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In re Matarazzo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 11, 2008

IN THE MATTER OF ANTHONY MATARAZZO, HUDSON COUNTY.

On appeal from the State of New Jersey Department of Personnel, DOP Docket No. 2006-1626.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 20, 2008

Before Judges Skillman and LeWinn.

Appellant Anthony Matarazzo was an officer in the Hudson County Corrections Department (the Department) for approximately thirteen years, until his removal from employment as of December 23, 2005. Appellant was charged with numerous violations of the Department's overtime policy that culminated in his termination.

This policy was originally issued in October 1999 and reissued in January 2004. It created a "dual-track disciplinary system whereby discipline for mandatory overtime will be considered progressive discipline solely for mandatory overtime offenses. . . ." The policy set forth the following "SCHEDULE OF DISCIPLINE":

First Offense: Staff member will receive a written warning of refusal for mandatory overtime.

Second Offense: Staff member will be fined one (1) days pay.

Third Offense: Staff member will be fined three (3) days pay.

Fourth Offense: Staff member will be fined six (6) days pay.

Fifth Offense: Staff member will be fined ten (10) days pay.

Sixth Offense: Staff member will receive a thirty (30) days suspension without pay.

Seventh Offense: Staff member will be terminated.

When overtime duty is required, the Department first solicits volunteers. In the absence of volunteers, the Department selects individuals from a roster of eligible officers on a rotating basis, to ensure that overtime duty is equally allocated. Under the mandatory overtime policy, an officer may be excused from overtime duty for medical reasons or an emergency as defined in the officers' union contract. If an officer accepts the overtime assignment, he or she is then moved to the bottom of the eligibility list; however, if the officer refuses, or is excused from, an overtime assignment, he or she will remain at the top of the eligible list.

The record of appellant's refusals of mandatory overtime assignments is as follows. On March 4, 2005, appellant refused mandatory overtime but provided no reason or explanatory documentation. On March 5, 2005, appellant refused overtime to attend an Italian American Police Society dinner for which he had purchased tickets in advance. On March 11, 12 and 18, 2005, appellant again refused mandatory overtime with no reason or explanatory documentation provided. On March 26, 2005, appellant refused overtime to attend an Easter vigil and subsequently provided documentation from his church.

On March 31, 2005, Captain Stevette Scott, the manager on appellant's unit, issued him a written warning for the four refusals on March 4, 11, 12, and 18, 2005. Scott had been assigned to manage appellant's unit in February 2005.

On April 1 and 2, 2005 appellant refused mandatory overtime, again with no reason or supporting documentation provided. On April 16, 2005, appellant refused overtime because of claimed child care responsibilities; however he provided no documentation. On May 10, 2005, appellant was disciplined with a one-day's salary forfeiture, for his April 1 and 2 refusals.

On May 20, 2005, Scott filed a request for a disciplinary hearing for appellant's overtime refusal on April 16, 2005; appellant received a six-day suspension for this offense.

On July 27, 2005, Scott filed another notice of disciplinary action stemming from appellant's overtime refusal of March 26, 2005. Appellant provided documentation at that time, explaining that he had participated in religious services for an Easter vigil. The Department reviewed his documentation and determined that appellant would not be excused. He then received a ten-day suspension.

On August 12, 19, and 24, 2005, appellant refused mandatory overtime to attend a Hispanic Court Officers' Society Dinner, a Jets football game and a Yankee baseball game, in that order. Appellant provided documentation for each of these refusals.

However, on September 2, 2005, Scott filed a third preliminary notice of disciplinary action against him for those three refusals.

On October 21, 2005, a hearing was held before the County Division of Personnel. Appellant was charged with insubordination, conduct unbecoming a public employee, neglect of duty, and refusing mandatory overtime. The hearing officer noted that defendant did not refute any of the charges. The hearing officer further noted that the only recognized excuses for refusal of mandatory overtime were medical reasons or a defined family emergency, and none of appellant's reasons fit either category. The hearing officer concluded that appellant was guilty of all charges presented and, therefore, terminated his employment in accordance with the progressive discipline schedule in the Department's mandatory overtime policy. His termination was made effective as of December 3, 2005.

Appellant appealed the decision to the State Department of Personnel. The matter was transferred to the Office of Administrative Law, and an Administrative Law Judge (ALJ) conducted a hearing on November 8, 2006. Based on the evidence presented, the ALJ rendered the following findings of fact:

1. In 1999 the Hudson County Department of Corrections issued a schedule of progressive discipline for refusals to perform mandatory overtime. The policy, reissued in January 2004, reaffirmed the prescribed sanctions based on the number of offenses. The only justification for refusals are documented medical problems involving the officer or family members, or emergencies as defined in the union contract. All correction officers knew or were charged with knowledge of the policy.

