Carolyn Whitehead — East Orange, CSC Docket No. 2023-1435

BackgroundThe appeal of Carolyn Whitehead, Assistant Zoning Officer, City of East Orange, Department of Policy, Planning and Development, removal and resignation not in good standing, effective July 23, 2020, on charges, was heard by Administrative Law Judge Julio C. Morejon, who rendered his initial decision on January 30, 2024. Exceptions were filed on behalf of the appointing authority and a reply was filed by the appellant.

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 February 28, 2024, accepted and adopted the Findings of Fact and Conclusions as contained in the attached ALJ’s initial decision and his recommendation to reverse the removal.

This matter was originally decided by the Commission on October 6, 2021, where the Commission affirmed the recommendation of the ALJ at that time granting the appointing authority's motion for summary decision. See In the Matter of Carolyn Whitehead (CSC, decided October 6, 2021). The appellant appealed that decision to the Superior Court, Appellate Division, which, in Jn the Matter of Carolyn Whitehead, City of Hast Orange, Department of Policy, Planning and Development, Docket No. A- 0730-21 (App. Div. December 22, 2022), remanded the matter back to the Commission for further proceedings. Specifically, the Court stated:

We therefore reverse the Commission’s summary decision order rejecting and dismissing Whitehead’s appeal from the suspension and termination of her employment on her claim the City violated Title VII by failing to provide a work-from-home accommodation in response to her religious objection to the COVID-19 testing requirement. As we have explained, we reverse because the motion record does establish sufficient material undisputed facts supported by competent evidence permitting a determination of the claim as a matter of law. Our reversal of the dismissal of the claim shall not be construed as a constituting findings of any facts or a determination of the merits of any aspect of

Whitehead’s remaining Title VII claim. We remand for further proceedings on the claim. The parties on remand shall be permitted to assert any and all factual and legal arguments in support of their respective positions concerning the claim. Slip Opinion at 23.

In January 2023, the Commission transmitted the matter back to the Office of Administrative Law for further proceedings as indicated by the Appellate Division. In his remand decision, the ALJ found the appellant credibly testified and, therefore, established that due to her sincerely held religious beliefs, she objected to having to take a Covid-19 test prior to returning to work and requested to be able to work from home as an accommodation. Additionally, the ALJ found that the appointing authority presented no evidence that the appellant’s requested accommodations for her religious beliefs posed an undue hardship. As such, the ALJ found that the charges against the appellant could not be upheld. After its de novo review of the entire record, including the exceptions filed by the appointing authority, which the Commission finds unpersuasive and not requiring extensive comment, the Commission finds that the ALJ’s findings and conclusions in reversing the charges and penalty imposed was based on his thorough assessment of the record and are not arbitrary, capricious or unreasonable.

Administrative Law JudgeIn this regard, the ALJ’s determination were based predominately on his determination of the credibility of the witnesses. 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 Rettrement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed are not persuasive in demonstrating that the ALJ’s credibility determinations, or his 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.

AnalysisSince 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. 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 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 position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing and resigning the appellant not in good standing was not justified. The Commission therefore reverses that action and grants the appeal of Carolyn Whitehead. 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.J.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. Pursuant to N.-7.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay 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.