Daniela Garcia, CSC Docket No. 2020-548

———— eee

BackgroundThe appeal of Daniela Garcia, a Police Officer with the City of Paterson (Paterson), of her removal effective August 15, 2019, on charges, was heard by Administrative Law Judge Kimberly A. Moss (ALJ), who rendered her initial decision on January 7, 2020. Exceptions and replies to exceptions were filed on behalf of both parties.

AnalysisHaving considered the record and the ALJ's initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on February 26, 2020, did not adopt the ALJ’s recommendation to modify the removal to a 120 working day suspension. Rather, the Commission modified the penalty to a five working day suspension.

DISCUSSION

Paterson removed the appellant on charges of conduct unbecoming a public employee and untruthfulness. Specifically, it alleged that the appellant, while out on sick leave, attended promotional test preparation classes without authorization. | It also alleged that the appellant was untruthful regarding a doctor’s note. Upon the appellant’s appeal, the matter was transmitted to the Office of Administrative Law for a hearing as a contested case.

Based on the testimonial and documentary evidence presented, the ALJ set forth in her initial decision that the appellant sustained a concussion in the course of duty on May 27, 2017. On June 5, 2017, she went to Immedicenter, through

Workers’ Compensation, and was advised to stay out of work. She returned to full duty on September 15, 2017. On March 29, 2018, the appellant informed Paterson that she was pregnant. She was given a note by Dr. Jorge Antonio Viera stating that she should not return to work until she saw an obstetrician-gynecologist (OB- GYN). On April 19, 2018, the appellant saw Dr. Consetta Cheatam, an OB-GYN. Dr. Cheatam wrote a note stating that the appellant was unable to work. Dr. Cheatam was sent a questionnaire by Internal Affairs to determine what activities the appellant could and could not do. Dr. Cheatam returned the questionnaire stating that the appellant could not do the following: regular-duty assignments; monitoring security cameras; sitting at a desk and performing clerical duties; operating a vehicle in non-emergency situations; operating a computer; handling evidence and property dispatch assignments; and writing teleservice incident reports. The only thing she could do was answer the phone. The appellant was placed on paid sick leave May 8, 2018.

Administrative Law JudgeThe ALJ stated that Paterson did not have a written policy for pregnant officers. Paterson treated pregnancy-related leave as sick time. The sick-time policy in Paterson was that the officer using sick time cannot leave the house or engage in any activity. The officer, while on sick leave, must call the main desk every day. If the officer has to leave home the officer must call the main desk and report the reason for leaving. If an officer is out injured, rather than sick, they do not have to call in to the main desk when they leave their home. Paterson maintains a sick blotter. When an officer is out sick and the officer calls in to let Paterson know that he or she is leaving the house, the date of the call, the officer’s name, and the reason for leaving is entered in the sick blotter. The appellant was out on pregnancy-related sick leave beginning in March 2018. She called the main desk March 31, 2018 and April 1, 2018, while out sick, to say she was leaving her home to go food shopping; April 18, 2018 to say she was leaving her home to do errands; and April 19, 2018 to say that she was going to the doctor. The appellant signed up for ESPOS promotional test preparation classes in January 2018. The classes started in June 2018. The course was four hours per day and cost $2,500. The instructors taught for one hour and 30 minutes, followed by a break and continued teaching. The ESPOS course was intense and stressful. Officers could walk out of the course. The appellant attended the course on the following days: June 5, 2018, June 6, 2018, June 20, 2018, June 26, 2018, June 27, 2018 and July 10, 2019. The appellant was on sick leave on all of the days that she attended the course. Lillian Sanchez and Phillip Calicchio, Police Officers, saw the appellant at the ESPOS course. Sanchez reported this information to her supervisor, and Calicchio wrote a contemporaneous report in that regard. The appellant did not call the main desk to let Paterson know that she would not be home. She did not request to be allowed to attend the ESPOS course while she was on sick leave, nor did she state that she wanted or needed an accommodation to attend.

