.10(d)3 provides, in pertinent part, where a removal has been reversed or modified, the award of back pay shall be reduced by the amount of money that was actually earned during the period of separation, including any unemployment insurance benefits received. NAC. 4A:2-2.10(d)4v provides that the burden of proof shall be on the employer to establish that the employee has not made reasonable efforts to find suitable

! The appointing authority states that the petitioner is entitled to 12 vacation and 15 sick leave days per year.

employment. N.J.A.C. 4A:2-2,10(d) provides that funds which must be repaid by the employee shall not be considered when calculating back pay.

In the instant matter, the appointing authority submits that it has paid the petitioner $16,034.14, which represents the full amount of back pay owed to her, including $1,698.25 for 2017 and $14,335.89 for the period between January 1, 2018 and May 26, 2018. The appointing authority states that the petitioner's gross salary would have been $39,712.50 in 2016, $41,112.50 in 2017 and $42,712.50 in 2018. It contends that any back pay award to the petitioner for 2017 must be reduced by the unemployment insurance benefits and SNAP benefits she received.

The Commission finds that the unemployment benefits the petitioner received should be deducted from her back pay award. In this regard, for the purposes of back pay due to a Civil Service employee, the Commission and its predecessor, the Merit System Board, have always maintained that unemployment benefits are considered as income during a period of separation for purposes of mitigation. See In the Matter of John Raube, Senior Correction Officer, Department of Corrections, Docket No. A-2208-02T1 (App. Div. March 30, 200-4); In the Matter of Judith Leeds (MSB, decided May 19, 1998); See also In the Matter of James Nance (MSB, decided October 1, 2003); In the Matter of William Carroll (MSB, decided November 8, 2001); In the Matter of Carl Underwood (MSB, decided July 10, 2001), The Commission notes that the petitioner states in her updated affidavit of mitigation that she received $11,518 in unemployment benefits between December 31, 2016 and June 26, 2017. Accordingly, the appropriate deduction for unemployment benefits during this period is $11,518. As to the petitioner's concerns about potentially having to reimburse the State for the unemployment benefits she received, if at some future date the petitioner is notified that she is required to make such a repayment, she may petition the Commission to address that issue.

As to the SNAP benefits the petitioner received, it is noted that the petitioner states in her affidavit of mitigation that she collected $1,512 in benefits between April 2017 and June 2017 and that the appointing authority indicates that it deducted $504 per month for SNAP benefits from the back pay award for the period between April 2017 and May 2018 and it argues that her back pay award should be reduced by this amount. However, the Commission finds no basis to reduce her back pay award by this amount, as it has previously held that SNAP benefits should not be counted as income for this purpose. See In the Matter of Gilberto Reyes (CSC, decided July 13, 2017) (Food stamps received should not be deducted from back pay as such benefits cannot be considered income since they are only usable for certain specific purposes).

The parties also dispute whether the petitioner's cash disbursement from PERS in September 2017 is mitigation income which should be deducted from her

G income. The petitioner has submitted documentation which indicates that she has been repaying PERS for the $20,645 disbursement she received. Accordingly, because she is obligated to repay this sum, it would be improper to treat it as income for mitigation purposes.

Therefore, based upon the foregoing, the petitioner should have received $3,804 in gross pay ($152.16 per diem rate multiplied by 25 work days) for the period between November 24, 2016 and December 31, 2016; $41,112.50 for 2017; and $17,183.25 ($163.65 per diem rate multiplied by 105 working days) for 2018. The $62,099.75 should be reduced by the $11,515 in unemployment benefits for a total of $50,581.75. Here, given that the appointing authority has issued checks to the petitioner representing $16,034.14 in gross wages, the additional balance due to the petitioner is $34,547.61.

As to her request for vacation leave for 2017, vacation leave not taken in a given year can only be carried over to the following year. See N.J.S.<A. 11A4:6-3(e) and N.f.A.C. 44:6-1.2(f); See also In the Matter of Donald H, Nelsen, Jr., Docket No. A-2878-03T3 (App. Div. February 4, 2005); In the Matter of John Raube, Senior Correction Officer, Department of Corrections, Docket No. A-2208-02T1 (App. Div. March 30, 2004). Since the accumulation of vacation leave is statutory, the Commission is unable to award her the vacation leave she would have earned in 9017. As to her entitlement to vacation leave for 2018, the petitioner should have received 12 vacation days.

With regard to the amount of sick leave due to the petitioner, it is noted that she used her full allotment of sick days prior to her removal and that she received 8.75 sick days in August 2018, based upon the proration of her 15 days of annual leave entitlement for the period between May 27, 2018 and December 31, 2018. However, she should have received any unused sick days up to and following her removal, since sick leave can accumulate from year to year withoul limit. See N.J.S.A. 11A:6-5 and N.SJA.C. 4A:6-1.3(f); See also, In the Matter of John Raube, Senior Correction Officer, Department of Corrections, Docket No. A-2208-02T1 (App. Div. March 30, 2004). As such, she should have been credited with her full entitlement of sick days for 2017 and for 2018. However, pursuant to NSA.C. 44:6-1.1(a)l and N.JWA.C. 4A4:6-1.3(c), the appointing authority must prorate her sick leave entitlement for 2016 to account for her 45 working day suspension, effective September 22, 2016.

As to any other benefit days, the Commission has no authorization to review benefits provided by the local jurisdiction and not specifically awarded by Title 11A of the New Jersey Statutes Annotated. Sev In the Matter of James Nance (ISB, decided October 1, 2003).

ORDER

Therefore, it is ordered that the petitioner be awarded back pay in the amount of $34,547.61 and grant her vacation leave and sick leave as noted above.

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