In the Matter of Peter Kristensen DOP Docket No. 2004-662 (Merit System Board, decided December 15, 2004)

In the Matter of Peter Kristensen DOP Docket No. 2004-662 (Merit System Board, decided December 15, 2004) Peter Kristensen, a Police Officer with the Borough of Fair Lawn Police Department, represented by James P. Patuto, Esq., petitions the Merit System Board (Board) for enforcement of the Board s decision, rendered June 25, 2003, which awarded him back pay, benefits and counsel fees. A copy of the Board s decision is attached and incorporated herein. By way of background, the petitioner was suspended from employment on July 13, 2001 and was ultimately removed, effective November 30, 2001, on the basis of a psychological unfitness for duty evaluation. Specifically, the petitioner was determined to be unable to carry a firearm, a prerequisite to the performance of his position as a Police Officer as the result of the fitness for duty evaluation. The petitioner appealed his removal to the Board, and the matter was transmitted to the Office of Administrative Law (OAL) as a contested hearing. The Administrative Law Judge (ALJ) determined that the appointing authority had not established by a preponderance of the credible evidence that the petitioner was unfit for duty and a hazard to persons if permitted to remain on the job, and recommended that the charges be dismissed. On June 23, 2003, the Board adopted the ALJ s recommendations. Additionally, the Board ordered that the petitioner be granted back pay, benefits and seniority for the period from his suspension to the date of his actual reinstatement. 1 The amount of back pay awarded was to be reduced and mitigated to the extent of any income earned or that could have been earned by the petitioner during this period. Finally, the Board ordered that counsel fees be awarded. 2 The petitioner was reinstated to his position effective July 1, 2003. However, the parties were unable to agree on the amount of back pay, and the petitioner requested Board review pursuant to N.J.A.C. 4A:2-2.10. The appointing authority, represented by Richard A. Lustgarten, Borough Attorney, while acknowledging that a percentage of back pay is due the petitioner, indicates that the petitioner has failed to reasonably mitigate his damages. In this regard, the appointing authority provides a summary of salary and benefits 3 that the petitioner would have received if he had worked for the period from July 27, 2001 4 to June 30, 2003. The total amount is $149,932.24, as indicated in the following Table 1. 1 It is noted the Board s decision in In the Matter of Peter Kristensen (MSB, decided June 25, 2003) orders that the petitioner be granted back pay from November 30, 2001 (the effective date of the petitioner s removal) to the date of his reinstatement. However, the Board presently notes that the petitioner would also be entitled to back pay for the period from his suspension on July 13, 2001 to the date of his reinstatement reduced by the amount of money which he actually earned or could have been earned during the period from his suspension to his reinstatement. 2 It is noted that the parties reached an agreement on the issue of counsel fees in this matter. 3 Benefits refer to the clothing allowance provided by the appointing authority. The petitioner s W-2 form for 2001 reveals that the petitioner received his $650.00 clothing allowance for the year 2001. 4 It is noted that the petitioner was suspended effective July 13, 2001. The salary figures provided by the appointing authority begin from July 27, 2001. The record does not clearly indicate whether the petitioner was paid from July

2 TABLE 1 APPOINTING AUTHORITY S FIGURES DATES SALARY 7/27/01 12/31/01 $32,952.24 1/1/02 12/31/02 $76,319.00 1/1/03 6/30/03 $39,686.00 TOTAL $148,957.24 5 Additionally, the appointing authority indicates that for the last quarter of 2001 and the first two quarters of 2002, unemployment compensation benefits in the amount of $11,486.19 were paid to the petitioner. 6 TABLE 2 UNEMPLOYMENT BENEFITS 4 TH Quarter 2001 $1,767.12 7 1 st Quarter 2002 5,301.36 2 nd Quarter 2002 4,417.71 (thru 5/25/02) TOTAL $11,486.19 In his certification, the petitioner indicates that the amount of salary and uniform allowance he is entitled to for 2001 is $32,952.24. He also claims that the agreed upon calculations with the appointing authority for 2002 amount to $76,969.00. 