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In re Hennessey


June 27, 2007


On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2005-3147.

Per curiam.


Argued January 23, 2007

Before Judges R. B. Coleman and Gilroy.

Petitioner Karol Hennessey appeals from a Final Administrative Decision of the Merit System Board (Board), Department of Personnel, dated July 14, 2005, denying her request for reconsideration of its denial of her petition for interim relief. After carefully considering petitioner's arguments in light of the record, briefs and applicable law, we affirm.

Petitioner is employed as an Omnibus Operator by the County of Gloucester. Following her return from a two-month medical leave of absence, petitioner presented the County with a physician's note stating that she was authorized to return to work on October 29, 2004, with restrictions "of no heavy lifting [and] no operating buses due to [thoracic] outlet syndrome," an injury unrelated to her leave of absence. Prior to her medical leave of absence, petitioner had been restricted to driving mini-vans as a result of thoracic outlet syndrome.

Prior to allowing petitioner to return, the County scheduled a physical evaluation for November 1, 2004, to determine whether she was able to perform her duties as an Omnibus driver. At this appointment, the County's physical therapist, Colleen Boucher, was unable to complete the evaluation because petitioner's resting heart rate was greater than 100 beats-per-minute, and stayed at that level, which is above the safe resting maximum level. During the course of the visit, petitioner told Boucher that she suffered from thoracic outlet syndrome, numbness in the feet and dizziness. Boucher also made note that petitioner said, "[T]hey want me to return to driving a bus. I do not feel safe driving a bus and I may kill somebody." Petitioner was directed to see her regular physician regarding her heart rate and the evaluation was rescheduled for November 9, 2004.

The report generated from the November 9, 2004 evaluation stated that petitioner could return to work with limitations, but that it was difficult to predict whether petitioner would be able to sustain the sedentary level of work for an eight-hour day due to her "self-limiting behavior" during the exam. Because it had yet to be shown that petitioner was fit to return to her titled position, the County scheduled another exam for December 7, 2004.

Thereafter, petitioner, through her collective bargaining unit, refused to participate in any further physical evaluations, stating that to do so would constitute a hardship. Due to that refusal, petitioner was not allowed to return to work from November 1, 2004 through November 28, 2004. Beginning November 29, 2004, the County placed petitioner in a clerical position.

On November 15, 2004, petitioner filed a Petition for Interim Relief with the Merit System Board, seeking to compel the County to reinstate her with back pay unless the County provided her with a hearing or an opportunity to respond to the charges, pursuant to N.J.A.C. 4A:2-2.5. The Board denied the petition, in a decision dated February 24, 2005, stating that the County was entitled to obtain medical verification before returning petitioner to work as an Omnibus driver. The decision directed the County to schedule another evaluation within thirty days, noting that the County was not entitled to maintain the status quo indefinitely.

On March 4, 2005, petitioner filed a request for reconsideration. The Board issued a July 14, 2005 decision denying the request for reconsideration on the grounds that petitioner had failed to produce any new evidence or information that would result in a different outcome. On July 28, 2005, petitioner filed a Major Disciplinary Appeal Form with the Department of Personnel. The Department of Personnel issued a letter determining that no further action would be taken because petitioner's separation did not constitute a disciplinary suspension and that the Board's July 14, 2005 decision was final.

On appeal to this court, petitioner argues that the Board erred in determining that she was not entitled to notice and a hearing on the following grounds: (1) that she was denied due process once she was suspended from employment without a notice and hearing; (2) that the County's refusal to allow her to work in her titled position constituted a suspension; and (3) that the Board exceeded its authority by making the determination that she was unable to perform her duties as an Omnibus driver.

Appellate courts play a limited role in reviewing the decisions of administrative agencies. This court will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial, credible evidence on the record as a whole. In re Taylor, 158 N.J. 644, 657 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We also recognize that decisions of administrative agencies carry with them the presumption of reasonableness. City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). Furthermore, where there is more than one possible conclusion based on the evidence, we will yield to the expertise of the agency. Ibid.

It is without question that an employee who is suspended*fn1 from their position for disciplinary reasons is entitled to procedural safeguards. For example, except in certain specified circumstances, prior to imposition of major discipline, an employee must be served with a Preliminary Notice of Disciplinary Action (PNDA). N.J.A.C. 4A:2-2.5(a). In those circumstances where immediate suspension is authorized -- where the employee is unfit for duty or is a hazard to others if permitted to remain on the job or is formally charged with a crime -- written or oral notice of the authority's reason for immediate suspension must first be given if the suspension is without pay, N.J.A.C. 4A:2-2.5(b); and a departmental hearing, if requested by the employee must be held within thirty days of the PNDA. N.J.A.C. 4A:2-2.5(d). Petitioner argues that she was suspended from her position and is, therefore, entitled to these procedural safeguards. We agree, however, with the Board that petitioner was not suspended for disciplinary reasons.

Rather, petitioner was returning to work from medical leave with a list of restrictions from her personal physician. Under such circumstances, it was eminently reasonable for the County to require petitioner to undergo a physical evaluation prior to returning to her position which, based on the safety-sensitive nature of her position as an Omnibus Operator, would require someone in adequate health to fulfill the requirements so as not to put others at risk.

Significantly, N.J.A.C. 4A:6-1.4(g) provides that an appointing authority may require an employee to undergo an examination by a physician as a condition of the employee's continuation of sick leave or return to work. While recognizing that this regulation explicitly states that it applies to workers in the "State service," the Board has held that "local governments may look to State regulations for guidance," which is what the Board did here in denying petitioner's request for interim relief. In re Thomas Tyler, DOP 2003-2028 (October 23, 2003).

The record reveals that petitioner was returning from a medical leave of absence when the County directed her to undergo an examination. However, due to petitioner's unsafe heart rate, Boucher was unable to complete the examination. This, taken together with petitioner's statement that she "may kill somebody" if allowed to operate a bus, amply justified a rescheduling of the examination. Following the second examination, due to petitioner's "self-limiting behavior," the County still could not ascertain whether petitioner would be able to safely return to her position, warranting a third examination. It was solely petitioner's decision not to attend this examination.

Based on these facts, which are not materially controverted, we accept and defer to the Board's conclusion that petitioner was not "suspended" from her position. That conclusion is not arbitrary, capricious or unreasonable and is supported by sufficient credible evidence in the record. The County was properly exercising its prerogative to ensure that its employees who occupied risk-sensitive positions are physically capable of safely carrying out those positions. There is no indication whatsoever that petitioner was removed or precluded from her position for any reason other than concerns about her health and the safety of those she would transport. Consequently, the Board correctly determined that the procedural safeguards related to suspensions for disciplinary reasons were not implicated in petitioner's case. Finally, despite petitioner's claims to the contrary, the Board did not find petitioner unfit to carry out her titled position of Omnibus Operator. It only determined that the County was entitled to have petitioner undergo a satisfactory medical examination as a condition of her return to her position following a medical leave of absence.


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