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Steven Fleming v. State of New Jersey

March 24, 2011

STEVEN FLEMING, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, COLLEGE OF NEW JERSEY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2377-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued January 6, 2011

Before Judges Carchman and Messano.

Plaintiff Steven Fleming appeals from the Law Division's order that granted defendant, the State of New Jersey/The College of New Jersey (TCNJ), summary judgment and confirmed an arbitration award previously entered in defendant's favor. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

Plaintiff was employed as a sergeant in the campus police force at TCNJ. On April 5, 2007, TCNJ served plaintiff with a "Preliminary Notice of Disciplinary Action" seeking his removal from office based upon charges of "Conduct Unbecoming a Public Employee," N.J.A.C. 4A:2-2.3(a)(6), and "Other Sufficient Cause," N.J.A.C. 4A:2-2.3(a)(11). The notice was accompanied by a letter advising plaintiff that this action was "based on information contained in a report prepared by the Mercer County Prosecutor's Office [the MCPO]," and further telling plaintiff that termination would be recommended "upon final disciplinary action."

The MCPO report included plaintiff's admission that he had "inject[ed] steroids on two occasions, January 9, 2007, and January 17, 2007." Plaintiff also refused "to identify the person who sold [him] the steroids."

A departmental hearing was held on May 31, at which plaintiff was present and accompanied by his union representative. See N.J.A.C. 4A:2-2.6 ("Hearings before the appointing authority"). By letter to Vivian Fernandez, TCNJ's

Associate Vice President of Human Resources, dated June 15, the hearing officer, Matthew Manfra, sustained the preliminary decision to remove plaintiff. Manfra specifically noted that plaintiff contended the disciplinary charges were not brought "within forty-five days." However, Manfra advised Fernandez "that the appointing authority . . . was not made reasonably aware of [plaintiff's] potential infraction until March 29, 2007. That was the date of the letter sent from the [MCPO] to [TCNJ]."

On June 18, Fernandez advised plaintiff in writing that she concurred with Manfra's recommendations. She enclosed a "Final Notice of Disciplinary Action" that sustained both charges contained in the specifications and removed plaintiff from office effective April 5, 2007. Fernandez further advised plaintiff to review the matter with his union representative since the collective bargaining agreement "contain[ed] a provision regarding disciplinary matters."

On June 19, 2007, the union filed a grievance on plaintiff's behalf and requested the matter be scheduled for arbitration under the terms of the collective bargaining agreement. Plaintiff presented only one issue in the grievance, specifically that the union contract required that "all disciplinary charges shall be brought within 45 days of the appointing authority reasonably becoming aware of the offense." Plaintiff contended that TCNJ did not comply with this requirement and the charges should be dismissed.

An arbitrator was mutually chosen by the parties, and hearings were held on January 17 and 31, 2008, at which a number of witnesses testified. On June 6, 2008, the arbitrator issued an extensive, written opinion and entered an award in TCNJ's favor. We recite some of the factual findings and legal conclusions reached by the arbitrator because they place plaintiff's arguments in the proper context.

TCNJ adopted a mandatory drug testing policy to which plaintiff was subject. The policy complied with the Attorney General's and the MCPO's guidelines on random drug testing for law enforcement officers.

On January 14, 2007, TCNJ Patrol Officer Claude Mastrosimone and Detective Carlos Santiago were reviewing videotape footage of a traffic stop that occurred on campus that day. At some point, they rewound the tape back to January 10. Although they were unable to see plaintiff on the tape because it was after nightfall, Mastrosimone and Santiago heard a conversation between plaintiff and a campus security guard. Plaintiff ...


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