Michael Fleury, CSC Docket No. 2024-1622

BackgroundThe appeal of Michael Fleury, Maintenance Worker 1, Grounds, Millville, Department of Parks and Public Property, removal, effective November 13, 2023, on charges, was heard by Administrative Law Judge Rebecca C. Lafferty (ALJ), who rendered her initiai decision on March 6, 2025. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

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 April 30, 2025, adopted the ALJ’s Findings of Facts and Conclusions. However, it did not adopt her recommendation to modify the removal to a six-month suspension and that the appellant undergo retraining. Rather, the Commission upheld the removal.

Administrative Law JudgeIn this matter, the ALJ found that the appellant was guilty of all but one of the infractions alleged. Upon its de novo review of the ALJ’s determinations in that regard, the Commission agrees with the ALJ’s findings and finds nothing in the record or the appointing authority’s exceptions to demonstrate that the ALJ’s findings regarding the charges were arbitrary, capricious or unreasonable. In this regard, the Commission rejects the appointing authority's arguments regarding the ALJ’s credibility determinations. 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 Maiter 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. 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); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). The Commission finds no persuasive evidence in the record or the appellant’s exceptions to demonstrate that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable.

AnalysisRegarding the penalty, similar to its assessment of the charges, the Commission's review 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. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.J. 474 (2007).

Administrative Law JudgeIn this matter, the ALJ performed an analysis of the penalty to be imposed. In that regard, the ALJ stated:

The appellant has one minor prior discipline in his history; however, it also involved the improper operation of equipment. The appropriate focus must be given to the nature and seriousness of the appellant’s actions. The serious nature of appellant’s actions certainly warrants the imposition of major discipline.

AnalysisIn this matter, it was undisputed that the appellant, as the bucket truck driver/operator, had the duty to ensure the safety of the crew, and in particular the individual in the bucket, Butcher. While I found previously that the events of November 13, 2023, were accidental in nature rather than intentional, they were still serious. The appellant knew it was his duty and responsibility to make sure that the bucket was completely resting on the platform before he put the truck in motion and failed to do so. His actions were negligent, if not careless, and resulted in very serious damage to the respondent’s only bucket truck, putting it out of service for six months, but more importantly could have resulted in very serious injuries to Butcher. Quite frankly, the appellant was lucky that no one was injured.

After having considered all of the proofs offered in this matter, and in light of the seriousness of the offense and in consideration of the appellant’s prior disciplinary record, ] CONCLUDE that the appellant should be REINSTATED; however, the appellant’s conduct was egregious enough as to warrant a one-hundred and twenty (120) day suspension without pay!, which, in part, is meant to impress upon him, as well as others, the seriousness of the infractions. I FURTHER

CONCLUDE that the appellant shall undergo complete re-training on the operation of the bucket truck.

The appointing authority believes the removal should be upheld. The Commission agrees. The ALJ explicitly states above that the appellant’s actions were “negligent, if not careless” and resulted in serious property damage and could have resulted in serious injury. Moreover, the ALJ previously indicated that while the appellant only had prior minor discipline, it too was for utilizing equipment improperly. In this regard, the Commission cannot support the modification to a 120 working day suspension, as it finds the appellant’s improper actions so seriously jeopardized the safety of his co-workers, it cannot countenance permitting him an additional opportunity. Thus, the Commission finds that the removal neither disproportionate to the offense, 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 affirms that action and dismisses the appeal of Michael Fleury.

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

1 Per NuJ.A.C, 4A:2-2.2(c), this is considered 120 working days. The appellant, in his reply to exceptions, mistakenly indicates his belief that the penalty referred to calendar days.