June 13, 2008
IN THE MATTER OF KEITH STOUCH.
On appeal from the Merit System Board, Department of Personnel, Docket No. 2004-2328.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2008
Before Judges Winkelstein and Yannotti.
Appellant Keith Stouch appeals from a final decision of the Merit System Board (Board) that upheld a determination by the Township of Irvington terminating his employment with the Irvington Police Department (IPD) on the ground that he was psychologically unfit to perform the duties of a police officer. For the reasons that follow, we affirm.
We briefly summarize the relevant procedural history and facts. Stouch began working for the IPD on August 1, 1994. In April 1999, while on duty, Stouch drove his vehicle over a man lying in a toll plaza on the Garden State Parkway, inadvertently causing the man's death. In August 2000, Stouch and another officer were pursuing a murder suspect when they collided with another vehicle. Stouch suffered neck and back injuries, and underwent back surgeries in January 2001 and January 2003.
In March 2002, Stouch began counseling with a licensed social worker who provides treatment to police officers that suffer from post traumatic stress disorder (PTSD). Subsequently, Stouch was referred to Dr. Lawrence Eisenstein, a board certified psychiatrist, for additional treatment. Dr. Eisenstein prescribed certain medications to help Stouch sleep.
After the second surgery, the IPD placed Stouch on light duty and assigned Stouch to "communications." He was responsible for receiving emergency calls and dispatching officers. On July 11, 2003, while performing these duties, Stouch was involved in a verbal altercation with another police officer, Brian Rice. According to Stouch, there had been "some type of miscommunication" and Officer Rice did not believe that he had been given information quickly enough. Rice returned to police headquarters and confronted Stouch. Stouch claimed that Rice had threatened his life.
Following that incident, Stouch again consulted Dr. Eisenstein. At Eisenstein's recommendation, Stouch remained out of work temporarily. By letter dated August 20, 2003, Eisenstein recommended to the IPD that Stouch be granted medical leave until September 30, 2003. Eisenstein said that the incident of July 11, 2003 with officer Rice was a "triggering event" for Stouch's PTSD.
In his letter, Eisenstein also stated that Stouch was taking certain medications for his PTSD and sleeping problems. Eisenstein asserted that the medication would not impair Stouch's judgment or reaction time if a situation arose in which Stouch had to take some action. Eisenstein said that if Stouch "is able to return to work in the future and continues on his medications[,] there would be no problem with him carrying out his daily duties as a police officer."
On September 26, 2003, the IPD sent Stouch a letter directing that he attend "a fitness for duty exam" at the offices of Dr. Alvin Krass, a psychologist, and Dr. John P. Motley, a psychiatrist. Stouch appeared for the examination on October 16, 2003, and Dr. Motley conducted a clinical interview.
Stouch returned to the Krass/Motley offices on October 27, 2003 and various psychological tests were administered, including a test to measure literacy, a test of Stouch's abstract reasoning ability, the Miale-Holsopple Sentence Completions Test, the Rorschach Psychodiagnostic Test, the Szondi Personality Test, and the Minnesota Multi-phastic Personality Inventory.
Dr. Krass issued a written report dated November 10, 2003, in which he summarized the information provided by Stouch during the clinical interview. Krass stated that:
[t]he impressions obtained during the clinical interview which preceded the formal psychological testing session, were that Mr. Stouch is a person with almost certainly longstanding psychoneurotic personality issues and that a likely more detailed background review of his history would support those impressions. At least during this interview, he gave the impression of being prepared to leave his position as a police officer and to seek a means for obtaining disability benefits which he feels he deserves since he feels that the problems he has, both physical and psychological, are related to his job difficulties.
Dr. Krass also detailed the results of the psychological tests that he administered to Stouch. Krass stated that Stouch's Rorschach findings "were evasive, strongly suggesting that he was not willing to openly represent . . . [his] basic feelings about life or himself." Krass wrote that the results of the Szondi Test indicated that Stouch was "socially isolated." In addition, Stouch's MMPI profile suggested that Stouch "may be representing or denying unfavorable personality traits." Krass concluded that Stouch was not psychologically fit to return to regular police duties.
On December 31, 2003, the IFD terminated Stouch's employment based on Dr. Krass's findings. Stouch sought review of that determination by the Board, which referred the matter to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ).
At the hearing, Dr. Krass testified that, although Stouch was not "mentally psychotic" and was not suffering from PTSD, he was "too upset to return to regular police duties." Stouch presented testimony from Dr. Eisenstein, who had stated in his letter of October 28, 2004, that he "did not find any evidence of significant abnormality in [Stouch's] mental status evaluation." Dr. Einstein noted that he had prescribed Ambien to help Stouch sleep and Zoloft for his PTSD. Eisenstein opined that Stouch's medication would not impair his ability to perform his duties with the IPD.
