In the Matter of Sybil Finney DOP Docket No (Merit System Board, decided March 24, 2004)

Transcription

1 In the Matter of Sybil Finney DOP Docket No (Merit System Board, decided March 24, 2004) Sybil Finney, a former Judiciary Clerk 2 with the Judiciary, Vicinage 8, Middlesex County, appeals the decision of the ADA Coordinator denying her request for a reasonable accommodation. It is noted that the appellant resigned effective December 19, The record indicated that the appellant suffers from chronic vasomotor rhinitis and sciatic pain. The appellant s personal physicians, Drs. Chandra Loke and Marygrace Zetkulic, advised that because of her conditions, the appellant should be restricted from leaving the building, as the temperature changes would exacerbate her vasomotor rhinitis. The appellant also should be restricted from lifting and transporting any load. It is noted that the physicians later clarified load to mean anything more than five pounds. Based on these restrictions, the appellant requested an accommodation in the form of Duties that are performed inside only and do not require outside exposure as the vasomotor rhinitis is exacerbated with changes in temperature... no lifting or transporting any load. However, the appointing authority denied her request, stating that accommodations are only provided to employees who could perform the essential functions of their positions. Since the appellant was assigned in the clerical unit that required her to do the mail function (leaving the building), the appointing authority indicated that she was required to continue her duties. Additionally, it contended that the appellant did not perform any heavy lifting. The appellant appealed to the Merit System Board (Board), contending that she was clearly eligible for an accommodation under the Americans with Disabilities Act (ADA), 42 U.S.C.A et seq. She stated that there were several other employees in her same job title who could easily have rotate[d] the mail pick up and on this basis, her accommodation would not have caused the office hardship. The appellant argued that this duty was not an essential job function since it only comprised less than three percent of her total job function. Moreover, she claimed that she was never advised of this duty upon appointment and was being punished for her disability. In response, the appointing authority, represented by Thomas Russo, Esq., initially argued that the Board did not have jurisdiction to review the instant matter as the State of New Jersey Judiciary has adopted its own policy prohibiting discrimination based on disability, which does not advise employees to seek review with the Board. The policy provides for accommodation requests to go through informal and formal grievance procedures. The appointing authority stated that the ADA Coordinator s determination marked the end of the informal grievance

2 2 process. It claimed the ADA Coordinator then advised the appellant that she may avail herself of the policy s formal grievance procedures, which involves filing a formal complaint with the Vicinage Assignment Judge. The ADA Coordinator also advised the appellant that pursuant to the policy, she may pursue her claim in court or with a civil rights agency, but the appellant failed to do so. Moreover, the appointing authority argued that the Board has previously ruled that it does not have subject matter jurisdiction to review claims brought under the ADA. See In the Matter of Michael Giannetta (MSB, decided May 23, 2000); In the Matter of John Soden (MSB, decided September 10, 2002); In the Matter of German Naranjo (MSB, decided February 27, 2002), reversed on other grounds, Docket No. A T5 (App. Div. January 23, 2004). Additionally, the appointing authority contended that even assuming that the Board has jurisdiction, the ADA Coordinator s decision was not the final decision of the appointing authority and the decision of the Assignment Judge should be considered the final determination. Therefore, it argued that since the Board takes appeals only from final decisions, it should not entertain the appellant s appeal. Furthermore, the appointing authority claimed that the appellant s appeal which was solely grounded in the ADA should be dismissed on the principles of sovereign immunity. It stated that this immunity shields it from private suits, such as this one, alleging federal causes of action. Nevertheless, the appointing authority contended that the appellant s appeal should be dismissed on substantive grounds because it lacks merit. In this regard, it argued that the appellant did not establish that she is an individual with a disability within the meaning of the ADA. The appellant did not demonstrate that her conditions caused an impact on her major life activities which would then deem her disabled. The appellant also failed to show that her request was reasonable. In this regard, the appointing authority asserted that to grant the appellant s request, not to go outside the building to collect and distribute the mail and to carry the mail, would have effectively eliminated essential job duties of a Judiciary Clerk 2. This would have constituted an undue hardship for the employer. The appointing authority claimed that it advised the appellant of her mail duties during the time of her interview for the position and she received a copy of the job description for the position which explicitly references the mail function. The appellant did not advise the appointing authority of her disability at the time of the interview. Moreover, the appointing authority stated that the appellant s physicians asked that she not be required to lift or transport any heavy loads, which was defined by her physicians as a load exceeding five pounds. The appointing authority submitted that most of the mail encountered by the appellant s unit is less than five pounds. Thus, it claimed that this request was a non-issue. In support of its response, the appointing authority submitted certifications outlining the above contentions from Natalie Myers, the ADA Coordinator, and Joseph Lynch, an Assistant Civil Division Manager.

