IN THE MATTER OF ERICA DAVIS-SMITH, MERCER COUNTY DEPARTMENT OF PUBLIC SAFETY (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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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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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