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In re Novielli

February 24, 2009

IN THE MATTER OF GIACOMO NOVIELLI


On appeal from a Final Decision of the Merit System Board, DOP Docket No. 2006-410.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 27, 2009

Before Judges Skillman and Grall.

Giacomo Novielli, who was formerly employed as a correction officer by the Hudson County Department of Corrections (HCDOC), appeals from a final order of the Merit System Board of the Department of Personnel rejecting his challenge to HCDOC's decision to treat his unauthorized absences as a "resignation not in good standing." We affirm, substantially for the reasons stated in the written decision of the Administrative Law Judge (ALJ), which the Board accepted and adopted. That decision "is supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D).

Novielli was hired by the HCDOC in 1997. On January 1, 2005, he was given a written warning advising that "[c]ontinued misuse of sick leave or absenteeism [would] result in [his] being subject to discipline, including discharge." By February 8, 2005, Novielli had exhausted all of his sick leave for 2005. Although he did not have approval and had not applied for any type of leave, Novielli failed to report for work on February 9 and all subsequent workdays through February 22, 2005.

By letter dated February 23, 2005, the Director of the HCDOC notified Novielli that because of his absences on more than five consecutive days without the approval of his supervisor, his position would "be recorded as resignation not in good standing." On the same day, the HCDOC issued a preliminary notice of disciplinary action charging resignation not in good standing and violations of other departmental rules.

At Novielli's request, the HCDOC held a hearing and concluded that all charges were substantiated. Novielli filed an appeal with the Board, which the Board referred to the Office of Administrative Law for a hearing. The ALJ credited the testimony of the HCDOC's primary witness, Captain Stevette Scott. Based on Scott's testimony and the attendance records she presented, the ALJ concluded that Novielli had been absent from February 9 through February 22, 2005 without obtaining approval or applying for any type of leave.*fn1 The Board adopted this decision.

On appeal Novielli argues:

I. RESPONDENT FAILED TO MEET ITS BURDEN IN ESTABLISHING PETITIONER WAS CHRONICALLY OR EXCESSIVELY ABSENT.

II. THE PENALTY OF REMOVAL WAS ARBITRARY AND CAPRICIOUS AS EXCESSIVE AND DISPROPORTIONATE TO THE OFFENSE.

III. PETITIONER NEVER EFFECTIVELY RESIGNED NOT IN GOOD STANDING.

IV. RESPONDENT FAILED TO DEMONSTRATE PETITIONER NEGLECTED HIS DUTIES.

V. PETITIONER WAS DEPRIVED OF HIS PUBLIC EMPLOYMENT WITHOUT BEING AFFORDED ...


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