NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5106-18
A-5108-18
IN THE MATTER OF
WILLIAM ABLE,
CITY OF NEWARK.
___________________
Argued May 11, 2021 – Decided June 14, 2021
Before Judges Yannotti, Mawla and Natali.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2016-1907 and 2018-3594.
Benjamin Clarke argued the cause for William Able,
appellant in A-5106-18, respondent in A-5108-18,
(DeCotiis, FitzPatrick, Cole & Giblin, LLP, attorneys;
Benjamin Clarke, Alexander Hemsley, III, and Troy M.
Stackpole, on the briefs).
Bernard Mercado, argued the cause for Newark Board
of Education, respondent in A-5106-18, appellant in A-
5108-18, (Office of General Counsel, attorney; Brenda
C. Liss, of counsel and on the briefs; Bernard Mercado,
on the briefs).
Jonathan S. Sussman, Deputy Attorney General, argued
the cause for respondent New Jersey Civil Service
Commission (Gurbir S. Grewal, Attorney General,
attorney; Sookie Bae, Assistant Attorney General, of
counsel; Jonathan S. Sussman, on the brief and
statement in lieu of brief).
PER CURIAM
These appeals, which we consider back-to-back and have consolidated for
the purpose of writing a single opinion, relate to two Civil Service Commission
(CSC) final agency decisions that reinstated William Able to his position as head
custodian at Barringer High School in Newark but denied him back pay. We
affirm the CSC's decision reinstating Able but reverse in part its decision
denying entirely Able's back pay request and remand for further proceedings.
In A-5108, the Newark Board of Education (Board) challenges an April
6, 2018 CSC decision upholding the modification of Able's termination to a six-
month suspension. The Board maintains the CSC's decision was arbitrary,
capricious, and unreasonable as contrary to applicable law and the record
evidence. It also contends the decision is inconsistent with principles of
progressive discipline.
In A-5106, Able argues the CSC's June 12, 2019 determination denying
him a back pay award was unreasonable because the CSC failed to follow its
own regulations and refused to credit uncontested evidence in the record
regarding his good faith mitigation efforts. Able also argues the CSC ignored
applicable caselaw and statutory authority.
A-5106-18
2
We have considered the parties' contentions in the context of the record
and the applicable legal principles. For the following reasons, we affirm the
CSC's decision to suspend, rather than terminate, Able from his head custodian
position. We reverse in part the CSC's determination that Able was not entitled
to back pay for any portion of the approximate two-and-a-half-year period
between his improper termination and reinstatement, and conclude the CSC
erred when it denied Able back pay for the ten-weeks between the CSC's April
6, 2018 decision and his June 18, 2018 reinstatement. Apart from this period,
we affirm the CSC's decision denying Able's back pay request for the remaining
approximate twenty-four months.
I.
To provide context for our decisions, we provide an extended discussion
of the procedural history and facts, derived from the administrative record,
including testimony provided during the February 16, 2017 and May 5, 2017
hearings. Effective September 16, 2015, Able was terminated from his position
as senior custodian at Barringer High School in Newark due to an incident that
occurred on September 7, 2015, when Able permitted his uncle and children to
remove unsalvageable metal lockers from school property.
A-5106-18
3
On November 19, 2015, the Board issued a final notice of disciplinary
action (FNDA) removing Able from his job for conduct unbecoming a public
employee, misuse of public property, and other sufficient cause. Able appealed
the FNDA, and the matter was transferred to the Office of Administrative Law
for a determination as a contested case.
At the hearing, Able testified regarding the circumstances surrounding his
dismissal. He stated that in August 2015, he spoke with Carrieann Zielinski,
Barringer High School's Operations Manager, about removing old lockers
located on the first floor of the school because a majority of the lockers were
broken and would not stay completely shut. Able stated that students would
slam the locker doors and use them as trash receptacles. The lockers were also
believed to have exacerbated a rodent infestation problem.
Zielinski agreed and told Able that she would inform Keith Barton,
Barringer High School's Executive Managing Director of Operations, to let him
know the lockers were being removed. Able and Esther Williams, another
Barringer High School custodian, removed approximately 200 lockers over a
period of two to three days.
Once the lockers were removed, Able determined that some were
salvageable and placed them in Barringer's boiler room for use as storage. He
A-5106-18
4
moved the remaining damaged and unsalvageable lockers and positioned them
outside the school against a fence for later disposal.
On September 7, 2015 Able, along with his uncle and several of his
children, were seen on the school's video surveillance removing certain of the
discarded lockers and placing them in a gray work van. Able acknowledged that
the lockers placed in the van were not the same lockers stored along the fence.
