Shannon Thomas, CSC Docket No. 2022-30

BackgroundThe appeal of Shannon Thomas, Family Service Worker, Essex County, Department of Citizen Services, removal, effective May 21, 2021, on charges, was heard by Administrative Law Judge Gail M. Cookson (ALJ), who rendered her initial decision on January 30, 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 and reply, the Civil Service Commission (Commission), at its meeting on March 15, 2023, adopted the ALJ’s Findings of Facts and Conclusion and her recommendation to uphold the removal.

Upon its de novo review of the ALJ’s thorough and well-reasoned 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 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.d/. 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 has the authority to reverse or modify an ALd’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. Specifically, the ALJ found the appellant’s testimony not credible, stating:

In sum, appellant had numerous excuses for why doing her job was hard, unsupported, made difficult by others, whether before or after

Administrative Law JudgeCovid; she had excuses for not showing up or responding to supervisory warnings or the five-letter, or filing proper medical documentation. Yet, she found it easy to get Dr. Galea to scribble out a prescription excuse for months at a time. I FIND appellant to have been a witness without credibility or sincerity. She did what was convenient for her personal agenda without concern or consideration for the requirements of her employment. This pattern and practice started months before Covid and continued throughout.

AnalysisThe Commission finds nothing in the record to question this determination or the findings and conclusions made therefrom.

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.

In this matter, the Commission agrees with the ALJ’s recommendation to uphold the removal. While the appellant argues in her exceptions that progressive discipline should be applied, the Commission disagrees. In this matter, the appellant did not return to work after being specifically notified to do so for a period of more than five-days without authorization, essentially abandoning her job. See N.d.A.C. 4A:2-6.2(b). Under such a circumstance, the tenets of progressive discipline may be bypassed as the initial responsibility of any employee is to actually show up to work during periods they are able to do so. Progressive discipline is utilized, in part, to inform employees that further misconduct may lead to greater disciplinary penalties. When that misconduct is a failure to attend work as required, without valid reason, the purpose of progressive discipline would be rendered ineffective. In this matter, the Commission agrees with the ALJ, who stated that “She just stopped showing up.

Administrative Law JudgeI CONCLUDE that she abandoned her job as a FSW with Essex County.” Moreover, given this circumstance, the Commission finds the penalty of removal neither disproportionate 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 Shannon Thomas.

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