January 13, 2010
IN THE MATTER OF JOSEPH DIMEMMO, MERCER COUNTY.
On appeal from the Civil Service Commission, CSC Docket No. 2008-2716.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 16, 2009
Before Judges Axelrad and Espinosa.
Petitioner, Joseph DiMemmo, is a senior corrections officer at the Mercer County Correctional Center (the Correction Center). He appeals from a final decision of the Civil Service Commission that found him guilty of the disciplinary charge of chronic and excessive absenteeism and imposed a fine that was equivalent to ten days' pay. We affirm.
The terms of DiMemmo's employment are subject to the collective bargaining agreement between the County of Mercer and PBA Local 167, Mercer County Correctional Officers (the CBA). The CBA contains provisions that govern paid sick leave and unpaid sick leave. Pursuant to Paragraph 16.4a of the CBA, paid sick leave is available when employees "are unable to perform their work by reason of personal illness, maternity, accident or exposure to contagious disease" or, in limited instances, when an immediate family member is seriously ill. DiMemmo was entitled to fifteen days of paid sick leave in each calendar year, to be credited effective January 1 of each year.
In 2007, DiMemmo exhausted his paid sick leave by April 12. As a result, any absences due to illness thereafter were subject to the "Non-Paid leaves of Absence" provisions of the CBA, which read in pertinent part as follows:
17.1 All employees covered by this agreement shall be entitled to a leave of absence without pay for personal illness.
a. Said sick leave of absence without pay may only be utilized by employees when they are unable to perform their work by reason of personal illness, accident or exposure to contagious disease.
b. To be eligible for sick leave of absence without pay, an employee shall be required to provide the Warden, Mercer County Jails, with documentation from their personal physician detailing the nature of the illness, and the length of expected absence from duty. Said leave of absence must be approved by the County Physician. All employees shall be required to be examined by the County Physician and certified by him/her as fit to return to duty prior to their return to work. [(Emphasis added).]
Therefore, both paid and unpaid sick leave is only available to employees who are unable to work as a result of personal illness and certain requirements must be met for an employee to be eligible for sick leave of absence without pay.
The Correction Center has a written sick leave policy, contained in all Standards and Operating procedures Manuals, SOP 132 (the SOP). As essential personnel, all corrections officers are subject to this policy. The SOP states that "[e]mployees will be subject to Abuse of Sick Leave disciplinary action on the first absence and any subsequent absences when allotted sick time is exhausted." Consistent with this policy, Richard Bearden, Captain of the Correction Center, testified that a disciplinary charge of abuse of sick time is sought whenever an employee exceeds the fifteen days of sick leave allotted. Pursuant to the Mercer County Public Safety (Law Enforcement) Table of Offenses and Penalties, discipline is imposed on a progressive basis. For the offense of "chronic or excessive absenteeism from work without pay," the sanction for the first infraction (Step 1) is an official written reprimand. Thereafter, infractions are subject to suspensions that increase from five days for a second infraction (Step 2), ten days for a third infraction (Step 3), twenty days for a fourth infraction (Step 4) and culminate in removal for a fifth infraction.
In late April 2007, DiMemmo fell ill at work. He reported to his supervisor that he felt "flushed" and his heart was racing. Pursuant to his Shift Commander's direction, DiMemmo went to Robert Wood Johnson Hospital where an EKG was normal but his blood pressure was still high. Upon discharge from the emergency room, it was recommended that he see a cardiologist and follow up with his personal physician. The sick leave certification completed by his personal physician, Dr. Edward Laub, on May 2, 2007 stated that DiMemmo was suffering from anxiety, obesity and palpitations. Dr. Laub certified that treatment with "Efficor" [sic] was required for two months and that DiMemmo could return to work July 1, 2007. By memorandum dated June 28, 2007, the County granted him leave under the Family and Medical Leave Act (FMLA), 29 U.S.C.A. §§ 2601 to 2654, from May 1 through June 30, 2007 and advised him that with this leave of absence, DiMemmo exhausted the maximum of twelve weeks allowable under the FMLA. DiMemmo was cleared to return to work on July 2, 2007.
On July 15, 2007, DiMemmo began having "debilitating eye pain and migraines." He saw Dr. Laub on July 19 and was referred to an ophthalmologist, who diagnosed sinusitis and prescribed Tobradex eye drops, which reduced the eye pain.
DiMemmo was out sick July 16-20 and July 23, 2007. Although he knew he was out of sick leave, it is undisputed that DiMemmo did not submit "documentation from [his] personal physician detailing the nature of the illness, and the length of expected absence from duty" to the Warden or have the leave approved by the County Physician as required by Paragraph 17.1(b) of the CBA. It is, therefore, undisputed that he failed to meet the requirements to be eligible for unpaid sick leave. Instead, he called "off each day and then followed up with [his] doctor to return back to work." He saw the County Physician on July 23 to be cleared to return to work. In short, the only documentation DiMemmo provided in July 2007 related to his ability to return to work and not to his inability to work due to personal illness on the days he was absent.