3 3 In response, the appellant claimed that the reason she submitted her appeal to the Board was because the ADA Coordinator told her to send her appeal directly to Trenton. The ADA Coordinator did not advise the appellant that the appointing authority was willing to reevaluate its decision. In any event, the appellant contended that it would be useless to seek review of the determination with the same Vicinage. With regard to her request, the appellant emphasized that her physicians did not request that her duties be completely taken away, but that they be modified. She stated that staying inside is not an unreasonable request especially when many of her co-workers with the same title or in lower titles are not made to go to the post office to pick up judiciary mail. Further, the appellant reiterated that she was made to carry heavy loads and pointed to dates that she was required to carry more than five pounds of mail. She also said that the metal cart she had to push to transport the mail weighs approximately 20 to 25 pounds. Moreover, the appellant contended that the ADA Coordinator did not have the medical expertise to evaluate her claim. In support of her appeal, the appellant submitted medical documentation and pictures of herself with the mail cart and a Unites Stated Postal Service mail bin being weighed. It appeared that the mail bin and its contents weighed 6.5 pounds. With regard to the medical documentation, Dr. Zetkulic reiterated her prior diagnosis and stated that the chronic vasomotor rhinitis and the medicine to treat it can permanently damage the appellant s vocal cords. The appellant is a vocal instructor. Therefore, Dr. Zetkulic stated that an accommodation for the appellant should be made to allow her to do her job without leaving the building. Finally, the appellant stated that since filing her request, the appointing authority treated her unfairly by switching her to another team. In response, the appointing authority argued that the percentage of time spent on a task is not dispositive of whether the task is an essential function. It stated that the mail pick up and distribution tasks are critical to the operations of the appellant s unit. Moreover, the appointing authority indicated that the appellant failed to realize that her co-workers were busy performing other tasks when she performed the mail function. It reiterated that from the very start of her employment, the appellant knew that one of the duties of her specific title was picking up mail. The appointing authority noted that the mail carts have been recently replaced with newer and lighter carts. Moreover, the appellant had the assistance of another co-worker when she performed the function and mail was not picked up everyday. With regard to the pictures, the appointing authority questioned their authenticity and veracity. It stated that there was no extrinsic proof that the mail bin shown in the photograph contained mail addressed to the Vicinage. Additionally, the pictures and the dates that the appellant claimed she transported more than five pounds of mail were not certified to by anyone. Even assuming the truth and accuracy of what the appellants presented, the appointing authority maintained that the appellant was free to break down stacks of mail into

