September 28, 2010
IN THE MATTER OF MANUEL A. OLIVEIRA.
On appeal from a Final Decision of the Civil Service Commission, CSC Docket No. 2006-4937.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 15, 2010
Before Judges Cuff and Fasciale.
Appellant Manuel Oliveira appeals from a final decision of the Civil Service Commission (CSC)*fn2 denying appellant's application for back pay and counsel fees. Appellant is a Senior Corrections Officer with the Department of Corrections (DOC), who was removed from his employment on May 31, 2001. On October 20, 2005, the Merit System Board found that mitigating circumstances warranted a six-month suspension rather than removal. Following denial of a motion for reconsideration by the DOC, appellant returned to duty and pay status on April 24, 2006.
When the parties failed to agree on the amount of back pay and other benefit credits due to appellant, he requested the Merit System Board resolve these issues. In support of his application for back pay, appellant certified that he did not work for the entire time of his suspension. He further certified that he applied for three security positions with three different companies, but did not obtain a position. He further stated that he applied for a job in construction, which he did not obtain. He surmised that he was perceived as "damaged goods" and made no further efforts to obtain employment.
In its final decision, the CSC found that appellant was not entitled to back pay because he did not make reasonable efforts to mitigate his damages. The agency also found that appellant was not entitled to counsel fees because the record did not support a finding that his employer unreasonably delayed implementation of the reinstatement order. The CSC awarded appellant twenty vacation days for 2005 and 2006, the maximum number of days permitted by statute.
On appeal, appellant argues that the CSC acted arbitrarily and unreasonably in denying back pay and limiting his vacation time. He further contends he is entitled to counsel fees. We disagree. We have thoroughly reviewed the record and find that the decision of the CSC is supported by sufficient credible evidence on the record as a whole, Rule 2:11-3(e)(1)(D), and is consistent with the law governing the award of back pay and benefits, O'Lone v. Dep't of Human Servs., 357 N.J. Super. 170 (App. Div. 2003). See N.J.S.A. 11A:6-2(f); N.J.A.C. 4A:6-1.2(g).