Betsy Ruggiero Camden County, CSC Docket No. 2019-1807

BackgroundThe appeal of Betsy Ruggiero, Keyboarding Clerk 3, Camden County, Department of Finance, removal effective January 3, 2019, on charges, was heard by Administrative Law Judge Carl V. Buck, HI (ALJ), who rendered his initial decision on July 29, 2020. Exceptions and replies to exceptions were filed on behalf of the appellant and the appointing authority.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and replies, the Civil Service Commission (Commission), at its meeting on September 2, 2020, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ's initial decision. However, the Commission does not adopt the recommendation to modify the removal to a six-month suspension. Rather, the Commission imposes a 30 working day suspension.!

1 Further, the Commission rejects the ALJ’s recommendation regarding a “last chance agreement.” The Commission does not have the authority to impose such a contractual term on the parties. Moreover, when reviewed by the Commission, penalties in disciplinary matters must be based on the incident in question, as well as aggravating or mitigating factors present and should not be solely based on any such agreement. In this regard, the Commission cannot determine a disciplinary penalty of a future action, which, in essence, would occur in this matter if such an agreement was sanctioned. It is further noted that, while the Commission is not strictly bound by the terms set forth in such agreements, a last chance agreement can be used by the Commission as a significant factor to be considered, along with the appellant's prior disciplinary history, when determining the appropriate penalty in an appeal. Last chance agreements are construed in favor of appointing authorities because to do otherwise would discourage their use by making their terms meaningless. See Watson v. City of East Orange, 175 NJ. 442 (2003) (The Supreme Court found an employee’s The facts of this matter need not be repeated as they are clearly laid out in the initial decision. This is a relatively clear-cut case where the appellant has been found guilty of conduct unbecoming a public employee and other sufficient cause for admittedly using a racially inappropriate term in the workplace.

In her voluminous exceptions and response, the appellant initially contends that she should not have been immediately suspended at the time of the incident. She further contends that the term did not adversely impact the workplace and was not initially reported by co-workers. She also argues that she did not violate the County’s affirmative action policy. Finally, she contends that the proposed reduction in penalty of a six-month suspension is not in line with the tenets of progressive discipline.

In its exceptions and response, the appointing authority argues that the ALJ’s proposed reduction from removal to a six-month suspension is not warranted as the appellant’s misconduct was egregious and thus, progressive discipline need not be followed. In this regard, it argues that the utterance of such a racially offensive term cannot be tolerated and is worthy of removal from employment.

In this matter, after its de novo review of the entire record, the Commission agrees with the ALJ’s determinations regarding the charges. It is clear that the appellant uttered the offensive term in the workplace and that such conduct cannot be countenanced. Regarding the exceptions filed by the appellant, the Commission notes that most do not merit discussion as they do not persuasively demonstrate that the ALJ’s determinations were arbitrary, capricious or not based on the credible evidence in the record.2, However, the Commission is compelled to discuss the penalty imposed in this matter.

In determining the proper penalty, the Commission’s review is also de novo.

In addition to considering the seriousness of the underlying incident in determining the proper penalty, the Commission utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). Although the termination was warranted when that employee did not perform in compliance with a last chance agreement as contemplated by the parties. The Court added that a contrary conclusion would likely chill employers from entering into such agreements to the detriment of future employees). 2 However, the Commission does note that the argument regarding the immediate suspension should have been made to it at the time of the suspension as a petition for interim relief under N.J.A.C. 4A4:2-1.2. No such petition was received by the Commission. Regardless, even if the suspension was not warranted, which in this matter does not appear to be the case given the potential incendiary nature of such language, any procedural deficiencies at the departmental level are generally deemed cured by the granting of a de novo hearing at the Office of Administrative Law. See Ensslin v. Township of North Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994), cert. denied, 142 NJ. 446 (1995); In re Darcy, 114 N.J. Super. 454 (App. Div. 1971). Moreover, the Commission has found in this matter that the appellant's conduct was worthy of major discipline.

Commission applies the concept of progressive discipline in determining the level and propriety of penalties, an individual’s prior disciplinary history may be outweighed if the infraction at issue is of a serious nature. Henry v. Rahway State Prison, 81 N.J. 571, 580 (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). However, where an infraction has not been found to be egregious, the tenets of progressive discipline are generally followed. See In the Matter of Anthony Stallworth, 208 N.J. 182 (2011).

In this case, while the appellant’s infraction is serious, the Commission does not find it worthy of the penalty imposed by the appointing authority, nor does it find that the reduction in penalty recommended by the ALJ is supported. Rather, the Commission finds several factors that warrant a further reduction of the penalty. The facts of this matter demonstrate that, while the appellant did utilize the offensive term, it was in the context of a personal telephone conversation and not directed at any employee, but was rather overheard. Certainly, utilizing the term was inappropriate in the workplace, but the severity of its usage is mitigated by the fact that it was not directed at anyone in the workplace. Further, the appellant was a 15-year employee at the time of the incident. Her prior disciplinary history only consisted of an official written reprimand in 2016, While that discipline was for using inappropriate language in the workplace, it did not include the usage of any racially derogatory language. Of course, the Commission finds that the usage of any inappropriate language in the workplace is unacceptable, but when looking at the current matter in the context of utilizing progressive discipline, the fact that this is the first time the appellant has been found to have used racially offensive language in the workplace is an important distinction. Moreover, the prior discipline only carried a minor penalty and her current infraction does not warrant, under the tenets of progressive discipline, an increase in penalty to removal or a six-month suspension. Accordingly, based on the above, the Commission finds that the appropriate penalty in this matter is a 30 working day suspension. In making this determination, the Commission is in no way minimizing the appellant’s misconduct, and cautions her that future similar infractions may subject her to more severe disciplinary penalties, up to and including removal. Further, this determination is not to be interpreted to mean that the usage of racially inappropriate language in the workplace would not warrant a penalty more severe than administered in this matter. As noted above, the calculation of an appropriate penalty must take many factors into account, including the severity and context of the misconduct, and the employee’s prior history.

As the removal has been modified, the appellant is entitled to mitigated back pay, seniority and benefits pursuant to N.J.A.C. 4A:2-2.10 from 30 working days after her initial date of separation to the date of her actual reinstatement.3 N.J.A.C. 4A:2-2.12(a) provides for the award of counsel fees 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 the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995): In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Commission, the charges were sustained and major discipline has been imposed. Consequently, as appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12, 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, unpublished, 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. However, under no circumstances should the appellant’s reinstatement be delayed based on any dispute regarding back pay.

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 30 working day suspension. The appellant is entitled to mitigated back pay, seniority and benefits pursuant to N.d.A.C. 4A:2-2.10 from 30 working days after her initial date of separation to the date of her actual reinstatement. The amount of back pay awarded is to be reduced and mitigated as per N.d.A.C. 4A:2-2.10. 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. However, under no circumstances should the appellant’s reinstatement be delayed based on any dispute regarding 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 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.

4 The initial date of separation is defined as the first day the appellant was out of work without pay based on her misconduct.