2. Appellant is a corrections officer with thirteen years seniority. During 2005 he was charged nine times for unjustified refusals to perform mandatory overtime on fourteen separate occasions. He offered no explanation for the earliest four charges that resulted in a warning, a one-day's pay fine, and three-days' pay fine. As to the major disciplinary charges, Appellant offered no defense to the sixth, seventh, or eighth charges which resulted in one sixday, one ten-day, and a thirty-day fine or suspension.

3. On March 26, 2005, Appellant refused mandatory overtime to attend an Easter Vigil on Holy Saturday. Holy Saturday is not a Holy Day of Obligation in the Catholic Church, Catholicism being Appellant's faith. The policy does not specify religious observance as good cause for refusing overtime. The circumstances might have been different if Appellant had requested deferment in advance to attend the service with his family. Indeed, the Department has accommodated officers of other faiths in scheduling regular shifts, not overtime, due to religious observances. The fact that Appellant already had unjustifiably refused overtime four times that very month, and knew that he remained at the top of the overtime roster, should have alerted him that he would likely be required to work overtime the weekend surrounding March 26, 2005. Accordingly, the Department rightfully declined to excuse this refusal.

4. The September 2, 2005 charge involved three occurrences for which Appellant submitted excuses that were not medically related. Clearly, having tickets for a football or a baseball game on weekends when mandatory overtime would likely be required is hardly a valid excuse for refusal. Recreation does not take precedence over employment-related obligations.

5. Appellant's refusal to work overtime on April 16, 2005 so he could attend [to] his eleven year [old] son after school is a particularly feckless excuse. His wife's "unpredictable work schedule" as argued by his attorney cannot shift blame for insubordination. Appellant shirked overtime yet again for what essentially was baby-sitting, hardly an emergency within the meaning of the policy.

6. Appellant's refusal of overtime on August 12, 2005 to attend an Hispanic Officers' Dinner was not unreasonable. Appellant previously had been excused from overtime to attend an Italian-American Officers' Dinner on March 5, 2005, and that episode was not included on the March 31, 2005 warning that enumerated four different refusals. Accordingly, Appellant had reason to believe that attendance at these work-related functions would excuse a refusal to work mandatory overtime despite the fact that these circumstances were not covered by the policy.

7. Considering the four refusals that were the subject of a single warning to be the first offense, and disregarding the August 12, 2005 refusal, I FIND that appellant violated the mandatory overtime policy without just cause ten times during 2005.

Base on those findings, the ALJ concluded:

Appellant refused to perform mandatory overtime on ten occasions during 2005 without good cause, that such misconduct constituted insubordination, neglect of duty, and conduct unbecoming a public employee within the meaning of the Civil Service Law, and that the prescribed sanctions including fines and/or suspensions without pay totaling fifty days were warranted, and finally that termination for the . . . refusals is justified.

On February 28, 2007, the Merit System Board (the Board) conducted "an independent evaluation of the record," and reviewed appellant's exceptions to the ALJ's initial decision.

The Board adopted the ALJ's decision, stating:

Notwithstanding the appellant's arguments to the contrary, the ALJ weighed the appellant's past record and his history and determined that the six-day, 10-day and 30-day suspensions and removal were appropriate. Indeed, the record before the ALJ clearly indicated a consistent, extended pattern of refusal to work mandatory overtime. The appellant provided virtually no defense for his refusal to work overtime, except for such specious reasons as attendance at athletic events. Moreover, the appellant's refusal based on his attendance at religious services is also unpersuasive. In fact, it is evident that the appointing authority has a process to accommodate employees when mandatory overtime conflicts with religious observances, so long as requests are made in advance, as was the case with the Muslim officer, but the appellant did not avail himself of that process. In short, the appellant received numerous warnings, minor discipline, and major discipline regarding his failure to work mandatory overtime and he has not changed his behavior. The Board emphasizes that a County Correction Officer is a law enforcement officer who, by the very nature of his job duties, is held to a higher standard of conduct than other public employees. Moreover, the Board agrees with the ALJ that the appellant's multiple refusals to work mandatory overtime were clearly inappropriate. Accordingly, notwithstanding the appellant's 13 year career, the Board determines that the sixday, 10-day and 30-day suspensions and removal are the appropriate penalties.

On appeal, appellant argues that the ALJ improperly included "three non-existent offenses" in determining that appellant was guilty of ten refusals. He cites to the dates of May 20, July 27 and September 2, 2005. It does appear that the ALJ erroneously included these three dates as overtime refusals; those dates represent the three occasions on which Scott filed disciplinary actions against appellant.

