Caristina Nunez, CSC Docket No. 2021-1024

BackgroundThe appeal of Caristina Nunez, Clerk 1, Bilingual in Spanish and English, Trenton, Department of Housing as Economic Development, removal, effective December 22, 2020, on charges was heard by Administrative Law Judge Jeffrey N. Rabin (ALJ), who rendered his initial decision on June 30, 2023. Exceptions were filed on behalf of the appellant.

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, the Civil Service Commission (Commission), at its meeting on August 23, 2023, adopted the ALJ’s Findings of Facts and Conclusions and his recommendation to uphold the removal.

As indicated above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds most do not require extensive comment. Nevertheless, the Commission makes the following comments. In her exceptions, the appellant argues that the ALJ’s substituted his findings of fact for the stipulated findings of fact, and that he relied on his substituted facts in finding that removal was appropriate. The Commission rejects this contention. Even assuming, arguendo, the accuracy of the argument, the Commission’s review of the penalty is de novo. 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 NwJAR. 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).

Administrative Law JudgeIn his initial decision, the ALJ found the appellant’s infractions egregious, and upheld her removal without regard to progressive discipline. He stated:

Appellant took improper advantage of a hybrid Covid work schedule to collect public salary while she was on vacation in the

AnalysisDominican Republic. She misrepresented that she was at home and misrepresented that she had been performing her work duties. She committed a theft of salary by submitting incorrect timesheets. She risked exposing her coworkers to Covid-19 by travelling to a high-risk country without first advising her supervisors, then did not cooperate with her employer’s attempts to conduct contact-tracing.

The Commission agrees that the totality of the misconduct in this matter is sufficiently egregious to support the penalty of removal. Suffice it to say, the appellant’s actions in this matter fall well short of what is expected of a public employee and the penalty imposed 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 Caristina Nunez.

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