He clarified that the lockers placed along the fence were the "first set," and that
he did not know what, if anything, happened to them.
Approximately a week later, Barton reviewed the September 7, 2015 video
surveillance footage and placed Able on administrative suspension. At the time
of Able's suspension, the Board had written policies in place that addressed the
disposal of "fixed assets." Barton stated that according to the policy, fixed assets
included furniture, smart boards, computers, or "anything that the school
purchases that . . . has some sort of useful life." Moreover, Barton stated that
senior custodians are required to know the fixed asset policy.
The policy stated that before a fixed asset could be removed, a memo was
required to be sent to the building administrator that included "the complete
description of the item and a brief description of the condition and use of the
equipment." It further provided that after "receipt of the memo from the
A-5106-18
5
requisitioner, appropriate steps [would] be taken by the building administrator
or his/her designee for proper disposal of the equipment." In addition, the policy
provided that "[i]n no instance should equipment be moved from a department
or disposed of without prior consent by the building administrators and
notification to the fixed asset supervisor."
Able testified that he was not aware of any policy that "prohibit[ed]
employees from taking stuff that's going to be discarded." Instead, it was his
understanding that he only needed approval from a supervisor to dispose of
items that had a barcode on it, otherwise, it was up to the employee's discretion
on how best to dispose of the items. Williams similarly testified that custodians
were permitted to use their discretion in the disposal of items unless it had a
barcode.
Zielinski stated that she emailed Barton on September 1, 2015, to notify
him about a large quantity of garbage Able discovered after he removed the
lockers. The email also provided that Zielinski "would prefer if the lockers were
removed permanently." Zielinski stated, however, that she did not authorize
Able "to take the lockers with him." Further, the record reveals that Able did
A-5106-18
6
not receive permission from Principal Mincy or Principal Dr. Breedlove1 to
"take building material out of the school."
Able admitted that with the assistance of his uncle and children, he
removed the lockers from the school. Able explained, however, that he did not
consider his actions to be stealing:
Well, I would say that it's not stealing because [the
lockers] . . . were going to the dumpster. That's what I
would say. If they . . . were good and they were going
to be placed, you know, somewhere else, then I would
say, yeah, then I stole them. But, in my mind, they were
. . . a few feet from the door. And they were, you know
they were garbage. So, they were going . . . to the
garbage anyway.
Able also acknowledged that he did not inform Barton or any supervisor
when he was confronted about the September 7, 2015 incident that his children
and uncle had helped him remove the lockers. He explained he:
[C]ouldn't tell them anything. Because like I said,
when they came there, after the incident, when they
came there, nobody spoke to me. The first time
somebody talked to me, when they were calling me up
to the security room, and everybody's yelling this and
yelling that . . . [e]verybody just accusing. So, I never
had a chance to tell them what happened because
nobody ever asked.
1
Neither Principal Mincy nor Principal Dr. Breedlove's first names are
indicated in the record.
A-5106-18
7
At the conclusion of the February 16, 2017 hearing, Able's counsel
requested that the Board "at least allow [him] to work in order to mitigate his
damages," which Administrative Law Judge (ALJ) Leland S. McGee denied.
Approximately a year later, on February 12, 2018, ALJ McGee issued an initial
decision finding that the Board had not met its burden of proving all the charges
by a preponderance of the evidence.
The ALJ addressed each of the charges filed against Able. First, ALJ
McGee found that Able did not engage in conduct unbecoming a public
employee by discarding the lockers. The ALJ concluded that "there were no
clearly established protocols for how to dispose of school property that was in
disrepair" and "there was no formal training for the custodians with respect to
disposal of school property." Further, the ALJ found that there was "a great deal
of latitude in determining what items should be disposed of and how." ALJ
McGee, however, did find that Able engaged in conduct unbecoming a public
employee by "allowing his children to enter the school building to assist in the
removal of the lockers."
In support of his decision, the ALJ found that there was "no evidence that
[Able] profited from the removal of the property" and "although a criminal
complaint was filed, no charges were brought against [Able] for removing the
A-5106-18
8
lockers." ALJ McGee also found the testimony of Able, Williams, and Zielinski
to be credible as to "whether or not there was a clear policy for disposal of school
property and whether or not that policy was clearly articulated to [Able] or any
other custodian within the . . . school district."
The ALJ also determined that Able misused public property when "he
allowed the lockers to be removed from the premises as opposed to being
disposed of in the dumpster." Specifically, ALJ McGee found that:
[W]hile [Able] reasonably believed that he had the
authority to discard school property that was in
disrepair, I conclude that it was not proper for him to
allow anyone to remove the lockers from school
grounds.
