IN THE MATTER OF BILLIE HAYES, DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, DEPARTMENT OF HUMAN SERVICES

NOT FOR PUBLICATION WITHOUT THE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-3185-18T2

IN THE MATTER OF BILLIE
HAYES, DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES, DEPARTMENT OF
HUMAN SERVICES.
_____________________________

                Submitted December 16, 2020 – Decided January 6, 2021

                Before Judges Geiger and Mitterhoff.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2018-3252.

                Billie Hayes, appellant pro se.

                Gurbir S. Grewal, Attorney General, attorney for
                respondent Division of Medical Assistance and Health
                Services, Department of Human Services (Sookie Bae,
                Assistant Attorney General, of counsel; Rimma
                Razhba, Deputy Attorney General, on the brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent Civil Service Commission (Jonathan S.
                Sussman, Deputy Attorney General, on the statement in
                lieu of brief).

PER CURIAM
      Billie Hayes appeals from a February 6, 2019 corrected final decision of

the Civil Service Commission (Commission) denying his request for

reconsideration of a March 27, 2019 final agency action that upheld his removal

and resignation not in good standing effective April 18, 2016. We affirm.

      Hayes was employed by the Division of Medical Assistance and Health

Services (Division) as a Quality Control Reviewer. Hayes was on worker's

compensation leave from November 6, 2014 to April 10, 2016, after suffering a

head injury at work that caused post-concussive syndrome.          His treating

neurologist determined Hayes could return to work on April 10, 2016, with no

restrictions and without specifying any necessary accommodations. On April 7,

2016, the Division sent written notice to Hayes confirming he was cleared to

return to work on April 11, 2016 and offering him the opportunity to identify

any reasonable accommodations under the ADA. Hayes did not request any

accommodations.

      At 8:37 a.m. on April 11, Hayes sent an email to the Division requesting

to use seven hours of administrative leave that day. The Division informed

Hayes the next day that he was not authorized to request leave by email and that

he had no leave time available. Hayes did not respond to the email and never




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returned to work. The Division then sent Hayes a series of Preliminary Notices

of Disciplinary Action regarding his unacceptable attendance.

      On June 22, 2016, the Division sent Hayes two Final Notices of

Disciplinary Action imposing a removal and resignation not in good standing

effective April 18, 2016. Hayes contested the termination and requested a

hearing. The matter was transferred to the Office of Administrative Law (OAL)

as a contested case and assigned to an Administrative Law Judge (ALJ).

      On March 24, 2017, the Division moved for summary decision. Hayes

opposed the motion on the ground that he requested an accommodation, and

thus, the Division was required to respond to the request before terminating him.

The ALJ found that Hayes "provided no evidence that a request for an

accommodation was ever made." The ALJ issued a September 15, 2017 initial

decision granting the Division's motion for summary decision and sustaining the

removal and resignation not in good standing. The ALJ found that the following

material facts were undisputed:

            1.    The appellant was out on approved worker’s
                  compensation leave from November 6, 2014,
                  through April 10, 2016, as a result of a workplace
                  injury that he sustained on or about November 5,
                  2014.

            2.    The appellant was given several extensions on his
                  leave, and was cleared to return to work on April

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     10, 2016, by his treating physician, Dr. Vasko
     Gulevski.

3.   Dr. Gulevski submitted a return to work form
     dated April 6, 2016, in which he certifies that
     Billie Hayes was seen or treated in his office on
     that date and may return to work on April 10,
     2016.

4.   Treatment Notices from Dr. Gulevski dated
     March 17, 2016, were also provided to the
     employer.

5.   Neither the notes [n]or the return to work
     certification from Dr. Gulevski request an
     accommodation for the appellant under the ADA.
     The      appellant  never      requested    an
     accommodation.

6.   On April 7, 2016, in response to the return to
     work notice, the respondent sent a letter to the
     appellant which advised that "you may have a
     need for a work accommodation, therefore, I am
     enclosing the American with Disability Act
     (ADA) accommodation forms for you[r] review
     and completion."

7.   The appellant did not respond to the
     correspondence or ask for an accommodation
     either in writing, or verbally.

8.   On April 11, 2016, the date the appellant was to
     return to work, he sent an email at 8:30 a.m.
     which stated "I would like to use 7 hours of AL
     time today 4-11-16. Thanks."

9.   The appellant was advised by the respondent on
     April 12, 2016, that he was not permitted to call

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                  out or request time off by email, and must have
                  direct contact with a person at work. The letter
                  further advised appellant that he had no
                  remaining time available, and was therefore, "out
                  on authorized leave as of Monday, April 11,
                  2016."

