A.D., CSC Docket No. 2024-1374

BackgroundA.D., represented by Stephen B. Hunter, Esq., appeals his rejection as a Fire Fighter candidate by Hackensack and its request to remove his name from the eligible list for Fire Fighter (M2229D) on the basis of psychological unfitness to perform effectively the duties of the position.

This appeal was brought before the Medical Review Panel (Panel) on August 16, 2024, which rendered its Report and Recommendation on August 16, 2024. Exceptions were filed on behalf of the appellant, and cross exceptions were filed on behalf of the appointing authority.

The report by the Panel discusses all submitted evaluations. Dr. Jennifer Buhler, evaluator on behalf of the appointing authority, conducted a psychological evaluation of the appellant and characterized the appellant as polite, but superficially cooperative during the interview. Dr. Buhler noted that the appellant had been unemployed since October 2021 and that he had been supporting himself through Veterans Administration (VA) disability compensation. The appellant had been attending firefighting school during the summer of 2023 and volunteering with a fire department. The appellant served in the United States Marine Corps from February 2014 to January 2020. Dr. Buhler further noted that the appellant denied having ever being terminated from employment. However, the appellant reported being arrested three times for disobeying a Police Officer in 2017, driving while intoxicated (DWI) in 2018, and engaging in criminal mischief in 2022. He attended a group therapy program following his arrest in 2022. Also, the appellant failed to accurately report the number of motor vehicle summonses he had received. The appellant denied having any serious financial problems but reported a credit score of 580. The VA clinician diagnosed the appellant with bipolar disorder, post-traumatic stress disorder, and anxiety. The appellant was prescribed Xanax (starting April 2023) and Vistaril (starting September 2023) to help him sleep. The appellant was also prescribed Zoloft, Bupropion, and Lamictal, and he had been prescribed Adderall within the past five years. Dr. Buhler stated that the appellant failed to provide a complete account of all of the medications prescribed to him when he completed the background forms for his evaluation. Dr. Buhler concluded that the appellant was not psychologically suitable for employment as a Fire Fighter and did not recommend him for appointment.

Dr. Burleigh Gallina, evaluator on behalf of the appellant, carried out a psychological evaluation and indicated that the appellant was currently working as a heavy equipment operator/mechanic and had no history of being terminated from employment. Dr. Gallina also set forth that the appellant was charged for disobeying a Police Officer when he was told to leave a bar. He claimed he could not hear the Police Officer. When he went to court, this charge was reduced to a petty disorderly persons offense. Moreover, the appellant self-reported that he had consumed “probably two beers” prior to driving when he was charged with DWI with a blood alcohol level of .10. As to the last arrest, during an altercation with his wife, he threw her cellphone, which ricocheted off a cabinet and hit her. The appellant was charged with domestic violence, simple assault, and criminal mischief. He was also charged with criminal restraint for blocking his wife’s car in the driveway with his truck. Dr. Gallina also noted that the appellant served in the U.S. Marine Corps from 2014 through 2020 and received an honorable discharge. He received several commendations while serving in the Marine Corps and submitted several positive letters of recommendation. Further, Dr. Gallina found that the appellant has been receiving psychiatric treatment from the VA since April 2023. The appellant reported taking Xanax for 11 months. In Dr. Gallina’s psychological opinion, with reasonable psychological certainty, the appellant was psychologically suitable to serve as a Fire Fighter.

The evaluators on behalf of the appellant and the appointing authority arrived at differing conclusions and recommendations. Dr. Buhler raised concerns regarding the appellant’s history of arrests, poor decision making, impulse control problems and lack of a full and clear accounting about his background. The concerns noted by Dr. Buhler were discussed during the Panel meeting. Regarding the 2017 arrest, the appellant explained that he left the bar to smoke a cigarette. The Police Officer told him that he could not re-enter the bar, but he did not want to leave as his sister was still inside. He claimed that it was too noisy, and he did not hear what the Police Officer said to him. The Panel had concerns about the appellant’s apparent inability to communicate with a Police Officer and noted that Fire Fighters often have to communicate effectively under loud and/or stressful conditions. Regarding his DWI, the appellant informed the Panel that he had consumed three beers. However, the Panel was aware that he told the previous evaluator that he had only consumed two beers and the Panel opined that the appellant demonstrated poor judgment in that incident and now it was unclear whether or not he was being truthful. Likewise, with regard to the appellant’s 2022 arrest, the Panel found that he again used poor judgment in responding to conflict with his wife. The situation was further complicated when he did not comply with police requests to move his vehicle.

