On appeal from the New Jersey Civil Service Commission, Docket No. 2008-763.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2010
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Mahipat Patel appeals from the Final Administrative Action of the New Jersey Civil Service Commission (the Commission) which accepted and adopted the June 30, 2009 Initial Decision by the Administrative Law Judge (ALJ) which upheld Patel's removal from employment as a security guard with the Bergen County Sheriff's Office (Sheriff's Office) due to his unfitness to perform the duties of the job.*fn1 We affirm.
Appellant was employed by the Sheriff's Office since 2002 as a security guard with duties including operation of metal detectors, magnetometers and x-ray machines, to screen individuals for weapons and contraband as they enter court buildings. According to the testimony of Lieutenant Donald Filicetti, appellant approached him and Sergeant Doug Guido on November 15, 2006, asking them for help with satellites that were "watching him in his house and in his car that were being run by the government or an insurance company. They'd been doing it for ten years approximately." As Filicetti recounted:
[Appellant] was very unhappy with this. Basically, he said they -- they -- they watch him in his house. They watch him in his car and he -- he wanted it to stop. He didn't know why they were doing this to him and his family, but they could do it to anybody whenever they wanted and he kept using "they," like I don't know who exactly he was referring to other than the government or the insurance company and he wanted us to see if we could make it stop.
After appellant's complaints, Filicetti told appellant to return to his post while he and Guido contacted their superior officers about what appellant had told them. Filicetti was directed to speak with Lieutenant Duran, the training and examination coordinator. Duran, Guido and Filicetti thereafter called appellant back to the Court Security Office to speak with appellant again. Appellant reiterated that "the government [is] watching him," that he has no privacy, and he is requesting help from them. Filicetti sent Patel home and ordered him to return at 2:00 p.m. the following day. On that day, November 16, 2006, a psychological evaluation with Dr. Daniel Schievella was arranged for Patel. Dr. Schievella holds a Ph.D. in clinical psychology and specializes in law enforcement personnel and fitness for duty examinations. Sergeant James Hague was ordered to take Patel to Schievella's office for the evaluation. Hague testified that on the car ride to Schievella's office, he informed appellant that "because... of the comments that he made to Lieutenant Filicetti,  he had to go speak to the doctor" as a condition of his employment.
Testifying regarding his first encounter with Patel, Schievella testified that Patel indicated that "he didn't really belong here. He didn't need to see a psychologist and that what he really needed to do was speak to the insurance companies and the government to clear up the confusion." Schievella also stated that at this meeting, Patel refused to comply with the fitness for duty evaluation. After refusing to speak with Schievella in his office, Patel finally acquiesced to an interview in the waiting room if Hague was allowed to be present. Despite being informed on a "minimum of six occasions directly that if he did not comply [with the examination] he would not be able to return to work and would be dismissed from employment," throughout the session in the waiting room, Patel still refused a psychological examination and engaged only in a limited discussion with Schievella about his religious beliefs and family life.
After the interview, Hague returned Patel to the Sheriff's Office where Chief William Broughton immediately suspended Patel based on his failure to submit to the "fitness for duty" examination. Though the psychological evaluation had not been complete, Schievella concluded, based on the clinical evaluation and Patel's past work performance, that Patel "presents as filling the Diagnostic and Statistical Manual (IV) diagnostic criteria for Paranoid Schizophrenia." Additionally, Schievella found that
[Patel's] history of insubordinate, argumentative, and combative interchanges present a consistent pattern of behavior.*fn2
These behaviors suggest that he is unable to adequately fulfill his duties as a security officer and leaves the welfare of the office he protects at risk.
His non-compliance, delusional thinking, refusal to accept any psychological intervention and general state of agitation leave me no recourse but to recommend that he is unfit for duty and that his employment with the Bergen County Sheriff's Department be terminated.
Patel was charged with a Preliminary Notice of Disciplinary Action (PNDA), dated November 20, 2006, for failure to submit to a fitness of duty examination when ordered as an act of subordination.*fn3 Filicetti served the PNDA at Patel's home and spoke with his daughter Parul Patel. ...