Calvin Engime, CSC Docket No. 2022-1472

BackgroundThe appeal of Calvin Engime, Judiciary Clerk 3, Judiciary, Mercer Vicinage, removal, effective December 18, 2021, on charges, was heard by Administrative Law Judge Joseph A. Ascione (ALJ), who rendered his initial decision on July 29, 2024. Exceptions were filed on behalf of the appellant and a reply 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 and reply, the Civil Service Commission, at its meeting of September 4, 2024, accepted the Findings of Fact and Conclusions and the ALJ’s recommendation to uphold the removal.

Upon its de novo review of the ALJ’s 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 his 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 uv. 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); Cavaliert wu. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004).

The appellant filed various exceptions, many not requiring extensive comment, while others can be considered, in essence, attacks on the ALJ’s assessment of the credibility of the witnesses’ testimony, and more specifically, the appellant’s testimony. In this regard, the ALJ found:

Engime’s testimony is less than credible. From the start of the proceeding, he continued to read a bound book while the other witnesses were testifying. He reflected a total disregard of the proceedings. During his testimony he regularly covered his mouth, and he displayed his nervousness by regularly responding to cross-examination questions with argumentative answers. His communications with the administrative staff of the J-MV were also regularly argumentative.

Engime doubtless abhorred the Judiciary vaccination/weekly-testing policy. This tribunal cannot say it is because of religious reasons or purely personal-freedom reasons. Engime has failed to support his religious objections with any factual information.

While the exceptions point to the appellant’s written statement as to his objections to both the vaccination and testing requirement and argue that this factuaily demonstrates his sincere religious beliefs buoying his refusal to submit to testing, the Commission is not persuaded. Here, the ALJ considered the appellant’s testimony regarding his objections to the testing requirement and did not find it credible. As such, while not explicitly stated, it is clear that the ALJ implicitly found the documentary evidence did not overcome the appellant’s lack of credible testimony. Further, upon its review, the Commission finds nothing in the record or the appellant’s exceptions to demonstrate that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. As there was not a preponderance of credible evidence in the record that the appellant had a sincerely held religious belief that prohibited him from engaging in the weekly testing requirement, his refusal to undertake such testing was clearly in violation of the appointing authority’s policy and worthy of sanction.

Further, in its review of the penalty imposed, the Commission agrees with the ALJ that the appellant’s infraction was blatant and egregious and worthy of removal. Similar to its review of the underlying 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 serious that removal! is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.eJ. 474 (2007).

Here the ALJ found removal to be the proper penalty since “[a] lesser penalty than removal would send the wrong message.” The Commission agrees as the overwhelmingly serious potential safety and health consequences of the appellant’s actions warrants removal without regard to the appellant’s prior history and is neither disproportionate to the offense 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 Calvin Engime.

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