EUGENE VERDELL v. NEW JERSEY STATE DEPARTMENT OF MILITARY AND VETERANS' AFFAIRS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0497-04T50497-04T5

EUGENE VERDELL,

Petitioner-Appellant,

v.

NEW JERSEY STATE DEPARTMENT OF

MILITARY AND VETERANS' AFFAIRS,

Respondent-Respondent.

________________________________________________________________

 

Submitted January 25, 2006 - Decided February 16, 2006

Before Judges Parker and Yannotti.

On appeal from a Final Administrative

Decision of the Merit System Board,

DOP Docket No. 2002-4223.

F. Michael Daily, Jr., attorney for appellant.

Nancy Kaplan, Acting Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Debra Kradjian

Stephans, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Eugene Verdell appeals from a final decision of the Merit System Board (MSB) ordering his resignation in good standing from his position as a "Residential Living Specialist, Mental Health" with the Department of Military and Veterans' Affairs. Petitioner is an insulin dependent diabetic with a history of medical incidents or emergencies resulting from an apparent inability to control the disease. His job responsibilities included transporting veterans in a fifteen-passenger van and monitoring the facility for safety and security.

In its decision, the MSB accepted the findings and recommendations of the Administrative Law Judge (ALJ), who wrote a lengthy and detailed decision setting forth the evidence presented at the hearing, making findings of fact and analyzing the law. The ALJ concluded that petitioner suffered from uncontrollable diabetes which led to hypoglycemic incidents, as a result of which he was unable to perform his job, forty-five percent of which involved driving.

There is undisputed evidence that petitioner experienced at least seven incidents between February 18, 1999 and June 28, 2001 in which he was unable to perform his job. Those incidents included an automobile accident resulting from petitioner falling asleep at the wheel on his way to work, his being substantially late for work several times because of "medical emergencies," and sleeping on duty.

The evidence included testimony from petitioner's and respondent's medical experts. Petitioner's medical expert, Martin Belsky, D.O., acknowledged that at the time petitioner was terminated, his diabetes was not under control and he was taking a different medication. Belsky indicated that now petitioner monitors his blood sugar levels and is motivated to keep his diabetes under control. Belsky acknowledged, however, that even with the new medication and consistent monitoring of his blood sugar level, petitioner was still at risk for hypoglycemic episodes.

Respondent's expert, Mark Magariello, M.D., testified that he had reviewed medical documents submitted by petitioner's treating physician and that petitioner, himself, told Magariello that his episodes of passing out were unpredictable. Magariello agreed with Belsky that there were no guarantees that petitioner would not suffer other incidents, even with his new medication and more consistent monitoring of his blood sugar levels.

In petitioner's own testimony, he acknowledged each of the seven incidents recorded by his supervisors and admitted that they were caused by his diabetes. He claimed, however, that he was never unconscious or semi-conscious at work but that he was sleeping hard. Petitioner further admitted that he never asked for an accommodation on the job, except for one training session when he asked permission to bring snacks. Since his termination, he has a "glucose watch" which monitors his blood sugar levels and reminds him to take his medication.

The ALJ found Belsky's testimony lacking in credibility because he saw petitioner only three times over a period of twenty months and concluded that Belsky was unable to evaluate petitioner's compliance with his regimen or accurately report whether there had been further incidents. Based upon all of the evidence and, considering petitioner's job responsibilities, the ALJ affirmed his termination. The MSB adopted the ALJ's findings of fact but modified the termination to resignation in good standing.

In this appeal, petitioner argues that (1) the ALJ and the MSB improperly expanded the scope of the charges against him to arrive at their conclusion; and (2) the record lacks sufficient credible evidence to establish that at the time of his removal, petitioner was a direct threat to himself or others if permitted to drive.

In his first point, petitioner argues that the charges against him were improperly expanded by the ALJ. He was charged with being unable to perform his duties pursuant to N.J.A.C. 4A:2-2.3(a)(3) and unable to discharge his duties due to mental or physical incapacity pursuant to N.J.D.M.A.V.A. DD230.05/B-10. Petitioner maintains that the ALJ expanded those charges when she stated in the course of her decision, "[s]o, even if the respondent were able to accommodate the [petitioner] by relieving him of his driving duties the [petitioner] would still be unable to perform the remaining fifty-five percent of his job functions." The ALJ was referring to the evidence indicating that forty-five percent of petitioner's job responsibilities involved driving a fifteen-passenger van to transport veterans. Her statement with respect to petitioner's other functions was in the context of co-workers' testimony "that they observed the [petitioner] either sleeping, passed out and/or incoherent while sitting at a desk while on duty."

We have reviewed the entire record and find that the ALJ's statement in the context of the evidence did not improperly enlarge the charges. Petitioner, himself, acknowledged the incidents leading to the charges and admitted to "sleeping hard" during his work hours.

Our scope of review of an administrative decision is limited. State-Operated School Dist. v. Gaines, 309 N.J. Super. 327, 331 (App. Div.), certif. denied, 156 N.J. 381 (1998) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); See Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). We accord a strong presumption of reasonableness to the decision of an administration agency. Smith v. Ricci, 89 N.J. 514, 525 (1982); City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We cannot undertake an independent assessment of the evidence. In re Taylor, 158 N.J. 644, 656 (1999). While we do not act simply as a rubber stamp of an agency's decision, such a decision should only be reversed when "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry, supra, 81 N.J. at 579-80.

Applying these principles to the record before us, we are satisfied that the MSB's decision was neither arbitrary, capricious nor unreasonable. The ALJ made clear and detailed findings of fact and conclusions of law. The MSB, in its decision, made an independent evaluation of the record and the ALJ's decision and adopted the findings of fact but modified the ALJ's recommendation of removal to resignation in good standing.

We are satisfied that there is more than sufficient credible evidence in the record as a whole to support the MSB's decision. R. 2:11-3(e)(1)(D).

 
Affirmed.

(continued)

(continued)

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A-0497-04T5

February 16, 2006