            10.   The appellant did not respond to this letter and
                  had no further contact with the respondent, by
                  phone or email. The appellant did not return to
                  work on April 12, 2016, April 13, 2016, April 14,
                  2016, or April 15, 2015. The appellant did not
                  request time off or an accommodation.

            11.   On Monday, April 18, 2016, a Preliminary Notice
                  of Disciplinary Action (PNDA) was issued,
                  charging the appellant with a violation of
                  N.J.A.C. 4A:6-1.10, regarding approval for leave
                  of absence.

            12.   A second PNDA was issued on charging
                  appellant with being absent from work without
                  permission or proper notice, and job
                  abandonment in violation of N.J.A.C. 4A:2-
                  6.2(c).

      The ALJ concluded that Hayes's "failure to return to work on April 11,

2016, constituted an absence without permission" and that his "refusal to return

to work for five consecutive days without leave or failure to return to work for

five consecutive days without leave or permission constitute[d] job

abandonment as well as chronic absenteeism."




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      Hayes filed exceptions to the summary decision. The Commission issued

a March 27, 2018 final decision that accepted and adopted the ALJ's findings of

fact and conclusions and upheld the removal and resignation not in good

standing effective April 18, 2016.

      Hayes then requested reconsideration, claiming that a clear material error

had occurred which would change the outcome of the case. The Commission

issued a detailed February 6, 2019 corrected decision that determined

"reconsideration is not justified." The Commission found that "[t]he record does

not indicate that the [appellant] requested a reasonable accommodation or

assistance with completing the ADA forms that the appointing authority sent

him." In addition, the Commission found that the appointing authority had no

notice of any needed reasonable accommodations from Dr. Gulevski's letter.

The Commission further found that Hayes did not state "what reasonable

accommodation . . . he would have required in order to return to work." Finally,

the Commission found that even if there was a dispute as to whether the

appointing authority had notice of any needed reasonable accommodations,

"such dispute or discrepancy would not excuse his continued absences from

work in light of the physician's report and note clearing him to return to work."

This appeal followed.


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      Hayes raises a single point for our consideration:

            The decision made by the New Jersey Civil Service
            Commission to deny my appeal is arbitrary and
            capricious. The removal and resignation not in good
            standing, does not meet the requirements of N.J.A.C.
            4A:2-6.2(c).

      Hayes's argument lacks sufficient merit to warrant extended discussion in

a written opinion.    R. 2:11-3(e)(1)(E).     We affirm the decision of the

Commission substantially for the reasons expressed by the ALJ in her initial

decision, which were adopted by the Commission in its March 27, 2018 final

decision. We likewise affirm the denial of reconsideration substantially for the

reasons expressed by the Commission in its February 6, 2019 corrected decision.

Each of those decisions are "supported by sufficient credible evidence on the

record as a whole." R. 2:11-3(e)(1)(D). We add the following comments.

      Reviewing courts "have a limited role in reviewing a decision of an

administrative agency," Henry v. Rahway State Prison,  81 N.J. 571, 579 (1980),

and will only reverse the agency's decision if it is arbitrary, capricious, or

unreasonable or is not supported by substantial credible evidence in the record

as a whole, Campbell v. Dep't of Civ, Serv.,  39 N.J. 556, 562 (1963). In

addition, a "strong presumption of reasonableness attaches to the actions of

administrative agencies," which is further enhanced "where the agency is


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dealing with specialized and technical matters." In re Vey,  272 N.J. Super. 199,

205 (App. Div. 1993) (citing Newark v. Nat. Res. Council,  82 N.J. 530, 539-540

(1980)). We do not substitute our judgment for that of the agency. Clowes v.

Terminex Int'l, Inc.,  109 N.J. 575, 587 (1988).

      A petition for reconsideration must show "new evidence or additional

information not presented at the original proceeding[] which would change the

outcome . . . at the original proceeding." N.J.A.C. 4A:2-1.6(b).

      N.J.A.C. 4A:2-6.2(c) provides that "[a]n employee who has not returned

to duty for five or more consecutive business days following an approved leave

of absence shall be considered to have abandoned his or her position and shall

be recorded as a resignation not in good standing."

      Our careful review of the record reveals that the Commission's decisions

are amply supported by substantial, credible evidence in the record, consistent

with applicable statutes, administrative regulations, and case law, and were not

arbitrary, capricious, or unreasonable. Hayes failed to report to work on or after

April 11, 2016, despite being cleared by his physician to do so without

restrictions or accommodations.        We discern no basis to disturb the

Commission's decision.

      Affirmed.


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