Ana Castillo, CSC Docket No. 2020-577

BackgroundThe appeal of Ana Castillo, Fire Fighter, Passaic City, Department of Public Safety, six working day suspension, on charges, was heard by Administrative Law Judge JoAnn LaSala Candido (ALJ), who rendered her initial decision on July 7, 2023. Exceptions were filed on behalf of both parties and a reply to exceptions was filed on behalf of 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 reply filed by the parties, the Civil Service Commission (Commission), at its meeting on August 23, 2023, adopted the ALJ’s Findings of Fact and Conclusions and her recommendation to reverse the six working day suspension.

As mentioned above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds them unpersuasive in all respects. The appointing authority's exceptions argue that the ALJ did not consider other misconduct charges and the appellant’s exceptions argue that the ALJ should have also found the other employee involved in the altercation committed “statutory sexual harassment” under the New Jersey Law Against Discrimination (LAD). The Commission rejects these assertions.

Administrative Law JudgeThe ALJ found that, based on her assessment of the incident and the appellant’s actions, that the appellant was not the aggressor and only responded with profanities after being subjected to same. Ultimately, the ALJ found that:

Although petitioner did engage in this verbal altercation with

AnalysisGomez, her behavior does not rise to the level of misconduct deserving of discipline. Her culpability is mitigated by the fact that she was not the aggressor in this argument with Gomez. Gomez admitted that petitioner did not address him directly, that he advanced on her first, and that he called her “a piece of shit.” Feeling threatened, she then reciprocated with profanities.

Accordingly, while the ALJ did not explicitly list all of the charges that were proffered, her ultimate findings clearly support that none of the appellant’s actions were violative of any charges sufficient to support disciplinary action. After its de novo review, the Commission agrees.

Regarding the appellant’s exceptions, as the conduct of the other employee is not the subject of the disciplinary appeal, it would be wholly inappropriate to make a finding as to that employee’s conduct under the LAD. Moreover, in this case, even if such a finding was appropriate, it would be unnecessary to reverse the charges against the appellant as the ALJ’s other findings in that regard provide sufficient basis to do so. If the appellant believes she was subject to discrimination or retaliation under the LAD, she would be required to pursue that claim in the proper forum.

Since the six working day suspension has been reversed, the appellant is entitled to six working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. She is also entitled to reasonable counsel fees pursuant to N.J.A.C. 4A:2- 2.12.

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, Docket No. A-5581-01T2F (App. Div. Feb. 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning counsel fees are finally resolved.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was not justified and reverses that action. The Commission further orders that the appellant be granted six working days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced as provided for in N.J.A.C. 4A:2-2.10(d)3. The Commission also orders reasonable counsel fees pursuant to N.d.A.C. 4A:2-2.12(a). Proof of income earned, and an affidavit in support of réasonable counsel fees shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

Pursuant to N.J.A.C. 4A:2-2.12(b), the parties shall make a good faith effort to resolve any dispute as to the amount of counsel fees.

The parties must inform the Commission, in writing, if there is any dispute as to counsel fees 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.