Billie Hayes, CSC Docket No. 2018-3252

ee

BackgroundBillie Hayes, a former Quality Control Reviewer, Division of Medical Assistance and Health Services, Department of Human Services (DHS), represented by William A. Nash, Esq., requests reconsideration of the attached final decision, rendered on March 27, 2018, which granted the appointing authority's motion for summary decision and upheld the petitioner’s removal and resignation not in good standing, effective April 18, 2016.

By way of background, the petitioner was served with a Final Notice of Disciplinary Action, removing him from his position effective April 18, 2016 on charges of absence from work without permission; abandonment of job as a result of absence from work; and chronic absenteeism. Specifically, the appointing authority asserted that the petitioner did not return to work or request an accommodation under the Americans with Disabilities Act (ADA) after being out on approved Workers’ Compensation leave from November 6, 2014 through April 10, 2016, after a workplace injury. On April 11, 2016 at 8:30 a.m., the petitioner sent an e-mail to the appointing authority in which he requested to use seven hours of leave time. On April 12, 2016, the appointing authority advised the petitioner, in relevant part, that he had no remaining leave time available. The petitioner did not respond to the appointing authority, did not return to work and did not request time off or an accommodation. The petitioner appealed his removal and resignation not in good standing to the Civil Service Commission (Commission) which transmitted the matter to the Office of Administrative Law (OAL) for a hearing as a contested case. Subsequently, the appointing authority filed a motion for summary decision. The Administrative Law Judge (ALJ) granted the appointing authority's motion for summary decision and upheld the petitioner's removal and resignation not in good standing. In particular, the ALJ found that the undisputed facts did not demonstrate that the petitioner or his physician ever made a request for an accommodation and that the petitioner failed to return to work on April 11, 2016 and every day thereafter. The Commission adopted the ALJ’s recommendations and upheld the petitioner's removal and resignation not in good standing.

Appellant's argumentIn his request for reconsideration, the petitioner argues that he meets the standard for reconsideration because the Commission made a material error by disregarding the petitioner’s sworn affidavit that he did not return to work on April 11, 2016 because the appointing authority did not provide him with information about what reasonable accommodations, if any, would have been provided to him. Moreover, the petitioner argues that there was a material error in finding that a request for reasonable accommodation was not made. In this regard, the petitioner maintains that under DHS’ Administrative Order 4:07 (A.O. 4:07), requests for reasonable accommodations do not need to be in writing or even use the phrase “yeasonable accommodation.” Rather, all that is required is that the employee make clear that assistance is needed because of his or her disability. Here, the petitioner maintains that the appointing authority knew of his need for a reasonable accommodation, based upon the appointing authority’s statements in its letters dated March 9, 2016 and April 7, 2016. Specifically, he notes that the appointing authority’s March 9, 2016 letter acknowledged that his physician indicated that the petitioner “may need extra time for decision making” and it indicated in its April 7, 2016 letter that it was sending him ADA accommodation forms because his physician’s report indicated that he “may have a need for a work accommodation.” As such, he argues that the ALJ’s initial decision incorrectly stated that A.O. 4:07 did not apply. Therefore, he contends that a genuine issue of material fact exists as to whether or not the appointing authority was unaware of his need for a reasonable accommodation. Finally, the petitioner argues that the Commission made a material error by failing to recognize that he was unable to complete the ADA form because of the difficulties associated with his diagnosis. Accordingly, the petitioner argues that the foregoing issues of material fact demonstrate that he has met standard for reconsideration.

Appointing authority's argumentIn response, the appointing authority, represented by Rimma Razhba, Deputy Attorney General, argues that the ALJ correctly found that there were no material facts in dispute in this matter that warranted an evidentiary hearing. The appointing authority contends that there was no evidence that it received a request for a reasonable accommodation, as the physician's report dated March 17, 2016 and the physician’s follow-up medical note dated April 6, 2016 cleared the petitioner to return to work on April 10, 2016 without restrictions. Further, it maintains that the petitioner did not submit any medical documentation to refute the fact that he was cleared to return to work on April 10, 2016 without restrictions. The appointing authority also argues that the petitioner's claim that he was unable to complete an ADA form lacks merit, as he was able to send an e-mail to it on April 11, 2016 and could have indicated that he needed help filling out the ADA forms, but he did not do so. Therefore, the appointing authority argues that the Commission correctly adopted the ALJ’s findings that there were no genuine issues of fact in this case and the ALJ’s conclusion that the petitioner’s failure to return to work on April 11, 2016 constituted an absence without permission, job abandonment and excessive absenteeism.

Appellant's argumentIn reply, the petitioner reiterates that reconsideration is warranted based upon the clear material errors noted in his initial submission in this matter.

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) sets forth the standards by which a prior decision may be reconsidered. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding.

AnalysisThe instant request for reconsideration is based on the assertion that a clear material error has occurred which would change the outcome of the case. However, a review of the record in this matter reveals that reconsideration is not justified. The petitioner was out on an approved Workers’ Compensation leave from November 6, 2014 through April 10, 2016. The record does not indicate that the petitioner requested a reasonable accommodation or assistance with completing the ADA forms that the appointing authority sent him. Rather, the petitioner asserts that the appointing authority had notice of his need for a _ reasonable accommodation through the physician’s report dated March 17, 2016 and a follow- up note dated April 6, 2016 that it had received. However, the record establishes that in both notes, the appellant was returned to work on April 10, 2016, without restrictions. Moreover, in the March 17, 2016 note, although the physician indicated the appellant should continue treatment, he did not indicate that the petitioner needed a reasonable accommodation at work. Thus, when the appointing authority sent its April 7, 2016 letter to the petitioner, it could not be said that it had notice from the physician that the petitioner would require a reasonable accommodation to return to work. The appointing authority’s statement that the petitioner “may have a need for a work accommodation” (emphasis added) and the instruction to complete ADA accommodation forms “if you feel you are need [sic] of an ADA accommodation” clearly reflects an intent to clarify whether the petitioner needed a reasonable accommodation, not a statement that the appointing authority knew that the petitioner required one to return to work. Furthermore, the petitioner does not indicate what reasonable accommodation from the appointing authority he would have required in order to return to work. The petitioner asserts that he informed the appointing authority that he “would not be able to return to work on 4/11/16 as [he] had no information about what reasonable accommodations,” if any, he would receive. However, the e-mail the petitioner sent to the appointing authority on April 11, 2016 stated that he “would like to use 7 hours of AL time” without an explanation as to why he was requesting the absence. Thus, there is no evidence that the petitioner requested a _ reasonable accommodation directly or through his physician or that his absence was related to the lack of a reasonable accommodation. In any event, any 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. Accordingly, the petitioner has not met the standard for reconsideration.

ORDER

Therefore, it is ordered that this request for reconsideration be denied.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.