In the Matter of Shannon Stoneham-Gaetano and Maria Ciufo, County of Monmouth DOP Docket No (Merit System Board, decided April 24, 2001)

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1 In the Matter of Shannon Stoneham-Gaetano and Maria Ciufo, County of Monmouth DOP Docket No (Merit System Board, decided April 24, 2001) Shannon Stoneham-Gaetano (Gaetano) and Maria Ciufo, County Correction Officers with the County of Monmouth, represented by Anthony J. Fusco, Jr., Esq., seek enforcement of the Merit System Board (Board) decision rendered on January 11, 2000, granting them back pay and benefits. Appellants also seek counsel fees for their representation in the instant request. By way of background, appellants were removed effective February 11, 1998 from their positions for failure to complete a basic training course. Appellants appealed their dismissals from the training course to the Police Training Commission and their removals to the Board. The matters were consolidated and heard by Administrative Law Judge M. Kathleen Duncan (ALJ), who rendered her initial decision on August 24, 1999, recommending that the removals be reversed. The Board, at its meeting on January 11, 2000, accepted and adopted the ALJ s findings of fact and conclusions and ordered that appellants be awarded back pay and benefits for the period of removal and counsel fees. The Board further ordered that the amount of back pay awarded was to be reduced and mitigated to the extent of any income earned by appellants during this period. The record indicates that appellants were reinstated on January 17, However, the appellants and the appointing authority have been unable to agree on the amount of the back pay awards and appellants have requested Board review. Appellants argue that they are entitled to retroactive wages and benefits for 1997 pursuant to the original labor agreement dated November 1, 1993 through December 31, 1997 (original agreement) and successor agreement (successor agreement) dated January 1, 1998 through December 31, 2001 between the Monmouth County Sheriff and Monmouth County Board of Chosen Freeholders and Monmouth County Correction Officers Association, Inc., PBA Local 240. Appellants Gaetano and Ciufo request $28, and $47, in mitigated back pay, respectively, for 1997, 1998, 1999 and 2000 and provide a detailed accounting of how they calculated these amounts. The amounts include, inter alia, additional wages and additional overtime for 1997, uniform allowances, personal days, holidays, sick days, vacation days, and reimbursement for medical benefits. Appellants submit proof of earned income for 1998, 1999 and 2000 via affidavits, income tax returns and W-2 wage and tax statements. Appellants also state that they received Unemployment Insurance (UI) benefits during the period of their removals, with Gaetano receiving $3,771 and Ciufo receiving $5,746 in UI benefits. Further, appellants request counsel fees for their representation in the instant back pay dispute.

2 The appointing authority, represented by Robert J. Hrebek, Esq., provides calculations on the amount of appellants back pay and benefits for the period in question. The appointing authority contends that appellants claims for 1997 are without merit since they were not dismissed from duty until February It states that Gaetano s mitigated back pay amount should be $7, and that Ciufo s mitigated back pay amount should be $18,000. The appointing authority asserts that appellants calculations for back pay include amounts for holidays, sick days, personal days, vacation days and uniform allowances which are not included in a back pay award. The appointing authority argues that for 1998 and 1999 appellants are not entitled to vacation pay and personal days since these items are already part of the yearly salary. The appointing authority also contends that appellants claim for a 1999 uniform allowance should be rejected since the allowance presumes active work duty and they were not at work in The appointing authority further contends that Ciufo made less than a sufficient effort at mitigating her lost wages because Gaetano s mitigation was considerably higher, i.e., $17, more, and that Ciufo may have underreported her earnings since much of her earnings were from tips while employed as a waitress. CONCLUSION N.J.A.C. 4A:2-2.10(d)3 provides that the award of back pay shall be reduced by the amount of money which was actually earned or could have been earned during the separation. N.J.A.C. 4A:2-2.10(f) provides that when the Board awards back pay and benefits, determination of the actual amounts shall be settled by the parties whenever possible. N.J.A.C. 4A:2-2.10(g) provides that if settlement on an amount cannot be reached, either party may request, in writing, Board review of the outstanding issue. Pursuant to N.J.A.C. 4A:2-2.10(d), an award of back pay shall include unpaid salary, including regular wages, overlap shift time, increments and across-the-board adjustments. Benefits shall also include vacation and sick leave credits and additional amounts expended by the employee to maintain health insurance coverage during the period of improper suspension or removal. N.J.S.A. 11A:6-3(e) and N.J.A.C. 4A:6-1.2(f) provide that vacation leave not taken in a given year because of business demands shall accumulate and be granted during the next succeeding year only. N.J.A.C. 4A:2-2.10(e) states in pertinent part that, unless otherwise ordered, 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. Initially, the information in the record does not support appellants claims for back pay and benefits for 1997, while they were still employed. Appellants claims that they are entitled to retroactive wages and benefits pursuant to a labor agreement should be pursued in another forum since the Board does not have jurisdiction over appellants back pay claims while they were working. Therefore,

