On appeal from the Civil Service Commission, CSC Docket No. 2008-2716.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...