A New Jersey appeals court recently issued an important decision in the case of In the Matter of William R. Hendrickson, Jr., Department of Community Affairs, in which it examined two core concepts in New Jersey’s Civil Service employment law: progressive discipline and the “deemed accepted” rule.
William Hendrickson was a fire inspector for the New Jersey Department of Community Affairs (the “DCA”). He was alleged to have made vulgar, misogynistic comments toward a female supervisor who had changed his work assignment. The comments were alleged to have been made in a public setting, with members of the public present. The DCA initiated disciplinary proceedings and terminated Hendrickson’s employment. Hendrickson appealed to the Civil Service Commission. The matter was transferred to the New Jersey Office of Administrative Law (the “OAL”) where an administrative law judge (“ALJ”) conducted a trial. The ALJ found that Hendrickson did make the remarks, and that they merited discipline. However, using the concept of progressive discipline, the ALJ found that a six month suspension was more appropriate than termination given Hendrickson’s lack of any prior discipline during his eighteen month employment.
The ALJ forwarded her recommended decision to the New Jersey Civil Service Commission, which was then required to accept, reject or modify the decision within 45 days. Under New Jersey’s Civil Service Act and the Civil Service Commission’s regulations, if an ALJ’s decision is not accepted, rejected or modified within 45 days, it is deemed adopted by the Commission and final. However, at the time the Civil Service Commission could not muster a quorum because there was only one commissioner, and the remaining vacancies had not been filled. Before the 45 days expired the Civil Service Commission requested a 45 day extension from the parties, who agreed. At the expiration of the second 45 day period, the Commission asked for another 45 day extension. However, Hendrickson’s attorneys refused to agree. Since extensions require unanimous consent of the parties, the period for the Civil Service Commission to act on the decision expired and it was deemed accepted and final.
The DCA’s Appeal
The DCA appealed to the Appellate Division of the Superior Court of New Jersey. It argued that even under progressive discipline, Hendrickson’s actions merited being fired because they violated New Jersey’s strong policy against discrimination and violated basic behavior norms expected of every employee. Hendrickson’s attorneys argued that because under the “deemed accepted” rule the decision was a final agency order, it was entitled to deferential review because New Jersey’s state agencies are considered the experts in their respective fields.
The Appellate Division reversed the ALJ’s decision and reinstated Hendrickson’s termination.
The Appellate Division Considers the “Deemed Adopted” Rule, and the Appropriate Standard of Review
The Appellate Division first considered the standard of review it should apply. It acknowledged that in general, when an agency such as the Civil Service Commission reviews a matter and considers an issue its decision is entitled to deferential review – in other words, reviewing courts won’t reverse the decision except for obvious error. However, the court found that deference was not appropriate in this case. In this case, the Civil Service Commission never reviewed the decision and therefore its expertise was not implicated. Therefore there was no reason to be deferential. It thus applied the standard of review applied to all bench trials, the judge’s findings of facts were given deference and accepted because there was no obvious error (and the judge actually heard and saw the witnesses testify), but no deference is given to the trial judge’s conclusions of law. The court explained that this might not be the case where the Civil Service Commission acted in bad faith, or delayed the decision negligently. Here, however, the delay was through no fault of the Civil Service Commission – there simply were not enough appointed commissioners to legally decide the matter.
The Appellate Division Applies Progressive Discipline
The Appellate Division then went on to apply the doctrine of “progressive discipline” to the facts of the case. The court explained that even though Hendrickson had no prior discipline, his current actions warranted being fired. First, as a fire inspector, his position involved public trust. The ALJ found that he made the statements even though he denied them, indicating untrustworthiness. Moreover, Hendrickson showed no remorse for his actions.
Likewise, he made the statements in front of members of the public, bringing the DCA’s integrity into question. Moreover, his job involved public interaction, and his actions called into question whether future similar actions would undermine the necessary public trust in the DCA’s inspectors. In addition, the fact that he committed such an egregious action against a supervisor so soon into his employment magnified the severity of the infraction.
The Appellate Division explained that generally progressive discipline means that discipline increases for repeated infractions, with the cumulative total of infractions increasing the severity of later ones. Therefore, lesser sanctions are normally applied for first offenses, with sanctions increasing for subsequent ones. However, the court explained that the ultimate disciplinary sanction of termination is appropriate for first offenses if they are sufficiently severe. Here, given these factors, the Appellate Division found that the DCA’s decision to fire Hendrickson was correct, even within the scope of progressive discipline.
While the “deemed accepted” rule does apply to make an ALJ’s decision final if the Civil Service Commission does not act on it within 45 days (and all parties do not consent to an extension), courts will not apply the deferential standard which it would if the Commission acted on it. Likewise, while progressive discipline means that termination is generally not an appropriate penalty for first disciplinary infractions, when the infraction is sufficiently egregious termination is appropriate, and misogynistic remarks to a supervisor by a new employee meets that threshold.
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