CHERYL HODGES v. PASSAIC COUNTY BOARD OF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3777-04T53777-04T5

CHERYL HODGES,

Plaintiff-Appellant,

v.

PASSAIC COUNTY BOARD OF

SOCIAL SERVICES,

Defendant-Respondent.

_____________________________________________

 

Argued telephonically May 2, 2006 - Decided

Before Judges Stern, Grall and Kimmelman.

On appeal from the Superior Court of New

Jersey, Law Division, Passaic County,

Docket No. L-3365-04.

James M. Cooney argued the cause for appellant

(Weissman & Mintz, attorneys; Mr. Cooney, of

counsel and on the brief).

Michael T. Miano argued the cause for respondent

(De Yoe Heissenbuttel & Buglione, attorneys;

Albert C. Buglione, on the brief).

PER CURIAM

The critical issue presented by this appeal is whether plaintiff is entitled to a plenary trial de novo in the Law Division after the imposition of "minor discipline," a suspension of four days for insubordination. She asserts such right. We disagree and affirm the Law Division's judgment upholding the discipline imposed after its de novo review of the record of the disciplinary hearing made before plaintiff's agency-employer.

In its "order of final judgment for defendant" dismissing plaintiff's complaint, the Law Division found that "defendant[] did not arbitrarily discipline the plaintiff" because "the Board had just cause to suspend the plaintiff," and that "[t]he discipline imposed . . . was reasonable and warranted under the facts and circumstances. . . ." The court also concluded that "[t]his matter was properly venued before the Superior Court . . . thereby allowing . . . a [d]e [n]ovo review of the underlying disciplinary matter" but not by a "plenary hearing" as requested by plaintiff.

Plaintiff argues that she was "improperly denied

. . . a full and plenary hearing" and that the discipline imposed was "without just cause and should be reversed."

For purposes of this appeal, we accept the plaintiff's version of facts as true:

This matter arises from a March 11, 2004 interaction between Hodges and her supervisor, Janet Dwyer. According to the Board, at approximately 11:55 a.m., Dwyer allegedly received a message from Supervisor Fran Silvestri stating that she attempted to assign an intake to Hodges, but was unable to reach her by phone. Dwyer allegedly approached Hodges' desk to discuss the issue, at which point Hodges informed Dwyer that she was leaving for her regular lunch break between noon and 1 p.m. Dwyer allegedly told Hodges that the client could not wait one hour and Hodges informed Dwyer that she had a doctor's appointment. Dwyer allegedly addressed Hodges about "the necessity to see customers whether or not it flows over to the afternoon" and Hodges responded that she had previously spoken to Silvestri about the matter.

Dwyer alleges that Hodges "continued voicing her displeasure in an elevated voice" so Dwyer viewed Hodges as "being disrespectful." Hodges allegedly responded in kind and continued to discuss the matter with Dwyer while both walked down a hallway, but Dwyer halted the conversation by walking away. The alleged verbal exchange between Hodges and Dwyer culminated in Hodges confirming that she would report to Dwyer's office upon returning from lunch at 1 p.m. to further discuss the matter.

[Footnote omitted.]

The following allegations of plaintiff's complaint are also accepted as true:

3. On or about March 23, 2004, plaintiff was served with preliminary notice of disciplinary action recommending a ten day suspension without pay for insubordination and conduct unbecoming a public employee.

4. The Board alleged that on March 11, 2004 plaintiff "refused an instruction from a department manager" to assist an applicant for public assistance. It was also alleged that plaintiff failed to submit proof that she had a doctor's appointment on March 11, 2004.

5. Plaintiff appealed the preliminary notice of disciplinary action.

6. On or about July 15, 2004, the Board ratified the decision of management [but] reduc[ed] the ten day suspension to a four day suspension.

7. Plaintiff has been directed to serve her suspension without pay on August 18, 19, 25 and 26, 2004.

8. Plaintiff is a permanent career service employee covered by the Civil Service Reform Act, N.J.S.A. 11A:1-1 et seq.

Thereafter, plaintiff filed the complaint with the Law Division seeking (1) "[a]n order declaring that the Board did not have just cause to suspend plaintiff;" (2) "[a]n order directing the Board to rescind all disciplinary notices issued to plaintiff with respect to the four day suspension and expunge her personnel records;" (3) "[a]n order directing the Board to make plaintiff whole for any monies she loses as a result of the imposition of the four day suspension;" and (4) [g]ranting such other relief as the Court may deem just and proper."

On January 27, 2005, argument was heard in the Law Division before Assignment Judge Robert J. Passero, who reviewed the matter de novo on the record made before the agency. The judge held that:

My review would be a de novo review premised on the record below. As noted in the Romanowski case, trial court's function is usually to review the record made below without supplemental testimony. And if the record is inadequate[,] to remand for the purpose of establishing a proper record[.] [T]he Court does have the power to enlarge the record by extrinsic evidence which is necessary to do just[ice] between a private citizen and public official. There's no need in my opinion to expand the record [as] the record below was set by agreement between the parties. So that's the scope of my review.

Accordingly, the judge reviewed the record made before defendant agency which consisted of Dwyer's report of March 11, 2004 and the findings of the Field Office Manager who acted as the hearing officer. The hearing officer noted that plaintiff asserted that "the case as presented failed to meet the definition for a charge of insubordination," but found it to constitute same, as well as "conduct unbecoming a public employee." Judge Passero concluded that plaintiff had the opportunity to make a record at the disciplinary hearing including the right to cross-examine Dwyer, and that there were no extraordinary or unusual circumstances warranting a plenary review. Based on review of the written report of the hearing officer imposing the four-day suspension for "insubordination," and the Board's ratification, Judge Passero concluded:

So, I, on a de novo review, find that Ms. Hodges was insubordinate, did not serve the public as per her job duties and responsibilities, violated an order and direction from a supervisor and is subject to a punishment. And I'm satisfied four days, although de minimis, is appropriate. I will assess a four-day fine, a four-day loss of pay suspension in accordance with the same finding and penalty imposed by Mr. DeSimone.

As we understand the record, Judge Passero conducted a de novo review on the record, and we affirm substantially for the reasons stated in his oral opinion of January 27, 2005. See Romanowski v. Twp. of Brick, 185 N.J. Super. 197 (Law Div. 1982), aff'd, 192 N.J. Super. 79 (App. Div. 1983); see also Pressler, Current N.J. Court Rules, comment 5 on R. 4:69-4 (2006).

Affirmed.

 

Hodges serves as a Union steward and thus interacts with managers on workplace issues.

(continued)

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A-3777-04T5

July 28, 2006