In the Matter of Shauyn Copeland, DOP Docket No OAL Docket No. CSV (Merit System Board, decided September 7, 2005)

Transcription

1 In the Matter of Shauyn Copeland, DOP Docket No OAL Docket No. CSV (Merit System Board, decided September 7, 2005) The appeal of Shauyn Copeland, a Data Control Clerk, Typing, with the Newark School District, of her removal, effective February 24, 2004, 1 on charges, was heard by Administrative Law Judge Carol I. Cohen (ALJ), who rendered her initial decision on August 4, Exceptions and cross exceptions were filed on behalf of the appointing authority and the appellant. Having considered the record and the ALJ s initial decision, and having made an independent evaluation of the record, the Merit System Board (Board), at its meeting on September 7, 2005, accepted and adopted the Findings of Facts as contained in the attached initial decision, but did not adopt the ALJ s recommendation to modify the removal to a six-month suspension. Rather, the Board modified the removal to a four-month suspension. DISCUSSION The appellant was charged with conduct unbecoming a public employee and other sufficient cause. Specifically, the appointing authority asserted that on November 14, 2003, the appellant forwarded sexually explicit, pornographic photos via to another employee, who then forwarded the to at least five other employees in direct violation of the policy. Additionally, the appointing authority indicated that such an offense demonstrated unprofessional conduct and compromised the operational integrity of the Newark School District. Upon the appellant s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case. The ALJ sets forth in her initial decision that the appellant has been an employee with the Newark School District since 1991 and was assigned to the Human Resource Department. In December 1998, a bulletin was distributed to all principals and department heads concerning the protocol for usage. Specifically, the bulletin stated that [e]-mail messaging on the district system is intended for official business... District employees are subject to discipline for misuse or unauthorized access... The bulletin was embodied in a policy statement and distributed to department heads, who were supposed to forward it to their employees. In March 2003, an was forwarded to the employees of the Human Resources Department and attached were the policy and a 1 It is noted that although the appellant s effective date of removal was February 24, 2004, the Final Notice of Disciplinary Action indicated that she was entitled to 10 days of pay from February 24, 2004 to March 8, 2004, pursuant to her collective bargaining agreement.

2 memorandum from the school superintendent referencing inappropriate global e- mails and junk mail. The appellant had received an address in 2000 and she was listed as one of the people to whom the March was forwarded. In June 2003, the Director of Labor Relations advised all employees by to cease and desist using District for forwarding junk and non-business related materials. The Director also advised that an employee pursuing such conduct would be subject to disciplinary action. On November 14, 2003, the appellant forwarded sexually explicit, pornographic photos via to another employee, who then forwarded the to at least five other employees. The appellant argued that she did not have notice of the policy, and therefore, she should not have been removed from employment. Further, she claimed that she was subjected to disparate treatment as other employees received lesser penalties for similar conduct. It is noted that the recipient of the appellant s was also removed for forwarding the to fellow employees. Her appeal is pending before the OAL. The ALJ determined that although there were no receipts for the earlier notices of the policy, there were instructions to distribute them to staff. Moreover, the ALJ found that the appellant had not provided any real explanation as to why she would not have received the March The ALJ did not find the appellant s testimony credible in this respect. Therefore, the ALJ concluded that the appellant had notice of the policy. Moreover, the ALJ determined that even if the appellant did not review the June since she was on sick leave, the that the appellant forwarded was in and of itself inappropriate for distribution in an office setting. Therefore, the ALJ concluded that the charges should be sustained. As to the penalty, the ALJ initially indicated that the appellant had been employed for 12 years at the time of her removal and had a relatively clear disciplinary history with only a three-day suspension for chronic or excessive absenteeism or lateness. Although the ALJ noted that the itself could be classified as highly offensive, she did not find the appellant s conduct sufficiently egregious to warrant removal. However, the ALJ determined that the appellant s conduct was inappropriate, especially in a business setting. The appellant did not use good judgment in forwarding the to a fellow employee and caused disruption in the office. Therefore, the ALJ concluded that the appropriate penalty was a six-month suspension. The Board agrees with the ALJ s determination to uphold the charges. In this regard, the Board acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). [T]rial courts credibility findings... are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. See In re Taylor, 158 N.J. 644

