RUTH MEGARGEE v. PUBLIC EMPLOYEES' RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4866-05T2

RUTH MEGARGEE,

Petitioner-Appellant,

v.

PUBLIC EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

_____________________________________

 

Argued May 29, 2007 - Decided June 14, 2007

Before Judges S.L. Reisner and C.L. Miniman.

On appeal from a Final Administrative determination of the Board of Trustees, Public Employees' Retirement System,

PERS #479796.

Andrew Dwyer argued the cause for appellant (The Dwyer Law Firm, attorneys; Mr. Dwyer, of counsel and on the brief).

Christine Lucarelli, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Lucarelli, on the brief).

PER CURIAM

Ruth Megargee appeals from a final determination of the Board of Trustees of the Public Employees' Retirement System (PERS), issued April 20, 2006, denying her application for Accidental Disability Retirement benefits. See N.J.S.A. 43:15A-43. We affirm.

I

This case is the most recent chapter in a long-running dispute between Megargee and her employer over her ability to perform her job as a Teacher 1 with the Department of Human Services, Office of Education. The history of this dispute was reviewed at length in our prior opinion affirming Megargee's termination from her position after a tenure hearing. In re Tenure Hearing of Ruth Megargee, No. A-5377-01 (App. Div. Feb. 18, 2004), certif. denied, 180 N.J. 354 (2004). We briefly summarize the facts essential to this appeal.

Megargee was employed as a teacher in a state agency that provides educational services "to students with a variety of disabilities, students who are at risk of failure and students who have left school before earning a high school diploma." In November 1997, she was injured in an incident with a student, and thereafter engaged in a long series of disputes with her employer over whether she was physically able to return to work and, if so, what assignment she would be given.

Megargee was restricted by her doctors from lifting more than forty pounds. She also did not want to teach certain types of students whom she considered either troublesome or dangerous to her. She suggested certain physical accommodations that would permit her to teach the types of students she wanted to teach. The employer offered her a different accommodation that would require her to do no lifting at all, but involved teaching students she did not want to teach. When Megargee refused to return to work in 2000, the employer filed tenure charges against her on May 11, 2000. Approximately two weeks later, on May 26, 2000, Megargee filed an application for an accidental disability retirement. However, pursuant to its regulations the PERS Board held consideration of that application in abeyance pending the outcome of the tenure charges. See N.J.A.C. 17:1-6.2(d).

After a lengthy administrative hearing on the tenure charges, Administrative Law Judge (ALJ) Law concluded that the employer had offered Megargee a reasonable accommodation that was within the scope of her job as a Teacher 1 and that would involve no lifting, that she had refused the accommodation, and that the tenure charges should be sustained. The Commissioner of Education adopted the ALJ's decision, and we affirmed the Commissioner's determination. In re Magargee, supra.

Thereafter, the PERS Board transmitted Megargee's pension claim to the Office of Administrative Law, where it was heard by ALJ Viscomi. Before ALJ Viscomi, the parties agreed to file motions for summary disposition. In deciding those motions, the ALJ determined that Megargee was collaterally estopped from relitigating the issues decided in the tenure hearing, and that based on the essential facts found in that proceeding Megargee was not disabled from performing her job as Teacher 1. The PERS Board adopted the initial decision. This appeal followed.

II

On this appeal, Megargee raises the following issues:

POINT I: BECAUSE THE ISSUES DECIDED BELOW ARE STRICTLY LEGAL IN NATURE, THIS COURT SHOULD EXERCISE DE NOVO REVIEW ON APPEAL.

POINT II: THE AGENCY'S IMPROPER RELIANCE ON COLLATERAL ESTOPPEL MANDATES REVERSAL.

POINT III: BECAUSE PETITIONER CANNOT PERFORM HER REGULAR AND ASSIGNED JOB DUTIES, SHE SHOULD BE AWARDED BENEFITS.

POINT IV: THE UNDISPUTED MEDICAL EVIDENCE IN THE RECORD SHOWS THAT PETITIONER IS TOTALLY AND PERMANENTLY DISABLED.

We agree with Megargee that our review of the agency's legal conclusions, based on the undisputed facts of record, is de novo, in the sense that we are "not bound by an agency's determination of a legal issue." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). We do, however, give "great weight" to an agency's "interpretation of the statute it is charged with administering." Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 40 (App. Div. 2005). We are somewhat puzzled by Megargee's accusatory recitation that "petitioner was denied any benefits without any evidentiary hearing ever being held." Megargee and her adversary filed motions and cross-motions for summary judgment, thereby each agreeing that the case was ripe for decision without an evidentiary hearing because there were no material facts in dispute. After reviewing the record, we conclude that Megargee's remaining appellate contentions are entirely without merit.

We begin by addressing what we perceive to be the central issue in this case, that is, defining Megargee's job for purposes of the public employees' accidental disability retirement statute, N.J.S.A. 43:15A-43. It is well-settled that, for purposes of this statute, an employee's job is defined by the permissible scope of assignments within his or her general job title and not by any particular assignment within that title. As articulated in Getty v. Prison Officers' Pension Fund, 85 N.J. Super. 383, 390 (App. Div. 1964), "the criterion is whether or not [the employee] is employable in the general area of his ordinary employment, as distinguished from whether he is generally unemployable or is disabled from performing the specific function for which he was hired."

In Skulski v. Nolan, 68 N.J. 179 (1975), the Supreme Court adopted the Getty test for establishing permanent disability under the statute.

