Louis Urcinole DECISION OF THE Department of Public Works, CSC Docket No. 2021-1248

BackgroundThe appeal of Louis Urcinole, Maintenance Repairer, Seaside Heights Borough, Department of Public Works, removal, effective January 29, 2021, on charges, was heard by Administrative Law Judge Judith Lieberman (ALJ), who rendered her initial decision on November 15, 2022. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was 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 and reply, the Civil Service Commission (Commission), at its meeting on December 21, 2022, the Commission adopted the ALJ’s recommendation to modify the removal to a six-month suspension.

As indicated above, the Commission thoroughly reviewed the exceptions and reply filed in this matter. Upon that review, it does not find anything persuasive to overturn the ALJ’s recommendations regarding the charges or the reduction in penalty. While there is some argument regarding the ALJ’s findings as to whether the appellant called the victim in this matter a specific epithet or actually spat on that individual, the ALJ’s findings in that regard was based on her assessment of the credibility of the witnesses, which upon review, the Commission finds were fully articulated and not arbitrary, capricious or unreasonable. Moreover, the ALdJ’s reasons for the recommended reduction in penalty are also reasonable.

Administrative Law JudgeIn her initial decision, regarding the penalty, the ALJ found:

Here, appellant's disciplinary history documents that he was disciplined ten times, between February 3, 2006, and December 3, 2020, prior to the proposed discipline at issue. The infractions and disciplines are summarized as follows:

e February 3, 2006, written warning for refusing to perform a work duty. He was charged with neglect of duty.

Analysise August 20, 2018, written warning for not reporting to work.

¢ September 4, 2018, written warning for not reporting to work.

e November 29, 2018, one-day suspension for failing to follow directions.

e May 7, 2019, one-day suspension for a February 15, 2019, incident involving failure to report an accident involving a garbage truck and a co-worker.

e May 7, 2019, three-day suspension for a February 19, 2019, accident involving a garbage truck and a school bus. He was charged with incompetence.

e May 31, 2019, oral warning for “name calling.”

e July 13, 2020, three-day suspension for absences without available leave time.

e November 2, 2020, three-day suspension for absences without available leave time and not reporting to work.

e December 3, 2020, oral warning for smoking cigars in Borough vehicles.

[R-4.]

Unlike the appellants in the above-cited cases who had unblemished disciplinary histories, appellant has a more involved disciplinary history and all but one of the infractions occurred close in time to the incident at issue here. Only one, however, is similar to the infraction here and it warranted just an oral warning.

It is well established, and should be readily understood, that racial epithets are harmful, damaging, and inappropriate under all circumstances. While appellant claims to understand the damaging impact of racial epithets, his testimony indicated otherwise. He did not indicate an understanding of the words he used while yelling at Aguilar and he did not apologize or appear remorseful. His demeanor at times during the hearing suggested at best, a lack of appreciation of the import of the charges against him. For these reasons, a significant penalty is warranted.

Other considerations, however, militate against removal. Respondent seeks removal based upon a set of facts that it did not fully establish.

While Vaz testified that he believed the charge and proposed penalty were appropriate even if appellant did not call Aguilar a “s**c,” respondent has not proven by a preponderance of the credible evidence that appellant spat at Aguilar or called Perez a “s**c.” Also, the FNDA asserted that appellant used the word “n***er” on “numerous occasions.”

While Edgar asserted that appellant used the word “n***er’ two or three times, he testified about only one incident in which this happened. This does not mean that use of the word one time is insignificant and unworthy of discipline. Discipline is certainly warranted here.

However, respondent has the burden of proof here and it did not prove all of the charges that formed the basis for the proposed removal.

Although appellant’s offense is serious and warrants a significant penalty, I am constrained by the regulation that limits suspensions to six months without pay. N.d.A.C. 4A:2-2.4. Accordingly, because appellant did not prove all of the charges in the FNDA, and the proposed penalty of removal was based upon all of the charges, taken together, and appellant has only one prior discipline for a related infraction I

CONCLUDE that a six-month penalty is appropriate here. I also FIND and CONCLUDE that there is a reasonable basis for ordering that appellant shall also be required to complete an individualized program of training about workplace violence, discrimination and harassment, as well as an individual program of anger-management counseling.

