IN THE MATTER OF CLAUDIO TUNDO (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0970-17T3
IN THE MATTER OF
CLAUDIO TUNDO, BOROUGH
OF RINGWOOD DEPARTMENT
OF PUBLIC WORKS.
______________________________
Submitted May 29, 2019 – Decided October 7, 2019
Before Judges Suter and Geiger.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2015-3158, 2016-3249 and
2016-3197.
Mark B. Frost & Associates, attorney for appellant
Claudio Tundo (Ryan Marc Lockman, on the brief).
Kaufman Semeraro & Leibman LLP, attorneys for
respondent Borough of Ringwood (Justin D. Santagata,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Pamela N.
Ullman, Deputy Attorney General, on the statement in
lieu of brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Petitioner Claudio Tundo appeals from the September 25, 2017 final
agency decision of the Civil Service Commission (CSC) that affirmed the
termination of his employment by the Borough of Ringwood (Ringwood) on
grounds of insubordination, chronic absenteeism, neglect of duty, abuse of sick
leave and conduct unbecoming a public employee. We affirm the Final
Administrative Action of the CSC because it was supported by the evidence and
was not arbitrary, capricious or unreasonable.
I.
Petitioner was employed fulltime by Ringwood in its Public Works
Department as a Laborer I beginning in March 2013. Part of his duties involved
responding to winter emergencies by driving a snow plow.
Ringwood's February 2016 Preliminary Notice of Disciplinary Action
(PNDA) notified petitioner that it sought his removal from this position. It
charged him with insubordination, inability to perform duties, chronic
absenteeism, neglect of duty, abuse of sick leave, conduct unbecoming a public
employee and other sufficient cause. The PNDA stated that on February 15,
2016, petitioner was "called to come in and plow and declined to do so,"
although a "prolonged snow and ice storm was predicted." Petitioner was absent
again on February 16, 2016, "because of ice." The PNDA stated that petitioner
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had a "long history of abuse of sick and personal time dating back to November
2014" and that another PNDA was pending a hearing based on his "multiple
absences."
Petitioner requested a departmental hearing. Following that, a Final
Notice of Disciplinary Action notified him that the charges were sustained and
he was removed effective February 26, 2016. Petitioner appealed to the CSC.
The case was transmitted to the Office of Administrative Law (OAL) for a
hearing.1
The Administrative Law Judge's (ALJ) Initial Decision found that certain
charges against petitioner had been proven and others not. There was no dispute
that under the Collective Negotiations Agreement (CNA), petitioner was allotted
fifteen sick days a year, five of which could be used as personal days. From
2013 until his termination, he used the majority of his sick and personal leave
days.2
1
Petitioner appealed two other suspensions. These were consolidated at the
OAL with the removal action. Subsequently, petitioner withdrew his challenge
to the two suspensions.
2
His sick time ended with a balance in 2013 of 0.64 days and no personal days;
he had a deficit of 3.50 days in 2014 and a one-day deficit for personal days; in
2015, he had a balance of 0.50 days for sick and personal, and had used 5.0 sick
days and a half of a personal day in 2016.
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In 2013, many of the sick days that petitioner used occurred on a Monday,
Friday or before a holiday. In 2014, his use of sick days still was occurring on
Mondays, Fridays and the day after a holiday, although there were some other
days used for sick time also. Petitioner was assigned to light duty at one point,
but did not attend work at all. By 2015, the use of sick days by petitioner were
more dispersed throughout the week. Then in January 2016, he used five and a
half days, three of which were on a Monday or Friday.
Ringwood's Borough Manager testified that petitioner had not responded
to requests for medical documentation about his absences. The Payroll
Administrator testified that petitioner had only nineteen hours of overtime
during his employment, while other employees had hundreds of hours.
Petitioner did not assist with emergency snow plowing on March 2, 2015,
or on January 11 and 12, 2016. He used sick days on January 22 and 25, 2016 ,
during a major snow storm. It snowed again on February 15 and 16, 2016.
Petitioner declined to go to work on the 15th, according to his employer, but he
testified he was not asked to report. Petitioner testified he could not work on
February 16, 2016, because his all-wheel drive vehicle slid into a curb.
Petitioner's supervisor testified that other public works employees were able to
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attend work that day, including those that travelled further. As a result, other
employees had to cover petitioner's route.
The ALJ found that petitioner declined to report to work on February 15,
2016, but because that day was a holiday in a week in which he was not on the
snow emergency standby schedule, he was permitted under the CNA to decline
the work. However, the next day when he did not attend work because of the
icy road conditions, the ALJ did not find his testimony to be credible because
other public works employees were able to report to work that day.
No one disputed petitioner's disciplinary record. He had received written
warnings in 2014, 2015 and 2016; a four-day suspension in 2015, a seven-day
suspension in 2015, and a fifteen-day suspension in 2016. He was serving this
fifteen-day suspension when he was removed from his employment on February
26, 2016. All of this related to attendance issues.
The ALJ concluded the charge of chronic absenteeism should be
dismissed. Petitioner had been disciplined for his attendance record in 2014,
but in 2015 his attendance improved. Petitioner's use of sick time in 2016 was
"substantial for one month, but well within his annual allotment."
