IN RE: E.H.

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Superior Court of New Jersey, Appellate Division.

IN RE: E.H., DEPARTMENT OF LAW AND PUBLIC SAFETY

DOCKET NO. A–4859–11T1

Decided: April 10, 2014

Before Judges Alvarez, Ostrer and Carroll. Andrew L. Watson argued the cause for appellant E.H. (Pellettieri, Rabstein & Altman, attorneys;  Mr. Watson, on the briefs). Pamela N. Ullman, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney;  Lewis A. Scheindlin, Assistant Attorney General, of counsel;  Ms. Ullman, on the brief).

E.H.1  appeals the April 18, 2012 final decision by the New Jersey Civil Service Commission (Commission) finding he had not demonstrated a violation of the New Jersey State Policy Prohibiting Discrimination in the Workplace, N.J.A.C. 4A:7–3.1. E.H. also appeals the Commission's order requiring a desk audit by the Division of State and Local Operations of E.H.'s current position with the Division of Civil Rights (DCR).

E.H. contends the Commission erred because its factual findings were not supported by the record, and at a minimum, required referral to the Office of Administrative Law for hearing as a contested matter under N.J.S.A. 4A:2–1.1(d).  He also asserts there was no basis in the record for a desk audit, which was not requested by any party.   For the reasons that follow, we affirm.

I

We recite the facts relevant to our decision, taken from the parties' written submissions constituting the written record upon which the Commission relied.   E.H., who has cerebral palsy, was appointed as an unclassified Deputy Attorney General (DAG) 5 on September 1, 2003, by the Office of Attorney General, Department of Law and Public Safety, Division of Law (DOL).

In his first year of employment, E.H. made thirty-one requests for accommodations, of which thirty were granted.   They were:  1) reserved indoor parking;  2) assistance entering and exiting his van from mail room staffers;  3) installation of bar on the men's room handicap stall;  4) installation of a lock handle on the handicap stall door;  5) installation of automatic door openers;  6) adjusted time of security scanners;  7) adjusted timing of certain elevators to remain open longer;  8) individual instruction regarding emergency situations;  9) training regarding the use of the emergency evacuation chair;  10) information regarding building's evacuation plan;  11) assigned employees to assist E.H. during evacuation drills;  12) an ergonomic workplace evaluation;  13) new furniture for E.H.'s convenience;  14) assignment of a hard walled office nearest the exit doors;  15) voice recognition software;  16) desktop printer;  17) speakers installed on personal computer;  18) telephone headset;  19) thumb drive to enable working from home;  20) copy holder under the monitor;  21) portal access to email;  23) adjusted work hours to accommodate physical therapy appointments;  24) permission to work from home to obtain medical treatment;  25) transportation to court appearances;  26) transportation to meetings;  27) messenger service to carry books, files, and boxes;  28) video-conferencing;  29) additional secretarial assistance;  and 30) use of vacation time without advance approval.

The DOL refused E.H.'s request for a “personal assistant” who would “function as his shadow,” however, taking the position that a full-time employee to serve in that capacity would result in undue financial hardship on the office.   Instead, the DOL provided E.H. with the physical assistance they considered the equivalent, including ensuring E.H. had help in photocopying, carrying boxes, returning books, or other aspects of his employment requiring physical mobility.

E.H.'s first work evaluation, completed on July 28, 2004, by his immediate supervisor, S.R., gave him a rating of 1, the lowest possible classification, meaning performance was “substantially below expectations.”   In virtually every specific category of job performance, E.H.'s score was either a 1 or a 2 out of a possible 5. He was described as having “minimal legal research skills.”   E.H.'s writing was described as “raw, garbled, and unclear, even though, for the most part, he has been provided with canned brief points for his written work.”   It was noted that he refused to adequately proofread or edit his writing, thus requiring his supervisors to invest substantial time to correct it, and to prepare him for court.

In addition to problems with the final product, there were problems with E.H.'s timely completion of assignments, inappropriate comments made to clients, and difficulty in working with others.   The evaluation included comments by coworkers describing E.H. as “pushy” and “domineering,” while his supervisors remarked that he did not respond constructively to criticism.

Overall, E.H. was considered to lack “sensitivity and tact,” as his conduct resulted in two Equal Employment Office (EEO) complaints against him.   In sum, he was described as needing to “significantly improve his written work,” “learn to think for himself and to work independently and productively,” and “to learn how to comport himself in an office environment and refrain from off-color and inappropriate comments.”

In response to the evaluation, E.H. wrote:

Thank you all for taking time out of your schedule to meet with me regarding my evaluation.   Obviously, I am disappointed with the assessment of my performance.   It will improve.   That is the promise I made to myself, so I make it to you.   I keep my promises.

This past year, my first year as a practicing attorney, has been a challenging, invigorating, and at times[,] difficult experience.   I have no doubt that my work product was not as well[-]drafted, prior to review as it should have been, and as it will be from now on.   I believe that I have and continue to learn from the experience working in this office and am committed to work with you and try my very best to improve those areas of my work identified in the evaluation in order to serve the Division of Law.