4 4 smaller bundles and make several trips to the post office or between Vicinage buildings to reduce the cart load. Moreover, the appointing authority argued that the appellant s appeal should be dismissed based on the appellant s conscious decision not to take medicine for her vasomotor rhinitis. Regarding the appellant s explanation as to why she filed an appeal with the Board, the appointing authority submitted a certification from the ADA Coordinator stating that she did not advise, direct or suggest that the appellant file an appeal with the Department of Personnel. With regard to the appellant s accusation of unfair treatment, the appointing authority submitted a certification from John Pushko, an Assistant Civil Division Manager, stating that he reassigned the appellant to a different team in good faith. He explained that the reassignment was made to reduce the backlog of cases. Additionally, the appointing authority requested that the appellant s appeal be dismissed as moot on the basis that she resigned from her position effective December 19, In response, the appellant maintained that the Board should nevertheless render a decision, since she filed her accommodation request and appealed the denial when she was employed with the appointing authority. Moreover, she stated that in the event that she returns to her position, a decision would be rendered and maintained in her personnel file. The appellant noted that one of the primary reasons she resigned was due to the appointing authority s failure to accommodate her. 1 CONCLUSION Initially, the ADA is a federal statute designed to eliminate discrimination against individuals with disabilities. 42 U.S.C.A State courts have concurrent jurisdiction with federal courts over ADA claims; however, existence of such concurrent jurisdiction does not alter the fact that ADA actions are federal question cases. Jones v. Illinois Cent. R. Co., 859 F. Supp (N.D. Ill. 1994). Specifically, the court in Jones held that: Enforcement of ADA s prohibitions against handicap discrimination expressly draws its sustenance from Title VII of the Civil Rights Act of 1964 as amended (42 U.S.C. 2000e to 2000e-17) -- as ADA s 42 U.S.C (a) specifies: The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 1 N.J.A.C. 4A:2-6.1(d) allows an employee to appeal a resignation in good standing if the resignation was the result of duress or coercion. However, in this case, the appellant has not appealed her resignation, nor does the record evidence that the resignation was the result of duress or coercion on the appointing authority s part.

5 5 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section of this title, concerning employment. And in Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed. 2d 834 (1990), a unanimous Supreme Court has held that the state courts have concurrent jurisdiction with the federal courts for the adjudication of Title VII claims brought by employees under 42 U.S.C. 2000e-5(f). That being so, it necessarily follows that the state courts have concurrent jurisdiction over ADA claims as well. Id. at See also N.J. Citizen Action v. Riviera Metal Corp. 296 N.J. Super. 402, 413 (App. Div. 1997). Moreover, nowhere in the ADA or in relevant case law is jurisdiction over ADA claims extended to state agencies. In this particular case, the sole issue in the appellant s claim was whether the ADA had been violated. Specifically, the appellant, a former Judiciary Clerk 2 with the Judiciary, Vicinage 8, Middlesex County, appealed the decision of the ADA Coordinator denying her request for a reasonable accommodation pursuant to the ADA. The appellant claimed that she suffers from medical conditions which necessitate limitations on lifting and leaving the building during the workday. The appointing authority denied her request for accommodation, contending that she did not perform any heavy lifting and that leaving the building was a required part of her job duties. The appellant s appeal to the Board deals exclusively with the accommodation issue and does not involve a related disciplinary action. In this regard, the Board may review ADA issues collaterally, when they are implicated in an appeal properly before the Board, such as a disciplinary action. See Matter of Allen, 262 N.J. Super. 438, 444 (App. Div. 1993); Soden, supra (noting that jurisdiction was proper when the ADA was implicated as a defense to a disciplinary removal properly before the Board); Giannetta, supra (the Board may apply the ADA in deciding an issue concerning removal from an eligible list). However, where, as here, the appeal is based exclusively upon an alleged ADA violation, the Board lacks jurisdiction. Additionally, the Board can hear matters in which discrimination is alleged when those matters are filed by certain State employees pursuant to the New Jersey State Policy Prohibiting Discrimination, Harassment, or Hostile Environments in the Workplace. The State Policy, codified at N.J.A.C. 4A:7-3.1 et seq., provides procedures for internal complaints alleging discrimination in the

