Given the ability of civil service employees to appeal major discipline to the New Jersey Civil Service Commission, as opposed to the extremely limited avenues to challenge minor discipline (fines or suspensions of five business days or less), one avenue an employer might take to make it difficult or impossible for employees to challenge discipline is to make sure that it falls under the definition of minor discipline. Why might an unscrupulous civil service employer want to do this? By making it difficult for
an employee to challenge discipline, a supervisor could build up a record of repeated discipline, which could then be used to justify terminating the employee under the doctrine of progressive discipline.
The Young Case
This issue recently arose in an interesting context in a published opinion in the case of Matter of Mickey Young. Young was a painter employed by the New Jersey Department of Human Services at the Woodbine Development Center. In 2016, Young had two disciplinary charges of misconduct which he appealed to the New Jersey Civil Service Commission. After a hearing before an administrative law judge (“ALJ”) in the New Jersey Office of Administrative Law (“OAL”), the Civil Service Commission dismissed the charges in November of 2018.
The Department then alleged that after he received the Civil Service Commission’s decision, Young emailed the employee handling the matter for the Department and repeatedly called him a “loser.” The Department then served Young with a preliminary notice of disciplinary action (“PNDA”) seeking a 15 day suspension for conduct unbecoming a public employee, verbal abuse of an employee, and other sufficient cause. A departmental hearing was held, and the Department issued a final notice of disciplinary action (“FNDA”) imposing the suspension on October 17, 2019. Young appealed to the Civil Service Commission which transmitted the matter to the OAL as a contested case. A hearing was scheduled for September 2020.
In June 2020, after the case was transmitted to the OAL, the Department unilaterally reduced the suspension to five days. The Department then filed a motion for a summary decision that the matter should be dismissed, because a five day suspension was minor discipline, and the Civil Service Commission therefore lacked jurisdiction to hear the matter. The ALJ agreed and recommended dismissal. The Civil Service Commission agreed and dismissed the appeal.
Young appealed the dismissal to the Appellate Division of the Superior Court of New Jersey. He argued that the Department lacked the authority to unilaterally take away his right to appeal to the Civil Service Commission by reducing the penalty. He argued that this also violated his due process rights because the process for resolving minor discipline in his union contract, which was negotiated by Department and his union, was not effective.
The Appellate Division’s Opinion
The Appellate Division rejected Young’s arguments. The Appellate Division explained that because the suspension was only for five days the Civil Service Commission clearly lacked jurisdiction to hear the case. Moreover, the Appellate Division explained that although the New Jersey Civil Service Act and the Civil Service Commission’s regulations prohibited an employer from increasing the penalty after issuing the FNDA, there was nothing in the law prohibiting it from decreasing the penalty, and it was thus free to do so.
The Appellate Division’s opinion makes clear that employers may unilaterally reduce a penalty from major to minor discipline even after the final notice of disciplinary action has been issued, the employee has appealed to the Civil Service Commission, and the matter has been transferred to the Office of Administrative Law, and that this will deprive the Commission of jurisdiction to hear the case.
However, an interesting question remains about whether this decision might stand if the employee could show that the action was taken in the case of an unfounded charge as part of a plan to build a disciplinary record to justify firing the employee for improper reasons. The Appellate Division’s opinion did not address that question, but it gives no indication that the decision would change. However, if the employee could prove that the motive was discrimination or whistleblower retaliation then she might have a successful lawsuit under New Jersey’s Law Against Discrimination or the Conscientious Employee Protection Act.
McLaughlin & Nardi, LLC’s New Jersey employment attorneys represent New Jersey government employees employed in both civil service and non-civil service jurisdictions in all aspects of New Jersey employment law. This includes disciplinary hearings, Civil Service Commission appeals, lawsuits in New Jersey and Federal trial courts, and appeals to Federal and New Jersey appellate courts. Call us at (973) 890-0004. We can help.