DENISE CAMPBELL-OWENS, CSC Docket No. 2021-1338

BackgroundThe appeal of Denise Campbell-Owens, Human Services Assistant. New Jersey Veterans Memorial Home — Vineland, Department of Military and Veterans Affairs, removal, effective December 10, 2020, on charges, was heard by Administrative Law Judge Catherine A. Tuohy (ALJ), who rendered her initial decision on February 20. 2024. Exceptions were filed on behalf of the appellant and a reply was filed on hehalf 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, the Civil Service Commission (Commission). at its meeting on March 20, 2024, adopted the ALJ's Findings of Facts and Conclusions and her recommendation to uphold the removal.

Upon its de novo review of the ALuv’s initial decision as well as the entire record. including the exceptions filed by the appellant and the reply, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially hased on her assessment of the credibility of the testimony of the witnesses. In this regard the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings .. . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at G59 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N..J.S.A, 52:14B-10(c): Cavaliert u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, there is nothing in the record of the appellant’s exceptions to demonstrate that the ALJ’s credibility determinations, or her findings and conclusions hased on those determinations, were arbitrary, capricious or unreasonable. Accordingly, the Commission finds nothing in the record to question those determinations or the findings and conclusions made therefrom.

The only other issue in this matter is the proper penalty to be imposed. 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.-/. 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 Nid. A.R. 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 ineluding 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 disciphnary 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 the initial decision, while the ALJ indicated that the appellant's disciplinary history “was stipulated into evidence,” she did not provide details. She also indicated that the removal was in accordance with the appointing authority's disciplinary policy as a second infraction for a fighting or creating a disturbance in the workplace under that policy “requires removal.” Initially, the Commission notes that its review of the penalty is de novo, and while it can be guided by, it is not bound by the appointing authority’s penalty schedule in determining the proper penalty. See [n the Matter of Gregory McDaniel, Docket No. A-5583-02T2 (App. Div. May 24, 2004); In the Matter of Leonard Wilson (MSB, decided April 6, 2005); In the Matter of Patricia Everingham (MSB, decided March 13, 2003); In the Matter of George Roskilly (MSB. decided November 20, 2002). Regardless, the Commission agrees that removal is warranted, notwithstanding the appellant’s argument in her exceptions that the infraction was de minimis. A review of the appellant’s disciplinary history in her Jess than five years with the appointing authority indicates that in January 2019. she received a 20 working day suspension for, among other things, fighting or creating a disturbance in the workplace. Given this history, coupled with the misconduct displayed in this matter, and the fact that the appellant was not a long-term employee, the Commission finds the penalty of removal 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 appeal of Denise Campbell-Owens.

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