However, the abuse of sick time charge was proven based on testimony
that petitioner "failed to produce adequate medical documentation for some of
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the absences," and that his use of sick days in 2016 "showed a clear pattern of
corresponding to snow events." Also, petitioner was insubordinate because he
failed to provide documentation about his absences that the employer had
requested.
The ALJ concluded the neglect of duty charge was sustained because
petitioner used sick days that "corresponded with snow events. . . . [A]nd the
effect of his absence was that his work had to be assigned to other employees."
In addition, his use of sick days for snow events was "conduct unbecoming a
public employee" because the ALJ "infer[red] that [petitioner's] absences
adversely affected the morale and efficiency of [Ringwood's] Department of
Public Works." He dismissed the remaining charges that petitioner was not able
to perform his duties and the charge of other sufficient cause.
The ALJ found the charges "warrant[ed] disciplinary action" because
petitioner "abused his sick time by using sick days to avoid working during snow
events." However, "progressive discipline would be appropriate for this case"
because it did not "involve the type of severe misconduct where one incid ent
would warrant removal." Finding that removal would be "grossly excessive,"
the ALJ recommended a three-month suspension.
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On September 25, 2017, the CSC's Final Administrative Action affirmed
the ALJ's findings of insubordination, abuse of sick time, neglect of duty and
conduct unbecoming a public employee. It agreed that the charges of inability
to perform duties and other sufficient causes properly were dismissed.
However, the CSC disagreed with ALJ's finding that the charge of chronic
absenteeism had not been proven, and it disagreed with the ALJ's penalty
recommendation, finding that termination from employment was warranted
rather than a three-month suspension.
On the insubordination charge, the CSC found that petitioner did not
provide documentation for absences as he had been requested. Petitioner's use
of sick time showed a pattern of using days on Mondays, Fridays, after holidays
and on snow event days. He used sick time even though the doctor had restricted
him to light duty. The neglect of duty and conduct unbecoming charges were
sustained because the appointing authority had to reassign his duties to others,
which affected the morale and efficiency of the staff.
The CSC rejected the ALJ's finding about chronic absenteeism. It found
the record was "replete with a pattern of his use of leave time to shirk his duties,
particularly the crucial public safety function of snow removal." Petitioner had
been warned repeatedly between November 2014 and January 2016. By
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February 16, 2016, petitioner had "used nearly half of his sick leave days for
2016 in approximately one-and-a-half months." All of the days "corresponded
to snow events. Viewed in that light, [the CSC found] the February 16, 2016
absence . . . support[ed] the charge of chronic or excessive absenteeism."
The CSC ordered petitioner's termination from employment—not
suspension—because the "charges that were sustained [were] serious." It
concluded his "pattern of using sick time after a snow event or to extend a
weekend or holiday [was] clearly disruptive to the appointing authority' work
operations, particularly the vital public safety function of snow removal, given
that those duties had to be reassigned to other employees." The CSC considered
his history of progressive discipline consisting of one minor disciplinary action,
and two major disciplinary actions within a three-year period for similar
infractions in concluding to terminate his employment.
Petitioner appeals from the Final Administrative Action. Petitioner argues
his employment should be reinstated with back pay because termination of
employment was not appropriate for the infractions, was contrary to the facts
found by the ALJ and did not accord with the law of progressive discipline.
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II.
We will not set aside an agency's action unless "there is a clear showing
that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the
record." In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Karins v. City of
Atl. City, 152 N.J. 532, 540 (1998). We have applied such deference when
reviewing determinations of the CSC, or of its predecessor agencies that have
administered the civil service laws. See, e.g., Campbell v. Dep't. of Civil Serv.,
39 N.J. 556, 562, 578 (1963); Falcey v. Civil Serv. Comm'n, 16 N.J. 117, 125
(1954); In re Sheriff's Officer (PC2209J), 226 N.J. Super. 17, 21-22 (App. Div.
1988).
There was nothing arbitrary, capricious or unreasonable about the CSC's
final decision because it was supported by substantial credible evidence. The
CSC adopted the ALJ's findings except on the charge of chronic absenteeism.
We have carefully reviewed this record, finding the CSC had support to sustain
this charge. There was a pattern of absenteeism that related to snow events.
This affected the Department because other employees had to perform this work.
Petitioner was warned repeatedly about the importance of these functions for the
public and the need to attend work. Although petitioner may have made some
improvement between 2014 and 2015, we cannot say that the CSC was arbitrary,
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capricious or unreasonable on this record in terminating petitioner's employment
where the pattern of absences continued. We are not to substitute our judgment
for that of the CSC because there was ample evidence to support its findings and
conclusions. See In re Carter, 191 N.J. 474, 483 (2007). Plainly, petitioner's
"past record could properly be considered in fashioning the 'appropriate penalty
for the current specific offenses[.]'" In re Stallworth, 208, N.J. 182, 196 (2011)
(quoting Town of West New York v. Bock, 38 N.J. 500, 523 (1962)).
Affirmed.
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