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In the Matter of the


August 9, 2012


On appeal from the Decision of the Commissioner of Education, Docket No. 30-2/11.

Per curiam.


Argued May 30, 2012

Before Judges Messano and Kennedy.

Donald Dudley appeals from the October 21, 2011 final decision of the Acting Commissioner of Education (the Commissioner). The Commissioner determined that, based upon the initial decision of the administrative law judge (ALJ), Dudley's employer, the Board of Education of the Township of Neptune (the Board), had sustained charges of failure to follow attendance and reporting procedures; sleeping on the job; chronic absenteeism; and a pattern of neglect, misbehavior and other offenses. Although the ALJ recommended a six-month suspension as discipline, the Commissioner concluded that termination was appropriate.


We set forth some preliminary background that is undisputed. Dudley commenced employment as a substitute custodian with the Board during the 2002-03 school year. He was again hired the following school year in the same capacity. The Board employed him as a permanent school custodian commencing in October 2004. He acquired tenure three years later in October 2007.

On January 10, 2011, the Board certified tenure charges against Dudley based upon the affidavit of Donald Frangipane, its Facilities Engineer and Dudley's superior. Dudley filed his answer and the matter was referred to the Office of Administrative Law (OAL). Frangipane, David Mooij, the Board's Superintendent of Schools, Dudley and two school custodians testified at the hearing that took place over three days.

Although the ALJ determined that some specific allegations regarding the first charge -- failure to report and follow procedures -- were not sustained, she determined the Board had established a number of specific violations by Dudley. She concluded that Dudley "left work at least two hours early without reporting it on October 27, 2007." On this day, Frangipane personally visited the school Dudley was assigned to at 4:00 a.m. and found no one present. Frangipane rang the fire alarm in an effort to raise Dudley, but he never answered. Additionally, the back door of the school was unlocked, the lights of the school were on and the burglar alarm was off.

On June 21, August 13, 19, 24, 27, and September 9, 2010, Dudley was either absent from work, or left early, and failed to properly report his absences. His failure to utilize the Board's computerized personnel accounting system, known as "Aesop," denied the Board the opportunity to employ a substitute janitor.

The ALJ also determined that Dudley submitted a vacation request for August 30 through September 3, 2010. Pursuant to the collective bargaining agreement between the Board and its custodians, vacation requests "shall not be granted . . . during the last two weeks prior to the reopening of school in September." Although the testimony was conflicting, the ALJ found that this prohibition was "longstanding and well[-] known," and that Dudley "failed to comply with the policy."

As to charge two, sleeping on the job, the ALJ noted that Dudley had received a written warning after being found asleep in the faculty lounge on November 2, 2007. She also credited Frangipane's testimony that he found Dudley asleep on January 27, 2010, and sustained the charge because "there [wa]s no real dispute that Dudley was sleeping for a period of time on both occasions . . . ."

The ALJ also sustained the charge of chronic absenteeism, noting that Dudley was "absent from his position fifty-three days in an eight-month period and sixty-two days in one three-month period." These extensive absences were occasioned because Dudley underwent shoulder and back surgery.

Lastly, the ALJ described the fourth charge as "essentially collaps[ing] all of the incidents in question into a charge of an ongoing pattern of neglect, misbehavior, and other offenses . . . ." Recounting her prior findings, the ALJ noted that "Dudley has not managed an event-free year since acquiring tenure, although to be fair, 2008 was only marred by the lingering absences related to shoulder surgery."

Regarding the appropriate penalty, the ALJ noted that Dudley argued there was an "absence of progressive discipline," and she cited a provision of the Board's policy that read:

Discipline will include as appropriate, verbal and written warnings, transfer, suspension, freezing wages and dismissal; discipline will provide, wherever possible, for progressive penalties for repeated violations.

The ALJ determined that "[a]lthough [Dudley]'s failures were very serious, the lack of recent warning in the face of some significant occurrences, indicates that a penalty short of dismissal is warranted." She recommended a six-month suspension plus withholding of any salary increments.

Each side filed exceptions that were considered by the Commissioner. In his decision, the Commissioner "conclude[d] that the record support[ed] the charges." He noted the ALJ's concern that Dudley "did not receive many written warnings about his shortcomings," and that his March 2010 evaluation "included no reference to the January 27, 2010 incident where [Dudley] slept on the job." However, the Commissioner noted that the March 2010 evaluation was not done by Frangipane, "the individual who had been most responsible for supervising and disciplining [Dudley]."

The March 2010 evaluation notwithstanding, the Commissioner finds that the record is sufficient to support [Dudley]'s dismissal from employment. More specifically, the Commissioner finds that over the course of respondent's six or seven years of permanent employment -- despite some periods without documented infractions -- the same problems concerning attendance and reporting were manifested by [Dudley]. In August and September of 2010 the problems accelerated. The Commissioner is not persuaded that further warnings would have cured [Dudley] of his pattern of ignoring district procedures.

