On appeal from a Final Administrative Decision of the Civil Service Commission, Docket No. 2008-1646.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
The City of Linden (City) appeals from an April 16, 2009 final decision of the Civil Service Commission*fn1 (Commission) that reversed an Administrative Law Judge's (ALJ) order that upheld the City's termination of its employee, respondent Damien Johnson. Although the Commission affirmed the ALJ's determination that Johnson's conduct warranted discipline, the Commission modified Johnson's removal to a three-month suspension and ordered his immediate reinstatement with appropriate back pay, benefits and seniority. The City maintains that the Commission's reduction of the penalty was arbitrary and capricious. We disagree and affirm.
Johnson's employment with the City as a sanitation worker began in May 2002. Although he incurred no disciplinary infractions in the first sixteen months of his employment, he was disciplined on three different occasions between September 29, 2003 and October 10, 2003. The three incidents included: attacking a supervisor after the supervisor chastised him for throwing garbage cans; cursing at and threatening a City resident; and becoming involved in a verbal and physical altercation with a fellow employee.
The incident in question occurred on September 24, 2004 when Johnson initiated a fist fight with a supervisor, Richard Kovac. Johnson angrily pulled Kovac, a much older man, out of the driver's seat of a garbage truck and began a physical altercation with him. The record demonstrates that although Johnson was the one who initiated the incident by pulling Kovac out of the driver's seat and threatening him, it was actually Kovac who threw the first punch. Because of the serious nature of the incident, and because Johnson had sustained so many citations for violent and threatening behavior in less than two years, the City removed him from his position and terminated his employment. The City's decision was affirmed by the ALJ in a written decision, from which Johnson appealed.
Upon its de novo review of the record, the Commission agreed with the ALJ's assessment of the charges but did not agree with her recommendation to uphold the removal. The Commission reasoned:
In determining the proper penalty, in addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the [Commission] also utilizes, when appropriate, the concept of progressive discipline. It is settled that the theory of progressive discipline is not "a fixed and immutable rule to be followed without question." Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant's offense, the concept of progressive discipline, and the employee's prior record. In the instant matter, the appellant's prior disciplinary history since his employment in 2002 includes a three-day suspension in October 2003 for an incident in which the appellant threw a garbage can while on duty and when confronted by his supervisor, he became hostile and cursed repeatedly; and a one-day suspension in November 2003 for a verbal and physical confrontation with a co-worker. It also noted that the appellant was served with a F[inal] N[notice] [of] D[isciplinary] A[ction] dated October 15, 2003 which indicated that he cursed at a City resident and it was agreed upon at the time of the hearing that he would seek help from the Employee Assistance Program.
Given that the record only evidences minor discipline for similar infractions, the [Commission] does not find the appellant's conduct so egregious as to warrant removal without following the tenets of progressive discipline. While the [Commission] is mindful of the seriousness of the appellant's conduct, the [Commission] notes that the evidence indicates that the appellant did not extend the incident. Rather, Kovac reinitiated the altercation after he and the appellant had been separated. Additionally, the [Commission] notes that Kovac only received a three-day suspension for his conduct. Therefore, the [Commission] determines that the appropriate penalty is a three-month suspension. It is noted that the three-month suspension is a severe major disciplinary action which places the appellant on notice that any future infractions may lead to more serious penalties, up to removal. Accordingly, the foregoing circumstances provide a sufficient basis to modify the removal imposed by the appointing authority to a three-month suspension.
Since the penalty has been reduced, the appellant is entitled to mitigated back pay, benefits and seniority pursuant to N.J.A.C. 4A:2-2.10.
On March 27, 2008, the Commission denied the City's request for a stay. On April 16, 2009, the Commission ordered the City to issue Johnson back pay in the amount of $21,151.*fn2 The City appealed from the ...