Finally, the ALJ determined that the Board did not provide a "factual basis for
'other sufficient cause,'" and that the "FNDA [did] not specify what conduct
should be considered 'other sufficient cause.'"
ALJ McGee accordingly modified the Board's decision to terminate Able
and instead imposed a six-month suspension. The ALJ also ordered that Able
be awarded "back pay and benefits from six months following the date of
termination." Further, in accordance with N.J.A.C. 4A:2-2.10, ALJ McGee
directed Able to submit to the Board a "certified statement detailing any
A-5106-18
9
employment and income for the period following his termination, with copies of
relevant tax and other records and names of addresses of employers."
On April 6, 2018, the CSC conducted an independent evaluation of the
record and adopted ALJ McGee's findings of fact and legal conclusions. The
CSC accepted the ALJ's recommendation to modify Able's termination to a six-
month suspension and stated, "the action of the [Board] in removing [Able] was
not justified."
The CSC concluded that because Able was improperly terminated, he was
"entitled to back pay, benefits and seniority from the conclusion of the
suspension until the date of his reinstatement." The CSC determined that the
amount of back pay would be "reduced and mitigated as provided for in N.J.A.C.
4A:2-2.10."
The CSC ordered Able to submit an affidavit of mitigation to the Board
"within [thirty] days of [the] decision." In addition, the CSC stated that its
decision would "not become final until any outstanding issues concerning back
pay [were] finally resolved" and "under no circumstances should [Able's]
reinstatement be delayed based on any dispute regarding back pay."
On May 7, 2018, Able's counsel contacted the Board's attorney to discuss
his back pay award and requested necessary information to calculate it.
A-5106-18
10
Specifically, Able's counsel sought his pay rate, including the applicable rate
had he not been terminated, and "all hours worked, including overtime of his
replacement from [the] date of termination to [the] date of reinstatement, which
should be approximately [two-and-a-half] years."
On May 9, 2018, the Board's counsel responded and expressed its intent
to appeal the CSC's April 6, 2018 decision and requested a stay of any award
pending appeal. The Board's attorney also stated that he would send an affidavit
of mitigation for Able to complete.
On May 14, 2018, the Board filed a notice of appeal of the CSC's April 6,
2018 decision. On May 25, 2018, Able notified the assigned Appellate Division
case manager that the Board's notice of appeal was improper, as the April 6,
2018 decision was not a final order appealable as of right. On June 5, 2018,
Able requested that the CSC review the outstanding back pay issue.
On August 3, 2018, Able completed a mitigation affidavit in support of
his back pay claim. Able noted in his affidavit that he "did not receive
[u]nemployment [b]enefits or any other compensation during the period [he]
was separated from employment." Able further attested that he applied to six
different head custodian positions and Home Depot. He also stated that although
A-5106-18
11
he received an interview for a position as the head night custodian at Millburn
High School, he was denied the position on January 9, 2017.
The affidavit also included Able's 2015 and 2016 tax returns. In contrast
to the statement in his affidavit, Able's 2015 tax return reported that he received
$4,522 in unemployment compensation benefits. Moreover, his 2016 tax return
indicated that he received $12,274 in unemployment compensation. Able did
not file a tax return for the 2017 calendar year.
On August 15, 2018, the Board requested that the CSC stay "the back pay
matter . . . pending review of the underlying decision to reduce [Able's]
termination to only a six[-]month suspension." As to Able's mitigation affidavit,
the Board argued that the "financial records . . . [Able] produced [were]
incomplete" as he had failed to provide "complete or sufficient tax records,
unemployment salary . . . and/or reveal how much income he earned during the
2017 tax year." The Board also maintained that Able's affidavit was "rife with
contradictory assertions." In this regard, the Board noted that although Able
stated he did not receive unemployment compensation, his tax returns indicated
otherwise. Finally, the Board calculated Able's unmitigated back pay as
$159,044.84.
A-5106-18
12
On August 21, 2018, the Board withdrew its appeal of the April 6, 2018
CSC decision "until such time as the [CSC] issues a decision in this matter which
is considered 'final.'" The Board also stated that the April 6, 2018 decision was
not considered final "due to . . . Able's late notification that a dispute still
exist[ed] regarding his back pay."
On January 15, 2019, Able completed a second mitigation affidavit in a
form provided by the Board. In this affidavit, Able acknowledged that he had
received unemployment benefits during his separation period. Able also attested
that despite his efforts to find work, he was unable to obtain employment.
