Yessenia Montalvo, CSC Docket No. 2022-1463, 2022-3149

BackgroundThe appeals of Yessenia Montalvo, Clerk 1, Bloomfield, Department of Municipal Court, 90 working day suspension and removal, effective June 1, 2022, on charges were heard by Administrative Law Judge Andrew M. Baron (ALJ), who rendered his consolidated initial decision on October 25, 2024.1 Exceptions and replies were filed on behalf of the parties.

AnalysisHaving considered the record and the attached ALJ’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on April 9, 2025, accepted and adopted the ALJ’s recommendation to uphold the 90 working day suspension. However, the Commission did not adopt the ALJ’s recommendation to modify the removal to a 45 working day suspension. Rather, the Commission reversed the removal.

DISCUSSION

This matter is procedurally complex, as it involves three separate matters: the appellant’s appeals to the Commission of her 90 working day suspension and removal; and her union’s unfair practice challenge to the Public Employment Relations Commission (PERC) that the charges underlying the removal were invalid as they were in violation of the New Jersey Employer-Employee Relations Act (NJEER Act).

! The October 25, 2004, initial decision was pursuant to a remand of the matter from the Public Employment Relations Commission (PERC), which had the predominant interest over this consolidated matter. The original initial decision was issued on March 7, 2024, and is thus, incorporated herein.

At the Office of Administrative Law, the ALJ consolidated all three of these matters. In that regard, it was determined that PERC had the predominant interest over the consolidated removal/NJEER Act challenge. As such, the ALJ’s initial decision on remand was first forwarded to PERC to allow it to make its final decision on the issue as to whether the charges underlying the removal were proffered in violation of the NJEER Act. In his October 25, 2024, initial decision, the ALJ found that appointing authority’s recording policy in question “must stand in its present form, until it is re- negotiated as part of the handbook and contract between the parties.” Additionally, he recommended modifying the removal to a 45 working day suspension.

In its final decision, issued January 30, 2025, PERC considered the ALJ’s initial decision and the exceptions and replies filed. Ultimately, it rejected the ALJ’s above conclusion, rather, finding that the appointing authority’s application of its policy to discipline the appellant after she used her workplace recordings as evidence in her departmental hearing interfered with her exercise of her protected rights in violation of the NJEER Act. As such, PERC found that the ALJ’s modification of the removal to a 45 working day suspension was improper, and it instead ordered that the disciplinary removal be removed from the appellant’s record. See P.E.R.C. No. 2022-214. It also provided its remedies under the Act. PERC then forwarded the matter to the Commission to allow it to make its final determination regarding both the 90 working day suspension, which was not subject to the unfair practice challenge, and the removal. In this regard, the Commission notes that as PERC has exclusive jurisdiction over the NJEER Act, it is bound by PERC’s findings made therefrom.

90 Working Day Suspension

Administrative Law JudgeIn his original and remand initial decisions, the ALJ recommended upholding the charges underlying the 90 working day suspension as well as the original penalty. In this regard, the ALJ’s conclusions in this regard, although not explicitly enunciated, were based on his assessment of the credibility of the witnesses’ testimony. For example, the ALJ found clearly credited testimony from “multiple” witnesses corroborating that the appellant’s actions contributed to “a tense and unnecessary working climate” as well as the testimony from the other employee involved in the “knife incident.” 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). The Commission finds no persuasive evidence in the appellant’s exceptions or the record to demonstrate that the ALJ’s detailed findings and conclusions were arbitrary, capricious or unreasonable. Here, while the ALJ did not “explicitly enunciate” his credibility determinations as to each witness, his findings and conclusions based on his assessment of the record makes those findings clear. As such, the Commission finds the ALJ’s credibility determinations and subsequent findings worthy of due deference and ascertains no basis in the record or the appellant’s exceptions to find otherwise.

Analysisin her exceptions, the appellant argues that the 90 working day suspension imposed is too harsh. The Commission disagrees. Similar to its assessment of the charges, 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) 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 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 sericus that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.J. 474 (2007). Regarding the penalty, the ALJ found:

The question before me is, was a ninety (90) day suspension too harsh, as other than a two-day suspension before, she did not have a record of previous suspension of a lesser amount. And, do a person’s personality traits and quirks including difficulty getting along with others, warrant such a long term suspension, especially when the Chief Judge and Court

Administrator identify her as a “good worker.”

