On appeal from a Final Agency Decision of the Merit System Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman, Baxter and King.
Vincent Greenfield, a senior corrections officer who served ninety days in jail after being convicted for the third time of driving while intoxicated (DWI),*fn1 appeals from a final decision of the Merit System Board (Board) terminating his employment. We affirm.
Between February 6 and November 24, 2004, Greenfield's employer, the Department of Corrections (DOC) gave him three approved, unpaid leaves of absence for in-patient treatment of alcoholism. Those three leaves totaled seven months. Greenfield was due to return to work from the third leave of absence on December 4, 2004. He failed to return and did not advise DOC that he had been found guilty of a third DWI and was sentenced to serve ninety days in jail starting on December 13, 2004. When a warning notice sent to Greenfield by DOC regarding his absence from work generated no response, DOC issued a Preliminary Notice of Disciplinary Action (PNDA).
The PNDA charged Greenfield with chronic or excessive absenteeism and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(4) and (11); personal conduct unbecoming an employee, HRB 84-17(c); and abandonment of job as a result of absence from work without permission for five consecutive work days, HRB 84-17A.2(b). After a hearing on April 14, 2005, a departmental hearing officer determined that the charges were supported by the evidence presented. Consequently, DOC issued Greenfield a Final Notice of Disciplinary Action removing him from employment.
Greenfield appealed his removal to the Office of Administrative Law (OAL) which, after a hearing, issued written findings concluding that the charge, conduct unbecoming an employee, was proven; however, the Administrative Law Judge (ALJ) found that the charge of chronic or excessive absenteeism flowed from Greenfield's alcoholism. As such, the ALJ held that Greenfield was entitled to an accommodation under the Americans with Disabilities Act (ADA), thereby enabling him to serve his jail time without being terminated from employment. The ALJ reversed the removal and ordered Greenfield's reinstatement.
The ALJ's findings, along with the exceptions filed by both sides, were transmitted to the Board, which in its decision of September 27, 2007, rejected the ALJ's conclusion that Greenfield suffered from a medical disease or condition that barred DOC from terminating him. The Board concluded based upon the record before it: there was a risk that inmates at the prison where Greenfield worked, Bayside State Prison, might become aware of Greenfield's incarceration, thereby weakening Greenfield's supervisory authority over those inmates; the charge of conduct unbecoming a public employee should be sustained because Greenfield had been convicted of a serious offense that resulted in incarceration; DOC had not removed Greenfield from his employment because he was an alcoholic, but rather because he broke the law, and was convicted and sentenced; and Greenfield did not qualify for an accommodation under the ADA because he was unavailable for work while incarcerated and therefore could not satisfy the ADA requirement of being able to perform the essential functions of his position.
The Board also held that: even if DOC was required to accommodate Greenfield's disability, it had already done so by affording him three leaves of absence to enroll in in-patient alcohol treatment programs; removal was the appropriate penalty because Greenfield had previously incurred eight minor disciplines,*fn2 the charges were extremely serious and law enforcement officers should be held to a standard higher than that expected of others; and Greenfield had not been treated differently from other similarly situated employees. Consequently, the Board terminated Greenfield's employment in a written opinion issued on September 27, 2007.
On appeal, Greenfield raises a single claim: because he "had an alcohol dependence, DOC violated New Jersey law by firing [him] instead of providing [him] with a reasonable accommodation by allowing him to serve his penalty and return to his correction officer position." He also points to: 1) evidence in the record from a shift commander and other superior officers who testified before the ALJ that Greenfield had been a reliable employee who performed his assigned duties properly; 2) DOC's awareness when it hired him that he had two prior DWI convictions; and 3) DOC's treatment of other employees who were convicted and imprisoned, yet were not terminated.
"The scope of appellate review of a final agency decision is limited, and we do not ordinarily overturn such a decision 'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence.'" In re Carter, 191 N.J. 474, 482 (2007) (internal citation omitted) (quoting Campbell v. Dep't of Civil Serv., 39 ...