On August 17, 2009, the Appellate Division decided In the Matter of Juan Melendez, Docket No.: A-4617-07T1. In the case, Juan Melendez, a Hudson County Corrections Officer, appealed from a final administrative determination of the Merit System Board (“Board”) imposing a fifteen-day suspension for neglect of duty and other sufficient cause warranting discipline.

The Board adopted the initial determination of an Administrative Law Judge on a remand following his first determination that the suspension should only be for three days following Hudson County’s suspension of thirty days. On appeal, Melendez argues that: (1) the decision of the Board upholding the charges is not supported by credible evidence in the record; (2) the penalty of a fifteen day suspension is at odds with the concept of progressive discipline and appellant’s prior disciplinary history; and (3) he is entitled to attorneys’ fees based on having prevailed on all or substantially all of the primary issues.

The testimony before the ALJ revealed that Sgt. Kevin Orlik reported, and testified, that Melendez was asleep at his post in a trailer annexed to the jail on March 19, 2006 when Orlik and other officers arrived to conduct a search of the cells. In his testimony, Orlik testified that when he entered the trailer he “saw Officer Melendez reclined back in a chair with a roll of toilet paper as a pillow or cushion behind his neck,” “his eyes were closed,” and he was “motionless” as he was observed “for approximately a minute to two minutes” until other officers entered the trailer and started to make noise. Melendez testified that he wasn’t sleeping and told that to Orlik when he directed Melendez “to write a report on why [he] was sleeping.” Melendez challenged Orlik’s credibility by noting that his written report omitted details embodied in his testimony.

There was also testimony about the practice of standing when a superior officer enters the room. Melendez did not do so on the night in questions, and testified that it wasn’t a “regular routine” and he generally did not do so. Although the failure to stand was not itself a basis for discipline, it was determined to be relevant to the issue of “attentiveness” at the time, as well as to the ALJ’s finding that the inattentive conduct was a “sufficient cause” for the three-day suspension he initially imposed.

On the remand, despite making credibility determinations against Orlik because of the failure to include certain details in his written report, the ALJ found neglect of duty and “other sufficient cause” for the discipline, and found that “the failure to stand and acknowledge Sgt. Orlik’s when he entered the trailer to constitute being inattentive.”


In its opinion, the Board agreed with Melendez that “his failure to stand was not a specific infraction or charge,” but concluded that it constituted “evidence that he was inattentive, which he was charged with,” and “[i]t was the appellant’s inattentiveness that constituted his neglect of duty as it could have resulted in harm to the inmates.”  

The Appellate Division affirmed the determination of the Board in its entirety. The Court agreed with Melendez that the failure to stand when Orlik entered the trailer was neither a basis for the disciplinary charges nor can be a basis by itself for disciplinary action. However, the Court noted that it could be considered by the Board to be part of the overall neglect of the circumstances by Melendez. His response to the entry of a superior officer was relevant to whether he was paying proper attention and was sufficiently attentive to his circumstances. While it may not be a specific violation for not standing when a superior officer entered the trailer, the Court did not disagree that the subject related to Melendez’s “inattentiveness,” and “[i]t was the appellant’s inattentiveness that constituted his neglect of duty as it could have resulted in harm to the inmates.” 

The Court also determined that the discipline imposed cannot be considered “shocking to one’s sense of fairness,” although the Court may have reached a different result. Lastly, the Court found that the Board did not abuse its discretion in determining that Melendez did not prevail on “substantially all of the primary issues,” and thereby denying him counsel fees. Some of the charges were sustained and a fifteen-day suspension was imposed on the Board’s review and, therefore, the Court agreed with the Board that Melendez was not entitled to fees despite the reduction of fifteen days of the suspension.