On April 16, 2019, the Board informed the CSC that Able failed to provide
the requisite documentation to establish that the tax records he provided were
the same tax records he submitted to the Internal Revenue Service. Accordingly,
the Board claimed in "the absence of necessary documentation" an "accurate
calculation" could not be performed, and it would be inappropriate to award
back pay until further documentation was provided.
On June 12, 2019, the CSC issued a final agency decision denying Able's
request for back pay. In support of its decision, the CSC found that Able "failed
to make reasonable efforts to find suitable employment." The CSC noted that
except for his denial from the position at Millburn High School, Able did "not
A-5106-18
13
provide any further details about any of the other positions he applied for, such
as the dates he submitted his applications or, except for Home Depot, the names
of the employers he submitted applications to." In addition, the CSC noted that
Able had "an obligation to seek substitute employment in good faith," and
concluded that applying for seven different positions "in nearly three years" did
not "constitute a reasonable effort to secure employment."
The CSC also acknowledged the discrepancy in Able's affidavit regarding
his receipt of unemployment compensation. The CSC noted that "[a]lthough
there is a presumption that the receipt of unemployment insurance benefits
evidences that an employee sufficiently mitigated during the period of
separation . . . this presumption may be rebutted where the appellant did not
make a diligent effort to seek employment." The court found that even if Able
had received the unemployment benefits, he had not "submitted sufficient
evidence to demonstrate a reasonable effort to mitigate his damages." This
appeal followed.
II.
Our review of an administrative agency's final determination is limited.
In re Herrmann, 192 N.J. 19, 27 (2007). "[A] 'strong presumption of
reasonableness attaches'" to the agency's decision. In re Carroll, 339 N.J. Super.
A-5106-18
14
429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App.
Div. 1993)). Additionally, we give "due regard to the opportunity of the one
who heard the witnesses to judge . . . their credibility." In re Taylor, 158 N.J.
644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
The burden is upon the appellant to demonstrate grounds for reversal.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002);
see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.
1993) (holding that "[t]he burden of showing the agency's action was arbitrary,
unreasonable[,] or capricious rests upon the appellant"). To that end, this court
will "not disturb an administrative agency's determinations or findings unless
there is a clear showing that (1) the agency did not follow the law; (2) the
decision was arbitrary, capricious, or unreasonable; or (3) the decision was not
supported by substantial evidence." In re Virtua-West Jersey Hosp., 194 N.J.
413, 422 (2008).
When an agency decision satisfies these criteria, we accord substantial
deference to the agency's fact-finding and legal conclusions, acknowledging
"the agency's 'expertise and superior knowledge of a particular field.'" Circus
Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
A-5106-18
15
This court will not substitute its judgment for the agency's even though it might
have reached a different conclusion. In re Stallworth, 208 N.J. 182, 194 (2011);
see also In re Taylor, 158 N.J. at 656-57 (discussing the narrow appellate
standard of review for administrative matters).
On questions of law, however, our review is de novo. In re N.J. Dept. of
Env't Prot. Conditional Highlands Applicability Determination, 433 N.J. Super.
223, 235 (App. Div. 2013) (citing Russo v. Bd. of Trs., Police & Firemen's Ret.
Sys., 206 N.J. 14, 27 (2011)). We are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly legal issue."
Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
A. Appeal No. A-5108.
As noted, in this appeal, the Board challenges the CSC's decision
upholding the modification of Able's termination to a six-month suspension.
The Board asserts that the CSC's decision was arbitrary, capricious, and
unreasonable because it erroneously: 1) determined that Able "had engaged in
unbecoming conduct in permitting his relatives to remove the lockers but had
not engaged in unbecoming conduct in removing the lockers himself"; 2)
accepted Able's defense that there was no formal policy related to the disposal
of fixed assets, including the need to obtain formal authorization; 3) agreed with
A-5106-18
16
Able's contention that he believed the lockers constituted unsalvageable
property and his claim that "his conduct should be condoned because the
property had already been destroyed"; and 4) failed to apply principles of
progressive discipline.
As to its first point, the Board asserts that ALJ McGee's conclusion that
Able engaged in conduct unbecoming a public employee by permitting his
relatives to remove the lockers but did not engage in unbecoming conduct in
removing the lockers himself was "illogical and nonsensical." It further claims
that the ALJ's determination "was irrational, as it placed too fine a distinction
between actively removing the property and allowing relatives to do so." We
disagree.
Contrary to being "illogical and nonsensical," the CSC's decision was
based on the ALJ's explicit credibility findings. ALJ McGee specifically found
that Able's conduct was not "clandestine" but "consistent with what he believed
to be the proper process." In making these credibility findings, the ALJ accepted
Able's version of events and rejected that advanced by the Board's witnesses.