[ (Emphasis added by the DLPS).]

E.H. did not assert that the failure to reasonably accommodate his disability was a contributing factor to the negative evaluation.   In fact, the only response in the record provided on appeal was E.H.'s comments as set forth above.

Sometime in late 2004, the DOL offered E.H. the alternative of termination of employment, or an open-ended transfer, known as a “mobility assignment,” to the Division of Civil Rights (DCR).  E.H. accepted the transfer and continues to work there to this day.

The former director of DCR, who acted in that capacity through December 31, 2008, certified that E.H. came to his division not as a DAG, but as an investigator, in order to meet the DCR's staffing needs.   Beginning in early 2007, E.H. began to perform legal work for DCR. On or about August 1, 2008, E.H. became a staff attorney, “to function as an attorney and/or DAG on a full-time basis.”   The former director also stated that he attempted to discuss E.H.'s status with the head of DOL, but that his “inquiries went unanswered.”   He described E.H. as “an able and trusted member” of the Division's legal staff.

In 2007, E.H. received a merit pay increase of five percent at DCR's initiation.   Because his starting classification as a DAG 5 was phased out completely, he is now a DAG 4. Although some functions, such as payroll, are handled as if E.H. was employed by DOL, he is considered an employee of DCR. E.H. considers his work at DCR is equivalent to that performed by a DAG staff attorney.

After E.H. learned that attorneys having the same DAG rank as he did the year he commenced with the DOL, had received promotions and pay raises, E.H. asked the head of DOL for similar advancement.   The request was rejected based on DOL's position that while working for DCR, E.H. had not been performing the work of a DAG.

Upon being refused, E.H. filed a complaint with the Attorney General's Office of Equal Employment Opportunity (EEO).   Before the EEO, E.H. alleged that the DOL did not fairly respond to requests for reasonable accommodation, that this failure resulted in the performance evaluation used to justify his forced transfer to DCR, that he has not received promotions or pay raises equivalent to other DAGs with the same years of service, and that because of his present ambiguous status, he has no means of obtaining promotions or pay raises in the future.   On June 30, 2010, the EEO concluded that E.H.'s allegations were “unsubstantiated.”   An appeal followed.

In support of his appeal from the EEO decision to the Commission, E.H. provided a certification from S.R. to the effect that had E.H. been provided with a personal assistant, his work would have “far exceeded ․ reasonable expectations,” in other words, received the highest rating possible.2  S.R. also claimed that the evaluation was inaccurate because he was not permitted to mention E.H.'s disability and the accommodations that would have enhanced his performance.   S.R. took the same position on two other certifications E.H. filed, that the negative evaluation resulted from S.R.'s inability to discuss E.H.'s disability.

On September 22, 2011, the Commission remanded the matter for further investigation.   Following remand and an additional investigation, the EEO again concluded that E.H. failed to substantiate his claims of discrimination.   On April 18, 2012, the Commission rendered its final administrative determination, denying the appeal.

In its decision, the Commission denied a request for hearing as it did not find a material issue of disputed fact that made one necessary.   The Commission relied upon the definition of reasonable accommodation under the Americans With Disabilities Act (ADA), 42 U.S.C.A. § 12101–12213, noting that the ADA requires “an interactive process between the employee and employer whenever an employee's disability may impact his or her ability to perform the essential functions of the position.”   It observed that the ADA did not give employees the right to demand and receive specific accommodations if essential functions can still be performed without them and that DOL made multiple accommodations at E.H.'s request.

The Commission also stated that the EEO had corroborated E.H.'s negative evaluation not just with S.R., but the other supervisor who signed the document.   This individual, M.N., had added that when corrected documents were given to E.H., he would not make the necessary changes.   Despite being given “the simplest assignments,” his work required numerous revisions.   M.N. found E.H.'s work productivity to be low and said that S.R. often completed a large portion of it.   In response, S.R. generally contradicted these assertions.   Furthermore, M.N. alleged E.H. showed no progress during the time he was at the DOL, an assertion that S.R. does not refute.

The Commission concluded that for legitimate business reasons, it was reasonable for the DOL to refuse to provide E.H., a starting DAG, with his own personal assistant.   Furthermore, “a full-time personal assistant could not help the appellant in the areas in which he needed to improve as noted in his 2004 evaluation․”  E.H. was provided accommodations with physical tasks when needed.   Finally, the Commission found it telling that after receiving his evaluation, E.H. did not allege that DOL's failure to provide him with a full-time personal assistant was the explanation for his poor performance.

The Commission disagreed with E.H.'s claim that the mobility assignment was retaliation for his accommodation requests.   To the contrary, the Commission noted that as a result of E.H.'s poor performance as a DAG, had he not accepted the transfer, he would have been terminated.   In his reassignment, he was “to perform the functions of an [i]nvestigator and not as a DAG.”

The Commission further found that even though E.H.'s title has remained unchanged, he has not functioned as a DAG since December 2004.   To be eligible for promotion, he must have satisfactorily performed in the lower title for at least three years.   In this case, since E.H. was only employed as a DAG for fifteen months, and during that time his performance was unsatisfactory, he was not eligible for promotion under that title.

