MIOSHA SOREY, CSC Docket No. 2019-1886

BackgroundThe appeal of Miosha Sorey, a Security Guard with the Newark School District, removal, effective January 7, 2019, on charges, was heard by Administrative Law Judge Andrew M. Baron, who rendered his initial decision on February 13, 2023. Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALJ’s initial decision, including a thorough review of the exceptions and reply, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of March 15, 2023, adopted the recommendation as contained in the attached ALJ’s initial decision.

As indicated above, the Commission thoroughly reviewed the exceptions filed in this matter. The Commission makes the following comments. In her exceptions, the appellant argues that the warnings issued by the appointing authority in 2017/18 and 2018/19 for the appellant’s infractions were, in fact, disciplinary actions. In this regard, she contends that she cannot now be disciplined again for those same infractions. In reviewing the warnings, the Commission agrees that many of the warning letters were disciplinary in nature. Specifically, many of the “warnings” stated that continued misconduct “will result in more harsh disciplinary action being taken ....” Clearly, such letters are not merely non-disciplinary warnings and constitute official written reprimands. The Commission has addressed this matter before with the appointing authority in In the Matter of Victor Onwuzuruike (MSB, decided August 9, 2006) and In the Matter of Billy Grimsley (MSB, decided June 25, 2008) and warned the appointing authority to amend its practice regarding such letters in the future. The Commission has no issue with the appointing authority issuing warning letters. However, these letters must be worded properly to clearly indicate that they are not discipline. Accordingly, the Commission finds that incidents covered in the warning letters up to September 27, 2018, which covered incidents up to August 27, 2018, cannot be considered in the present removal matter as they were already addressed as discipline in the “warning” letters. However, the October 25, 2018, letter to the appellant was not a disciplinary action. This letter addresses additional incidents of tardiness after August 27, 2018, and specifically indicates that the matter is being forwarded for disciplinary action. Therefore, these incidents were properly brought forth in the present matter.

The appellant also argues that the Last Chance Agreement (LCA) was not violated in the instant matter as the discipline was not brought forth within the two- year time frame specified in the agreement. She contends that the agreement was finalized on December 7, 2016, and that the Final Notice of Disciplinary Action (FNDA) was not issued until December 26, 2018. The Commission does not agree with this contention. A review of the LCA it indicates that the appellant is “subject to immediate termination by Respondent for incurring in excess of the following enumerated infractions over the next 24 months after her reinstatement back to duty. .... Therefore, it is clear that the infractions had to occur over the next 24 months and they were not dependent on when discipline was sought. The incidents in question all occurred prior to two years from the appellant’s reinstatement following the finalization of the agreement on December 7, 2016. Accordingly, pursuant to the appellant’s violation of the LCA, she was properly terminated from employment. Regardless, even if the LCA had not been violated, the Commission notes that given the current infractions, as well as the appellant’s prior disciplinary history, which includes a six-month suspension for attendance-related infractions, removal from employment is clearly warranted under the tenets of progressive discipline. This penalty neither shocks the conscious nor is disproportionate to the offense in light of the appellant’s prior history.

Finally, the appellant contends that the ALJ used the wrong standard of review when he found that the “district did not act in an arbitrary and capricious manner.” While the appellant’s argument is technically correct, it is of no moment to the outcome of this matter. Disciplinary appeal hearings at the Office of Administrative Law are de novo. In other words, any underlying proceedings are of no consequence and an ALJ is charged as the Commission’s fact-finder. The ALJ’s role is not to serve as an “appellate” reviewer of an appointing authority’s actions. Rather, the ALJ must determine, based on the evidence entered into the hearing record, whether the appointing authority has established by a preponderance of the evidence that the proffered charges were sustained, and if so, the appropriate penalty to be assessed. In this matter, while the ALJ should not have used the above language, he made numerous factual findings based on the evidence entered into the hearing record before him. More significantly, the Commission’s review of both the charges and the penalty after an ALJ has issued an initial decision is also de novo, subject only to certain limitations (e.g., standards to overturn an ALJ’s credibility determinations, etc.). In that regard, the Commission finds that the ALJ’s findings regarding the evidence in the record clearly establishes that the appellant was guilty of the infractions noted above by a preponderance of the evidence, and that removal was the proper penalty under the circumstances. The ALJ is cautioned that, in the future, not to utilize the above-noted standard of review in any manner for disciplinary appeal cases.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore affirms that action and dismisses the appeals of Miosha Sorey.

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