The Commission’s review of the penalty is 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 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 N.J.A.R. 2d (CSV) 4638. 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). Even when a public safety employee does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense occurring in the environment of a correctional facility may, nevertheless warrant the penalty of removal where it compromises the safety and security of the institution, or has the potential to subvert prison order and discipline. See Henry, supra. Moreover, in In In the Matter of Anthony Stallworth, 208 N.J. 182, 199 (2011), the Supreme Court stated that:

... the contextual nature of the prior offenses is a relevant consideration when analyzing an employee's disciplinary record ... As already noted, progressive discipline is a flexible concept, and its application depends on the totality and remoteness of the individual instances of misconduct that compromise the disciplinary record. The number and remoteness or timing of the offenses and their comparative seriousness, together with an analysis of the present conduct, must inform the evaluation of the appropriate penalty. Even where the present conduct alone would not warrant termination, a history of discipline in the reasonably recent past may justify a greater penalty; the number, timing, or seriousness of the previous offenses may make termination the appropriate penalty.

However, under the tenets of progressive discipline, removal is appropriate.

In this matter, the Commission finds that the sustained infractions, by themselves, are not so egregious, in and of themselves, to support removal from employment. While the Commission disagrees with the ALJ’s implication that since the appellant only has one prior similar infraction, that removal would be inappropriate, it agrees that a penalty less than removal is appropriate. When determining a proper penalty while utilizing the tenets of progressive history, an employee’s entire history is considered. Certainly, a history of similar misconduct serves as an aggravating factor, but the lack of significant similar misconduct, may, but does not necessarily, serve as a mitigating factor. In this case, the Commission finds it does not mitigate against the imposition of a severe penalty. Nevertheless, the Commission agrees that a six-month suspension is appropriate. In this regard, it cannot be ignored that, while most of the appellant’s disciplinary history is recent, none of those infractions warranted major discipline.! Further, even assuming, arguendo, that the other proffered charges were sustained, those actions, while serious, are not so egregious as to warrant removal absent the application of progressive discipline. The Commission is satisfied that a six-month suspension, the most severe permitted under Civil Service law and rules should serve as sufficient warning to the appellant that any future infractions will result in his removal from employment. Further, the Commission agrees with the ALJ that the appellant, upon reinstatement, shall undergo and satisfactorily complete workplace violence and discrimination and harassment training, as well as an anger-management program.

Since the removal has been modified, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N..J.A.C. 4A:2-2.10 from six months after the first date of separation until the date of actual reinstatement.? However, he is not entitled to counsel fees. N.7/.A.C. 4A:2-2.12(a) provides for the award of counsel fees 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 the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995): In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Commission, charges were sustained, and major discipline was imposed. Consequently, as appellant has failed to meet the standard set forth at N.J.A.C. 4A:2- 2.12, counsel fees must be denied.

1 In fact, several of those actions do not even constitute formal discipline as defined in Civil Service law and rules.

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 back pay are finally resolved. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his permanent position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies that action to a six-month suspension. The Commission further orders that the appellant be granted back pay, benefits, and seniority from six months after the first date of separation to the actual date of reinstatement. The amount of back pay awarded 1s to be reduced and mitigated as provided for in N.dA.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.J.A.C. 4A:2-2.10, the parties shali 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.J.A.C. 4A:2-2.12.

The Commission further orders that the appellant, upon his reinstatement, shall undergo and satisfactorily complete workplace violence and discrimination and harassment training, as well as an anger-management program.

2 In the ALJ's decision, there is some discussion about a period of time the appellant “waived” back pay. The record is unclear as to exactly what period, if any, the ALJ is referring to. Absent any such actual waiver, the appellant is entitled to back pay pursuant to N./.A.C, 4A:2-2.10 from the first date he was no longer being paid until the date of his actual reinstatement.

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 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.