When the Panel asked the appellant about his psychiatric treatment and disability rating, he was not clear or consistent in his explanations as to why he was prescribed these various medications. The appellant was specifically asked about his 30% disability rating for anxiety disorder. The Panel learned that this finding by the VA was based on the following: difficulty in adapting to stressful circumstances; difficulty adapting to a work-like setting; anxiety; occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks;1 and chronic sleep impairment. Further, during the course of his interview by the Panel, the appellant was unclear about the action he took to follow-up regarding the medications he had taken. The appellant’s responses to direct questions about his background were often vague and did not address the concerns raised. Of particular concern to the Panel was the appellant’s history of poor judgment in several significant incidents as well as his inconsistent and, at times, vague communication with the Panel. Taking into account the evaluations of Drs. Buhler and Gallina, the test data, and the appellant’s appearance before the Panel, the Panel found sufficient evidence to support the conclusions listed in Dr. Buhler’s report. Accordingly, the Panel concluded that the appellant was not psychologically suitable to serve as a Fire Fighter.

Appellant's argumentIn his exceptions, the appellant asserts that he passed the appointing authority’s comprehensive background investigation and was extended a conditional offer of employment. The appellant further asserts that the incidents in the record in and of themselves did not prevent the appointing authority from extending a conditional offer of employment. With regard to the behavioral record, the appellant maintains that there was no physical altercation with the Police Officer. The appellant was outside the bar, having a smoke, and waiting for his sister. The appellant contends that it was crowded and noisy and that he could not hear what the Police Officer told him to do.2 The appellant further contends that his one DWI arrest, when considered in the light of the praise and commendations he received as a Marine, “should not in any way be considered a basis to reject” him for employment as a Fire Fighter. Moreover, the appellant explains his criminal mischief charge occurred when he had a verbal altercation with his ex-wife over her infidelity while serving her with divorce papers. He lost his temper and threw his wife’s cellphone, which struck her. The appellant states that he regrets losing his temper.

1 However, the appellant generally functioned satisfactorily with “routine behavior, self-care, and conversation normal.” 2 It is noted the appellant indicated that he ultimately pled guilty to a petty disorderly persons offense and was fined $350.

With regard to his 30% disability rating from the VA, the appellant presents that the U.S. Equal Employment Opportunity Commission states, in pertinent part, that an individual with a disability, as evidenced by the appellant’s VA rating, is qualified for employment in the position at issue as long as the individual meets the employer’s requirements for the job, such as education, training, employment experience, skills or license, and is able to perform the job’s essential or fundamental duties with or without accommodation. The appellant argues that his experience as a certified volunteer Fire Fighter, along with his continued activities as a former Marine in Marine Corps activities, “conclusively establishes” that he will be an “exceptional” Hackensack Fire Fighter. The appellant notes that under New Jersey Civil Service law, eligible candidates are awarded disabled veterans preference and placed ahead of veterans and non-veterans on resulting employment lists.

Additionally, the appellant maintains that the Panel, in making its Report and Recommendation, failed to consider the significance of the letters of recommendation submitted on his behalf. These letters support the appellant’s many strengths relating to social competence, team orientation, conflict management abilities, leadership, conscientiousness and dependability, impulse control and attention to safety, integrity and ethics, emotional regulation and stress tolerance, decision making and judgment, assertiveness/persuasiveness, and the absence of any signs of substance abuse and other risk-taking behavior. The appellant argues that the Report and Recommendation of the Panel “effectively forecloses” Fire Fighter applicants “solely because of an existing disability rating.” Finally, the appellant cites In the Matter of Anastasia Vey, 124 N.J. 534 (1991) and 135 N.J. 396 (1994) and states that, in accordance with Vey, that the psychological report must demonstrate by “professionally acceptable methods” that psychological tests that were administered were “predictive of or significantly correlated” with elements of work behavior. The appellant argues that the Panel’s Report and Recommendation does not. The appellant submits that he would be “a welcome addition” to Hackensack’s Fire Department and that the Panel’s Report and Recommendation should be rejected and his name restored to the subject eligible list.