The ALJ stated that on June 21, 2018, the appellant was evaluated by Immedicenter. At that time, she stated that she could not look at a computer screen because it triggered migraines and she had to lie down or walk around every 15 minutes. Immedicenter determined that the appellant could perform assignments with restrictions, perform clerical duties seated, and handle property and evidence, but her OB-GYN’s opinion should be considered. The appellant went to Dr. Edward Kugler, her new OB-GYN, on June 22, 2018, and he recommended she undergo a neurological consultation. The appellant had a neurological evaluation by Dr. Kenneth Kutner on July 12, 2018. Dr. Kutner determined that the appellant could do all of the duties of a Police Officer except patrol. Paterson required the appellant to have a psychological fitness for duty examination. The appellant saw Dr. Lewis Scholesser for the psychological fitness for duty examination on July 31, 2018. He determined that she did not have any psychological conditions and was fit for duty. The appellant was contacted by Paterson and told to return to work on August 8, 2018, which she did. The appellant met with Christopher Benevento, Police Sergeant. She showed him the restrictions questionnaire of June 21, 2018 from Immedicenter. The appellant was given the option of working in the communication room or the new radio room. The new radio room was under construction. Ceiling tiles were missing, and wires were exposed. She was given a desk and chair in the new radio room. No one else was assigned to the new radio room. The appellant went to work on August 8, 2018 in the new radio room. She experienced sneezing fits and abdominal pain. She asked Benevento if she could leave early, and he agreed. The appellant saw Dr. Kugler on August 9, 2019. She showed him the restrictions from the Immedicenter from the June 21, 2018 questionnaire. She needed a note from him regarding restrictions. Norma Kugler, Dr. Kugler’s wife and office manager, gave the appellant a handwritten note regarding the restrictions. The appellant wanted a typed note on letterhead. She provided Norma Kugler with the June 21, 2018 letter from Immedicenter and wrote an additional list of items that she could and could not do.

The ALJ stated that on the appellant's third day back to work, Benevento told her to go into his supervisor's office because Troy Oswald, Police Chief, was going to have a meeting in the new radio room. The appellant had previously been told that no one was allowed in the supervisor’s room. She explained to Benevento that she was already in his supervisor’s office because she believed that the new radio room was unsanitary. She was told to write a report and that she would be charged with insubordination. Benevento told her to work in the new radio room or leave. The appellant began to experience severe abdominal pains and went to the hospital. The appellant was kept out of work for a few days. When she returned to work, she was assigned to work in the break room.

The ALJ stated that on August 20, 2018, the appellant picked up the doctor's note from Dr. Kugler’s office. Norma Kugler typed the note on office letterhead based on what was on the questionnaire and the letter supplied by the appellant stating that the appellant should avoid stressful and loud situations, that she should stand up and walk every 15 minutes, and that she could do evidence and property-related work and clerical duties. Norma Kugler showed the August 20, 2018 restrictions letter to Dr. Kugler before she signed it with his authorized signature. Dr. Kugler stood by the letter. Anthony DeGiglio, Police Sergeant, called Norma Kugler regarding the restrictions letter. Norma Kugler told him that she had back up for the restrictions. She also stated that she typed the information that the appellant gave her. The appellant was put on sick leave due to imminent birth in October 2018. She returned to work in April 2019. She was served with her Preliminary Notice of Disciplinary Action in May 2019. Paterson stated that the delay in issuing the notice was due to not wanting the appellant to have additional stress when she was giving birth. The appellant responded to phone calls and emails from Paterson during her sick leave.

The ALJ determined that the appellant had engaged in conduct unbecoming a public employee for her attendance at the ESPOS classes without following Paterson’s sick-time policy. However, the ALJ determined that the appellant had not engaged in conduct unbecoming a public employee with respect to the letter from Dr. Kugler’s office dated August 20, 2018. There was no dispute that the questionnaire filled out by Immedicenter was done at Immedicenter by Ke Yan Tran, a physician’s assistant. The document that she presented to the Kuglers was not a fraudulent document. There was no testimony that the appellant demanded that Norma Kugler type the letter word-for-word from the questionnaire, but she did want the letter to be typed and on letterhead. Norma Kugler showed the document to Dr. Kugler before putting his signature on it, and Dr. Kugler stood by the letter. The ALJ thus determined that the appellant did not lie or mislead her doctor. As to the penalty, the ALJ noted that there was no evidence or testimony that the appellant received any prior discipline and found that a 120 working day suspension was appropriate for her violation of the sick-time policy.

