On appeal from the Final Administrative Action of the Merit System Board, New Jersey Department of Personnel, Docket No. 2007-2534-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Ashrafi.
Appellant Jerry Duckworth appeals from a final decision of the New Jersey Department of Personnel, Merit System Board, dismissing his appeal of removal from employment. The Board adopted the findings and conclusions of an Administrative Law Judge (ALJ), determining that Duckworth had entered into an enforceable settlement agreement with his employer, the County of Passaic. We affirm.
Duckworth was employed as a senior juvenile detention officer at the Passaic County Juvenile Detention Center. In 1990, he injured his back at work and required surgery to remove a herniated disc. The surgery left Duckworth suffering chronic lower back pain. In 2002 and 2003, Dr. Halejian, a physician engaged by Passaic County, examined Duckworth and diagnosed permanent back injury and a chronic foot drop. Dr. Halejian reported to the County that, because of these medical conditions, Duckworth was not able to perform safely the duties of a juvenile detention officer and that he was at risk for re-injury.
To accommodate Duckworth's disability, the County reassigned him to less rigorous duties in the laundry room of the detention center. About one and a half years later, Duckworth objected to this re-assignment and sought a hearing before the Merit System Board.
In 2006, the Board determined that the duties assigned to Duckworth were outside his job description and ordered the County to re-assign him and also to conduct a complete fitness-for-duty examination. Dr. Halejian examined Duckworth again in May 2006 and reiterated his prior conclusions. He stated that Duckworth's medical conditions placed him and others at risk of harm.
The County gave notice to Duckworth of disciplinary action to remove him from his position because of unfitness for duty. After conducting departmental hearings, the County terminated his employment on December 6, 2006. Duckworth immediately requested a hearing before the Merit System Board and also applied for disability retirement to the Division of Pensions and Benefits. Some months later, he withdrew his retirement application.
Pursuing his appeal of removal from employment, Duckworth appeared with his attorney for a hearing before an ALJ on January 9, 2008. The attorneys conferred and reached an agreement, which they reported to the ALJ as a settlement. No transcript was made on that date, but the ALJ discussed the terms of the settlement with counsel in the presence of Duckworth. The settlement required that the County support re- instatement of Duckworth's disability retirement application in exchange for his dismissing the pending appeal.
The attorney for the County drafted a written settlement agreement and sent it to Duckworth's attorney. When he received no response for several months despite several inquiries, he filed a motion before the ALJ to enforce the settlement.
In the meantime, Duckworth re-submitted his application for disability retirement. In March and April 2008, he heard from the Division of Pensions and Benefits that the County had not responded to its requests for information relevant to his application.
On April 22, 2008, the parties appeared before the ALJ, Duckworth now accompanied by a different attorney from the same law firm. The County sought enforcement of the oral agreement it claimed had been reached on January 9. The County reported that Duckworth's application had in fact been re-instated and would be considered as dating back to its original filing in December 2006. Duckworth's attorney responded that no final settlement had been reached at the January hearing, that the County had not supported his retirement application as promised, that Duckworth refused to sign the written settlement agreement for that reason, and that Duckworth had changed his mind and wanted settlement to be contingent on the Division of Pensions and Benefits approving his disability retirement.
In May 2008, the ALJ issued a written decision, making detailed findings of fact regarding the January 9 session and the terms of the parties' agreement. She stated that she was present during the resolution of the matter on that date and that approval of Duckworth's pension application was not a condition of the agreement. Rather, the agreement required that "Duckworth would withdraw his request for hearing and the [County] would do everything in its power to reinstate appellant's application for accidental disability retirement benefits and to support the application." She found that the ...