On appeal from the New Jersey Civil Service Commission, Docket No. 2010-660.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
Jeffrey Strich (Strich) appeals from the final administrative action of the Civil Service Commission (the CSC), accepting and adopting the findings and conclusions of the administrative law judge (ALJ), and affirming Strich's termination from employment with the Township of Brick (Brick). Considering the record and applicable legal standards, we affirm.
We discern the following facts developed during the hearing before the ALJ. Strich began his employment in Brick's tax assessor's office in 1999. Because he was repeatedly absent more days than permitted, Strich was initially counseled regarding the problem. In March 2008, however, disciplinary charges were lodged because of absenteeism, and Strich was suspended without pay for ten days. In July 2008, another set of disciplinary charges were filed on the same grounds, and, represented by his union representative, Strich and Brick entered into a settlement that included execution of a "last chance agreement" (LCA). This appeal focuses on events that occurred thereafter.
In the LCA, dated August 4, 2008, Strich acknowledged his prior absenteeism and that his continued employment was subject to certain conditions. Strich agreed to attend counseling with Brick's Employee Assistance Program (EAP), comply with its recommendations and "complete any program recommended by EAP." He also agreed to schedule any doctor's appointments "to accommodate his work schedule," and provide justification for any "appointment or test . . . within forty-eight . . . hours of the appointment or test." Strich would provide documentation for any "procedure/testing."
The LCA also provided that "[b]eginning January 1, 2009," Strich was "not permitted to utilize more than his annual accrual of sick time." Any violation of the above conditions would "be grounds for immediate termination of employment and any such termination [would] conclusively be deemed to be for just cause." Strich also pled guilty to the charges, accepted a thirty-day disciplinary suspension and waived any right to appeal.
On May 1, 2009, while off-duty, Strich was involved in a serious motorcycle accident resulting in significant injuries. By the date of the accident, he had already used nine of his ten allotted sick days, and, by May 4, Strich had exhausted all his sick time for the year. He notified Brick that, because of his injuries, he would not be fit to return to work until August 1.*fn1
His request to take an unpaid medical leave until then was denied.
On June 8, Brick served Strich with a preliminary notice of disciplinary action seeking removal for his inability to perform his duties; chronic absenteeism; conduct unbecoming; neglect of duty; and other sufficient cause. The specifications detailed Strich's exhaustion of allotted sick time, his prior discipline for absenteeism and excessive use of sick time, and violation of the terms of the LCA. After a disciplinary hearing, Brick filed a final notice of disciplinary action on July 28 sustaining the charges and removing Strich. Strich appealed.
At the hearing before the ALJ, Brick's Business Administrator, Scott Pezarras, detailed the history of Strich's employment and acknowledged that Strich was a competent employee when present at work. Pezarras also stated that Strich had followed existing policy in requesting sick time in the past, including complying with the LCA, and he confirmed that Brick's mayor and Strich were political adversaries because of Strich's support of the mayor's opponent.
Strich testified regarding the numerous reasons for his use of sick time in the past, including the death of his father, various medical problems, his divorce and alcohol abuse. He testified that he was granted unpaid leaves of absence whenever he exceeded the use of allotted sick time in the past. Brick's Tax Assessor, Fred Millman, also testified that Strich experienced these personal problems, was a good employee and was known to be a political adversary of the current mayor.
Focusing on the terms of the LCA, the ALJ noted that "[w]hile it is unfortunate that [Strich's] accident caused him to use his last remaining sick day and trigger[ed] the penalty provisions of the LCA, such an event was not unforeseen when he entered into the agreement." She noted that "[t]he terms of the LCA [were] clear," and there was no evidence that Strich "was coerced in the execution of the settlement or that he was unable to seek counsel if he so chose." The ALJ concluded that Brick had ...