8 For the period of 2003 that he was not at work, the petitioner maintains he would have received salary and benefits in the amount of $40,336.00, for a total of $150,257.24 (Table 3). Additionally, the petitioner asserts that in 2001 he received unemployment compensation benefits of $1,784.00. In 2002, he had gross income from unemployment compensation benefits in the amount of $15,610.00 and in 2003, he had earned income of $5,249.30. The petitioner submits documentation from the Department of Labor (DOL) establishing that he received unemployment compensation benefits for the period described by the appointing authority (see Table 2), and also continued receiving unemployment compensation benefits in the 3 rd Quarter of 2002 from June 1 through August 24, 2002 in the amount of $5,798.00. It is noted that the weekly unemployment compensation benefit figures provided by the petitioner, substantiated by documentation from the DOL, differ 13 to July 27, 2001. However, as will be noted later in this decision, this two-week period will not affect the amount of back pay to be awarded to the petitioner. 5 These figures represent salary without the clothing allowance factored in. 6 This information was obtained from the Form B187Q from the New Jersey Department of Labor, Bureau of Benefit Payment Control. 7 Form B187Q indicates that the petitioner received Unemployment Benefits for the month of December 2001 ($441.78 x 4 = $1,767.12). 8 The petitioner originally indicated that the agreed upon calculations with the appointing authority for 2002 amounted to $72,969.00. Subsequently, the petitioner indicated that this was a mistake and the figure was $76,969.00.

3 from the weekly unemployment compensation benefit figures provided by the appointing authority s DOL figures. Specifically, the appointing authority s figures indicate that the petitioner received $441.78 in weekly unemployment compensation benefits. The petitioner s figures indicate that he received $446.00 per week. Further, the petitioner indicates that in 2002 he received a check from the appointing authority for all his outstanding vacation and sick leave as well as his accrued and compensatory time. Therefore, the petitioner claims that he is owed $128,422.94 for the period of time he was out of work minus his unemployment and earnings in mitigation. TABLE 3 PETITIONER S FIGURES DATES SALARY 7/27/01 12/31/01 $32,952.24 1/1/02 12/31/02 $76,319.00 1/1/03 6/30/03 $40,011.00 AMOUNT OWED $149,282.24 9 Less Mitigation $20,859.30 10 TOTAL $128,422.94 In support of his contention that he did what he could to find employment during the period of his separation from employment, the petitioner submits a list with the names, locations and responses of 21 establishments from which he sought employment. It is noted that this list does not contain any dates as to when the petitioner contacted these establishments in search of employment. Additionally, the petitioner states that due to the manner in which he was separated from employment, he had no employment history for the year 2002. Further, the petitioner claims that owing to the rationale for his termination, he had no ability to give references or acceptable answers to inquiries as to why he had been separated from employment. Moreover, the petitioner maintains that he was unable to commit to long term employment with Decker Dodge 11 since he was pursuing his efforts to be restored to his Police Officer position. The petitioner claims that due to his inability to commit to long term employment with Decker Dodge, he was terminated therefrom. Finally, the petitioner argues that during the time of his separation, he applied for many positions. He states that he was always unable to make an honest commitment for full-time employment. The petitioner also believes that due to the reason for his separation, other employers were reluctant to hire him. In addition, the petitioner indicates that 2001 and 2002 were periods of relatively high unemployment, adding to his difficulties in finding other employment. 9 These figures represent salary without the clothing allowance factored in. 10 It is noted that this figures fails to include the amount of unemployment compensation benefits received in 2001. 11 The petitioner was employed by Decker Dodge for a period of time in 2003 and earned $5,249.30. The petitioner submitted a statement indicating that this period of employment covered 10 weeks beginning January 9, 2003. Ten weeks would put the ending date of employment at March 20, 2003.

