IN THE MATTER OF WILLIAM ABLE, CITY OF NEWARK (NEW JERSEY CIVIL SERVICE COMMISSION) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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
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 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

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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.
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 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.

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 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

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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.

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 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

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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.

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 "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
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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.

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 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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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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