James Bartos, CSC Docket No. 2021-177

BackgroundThe appeal of James Bartos, Highway Operations Technician 1, Department of Transportation, resignation not in good standing, effective April 13, 2020, on charges, was heard by Administrative Law Judge Julio C. Morejon (ALJ), who rendered his initial decision on May 22, 2023. 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, including a thorough review of the exceptions and reply, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of July 19, 2023, did not adopt the ALJ’s recommendation to reverse the resignation not in good standing. Rather, the Commission upheld the resignation not in good standing.

The appellant was resigned not in good standing based on allegations that he abandoned his position after failing to report after being advised to do so for five business days. See N.J.A.C. 4A:2-6.2(b). In his initial decision, the ALJ recommended reversing the resignation not in good standing. In this regard, the ALJ found that the matter turned on what the effective date of the resignation, stating:

Administrative Law JudgeThe issue then becomes, what is the “effective date” that the NJDOT can utilize as the date which it can deem Bartos to have “resigned not in good standing’? I CONCLUDE that the record reveals that the effective date should have been April 16, 2020, as it was the date communicated to Bartos by the Commissioner, and moreover, it is the date that the NJDOT recognized in the specifications of charges in the

PNDA and FNDA. Shapiro’s own communications with Bartos provides dates that are inconsistent with and in conflict with the April 13, 2020, selected by Shapiro for the effective dates. Thus, I CONCLUDE the

AnalysisNJDOT has not shown by a preponderance of the credible evidence that it has sustained the charges in the FNDA.

As the ALJ indicated that the appellant was authorized to receive Workers’ Compensation Benefits as of April 15, 2023, he therefore, could not be separated.

The Commission disagrees with the ALJ’s analysis of the facts presented. Specifically, the Commission finds that the ALJ’s determination that the effective date of the resignation not in good standing was April 16, 2023, is in error. Rather, the resignation not in good standing should have been considered effective, at the latest, on April 14, 2020.! As such, there would be no meritorious reason to find that the appellant had not abandoned his position under N.J.A.C. 4A:2-6.2(b).

N.J.A.C.4A:2-6.2(b), provides, in pertinent part, that “any employee who is absent from duty for five or more consecutive business days without the approval of his or her superior shall be considered to have abandoned his or her position and shall be recorded as a resignation not in good standing. Approval of the absence shall not be unreasonably denied” (emphasis added). The Commission notes the usage of the word “shall” in the above rule.

Administrative Law JudgeIn his initial decision, the ALJ found the following:

On April 7, 2020, Kujtim Ismailovski (Tim), Assistant Crew

Forman at NJDOT, testified that he called Bartos at 7:45am, and left him a voicemail to inform Bartos that he was to report in for work at the yard (R-10). Tim stated that Bartos called him back at 12:45pm, and informed Tim that he would not be coming in because he was concerned about contracting Covid-19. Tim testified that he explained to Bartos that he would need a “doctor’s note” if he was not coming to work. (R- 10). Following his telephone call with Bartos, Tim emailed Christopher

AnalysisFeinthel to report the contents of his telephone conversation with

Bartos. Id.

Vannozzi and Janice Nelson (Nelson), Deputy director of

NJDOT’s Human Resources Department, testified that on April 7, 2020, they spoke with Bartos and that they explained to him that all NJDOT employees were operating under Reactionary Mode, and that there was no mechanism by which he could remain out of work indefinitely due to his fear of contracting the Covid-19 virus, and future absences would require medical documentation. On April 7, 2020, Vannozzi and Nelson reported via email to Michele A. Shapiro (Shapiro), (footnote omitted) who was the Director of the NJDOT’s Division of Human Resources regarding their communications with Bartos (R-11). Shapiro was the designated NJDOT Covid “lead person” for the State of New Jersey during the initial Covid State of Emergency.

1 This is giving the appellant the benefit of the overnight letter mailed by Shapiro. Clearly, the April 13, 2020, date could also be supported given that he was advised by his superior on that date.

On said date, Shapiro prepared a letter to Bartos, which was mailed to him by overnight mail (R-13). Bartos did not respond to the letter... .

What the ALJ ignores in this matter is that the five-day threshold begins once the employee is advised of being absent without authorization. In this case, at the latest, the appellant knew from his superior, on April 7, 2020, that his continued absence was unauthorized without medical documentation. Moreover, none of the other communications from any of the appointing authority representatives, from his direct supervisor through the Commissioner, indicated that any of his absences from April 7, 2023, beyond, were approved, unless he produced appropriate medical documentation covering those absences. Nor did the specifications in the Preliminary Notice of Disciplinary Action, as it indicated that he could have extended his leave to April 14, 2020, if he provided medical documentation to cover the days he was out from April 6, 2020, to that date. No such documentation was ever provided. In this matter, the medical documentation provided would only be considered valid beginning on April 15, 2020, the date he began receiving Workers’ Compensation benefits for a medical condition unrelated to the reasons for his failure to return on April 6, 2020. Accordingly, given the above, the five consecutive business days, for the purposes of N.-/.A.C.4A:2-6.2(b) would end on April 14, 2020. Given that conclusion, there is no basis to dismiss the charge that the appellant abandoned his position under N..J.A.C.4A:2-6,.2(b). Moreover, as the appointing authority gave the appellant multiple opportunities to present valid documentation for his absences from April 7, 2020 to April 14, 2020, which he did not do, it cannot be concluded that it acted unreasonably in not authorizing the absences and resigning him not in good standing pursuant to N..J.A.C.4A:2-6.2(b).

ORDER

The Civil Service Commission finds that the action of the appointing authority in resigning the appellant not in good standing was justified. Accordingly, it upholds that action and dismisses the appeal of James Bartos.

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