On appeal from the Acting Commissioner of Education, Agency Docket No. 613-10/10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Graves, J. N. Harris and Koblitz.
Appellant Danny Castro appeals from the May 2, 2011 final decision of the Acting Commissioner of Education, adopting the Administrative Law Judge's (ALJ) determination upholding Castro's dismissal from his tenured position as an attendance officer for excessive absenteeism and unbecoming conduct consisting of insurance fraud.*fn1 After using the requisite deferential standard in reviewing the record in light of the contentions advanced on appeal, we affirm.
The record of the three-day hearing before the ALJ revealed the following facts regarding the charge of excessive absences. Castro was hired by the Union City Board of Education (the Board) as an attendance officer on October 1, 2001. On September 29, 2010, the Board charged Castro with excessive absenteeism, extending from the 2001-2002 school year through the 2009-2010 school year. He is a ten-month per year employee, entitled to ten sick days and two personal days each year.
During the 2001-2002 school year, Castro was absent a total of eighteen days: one sick day, one personal day, and sixteen days due to a suspension with pay for a New York City arrest.
The charges were ultimately dismissed. He achieved tenure in his position on October 1, 2002. See N.J.S.A. 18A:38-33.
On March 27, 2004, Castro was again suspended with pay for sixty-one days because of an arrest in Union City. These charges were also dismissed.
During the 2004-2005 school year, Castro was absent a total of twenty-two days: two personal days, five days for family illness, and fifteen sick days, which exceeded his sick day allowance by five days. Castro was docked one day's pay for excessive absences during the school year. Assistant Superintendent of Personnel Gerald Caputo sent a letter to Castro notifying him that he had exhausted his sick day allowance. It instructed Castro to sign the letter and return it to the superintendent's office. The letter also indicated that a failure to do so would constitute insubordination, which could expose Castro to further disciplinary action. Castro failed to comply.
Castro was absent a total of 16 days during the 2005-2006 school year: fourteen sick days and two personal days. Caputo sent three excessive absence letters to Castro during the school year. A February letter docked Castro one day's pay; an April letter docked him two days' pay; a May letter docked him an additional one day's pay. Each of these letters included similar instructions for Castro to sign and return the letter to Caputo. Castro failed to do so for each of these letters.
From September 22 to October 31, 2006, Castro was absent a total of eleven days; nine sick days and two personal days. On October 4, 2006, Castro requested and was granted an unpaid leave of absence from October 31, 2006 through the end of the school year to attend to family matters.
During the 2007-2008 school year, Castro was absent a total of fifteen days: eleven sick days, two personal days, and two days of unpaid leave. In March, Caputo again sent Castro a letter docking him a total of three days' pay for excessive absenteeism.*fn2 Castro again failed to sign and return the letter to Caputo.
During the 2008-2009 school year, Castro was absent a total of thirteen days: two personal days and eleven sick days. In June, Castro received another letter docking him one day's pay for excessive ...