Muhammad Gonzalez, CSC Docket No. 2021-200

BackgroundThe appeal of Muhammad Gonzalez, Hospital Attendant, Hudson County, Department of Health and Human Services, removal effective July 15, 2020, on charges, was heard by Administrative Law Judge Susana E. Guerrero (ALJ), who rendered her initial decision on September 28, 2021. Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf 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 submissions of the parties, as well as its own review of the video of the incident, the Civil Service Commission (Commission), at its meeting of December 15, 2021, modified the removal to a three-month suspension.

DISCUSSION

This matter stems from allegations that the appellant, a Hospital Attendant, removed money from a patient’s pocket without authorization and only returned it after repeatedly being requested to do so. Upon the appellant’s appeal, the matter was transmitted to the Office of Administrative Law as a contested case.

Administrative Law JudgeIn her initial decision, the ALJ found that the appellant did, in fact, take money from the client’s pocket, essentially basing this on the video evidence presented in the record. Based on her determination that such an infraction was egregious in nature, the ALJ recommended upholding the appellant’s removal from employment.

AnalysisIn his exceptions, the appellant argues, tnter alia, that the video of the incident does not establish that he took money from the patient’s pocket as was indicated on the Final Notice of Disciplinary Action (FNDA). In this regard, he argues that there is no corroborating testimony to establish that he did, indeed, take the money from the patient’s pocket.

In reply, the appointing authority argues that the ALJ’s review of the credible facts in the record support the charges and the penalty of removal.

Upon its de novo review of the record, the Commission agrees with the ALJ that the appellant did, indeed, place his hand in the client’s pocket and that such action was unauthorized. However, upon its own review of the video, it cannot agree that it was established that the appellant took money as alleged from the patient. Accordingly, as the specifications in the FNDA indicate that the appellant “reached into his [the patient’s] pocket,” and the record shows that such action was unauthorized, the Commission upholds the charges on that basis only.

While the upheld infraction is serious, it does not support the penalty of removal. In determining the proper penalty, the Commission’s review 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 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).

In this case, the appellant’s actions are clearly serious, especially in a psychiatric setting. Unauthorized contact with patients can have catastrophic consequences. Nevertheless, the appellant’s actions in this case are not so egregious as to bypass progressive discipline. The record indicates that the appellant possesses a prior 45 working day suspension. Accordingly, the Commission finds that a more severe suspension is warranted in this matter. Therefore, the Commission finds that a three-month suspension is the proper penalty. This penalty should serve as a warning to the appellant that any future infractions could lead to a more severe disciplinary sanction, including removal! from employment.

As the appellant’s removal has been modified, he is entitled to mitigated back pay, seniority and benefits three months from his separation from employment until his actual reinstatement. See N./.A.C. 4A:2-2.10. However, he is not entitled to counsel fees. N.ed.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 the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12, 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. However, in light of the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, unpublished, 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. However, under no circumstances should the appeilant’s reinstatement be delayed due to any back pay dispute.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modified the removal to a three-month suspension. The appellant is entitled to backpay, benefits and seniority as provided for in N.-/.A.C. 4A:2-2.10. The amount of back pay awarded is to be reduced and mitigated to the extent of any income earned, or could have been earned, by the appellant during this period. 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.

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 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.