4 In opposition to the petitioner s claim for back pay, the appointing authority requests a hearing at the OAL to determine whether the petitioner properly attempted to mitigate his damages. The appointing authority maintains that basic due process considerations for both the employee and the employer require a meaningful process to test the validity of the written submissions. The appointing authority asserts that it is only after a full review of the submissions tested by cross-examination that the Board can make a meaningful decision regarding the appropriate amount of back pay. Specifically, the appointing authority contends that based on his own submissions, the petitioner indicates he had no employment in 2002 and had no ability to give acceptable answers on job interviews. The appointing authority also maintains that the petitioner indicates he applied for many positions, but his list of 21 establishments is deficient as to the dates when he made the applications. Additionally, the appointing authority contends that without more information than the petitioner provided, it is impossible for the appointing authority to challenge the petitioner s statement that he was not hired for employment due to the reasons behind his separation from employment as a Police Officer. Moreover, the appointing authority claims that there is no way to determine whether the petitioner s inquiry to potential employers was made in the initial period of his unemployment or continued throughout the separation period. The appointing authority contends that a good faith effort to mitigate damages must be ongoing during the period of separation. Finally, the appointing authority submits a certification from its Borough Manager indicating that in addition to his basic police academy training, the petitioner had taken additional training courses which qualified him for positions as a security officer. Additionally, the certification includes copies of classified advertising from the Bergen Record indicating that there were both full-time and parttime positions available for security officers in Bergen County and the surrounding area for the period when the petitioner was separated from employment. The appointing authority asserts that the petitioner had the necessary qualifications to apply for positions as a security officer and that this constituted suitable employment, but that no information has been submitted indicating that the petitioner made any attempts to secure employment of this nature. Moreover, the appointing authority alleges that it subsequently obtained information that during the period of his suspension, the petitioner worked for a Scott Parcells of 3 Krolvo Place, Hawthorne, New Jersey. The appointing authority indicates that at the present time, it cannot provide more information than what it has presented, other than to state that the basis of the information is an admission by the petitioner himself. In response thereto, the petitioner states that any outside work he may have performed with regard to Scott Parcells occurred in 2004 and does not encompass any time covered by this appeal. CONCLUSION The appointing authority requests a hearing in this matter. Back pay appeals are generally treated as reviews of the written record. See N.J.S.A. 11A:2-6(b). Hearings are granted in those limited instances where the Board determines that a material and controlling dispute of fact exists which can only be resolved through a hearing. See N.J.A.C. 4A:2-1.1(d). As further explained below, no material issue of disputed fact has been presented which would

5 require a hearing. See Belleville v. Department of Civil Service, 155 N.J. Super. 517 (App. Div. 1978). N.J.A.C. 4A:2-2.10(d)3 provides that an award of back pay shall be reduced by the amount of money which was actually earned or could have been earned during the separation. Pursuant to N.J.A.C. 4A:2-2.10(d), an award of back pay shall include unpaid salary, including regular wages, overlap shift time, increments and across-the-board adjustments. Benefits shall also include vacation and sick leave credits and amounts expended by the employee to maintain health insurance coverage during the period of improper suspension or removal. N.J.S.A. 11A:6-3(e) and N.J.A.C. 4A:6-1.2(f) provide that vacation leave not taken in a given year because of business demands shall accumulate and be granted during the next succeeding year only. N.J.S.A. 11A:6-5 and N.J.A.C. 4A:2-2.10(e) state in pertinent part that, unless otherwise ordered, seniority shall be calculated from the effective date of the appointing authority s improper action to the date of the employee s actual reinstatement to the payroll. In O Lone v. Department of Human Services, 357 N.J. Super. 