Sunderdat Sookram, CSC Docket No. 2020-149

BackgroundSunderdat Sookram, a former Carpenter with the Newark Housing Authority, represented by Eldridge Hawkins, Esq., requests relief from his separation from employment commencing June 26, 2014.1

By way of background, in a letter dated June 19, 2019, the petitioner’s attorney advised this agency that the New Jersey Supreme Court denied the petitioner’s request for certification of the judgment of the Superior Court of New Jersey, Appellate Division, in Sookram Sunderdat v. Samuel M. Manigault, et al., Docket No. A-0925-17T3 (App. Div., decided November 28, 2018).2 The Appellate Division had affirmed the July 21, 2017 order of the Superior Court of New Jersey, Law Division, Essex County, to transfer the petitioner’s claims to the Civil Service Commission (Commission). The order indicated that the petitioner was to exhaust his administrative remedies in order “to develop a fully informed factual record prior to requesting relief in Superior Court.” In that regard, on June 16, 2016, the petitioner filed a complaint in the Law Division regarding issues arising from his June 26, 2014 separation from his position with the Newark Housing Authority. On April 28, 2017, an amended complaint was filed.

1 The petitioner was appointed as a Carpenter with the Newark Housing Authority effective December 31, 1990. Agency records do not indicate any change of title. In that regard, it is noted that Newark Housing Authority withdrew from the Civil Service system on May 27, 1997. Employees with permanent status in career service titles retain all career service rights so long as they remain in the title. See N.J.A.C. 4A:3-1.1(c). 2 The petitioner signs his name as Sunderdat Sookram although the Appellate Division case is captioned Sookram Sunderdat.

In the underlying lawsuit filed with the Law Division, the petitioner alleged that the Newark Housing Authority deprived him of his due process under the Civil Service Act by failing to provide him notice, appoint an independent hearing officer, and issue a final determination after he was terminated on June 26, 2014. Thereafter, on May 26, 2017, the appointing authority filed a motion to transfer the matter to the Commission. As noted above, the motion was granted. The petitioner requested reconsideration, which was denied on September 29, 2017. After conclusion of the Supreme Court proceedings, the petitioner’s attorney sent the June 19, 2019 letter to the Commission. In response, agency staff informed the parties that the Commission did not receive the July 21, 2017 transfer order upon its issuance. Nonetheless, as the Newark Housing Authority’s motion to transfer the matter to the Commission had been granted and no further challenge of the order could be made as a result of the denied petition for certification, the parties were advised that the petitioner’s request would be presented to the Commission as a request for interim relief. The parties were afforded the opportunity to supplement the record.

Initially, it is noted that the record indicates that the petitioner received a Notice of Immediate Suspension on or about June 26, 2014 for conduct unbecoming a public employee and theft of time and/or materials. Specifically, as set forth in that document, it stated that information had been presented which indicated that the petitioner misappropriated Newark Housing Authority goods for the benefit of another entity and had performed services for the entity during work hours in exchange for the payment of money. Thereafter, the petitioner was issued a Preliminary Notice of Disciplinary Action (PNDA) on October 16, 2014, which indicated that the petitioner’s removal from employment may be sought. A departmental hearing then commenced. The last date of hearing was on December 3, 2014, but a Final Notice of Disciplinary Action (FNDA) was not issued. Agency records do not reveal that an appeal was filed by the petitioner at the time of his immediate suspension on or about June 26, 2014.