Stouch also presented testimony from Dr. Guillermo Gallegos, a psychologist, who stated that most of Stouch's psychological difficulties stemmed from the August 2000 auto accident and the resulting chronic neck and back pain. Gallegos stated that Stouch had not been fit for duty in 2003 but, as a result of his treatment and surgeries, Stouch had become fit in 2004.
Stouch also presented a report that Dr. Motley had prepared following his clinical interview. In his report, Dr. Motley stated that he diagnosed Stouch with personality disorder, not otherwise specified. Dr. Motley said that there was no justification for a diagnosis of PTSD. Motley concluded that Stouch's personality disorder was longstanding "and will continue to interfere sleeping [with Stouch's] ability to work cooperatively within the rules of [the police] department."
In addition, Stouch presented a report dated March 30, 2005, that had been prepared by Doctor William B. Head, Jr. for the Township after Stouch filed a petition for workers' compensation benefits due to certain alleged "stress and anxiety." In his report, Dr. Head asserted, among other things, that Stouch was not suffering from any "permanent psychiatric condition or disability, relative to the work related injuries of March 26, 1997 and August 23, 2000[.]"
On October 26, 2006, the ALJ issued an initial decision affirming Stouch's termination. Stouch thereafter filed with the Board exceptions to the ALJ's decision. On February 1, 2007, the Board issued a final decision adopting the ALJ's initial determination. This appeal followed.
Stouch raises the following issues for our consideration:
THE MERIT SYSTEM BOARD'S DECISION TO TERMINATE OFFICER STOUCH WAS ARBITRARY, CAPRICIOUS AND CONTRARY TO THE SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD.
THE FAILURE OF THE MERIT SYSTEM BOARD TO GIVE PROPER WEIGHT TO DR. HEAD'S REPORT WAS ARBITRARY, CAPRICIOUS AND CONTRARY TO THE SUBSTANTIAL CREDIBLE EVIDENCE.
THE MERIT SYSTEM BOARD'S FAILURE TO ADHERE TO THE PRINCIPLE OF JUDICIAL ESTOPPEL WAS ARBITRARY AND CAPRICIOUS.
THE FAILURE OF THE MERIT SYSTEM BOARD TO CONSIDER, AND GIVE PROPER WEIGHT TO DR. EISENSTEIN'S AND DR. GALLEGOS' OPINIONS, WAS ARBITRARY, CAPRICIOUS AND CONTRARY TO THE SUBSTANTIAL CREDIBLE EVIDENCE.
THE MERIT SYSTEM BOARD'S FAILURE TO SANCTION IRVINGTON FOR ITS FAILURE TO PROVIDE DISCOVERY WAS ARBITRARY AND CAPRICIOUS.
THE MERIT SYSTEM BOARD IMPROPERLY RELIED ON THE MOTLEY REPORT IN ITS DECISION.
THE MERIT SYSTEM BOARD FAILED TO CONSIDER THAT A FINDING OF PSYCHOLOGICAL FITNESS IS NOT A TERMINABLE OFFENSE.
We have carefully considered the record in light of these contentions and the applicable law. We are convinced that Stouch's arguments are without merit. Therefore, we affirm the Board's final determination substantially for the reasons stated by the ALJ and the Board in their respective decisions. R. 2:11-3(e)(1)(D). We add the following comments.
It is well established that "[i]n light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996). We will intervene "only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid.
Our review of a final decision of an administrative agency is limited to three inquiries: "(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency base[d] its action; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Ibid. (citing Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963)).
Moreover, "an appellate court may not 'engage in an independent assessment of the evidence as if it were a court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). The findings of fact made by a trial judge "'are considered binding on appeal when supported by adequate, substantial and credible evidence.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "[T]hat standard is equally applicable to reviews of administrative decisions." Id. at 657 (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Therefore, when reviewing a final administrative decision, an appellate court must give appropriate deference to the agency's findings of fact and may not substitute "its own assessment of the weight to be accorded to the testimony of the witnesses." Id. at 659 (citing Close v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)).
Applying these principles of appellate review, we are convinced that the Board's decision must be affirmed. In our view, there is sufficient credible evidence in the record to support the Board's finding that Stouch was unfit to perform the duties of a police officer. That finding was based on Dr. Krass's report and testimony. It was also based upon Dr. Motley's report, in which he stated that Stouch was suffering from personality disorder NOS, with paranoid and narcissistic traits. Dr. Motley opined that, although Stouch was not suffering from PTSD, his personality disorder is "longstanding and will continue to interfere [with] his ability to work cooperatively within the rules of his department."