3 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999) ). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Board appropriately gives due deference to such determinations. However, in its de novo review of the record, the Board has the authority to reverse or modify an ALJ s decision if it is not supported by the credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B- 10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Nevertheless, upon review, the ALJ s determinations in this respect are proper and the Board finds the credible evidence in the record supports the ALJ s conclusion that the appellant had notice of the policy. As to the penalty, the appointing authority in its exceptions argues that based on the content of the , removal is the only appropriate action. On the other hand, the appellant contends that based on her years of service, a lesser penalty is warranted. The Board does not agree with the appointing authority or the ALJ that removal or a six-month suspension is warranted under the circumstances. Rather, a more appropriate penalty is a four-month suspension. In determining the proper penalty, the Board s review is de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Board also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant s offense, the concept of progressive discipline, and the employee s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d (CSV) 463. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual s disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). Upon an independent review of the record and in consideration of the appellant s prior record of service, the Board concludes that a six-month suspension, the severest penalty short of removal, is too harsh a penalty. A review of the appellant s disciplinary history only reveals a three-day suspension for an attendance infraction. She does not have any prior violations of the policy. Moreover, although the Board agrees with the ALJ that the was highly offensive, the Board does not find that the appellant s conduct of forwarding the e- mail to a single fellow employee was sufficiently egregious to warrant removal or a six-month suspension. Therefore, the Board determines that the appropriate penalty is a four-month suspension. It is noted that the four-month suspension is a severe major disciplinary action which places the appellant on notice that any future infractions may lead to more serious penalties, up to and including removal. Accordingly, the foregoing circumstances provide a sufficient basis to modify the removal imposed by the appointing authority to a four-month suspension. See N.J.S.A. 11A:2-19 and N.J.A.C. 4A:2-2.9(d).

4 Since the penalty has been reduced, the appellant is entitled to mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A: However, the appellant is not entitled to counsel fees. Pursuant to N.J.A.C. 4A:2-2.12(a), the award of counsel fees is appropriate only where an employee has prevailed on all or substantially all of the primary issues in an appeal of a major disciplinary action. The primary issue in any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. See James L. Smith v. Department of Personnel, Docket No. A T2 (App. Div. Mar. 18, 2004); Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995); In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Board, the charges against the appellant have been sustained. Thus, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12(a), counsel fees must be denied. This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of the Appellate Division s decision, Dolores Phillips v. Department of Corrections, Docket No. A T2F (App. Div. Feb. 26, 2003), the Board s decision will not become final until any outstanding issues concerning back pay are finally resolved. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to her permanent position. Finally, the appointing authority asserted that if the appellant s removal was upheld, the appellant should not be entitled to back pay since she failed to seek any alternate employment during her separation. However, this matter is not ripe for Board review at this time as the parties must first make a good faith effort to resolve the dispute. See N.J.A.C. 4A:2-2.10(f) (When the Board awards back pay and benefits, determination of the actual amounts shall be settled by the parties whenever possible). ORDER The Board finds that the appointing authority s action in removing the appellant was not justified. Therefore, the Board modifies the removal to a fourmonth suspension. The Board further orders that the appellant be granted back pay, benefits and seniority for the period following the suspension to the date of actual reinstatement. The amount of back pay awarded is to be reduced and mitigated to the extent of any income earned or that could have been earned by the appellant during this period. Proof of income earned shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to N.J.A.C. 4A:2-2.10, the parties shall make a good faith effort

5 to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant s reinstatement be delayed pending resolution of any potential back pay dispute. Counsel fees are denied pursuant to N.J.A.C. 4A: The parties must inform the Board, in writing, if there is any dispute as to back pay within 60 days of issuance of this decision. In the absence of such notice, the Board will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter should be pursued in the Superior Court of New Jersey, Appellate Division.