Approximately three weeks after the departmental hearing, the Newark Housing Authority submitted a layoff plan to this agency, dated December 23, 2014, targeting the petitioner’s position for layoff effective on or about March 9, 2015. The Division of Agency Services (Agency Services) approved the layoff plan by letter dated January 29, 2015. Agency Services advised the appointing authority that Individual Notices of Layoff must be personally served on employees whose position had been targeted for abolishment and copies were to be sent to this agency. In February 2015, Agency Services staff contacted the Newark Housing Authority by email and reminded it that the Individual Notices of Layoff that were served on the targeted employees needed to be submitted to this agency in order for it to prepare title rights determinations for impacted employees. Although the appointing authority responded that it would send this information, Agency Services never received copies of or proof of service that the notices were served on the targeted employees. However, the petitioner and other employees, through counsel for the Skills Trade Association,3 timely appealed the good faith of the layoff. Upon receipt of the appeals, staff from this agency’s Division of Appeals and Regulatory Affairs (DARA) attempted to confirm with Agency Services that the layoff was finalized on multiple occasions in 2015 and 2016 so that the appellants’ good faith layoff appeals could be transmitted to the Office of Administrative Law (OAL) for a hearing. As of May 6, 2016, Agency Services advised that there had been no contact with the Newark Housing Authority since January 2015. As such, the layoff was not finalized in accordance with N.J.A.C. 4A:8-1.1, et seq. On May 6, 2016, DARA staff contacted the appointing authority and asked if specific employees, including the petitioner, were laid off as their personnel records in the County and Municipal Personnel System (CAMPS) still indicated that they were active employees. In an email dated May 6, 2016, the appointing authority responded that the petitioner was laid off effective April 16, 2015. Upon receipt of this information, on May 6, 2016, the good faith layoff appeals4 were transmitted to the OAL for a hearing, and the matters are still pending at the OAL. Given the foregoing information, DARA staff requested that the petitioner provide an explanation as to the reason he did not file an appeal of his disciplinary separation of June 26, 2014.

Appellant's argumentIn his request, the petitioner explains that he did not file an appeal with the Commission “as he had a right to file the NJLAD Lawsuit” in Superior Court. Furthermore, the petitioner argues that there is a clear likelihood of success on the merits of the within petition because “he had been told he won but no [FNDA] was ever issued.” The FNDA was supposed to have dismissed the charges against him. Additionally, the petitioner indicates that there is no danger of immediate or irreparable harm “other than his continued lack of employment and income” which is “making it extremely difficult for [him] to survive.” The petitioner maintains that the public interest “as declared” in Civil Service law and rules and in Hennessey v. Winslow Township, 183 N.J. 593 (2005), requires that this matter be heard by a jury which has thus far been denied. He contends that the Commission should comply with Hennessey, supra, and statutory provisions to reject the jurisdiction that the courts conferred upon it. Furthermore, the petitioner seeks a declaration that the appointing authority did not timely issue a final disposition of the charges and that he “did not appeal within a reasonable time of the failure of [the appointing authority] to make a final decision. Consequently, there is no jurisdiction for the [Commission] to receive an unreasonably timed Notice of Appeal of an unwritten no decision.”

BackgroundAlternatively, if the Commission takes jurisdiction of this matter, the petitioner urges the Commission to find bad faith in the appointing authority’s failure to render a decision “for over a year” and to “present a record” regarding his separation for the Commission to render a decision. In that regard, he emphasizes that the appointing authority failed to issue a timely FNDA, which deprived him of due process. Additionally, he alleges that such failure was motivated by “malice and disregard” for Civil Service law and rules. Therefore, the appellant requests that he be found “not guilty of all allegations” against him and that he be reinstated with back pay and benefits and awarded counsel fees. In support of his request, the petitioner submits a certification, which includes a narrative of what occurred in 2014. In that regard, the petitioner states that he received the October 16, 2014 PNDA on either October 24, 2014 or October 25, 2014 with no attached specifications and the departmental hearing was held in November 2014 and December 2014. Furthermore, he contests that he was laid off from his position or that he filed an appeal of that layoff. Rather, he states that the disciplinary case was “supposedly dismissed against” him and he was “simply waiting for the Official” FNDA, which was never issued. Thus, he filed a lawsuit in the Law Division and does not understand why this instant request is limited to the period between June 26, 2014 through April 15, 2015. In addition, the petitioner maintains that his suspension, commencing on June 26, 2014, was unlawful and contrary to Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) as he was suspended without the opportunity to be heard or knowledge of the circumstances of what he allegedly did wrong. He also contends that the PNDA was not timely served. It is noted that the petitioner submits his Appellate Division brief, as well as the appointing authority’s opposition brief.

3 The record also reflects that this counsel was the petitioner’s attorney during the departmental proceedings of the served PNDA. 4 The docket number of the petitioner’s good faith layoff appeal is 2015-3589.

