On appeal from the New Jersey Civil Service Commission, Docket No. 2010-2314.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and J. N. Harris.
Hector Martinez appeals from an adverse final determination of the Civil Service Commission (Commission).*fn1 The Commission upheld action by the City of Trenton (City) to terminate appellant from his employment as a sanitation truck driver consistent with an agreement to settle earlier disciplinary charges. We affirm.
Appellant was removed from employment on disciplinary charges of excessive absenteeism on October l9, 2005. He appealed to the former Merit System Board. While the appeal was pending at the Office of Administrative Law, appellant, with the assistance of union representation, and the City entered into a settlement agreement dated April 13, 2007. Among other terms, the agreement provided for the City to modify appellant's employment records to reflect a six-month suspension through April l9, 2006, and an unpaid leave of absence thereafter until his reinstatement. The agreement further provided that appellant would be reinstated to his employment as a sanitation driver within ten (l0) days of his successful completion of return-to-duty physical examination, which shall be limited to the purpose of determining whether he is physically capable of performing the essential functions of his position of Sanitation Driver without posing a direct threat to the health or safety of himself or others.
The agreement required appellant to contact the City within twenty-four hours in the event of "any issues, problems or disputes regarding the scheduling or conducting of his return-to-work physical examination." The agreement also warned that "[f]ailure to comply with the requirements of this paragraph shall result in the forfeiture of Appellant's right to reinstatement."
Appellant underwent a medical examination on April 27, 2007. As part of the Medical Examination Report for Commercial Driver Fitness Determination,*fn2 appellant indicated by checking a box that he had a health history of "[s]leep disorders, pauses in breathing while asleep, daytime sleepiness, [or] loud snoring." The examining physician commented on the report that appellant had reported to her he had experienced loud snoring.
As a result of this disclosure, appellant was asked to have his personal physician complete a sleep apnea questionnaire (questionnaire). The examining physician noted in her report that appellant "[m]eets standards, but periodic monitoring required due to sleep apnea[;] [d]river qualified only for [three] months." A Medical Clearance Report prepared on the examining physician's behalf checked the box that appellant was "medically qualified to do the essential functions of the job" with the qualifying notation that "[h]e was issued a [three month] DOT card. He is still pending some medical clearance."
By letter of May l, 2007, the City's Personnel Director Raissa Walker confirmed to appellant that he was "instructed . . . to obtain additional information from [his] personal physician to gain a complete clearance to return to work with the City." She advised it was "imperative" appellant submit the "requested information from [his] personal physician in a timely manner," qualified as "no later than Tuesday, May 8, 2007." Appellant represented in depositions that he attempted to contact Walker about this notice by telephone and in person, but was informed she was on vacation for two weeks. He further represented he was unable to schedule an appointment with his personal physician regarding the questionnaire within the specified time frame. Appellant conceded he made no effort to contact Walker at the end of the two-week period or to contact any other City official to follow up to determine how to proceed if he could not meet the established deadline.*fn3
Appellant did not submit the questionnaire. About a month after Walker's first letter to appellant, she sent him another letter advising the City deemed him to have forfeited his right to reinstatement under the settlement agreement.
On February 1, 2008, appellant filed a complaint in the Superior Court, Law Division. The court referred the matter to the Commission. On January 8, 2010, appellant requested that the Commission enforce the settlement, contending the record showed he had been cleared to return to work and thus should be reinstated under the agreement and awarded back pay. By letter of January 15, 2010, the Commission advised the case would be decided "on the basis of written argument and documentation." Among other items, appellant's counsel submitted appellant's deposition testimony and a July 30, 2007 sleep apnea study report appellant had obtained. Appellant argued the City should have reinstated him by May 10, 2007, ten days from receipt of the Medical Clearance Report, urging he then would have had "more resources available to him to understand and comply with the request that he submit a completed sleep apnea questionnaire." According to appellant, by "keeping him unemployed, without income, benefits, or the assistance of human resources, and then by creating an arbitrary and unreasonable requirement of submitting the questionnaire within three days," the City breached its obligation under the settlement agreement.
The City responded, in part, with reference to the federal regulations for a commercial driver's license and noting appellant never produced a completed questionnaire and "never received a full medical clearance or a full two-year medical certificate." Furthermore, the City assumed as accurate appellant's representations regarding his inability to schedule an appointment within the short window and his attempt to contact Walker, but emphasized appellant's failure to subsequently follow up with City personnel, submit a completed questionnaire, or return to the City's doctor to complete his medical clearance. The City urged that appellant "forfeited his opportunity for reinstatement because he made only perfunctory efforts to successfully complete his return to duty clearance process."
In a final decision of April 29, 2010, the Commission found "appellant never took the necessary steps to obtain proper clearance to return to his position" and concluded "there is no evidence that the appellant ever successfully completed his return-to-duty physical examination, as required by the settlement agreement." Accordingly, the Commission concluded appellant ...