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13 N.J.A.R. 612

Vineland Developmental Center; Salgado, Dora v
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Citation: 13 N.J.A.R. 612
Decision Date: 1988
Agency: MERIT SYSTEM PROTECTION BOARD
Synopsis: Appellant was removed from her position for being absent from work without permission but having given notice of intended absence. She requested a hearing and the matter was transmitted to the Office of Administrative Law. The administrative law judge assigned to the case found that appellant was absent from work because of a life-threatening medical emergency. She did not have any remaining sick leave or vacation at the time of her absence. Appellant had received previous warnings and reprimands for unauthorized absences and was scheduled to serve a five-day suspension before her medical emergency occurred. How- ever, the judge found that appellant, because of an indirect response from her employer when she called to ask permission for time off, had been under the impression that her emergency absence was ap- proved. The judge noted that the disciplinary charge in this case was absence without permission, not chronic or excessive absenteeism. He concluded that the appointing authority did not prove the charge because appellant could have believed that she had permission for her absence, based on the misunderstood response. In the event that the Merit System Board disagreed with this conclusion and upheld the charge, the judge said that the penalty of removal was too severe. Based on the principles of progressive discipline and the facts of this case, the judge recommended that a suspension rather than removal would be more appropriate. Upon review, the Merit System Board adopted this initial de- cision. The Board ordered appellant reinstated with back pay. Ivan M. Sherman, Esq., for the appellant (Davidow, Sherman & Eddowes, attorneys) State of New Jersey 613 Eliaser Chapafro, Deputy Attorney General, for the respondent (W. Cary Edwards, Attorney General of New Jersey, attorney)