In response, the appointing authority, represented by Michael Nacchio, Esq., emphasizes that the petitioner never filed an appeal with the Commission regarding the disciplinary action. Thus, absent a timely appeal, a request for interim relief must be rejected since relief may only be provided “upon filing of an appeal” pursuant to N.J.A.C. 4A:2-1.2(a). In that regard, the appointing authority acknowledges that no FNDA was issued. However, statutory provisions specifically indicate that if the appointing authority fails to provide a final written determination, then the appeal must be filed within a reasonable time. The appointing authority maintains that the petitioner should have filed an appeal of his “April 16, 2015 termination” within a reasonable time but readily admits that he did not do so. It notes that while DARA advised that agency record reveals that the petitioner filed a timely appeal challenging the good faith of the layoff, it did not receive any notification that the petitioner filed “any appeal in 2015 or at any other time.” The appointing authority also states that the petitioner did not return to work after his “June 2014 suspension” and had not been paid since that time. Further, the appointing authority points out that the petitioner knew he was terminated since he filed a lawsuit claiming wrongful termination.

Additionally, even if the petitioner filed a timely appeal, the appointing authority argues that his request for interim relief does not meet the regulatory standard. In that regard, it submits that factual disputes preclude a finding that the petitioner is clearly likely to succeed on the merits of his claims. It indicates that the petitioner submits “a self-serving certification” stating that he was not guilty; however, the appointing authority presents a certification from Samuel Manigault, Newark Housing Authority Chief of Staff and former Director of Employee and Labor Relations in 2014, stating contrary information. Manigault indicates that it was determined that the petitioner had stolen two snow blowers and performed work during business hours for a non-Newark Housing Authority entity. Manigault also verifies that disciplinary hearings were held through December 2014. He states that, although a written decision was not issued at the conclusion of the hearings, the appointing authority “terminated” the petitioner’s employment in April 2015. It is noted that Manigault does not refer to that termination as a layoff. Furthermore, the appointing authority argues that there is no danger of immediate or irreparable harm, as it has been approximately five years since the petitioner’s suspension and four years since his employment was terminated. Any harm would be considered monetary and can be adequately addressed. On the contrary, substantial financial injury would occur to the Newark Housing Authority and to the public should interim relief be granted to the petitioner. As such, the appointing authority maintains that interim relief must be denied. Lastly, the appointing authority notes that should the Commission not dismiss the petitioner’s claims as untimely, the Commission should then grant a hearing to develop a factual record.5

CONCLUSION

RuleN.J.A.C. 4A:2-1.2(a) states that upon the filing of an appeal, a party to the appeal may petition the Commission for a stay or other relief pending final decision of the matter. N.J.A.C. 4A:2-2.5(e) provides that appeals concerning violations of N.J.A.C. 4A:2-2.5 (opportunity for hearing before the appointing authority) may be presented to the Commission through a petition for interim relief.

Additionally, N.J.S.A. 11A:2-14 provides that within 20 days of the departmental hearing, or such additional time as agreed to by the parties, the appointing authority shall make a final disposition of the charges against the employee and furnish the employee with written notice. See also N.J.A.C. 4A:2- 2.6(d). N.J.S.A. 11A:2-15 indicates, in relevant part, that an appeal from a removal action shall be made in writing to the Commission no later than 20 days from receipt of the final written determination of the appointing authority. If the appointing authority fails to provide the employee with a final written determination, an appeal may be made directly to the Commission within a reasonable time. See also N.J.A.C. 4A:2-2.8(b). If a timely appeal is made, a hearing may be granted at the OAL. See N.J.A.C. 4A:2-2.9(b).

Analysis5 It is noted that the record in this matter closed on August 26, 2019. However, on September 16, 2019, a response to the appointing authority’s reply was received. In that correspondence, which does not indicate that a copy was sent to the appointing authority, the petitioner maintains that Manigault’s certification is “pure hearsay” as there was no FNDA and that the appointing authority misses the point that he can choose to file a civil complaint in the Law Division in lieu of appealing to the Commission.