AnalysisIn its exceptions, Paterson maintains that a penalty of removal was warranted in this case in that the appellant knew she was obligated to notify Paterson and affirmatively failed to do so, disrupting good order. The appellant was aware of the sick-time policy and flaunted it six times.

In her exceptions and reply to exceptions, the appellant highlights that both Sanchez and Calicchio saw the appellant in attendance at the classes; contacted Paterson about the appellant’s attendance; and confirmed that her attendance at the class while on leave for her pregnancy violated the sick-time policy. The appellant maintains that Paterson, as such, was aware of her alleged misconduct at the onset of the supposed violation and decided not to address it, but instead allow the alleged violation to continue. The appellant points out that Oswald testified that if the appellant requested to attend the classes, Paterson would have likely allowed it. The appellant highlights that per Paterson’s policies, those on injury leave were not required to report that they left their home, while those on sick leave were required to report any time they had left their home. The appellant argues that Paterson, considering her pregnancy to be an “illness,” failed to accommodate her pregnancy as required by the New Jersey Law Against Discrimination (LAD) and inappropriately decided to carry her on sick leave instead of injury leave. In addition, the appellant maintains that no penalty is warranted for her alleged violation. However, in her view, if the Commission deems some penalty to be warranted, a penalty considerably less than 120 working days would be more appropriate given the circumstances and pursuant to the concept of progressive discipline as she has no prior discipline.

In its reply to exceptions, Paterson agrees that pregnancy is not itself an “illness” requiring sick leave, though the appellant’s pregnancy did result in some medical conditions that required her to utilize sick leave as attested to by her doctor. In Paterson’s view, this is not an issue where the appellant was working and seeking an accommodation. It notes that according to the appellant and her doctor, she was unable to work and required medical leave. Paterson contends that her argument as to the need to accommodate thus fails because it ignores the fact that the appellant was out on sick leave while she was pregnant; the critical fact is that she was out on sick leave regardless of whether the medical condition requiring the leave was related to pregnancy or something else. Simply put, according to Paterson, it did as it was required to do by law — treat employees on sick leave the same regardless of the medical reason for the underlying leave.

Paterson points out that its sick-time policy defines “Sick” as “[d]isabling physical or psychological conditions, ailments and diseases that do not arise from police duties which incapacitate the officer from performing his/her duties.” In this case, the appellant submitted medical documentation that she suffered from medical conditions that prevented her from working and required her to be on sick leave. To the contrary, “Injured off duty” is defined as:

[t]raumatic conditions and physical injuries that have been determined to have occurred while off duty, and not during the course of a police action, which incapacitate the officer from performing his/her duties.

Paterson maintains that the appellant offered no evidence that she met the definition of “Injured,” and she in fact sought and received sick leave. There can be no doubt, according to Paterson, that the appellant’s medical leave fell within the policy’s definition of sick leave and was treated in accordance with its consistent policy relating to sick leave; it was clearly not a traumatic condition or physical injury. Paterson argues that nothing in the record contradicted the testimony of its witnesses that time off due to pregnancy-related medical conditions was treated as sick time, just like any other medical condition that prevents an employee from working. Given the definitions in the policy, that was the only possible way that time off for medical issues due to pregnancy could be recorded. Paterson notes that its policy distinguishes simply between employees who are sick and those who are injured. It acknowledges that the LAD requires that the employer not treat pregnant employees with medical issues differently than other employees who are out on sick leave due to other conditions and maintains that is exactly how it operated in this case. Paterson emphasizes that all employees who report off sick, regardless of the reason, are required to call in if they are leaving their place of confinement.

