Eric Geisler, CSC Docket No. 2022-1325

BackgroundThe appeal of Eric Geisler, Custodial Worker, Low Pressure License, Lodi, Board or Education, removal, effective October 15, 2021, on charges, were heard by Administrative Law Judge Nanci G. Stokes (ALJ), who rendered her initial decision on June 23, 2023. 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 exceptions, the Civil Service Commission (Commission), at its meeting on August 2, 2023, adopted the ALJ’s Findings of Facts and Conclusions of the ALJ but modified the penalty to a 90 working day suspension and mandatory anger management training.

Upon its de nove review of the ALJ’s thorough initial decision as well as the entire record, including the exceptions filed by the appellant, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on her assessment of the credibility of the witnesses. In this regard, the ALJ found the appointing authority’s witnesses credible. 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 659 (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); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appellant are not persuasive in demonstrating that the ALJ's credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable.

Similar to its assessment of the charges, the Commission’s review of the penalty is also 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) 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 In re_ Herrmann, 192 N.J. 19 (2007); 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 an employee does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust.

Clearly, the appellant’s egregious misconduct in this matter warrants a serious sanction. As indicated by the ALJ:

Here, Geisler has no prior disciplinary record ... However,

Geisler's behavior on October 12, 2021, was egregious and bizarre.

Geisler’s entry into two classrooms during instructional time without permission and addressing students and staff in a hostile and raised tone was improper. His demands for a volleyball that clearly belonged to the school were confusing. Geisler’s pursuit of “his” ball throughout the school was similarly strange. While Geisler seeks to minimize, his carrying the grabber as “work-related,” banging it in his hand was aggressive, even if he did not directly threaten a staff member or student. Indeed, I found that his actions posed a genuine safety concern to Lodi’s staff and students... .

Based on the above, the ALJ upheld the removal. The Commission, however, while not minimizing the appellant’s misconduct in any way, finds that a lesser penalty is appropriate. In this regard, a significant mitigating factor in this matter is that the appellant was a 27-year employee with a previously unblemished disciplinary record. While the Commission wholeheartedly agrees that the appellant’s actions in this matter were “egregious and bizarre,” it cannot find that his actions, given the appellant’s prior history, are so egregious as to warrant removal. Accordingly, the Commission finds that a 90 working day suspension is sufficient to impress upon the appellant the seriousness of his misconduct and serve as a warning that any future misconduct will likely result in his removal from employment. However, the Commission also is concerned with the nature of the misconduct. As such, it further directs that the appellant, upon his reinstatement, be required to attend a mandatory anger management course selected by the appointing authority.

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 90 working days after the first date of separation until the date of actual reinstatement. However, he is not entitled to counsel fees. N.d.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.d.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, 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 90 working day suspension. The Commission further orders that the appellant, upon his reinstatement, be required to attend a mandatory anger management course selected by the appointing authority.

The Commission orders that the appellant be granted back pay, benefits, and seniority from 90 working days after the first date of separation to the actual date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.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.d.A.C. 4A:2-2.10, the parties shall 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 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.

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