Nor is there, in tenure matters, any statutory mandate to impose progressive discipline. . . . Had [the Board] . . . chosen to seek [Dudley]'s removal after the second sleeping incident, no progressive discipline would have been required.

The Commissioner affirmed the tenure charges and terminated Dudley's employment with the Board. This appeal followed.


Before us, Dudley argues that: the Commissioner's decision was arbitrary, capricious and unreasonable because he failed to accord the ALJ's factual findings appropriate deference; decisions by the Commissioner in other cases support the ALJ's penalty of a six-month suspension; and the Commissioner "failed to properly apply the principle of progressive discipline that had been specifically adopted by" the District "in personnel matters affecting its employees." We have considered these arguments in light of the record and applicable legal standards. We affirm.

"The scope of [our] review is limited. An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citation omitted). We accord the agency's decision "substantial deference . . . even if [we] would have reached a different result in the first instance." Id. at 28 (citations omitted).

A reviewing court may "alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency.'" Ibid. (quoting In re Polk, 90 N.J. 550, 578 (1982)). "[W]hen reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (quoting Polk, supra, 90 N.J. at 578) (internal quotation marks omitted).

The Court has had occasion to recently "re-examine the principles of 'progressive discipline'" in the context of public employment. In re Stallworth, 208 N.J. 182, 186 (2011).

"[T]he concept of progressive discipline has been utilized in two ways": (1) to "ratchet- up" or "support imposition of a more severe penalty for a public employee who engages in habitual misconduct"; and (2) "to mitigate the penalty" for an employee who has a record largely unblemished by significant disciplinary infractions." Herrmann, supra, 192 N.J. at 30-33. On the other hand, progressive discipline is not "a fixed and immutable rule to be followed without question" because "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." In re Carter, [191 N.J. 474, 484 (2007).] [Stallworth, supra, 208 N.J. at 196).]

In Stallworth, id. at 187, the employee was charged with various offenses arising from his use of an agency vehicle to drive to a convenience store and extend his fifteen-minute break by an additional hour. The ALJ sustained the charges and recommended termination in light of Stallworth's extensive disciplinary history. Id. at 189-90. The Civil Service Commission imposed a four-month suspension instead, and the agency appealed. Id. at 190-91. We reversed and reinstated the termination. Id. at 191-92. The Court affirmed our decision, but nonetheless remanded the matter to the Civil Service Commission for consideration of Stallworth's prior disciplinary record. Id. at 200-01. In so doing, the Court restated the analytic paradigm to be applied in assessing the issue of progressive discipline:

To assure proper progressive discipline, and a resulting penalty based on the totality of the work history, an employee's past record with emphasis on the reasonably recent past should be considered. This includes consideration of the totality of the employee's work performance, including all prior infractions. . . . [P]rogressive discipline is a flexible concept, and its application depends on the totality and remoteness of the individual instances of misconduct that comprise the disciplinary record. The number and remoteness or timing of the offenses and their comparative seriousness, together with an analysis of the present conduct, must inform the evaluation of the appropriate penalty. Even where the present conduct alone would not warrant termination, a history of discipline in the reasonably recent past may justify a greater penalty; the number, timing, or seriousness of the previous offenses may make termination the appropriate penalty. [Id. at 199 (citations and internal quotation marks omitted).]

Applying these standards to the case at hand, the Commissioner's decision that termination was appropriate was not arbitrary, capricious or unreasonable.

Dudley received two letters of reprimand during the 2007-08 school year, the first coming the same month he received tenure. That reprimand dealt with Dudley's early morning absence from a school that he left open and unalarmed. The next month, Dudley received another letter of reprimand because he was found sleeping on the job. His 2008 evaluation noted other problems:

Overall Mr. Dudley is not meeting our expectations as a custodian. This past year we documented the following unacceptable behavior. Sleeping on the job, leaving the building during his shift other than for a regularly scheduled lunch break and disregarding a supervisors [sic] request for a meeting. Mr. Dudley must improve the cleanliness of his run and his attitude towards work in the coming year. Failure to do so can affect future employment.

Although his 2010 evaluation made no mention of the second sleeping-on-the-job incident, there was no dispute that Dudley was in fact again caught sleeping in the faculty lounge while on duty. He continued to evidence problems at work during the remainder of 2010. Given his multiple and repeated transgressions, the penalty imposed upon Dudley does not "shock[] . . . one's sense of fairness." Polk, supra, 90 N.J. at 578.

We deem any other arguments that we have not specifically addressed to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).



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