170 (App. Div. 2003), the Appellate Division addressed the issue of mitigation of back pay awards following an employee s reinstatement, concluding that: In the absence of an administrative rule that sets forth the employee s and the appointing authority s evidentiary burdens in a case where an appointing authority claims that a back pay award should be denied or reduced due to the employee s failure to seek substitute employment, we conclude, in conformity with the general rule governing the failure-to-mitigate defense, that the appointing authority should bear the initial burden of presenting evidence of the employee s failure-to-mitigate. [citation omitted]. We conclude that the appointing authority may discharge its initial burden by presenting evidence that the employee failed to seek any substitute employment or, alternatively, that suitable substitute employment was available that the employee did not obtain. If the employer makes either of these showings, the burden then shifts to the employee to present evidence that suitable employment was unavailable or that the employee was unable to obtain such employment despite diligent efforts. Based on this evidence, the Board must then determine whether there was suitable substitute employment the employee could have obtained had he or she made a diligent search. If the Board makes this finding, the back pay award should be reduced by the amount the employee could have earned in that employment [citations omitted]. Id. at 181. Under the standard set forth in O Lone, the Board finds that the appointing authority has sustained its initial burden of proof. Specifically, the Board finds that based on the appointing authority s submission of classified advertising from the Bergen Record showing that there were potential employment opportunities in a field wherein the petitioner s training and experience could be utilized, and the fact that the petitioner has not submitted any information indicating that any of his efforts at finding employment were directed in this manner, the Board is left to conclude that the burden of going forward shifted to the petitioner to present evidence that suitable employment was unavailable or that the petitioner was unable to obtain such employment despite diligent efforts.

6 Initially, the Board notes that the petitioner did not begin to receive unemployment compensation benefits until December 1, 2001 based on a claim filed November 25, 2001. The Board also finds, based on the petitioner s submissions, that he received unemployment benefits in 2002 for a 39-week period ending on August 24, 2002. In order to be eligible for unemployment compensation benefits, an individual must demonstrate that he/she is actively seeking employment. The Board has long considered the receipt of unemployment benefits as evidence that an individual sufficiently mitigated during that time period, since searching for employment is a condition to receiving such benefits. See e.g., In the Matter of John Raube, Senior Correction Officer, Department of Corrections, Docket No. A-2208-02T1 (App. Div. March 30, 2004); In the Matter of Judith Leeds (MSB, decided May 19, 1998); See also, In the Matter of James Nance (MSB, decided October 1, 2003); In the Matter of Obianuju Okosa (MSB, decided October 1, 2003); In the Matter of William Carroll (MSB, decided November 8, 2001); In the Matter of Carl Underwood (MSB, decided July 10, 2001). Accordingly, the Board finds that the petitioner is entitled to back pay from December 1, 2001 through August 24, 2002 less the amount of unemployment compensation benefits received. Moreover, the Board finds that the petitioner presented evidence of employment with Decker Dodge during the period from January 9 through March 20, 2003 in the amount of $5,249.30. Accordingly, the Board finds that the petitioner is entitled to back pay for this period less the amount of earned income received. Finally, the Board notes that the petitioner submitted a list of 21 places where he applied for employment. However, this list regarding his search for employment does not provide any indication of when these attempts at employment were made. The Board also notes that the petitioner was specifically requested by the Division of Merit System Practices and Labor Relations to provide this information (letter dated September 3, 2003). Additionally, the petitioner was again afforded the opportunity of supplying the dates of his searches in response to the appointing authority s contention that the petitioner s evidence of mitigation was deficient in its failure to indicate when this mitigation occurred (letter dated May 5, 2004). Therefore, the Board finds that the petitioner has not sustained his burden of going forward with regard to the 21 listed attempts at finding employment for purposes of mitigation. Accordingly, the Board cannot award the petitioner back pay for the period of his suspension on July 13, 2001 to November 30, 2001 12, or for the periods of August 25, 2002 through January 8, 2003 and March 21 through June 30, 2003, as the petitioner has not presented sufficient evidence that he sought employment during this period of time. TABLE 4 PERIODS OF BACK PAY July 13, 2001 November 30, 2001 December 1, 2001 December 31, 2001 January 1, 2002 August 24, 2002 August 25, 2002 December 31, 2002 January 1, 2003 January 8, 2003 January 9, 2003 March 20, 2003 No mitigation No back pay Mitigation Back pay Mitigation Back pay No mitigation No back pay No mitigation No back pay Mitigation Back pay 12 This is the explanation why the actual date of either July 13 or July 27, 2001 from which to begin calculating a back pay award turns out not to be relevant.