RuleFurthermore, N.J.A.C. 4A:8-1.6(a) provides that:

No permanent employee or employee serving in a working test period shall be separated or demoted as a result of a layoff action without having been served by the appointing authority, at least 45 days prior to the action, with a written notice personally, unless the employee is on a leave of absence or otherwise unavailable, in which case by certified mail. If service is by certified mail, the 45 days shall be counted from the first date of notice by the United States Postal

AnalysisService to addressee. A notice shall also be conspicuously posted in all affected facilities of the layoff unit. For positions that are not targeted by a layoff but may be impacted by employees exercising their lateral or demotional rights, a general written notice must be served by the appointing authority personally, unless the employee is on a leave of absence or otherwise unavailable, in which case by certified mail, at least 45 days prior to the action. A copy of the notice served on employees shall be provided to a representative of the Civil

Service Commission and affected negotiations representatives.

[Emphasis added.] See also, N.J.S.A. 11A:8-1(a).

RuleMoreover, N.J.A.C. 4A:8-1.6(d) indicates that a layoff shall not take place more than 120 days after service of the notice unless an extension of time is granted by the Chairperson or designee for good cause. If a layoff has not taken place within 120 days of service of the notice, and no extension has been granted, new notices must be served at least 45 days prior to the effective date of the layoff. See also, N.J.S.A. 11A:8-1(a). Further, N.J.A.C. 4A:8-2.6(a)1 states that permanent employees and employees in their working test period may file a good faith appeal, based on a claim that the appointing authority laid off or demoted the employee in lieu of layoff for reasons other than economy, efficiency, or other related reasons. Such appeals shall be subject to hearing and final administrative determination by the Commission. Good faith appeals shall be filed within 20 days of receipt of the final notice of status required by N.J.A.C. 4A:8-1.6(f). See N.J.A.C. 4A:8-2.6(b).

AnalysisIn appeals concerning major disciplinary actions, the burden of proof shall be on the appointing authority. See N.J.A.C. 4A:2-1.4(a). In appeals challenging the good faith of a layoff, the burden of proof is on the appellant. See N.J.A.C. 4A:2- 1.4(c) and N.J.A.C. 4A:8-2.6(c).

Initially, it is noted that this matter is being reviewed as a request for interim relief as it may involve a possible violation of N.J.A.C. 4A:2-2.5 and

N.J.A.C. 4A:2-2.6(d). Further, although the petitioner disputes that he filed an appeal of a good faith layoff, counsel for the Skills Trade Association filed on his behalf. Thus, pursuant to N.J.A.C. 4A:2-1.2(a) and N.J.A.C. 4A:2-2.5(e), a petition regarding the issues in this matter may be reviewed by the Commission. Moreover, it is also appropriate to consider this matter as a court transfer. There is no question that the petitioner’s employment and certain issues involved in the Law Division complaint are within the jurisdiction of the Commission. In that regard, although the Newark Housing Authority withdrew from the Civil Service system on May 27, 1997, the petitioner retained his Civil Service title throughout his employment, and thus, retains all career service rights, e.g., the right to file an appeal of removal or challenge the good faith of a layoff. See N.J.A.C. 4A:3-1.1(c), N.J.A.C. 4A:2-2.8(b), and N.J.A.C. 4A:8-2.6(a)1. Furthermore, and most significant, the Appellate Division affirmed the order of the Law Division to transfer this matter to the Commission in order for the petitioner to exhaust his administrative remedies. The Supreme Court denied the petition for certification, and thus, the jurisdiction of the Commission is settled. As such, it is not necessary for the Commission to decide whether the petitioner had a choice to file either an appeal with the Commission or a complaint in the Law Division.

RuleTurning to the issues of the petitioner’s separation from employment, N.J.A.C. 4A:2-1.2(c) provides the following factors for consideration in evaluating petitions for interim relief:

1. Clear likelihood of success on the merits by the petitioner;

Analysis2. Danger of immediate or irreparable harm;

3. Absence of substantial injury to other parties; and

4. The public interest.

In this case, there is no clear likelihood of success on the merits of the petitioner’s case as there are disputes of facts. As set forth above, the Commission’s jurisdiction has been established. Thus, it is not the merits of that argument that will be reviewed. Rather, the ultimate issue to be decided is whether the petitioner should be reinstated to his position of Carpenter with the Newark Housing Authority, and if so, is he entitled to all of the emoluments of that employment. In order to make that determination, the questions to be addressed are whether the petitioner’s separation was a removal or layoff action; whether he timely appealed that action; and what remedy is the most appropriate. In reviewing these issues, a dispute of fact arises as to the first question. The petitioner was served with a Notice of Immediate Suspension and a PNDA seeking his removal; however, no FNDA was ever issued. The petitioner maintains that the charges were to be overturned, but Manigault’s certification suggests a contrary result.

