Paulette Garrison, CSC Docket No. 2019-2352, 2019-2353

BackgroundThe appeals of Paulette Garrison, Senior Human Services Technician, Ancora Psychiatric Hospital, Department of Health, two removals, effective February 15, 2019, on charges, were heard by Administrative Law Judge Jeffrey N. Rabin (ALJ), who rendered his initial decision on April 20, 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 ALuJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on May 24, 2023, adopted the AL.J’s Findings of Facts and Conclusion and his recommendation to uphold the removals.

Upon its de novo review of the ALJ’s thorough and well-reasoned initial decision as well as the entire record, including the exceptions filed by the appellant, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on his assessment of the credibility of the witnesses. In this regard, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings . . . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appellant are not persuasive in demonstrating that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. In this regard, the ALd concluded that the appellant “[w]as not a credible witness and very little weight can be given to her testimony.” The ALJ made numerous detailed determinations based on his assessment of the credible evidence and presented logical and reasonable explanations for each. Upon its review, the Commission finds nothing in the record or the appellant’s exceptions to question those determinations or the findings and conclusions made therefrom.

The Commission’s review of the penalty is de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Commission also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.-J. 500 (1962). In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant’s offense, the concept of progressive discipline, and the employee’s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d (CSV) 463. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (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). Moreover, in In In the Matter of Anthony Stallworth, 208 N.J. 182, 199 (2011), the Supreme Court stated that:

.. the contextual nature of the prior offenses is a relevant consideration when analyzing an employee’s disciplinary record ... As already noted, progressive discipline is a flexible concept, and its application depends on the totality and remoteness of the individual instances of misconduct that compromise the disciplinary record. The number and remoteness or timing of the offenses and their comparative seriousness, together with an analysis of the present conduct, must inform the evaluation of the appropriate penalty. Even where the present conduct alone would not warrant termination, a history of discipline in the reasonably recent past may justify a greater penalty; the number, timing, or seriousness of the previous offenses may make termination the appropriate penalty.

However, under the tenets of progressive discipline, removal is appropriate.

In this matter, the appellant’s disciplinary history evidences numerous disciplinary actions between 2015 and 2018 for tardiness and absenteeism. The appellant negotiated settlements for most of these infractions and received five 15 working day suspensions, one 10 working day suspension, one five working day suspension, and one two working day suspension. The current matters involve an additional 13 incidents of tardiness and absenteeism. The Commission finds that when determining the proper penalty while utilizing progressive discipline, an employee’s entire history may be considered. Utilizing the tenets of progressive discipline, removal is warranted. Given the above, this penalty is neither disproportionate to the offenses nor shocking to the conscious.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore upholds that action and dismisses the appeals of Paulette Garrison.

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