[U]nder Getty the applicant must establish incapacity to perform duties in the general area of his ordinary employment rather than merely showing inability to perform the specific job for which he was hired. We believe that the Getty standard represents a fair accommodation of the competing interests in this context and consequently we adopt it as the appropriate test for establishing disability under N.J.S.A. 43:10-3 and 4. We emphasize, however, that the standard we adopt places no requirement upon the applicant to show physical inability to perform substantially different duties or to produce evidence of general physical unemployability provided, however, that employer has work for him in the general area of his employment.

[Id. at 205-06.]

Against that legal backdrop, we return to the question of what constituted Megargee's "general area of . . . employment." Ibid. That issue was litigated and decided in Megargee's tenure case. There is no dispute that Megargee was employed as a Teacher 1. In the tenure case, we agreed with the Commissioner of Education that as a Teacher 1

[Megargee] had no contractual claim to a particular assignment. Donald Hepner, petitioner's regional supervisor, explained that teachers are assigned to different locations as needed. Petitioner herself testified that when she was hired she was not guaranteed a specific population, job location, or assignment.

[In re Megargee, supra, slip op. at ll.]

Therefore, Megargee was not entitled to any specific assignment within that title. We also concluded that the employer had offered a reasonable accommodation:

More important is the proposition that an employer is not obliged to offer an employee the specific accommodation of his or her choice, but only a reasonable accommodation. Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 397 (App. Div. 2002). [Megargee] was always subject to the possibility of reassignment for reasons unrelated to her disability. Here, she was offered a position that required no lifting. It also did not require the restraining of students.

. . . .

In short, it was a reasonable accommodation.

[Id. at 13-14, 17.]

It necessarily follows that if Megargee was capable of performing an assignment within the Teacher 1 classification, and such an assignment was offered to her, she was not permanently disabled within the meaning of the pension statute, even if the assignment offered was not to her liking. See Skulski, supra, 68 N.J. at 205-06.

We find no merit in Megargee's related and rather disingenuous contention that she is totally and permanently disabled from teaching at all. In the tenure hearing, Megargee's position was that she was restricted from lifting more than forty pounds, but that she was capable of performing a teaching position despite her handicap, provided her employer would extend an appropriate accommodation. However, Megargee insisted that she wanted to teach "day training" students. This position was summarized in ALJ Law's Initial Decision:

[Megargee's] position has always been that accommodation of her handicap is possible because, in fact, heavy lifting is not an "essential function" of the job of Teacher [1]. . . . Any of [a list of suggested] reasonable accommodations would have permitted [Megargee] to continue her position, working with the same population of "day training" students whom she had taught for years.

The parties disputed the nature and extent of the accommodation offered. ALJ Law concluded that the employer had offered Megargee a reasonable accommodation, albeit not teaching the population of students she preferred. Critical to the ALJ's determination was the following factual finding regarding the accommodation offered to Megargee: "Mr. Hepner's testimony is credible where he testified that, 'The heaviest thing she [Megargee] would have to lift all day is a piece of chalk and a textbook.'" Based on this and related facts, the ALJ concluded that the employer had offered a reasonable accommodation, that is, a job "that required no lifting at all" and which Megargee could therefore perform despite her lifting restrictions. The Commissioner of Education adopted the ALJ's findings and conclusions. On Megargee's appeal, we affirmed substantially for the reasons set forth in the ALJ's decision as supplemented by the Commissioner's decision. In re Megargee, supra, slip op. at 2-3.

Under the doctrine of collateral estoppel, Megargee was bound by the decision of those issues that were actually litigated and decided in the tenure case. "Generally speaking, a party is precluded by collateral estoppel from relitigating claims or issues which the party actually litigated, were determined in a prior action, and were directly in issue between the parties." Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 369 (App. Div. 1994), certif. denied, 142 N.J. 446 (1995). Having fully litigated the factual issues of (a) the parameters of her job title, (b) whether the employer offered her an assignment within that title, and (c) whether she could physically perform the position offered to her, Megargee was collaterally estopped from attempting to relitigate those same factual issues in this case.

Megargee contends that collateral estoppel cannot apply because she "never previously litigated whether she was totally and permanently disabled as a result of the November 5, 1997" work injury. That is true, but beside the point. While Megargee did not, of course, previously litigate the issue of whether she was permanently disabled for pension purposes, she did litigate and obtain a final adjudication on the essential factual issues needed to decide that question. Moreover, she had a full and fair opportunity to litigate those issues in a tenure proceeding in which the employer had the burden of proof. See id. at 371-72. And those issues were essential to the decision of the prior proceeding, thus motivating her to fully litigate the issues in that proceeding. Cf. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006). Consequently, there is nothing unfair about precluding Megargee from relitigating those same issues in this case.

We find no merit in Megargee's contention that the State improperly concealed two reports issued by Dr. Gandhi. Those reports are irrelevant to this case, as they would have been to Megargee's tenure case. Neither of Dr. Gandhi's reports indicates that Megargee's restrictions went beyond her inability to lift more than forty pounds. Dr. Gandhi's first report indicated that she was totally and permanently disabled, premised on the assumption that Megargee's job required heavy lifting of "more than forty pounds at a time." Dr. Gandhi's second report was written in response to a letter asking whether Megargee could perform her job if the employer made accommodation to the forty-pound lifting restriction. His second report was not responsive to this inquiry; he simply reiterated that she could not "perform her duties requiring her to lift up to 40 pounds of weight." Neither report indicated that Megargee was unable to perform a job that did not require any lifting.

Affirmed.

 

We note with disapproval the inclusion of extensive legal argument within the statement of procedural history in Megargee's brief.

(continued)

(continued)

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A-4866-05T2

June 14, 2007