On appeal from a Final Administrative Action of the Civil Service Commission.
Pressler, Bilder and Gruccio. The opinion of the court was delivered by Gruccio, J.s.c. (temporarily assigned).
This appeal is from a decision of the Civil Service Commission denying Jesse Eaddy credit for sick and vacation leave upon reinstatement to his position with the Department of Transportation.
Jesse Eaddy is employed as a truck driver for the State Department of Transportation. On November 9, 1982, after working on Route 22 "burning bumps" from the roadway, he was asked by his foreman upon his return to the Somerville yard if he had cleaned his truck that day. In fact, he had removed debris from the road work and accumulated trash, so he answered affirmatively. He knew his responsibility as a truck driver was to maintain the truck in a clean condition.
Thereafter, his foreman with another foreman inspected Eaddy's truck and found two styrofoam coffee cups, newspapers and a brown lunch bag. Without discussing this with Eaddy, his foreman reported the incident to the area supervisor and requested disciplinary action be taken.
On January 20, 1983, a preliminary notice of disciplinary action was served upon Eaddy charging him with insubordination for saying his truck was clean after failing to remove the items of trash found by the foremen. On three prior occasions Eaddy had been found insubordinate. Rules of the Department of Transportation provided that upon a fourth finding of insubordination, an employee would be removed from employment.
After a hearing by the Department of Transportation, a final notice of disciplinary action was issued on May 24, 1983, upholding the charge against Eaddy and removing him from employment. On June 10, 1983, this notice was amended to effect removal on June 15, 1983.
On appeal to the Civil Service Commission, a new hearing before an administrative law judge resulted in a decision on November 13, 1983, finding Eaddy innocent of the charges. Specifically, the findings were that he had violated no order of
a superior, had not refused or failed to follow instructions of a supervisor and the conduct complained of was not a serious breach of discipline. The order provided for reinstatement retroactive to June 15, 1983, with back pay.
On December 27, 1983, the Civil Service Commission upheld the decision of the order of the administrative law judge. The Department of Transportation then reinstated Eaddy and determined he was entitled to back pay of $7,983.23.
On March 1, 1984, the Department of Transportation informed Eaddy's attorney that in accordance with N.J.A.C. 4:1-5.5(a) Eaddy would not accrue vacation or sick days for the period he was not at work. Eaddy appealed the refusal by the Department of Transportation to credit him with sick days and vacation time. On September 21, 1984, the Civil Service Commission, deciding that appeal and a prior appeal, determined that Eaddy was entitled to holiday pay, but sustained the denial of sick leave and vacation leave credits. The Civil Service Commission relied on the decision of this court in James v. N.J. State Prison, 176 N.J. Super. 207 (App.Div.1980).
This court, in James, held that the award of back pay to a reinstated State employee who had been wrongfully discharged is limited to his loss of regular wages and does not include additional allowances for vacation time, holiday time, administrative leave time and overtime. James, 176 N.J. Super. at 208. In denying the recovery of these benefits, the court determined that since the employee performed no service for the State in connection with his employment during the period between his removal ...