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Czarnecki v. Merit System Board

July 20, 2007

ROBERT CZARNECKI, PETITIONER-APPELLANT,
v.
MERIT SYSTEM BOARD AND CITY OF TRENTON, RESPONDENTS-RESPONDENTS.



On appeal from a Final Administrative Decision of the Merit System Board, Docket No. CVS 2943-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 28, 2007

Before Judges Cuff, Winkelstein and Fuentes.

Petitioner Robert Czarnecki appeals from the final decision of the Merit System Board (Board) finding that the City of Trenton did not violate the Law Against Discrimination, N.J.S.A. 10:5-1 to -42, when it terminated his employment as a fire captain. The Board held that his permanent disability, resulting from a series of work-related accidents, rendered him unable to discharge the essential functions of the position of captain in a fire fighting company. The administrative position assigned to him by the City as a temporary accommodation for his disabilities did not obligate the City to continue to employ him in that capacity.

After reviewing the record before us, and in light of prevailing legal standards, we affirm. These are the controlling facts.

I.

Petitioner began his career as a firefighter for the City of Trenton in August 1983. In 1988, he took a two-month leave of absence to recover from a back injury that was the result of a work-related accident. About six months thereafter, petitioner re-injured his back in the process of extinguishing a car fire. He herniated two discs in his spinal cord, and was unable to return to work for four months.

In 1990, petitioner was promoted to captain. One year thereafter, he suffered another injury to his back when he was knocked backward by flames in a burning building. He underwent surgery for that injury, and remained out of work for nearly a year. After the surgery, he "continued to have some intermittent problems," but within six months of returning to work he resumed his prior position as captain of a company.

In April 1999, petitioner suffered yet another injury when an unsecured oxygen tank fell on the same area of his back that he had injured in 1991. When he awoke the next morning, he had numbness in his right leg, tenderness in his right buttocks, and difficulty walking on his right foot; also, "there was evidence of a right foot drop," a neurological condition that affects petitioner's balance, causes his foot to "flop," and leads to tripping.

After a few days without improvement, petitioner was diagnosed with another herniated disc. As a result, he underwent another surgical procedure, and began a regimen of physical therapy. Although he showed some improvement from the physical therapy, he did not fully recover. He continued to have pain and stiffness in his back and right leg, and his "foot drop" problem remained unresolved. In the summer of 1999, petitioner was prescribed a right ankle brace to secure his foot. Petitioner could walk without tripping while wearing this brace.

In December 1999, Dr. Michael Makowsky examined petitioner on behalf of the City. In his report, Dr. Makowsky noted that he did not expect petitioner's foot drop to improve in any significant way. In his medical opinion, the injury left petitioner "permanently and partially disabled" and unable to "fulfill all the job requirements of a firefighter."

While acknowledging the limitations inherent in his disability, petitioner did not want to retire at that time. Thus, in or around February 2000, petitioner met with the Director of the Department of Public Safety, Dennis Keenan, to discuss whether the Department could accommodate him by giving him a light-duty assignment. Given petitioner's experience with computers and electronics, Keenan agreed to consider assigning petitioner to work with Captain Donald Kanka, the Computer Assisted Dispatch (CAD) system administrator.

Shortly thereafter, Keenan met with Kanka and the Department's Deputy Chiefs, Richard Snyder and Stephen Benner, to discuss assigning petitioner to an administrative position under Kanka. Despite the general policy that light-duty assignments should only last for six months, they ...


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