We are satisfied that the ALJ and CSC's decisions are fully supported by the
record and are not unreasonable.
A-5106-18
17
For similar reasons, we reject the Board's argument that the CSC erred by
accepting Able's defense that he was not aware of a "Board policy prohibiting
removal of the lockers without authorization and further claiming he believed
the lockers were refuse that he was allowed to take at will." Again, the ALJ's
findings, which the CSC considered and accepted, are fully supported by the
record.
Specifically, the ALJ found that the testimony of Able and Williams was
"credible and consistent with respect to whether or not there was a clear policy
for disposal of school property and whether or not that policy was clearly
articulated to [Able] or any other custodian" within the school district. Able
specifically testified that he was not aware of any policy that "prohibits
employees from taking stuff that's going to be discarded" and that it was his
understanding that he only needed approval to dispose of items with barcodes
on them. This understanding was corroborated by Williams' testimony that
custodians were essentially permitted to use their discretion in the disposal of
items unless they had a barcode.
In sum, we conclude ALJ McGee's determination that Able was not aware
of any policy prohibiting him from disposing of the lockers was supported by
sufficient credible evidence in the record. Further, because the CSC accepted
A-5106-18
18
ALJ McGee's fully supported findings that Able was not aware that he needed
authorization to remove the lockers, the Board's argument that Able did not
receive the necessary authorization from his superiors lacks merit.
We reject the Board's reliance on In re Fedo, No. 14-021, 2016 WL
5372982 (Sep. 19, 2016), and In re Layton, No. 2014-2108, 2015 WL 8296205
(July 14, 2015), as those cases are factually distinguishable. In In re Fedo, the
appellant was removed by the Parsippany-Troy Hills Department of Public
Works (DPW) after he was found to have stolen four sanitation truck tires from
the DPW. 2016 WL 5372982, at *1, 8. In In re Layton, appellant removed
property from the Ancora Psychiatric Hospital "that did not belong to him and
sold it to America Scrap Metal." 2015 WL 8296205, at *7.
Unlike in In re Fedo, Able did not steal the lockers and they were not
salvageable as were the tires in that case. 2016 WL 5372982, at *5-6. Further,
in In re Layton, the appellant sold the stolen property for profit. 2015 WL
8296205, at *7. Here, the record establishes that Able acted in a manner that
was consistent with past practices of custodians at Barringer High School and
there was no competent evidence submitted by the Board that Able profited from
the removal of the lockers.
A-5106-18
19
We also reject the Board's assertion that Able's removal of damaged
property should be considered theft mandating termination. In support, the
Board relies on In re Small, No. 2011-4206, 2012 WL 255769 (Jan. 13, 2012)
and Dixon v. Newark Housing Authority, No. 10725-91, 1993 WL 548882 (Oct.
13, 1993). Again, these decisions like, In re Fedo and In re Layton, are factually
distinguishable and unpersuasive.
In In re Small, the ALJ expressly rejected the appellant's testimony that
he had "found [a computer] at the top of a pile of garbage in the dumpster."
2012 WL 255769, at *6. Similarly, in Dixon, the ALJ rejected the appellant's
account that metal piping he had taken was simply lying on the ground. Dixon,
1993 WL 548882, at *2-3. Unlike ALJ McGee here, both ALJs in those cases
rejected the appellants' claims that they believed the property was discarded and
found that they had stolen valuable public property.
Further, ALJ McGee concluded that Able did not attempt to hide or
conceal his removal of the lockers and did so because he legitimately believed
he was acting in accordance with the proper process. This determination was
based on substantial credible evidence in the record and warrants our deference.
Indeed, Able testified that he did not believe what he had done was considered
A-5106-18
20
stealing and that he was not aware of any policy that barred his relatives from
removing unsalvageable lockers.
Nor does Carter v. Cumberland County Welfare, No. 01908-91, 1992 WL
240286 (Jan. 6, 1992), which the Board relies on for the proposition that the
"unauthorized taking of even a de minimis item of little to no value constitutes
theft of public property" require a different result. In that case, the appellant
was terminated from her position at the Cumberland County welfare department
after she stole two dollars. Carter, 1992 WL 240286, at * 1-2. Here, the ALJ
concluded based on the record evidence that Able's conduct did not qualify as a
theft, he was unaware of any policy which required authorization for him to
dispose of the lockers under the circumstances, and that he acted in manner that
"was consistent with what he believed to be the proper process."
The Board also argues that the imposition of a six-month suspension
deviated from principles of progressive discipline "as well as the heightened
standard of conduct required of supervisors." Specifically, the Board maintains
that because Able had a disciplinary history and was the senior custodian of
Barringer, he should have been terminated for the September 7, 2015 incident.
