SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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IN THE MATTER OF RUDDY CASTILLO, UNION CITY

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Submitted September 9, 2019

– Decided Before Judges Rothstadt and Mitterhoff. On appeal from the New Jersey Civil Service Commission , Docket No. 2016

- 2387. Ruddy Castillo, appellant pro se. O'Toole Scrivo Fernandez Weiner Van Lieu , LLC, attorneys for respondent Union City (Kenneth B. Goodman, of counsel and on the brief). Gurbir S. Grewal, Attorney General, attorne y for respondent New Jersey Civil Service Commission (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief).
PER CURIAM Petitioner Ruddy Castillo appeals the Civil Service Commission's ( Commission ) final agency decision den ying his application to reopen his NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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September 17, 20192 A

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administrative appeal of the termination of his employment by the City of Union City (the City ) . Petitioner also appeals the Commission's final agency decision denying his motion for reconsideration. We affirm. Prior to his termination, petitioner held the position of "Laborer 1" with the Union City Department of Parks and Recreation . On or about December 8, 2011, the City sent petitioner a preliminary notice of disciplinary a ction (PNDA ) via certified mail, charging petitioner with excessive absenteeism, insubordination, failure to perform duties, and other infractions . Specifically, the PNDA stated that petitioner "ha[d] been absent from work, without permission and [sic] and/or without giving the requisite notice, since September 26, 2011" and , prior to September 26 , "was insubordinate in that he refused to perform those tasks required of him." A departmental disciplinary hearing was held on February 16, 2012, but petitioner di d not appear at the hearing. The hearing officer recommended termination . The City concurred with the hearing officer 's recommendation and

se nt petitioner a final notice of disciplinary action (FNDA ) via certified mail on May 14, 2012 . The FNDA terminat ed petitioner's employment effective December 12, 2011 , and advised him of his right t o appeal within twenty days
of receipt of the FNDA.3 A

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Petitioner, however, asserted that he did not receive notice of the departmental hearing because the disciplinary noti ces had bee n sent to an incorrect address. By letter dated June 18, 2012, the City agreed to hold a rehearing as to the disciplinary charges. Before a departmental re hearing was held , 1 petitioner appealed his termination to the Commission. O n June 2 2, 2012, the matter was transferred to the Office of Administrative L aw ( OAL ) fo r hearing as a contested case. After adjournments, the hearing was scheduled for February 22, 2013. By letter dated February 22, 2013, however, petitioner voluntarily withdre w his appeal
based on the City's agreement to rehear the matter at the departmental level . The letter provided that if petitioner was unsatisfied with the outcome , he could appeal to the Commission "within the requisite time period." It appears that th e parties unsuccessfully pursued a settlement after the voluntary dismissal of petitioner's appeal. By letter dated December 13, 2013, the C ity confirmed to petitioner that he was terminated from employment on December 12, 2011.

1 The departmental rehearing was scheduled for July 12, 2012 but was held in abeyance to explore the possible resolution of the matter by petitioner retiring on or dinary disability

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Over two years after the withdrawal of his appeal, on May 22, 2015, petitioner requested that the Commission reinstate his appeal

. In a written
decision issued N ovember 9, 2015 , the Commission found that petitioner did not present a sufficient basis or good c ause to reopen his appeal

. The Commission noted that "[a]lthough the settlement discussions may have come to an impasse in July 2013, there was no doubt that in December 2013, the appointing authority considered the petitioner removed from employment." T he Commission further reasoned that although N.J.A.C. 1:1

- 19.2 did not specify a time limit for filing a motion to reopen an appeal , "the petitioner's request was filed almost a year
and one

- half after he received definite notice in December 2013 that he n o longer would be reinstated to his Laborer 1 position " and that "petitioner has not provided any explanation regarding t his delay." The Commission concluded that "[u]nder these circumstances, it is prejudicial to the appointing authority to permit the pe tit ioner now to reopen his administrative appeal, almost four years after the disciplinary action in question and over two years after he withdrew his appeal." Petitioner moved for reconsideration of the denial of his application to reinstate his appeal . B y decision issued May 8, 201 7 , the Commission denied petitioner 's application , findin g that there was no showing of a clear material5 A

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error or any evidence or additional information that would change the outcome of the case. See N.J.A.C. 4A:2

- 1.6(b). The Commission found that petitione r's stated explanation for the delay in seeking to reinstate the appeal , i.e., that he had been unable to pay for expenses of litigating the claim earlier, was without merit because he could have appeared pro se before th e OAL

. In addition, the Commission found that petitioner inappropriately raised substantive arguments against his termination, including that he was harassed and was being retaliated against, which were not relevant to the application for reconsideration because the Commission had not previously addressed the reasons for petitioner's termination. On appeal, petitioner urges us to reverse the Commission's decisions. Having reviewed the record in light of the applicable legal principle s , we conclude that the Commission's decisions are supported b y sufficient credible evidence i n the r ecord. R. 2:11

- 3(e)(1)(D ). Accordingly, the Commission's determinations were not arbitrary, capricious, or unreasonable , and there is no
reason to disturb them

. See In re Carter , 191 N.J. 474, 482 (2007). To the extent we have not addressed any of p et itioner's remaining arguments on appeal , we find they lack sufficient merit to warra nt discussion in a written opinion

. R. 2:11

- 3(e)(1)(E).6 A

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Affirmed.