Moreover, the petitioner disputes that he was laid off or that he filed an appeal of that layoff. However, agency records demonstrate that a timely good faith layoff appeal was filed on the petitioner’s behalf. Manigault also does not refer to the April 2015 separation as a layoff, but rather, he indicates that the petitioner’s employment was “terminated” in April 2015. However, the appointing authority submitted a layoff plan, which targeted the petitioner’s position, a mere three weeks after the last date of the departmental hearing in December 2014. The Notices of Layoff and proof of service were not sent to this agency to record the layoff and make appropriate title rights determinations in early 2015. However, on May 6, 2016, DARA staff contacted the appointing authority which confirmed that the petitioner was laid off effective April 16, 2015. Given the timing of the departmental hearing and layoff action, it is unclear if the appointing authority laid off the petitioner as a means to finalize the removal. Therefore, since the written submissions in this matter and agency records conflict as to whether the petitioner’s separation is a removal or layoff action, it is necessary to refer this matter to an Administrative Law Judge (ALJ) at the OAL so that a hearing on this issue may be conducted. See N.J.A.C. 4A:2-1.1(d). The Commission authorizes the ALJ, pursuant to N.J.A.C. 1:1-14.6, to act in its stead to take testimony and make a determination as to whether this matter must be considered a removal or layoff action. In either action, it would be necessary to determine whether disciplinary removal of the petitioner was justified or if a layoff was in good faith.

Regardless of whether this matter is deemed a disciplinary removal or a good faith layoff, the Commission finds that the record is also insufficient to make a determination as to the second question regarding the timeliness of the petitioner’s appeal. It is initially noted that the filing of an appeal in a different forum does not toll the time to file an appeal with the Commission. See In the Matter of Sandra Alexander (MSB, decided March 9, 2005); In the Matter of Richard Vogel (MSB, decided March 9, 1999); In the Matter of Jose Gonzalez (MSB, decided June 23, 1998). Nonetheless, in this case, a timely good faith layoff appeal was filed. Although the petitioner and the appointing authority dispute that an appeal was filed, the petitioner’s union attorney, who was also his attorney in the departmental proceedings, filed an appeal of the layoff on the petitioner’s behalf. The appeal was received in March 2015 prior to the April 2015 layoff. Since it was filed prior to the effective date, there is no dispute that it is a timely layoff appeal pursuant to N.J.A.C. 4A:8-2.6(b). As to major disciplinary actions, N.J.S.A. 11A:2-15 and N.J.A.C. 4A:2-2.8(b) provide that if the appointing authority fails to provide the employee with a final written determination, an appeal may be made directly to the Commission within a reasonable time. Given the lack of a FNDA and the timing of the departmental hearing and the layoff plan in December 2014, the Commission cannot determine that the appeal on the petitioner’s behalf of the good faith of the layoff in March 2015, approximately three months later, operates as the appeal of his termination, and if so, whether it was made within a reasonable time. Regarding the latter, the petitioner’s employment status was not settled in December 2014. The first indication of a final separation appears to have been the layoff that was either going to occur in March or April 2015. Therefore, the

Commission finds that the timeliness of the petitioner’s appeal of his disciplinary removal is unresolved and should also be determined at a hearing at the OAL.