Again, we disagree.
A-5106-18
21
"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." In re Stallworth, 208 N.J. at
199 (quoting West New York v. Bock, 38 N.J. 500, 524 (1962)). "This includes
consideration of the totality of the employee's work performance, including all
prior infractions." Ibid. Moreover,
progressive 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.
[Ibid.]
Excluding the present matter, Able was charged with five prior
disciplinary infractions from 2001 to 2008. From 2001 to 2005, he was
substantiated on charges including "chronic or excessive absenteeism or
lateness," insubordination, and neglect of duty. In 2008, Able was substantiated
for sexual harassment and suspended for fifteen days. For the following seven
years, Able was not charged with any disciplinary infractions, and the six-month
penalty imposed against Able was the most severe punishment he received
throughout his career. Therefore, although Able had a disciplinary history
A-5106-18
22
which we do not minimize, his last penalty was imposed well before the
September 7, 2015 incident, and his prior conduct was unrelated to the present
charges. Under these circumstances, we are satisfied that the CSC's decision to
impose a significant six-month suspension was not contrary to principles of
progressive discipline.
B. Appeal No. 5106.
Able argues that the CSC's decision to deny him back pay because he did
not make reasonable efforts to mitigate his damages was arbitrary and
unreasonable. Specifically, Able contends that the CSC: 1) improperly shifted
the burden of proof to him to demonstrate that he made a reasonable effort to
mitigate his damages; 2) disregarded the holding in Department of Labor and
Industry v. Smalls, 153 N.J. Super. 411 (App. Div. 1977), N.J.S.A. 43:21-5(b),
and its own regulations by failing to enforce the Board's obligation to reimburse
the New Jersey Unemployment Compensation Fund; and 3) erred in denying
Able back pay for the ten-week period between its reinstatement decision and
Able's actual reinstatement. We reject Able's first two points but find that the
CSC abused its discretion when it effectively denied Able back pay for the
relevant ten-week period.
A-5106-18
23
The purpose of back pay awards is to make the employee whole and to
compensate the employee for his rightful wages. Decker v. Bd. of Educ. of
Elizabeth, 153 N.J. Super. 470, 475 (App. Div. 1977). As the Supreme Court
noted in Mastrobattista v. Essex County Park Commission, 46 N.J. 138, 143
(1965),
[c]urrent concepts of fair play in employment
relationships suggest that persons in the public service
who have been suspended or removed on charges later
determined to be unfounded should be made whole
insofar as possible; they should be entitled not only to
restoration of duties but should also suffer no loss in
their earnings.
However, back pay awards are subject to common law rules of mitigation. See
Mason v. Civil Serv. Comm., 51 N.J. 115, 130 (1968) (noting that back pay
awards should not permit an employee to be "unjustly enriched" or "unjustly
deprived").
Pursuant to N.J.S.A. 11A:2-22, the CSC is given broad authority to award
back pay and benefits to reinstated employees. In this regard, the CSC has
adopted regulations implementing this authority, specifically to award back pay
to those employees who have had a disciplinary-based termination reversed by
the agency or courts. N.J.A.C. 4A:2-2.10. In particular, N.J.A.C. 4A:2-2.10
states in relevant part:
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(a) Where a disciplinary penalty has been reversed, the
Commission shall award back pay, benefits, seniority
or restitution of a fine. Such items may be awarded
when a disciplinary penalty is modified.
....
(e) Unless otherwise ordered, an award of back pay,
benefits and seniority shall be calculated from the
effective date of the appointing authority's improper
action to the date of the employee's actual reinstatement
to the payroll.
The applicable regulations provide that any back pay grant awarded under
N.J.A.C. 4A:2-2.10(a) must be reduced by any monies actually earned. N.J.A.C.
4A:2-2.10(d)(3). Additionally, obligations are imposed on employees seeking
back pay to affirmatively act:
Where a removal or a suspension for more than [thirty]
working days has been reversed or modified or an
indefinite suspension pending the disposition of
criminal charges has been reversed, and the employee
has been unemployed or underemployed for all or a part
of the period of separation, and the employee has failed
to make reasonable efforts to find suitable employment
during the period of separation, the employee shall not
be eligible for back pay for any period during which the
employee failed to make such reasonable efforts.
[N.J.A.C. 4A:2-2.10(d)(4).]
"Reasonable efforts," defined by N.J.A.C. 4A:2-2.10(d)(4)(ii) include:
[R]eviewing classified advertisements in newspapers or
trade publications; reviewing Internet or on-line job
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listings or services; applying for suitable positions;
attending job fairs; visiting employment agencies;
networking with other people; and distributing
resumes.