However, even when those three dates are eliminated, appellant nonetheless has a record of eight unexcused refusals: (1) the consolidated offenses of March 4, 11, 12, and 18, 2005; (2) March 26, 2005; (3) April 1, 2005; (4) April 2, 2005; (5) April 16, 2005; (6) August 12, 2005; (7) August 19, 2005; and (8) August 24, 2005. Even discounting the August 12, 2005 offense dismissed by the ALJ, appellant still has a record of seven unexcused mandatory overtime refusals.

Appellant argues that the March 26, 2005 offense must be discounted, thus reducing his offenses to six which would avoid the ultimate sanction of termination. This argument is without merit. The ALJ declined to discount March 26, 2005, when appellant attended an Easter vigil. The ALJ found that Holy Saturday is not a Holy Day of Obligation, and a non-mandatory religious observance did not constitute good cause to refuse overtime. To the extent appellant cited accommodations given to a Muslim officer's religious observances, the ALJ noted that the Muslim officer had requested such accommodations in advance, and those accommodations were a re-scheduling of the officer's regular shift and did not affect his overtime obligations.

Appellant argues that the mandatory overtime policy was subject to "lax" enforcement prior to officer Scott's arrival as his unit manager in February 2005. However, even accepting appellant's characterization of the prior enforcement as accurate, lax enforcement does not constitute abandonment of the policy. Newark Council No. 21 v. James, 318 N.J. Super. 208, 217 (App. Div. 1999). Appellant was on notice of the overtime policy. Having refused overtime on so many occasions, appellant had to have been aware that his name remained at the top of the eligible list for assignment to mandatory overtime.

Nonetheless, he assumed a risk by continually refusing overtime assignments.

We also reject, as without merit, appellant's argument that the mandatory overtime policy "as written is esoteric, and the manner in which it is enforced is subjective." The written policy sets forth an unambiguous "SCHEDULE OF DISCIPLINE" from the "First Offense" through the "Seventh Offense" culminating in termination. The policy also clearly defines the two recognized excuses: (1) an officer's "medical problem" documented by a physician's note; and (2) "an emergent situation as defined in [the union] contract" involving a close family member. No other excuses are valid.

Appellant argues that the ALJ's dismissal of the August 12, 2005 refusal, when he attended a Hispanic Court Officers' Society Dinner, demonstrates the "subjective" nature of the policy. We disagree. The ALJ gave appellant the benefit of the doubt on his August 12, 2005 refusal. The judge concluded that appellant could have reasonably expected to be excused from mandatory overtime to attend that dinner on August 12, because he had previously been excused on March 5 to attend an Italian- American Police Society Dinner.

Captain Scott's testimony on this issue justified the ALJ's decision to discount the August 12, 2005 refusal:

Q: You had said that there was one other time that Officer Matarazzo refused mandatory, but non-sickness.

A: I was in . . . a transition period. That's why there are four refusals at the written state. I was still trying to get my bearings and . . . set up the office and find all the documents and things of that nature and at the time of the March 5th refusal Officer Matarazzo approached Lieutenant McCleary (phonetic). He did not approach me with that refusal.

Q: Then the Lieutenant would actually go to you -- I mean, ultimately it's your decision.

A: Yes. The Lieutenant did come to me, but it was after the fact and after he had already told Officer Matarazzo that he would be excused.

Q: Could you have told the Lieutenant no?

A: Like I said, it was already after the fact, I explained after the fact to the Lieutenant and to Officer Matarazzo that it was not acceptable.

Q: But --

A: And that it would be the one and only time.

Q: But could you have said no?

A: I could have, yes.

Q: So you could obviously [have] told . . . Officer Matarazzo to work?

A: It was -- the refusal had already taken place. I couldn't have then told him to work. This was after the fact. That it was brought to my attention that the Lieutenant excused him for that day based on documentation.

Appellant was thus on notice that Scott would not accept such excuses, and only did so on that occasion because appellant had relied upon the decision of the Lieutenant, with which Scott disagreed.

Our scope of review of an administrative agency's action is limited, and the burden on appellant is a stringent one. To overturn the Board's decision, we must be convinced that it was "arbitrary, capricious, unsupported by substantial credible evidence contained in the record, or in violation of express or implicit legislative policy." In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) certif. denied, 170 N.J. 85 (2001).

"Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

The record clearly supports the Department's decision.

Appellant does not deny that he refused mandatory overtime on each of the dates involved. In fact, he seeks to avoid termination by eliminating only the March 26, 2005 refusal. For the reasons stated we have rejected this contention. The Department's mandatory overtime policy, including its schedule of progressive discipline, is clear and unambiguous. Appellant refused mandatory overtime assignments at his peril. In fact, appellant served no mandatory overtime in all of 2005.

Affirmed.

20080811

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