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In re Sims


November 27, 2007


On appeal from a Final Administrative Decision of the Merit System Board, No. CSV 4103-04.

Per curiam.


Argued October 3, 2007

Before Judges Wefing and Lyons.

Geraldine Sims appeals from a Final Decision of the Merit System Board. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Sims had been employed as a corrections officer by Monmouth County for approximately twelve years when she was terminated for excessive absences and abuse of sick leave. Ms. Sims appealed her termination to the Board, which referred the matter to the Office of Administrative Law as a contested matter. Following a hearing, the administrative law judge issued an Initial Decision in which she reversed the termination and directed that appellant be reinstated, subject to a six-month suspension. The employer filed exceptions, and the Merit System Board, after reviewing the record, adopted the initial factual findings of the administrative law judge but rejected her recommendation that appellant's termination be modified to a six-month suspension. Appellant then moved for reconsideration, but the Board denied her motion. This appeal followed.

On appeal, Sims argues that the final decision of the Board was arbitrary and capricious and that we should not accord it substantial deference. She maintains that the Board disregarded the principle of progressive discipline, that her conduct was not egregious, and that the Board cannot impose a greater penalty than that called for by the employer's progressive discipline policy.

In the five-and-one-half-year period between August 1997 and March 2003, Sims received eight disciplinary charges for taking excessive sick leave, abuse of her sick leave and/or refusing to work compulsory overtime. The record reveals that she had a practice of taking sick days immediately prior to and immediately after days upon which she was scheduled to be off. These charges resulted in various forms of discipline, including reprimands, fines and suspensions.

During much of Ms. Sims' employment, the County had followed a policy of imposing a suspension "on the record."*fn1

Under this policy, the employee would report to work and be paid, but the employee's personnel record would reflect a suspension. According to Captain Philburn of the Monmouth County Corrections Facility, the policy had been adopted with an eye to benefiting both parties: the sanctioned employee would not lose pay, the County would not have to absorb the cost of overtime by having another employee cover the shifts of the subject employee, and the County was able to treat the sanction as a suspension for the purposes of the County's own progressive discipline policy. Captain Philburn further explained that the County had adopted the policy with the thought that it would reduce unauthorized absences but that it had abandoned the policy when it proved unsuccessful in that regard.

We note first the standard governing our review of this matter. It is well settled that our review of the final decision of an administrative agency such as the Board should be deferential, and we should not overturn the Board's decision unless we are satisfied it is arbitrary, capricious or unreasonable. Carter v. Township of Bordentown (In re Carter), 191 N.J. 474, 482 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Our consideration is generally limited to three inquiries:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law;

(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995) (citing Campbell, supra, 39 N.J. at 562).]

Appellant argues that the Board's decision was arbitrary and capricious because it did not accord with the principle of progressive discipline, first articulated by our Supreme Court in West New York v. Bock, 38 N.J. 500 (1962). Progressive discipline recognizes that "past misconduct can be a factor in the determination of the appropriate penalty for present misconduct." In re Hermann, 192 N.J. 19, 29 (2007) (citing Bock, 38 N.J. at 522). Further, a more severe penalty is appropriate for "a public employee who engages in habitual misconduct," and a lighter penalty is appropriate for the "employee who has a substantial record of employment that is largely or totally unblemished by significant disciplinary infractions." Id. at 30-33 (citing In re Hall, 335 N.J. Super. 45, 46, 51 (App. Div. 2000); In re Saniuk, 2002 WL 32590661 (N.J. Adm.)).

Appellant contends that the Board's decision is irretrievably flawed because it stated that it would not consider "on the record" suspensions for the purposes of progressive discipline but also concluded that the employer's disciplinary actions constituted progressive discipline.

We reject this argument. The Board expressly found that appellant's sixty- and ninety-day suspensions "were in fact the equivalent of 20-day suspensions since she was fined 20-days' pay in lieu of suspension." A fine in lieu of suspension is a permissible disciplinary action when the employee agrees to it, N.J.A.C. 4A:2-2.4(c)(3). The fines, moreover, constitute major discipline. N.J.A.C. 4A:2-2.2(a)(3).

Given appellant's disciplinary history, her termination would not violate the concept of progressive discipline. Progressive discipline does not require specific penalties depending upon an employee's prior history; rather, it merely allows an employer to look to that prior history as a factor in settling upon the appropriate penalty. We note, moreover, that according to Bock, habitual lateness alone may warrant an employee's termination where the employee has received warnings. Bock, supra, 38 N.J. at 522. With every notice of major discipline appellant received, she also received the following warning: "Please be advised that this or other unacceptable behavior will result in stronger disciplinary action being recommended up to recommending your separation from employment . . . ." We are unable to characterize as arbitrary, capricious or unreasonable the Board's conclusion that the employer satisfied the principle of progressive discipline.

The Board upheld Ms. Sims termination upon two grounds--that progressive discipline had been satisfied and that her conduct was so egregious there was no need to comply with progressive discipline. In re Hermann, supra, is an example of egregious conduct warranting termination on the basis of that conduct alone. In that case, an employee of the Division of Youth and Family Services was terminated after flicking a cigarette lighter in the face of a five-year-old child during an interview in a room in which oxygen equipment was stored in a closet. Appellant contends that her conduct cannot be considered remotely similar. We need not address this issue, however, because we have concluded that the Board's determination with respect to progressive discipline should be affirmed.

We also reject appellant's contention that the Board improperly increased the penalty beyond the employer's progressive discipline policy. N.J.S.A. 11A:2-19 authorizes the Board to increase or decrease a penalty imposed by the employer; the only limitation on that statutory authority is the provision that the Board may not substitute removal for a lesser penalty selected by the employer. That limitation does not bear upon the present matter because the employer and the Board both concluded that termination was the appropriate penalty.

In her reply brief, appellant also asserts that the Board's decision is not entitled to deference because it did not review the record. We note initially that appellant should have raised that issue in her initial brief, rather than her reply brief.

In the interests of justice, however, we have considered the substance of her argument and are satisfied that it lacks merit. To the extent that the Board did not review the transcript of the proceedings before the administrative law judge, it was due to appellant's failure to provide that transcript.

The Final Decision of the Merit System Board is affirmed.

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