Further, "the burden of proof shall be on the employer to establish that the
employee has not made reasonable efforts to find suitable employment."
N.J.A.C. 4A:2-2.10(d)(4)(v).
In O'Lone v. Department of Human Services, 357 N.J. Super. 170, 174
(App. Div. 2003), we held that the CSC2 may not deny back pay for the period
between removal and reinstatement solely on the ground that the employee
failed to seek substitute employment. Instead, the CSC must determine whether
suitable substitute employment existed, which the employee could have
obtained, if he had made a diligent search. Ibid. In doing so, the employer has
the initial burden to demonstrate that the employee failed to seek substitute
employment or that there were jobs in the local economy that a person with the
qualifications and experience of the disciplined employee could obtain, if they
made a diligent effort to obtain substitute employment. Id. at 181. If the
employer satisfies this evidentiary burden, the burden of proof shifts to the
2
Although O'Lone references the Merit System Board (MSB), on June 30, 2008,
the Civil Service Commission was reconstituted and assumed the duties of the
Department of Personnel and the MSB. N.J.S.A. 11A:11-2(b).
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26
disciplined employee to establish that suitable substitute employment was
unavailable or that the employee could not obtain such employment despite
diligent efforts to do so. Ibid.
In Able's first point, he contends that the CSC improperly "held that
Able . . . failed to prove he exercised reasonable mitigation efforts, thus
reversing the burden of proof specified" in O'Lone and N.J.A.C. 4A:2-
2.10(d)(4)(v). Able also argues that the CSC failed to consider as relevant
circumstances under N.J.A.C. 4A:2-2(d)(4)(iv) his request for reinstatement and
the eight-month delay caused by the Board's "appeal" of the CSC's April 6, 2018
decision. Finally, Able asserts that the CSC erred in finding the Board rebutted
the presumption that he "had exercised reasonable efforts to find other
employment" because he had received unemployment benefits. 3
First, we disagree with Able and conclude the CSC did not engage in
improper burden shifting when it determined that Able had failed to make
reasonable efforts to mitigate his damages. Here, the Board asserted Able's
"claim that he applied to only [seven] jobs in the nearly three years he was
3
This presumption arises from the language in N.J.S.A. 43:21-4(c)(1), which
provides as a condition to receiving unemployment benefits, an individual must
show that they are "able to work . . . [are] available to work, and . . . [have]
demonstrated to be actively seeking work."
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separated [was] insufficient to meet the standard, especially considering [Able]
[did] not provide any evidence other than his attempt at employment with
Millburn Public Schools to demonstrate his effort to obtain employment."
Further, prior to rendering its decision, the CSC explicitly observed that "[t]he
burden of proof shall be on the employer to establish that the employee has not
made reasonable efforts to find suitable employment."
Although the Board did not submit its own documentation regarding
Able's job search, it properly relied on evidence detailed in Able's mitigation
affidavits to establish that he "did not make a reasonable effort to mitigate his
losses." Therefore, we agree with the CSC finding that the Board satisfied its
burden in establishing that Able failed to seek suitable employment in
accordance with O'Lone and N.J.A.C. 4A:2-2.10(d)(4)(v) by relying upon the
deficiencies in Able's mitigation affidavits.
We also conclude the CSC's determination that Able failed to mitigate his
damages from the period after the completion of his suspension through the
April 6, 2018 reinstatement decision was not arbitrary or capricious and based
on credible evidence contained in the administrative record. The CSC noted that
besides the Millburn position, Able did "not provide any further details about
any of the other positions he applied for, such as the dates he submitted his
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applications, or, except for Home Depot, the names of the employers he
submitted applications to."
Further, the CSC determined that applying for seven jobs over a three-
year period did "not constitute a reasonable effort to secure employment."
Additionally, we find it significant, as did the CSC, that besides the Millburn
position, Able failed to provide any corroborating evidence of his purported
applications to five other janitorial positions. For the same reasons, we also
conclude that the Board overcame the presumption that Able "had exercised
reasonable efforts to find other employment" due to his receipt of unemployment
compensation in 2015 and 2016.
We also reject Able's contention that the CSC erred in failing to consider
his request for provisional reinstatement, and the eight-month delay caused by
the Board's "appeal" of the CSC's April 6, 2018 decision, as "relevant
circumstances." N.J.A.C. 4A:2-2.10(d)(4)(iv) provides:
The determination as to whether the employee has made
reasonable efforts to find suitable employment shall be
based upon the totality of the circumstances, including,
but not limited to, the nature of the disciplinary action
taken against the employee; the nature of the
employee's public employment; the employee's skills,
education, and experience; the job market; the
existence of advertised, suitable employment
opportunities; the manner in which the type of
employment involved is commonly sought; and any
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other circumstances deemed relevant based upon the
particular facts of the matter.
