IN THE MATTER OF ERICA DAVIS-SMITH, MERCER COUNTY DEPARTMENT OF PUBLIC SAFETY

NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                    SUPERIOR COURT OF NEW JERSEY
                                                    APPELLATE DIVISION
                                                    DOCKET NO. A-0374-18T3

IN THE MATTER OF ERICA
DAVIS-SMITH, MERCER
COUNTY DEPARTMENT OF
PUBLIC SAFETY.


               Submitted October 22, 2019 – Decided October 29, 2019

               Before Judges Accurso and Rose.

               On appeal from the New Jersey Civil Service
               Commission, Docket No. 2013-3349.

               Alterman & Associates, LLC, attorneys for appellant
               Erica Davis-Smith (Stuart J. Alterman and Timothy J.
               Prol, on the briefs).

               Paul R. Adezio, Mercer County Counsel, attorney for
               respondent Mercer County Department of Public Safety
               (Paul R. Adezio, of counsel and on the brief).

               Gurbir S. Grewal, Attorney General, attorney for
               respondent Civil Service Commission (Donna Arons,
               Assistant Attorney General, of counsel; Beau Charles
               Wilson, Deputy Attorney General, on the statement in
               lieu of brief).

PER CURIAM
      Petitioner Erica Davis-Smith appeals a final determination of the Civil

Service Commission (Commission), adopting an initial decision issued by

Administrative Law Judge (ALJ) Jeff S. Masin. The ALJ upheld petitioner's

removal from her employment as a correction officer with the Mercer County

Department of Public Safety (County). We affirm.

      We incorporate by reference the undisputed facts and procedural history

set forth in the ALJ's decision. In sum, following petitioner's injury in April

2012, she was referred for a functional capacity examination, which indicated

petitioner "demonstrated ability for light[-to]-medium category work, with

restrictions on activities." That category of work does not exist for the County's

correction officers, who are required to perform "heavy category work with no

restrictions."

      Within three months, the County's orthopedic surgeon determined

petitioner had reached maximum medical improvement (MMI). After issuing

the requisite preliminary and final notices of disciplinary action and affording

petitioner a "plateau hearing," the County removed petitioner from her position

for inability to perform duties, N.J.A.C. 4A:2-2.3(a)(3). Petitioner appealed and

the ALJ granted the County's motion for summary decision, finding petitioner




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"was unable to perform all of the essential requirements" of a Civil Service

correction officer.1

      On appeal, petitioner raises the following points for our consideration:

             POINT I

             THE COMMISSION ERRED AS A MATTER OF
             LAW   IN   ITS  FINAL   ADMINISTRATIVE
             DETERMINATION BY ADOPTING THE ALJ’S
             GRANT OF SUMMARY DECISION BECAUSE
             THERE ARE GENUINE ISSUES OF MATERIAL
             FACT WHICH NECESSITATE A HEARING.

             POINT II

             THE COMMISSION’S DECISION UPHOLDING
             [PETITIONER]'S REMOVAL WAS ARBITRARY,
             CAPRICIOUS, AND UNREASONABLE AND WAS
             NOT SUPPORTED BY SUBSTANTIAL CREDIBLE
             EVIDENCE IN THE RECORD, THEREFORE THE
             COMMISSION'S       DECISION SHOULD BE
             REVERSED AND A HEARING ORDERED.
             (Not raised below)

In particular, petitioner claims whether she was at MMI is a genuine issue of

fact that entitled her to a hearing.




1
   Because petitioner was separated from her position for "her inability to
perform her job due to physical injury and not as a result of any conduct or
action that is properly worthy of discipline," the Commission changed
petitioner's termination to a resignation in good standing.
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                                       3
      We have considered these contentions in light of the record and applicable

legal principles, and conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). Pursuant to our limited

standard of review, Russo v. Board of Trustees, Police & Firemen's Retirement

System,  206 N.J. 14, 27 (2011), we affirm, as did the Commission, substantially

for the reasons expressed in the ALJ's comprehensive written decision, which

"is supported by sufficient credible evidence on the record as a whole." R. 2:11-

3(e)(1)(D).

      We simply add whether petitioner was at MMI is not the issue. The single

unavoidable fact is that petitioner never demonstrated she was capable of

performing "all of the essential requirements" of a correction officer. As ALJ

Masin correctly determined, petitioner was never cleared to return to work

without restrictions, and she failed to demonstrate that the County's correction

center offered anything other than heavy-work positions. Accordingly, the

Commission's decision was not arbitrary, capricious, or unreasonable. Wnuck

v. N.J. Div. of Motor Vehicles,  337 N.J. Super. 52, 56 (App. Div. 2001).

      Affirmed.




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