The Commission did note that E.H. advanced while at DCR, receiving salary increases until August 2008, and that he was advanced from an investigator to a “[l]egal [s]pecialist.”   Because of the lack of clarity in the record between DOL and DCR as to E.H.'s job responsibilities, the Commission ordered a desk audit to “attempt to resolve the confusion as to the proper title for the job duties performed by the appellant.”

E.H. objected to the desk audit, asserting this was nothing more than an “attempt to derail his career.”   The Commission nonetheless determined that a “review of the classification of the appellant's position” was necessary.   The matter was not referred to the Office of Administrative Law as a contested case for hearing.   See N.J.S.A. 4A:2–1.1(d).  Finally, the Commission decided there was “no basis to disturb the determination of the EEO office.”

II

The familiar standard applicable to appeals from administrative agency decisions bears repetition.   The scope of 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 E.H.'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 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 Hosp. of Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).   We do not deferentially review agency decisions on purely legal questions.

E.H. first contends that the Commission erred by failing to transfer the matter to the Office of Administrative Law (OAL) as a contested hearing in light of S.R. and the former director's certifications.   We are satisfied, however, that the certifications did not raise material issues of fact which require adjudication and development on the record.   See J.D. ex. rel. D.D.H. v. N.J. Div. of Developmental Disabilities, 329 N.J.Super. 516, 525 (App.Div.2000).   A case is contested and appropriately referred for hearing where there are “disputed adjudicative facts ․ that require[ ] the protection of formal trial procedure.”  Ibid. (quoting High Horizons Dev. Co. v. State, Dept. of Transp., 120 N.J. 40, 53 (1990)).

In this case, E.H. alleges that the disputed facts arise from S.R.'s assertion that if he had been allowed to discuss E.H.'s disability in the performance evaluation, the comments would have been placed in the proper context.   In his opinion, had E.H. been granted a personal assistant as he requested, he would have developed into a “stellar” DAG. The Commission did not consider S.R.'s certifications to raise material issues requiring adjudication.

Furthermore, another supervisor independently corroborated the information in the evaluation.   Mention of E.H.'s disability would not have placed the specific criticisms in a more favorable light.   Additionally, the Commission agreed with the DOL that the expense of a personal assistant would not have been a reasonable accommodation.   The services of an aide would not have enhanced E.H.'s abilities in the area of legal analysis or legal writing.   The Commission also took into account that some of the personality conflicts that E.H. had with coworkers and clients would not have been affected by a personal assistant either.   Thus, the Commission denied the request for hearing as a contested case.

The EEO investigated E.H.'s complaint twice.   On each occasion, it did not find that E.H.'s requests for accommodation had been improperly refused, or that his work had suffered as a result of any failure to accommodate, or that his transfer was retaliatory in nature.

As we said in J.D., review of the decision regarding whether to transfer a matter to the OAL as a contested case is made de novo.  Id. at 527–28.   In this case, the Commission's refusal was justified.   There is nothing unreasonable, arbitrary, or capricious about the notion that a full-time personal assistant would not be an appropriate accommodation for E.H.'s performance as an attorney, in the crucial areas of his analytical abilities, his legal writing, or his ability to work with others.   Nothing further could be added by E.H. as a result of a hearing, which was not already fleshed out in the record.   The substantial certifications and other documents clearly spell out the anticipated testimony.   In this case, the substantial deference we accord to the decision not to transfer is entirely warranted.

E.H. has failed to meet his heavy burden, particularly in light of the EEO's finding that mobility transfers that last for years are unremarkable.   This is particularly true here where the mobility transfer has resulted in E.H.'s successful employment for some ten years, as opposed to termination.

Lastly, the Commission's decision to submit E.H.'s job responsibilities to a desk audit does not seem to us to be unreasonable either.   The record is confusing as to the precise nature of E.H.'s current status given that he is classified as a DAG 4, and that the mobility transfer was initially to a job as an investigator.   Yet, after the transfer, he may have been appointed to act as a DCR staff attorney.   A desk audit may be ordered “[w]hen the duties and responsibilities of a position change to the extent that they are no longer similar to the duties and responsibilities set forth in the specification and the title is no longer appropriate.”  N.J.A.C. 4A:3–3.5. The Commission is charged with the responsibility for such oversight, and in fulfilling that obligation, was entitled to direct a desk audit be completed.   Contrary to E.H.'s assertion, simply because neither side requested it, does not mean the Commission cannot require one in fulfilling its statutory mandate.

Affirmed.

FOOTNOTES

1.  FN1. We use initials throughout.   See N.J.A.C. 4A:7–3.1(j) (“All complaints and investigations shall be handled, to the extent possible, in a manner that will protect the privacy interests of those involved.”).

2.  FN2. In its brief, the DOL, without record support, asserts that in his first interview with the EEO, S.R. did not dispute his 2004 evaluation.

PER CURIAM

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