6 6 workplace. These procedures include the right to appeal a final determination to the Board. N.J.A.C. 4A: However, the Board does not have jurisdiction over this particular matter through the State Policy. The State Policy is a directive of the Governor, who is the head of the Executive Branch of State government. See Executive Order 106 (1999) (establishing the Policy and making it applicable to all State departments, commissions, State colleges, and authorities ). As codified in the Administrative Code, the State Policy repeats the language used in the Executive Order and specifically states that it applies to all employees and applicants for employment in State departments, commissions, State colleges, and authorities. N.J.A.C. 4A:7-3.1(a)(1). The Judiciary was not named because it was recognized that the State Policy could be applied only to employees within the Executive Branch. An attempt to impose the power vested in the Executive Branch over the Judicial Branch raises serious constitutional issues. See New Jersey State Constitution, Article III (the powers of government are divided between three separate branches of government); Busik v. Levine, 63 N.J. 351, 373 (1973) ( A coordinate branch should not invite a test of strength by proclamation. Our form of government works best when all branches avoid staking out the boundaries which separate their powers. ) The Judiciary s personnel practices are governed by Title 11A and the rules promulgated thereunder, as set forth generally in N.J.S.A. 2B:11-5. The intent of Title 2B was to provide continued civil service protection to employees of the Judiciary. See L. 1994, c. 162, 5. This legislative action is not in conflict with the constitutional principle of separation of powers. The Supreme Court has the authority to accept and adopt legislative arrangements affecting its employees. Passaic County Probation Officers Association v. County of Passaic, 73 N.J. 247, 255 (1977); see also Knight v. City of Margate, 86 N.J. 374, (1981). In CWA Local 1044 v. Chief Justice, et al., 118 N.J. 495, 501 (1990), the Court held that: this Court s policy [is] that when a statute has an impact on our administration, we will follow it unless it interferes with the effective functioning of the courts. And so we have done. The occasions when we have concluded that our exclusive responsibility to administer the judicial system calls for a result different from that ordained by the Legislature are few. In this spirit of comity, we will continue to defer to the Legislature. Although the Judiciary has agreed to accept the application of Title 11A to certain of its employees, nothing in N.J.S.A. 2B:11-5 suggests that the Judiciary also intended to comply with a policy adopted by the Governor expressly applicable only to the Executive Branch. The Governor s power to issue executive orders must rest on either a statutory or constitutional basis. Worthington v. Fauver, 88 N.J. 183, 207 (1982); DeRose v. Byrne, 135 N.J. Super. 273, 288 (Ch. Div. 1975), vacated

7 7 as moot, 139 N.J. Super. 132 (App. Div. 1976). The Governor is authorized to issue executive orders under his constitutional authority to supervise the administration of the Executive Branch. In addition, executive orders should be consistent with statutory policy and not encroach upon the prerogatives of other branches. See Communications Workers v. Florio, 130 N.J. 439, 456 (1992); Assoc. of N.J. State Col. Fac. v. Bd. of Higher Ed., 112 N.J. Super. 237 (Law Div. 1970); Kenny v. Byrne, 144 N.J. Super. 243, (App. Div. 1976), aff d, 75 N.J. 458 (1978). With regard to the State Policy, the authority underlying that executive order is grounded in the Governor s power to supervise employees within the Executive Branch, and to insure efficient and honest performance by those employees under his supervision. Kenny v. Byrne, 144 N.J. Super. at The State Policy furthers and is consistent with the purpose of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. Communications Workers v. Florio, 130 N.J. at 456. The State Policy does not on its face encroach upon the prerogatives of the other branches of government, id., provided that the Policy is interpreted as applying only to employees of the Executive Branch. The executive order in question was not intended to apply, and cannot be applied, to the Judiciary. Its requirements likewise cannot be extended to the Judiciary by way of Merit System regulations. As noted above, the Judiciary has its own policy prohibiting discrimination and providing procedures for compliance with the ADA. Accordingly, the appellant s appeal is dismissed for the Board s lack of jurisdiction. ORDER Therefore, it is ordered that this appeal be dismissed for the Board s lack of jurisdiction. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.