First, we note that it is unclear from the record whether Able raised either
of the issues with the CSC. In any event, we find that Able's arguments do not
warrant a reversal of the CSC's June 12, 2019 decision.
With respect to the eight-month delay, purportedly caused by the Board's
improper appeal, we note that on June 4, 2018, after the notice of appeal was
filed, Able requested that the CSC "review the outstanding" back pay issue.
Notably, it does not appear Able informed the Board about this communication
with the CSC until June 21, 2018. In addition, Able was officially reinstated on
June 18, 2018, ten weeks after the April 6, 2018 decision, and he was under no
obligation to mitigate his damages during that period. N.J.A.C. 4A:2-2.10(d)(5).
Similarly, we find no error in any failure by the CSC to consider Able's
request for provisional reinstatement. Although we acknowledge that Able's
reinstatement would have obviously mitigated his damages, at the time Able
made the request, the Board was actively contesting his reinstatement and the
ALJ had not yet rendered his decision. Under these circumstances, we conclude
the CSC did not abuse its discretion even if it failed to consider Able's request
for reinstatement as a reasonable mitigation effort during a contested
proceeding.
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In light of our decision that the CSC appropriately denied Able's request
for back pay, we conclude that it did not erroneously fail to enforce the Board's
obligation to reimburse the unemployment compensation fund. N.J.S.A. 43:21-
5(b) provides that "an individual who is restored to employment with back pay
shall return any benefits received under this chapter for any week of
unemployment for which the individual is subsequently compensated by the
employer."
In Smalls, we determined that the Department of Labor
should be able to recoup benefits paid when it is
subsequently discovered that the discharge,
necessitating application for the benefits, was in error
and the employee is subsequently compensated for that
error. That the employer deducts the amount of those
benefits from a back pay award should not deprive the
Department of its right, given by statute, to recover the
money merely because it is in the possession of the
employer.
[153 N.J. Super. at 416-17.]
Here, Able fails to acknowledge that this reimbursement requirement is
predicated on an award of back pay. Ibid. Specifically, it applies when an
employee's award of back pay was mitigated by unemployment compensation
benefits. Ibid. Accordingly, the Board was not required to reimburse the
unemployment compensation fund because Able did not receive a back pay award
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for the period prior to his reinstatement, a decision which we affirm for the reasons
stated.
We agree, however, with Able's third point that he was entitled to back
pay for the period from the April 6, 2018 CSC decision to his date of actual
reinstatement on June 18, 2018. N.J.A.C. 4A:2-2.10(d)(5) provides that:
An employee shall not be required to mitigate back pay
for any period between the issue date of a [CSC]
decision reversing or modifying a removal or reversing
an indefinite suspension and the date of actual
reinstatement. The award of back pay for this time
period shall be reduced only by the amount of money
that was actually earned during that period, including
any unemployment insurance benefits received.
Here, under the plain language of N.J.A.C. 4A:2-2.10(d)(5), Able was not
required to mitigate back pay for the period between the modification of his
removal on April 6, 2018 and his actual reinstatement on June 18, 2018.
Moreover, N.J.A.C. 4A:2-2.10(d)(5) requires that the award of back pay be
"reduced only by the amount of money that was actually earned during that
period, including any unemployment insurance benefits received." The CSC,
however, did not inquire into whether Able earned any income during that ten-
week period, nor does the record indicate he received any income. Indeed, Able
certified in his January 15, 2019 affidavit that he was not "gainfully employed"
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during his period of separation, and the record does not include any tax return
information identifying Able's income for 2017 or 2018.
Therefore, we reverse that portion of the CSC's June 12, 2019 final agency
decision to the extent it denied Able's claim for back pay from April 6, 2018 to
June 18, 2018. On remand, Able shall file a certification with the CSC stating
whether he received any unemployment benefits for this period and, if so, the
amount of such benefits. See N.J.A.C. 4A:2-2.10(d)(5). In the event that Able
did receive such compensation, the CSC should determine whether
reimbursement to the unemployment compensation fund is necessary under
N.J.S.A. 43:21-5(b) or Smalls.
To the extent we have not addressed any of the parties' remaining
arguments, it is because we have concluded they are of insufficient merit to
warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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IN THE MATTER OF WILLIAM ABLE, CITY OF NEWARK (NEW JERSEY CIVIL SERVICE COMMISSION) (CONSOLIDATED)
Combined Opinion