On appeal from the New Jersey Merit System Board and the Superior Court of New Jersey, Law Division, Hudson County.
Before Judges Brody, Stern and Keefe.
The opinion of the court was delivered by KEEFE, J.A.D.
Plaintiff Mark Ensslin appeals from a determination of the Merit System Board (Board) which approved the Township of North Bergen's (Township) action in terminating Ensslin's employment as a police officer in the Township. The Board found that Ensslin "could not perform the essential duties of his position" and that "accommodation [to his disability] would not be feasible[.] . . ." While plaintiff raises several issues on appeal they can be summarized as follows: 1) whether the Township failed to schedule a departmental hearing within the time required under N.J.A.C. 4A:2-2.5(2)(d), and 2) whether the ALJ and Board erred in not considering the effect of the Law Against Discrimination (LAD), or, having done so, whether the Board erred in determining that Ensslin was unable to perform the essential duties of police sergeant and that accommodation for his disability was not feasible.
Ensslin also appeals from the entry of summary judgment in favor of the Township which dismissed his complaint filed in the Law Division alleging that the Township's termination of his employment with the police department constituted discrimination on the basis of handicap, in violation of the LAD. In that suit Ensslin demanded reinstatement, back-pay, consequential and punitive damages, an injunction to render the police building accessible, and attorney's fees and costs. On appeal, Ensslin contends that the trial Judge erred in granting summary judgment because there were genuine fact disputes, a prima facie case of handicap discrimination was made out, and there was no reasonable accommodation to Ensslin's handicap. We now consolidate the two appeals and affirm both judgments under review for the reasons stated herein.
In February, 1987, Ensslin was injured in a skiing accident which rendered him a paraplegic. At the time, he was employed as a police officer with the rank of sergeant in the Township. The Township gave him one year's pay, pursuant to the collective bargaining agreement, and kept him on the payroll for an additional five months.
Ensslin was then served with a Preliminary Notice of Disciplinary Action, terminating him from his position as police sergeant effective August 1, 1988. On August 16, 1988, he requested a departmental hearing. However, a few days later the parties agreed to hold the hearing "in abeyance" pending settlement Discussions. Apparently, Ensslin was subsequently offered the position of civilian dispatcher. However, when it was thought that he would have to take a competitive examination for such position, negotiations ended.
On May 26, 1989, Ensslin filed a complaint in the Law Division, essentially alleging that his termination was based upon handicap discrimination in violation of the LAD. The first count of the complaint alleged that the Township made no attempt to reasonably accommodate him by assigning him to administrative duties which he could perform despite his paraplegia. In count two, Ensslin alleged that the Township employed other disabled police officers, and that his discharge was a violation of his right to equal protection. In the third count of the complaint, Ensslin alleged that the Township failed to afford him a hearing on his termination, in violation of the parties' collective bargaining agreement and his right to due process. In count four, Ensslin alleged that the Township should have rendered the police building accessible to the handicap when it was remodeled.
The departmental hearing took place on three dates between October 3rd and November 29, 1989. The hearing officer found that Ensslin was unable to perform many of the functions required of a police officer, and that accommodating his handicap would unduly burden the operation of the Township's police department. He concluded that Ensslin should be removed from his employment. As a result, a Final Notice of Disciplinary Action was issued, removing Ensslin from his position effective August 1, 1988. Ensslin appealed that decision to the Board which, in turn, referred the matter to the Office of Administrative Law as a contested case.
An Administrative Law Judge (ALJ) conducted a hearing on thirteen non-consecutive days from May 8, 1990 to November 25, 1991. On June 5, 1992, the ALJ issued her decision. The ALJ found that Ensslin was capable of performing administrative and clerical duties with only slight modifications to the work area, but was unable to intervene in physical situations, such as apprehension and securing of suspects and prisoners. One of Ensslin's duties if he were assigned to permanent duty as a desk sergeant would be to watch prisoners, including the possibility of subduing them, and rendering first aid to them as needed. The ALJ found that such tasks would be "extremely difficult" for Ensslin to perform. The ALJ also found that Ensslin would be unable to meet the criteria for firearms training as promulgated by the Attorney General's guidelines.
