IN RE: SAAD RADWAN EID (2013)

Appellant Saad Radwan Eid, who was formerly employed as a laborer in the Carteret Borough Sewer Department, appeals from the January 25, 2012 final action of the Civil Service Commission (Commission), insofar as that decision denied his application for back pay, retroactive health benefits, and counsel fees.   We affirm.

I

In July 2008, the Borough served Eid with three disciplinary notices seeking his removal from duty.   Two of the notices were based on citizen complaints about his conduct and the third was based on allegations made by one of his fellow employees.   The first citizen complaint involved an elderly woman who claimed that Eid nearly hit her with his Borough vehicle as she was crossing the street and was abusive to her when she complained to him.   The second citizen complaint involved a teenage girl who complained that Eid followed her in his Borough vehicle while she was walking.   The third complaint was from a co-worker who complained that Eid cursed and spat on him after the co-worker loaded a bag of garbage on Eid's work truck.   While those charges were pending, the Borough also served Eid with a notice that it no longer had an available position for him because, due to a work-related injury, he had significant physical limitations which the Borough could not accommodate.

Following a departmental hearing, the disciplinary charges were upheld, and on May 11, 2010, Eid requested an administrative hearing before the Commission.   He separately filed an appeal to the Commission from the Borough's determination that he was unfit for duty.   The Commission determined that the allegations of unfitness, like the disciplinary charges, could not be decided without an evidentiary hearing.   On September 16, 2010, the Commission issued a decision granting a hearing on the unfitness issue and transmitted that issue to the Office of Administrative Law (OAL), to be consolidated with the pending disciplinary matters.   Eid did not file a motion for reconsideration of the Commission's September 16 decision, and the case proceeded to a hearing before an Administrative Law Judge (ALJ).

In his initial decision, the ALJ first rejected Eid's claim that the parties had settled the disciplinary actions.   He noted the Borough's contention that it offered to settle the case for a twenty-day suspension, in return for which Eid would apply for a disability retirement.   The ALJ further noted that Eid had filled out a disability application, but did not file it and did not agree that filing it was a term of the settlement.   The ALJ concluded that the parties never actually reached a settlement.

Next, the ALJ found, based on his evaluation of witness credibility, that while the two citizen complainants were sincerely upset, there was insufficient evidence to support a finding that Eid was in the wrong in the two incidents.   However, with respect to the third incident, the ALJ found that Eid had screamed and cursed at his co-worker and spat in his face.   The ALJ also found that Eid later disobeyed a supervisor's direction to submit a written statement about the incident.   The ALJ found Eid guilty of conduct unbecoming a public employee, but recommended a twenty-day suspension rather than termination as a penalty.

With respect to the unfitness-for-duty issue, the ALJ found that Eid's job involved significant physical labor, which Eid could no longer perform due to an on-the-job injury that occurred on December 4, 2008.   During that incident, Eid fell and seriously injured his left shoulder.   Eid was unable to return to work until July 2009, and then was only able to work for twenty days between July 6 and September 16 2009.   In October 2009, the Borough notified Eid that his doctor had notified the Borough that Eid had permanent work-related restrictions that precluded him from performing his job.   The Borough asked Eid to advise whether he would file for a disability retirement based on his doctor's determination.

After hearing testimony from both lay and expert witnesses, the ALJ found that Eid was not fit for duty because “he was not able to perform the essential functions of his job.”   In fact, he found that in September 2009, Eid had requested his doctor to complete a form for a disability retirement, although Eid did not file the application at that time.   He also found that the Borough could not reasonably accommodate Eid's work-related physical limitations.   The ALJ concluded that the Borough “acted in good faith and properly removed Eid from his employment because of his inability to perform his duties as of October 12, 2009.”   However, “to avoid the harsh consequences of removal” the ALJ recommended that Eid's termination status be changed to a resignation in good standing.

In its written determination, the Commission adopted the ALJ's decision on all issues.   The Commission rejected Eid's argument that the Borough could not proceed in the alternative, seeking to terminate him for disciplinary infractions and as physically unfit for duty.   The Commission also found that Eid was procedurally barred from raising that issue because he had failed to file a timely motion for reconsideration of the agency's September 16, 2010 decision.   However, the Commission noted that, even if the Borough's termination notice concerning unfitness had been procedurally flawed, Eid would not be entitled to backpay as a remedy, because he was physically unable to work.   The Commission found that Eid admitted his severe restrictions “during a Workers' Compensation evaluation” and noted that his own doctor found that Eid could not perform his job.

The Commission determined that Eid was not entitled to a counsel fee award, pursuant to N.J.A.C. 4A:2–2.12, because he had not prevailed on “all or substantially all of the primary issues” on his appeal.   The Commission reasoned that “the primary issue in any disciplinary appeal” was not the discipline imposed but the merits of the charges, and Eid had not prevailed on the charges concerning the co-worker and concerning his medical unfitness.

This appeal followed.   While the appeal was pending, and after Eid filed his merits brief, we granted his motion to supplement the record with a January 17, 2013 letter from the Division of Pensions and Benefits, granting his application for an accidental disability retirement based on his December 4, 2008 work-related injury.¹

II

On this appeal, our review of the Commission's decision is circumscribed by the following legal principles.   We must “ ‘defer to an agency's expertise and superior knowledge of a particular field.’ ”  In re Herrmann, 192 N.J. 19, 27 (2007);  In re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).   Further, we will sustain the Commission's decision “unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.”  Herrmann, supra, 192 N.J. at 27.   Our appellate review is limited to three inquiries:

(1) whether the agency's decision violates express or implied legislative polices, that is, did the agency follow the law;  (2) whether the record contains substantial evidence to support the findings on which the agency based its action;  and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).]