In its cross exceptions, the appointing authority, represented by Raymond R. Wiss, Esq. asserts that the Panel properly considered the appellant’s passing of its comprehensive background report. The appointing authority notes that passing a background investigation does not automatically mandate the passage of the subsequent psychological evaluation and contends that the appellant mistakenly relies on passing the background investigation prior to being found psychologically fit as a reason to grant his appeal. It further notes that factors in the behavioral record, when viewed by a licensed psychologist in conjunction with other factors gleaned during a psychological examination which were never considered by the appointing authority may very well, as in this matter, lead to a finding of psychological unfitness for duty.

Appointing authority's argumentWith regard to the behavioral record, the appointing authority contends that the Panel’s conclusions are not arrived at in a vacuum and, instead, are viewed in light of other factors, including but not limited to, the Panel’s assessment of the appellant’s credibility. The appointing authority agrees that the Panel correctly found that the appellant’s responses concerning various instances in the behavioral record raises concerns regarding his truthfulness and judgment. The Panel was presented with sufficient evidence to support its conclusions. With respect to the appellant’s VA disability rating and failure to consider letters of support, the fact that the Panel made a finding with which the appellant may disagree is no basis to conclude that such letters were not considered. However, the appointing authority argues that almost all of these “letters of recommendation” are from individuals “who apparently never worked with [the appellant].” As such, the observations and recommendations of these individuals “provide little, if any, probative value to the issues in question.”

The appointing authority further argues that the Panel’s findings are in accordance with the provisions of Vey, supra, as are the findings of its evaluator, Dr. Buhler. Dr. Buhler stated the purpose of her evaluation was to determine the appellant’s “psychological suitability for the role of [Fire Fighter].” To this end, Dr. Buhler specified the factors she used related to determining such suitability “are the most widely accepted/and commonly used among police and public safety psychologists.” Dr. Buhler demonstrated by “professionally accepted methods” that her findings regarding the appellant were “significantly correlated” to those characteristics/elements of work behavior necessary to successfully function as a Fire Fighter. The appointing authority further argues that the appellant’s own evaluator, Dr. Gallina, neither criticized nor questioned either the factors or the psychological tests considered and utilized in Dr. Buhler’s report. For the foregoing reasons, the appointing authority agrees with and supports the conclusions of the Panel’s Report and Recommendation and urges the Civil Service Commission (Commission) to adopt the same.

CONCLUSION

The Job Specification for the title of Fire Fighter is the official job description for such positions within the Civil Service system. According to the specification, Fire Fighters are entrusted with the safety and maintenance of expensive equipment and vehicles and are responsible for the lives of the public and other officers with whom they work. Some of the skills and abilities required to perform the job include the ability to work closely with people, including functioning as a team member, to exercise tact or diplomacy and display compassion, understanding and patience, the ability to understand and carry out instructions, and the ability to think clearly and apply knowledge under stressful conditions and to handle more than one task at a time. A Fire Fighter must also be able to follow procedures and perform routine and repetitive tasks and must use sound judgment and logical thinking when responding to many emergency situations. Examples include conducting step-by-step searches of buildings, placing gear in appropriate locations to expedite response time, performing preparatory operations to ensure delivery of water at a fire, adequately maintaining equipment and administering appropriate treatment to victims at the scene of a fire, e.g., preventing further injury, reducing shock, and restoring breathing. The ability to relay and interpret information clearly and accurately is of utmost importance to Fire Fighters as they are required to maintain radio communications with team members during rescue and firefighting operations.

The Commission has reviewed the Job Specification for this title and the duties and abilities encompassed therein and finds that the psychological traits which were identified and supported by test procedures and the behavioral record relate adversely to the appellant’s ability to effectively perform the duties of the title. In this regard, the Commission notes that the Panel conducts an independent review of all of the raw data presented by the parties as well as the raw data and recommendations and conclusions drawn by the various evaluators prior to rendering its own conclusions and recommendations, which are based firmly on the totality of the record presented to it. The Panel’s observations regarding the appellant’s behavioral history, responses to the various assessment tools, and appearance before the Panel are based on its expertise in the fields of psychology and psychiatry, as well as its experience in evaluating hundreds of appellants for public safety positions.

