David Gilmore, CSC Docket No. 2022-2664

BackgroundThe appeal of David Gilmore, Director of Community Improvements, Paterson, Department of Economic Development, removal, effective April 19, 2022, on charges, was heard by Administrative Law Judge Gail M. Cookson (ALJ), who rendered her initial decision on March 27, 2023. Exceptions were filed on behalf of the appointing authority and a reply was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALdJ’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 May 3, 2023, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision and her recommendation to reverse the removal.

The Commission makes the following comments. As indicated above, the Commission thoroughly reviewed the exceptions filed by the appointing authority in this matter. In that regard, the Commission finds them unpersuasive as the ALJ’s findings and conclusions in reversing the charges and penalty imposed was based on her thorough assessment of the record and are not arbitrary, capricious or unreasonable.

The Commission notes that the ALJ’s decision was made based mainly on her assessment of the credibility or the various witnesses in this matter. In that regard, the ALJ made many specific and detailed determinations and presented numerous reasonable conclusions based on those determinations. Specifically, the ALJ credited much of the appellant’s testimony, conversely finding much of what the appointing authority witnesses presented as unpersuasive or not credible in light of both the appellant’s credible testimony and other evidence in the record. Of main importance, the ALJ found the appointing authority’s main witness not credible in nearly all respects. Ultimately, the ALJ found:

Administrative Law JudgeFor the reasons set forth herein and on the basis of the credibility findings above, I CONCLUDE that Paterson has wholly failed to meet its burden of proof with sufficient credible evidence on these allegations and the FNDA must be dismissed in its entirety .. .

AnalysisThe claim of sexual harassment in only based upon the “lap dance” comment allegedly made by appellant to Pavon. As found above, I found this allegation was not credible and it certainly cannot be the basis of any pattern or practice. As stated, she failed to report the event to anyone for three months, including to Lobozzo. Moreover, it was clearly out of character for appellant who prides himself upon his standards of professionalism in the workplace and was described credibly as strict and by-the-book.

The claim of general harassment, bullying, lurking or intimidation by appellant towards Pavon was also not supported by the preponderance of the credible evidence. I have found that she was hypersensitive about every glance from him in the direction of the customer service counter. A few photographs of him locking perhaps in her direction do not constitute a representative picture of how he engaged his staff, where he sat, where he walked, or other functions of appellant in his role as Director of Community Improvements over a ten- month period. Again, the testimony of Perez and Cabrera do not credibly support Pavon’s testimony because I have found that they had reasons to be biased against appellant.

Administrative Law JudgeIn sum, and on this factual record, I CONCLUDE that respondent has not proven by the preponderance of the credible evidence that appellant’s conduct, even to the small extent some aspects of the allegations might have occurred, which I have found they did not, was severe or a risk to public safety. A reasonable, objective person would not have considered Pavon to have been intimidated by appellant, or to have found that he “lurked” or bullied her. He exercised his managerial authority to diffuse arguments at the customer service counter and to enforce ethics and other professional standards in the Division. His supervisor, Charles, did little to nothing to hear appellant’s side of any of these allegations or to objectively evaluate Pavon’s claims before summarily suspending him without pay.

I CONCLUDE that there was no intimidation, hostile work environment, or sexual harassment, except in the mind of Pavon, and apparently our missing witness Lobozzo. Appellant, the Division

AnalysisDirector, sat in a chair and observed the common customer service area.

There was no constant badgering, no bullying, and no retaliation, in spite of respondent’s attempt to advocate as if there had been.

Upon its de novo review of the record, 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.f. 108 (1997). “[T]rial courts’ credibility findings ... are often influenced by matters such as cbhservations 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.eJ. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Jd. 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 u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appointing authority 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. As such, the Commission has no reason to question those determinations or the findings and conclusions made therefrom.

Since the removal has been reversed, 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 the first date of separation without pay until the date of reinstatement. Moreover, as the removal has been reversed, the appellant is entitled to reasonable counsel fees pursuant to N.J.A.C. 4A:2-2.12.

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 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 his position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore reverses that action and grants the appeal of David Gilmore. The Commission further orders that the appellant be granted back pay, benefits, and seniority from the first date of separation without pay until the date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.-/.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.

The Commission further orders that counsel fees be awarded to the attorney for the appellant pursuant to N.J.A.C. 4A:2-2.12. 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. Pursuant to N.J.A.C. 4A:2-2.10 and N.Jd.A.C. 4A:2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay and counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay or counsel fee 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 shall be pursued in the Superior Court of New Jersey, Appellate Division.