IN THE MATTER OF DANIEL EVERETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF DANIEL EVERETT,

BURLINGTON COUNTY

April 14, 2014

Submitted January 28, 2014 Decided

 
Before Judges Alvarez and Carroll.

On appeal from the Civil Service Commission, Docket No. 2012-1208.

Daniel Everett, appellant pro se.

Capehart & Scatchard, P.A., attorneys for respondent Burlington County (Carmen Saginario, Jr., of counsel and on the brief; Laurel B. Peltzman, on the brief).

John J. Hoffman, Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Daniel Everett appeals the May 16, 2012 New Jersey Civil Service Commission (Commission) final agency decision which upheld his "resignation in good standing" termination from employment as a Burlington County corrections officer. Everett contends that the Commission, like the Administrative Law Judge (ALJ) whose initial decision the Commission adopted, misapplied the Family Medical Leave Act (FMLA), 29 U.S.C.A. 2601-2654, and the relevant precedents, which stress substance over form. Everett also asserts that the sanction was disproportionate to the offense. We affirm.

We first recount the facts which are not in dispute. Everett, who had been employed since 2007, was charged with excessive absenteeism and neglect of duty, N.J.A.C. 4A:2-2.3(a)(2), (4), and (7). On October 9, 2010, he fractured his left leg and ankle, requiring surgery and the use of a walking boot for some time thereafter. Corrections officers are prohibited from working while wearing devices such as a walking boot.

Three days prior, on October 6, 2010, Everett had submitted an FMLA form completed by his family physician, Dr. Scott M. Dorfner, requesting leave due to physical problems associated with work-related stress. That request was accompanied by a medical verification signed by Dorfner.

Question 10 on the form elicited details regarding necessary treatment, but Dorfner merely wrote the words "continuous leave." The employer conditionally granted leave on October 8, 2010, subject to a more detailed response to question 10. Everett was advised that the additional certification would have to be provided no later than October 20, 2010. Upon notifying his employer of the fracture, however, he was instructed to file a new request for FMLA leave, as the fracture would require a lengthy absence for a significant injury.

On November 4, 2010, the employer notified Everett that because he had failed to provide a proper certification in response to question 10 from his treating physician, his request for FMLA was being denied. On November 12, 2010, Everett submitted another request for FMLA leave, backdated to October 9, 2010, extending to February 1, 2011. The body of the application indicated that Everett had suffered a "left ankle fracture, [and] herniated lumbar disc." But the response to question 10 simply said, again, "continuous leave."

This time, the employer informed Everett in writing that his leave request was "conditionally approved pending receipt of a completed medical certification." As the ALJ noted, triple underlining was placed under the word "completed." The employer repeated the instructions regarding the proper completion of the request form, setting November 29, 2010, as the deadline.

On December 7, 2010, Burlington County's Director of Human Resources informed Everett that because the clarification to question 10 was not received by the due date, his request was denied and his absences were considered unauthorized leave. The unexcused absences would therefore result in disciplinary action.

Coincidentally, in early December 2011, Everett had driven with a friend to Las Vegas in order to play poker. He returned to New Jersey briefly for the Christmas holiday, flew back to Las Vegas where he remained for a few days, and returned to New Jersey on January 16 or 17.

The Commission found that although Everett knew about the deficiencies prior to the Christmas holiday, he made no effort to respond until mid-January, when he was served with a preliminary notice of disciplinary action. The proposed sanction was removal from employment and resignation not in good standing. At Everett's departmental hearing, conducted on February 15, 2011, the County acknowledged that had Everett provided the properly certified documents by November 29, 2010, most likely the leave would have been approved. He was entitled to medical leave in light of his length of employment and medical condition.

Contrary to the Commission's findings, Everett testified before the ALJ that he provided the corrected medical certification to the county administrator's office on the Monday before Thanksgiving, November 28, 2010, the day before the deadline expired. He did not have a copy of the correctly completed form that he claimed he submitted. He could not identify the person to whom he gave the form. Everett claimed that his orthopedic surgeon's medical records confirmed that he obtained the right paperwork. Specifically, the November 24, 2010 medical log from his surgeon's office states that "[h]e was given a note today to clarify FMLA forms that were written out by his primary care physician."