The problem here for Ms. Montalvo is, while each of these incidents and others cited as well, taken by themselves are not overly serious, she repeatedly ignored warnings and counseling sessions with

Ms. Santos, Ms. Duva and the Chief Judge where they tried to explain and identify for Ms. Montalvo, why her behavior was so disruptive.

Though she acknowledged in her testimony being an aggressive and assertive individual, she never really made a good faith effort to understand the impact of her behavior on others, whose sole collective goals was to timely process almost 10,000 cases, collect fines and other responsibilities of the municipal court.

As Civil Service cases go, this matter is somewhat unusual in that we are not reviewing an individual who broke the rules, showed up late on a regular basis, called in sick too often or most of the things associated with disciplinary cases that are more clearcut.

However, I can see where Bloomfield officials, who were finally pushed to an extreme by several other employees whose comfort level at work was being impacted, felt they had to act in a more severe manner, resulting in the imposition of a ninety (90) day suspension. Ms.

Montalvo’s behavior never changed. She expected her co-workers to adjust to her pattern of conduct and ignored prior warning from the

Administrative Law JudgeChief Judge and Court Administrator. Under the totality of the circumstances, taking all the factors into account, some minor, some major, I CONCLUDE that a ninety-day suspension under the first

AnalysisFNDA was appropriate and justified, and I THEREFORE

CONCLUDE the ninety-day suspension was warranted under the circumstances and is hereby sustained.

As laid out by the ALJ, it is the appellant's cumulative actions that warrant the penalty imposed. Especially troubling is the “knife incident.” Clearly, such behaviors require corrective actions and where, as here, it appears that the employee is either unwilling or unable to engage in appropriate workplace behaviors, stern disciplinary sanction is required to impress upon the individual the severity and inappropriateness of their behavior. In this regard, the 90 working day suspension, a weighty penalty, should serve to impress upon the appellant the gravity of her actions as well as serve as a clear warning that any further inappropriate conduct may lead to more severe disciplinary action, up to removal from employment.

Removal

As noted above, the ALJ recommended modifying the removal to a 45 working day suspension. However, PERC subsequently found that the modification of the removal to a 45 working day suspension was improper, as it found that the appointing authority’s application of its policy to discipline the appellant after she used her workplace recordings as evidence in her departmental hearing interfered with her exercise of her protected rights in violation of the NJEER Act. As PERC has exclusive jurisdiction over the NJEER Act, the Commission is bound by PERC’s findings made therefrom. As such, the Commission finds that there is no basis to uphold any of the charges underlying the appellant's removal from employment, and it is therefore, reversed.

Since the removal has been reversed, pursuant to N.J.A.C. 4A:2-2.10, the appellant is entitled to be reinstated to her position with mitigated back pay, benefits and seniority from the effective date of her removal until the date of her reinstatement. Pursuant to N..J.A.C. 2-2.12, the appellant’s attorney is entitled to reasonable counsel fees. The Commission notes that the counsel fees awarded are solely for the appellant’s counsel’s work on the Civil Service portion of the removal action, as it has no jurisdiction to award counsel fees for other matters that do not arise under its law and rules.

This decision resolves the merits of the dispute between the parties concerning the removal imposed by the appointing authority. However, per the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, Docket No. A-5581- 01T2F (App. Div. February 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay or counsel fees 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 her permanent position.

ORDER

90 Working Day Suspension

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant for 90 working days was justified. The Civil Service Commission therefore upholds that action and dismisses the appeal of Yessenia Montalvo.

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

Removal

The Civil Service Commission finds that the appointing authority’s action in removing the appellant was not justified. Therefore, the Commission reverses that action and upholds the appeal of Yessenia Montalvo. The Commission further orders that the appellant be reinstated to her position with back pay, benefits and seniority from the effective date of her removal to her reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.d.A.C. 4A:2-2.10. The Commission further awards reasonable counsel fees as provided for in N..J.A.C. 4A:2- 2.12. However, the counsel fees awarded are solely for the appellant’s counsel’s work on the Civil Service portion of the removal action, as it has no jurisdiction to award counsel fees for other matters that do not arise under its law and rules.

Proof of income earned and an affidavit of mitigation in support of back pay and an affidavit of services in support of reasonable counsel fees shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. The Commission directs that the parties shall make a good faith effort to resolve any dispute as to the amount of back pay or counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending any back pay or counsel] fees dispute,

The parties must inform the Commission, in writing, if there is any dispute as to back pay or counsel fees 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 should be pursued in the Superior Court of New Jersey, Appellate Division.