MARKITA SPELLMAN, CSC Docket No. 2020-627, 2020-628

BackgroundThe appeals of Markita Spellman, Institutional Attendant, Atlantic County, Department of Human Services, 45 working day suspension and removal effective August 15, 2019, on charges, was heard by Administrative Law Judge Tama B. Hughes who rendered her initial decision on February 19, 2021. No exceptions were filed.

AnalysisHaving considered the record and the Administrative Law Judge’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of March 24, 2021, accepted and adopted the Findings of Fact as contained in the attached Administrative Law Judge’s initial decision and her recommendation to uphold the 45 working day suspension. However, the Commission did not uphold the recommendation to uphold the removal. Rather, the Commission imposed a 60 working day suspension.

DISCUSSION

For both disciplinary matters, the appellant was charged chronic or excessive absenteeism or lateness. For the second matter, she was also charged with neglect of duty. The initial action was for repeated unexcused absences from work between October 21, 2018 and May 4, 2019. For that infraction, the appointing authority imposed a 45 working day suspension. The second action was for 14 unexcused absences between May 5, 2019 and July 19, 2019 as well as several hours of unexcused lateness of leaving work early.

Administrative Law JudgeIn her initial decision, the ALJ upheld the charges and the disciplinary penalties imposed. After its de novo review of the record, the Commission agrees with the upholding of all the charges as well as the ALJ’s recommendation to uphold the 45 working day suspension. However, the Commission does not agree that removal is warranted for the second disciplinary action. Rather, the Commission imposed a 60 working day suspension.

AnalysisIn determining the proper penalty, the Commission’s review is also 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 assessing the penalty in relation to the employee’s conduct, it is important to emphasize that the nature of the offense must be balanced against mitigating circumstances, including any prior disciplinary history. 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).

The record in this matter indicates that appellant had accrued six prior disciplines in the four years prior to these matters, all for similar infractions, with the last infraction carrying a 25 working day suspension. Accordingly, given this history, the imposition of the 45 working day suspension in this matter was warranted, especially given that the discipline was for her absences over a nearly six-month period. However, there are reasons in the record to modify to the second disciplinary action for removal to a lesser penalty. First, the second disciplinary action is for continued attendance infractions for the two months immediately following the misconduct underlying the 45 working day suspension. As such, while it was warranted for the appointing authority to seek further discipline for such continued infractions, to impose removal after only an additional two months of infractions is heavy-handed. Further, in this case, the record indicates that the appellant had extreme personal difficulties during the relevant time periods. While these difficulties do not wholly absolve her of her absences from work, they are sufficient reason, in this particular matter, to impose a lesser penalty.! Accordingly, the Commission finds that the appropriate penalty in this matter is a 60 working day suspension. The Commission notes that it in no way is minimizing the appellant’s infractions and emphasizes that that any future similar infractions would warrant imposition of major discipline up to and including removal from employment.

1 See also, N.fS.A. 11A:2-6a.

Since the removal has been modified, the appellant is entitled to back pay, benefits and seniority 60 working days from the original date of her removal to the actual date of his reinstatement. See N.J.A.C. 4A:2-2.10. However, the appellant is not entitled to counsel fees. Pursuant to N.<J.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 charges against the appellant and imposed major discipline. Therefore, 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 the appointing authority. In light of the Appellate Division’s decision in Dolores Phillips v. Depariment of Corrections, Docket No. A-5581-01T2F (App. Div. February 26, 2003), the Commission’s decision regarding the removal will not become final until any outstanding issues concerning back pay are finally resolved. However, under no circumstances should the appellant’s reinstatement be delayed pending any dispute as to the amount of back pay.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant for 45 working days was justified. The Commission therefore affirms that action. This is the final administrative determination in that matter. Any further review of that matter should be pursued in a judicial forum.

The Commission further finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies the removal to a 60 working suspension. Additionally, the Commission orders that the appellant be granted back pay, benefits and seniority as specified above. 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 the appointing authority within 30 days of issuance of this decision. Pursuant to N.eJ.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 any dispute as to the amount of back pay.

Counsel fees are denied pursuant to N.J.A.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 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 as pertaining to the removal 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.