The ALJ found, however, that the medical record from Everett's surgeon did not corroborate that he obtained the appropriate medical certification and provided it to the employer by the deadline. Everett himself admitted that once being told about the problem with question 10, he went back to Dorfner's office and obtained a copy of the form he had previously obtained and just resubmitted it. That document, however, was not properly completed.

And the document Everett submitted to the County in January was precisely the same as the first, with the additional handwritten notation: "follow up with orthopedic spec. as needed. Continuous leave. Physical therapy 2-3 times per week. PCP follow ups 1-2 times per week month." (alteration in original). Dorfner neither initialed nor signed it, therefore he did not certify the revised response to question 10. For that reason, the ALJ found even the form Everett turned in to the County in January did not comply with the County's instructions requiring a certified, detailed description of the necessary treatment.

Although the ALJ did not explicitly state he found Everett's testimony wanting regarding having provided a medical certification to the administrator's office on November 28, 2010, he did not rely upon it either. As he observed, the medical records in the surgeon's office indicated paperwork regarding medical leave was given to Everett, but that did not mean the paperwork was correctly completed or that Everett delivered it to the County on a timely basis. Thus the ALJ concluded Everett did not establish he ever provided the County with a "complete and unambiguous certification [from] his healthcare provider."

After independently evaluating the record, the Commission adopted the ALJ's findings of fact and conclusions of law. The Commission prefaced its decision by noting that Everett was notified on four separate occasions that to obtain authorization for medical leave, he needed to supply a medical certification. He was notified at least twice, that he needed to provide an appropriate response to question 10. He simply failed to establish that he did so. The Commission agreed with the ALJ's determination that Everett did not comply with the County's requirement with regard to question 10. It did not address the ALJ's determination that, regardless of when the certification was submitted, the revised form was nonetheless inadequate.

Before the Commission, Everett objected to the ALJ's basis of decision, that regardless of when it was delivered, the certification was improper. The rationale was not addressed by either party. In fact, Everett contended that the County "never challenged the validity of the revised medical certification, accepted it as sufficient, and presented testimony that it would have approved his leave based on this document but for the lateness of its submission."

The Commission agreed that the County had met its burden of proof, based on Everett's failure to prove that he brought the revised medical certification to the County administrator's office. He had no copies of the corrected document. He did not know the identity of the person to whom he gave the form. Here the Commission agreed with the ALJ that Everett's surgeon's medical records did not corroborate his position.

With regard to the sanction, Everett argued to the Commission that progressive discipline, not removal, should have been imposed. The Commission disagreed, observing that where the "underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate," and that progressive discipline is not required in those instances notwithstanding a largely unblemished prior employment record.

The Commission also noted that Everett had a prior disciplinary record including "[ten]-day and [twenty]-day suspensions." Since Everett was on an unauthorized leave from November 30 forward, termination was warranted. However, as he was not able to work due to medical reasons at the time of his unauthorized absences, resignation in good standing was a sufficient sanction.

We reiterate the familiar standard applicable to appeals from administrative decisions. The scope of our review of an administrative agency's final determination is limited. In re Herrmann, 192 N.J. 19, 27 (2007). A "strong presumption of reasonableness" attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). It is the appellant's burden to establish that the Commission's action was "arbitrary, unreasonable or capricious." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

We do not disturb an administrative agency's findings or determinations unless there is a clear showing that "(1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hospital of Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).

The agency's finding in this case was not clearly mistaken or so plainly unwarranted as to demand intervention and correction. See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001). Everett was notified four times of the steps necessary for approval of his leave request. He failed to provide a properly certified form. This was more than just a negligible glitch in the paperwork. There was nothing unreasonable about the employer requiring the medical provider to certify the course of treatment which warranted the leave that was being requested. Everett did not follow the directions repeatedly explained to him to obtain approval for his leave.

In support of his position, Everett has cited an unpublished administrative decision. Unpublished decisions are not precedential. In addition, the cited opinion is inapposite because in that case, the employer never provided the employee with an explanation of the information he was expected to supply.

We therefore agree with the Commission that Burlington County satisfied its obligations to its employee. We are also satisfied that in light of Everett's seeming indifference to his employer's clear requirements while genuinely unable to work, that the sanction of resignation in good standing is appropriate.