Stouch argues that Dr. Krass's report and testimony was not credible. He asserts that Dr. Krass's opinions were substantially undermined on cross-examination. He notes that Dr. Krass incorporated Dr. Motley's findings in his report but never mentioned the fact that Dr. Motley had performed the clinical interview, or the fact that Motley had written a report. However, the ALJ, who heard the matter and had the opportunity to observe the witnesses, found Dr. Krass's report and testimony to be credible. The record shows that Dr. Krass's findings were based upon a thorough review of the relevant records, the clinical interview, as well as the results of what Krass termed "a battery of psychological tests."
Stouch further contends that the ALJ and the Board erroneously relied upon Dr. Motley's report in finding that he was unfit for duty. Stouch notes that the Township did not provide him with this report in discovery. However, the record shows that Stouch's counsel obtained the report through discovery in a related civil action brought by Stouch against the Township, and Stouch's counsel used the report in the cross examination of Dr. Krass. In addition, Stouch introduced the report into evidence. We are convinced that, because Dr. Motley's report was introduced as evidence, the ALJ and the Board did not err by relying upon Dr. Motley's findings in their respective decisions.
Moreover, as the ALJ pointed out in her decision, Dr. Motley referred Stouch to Dr. Krass for testing. The doctors shared their data. The ALJ observed, "Motley's report incorporates and considers Krass's results and interprets them in light of the available clinical data, including Motley's interview with Stouch and his review of the available documents and work history." As the Board noted, although Motley did not expressly state that Stouch was not fit for duty, "his findings clearly indicate that the appellant had significant problems functioning within a police department, and his findings were consistent with Krass'[s] determination."
Stouch additionally argues that the ALJ and the Board erred by failing to give sufficient weight to the reports and testimony of Dr. Eisenstein and Dr. Gallegos. We disagree. The ALJ gave Dr. Eisenstein's findings little weight because Dr. Eisenstein did not perform any standardized testing on Stouch, and because his report was based on subjective information provided by Stouch and not upon Stouch's actual work experience as documented by the IPD.
Moreover, the ALJ gave Gallegos's report and testimony little weight because his findings were based on an examination conducted several years after Stouch was terminated, and on "subjective, and sometimes conflicting or inaccurate, information supplied by" Stouch. As the Board found, the ALJ's credibility determinations regarding Dr. Eisenstein, Dr. Gallegos and the other expert witnesses were proper and soundly based on the evidence. The record supports that finding.
Stouch next contends that the Board erroneously failed to apply the doctrine of judicial estoppel. Again, we disagree. Judicial estoppel "bars a party who has successfully asserted a position before a court or other tribunal from asserting an inconsistent position in the same or subsequent proceeding." Bray v. Cape May City Zoning Bd. of Adjustment, 378 N.J. Super. 160, 166 (App. Div. 2005) (citing Ali v. Rutgers, 166 N.J. 280, 288-89 (2000)). The doctrine prevents litigants from "'playing fast and loose'" with the judicial process. Ibid. (quoting State v. Jenkins, 178 N.J. 347, 359 (2004)).
Although judicial estoppel is frequently invoked in judicial proceedings, it has been applied to administrative actions. Id. at 166. Therefore, a party may not assert a position before an administrative agency "that is inconsistent with a position the party has successfully asserted before a court or other administrative tribunal." Ibid. (quoting State, Dep't of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 632 (1995)).
Stouch argues that the Township played "fast and loose" with the Board because it advanced a position in this matter that was allegedly inconsistent with the position that it relied on in Stouch's workers' compensation case. Stouch contends that in this proceeding, the Township relied upon Dr. Krass's opinion that he was unfit for duty and should be terminated, while relying upon Dr. Head's allegedly contrary views as to his fitness for duty in the workers' compensation case.
We reject Stouch's argument for two reasons. First, the record does not disclose whether the Township prevailed in the workers' compensation case based on the opinions expressed by Dr. Head in his report. As we stated previously, judicial estoppel only applies when a party advocates a position contrary to a position that the party successfully advocated in a prior proceeding. Bray, supra, 378 N.J. Super. at 166. Stouch has not established that the Township prevailed in the workers' compensation case based on Dr. Head's report.
Second, Dr. Krass's and Dr. Head's reports addressed different issues. Dr. Krass rendered an opinion as to Stouch's fitness for duty in December 2003, whereas Dr. Head opined in 2005 as to whether Stouch had sustained any permanent psychological disability due to his work-related accidents in 1997 and 2000. Therefore, the Township's reliance upon Dr. Head's report in the workers' compensation case does not preclude the Township from relying upon Dr. Krass's report and testimony in this matter.
We have considered the other contentions raised by Stouch and we are convinced that the arguments are not of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
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