Paterson maintains that although the appellant argues that she was somehow denied an “accommodation” by being subject to the call-in requirement, that argument is meritless. Paterson emphasizes that although the LAD under N.J.S.A. 10:5-12(s) requires an employer of a woman affected by pregnancy to “make available to the employee reasonable accommodation in the workplace,” the appellant here did not request accommodations in the workplace. Rather, during the relevant time period, the appellant had submitted medical documentation indicating she was not able to work and sought and received approval for sick leave. This request was granted and the appellant was not “in the workplace” when the actions resulting in the disciplinary charges occurred. The “accommodation” the appellant argues for now, a release from the call-in requirement applied to every employee out on sick leave, has nothing to do with accommodating her disability. Paterson maintains that she was simply required, as any other employee on sick leave would be, to call in and notify it when she was leaving her home while on leave. Paterson notes that she had done so already and had never requested that she be excused from that requirement.

Upon its review, the Commission agrees with the ALJ’s determination of the charges. In this particular case, it was appropriate for the appellant to have been subject to the call-in requirements for employees out sick, per Paterson’s policy. As Paterson indicates, its policy defines “Sick” and “Injured” differently. The appellant has not persuasively explained how her pregnancy-related medical conditions could have fallen under the definition of “Injured” rather than “Sick,” nor has she pointed to any specific prohibition on designating leave for pregnancy-related medical conditions as sick leave. Moreover, the call-in requirement applied to all employees out sick, irrespective of the underlying medical condition at issue. In addition, the Commission does not agree with the appellant’s contention that Paterson improperly denied her an accommodation. As persuasively argued by Paterson, the LAD provision pertaining to pregnancy-related accommodations refers to accommodations in the workplace and the appellant was not in the workplace during the relevant timeframe. Rather, she was out of work on leave and subject to a mere call-in requirement unrelated to accommodating her pregnancy at work. Moreover, the appellant had previously called in while out sick and did not advise Paterson that she was unable to do so. While the Commission has determined that the appellant’s conduct in this case was in violation of its policy, Paterson may nevertheless wish to revisit or revise its sick leave policy, especially as it pertains to pregnancy-type leaves.

In determining the proper penalty, the Commission’s review is de novo. In addition to its consideration of 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). In determining the propriety of the penalty, several factors must be considered, including the nature of the 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. Moreover, 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 vu. 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). In this case, the Commission finds that, while the appellant did violate the sick-time policy, the penalty of removal is very disproportionate to the offense. Additionally, a further modification from the ALJ’s recommended penalty is warranted since the appellant had no prior discipline and her infraction could have been even further minimized had Paterson acted promptly after being informed by its employees in the classes that the appellant was in attendance. Accordingly, the Commission finds a five working day suspension to be the appropriate penalty here.

Since the penalty has been modified, the appellant is entitled to be reinstated with back pay, benefits and seniority pursuant to N.J.A.C. 4A:2-2.10, following the five working day suspension. However, the appellant is not entitled to counsel fees. Pursuant to N.dJ.A.C. 4A:2-2,12(a), an award of counsel fees is appropriate 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 any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No. A-1489- 02T2 (App. Div. Mar. 18, 2004); In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In this case, the Commission upheld the charge of conduct unbecoming a public employee and only modified the penalty. Thus, while the penalty has been reduced, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12(a), 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 Paterson. However, in light of the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, Docket No. A-5581-01T2F (App. Div. February 26, 2003), the Commission's decision will not become final until any outstanding issues concerning back pay are finally resolved. In the interim, as the court stated in Phillips, supra, if it has not already done so, upon receipt of this decision, Paterson shall immediately reinstate the appellant to her position.

ORDER

The Commission finds that Paterson's action in removing Daniela Garcia was not justified. Therefore, the Commission modifies the penalty to a five working day suspension. The Commission further orders that the appellant be granted back pay, benefits and seniority for the period following her five working day suspension to the date of actual reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A:2-2.10. Proof of income earned and an affidavit of mitigation shall be submitted by or on behalf of the appellant to Paterson within 30 days of issuance of this decision.

Pursuant to N.J.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay dispute.

Counsel fees are denied pursuant to N.JA.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 the 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 should be pursued in the Superior Court of New Jersey, Appellate Division.