On August 3, 2007, the County issued a Preliminary Notice of Disciplinary Action to DiMemmo, charging him with conduct unbecoming a county employee, N.J.A.C. 4A:2-2.3(A)(6) and a third infraction (Step 3)*fn1 of chronic or excessive absenteeism from work without pay for his absences on July 16, 17, 18, 19, 20 and 23, 2007, N.J.A.C. 4A:2-2.3(A)(4). Following a hearing, the County issued a Final Notice of Major Disciplinary Action, finding that the charges were sustained as charged, and imposing a fine of $2920.50, the equivalent of ten days' pay. DiMemmo filed an appeal with the Merit System Board, which transmitted the matter to the Office of Administrative Law as a contested matter.
The County filed a motion for summary disposition. DiMemmo argued that factual and legal issues precluded summary disposition. Among the issues presented, he argued that he could not be found guilty of abuse of sick leave under the collective bargaining agreement because he alleged that illness caused his absences. In denying the motion, the Administrative Law Judge (ALJ) agreed with DiMemmo's position, stating that he "should be afforded an opportunity in a hearing to present sufficient, competent, and credible evidence to substantiate his allegation that illness prevented him from reporting to work." The ALJ observed that such evidence "could affect the type and extent of discipline [that] should be imposed."
The only witnesses at the hearing before the ALJ were DiMemmo and Captain Bearden. DiMemmo gave his own opinion that he was not capable of working an eight hour shift on the days he called in sick. A letter from Dr. Laub, dated July 15, 2008, was also submitted in evidence:
Mr. DiMemmo was started on Advicor and Byetta on June 20, 2007. His next visit on July 19, 2007 was for eye pain for four (4) days. He was referred to Dr. Desai, ophthalmologist, who felt Mr. DiMemmo had sinusitis and prescribed Tobradex eye drops. In addition to the above stated medications, Mr. DiMemmo was also on Effexor XR since May 2, 2007. Mr. DiMemmo had no complaints on these medications until November 13, 2007 when he complained of rash and swollen lips for one (1) month. He was advised to stay on Advicor and was evaluated in office on November 15, 2007. He has not been in the office since.
I hope the above clarifies Mr. DiMemmo's complaints, especially between July 16 to July 23, 2007. Please let me know if I can be of any further assistance. [(Emphasis added).]
Although the letter corroborated a complaint of eye pain for four days, it did not address the question whether the condition rendered DiMemmo unable to report to work for six days.
The ALJ found that the County had proven that DiMemmo was "chronically and excessively absent from work, to the detriment of the County and its responsibilities at the Correction Center." The ALJ stated, in part:
Prior to 2007 the appellant committed attendance violations for which he was subject to major discipline. By July 2007 the appellant had exhausted his leave time. In July 2007 he had eye pain and a headache and he called in to report that he would be absent from his scheduled shifts for five days. The appellant did not present 'sufficient, competent, and credible evidence' (which would require expert opinion) that his medical condition prevented him from reporting for his scheduled shifts. . . . The appellant also did not show that he requested and that the County denied a reasonable request for unpaid leave, and he was absent without approval when he knew or should have known that his services at the Correction Center were needed. [(Citations omitted).]
The ALJ dismissed the charge of conduct unbecoming a law enforcement officer, considering it to be merged into the chronic absenteeism charge.
The ALJ concluded that the civil service laws, rather than the County's Table of Offenses and Penalties, controlled the discipline to be imposed. He cited N.J.A.C. 4A:2-2.4, which provides, in pertinent part:
(c) An appointing authority may only impose a fine as follows:
2. In lieu of a suspension, when the appointing authority establishes that a suspension of the employee would be detrimental to the public health, safety or welfare;
The ALJ found that this standard was met here based upon factors both general to the operation of the Correction Center and specific to DiMemmo's circumstances. He noted that absenteeism by some corrections officers had resulted in security concerns and morale problems because other corrections officers have been ordered to work involuntary overtime and have had their requests for leave denied. In addition, the Correction Center was left at times with less than the optimal number of corrections officers to maintain order, security and safety at a facility housing offenders, some of whom are violent and maximum security risks. While these systemic issues had led the County to follow a practice of imposing a fine on corrections officers instead of a suspension for infractions, the ALJ noted factors specific to DiMemmo that justified the imposition of a fine: his "prior disciplinary record, the absenteeism's detriment to the mission of security in the Correction Center, and the number of days of absence without approval here." Accordingly, the ALJ ordered that DiMemmo be fined the equivalent of ten days' pay.
The Civil Service Commission (the Commission) accepted and adopted the ALJ's decision. In reviewing the penalty, the Commission noted the statutory and regulatory restrictions upon the imposition of a fine in lieu of a suspension, stating,
Where an appointing authority seeks to impose a fine in lieu of suspension, it must demonstrate that an employee's attendance is so critical to its operation that a disciplinary suspension could not be imposed, and that anything other than a fine would create the requisite public health, safety or welfare emergency. If a fine were allowed absent such a showing, there would be the opportunity for abuse since it would result in employees never receiving any other form of discipline.
