Daniel Borrero- Melendez, CSC Docket No. 2023-84

BackgroundThe appeal of Daniel Borrero-Melendez, Senior Correctional Police Officer, Juvenile Justice, Juvenile Justice Commission (JJC), removal, effective March 2, 2022, on chargesmwas before Administrative Law Judge Sarah H. Surgent (ALJ), who rendered her initia: decision granting the appointing authority’s motion for summary decision on December 29, 2022. 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 February 1, 2023, remanded the matter to the Office of Administrative Law (OAL) for further proceedings.

The Commission finds that the ALJ’s granting the appointing authority’s motion for summary decision was not warranted in this matter. In this regard, under Executive Orders 283 and 290, “covered high-risk congregate settings must maintain a policy that requires covered workers to provide adequate proof that they are up to date with their COVID-19 vaccinations.” However, “[t]he policies adopted by covered settings ... must provide appropriate accommodations, to the extent required by federal and/or state law, for employees who request and receive an exemption from vaccination because of a... sincerely held religious belief, practice, or observance.”

Here, the appellant requested a religious accommodation to the requirement of receiving the vaccine. He was denied and nevertheless still refused to get vaccinated and was thus subjected to discipline. However, in issuing the summary decision opinion in favor of the JJC, the ALJ made no finding as to whether the accommodation request was validly denied. In other words, there was no finding as to whether granting the requested accommodation would have amounted to an undue hardship to the JJC. Rather, the ALJ framed the matter as being concerned only with whether the appellant violated the JJC’s vaccination policy. The appellant, however, forcefully argues that he was wrongfully disciplined because the JJC should not have denied his accommodation. In this regard, it is worth noting that in his accommodation request, the appellant offered to get regularly tested, wear a mask, and socially distance. Whether those measures would amount to an undue hardship to the JJC is unclear, as the ALJ did not engage in any fact-finding as to that issue. As such, the Commission remands the matter to the OAL for a hearing to establish facts as to the appropriateness of the accommodation denial and how or if those facts impact any determination as to the appellant’s guilt regarding the charges.

ORDER

The Civil Service Commission remands this matter to the Office of Administrative Law for further proceedings as outlined above.