IN THE MATTER OF HECTOR MARTINEZ TRENTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4961-09T3

IN THE MATTER OF

HECTOR MARTINEZ,

TRENTON.

______________________

Argued: May 4, 2011 - Decided: May 24, 2011

Before Judges Axelrad and J. N. Harris.

On appeal from the New Jersey Civil Service Commission, Docket No. 2010-2314.

Elizabeth Zuckerman argued the cause for appellant Hector Martinez (Zuckerman & Fisher, LLC, attorneys; Ms. Zuckerman, on the brief).

Steven S. Glickman argued the cause for respondent City of Trenton (Ruderman & Glickman, PC, attorneys; Mr. Glickman, of counsel and on the brief; Vincent M. Avery, on the brief).

Paula T. Dow, Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of a brief).

PER CURIAM

Hector Martinez appeals from an adverse final determination of the Civil Service Commission (Commission).1 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,2 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.3

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 "should be recorded as having resigned in good standing from his position." This appeal ensued.

Appellant challenges the Commission's final determination as unsupported by the facts and "clearly erroneous." He emphasizes that the Medical Clearance Report indicated he was "medically qualified to do the essential functions of the job" and the following categories were not checked on the report:

The Examinee is not medically qualified to do the essential functions of the job;

The Examinee is medically qualified to do the essential functions of the job with limitations/accommodations;

The Examinee is not medically qualified to do the essential function of the job because (s)he has a temporary condition that should be resolved first; and

Medical recommendation reserved pending additional medical information.

Thus, according to appellant, since he was issued a three-month DOT card, he successfully completed his return-to-duty physical in April 2007, and should have been reinstated. Appellant explains away the notation on the Medical Clearance Report that "[h]e is still pending some medical clearance" following the statement that "[h]e was issued a [three month] DOT card" as merely explaining why he was given only a temporary card and not imposing a condition on his clearance to return to work.

Firmly established principles govern our task on appeal. Appellate review of an administrative agency decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007). A strong presumption of reasonableness attaches to a decision of the Civil Service Commission. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Accordingly, the final decision of an administrative body, such as the former Merit System Board, should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Ibid.; see also Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); In re Warren, 117 N.J. 295, 296 (l989). The burden is on the party opposing the action to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

Under the arbitrary and capricious standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the agency clearly erred in reaching a result that was either arbitrary, capricious or unreasonable. In re Anthony Stallworth, ___ N.J. ___, ____ (2011) (slip. op. at 14); Carter, supra, 191 N.J. at 482-83. When an agency decision meets the above criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, being mindful of the agency's "expertise and superior knowledge of a particular field." Circus Liquors, Inc., v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (l992)); Herrmann, supra, 192 N.J. at 28. Consequently, we will not substitute our own judgment for the agency's even though we might have reached a different result. Stallworth, supra, slip op. at 14-15; Herrmann, supra, 192 N.J. at 27-28.

Nevertheless, we are obliged to conduct a thorough review of the record and may not merely "rubber-stamp" the agency action. Klusaritz v. Cape May Cnty., 387 N.J. Super. 305, 315 (App. Div. 2006) (quoting Gerba v. Bd. of Trs. of Public Employees' Ret. Syst., 83 N.J. l74, 190 (l980) (Pashman, J., dissenting)), certif. denied, l9l N.J. 318 (2007).

Based on our analysis of the record within the perspective of our limited standard of review, we are not persuaded appellant has carried his burden of demonstrating, within the principles enunciated in the case law, that the agency's interpretation of the phrase "successful completion of a return-to-duty physical examination" was inconsistent with the settlement agreement. The examining physician clearly instructed appellant to undergo a sleep apnea study based on appellant's reporting of "sleep disorders, pauses in breathing while asleep, daytime sleepiness, [or] loud snoring," and specifically "loud snoring." Though the Medical Clearance Report could have been more precise, this conditional requirement was reflected in the report and in Walker's May 1, 2007 letter to appellant. Moreover, the condition was a reasonable one. The follow-up study was required by federal regulations pertaining to appellant's commercial driver's license to assure he was free of any respiratory problems or other conditions likely to interfere with his ability to control and safely operate a commercial motor vehicle. See, e.g., 49 C.F.R. 391.41(a), (b)(5), and (b)(8).

This is not a case where appellant submitted the completed questionnaire slightly outside of the May 8, 2007 deadline, provided justification for the delay, and challenged the City's adherence to the "short window" as unreasonable. Nor is this a case where appellant contacted Walker or other City personnel after the initial unsuccessful call and advised of scheduling difficulties or even financial problems in obtaining the sleep study. Instead, appellant never submitted to the City a completed questionnaire nor returned to the City's doctor to complete his medical clearance. Moreover, as noted by the Commission, the study appellant obtained after the notification of termination, which was not submitted to the City, revealed he suffered from moderate to severe sleep apnea and did not indicate he was able to return to work as a sanitation truck driver.

Affirmed.

1 In 2008, the Merit System Board and the Department of Personnel were abolished and their primary functions, duties, and powers were transferred to the newly-created Civil Service Commission. L. 2008, c. 29, 1, 77, and 78.

2 Under federal law, a physician who conducts a Commercial Driver medical examination is required to determine whether the patient has "any physical, mental, or organic condition that might affect the driver's ability to operate a commercial motor vehicle safely." 49 C.F.R. 391.43(f). This is because federal law prohibits a person from driving a commercial motor vehicle unless he or she is "certified as physically qualified" to do so, 49 C.F.R. 391.41(a), i.e., free of any "condition which is likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle." 49 C.F.R. 391.41(b)(8).

3 During the litigation, appellant supplied a July 30, 2007 report, indicating he underwent a sleep apnea study on July 16, 2007, which revealed "moderate to severe sleep apnea." The report contained no information concerning appellant's ability to work.