Progressive discipline is a concept used in New Jersey civil service discipline law and teacher tenure charges. It can serve to increase or decrease the severity of a penalty based on the employee’s prior disciplinary record. Recently, an appellate opinion examined the concept of
Background
Ronald Stuiso was a maintenance worker for Bergen County. He filled out two repair forms reporting unsafe conditions. He directed another employee, Francesco Azzollinni, to submit the forms. Azzollinni met with Vincent Rothenburger, a department supervisor. Rothenburger raised his voice at Azzollinni, leading Stuiso to intervene and raise his voice at Rothenburger while getting in his face. The two continued yelling until separated by co-workers.
The County served Stuiso with a Preliminary Notice of Disciplinary Action (a “PNDA” or a Form 31-A) immediately suspending him without pay and seeking his termination for charges of insubordination, conduct unbecoming a public employee, and other sufficient cause. After an employer level disciplinary hearing was held, the County served Stuiso with a Final Notice of Disciplinary Action (a “FNDA” or Form 31-B) terminating him.
The Civil Service Commission Appeal
Stuiso appealed to the New Jersey Civil Service Commission, which transferred the matter to the New Jersey Office of Administrative Law as a contested case. A hearing was held before an administrative law judge (known as an “ALJ”). Multiple witnesses testified, and the gist of the testimony was that Stuiso was a good, conscientious employee and a team player, although he could be abrasive. However, the testimony also showed that employees commonly used inappropriate language at work without discipline.
The ALJ found that Stusio was justified in approaching Rothenburger, but was not justified in escalating the situation. The ALJ therefore sustained the charge of conduct unbecoming a public employee.
However, based on the principles of progressive discipline, the ALJ found that termination was not an appropriate penalty. Stusio had a relatively insignificant disciplinary history (suspensions of one, three and eight days), none of which was for anything similar to the current incident. The ALJ therefore recommended imposing a 20 day suspension. The New Jersey Civil Service Commission adopted the ALJ’s recommended decision as its final order in the case.
The Appellate Division’s Opinion
The County appealed to the Appellate Division of the Superior Court of New Jersey. The Appellate Division affirmed the New Jersey Civil Service Commission’s decision.
The Appellate Division explained that progressive discipline is a flexible concept and does not always apply, and even a single incident could sustain termination if it was grievous enough. However, when considering appropriate penalties, the Civil Service Commission must consider the nature of the offense, whether the employee’s misconduct was habitual, the employee’s prior disciplinary history including the seriousness of the prior offenses and how recently they occured, and the totality of the employee’s work history. Here the court explained that the Civil Service Commission appropriately considered the fact that the prior discipline was not for serious incidents, it was not recent, it was not of the same nature as the current infraction, and the testimony was clear that Stuiso was a good, conscientious, team player, albeit with possibly a difficult personality. It therefore ruled that the Civil Service Commission had not abused its discretion in reducing the penalty to a 20 day suspension.
The Takeaway
Progressive discipline is a flexible concept which is not applicable in all situations. For example, an infraction may be so severe, such as assault, drug sales, theft, etc., that termination is appropriate for a first offense. However, where progressive discipline does apply, it may lessen or increase the penalty for an infraction. For instance, take two employees who were an hour late for work. It was the first offense for one employee, and in that case a mere warning might suffice. However, if a second employee had been late fifty times in the last two years, her prior record might make termination of her employment be an appropriate penalty. However, in every government employee disciplinary case progressive discipline is a defense which should be considered.
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