With respect to administrative and clerical duties other than that of desk sergeant, the ALJ found that there were a number of positions within the Township police department requiring administrative and clerical duties. However, each of the positions had a component that was neither administrative nor clerical, and required physical duties Ensslin could not perform. The Township conceded that if all of the administrative hours allocated to the several officers who performed them were segregated and amassed, the hours would be sufficient to fill one full-time position. However, as constituted, the Township's police department required and expected each officer, regardless of the officer's assignment, to be capable of responding to "emergency situations" and to be available as a reserve or "backup" to fellow officers as needed.
At the hearing before the ALJ, Ensslin's position essentially was that his disability, although preventing him from performing all of the functions of a police sergeant, did not prevent him from performing the essential functions of the job with reasonable accommodation. He contended that the Township had a duty to accommodate his handicap, that he could perform the essentials of the job with such accommodation, that the Township failed to observe its duty under the LAD, and, thus, that his termination was illegal.
Ensslin's proof concerning his physical abilities and limitations was offered primarily through the testimony of Barbara Reuven, a Senior Physical Therapist, and Jackie Hu, an Occupational Therapist, at the Kessler Institute for Rehabilitation. Their testimony focused mainly on Ensslin's ability to perform as a desk sergeant with certain accommodations. Physical accommodations to the work area included lowering the heights of the filing cabinets and mailboxes, and raising the height of the desk to make it wheelchair accessible. Those accommodations apparently presented no problem from the Township's standpoint. However, Reuven conceded that, even with such physical accommodations, Ensslin would be unable to perform two tasks set forth in the Township's job description for that position: engaging in physical confrontation with prisoners so as to either prevent physical violence by or against them, and rendering aid to prisoners in medical emergencies. She conceded that both of those tasks would have to be delegated by Ensslin to another officer.
Chief of Police, Angelo Busacco, testified that the duties which Ensslin described he could perform were those of a civilian dispatcher, a position Ensslin was currently performing in Fort Lee. The chief maintained that a police sergeant must be able to perform all of the duties of a police officer as well as the specific physical duties attendant to the job of desk sergeant. He testified that a desk sergeant is not a sedentary position because a sergeant is basically a patrolmen with supervisory capability, who must be able to patrol, inspect operations in the field, back-up other officers, make arrests and respond to calls. He also pointed out that a police officer carries a gun, and is required to respond and take necessary action if an offense is committed whether on or off duty. Further, there was testimony that the Attorney General has strict guidelines for police officers' qualifications for carrying a firearm: the officer must fire 100 rounds from two positions, kneeling and standing. (Ensslin's testimony in this respect was that he could shoot from a standing position if placed in a standing wheelchair and could also shoot from a kneeling position, apparently if placed in that position.)
Chief Busacco maintained that he required every police officer in his department to perform all of the functions of a police officer because the department was understaffed, and that "the delivery of emergency services to the community . . . has to be both effective and efficient." He concluded that the ability to effectuate an arrest and take care of unruly suspects was a reasonable, legitimate and necessary part of being a police officer in the Township. Without those functions, the fundamental nature of the job would be changed.
The Board adopted the ALJ's findings of fact, and agreed that termination was warranted. However, it modified the ALJ's determination to the extent that Ensslin is considered to have resigned in good standing. We now address the issues stemming from that determination.
Ensslin's claim that reversible error has taken place because the Township failed to provide a hearing as required by N.J.A.C. 4A:2-2.5(2)(d) is without merit. N.J.A.C. 4A:2-2.5(d) requires a departmental hearing within thirty days of the Preliminary Notice of Disciplinary Action, not within thirty days of the employee's request for a hearing. Thus, the lapse of over thirty days between Ensslin's request and the hearing did not constitute a violation of the regulation. Rather, as the ALJ found, Ensslin waived his right to a hearing within thirty days of the Preliminary Notice of Disciplinary Action when he agreed to hold the hearing "in abeyance" pending settlement Discussions. His attorney's letter of August 18, 1989 admitted as much. In any event, procedural irregularities at the departmental level are considered "cured" by a subsequent plenary hearing at the agency level. See ...