Before Judges Skillman, Lefelt and Winkelstein. On appeal from Merit
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The issue presented by this appeal is whether the Merit System Board (Board) may deny a back pay claim by a career service employee whose removal from his position was reduced to a suspension, based solely on the employee's failure to seek substitute employment during the period of separation from public service, without considering the availability of such employment. We conclude that under its current rules the Board may not deny a claim for back pay for the period following a suspension solely on the ground that the employee failed to seek substitute employment. Instead, the Board must determine whether there was suitable substitute employment the employee could have been obtained had he or she made a diligent search. If the Board makes this finding, the back pay award should be reduced by the amount the employee could have earned in that employment.
In 1994, appellant Edward O'Lone held the position of Section Chief, Health Care Facilities, at Ancora Psychiatric Hospital, for which he received a salary of $61,736.46 per year. On September 1, 1994, appellant was charged with physically abusing a co-employee; threatening and intimidating a co-employee on State property; and conduct unbecoming a public employee. These charges were based on an incident in which appellant grabbed a co-employee's throat and pushed him from a hallway into an office.
Following a departmental hearing, the Department of Human Services (Department) removed appellant from his position. Appellant appealed to the Board, which referred the matter to the Office of Administrative Law (OAL) for an evidentiary hearing. An Administrative Law Judge (ALJ) issued a recommended initial decision upholding the charges and appellant's removal from his position, and the Board adopted this decision.
On appeal, we affirmed the Board's decision upholding the charges against appellant in an unreported opinion. O'Lone v. Merit Sys. Bd., NO. A-2024-95 (App. Div. March 31, 1997). However, we concluded that the ALJ's findings of fact and conclusions of law, which the Board adopted, did not set forth adequate reasons for the penalty of removal. We also noted "our strong sense that the penalty of dismissal is unwarranted on the record before us[.]" (slip op. at 4). Accordingly, we remanded the case for reconsideration of the penalty.
On remand, the Board concluded that appellant's removal had been too harsh and reduced this penalty to a six-month suspension. However, on further review, we concluded in another unreported opinion that "the penalty imposed on [appellant] exceeds what is just given his unblemished 22 year record; the support of his supervisors; the antipathy between him and [the victim of the assault]; and the fact that [the victim] was not injured in the scuffle." O'Lone v. Merit Sys. Bd., A-2024-95 (App. Div. Dec. 19, 1997) (slip op. at 3). We also concluded that appellant's six-month suspension was "out of line with the penalties imposed by the Board in commensurate cases." Ibid. Accordingly, we reversed the six- month suspension and, in the exercise of our original jurisdiction, reduced the penalty to a three-month suspension.
Following our second decision, the Department reinstated appellant on October 20, 1999. However, the Department denied appellant's claim for back pay for the three-year period between his removal and reinstatement, less the three-month period of suspension, which totaled $178,520.58. Consequently, appellant submitted his back pay claim to the Board, which again referred the matter to the OAL.
Following a four-day hearing, the ALJ concluded that appellant was not entitled to any back pay because he "made no serious effort to find substitute employment" during the period of his separation from State service. The ALJ based this conclusion on factual findings that:
O'Lone did not apply for a single job. He did not send out a single resume. He did not register with any employment agency. He did not attend any job fairs. He did not prepare a resume. His efforts to find work was to review classified ads and review job positions on the Internet and to talk to a few friends.
Although the ALJ concluded that appellant's failure to make any serious effort to find new employment provided a sufficient basis, by itself, to deny his back pay claim, he also concluded that there was "suitable substitute employment" available to appellant. In rejecting appellant's claim that he would have been obligated to disclose to any prospective employer that he had been terminated for assaulting a co-employee and that he was pursuing a claim for reinstatement, the ALJ stated:
Common experience and common sense dictate that job interviewers will vary in the thoroughness with which they explore an applicant's background. O'Lone would not necessarily have had to lie during an interview. He could have answered all questions put to him honestly and, depending on what the interviewer asked, have revealed his peculiar circumstance or not. O'Lone could have presented himself in ways that would ameliorate the impact of the reasons for his termination. The considerations that O'Lone says make him unemployable are hardly unique among discharged State employees seeking reinstatement. Every employee in that situation must explain the reasons for his termination. Every employee in that situation is seeking reinstatement. If those considerations were enough to obtain full back pay, with no mitigation, the doctrine would become irrelevant in the Merit System area.
The Board adopted the part of the ALJ's recommended decision which concluded that appellant's back pay claim should be denied commencing on the effective date of his termination, September 8, 1994, because he "made no attempt . . . to obtain other employment." Based on this rationale, the Board did not reach the question whether any "suitable substitute employment" would have been available. However, the Board concluded that appellant was entitled to back pay commencing on April 30, 1997, which was the day after the Board determined, following the remand, that the appropriate sanction for his disciplinary infraction was a six-month suspension, because he had already been ...