VINCENT GREENFIELD v. MERIT SYSTEM BOARD and DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0713-07T10713-07T1

VINCENT GREENFIELD,

Appellant,

v.

MERIT SYSTEM BOARD and

DEPARTMENT OF CORRECTIONS,

Respondents.

________________________________________________________________

 

Argued January 30, 2009 - Decided

Before Judges C.L. Miniman, Baxter and King.

On appeal from a Final Agency Decision of the Merit System Board.

Mario A. Iavicoli argued the cause for appellant.

Keith S. Massey, Jr., Deputy Attorney General, argued the cause for respondents (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Massey, on the brief).

PER CURIAM

Vincent Greenfield, a senior corrections officer who served ninety days in jail after being convicted for the third time of driving while intoxicated (DWI), appeals from a final decision of the Merit System Board (Board) terminating his employment. We affirm.

I.

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, 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.

II.

"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 N.J. 556, 562 (1963)). In Carter, the Court limited the scope of review to a determination of:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."

[Ibid. (quoting Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995)).]

Furthermore, in our review of agency actions, we "must defer to an agency's expertise and superior knowledge of a particular field." Id. at 483 (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). "Although an appellate court is 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue,' if substantial evidence supports the agency's decision" we are not entitled to substitute our own judgment for that of the agency even if we might have reached a different result. Id. at 483 (internal citation omitted) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

Greenfield contends that alcoholism qualifies as a handicap under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and relies on Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 593-94 (1988). In Clowes, the Court held that an alcoholic qualifies as a "handicapped person" because he or she suffers from a "mental [or] psychological . . . disability resulting from [a] psychological, physiological or neurological condition[] which . . . is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques[.]" Ibid. (quoting N.J.S.A. 10:5-5(q)). However, nothing in Clowes supports Greenfield's argument that DOC was obligated to accommodate his alcoholism by granting him a leave of absence while he served his jail sentence. In Clowes, the Court ultimately held that the petitioner failed to establish that he was an alcoholic. Id. at 601. Consequently, the Court never addressed the extent of the accommodation an employer is required to provide.

However, in In re Cahill, we rejected an accommodation argument similar to the argument Greenfield advances here. 245 N.J. Super. 397, 400-01 (App. Div. 1991). The employee in Cahill was not convicted and imprisoned as Greenfield has been; however, the limits on an employer's duty of accommodation that we established in Cahill inform our analysis here.

Cahill was a firefighter who was terminated from his employment with the Newark fire department after testing positive for morphine. Id. at 399. We upheld the Board's termination of Cahill even though the record supported Cahill's claim that he was an otherwise "exemplary" employee. Id. at 401. In doing so, we focused on the perils inherent in Cahill's job responsibilities and the harm that could result if he was impaired by drugs or alcohol while on duty:

Cahill is a firefighter. The Merit System Board found that "the negligent or improper performance of [a firefighter's job responsibilities] can result in serious harm to persons and property." We see no reason to challenge that conclusion . . . . The nature of Cahill's job duties satisfies the City's burden of proving with a reasonable certainty that his handicap would probably cause injury to himself or to others.

[Id. at 400-01.]

We held that because Cahill's employer had already accommodated his disability by affording him two opportunities to enroll in in-patient drug rehabilitation programs, it was not obligated to afford him any further accommodation when his continued employment would be hazardous to himself or others. Id. at 401. We explained:

Cahill further argues that N.J.A.C. 13:13-2.5(b) requires the city to make a reasonable accommodation to the limitations of his particular handicap. He contends that the mandate of reasonable accommodation requires the employer to give another chance to an alcoholic or other drug user. There is merit to his position that where feasible an employer should afford an opportunity for rehabilitation to an employee handicapped by substance abuse. But Cahill has had his chances at rehabilitation. He underwent a detoxification program in 1984 and an inpatient drug rehabilitation program in 1986. His employer reinstated him upon condition that he submit to routine urine monitoring. On his first test, he failed. The city has reasonably accommodated Cahill's handicap. Refusal to continue employment of a handicapped person is lawful where employment in a particular position would be hazardous to that individual or to others.

[Ibid. (internal citations omitted).]

The above analysis is relevant to the facts of this appeal. DOC has already accommodated Greenfield's disability by affording him three opportunities to attend in-patient alcohol treatment, during which he was away from work for seven of the first eleven months of 2004. As in Cahill, DOC is not required to afford him yet another opportunity, when the first three opportunities have been so obviously unsuccessful.

We observed in Cahill that there are instances when an employer must accommodate a disability by permitting an employee to attend rehabilitation. Ibid. However, the Board correctly argues that allowing an employee to attend rehabilitation is far different from accommodating a disability by permitting an employee to serve a jail sentence. Indeed, as the Court held in Clowes, supra, the LAD does not prevent termination of an employee who is "unable to perform adequately the duties of employment[.]" 109 N.J. at 600 (quoting N.J.S.A. 10:5-2.1).

We therefore accept the Board's conclusion that Greenfield's ability to perform his duties satisfactorily may be compromised by inmates' knowledge that he has been incarcerated. As the Court observed in Carter, we are obliged to "defer to an agency's expertise and superior knowledge of a particular field." 191 N.J. at 483 (citation omitted). We are not entitled to second-guess its findings where, as here, those findings are supported by substantial evidence. Ibid. Consequently, we accept its conclusion of the serious risk that inmates' knowledge of Greenfield's incarceration poses to the orderly running of the institution. As we held in Cahill, an employer is not obligated to continue the employment of a handicapped individual if his continued employment "would be hazardous to [himself] or to others." 245 N.J. Super. at 401. Moreover, Greenfield has cited no authority for the proposition that an employer is obliged to accommodate a disability by permitting an employee to serve a jail sentence. We are not prepared to extend the accommodation requirements of N.J.A.C. 13:13-2.5(b) to such an extreme set of facts.

Finally, a law enforcement officer such as Greenfield is "a special kind of public employee. . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public[.]" Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). Consequently, we have no reason to quarrel with the Board's conclusion that termination of Greenfield, who "is a law enforcement officer," is warranted where he commits a "serious violation" of our laws and is sentenced to ninety days in jail as a result.

Finally, we reject Greenfield's claim that DOC unfairly terminated his employment even though it had continued the employment of another employee, G., who had also been imprisoned. When Chief Craig Smith was asked at the OAL hearing whether that employee had been permitted to keep his job after being incarcerated, Smith replied that although he "believe[d] so," he was "not personally aware of that case because [he] was at Southwoods [Prison] when the case was going on." Greenfield also points to the testimony of Lieutenant Louis Hall who was asked about the same employee, G., as well as two others. Hall testified he did not know how much time G. had spent in jail and only knew that G. was incarcerated the day the PNDA was served. As to the other two, Hall commented he could not remember how much time, if any, they had served in jail. The evidence was too uncertain to support a finding of disparate treatment.

The Board's decision of September 27, 2007, is supported by substantial and credible evidence in the record, and is entitled to our deference.

 
Affirmed.

N.J.S.A. 39:4-50.

Greenfield's prior disciplinary record included six incidents of absenteeism, one instance of insubordination and a two-day suspension for violation of an unspecified DOC rule or regulation.

We accepted the ALJ's description of Cahill as "cross-addicted" to alcohol and narcotics. Id. at 400.

Although the record contains the employee's last name, we have not included it because of the uncertainty surrounding the actual facts.

(continued)

(continued)

12

A-0713-07T1

February 19, 2009