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In the Matter of

August 28, 2012

IN THE MATTER OF KELLY NELSON.


On appeal from the Civil Service Commission, Docket No. 2009-4294.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 22, 2012

Before Judges Simonelli and Waugh.

Kelly Nelson appeals the final agency decision of the Civil Service Commission (Commission) upholding her resignation not in good standing. We affirm.

I.

We discern the following facts and procedural history from the record on appeal, including the record of the hearing in the Office of Administrative Law (OAL).

Nelson was employed by the City of Newark (City) as a data processing technician from 2002 until 2009. Prior to 2009, Nelson received five warning notices and a one-day suspension. In 2009, Nelson was hospitalized between February 18 and 22 for anxiety and depression. Nelson provided the City with medical documentation for her absence from work during that period.

Nelson and the City agree that she was absent from work from March 16 through March 20. The City claimed Nelson was also absent on March 12 and 13, but Nelson maintained that she punched in and worked for at least part of both days, but forgot to punch out. According to Nelson, she notified the "front desk" regarding her absences. However, according to Nelson's supervisor, Alexander Dambach, Nelson did not contact him or any other supervisory employee with respect to her absence. Dambach testified that Nelson was previously notified several times, both verbally and in writing, that she was required to notify a supervisor when she was going to be absent from work or leave early.

When Nelson returned to work on March 23, Dambach served her with a preliminary notice of disciplinary action for "absence without notice for more than 5 days; neglect of duty; and failure to perform duties." She was temporarily suspended that day. The preliminary notice stated that the City was seeking Nelson's resignation not in good standing. Nelson provided the City with a short note from her doctor, dated March 29, stating "Nelson was out of work per [the doctor's] recommendation" from March 16 through March 27.

An internal departmental hearing was held on April 17. On June 5, the City issued a final notice of disciplinary action sustaining the charges and confirming Nelson's resignation not in good standing. Nelson appealed to the Commission on June 11. The case was transferred to the OAL as a contested case, and was heard by an administrative law judge (ALJ) on January 7 and 14, 2010.

The ALJ issued her initial decision on October 14. The ALJ found that both Nelson and Dambach were credible witnesses, and that Dambach's testimony "was relatively consistent" with Nelson's testimony. She also found that Nelson had previously "been on an authorized leave and had not been provided with FMLA*fn1 leave information" by the City.*fn2 The ALJ concluded that the City did not prove the charges by a preponderance of the evidence, that the decision to terminate Nelson was "inappropriate under the circumstances," and that "the circumstances of the case [did] not warrant a disciplinary action."

The City filed exceptions to the ALJ's decision with the Commission, and Nelson responded. On April 6, 2011, after a de novo review of the record before the ALJ, the Commission issued its final decision. The Commission rejected the ALJ's findings of fact and conclusions of law. It found that the City had proven its case and imposed discipline in the form of resignation not in good standing. The Commission found that Nelson was absent from March 16 through March 20 without notifying any supervisor or other employee in a position of authority that she would be absent on those days. The Commission further found that, pursuant to ...


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