Accordingly, should the ALJ determine that the petitioner’s separation was a timely appealed removal action, a hearing at the OAL shall be conducted to determine whether the charges against the petitioner were sustained and if the penalty imposed was appropriate.6 It is noted that the removal would be effective June 26, 2014, the date the petitioner was immediately suspended. However, if the appeal is found untimely, pursuant to N.J.S.A. 11A:2-15 and N.J.A.C. 4A:2-2.8(b), a hearing cannot be granted. See N.J.A.C. 4A:2-2.9(b). Therefore, if the petitioner is considered removed, whether he timely filed an appeal or not, he could not have been subject to the subsequent layoff action. Thus, his good faith layoff appeal pending before the OAL (CSC Docket No. 2015-3589) would be rendered moot. As to the third question with regard to remedy, the Commission cannot make a determination on the penalty or whether an award of back pay, benefits, seniority or counsel fees is appropriate without the disputed facts being resolved and the recommendation being made by the ALJ concerning either the disciplinary or layoff action. That decision will be made by the Commission when it renders a final administrative determination after reviewing the ALJ’s initial decision.

Therefore, considering the foregoing, disputes of fact exist that preclude a finding of reinstatement of the petitioner at this juncture. As indicated previously, there is not a clear likelihood of success on the merits of his case. Additionally, while the Commission is cognizant of his financial situation, the harm that the petitioner may be suffering while waiting for the outcome of this case is purely financial in nature, and as such, can be remedied by the granting of back pay should he prevail. The public would be harmed if the status quo was disturbed. In that regard, the public interest is best served by not having the petitioner on the job until issues in his case are determined with the benefit of a full plenary hearing where an ALJ may hear live testimony, assess the credibility of witnesses, and weigh all the evidence in the record before making an initial decision. Therefore, although the Commission grants a hearing in this matter, interim relief is denied.

Lastly, the Commission cannot ignore that the 2015 layoff has actually not been formally confirmed. The appointing authority advised in 2016 that a layoff occurred sometime in March or April 2015 arising from the December 23, 2014 layoff plan. However, it did not submit the required proof of service of the Notices of Layoff and the confirmation of layoff of all individuals subject to the December

6 It is noted that procedural deficiencies at the departmental level which are not significantly prejudicial to an appellant are deemed cured through the de novo hearing received at the OAL. See Ensslin v. Township of North Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994), cert. denied, 142 N.J. 446 (1995); In re Darcy, 114 N.J. Super. 454 (App. Div. 1971). No Civil Service law or rule establishes that failure to issue a FNDA to the petitioner dismisses the charges against the him.

23, 2014 layoff plan. Thus, the Commission orders that the appointing authority submit the documents to Agency Services no later than 30 days of issuance of this decision so that the appropriate review and recording of such actions may be conducted. Further, the Commission cannot disregard the appointing authority’s lack of action. It was previously advised that it must follow proper procedures with respect to its remaining Civil Service employees. It was also warned that any future violation may result in the voidance of a personnel action and/or significant fines imposed on the appointing authority. See In the Matter of Robert W. Hartley, Newark Housing Authority (CSC, decided June 20, 2007) (Appointing authority did not submit a layoff plan although action taken against employee was considered a layoff). Accordingly, since the Newark Housing Authority did not comply with Title 11A of the New Jersey Statutes and Title 4A of the New Jersey Administrative Code with regard to the 2015 layoff, it is appropriate that a fine be imposed in the amount of $1,000 to be paid within 30 days of the issuance of this decision. See N.J.S.A. 11A:10-3 and N.J.A.C. 4A:10-1.1.

ORDER

Therefore, the Civil Service Commission orders that interim relief be denied but that Sunderdat Sookram be granted a hearing at the Office of Administrative Law in accordance with this decision. Additionally, the Commission orders the Newark Housing Authority to submit layoff documents to the Division of Agency Services within 30 days of the issuance of this decision in accordance with the decision. The Commission further orders that a fine be assessed against the Newark Housing Authority in the amount of $1,000, pursuant to N.J.S.A. 11A:10-3 and N.J.A.C. 4A:10-1.1, to be remitted within 30 days of the issuance of this decision.

In the event the appointing authority fails to make a good faith effort to fully comply with this order within the 30-day time frame, it is additionally ordered that fines be assessed in the amount of $100 per day, beginning on the 31st first day following the issuance of this order and continuing each day of continued violation, up to a maximum of $10,000. See N.J.S.A. 11A:10-3 and N.J.A.C. 4A:10-1.1. This matter will be referred to the Office of the Attorney General for enforcement and for recovery of fines as assessed herein if full compliance is not effected within the 30 days.