7 March 21, 2003 June 30, 2003 No Mitigation No back pay It is noted that the petitioner s and the appointing authority s figures on the gross amount of back pay that could be owed to the petitioner differ by the sum of $325.00, with the petitioner s figures indicating the higher dollar amount. The Board s review of the information presented indicates that this sum represents one-half of the $650 clothing allowance for 2003. The petitioner included the full $650 in his figures and the appointing authority prorated the amount for the first half of 2003. Using a figure of 261 working days per year for the years 2001 and 2002, the Board finds that the petitioner s per diem rate for 2001 equals $281.16 ($73,384 divided by 261 equals $281.16). For 2002, the per diem rate equals $292.41 ($76,319 divided by 261 equals $292.41). For 2003, there were 262 working days, and the per diem rate equals $302.95 ($79,372 divided by 262 equals $302.95). Time Period Gross Amount Owed 12/1/01 12/31/01 $5,904.36 (i.e., $281.16 per diem rate multiplied by 21 workdays) 1/1/02 8/24/02 $49,417.29 (i.e., $292.41 per diem rate multiplied by 169 workdays) 1/9/03 3/20/03 $15,450.45 (i.e., $302.95 per diem rate multiplied by 51 workdays) Total Gross Back Pay Amount $70,772.10 Less Mitigation Amounts $22,643.30 ($17,394.00 unemployment benefits) 13 ($5,249.30 Decker Dodge) Total Mitigated Back Pay Award $48,128.80 Accordingly, the appellant is entitled to $48,128.80 as mitigated back pay. It is noted that N.J.A.C. 4A:2-2.10(d)1 expressly excludes items such as mandatory training, overtime pay and holiday premium pay from a back pay award. In addition, the amounts designated as the appellant s clothing allowance are similarly excluded from the amount of back pay. See e.g., In the Matter of Shannon Stoneham-Gaetano and Maria Ciufo (MSB, decided April 24, 2001) (Because the purpose of a clothing allowance is to provide for the purchase and/or maintenance of uniform components, appellants were not entitled to the inclusion of such amounts in their back pay award for the periods they did not work, and thus, did not need to maintain their uniforms); See also In the Matter of Judith Leeds (MSB, decided May 19, 1998). However, as indicated by the appointing authority and based on the petitioner s W-2 form for 2001 which indicates he was paid a $650.00 clothing alliance for 2001, the Board finds that the petitioner is only entitled to receive a clothing allowance for the second half of 2003 if he has not already received same. Accordingly, the Board finds that the petitioner is entitled to $325.00 for a clothing allowance. 13 This figure represents the $1,784.00 and the $15,610.00 in unemployment compensation benefits reported by the petitioner on his 2001 and 2002 federal income tax returns.

8 Finally, it is noted that the record does not present any dispute as to the appellant s seniority and benefits. Accordingly, since the outstanding issues concerning the amount of back pay and counsel fees ordered in the Board s prior decision have been resolved, that decision is now final. See Dolores Phillips v. Department of Corrections, unpublished, Docket No. A-5581-01T2F (App. Div. Feb. 26, 2003). ORDER Therefore, it is ordered that the appointing authority pay Peter Kristensen the gross amount of $48,128.80 for back pay within 30 days of receipt of this decision. It is further ordered that if it has not already done so, the appointing authority pay the petitioner an additional $325 for his clothing allowance within 30 days of receipt of this decision. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.