Published on:

Appellate Division Demonstrates Why It Makes Sense to Pursue Civil Service Disciplinary Appeals

Appellate Division Demonstrates Why It Makes Sense to Pursue Civil Service Disciplinary Appeals.

New Jersey civil service employees have protections which other employees do not.  The heart of this is the opportunity to appeal major discipline imposed by their employers.  A recentcop New Jersey appellate decision in the case of In the Matter of Malikah Spencer, Essex County, Department of Corrections, demonstrates that this process gives New Jersey civil service employees a fair hearing in these appeals, and demonstrates why civil service employees should pursue appeals of employer imposed major discipline.



Essex County Correctional Police Officer Malikah Spencer was a single mother of two grammar school age children.  The children’s father was also an Essex County Corrections Officer.  Spencer’s mother lived nearby to help with child care.

Her employer, the Essex County Department of Corrections charged Spencer with notice of conduct unbecoming a public employee, violating department rules for truthfulness and standard of conduct, and other just cause.  Specifically, in the preliminary notice of disciplinary action (PNDA), it alleged that she wrongfully used Family and Medical Leave Act time while she was on vacation in Mexico, and was thus fraudulently absent without leave (AWOL). The Department issued a Final Notice of Disciplinary Action (FNDA) sustaining the charges and terminating Spencer.


Spencer’s Appeal to the OAL and the New Jersey Civil Service Commission

Spencer appealed her termination to the New Jersey Civil Service Commission, which transferred the matter to the New Jersey Office of Administrative Law (OAL), where an administrative law judge (ALJ) held a hearing.

The evidence showed that Spencer was allegedly the victim of domestic violence and assault, and the Newark Police Department responded to both incidents.  The Newark Police advised the Department of Corrections of the incidents.  Spencer left for Mexico with her family to flee the violence, which her supervisor knew.  However, several days later she returned to New Jersey because one of her children was hospitalized, and she took Family and Medical Leave Act time for the hospitalization and to take care of her child when she was released.  The Department did not dispute that it was aware of the domestic violence or that she called in.

The ALJ found that the Department did not prove the charges.  The Appellate Division explained:

The ALJ found the Department failed to prove by a preponderance of the credible evidence that Spencer was AWOL on August 22, 2019, or any other dates.

As to the charge that Spencer fraudulently used the FMLA, the ALJ found the record did not support the allegation that Spencer fraudulently notified Pires that she was out of the country until August 25, 2019, and then called out of work on August 23 to 26, stating she was taking FMLA leave. He reasoned: “Pires’ testimony did not state that Spencer’s conduct was ’fraudulent because she called in on August 23, 24, 25 and 26 to use her ‘ days. Pires stated that Spencer’s use’ of FMLA while she was in Cancun was ‘ ‘truthful’ because she did not state she was in Cancun when she first called in on August 19, and the FMLA Sick Call Form provided her ‘address’ as being home.”

Pires’ testimony is not consistent with the charges in the FNDA and what occurred.

The ALJ [therefore] found the Department failed to prove by a preponderance of the credible evidence that Spencer’s conduct was fraudulent.

The Department appealed to the Appellate Division of the Superior Court of New Jersey.

The Appellate Division’s Decision

The Appellate Division affirmed the decisions of the New Jersey Civil Service Commission and ALJ.  It explained that the employer has the burden of proof in disciplinary appeals, and that the Commission’s decisions, particularly concerning an ALJ’s findings of facts, are entitled to great deference and will not be overturned unless they are arbitrary, capricious or unreasonable.  Since ALJs have the ability to actually see and hear the witnesses’ testimony while appeals courts do not, appellate courts normally defer to ALJs’ findings of fact unless they have no reasonable basis.  The Appellate Division found the ALJ’s determinations rational, and the New Jersey Civil Service Commission’s reasoning sound.  It therefore affirmed the ALJ’s findings of fact and Civil Service Commission’s decision.


The Takeaway

In this case, one might think the employee taking FMLA days during a vacation to Mexico might be valid grounds for discipline.  However, when the ALJ and Civil Service Commission dug into it, they found that she had good reasons for everything she did and had been honest about it.  This clearly demonstrates that New Jersey civil service employees will get a fair hearing by New Jersey’s administrative law judges and the Civil Service Commission.

Thus, it often makes sense to challenge an employers disciplinary decisions because the New Jersey civil service disciplinary appeals process provides a strong avenue to redress injustices.


Contact Us

Our New Jersey employment attorneys represent civil service and non-civil service public employees in all aspects of New Jersey employment law.  Call us at (973) 890-0004 or fill out the contact form on this page.  We can help.

Contact Information