The Commission finds that the appellant’s exceptions do not persuasively dispute the findings and recommendations of the Panel. It is emphasized that, regardless of whether the appellant passed the appointing authority’s background investigation, the inquiry in this instance is whether the appellant’s background demonstrates that he possesses a psychological trait which would deem him psychologically unfit to perform effectively the duties of the position. In this regard, the negative recommendation finds support in concerns raised by Dr. Buhler regarding the appellant’s history of arrests, poor decision making, impulse control problems and a lack of a full and clear accounting about his background. Initially, of concern was the appellant’s inability to communicate with a Police Officer which led to an arrest. As noted by the Panel, Fire Fighters often have to communicate effectively in noisy and stressful situations. Of further concern was the appellant’s inconsistency in reporting the number of beers he consumed prior to his DWI. The Commission concurs with the Panel that the appellant demonstrated poor judgment in that incident and now it is unclear whether or not he is being truthful. Likewise, the Commission concurs with the Panel that the appellant again used poor judgment during the conflict with his wife which led to his arrest and notes that the situation was further complicated when he did not comply with police requests to move his vehicle, yet another example of the appellant’s exercise of poor judgment.

Of additional concern to the Commission is the VA’s findings. The appellant argues that the Report and Recommendation of the Panel “effectively forecloses” Fire Fighter applicants “solely because of an existing disability rating.” However, it is not the disability rating that precludes the appellant from the subject position. It is the basis for that rating. The appellant was rated with a 30% disability rating with the VA based on difficulty in adapting to stressful circumstances, difficulty adapting to a work-like setting, anxiety, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and chronic sleep impairment. These characteristics are unsuitable for an individual seeking employment as a Fire Fighter. As set forth in the Job Specification, a Fire Fighter must have the ability to work closely with people, including functioning as a team member, to exercise tact or diplomacy and display compassion, understanding and patience, the ability to understand and carry out instructions, and the ability to think clearly and apply knowledge under stressful conditions and to handle more than one task at a time. Additionally, the Commission shares the Panel’s concern that the appellant was unclear about his VA diagnosis, the medications he was taking and the reasons for them, and the action he took to follow-up regarding the medications he had taken. The Commission finds that the appellant’s history of poor judgment in several significant incidents, as well as his inconsistent and at times vague communication with the Panel, is not conducive to an individual seeking employment as a Fire Fighter.

Furthermore, although the appellant argues that administrative agencies must articulate the standards and principles that govern discretionary decisions in as much detail as possible, citing Vey, supra, the Commission notes that the reports of Dr. Buhler and the Panel both utilized “professionally accepted methods,” and that their negative findings regarding the appellant were “significantly correlated” to those characteristics/elements of work behavior necessary to successfully function as a Fire Fighter. In addition, the Commission also conducts an independent review of the Report and Recommendation of the Panel prior to rendering its own conclusions, which are based firmly on the totality of the record presented to it. In this regard, the Commission agrees with the appointing authority’s assessment of the appellant’s letters of recommendation, which are primarily anecdotal in nature and defers to the expertise of the Panel. Moreover, contrary to the appellant’s arguments, the Panel did in fact consider the letters of recommendations, as it noted its review of those documents in its report, albeit not to the satisfaction of the appellant. Under these circumstances, the Commission finds that the appellant is not psychologically suitable for employment as a Fire Fighter at this time.

Therefore, having considered the record and the Panel’s Report and Recommendation issued thereon and the exceptions filed on behalf of the appellant, the cross exceptions filed on behalf of the appointing authority, and having made an independent evaluation of the same, the Commission accepts and adopts the findings and conclusions as contained in the Panel’s Report and Recommendation and denies the appellant’s appeal.

ORDER

The Commission finds that the appointing authority has met its burden of proof that A.D. is psychologically unfit to perform effectively the duties of a Fire Fighter and, therefore, the Commission orders that his name be removed from the subject eligible list.

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