3 under the above-cited rules, the Board may only render a decision on appellants back pay and benefits during the period of their separation from employment through their actual reinstatement, which is February 11, 1998 to January 17, In regard to the amount of back pay due to appellants, the record reveals that Gaetano and Ciufo earned income during the period of their separation in the amount of $43, and $24,649.61, respectively. Gaetano also received $3,771 in UI benefits and Ciufo received $5,746 in UI benefits. The appointing authority, pursuant to N.J.A.C. 4A:2-2.10(g)1, submitted information on the salaries appellants were earning at the time of the adverse action. According to the appointing authority, appellants gross salaries, which are undisputed, for the years in which they were separated from duty were $55, each. Based on the figures provided by the appointing authority, Gaetano will be awarded $55, less $43, in mitigated pay and $3,771 in UI benefits for a total of $7, Contrary to the appointing authority s contention that Ciufo did not properly mitigate her back pay award since she could have earned as much as Gaetano did in the same labor environment, the fact that she received UI benefits during the period of her separation adds weight to her contention that she did actively pursue employment, since searching for employment is a condition to receiving such benefits. See e.g., In the Matter of Judith Leeds (MSB, decided May 19, 1998). Additionally, Ciufo submits proof of income earned and the appointing authority has failed to provide any evidence regarding the specific positions which Ciufo could have obtained during the period of her separation which would justify increasing the mitigation. See e.g., In the Matter of Judith Leeds, supra. See also In the Matter of Rachel Ann Burris (MSB, decided December 8, 1998), affirmed in part and reversed in part and remanded, N.J. Super. (App. Div. April 3, 2001). Therefore, the record does not support the appointing authority s contention that Ciufo failed to properly mitigate. Moreover, there is nothing in the record to suggest that Ciufo underreported her income from her position as a waitress and the appointing authority has failed to substantiate this allegation. Accordingly, Ciufo will be awarded $55, less $24, in mitigated pay and $5,746 in UI benefits for a total of $24, N.J.A.C. 4A:2-2.10(d)1 states that back pay shall not include items such as overtime pay and holiday premium pay. Thus, appellants requests to include these emoluments in their back pay award are denied. As to benefits, the record reveals that appellants were reinstated on January 17, Appellants are not due any vacation leave for the year 1998 since vacation leave not taken in a given year can only be carried over to the following year. See N.J.S.A. 11A:6-3(e) and N.J.A.C. 4A:6-1.2(f). As to vacation leave for 1999, appellants would be entitled to have their 1999 vacation leave time credited or carried over and added to their year 2000 leave entitlement since they returned to work in January See id. As to the amount of sick leave due appellants, they should each receive 15 days for 1999, and 15 days less any sick days used prior

4 to their removal on February 11, 1998 since sick leave can accumulate from year to year without limit. See N.J.S.A. 11A:6-5 and N.J.A.C. 4A: As to personal days, the Board has no authorization to review benefits provided by the local jurisdiction and not specifically awarded by Title 11A of the New Jersey Statutes Annotated. Appellants also request payment for a clothing allowance. N.J.A.C. 4A:2-2.10(d) makes no mention of a clothing allowance being included in a back pay award. Nevertheless, the purpose of a clothing allowance is for the purchase and/or maintenance of uniform components. In the present case, it is undisputed that appellants did not work from February 11, 1998 to January 17, Accordingly, appellants would not be entitled to the inclusion of a clothing allowance in their respective back pay awards. See e.g., In the Matter of Judith Leeds, supra. In addition, Gaetano requests reimbursement for medical benefits and submits copies of earnings statements from her employment with Prudential Insurance Company. Since N.J.A.C. 4A:2-2.10(d) provides for reimbursement of payments made to maintain health insurance coverage, and Gaetano has submitted proof of amounts that she incurred to maintain health insurance coverage, she is entitled to be reimbursed for those payments. It is noted that Gaetano s entitlement to reimbursement for maintaining health insurance coverage does not apply to any medical expenses incurred during the period of her separation from employment from the appointing authority. As to any deductions made by the appointing authority on the gross amounts awarded to appellants, these amounts are to be determined by the appointing authority and reported to appellants at the same time that their awards are paid to them. These deductions include union dues. See N.J.A.C. 4A:2-2.10(d)2. As to seniority, appellants seniority should be credited from February 11, 1998 to the date of their reinstatement to the payroll, which was on January 17, See N.J.A.C. 4A:2-2.10(e). Regarding the requests for counsel fees relating to this request for Board review of the amount of back pay and benefits, N.J.S.A. 11A:2-22 provides that the Board may award reasonable counsel fees to an employee as provided by rule. N.J.A.C. 4A:2-1.5(b) provides, in pertinent part, that counsel fees should be awarded where the appointing authority has unreasonably failed or delayed to carry out an order of the Commissioner or Board or where the Board finds sufficient cause based on the particular case. In this case, the record indicates that the appointing authority presented legitimate concerns about the amount of back pay and benefits owed to appellants after the parties were unsuccessful in trying to resolve this dispute themselves. The record does not demonstrate that the appointing authority unduly delayed effecting appellants reinstatements or back pay awards pursuant to the prior Board decision. Therefore, there is no basis for awarding counsel fees in this enforcement matter at this time. ORDER

5 Therefore, it is ordered that the appointing authority pay Shannon Stoneham- Gaetano the gross amount of $7, for back pay and give her sick leave and reimbursement for payments to maintain health insurance coverage as indicated above within 30 days of receipt of this decision. It is also ordered that the appointing authority pay Maria Ciufo the gross amount of $24, for back pay and grant her sick leave as noted above within 30 days of receipt of this decision. It is also ordered that the appellants requests for counsel fees be denied. In the event the appointing authority fails to make a good faith effort to fully comply with this decision within 30 days of receipt of this decision, the Board orders that a fine be assessed against the appointing authority in the amount of $100 per day beginning on the 31 st day from receipt of this decision, continuing for each day of continued violation up to a maximum of $10,000. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.