The Commission stated that a blanket imposition of a fine in lieu of suspension is not permitted under this standard; that the standard will be met only in restricted situations and that the appointing authority must make a specific showing to justify the imposition of a fine.
The Commission concluded that such a showing was made here:
In the instant matter, absenteeism has caused reduction of staff at the Correction Center, involuntary overtime, and morale problems among the correction[s] officers. Additionally, Attendance and Overtime Records show that correction[s] officers worked overtime to cover the appellant's absences. Under these particular circumstances, there is sufficient evidence to demonstrate that a suspension of the appellant would cause further disruption on the operations of the Correction Center, which would be detrimental to public safety.
The Commission also observed that other factors were relevant to this determination, such as the nature of the offense, the concept of progressive discipline and the employee's prior record. Noting that DiMemmo's prior disciplinary history included two recent major disciplines for attendance-related infractions, the Commission concluded that a fine equivalent to ten days' pay was proper under the circumstances.
In this appeal, DiMemmo raises the following issues:
THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN THE CHARGE OF CHRONIC AND EXCESSIVE ABSENTEEISM AS TO JOSEPH DIMEMMO.
THE IMPOSITION OF A FINE WAS CONTRARY TO THE LAW AND PUBLIC POLICY.
Our role in reviewing the decision of the Commission is limited. In the absence of a "a clear showing that it is arbitrary, capricious, or unreasonable or that it lacks fair support in the record," the decision will be sustained. In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are bound to defer to the Commission's findings of fact "when they could reasonably be made considering the proofs as a whole and with due regard to the opportunity of the one who heard the testimony to assess credibility." Klusaritz v. Cape May County 387 N.J. Super. 305, 313 (App. Div. 2006).
We find no merit in DiMemmo's contention that the burden of proof was improperly shifted to him to support his claim that he was unable to work due to illness. As a preliminary matter, DiMemmo successfully resisted summary disposition in this matter, at least in part, based upon his argument that he should be provided the opportunity to present evidence to support this claim. The ALJ denied the motion for summary disposition, at least in part, to afford DiMemmo the opportunity to "present sufficient, competent and credible evidence to substantiate his allegation that illness prevented him from reporting to work."
Although the ALJ found DiMemmo's testimony that he suffered from eye pain and migraine headaches in July 2007 to be credible, he nevertheless concluded that DiMemmo had failed to present "'sufficient, competent and credible evidence' . . . that his medical condition prevented him from reporting for his scheduled shifts." Both the ALJ and the Commission apparently viewed it necessary for DiMemmo to produce expert testimony to show that illness prevented him from working. No authority has been cited to us to support such a requirement for expert testimony. However, we need not decide whether expert testimony was required here because the undisputed facts here are grossly deficient to show that DiMemmo was eligible for unpaid leave due to illness.*fn2
It was undisputed here that DiMemmo was absent from work for six days in July after he had exhausted both his paid sick leave and the leave available to him under the FMLA. Under these circumstances, unpaid sick leave was only available to DiMemmo if he was "unable to perform [his] work by reason of personal illness" pursuant to the terms of the CBA. Further, to be eligible for such leave, Paragraph 17.1(b) of the CBA required him to provide documentation from his personal physician detailing the nature of the illness and the length of expected absence from duty. The CBA also required the approval of the County Physician for such leave of absence. Therefore, DiMemmo's eligibility for unpaid sick leave was explicitly contingent upon his providing documentation of his illness and the approval of the County Physician. Yet, it is undisputed that DiMemmo did not submit such documentation and did not obtain the approval of the County Physician for such leave of absence. Even if he could have cured this deficiency retroactively, the July 15, 2008 letter of his personal physician failed to support his position that his symptoms in July 2007 made him unable to work. As a result, his absences in July 2007 cannot be excused as unpaid sick leave. The Commission's decision that he was guilty of chronic and excessive absenteeism is, therefore, well supported by the record.
The Commission correctly identified the standard applicable to the disciplinary action here. "[A] fine may only be imposed by an appointing authority as a form of restitution or in lieu of a suspension when a suspension would be detrimental to the public health, safety or welfare." N.J.S.A. 11A:2-20; see also N.J.A.C. 4A:2-2.4(c)(2). The challenges presented in staffing a facility that houses offenders are formidable. We agree that those challenges will not alone justify the imposition of fines in lieu of suspension in disciplinary actions. However, the Commission did not rest upon such a blanket policy. The Commission carefully identified and weighed such relevant factors as DiMemmo's disciplinary history and the fact that in an institution stressed by staff reduction and morale problems, other officers were required to work overtime to cover DiMemmo's absences. The Commission's conclusion that a suspension of DiMemmo "would be detrimental to the public health, safety or welfare" was, therefore, fairly supported by the record and was not arbitrary, capricious or unreasonable.