So long as “substantial evidence supports the agency's decision, ‘a court may not substitute its own judgment for the agency's even though the court might have reached a different result.’ ”  Carter, supra, 191 N.J. at 483 (quoting Greenwood, supra, 127 N.J. at 513).   However, we review de novo “ ‘the agency's interpretation of a statute or its determination of a strictly legal issue.’ ”  Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

In his appeal, Eid does not challenge the Commission's underlying determination that, as of October 12, 2009, he was unable to perform the essential functions of his job due to his permanent physical disability.   Nonetheless, he argues that the Commission acted arbitrarily in failing to award him back pay, counsel fees, and “retroactive entitlement to health benefits.”   We conclude that the Commission's decision is supported by substantial credible evidence, R. 2:11–3(e)(1)(D), and that Eid's appellate arguments are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).   We add only the following comments.

Eid concedes that on September 10, 2009, his treating doctor completed a medical examination form, at Eid's request, which confirmed that he was permanently disabled.   In his brief, Eid admits that “he intended to file an application for disability retirement befits at that time.”   However, he did not do so.

Further, on October 21, 2009, Eid received a letter from the Borough stating that it could not accommodate his physical restrictions.   The letter explained that Eid's temporary workers' compensation benefits were ending because he had reached maximum improvement from treatment, informed him that the Borough had deemed him unfit for duty effective October 12, 2009, and inquired whether he would be applying for a disability retirement.   The Borough also sent Eid a notice explaining that he could continue his health benefits by applying for COBRA, offering to fill out the form for him, and inquiring whether the COBRA form should indicate voluntary retirement or involuntary termination.   Contemporaneous handwritten notes on the COBRA letter indicate that Eid responded that he was going to challenge the Borough's determination that he was unfit for duty and that the form should indicate involuntary termination.

Eid claims that the Borough sought to terminate his employment due to political animus, and that he should have been allowed to present evidence on that issue at the OAL hearing.   We conclude that such evidence would not have affected the outcome of this case.   Eid now admits that he could not physically perform his job duties.   Therefore, the Borough was not obligated to retain him as an employee.   See Mercer Cnty. v. State, 193 N.J.Super. 229, 236 (App.Div.1984).   Further, because back pay is not available as a remedy for periods of time when an employee is “disabled from working,” N.J.A.C. 4A:2–2.10(d)(9), we find no error in the Commission's decision denying Eid's claim for back pay.

Eid's brief does not cite any persuasive authority for his argument that the Borough had a legal obligation to file an application for his involuntary disability retirement.  Mercer County v. State, on which he relies, holds that a public employer has the option to make such a filing;  it does not hold that an employer is obligated to do so.  Mercer Cnty., supra, 193 N.J.Super. at 236;  see N.J.S.A. 43:5A–42, –43 (providing that employer or employee may file an application for employee's disability retirement).

Eid's reliance on James v. Board of Trustees, 164 N.J. 396 (2000), is likewise misplaced.  James holds that a public employer must continue making pension contributions on behalf of an employee who is receiving workers' compensation benefits, until the employee is either removed for cause or accrues sufficient pension credit for a disability retirement.  James is not applicable here, because Eid's workers' compensation benefits terminated on October 12, 2009, and he had sufficient pension credit to qualify for a disability retirement.  James also does not hold that an employer must file an involuntary disability retirement application on an employee's behalf.

The record establishes that the Borough repeatedly suggested to Eid that he file a disability retirement application.   His refusal to timely file the application, despite the medical opinion of his treating doctor that he was permanently disabled from working, and his failure to file for COBRA benefits, resulted in his loss of income and health benefits.   See N.J.A.C. 17:9–6.1(c) (addressing health benefits for retired employees).

Moreover, the ALJ's factual findings, which Eid does not challenge on this appeal, indicate that the Borough had a legitimate, good faith basis to seek Eid's termination for misconduct, based on the two citizen complaints and the incident with the co-worker.   The fact that the Borough prevailed on only one of the three disciplinary charges does not entitle Eid to back pay for a period of time when he was unable to work.

Finally, we find no error in the Commission's decision to deny Eid's counsel fee application.   Eid does not challenge the finding that he cursed at a fellow employee and spat in his face.   And the employer prevailed in its effort to remove Eid from employment based on his physical inability to perform the job.   We agree with the Commission that Eid did not prevail on “all or substantially all of the primary issues before the Commission.”  N.J.A.C. 4A:2–2.12(a).

Affirmed.

FOOTNOTES

FN1. The appendix to Eid's appellate brief included numerous documents that were not part of the record before the Commission.   The Borough moved to strike his brief on that basis.   We denied the motion but required Eid to file a revised table of contents for his appendix, specifically identifying all items that were not part of the record before the Commission.   We further reserved the right to disregard any materials improperly placed in the appendix.   In deciding this appeal, we have disregarded all materials in Eid's appendix that were not part of the record before the Commission..  FN1. The appendix to Eid's appellate brief included numerous documents that were not part of the record before the Commission.   The Borough moved to strike his brief on that basis.   We denied the motion but required Eid to file a revised table of contents for his appendix, specifically identifying all items that were not part of the record before the Commission.   We further reserved the right to disregard any materials improperly placed in the appendix.   In deciding this appeal, we have disregarded all materials in Eid's appendix that were not part of the record before the Commission.

PER CURIAM