Barbara Diller, CSC Docket No. 2022-1725

BackgroundThe appeal of Barbara Diller, Senior Therapy Program Assistant, Hunterdon Developmental Center, Department of Human Services, resignation not in good standing, effective October 20, 2021, on charges, was heard by Administrative Law Judge Elia A. Pelios (ALJ), who rendered his initial decision on July 29, 2026. 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, 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 September 2, 2026, adopt the ALJ’s findings of facts, conclusions and recommendation to modify the resignation not in good standing (RNGS) to a resignation in good standing.

The appellant was separated via a RNGS based on allegations that she failed to return to duty for five or more consecutive business days following an approved leave of absence. See N.J.A.C. 4A:2-6.2(c). In his initial decision, the ALJ found that:

The record reflects that despite sporadically providing the required monthly PERS #22 form on three occasions, appellant did not return to duty or provide additional information for several months after her last submission. Moreover, she failed to report to work for five or more consecutive business days following a reminder by respondent of her need to either report or provide documentation, and she did not make a request for extension of her leave. Her assertions that she did not receive a follow-up letter or that the respondent’s mask mandate remained in effect and prevented her return to work are of no moment and do not change the facts that she was required to submit a new form every month; knew of that requirement and failed to comply with that requirement and also failed to return to work. Accordingly, I

CONCLUDE that the respondent has met its burden in demonstrating a violation of N.J.A.C. 4A:2-6.2(c). The charge is SUSTAINED.

Administrative Law JudgeThe ALJ also dismissed the charges of conduct unbecoming a public employee and other sufficient cause finding them to be “cumulative or even redundant.”

Regarding the penalty, the ALJ recommended modifying the RNGS to a resignation in good standing. He noted the appellant’s 16 years of service and only previous minor disciplinary history. He concluded:

Appellant did fail to properly provide updates required to maintain or extend her leave and was non communicative for months on end. She also did not report or respond to efforts to encourage her to belatedly extend her leave without repercussion. It is also noted that this was at a difficult time where she did have concerns for her own health and well-being. While it does not excuse the violation, given the substantial length of service and otherwise relatively unremarkable disciplinary history, I CONCLUDE that the penalty of Resignation Not

AnalysisIn Good Standing is not the appropriate outcome. Resignation in good standing seems to be a more appropriate outcome to this matter. I hereby MODIFY the penalty to Resignation in Good Standing.

Upon its de novo review, the Commission agrees with the ALJ regarding the charges and reduction in penalty.

In her exceptions, the appellant argues that the RNGS was improperly upheld since the appointing authority was aware of the medical reasons for her absences, and thus, her failure to submit additional PERS #22 forms was not material. She also contends that it was never established that she received the September 29, 2021, letter from the appointing authority. Finally, she argues that the appointing authority failed to engage in any accommodation dialogue.

RuleIn reply, the appointing authority argues that, as N.J.A.C. 4A:2-6.2(c) indicates that violation of its provisions “shall” result in a RNGS, that the ALJ had no “discretion to modify the penalty.”

AnalysisThe Commission finds the appellant’s exceptions wholly unpersuasive. The ALJ clearly found that the appellant had an obligation to follow the appointing authority’s policy regarding the PERS #22 forms, regardless of its awareness of her condition. The Commission agrees, as it is incumbent on an employee to properly follow appointing authority guidelines and policies, and that failure to do so may result in negative employment consequences. Moreover, the record established that the appellant never requested an accommodation, thus, the appointing authority’s purported failure to engage in a dialogue on that issue is of no moment. Finally, the Commission rejects her contention regarding the September 29, 2021, letter. The ALJ specifically found the appellant’s testimony on that issue not credible. He stated:

Appellant’s testimony that she never received the September 29, 2021 letter is unpersuasive and, frankly, not credible. Her testimony reveals an understanding and knowledge that she was required to provide the

Administrative Law JudgePERS #22 form every thirty days and it appears that she did manage to receive selective pieces of mail during the time period in questions which undercuts her assertion that her mail was held at the post office for months. Such assertion, if true, means she did not receive any other correspondence or bills and is not believable given potential for ancillary repercussions which were not reported. Even if it were true, her failure to follow up and retrieve her mail from the post office does not relieve her of any obligations or notice provided in any of the held mail. Such obligations are not so easily avoided. Accordingly, I CONCLUDE that her testimony that she did not receive the letter or her mail does not serve to weigh in favor of mitigation.

AnalysisThe 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 determination in that regard was in error. As such, the appellant has not defeated the presumption that mail correctly addressed, stamped and mailed is generally received by the party to whom it was addressed. See SSI Medical Services, Inc. v. State Department of Human Services, 146 N.J. 614 (1996); Szczesny v. Vasquez, 71 N.J. Super. 347, 354 (App. Div. 1962).

The Commission similarly rejects the appointing authority’s argument that the RNGS is mandated based on the regulatory language. Pursuant to N.J.S.A. 11A:2- 19 and N.J.A.C. 4A:2-2.9(d), the Commission has the de novo authority to increase or decrease a penalty imposed by an appointing authority. The “shall” in N.J.A.C. 4A:2-

6.2(c) clearly only pertains to when a RNGS is imposed under that section by an appointing authority. In this matter, the Commission agrees with the ALJ that, given the appellant’s prior record of service, that the RNGS should be modified to a resignation in good standing.

ORDER

The Civil Service Commission finds that the action of the appointing authority in resigning the appellant not in good standing was not justified. Rather, the Civil Service Commission modifies that action to a resignation in good standing.

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