In the Matter of Karol Hennessey DOP Docket No. 2005-1890 (Merit System Board, decided February 23, 2005) Karol Hennessey, a permanent part-time Omnibus Operator with the County of Gloucester, represented by Richard A. Dann, President, CWA Local 1085, petitions the Merit System Board for interim relief of her immediate suspension, effective November 1, 2004. The relevant facts are as follows: The petitioner was on a leave of absence from her position from August 2004 through October 28, 2004, due to a personal medical condition. In a note dated October 25, 2004, Dr. Melissa Ann Bauer-Sheldon, the petitioner s personal physician, reported that the petitioner was able to return to work on October 29, 2004 with the restrictions of no heavy lifting, no operating buses due to thoracic outlet syndrome. 1 Upon her return to work, the appointing authority ordered the petitioner to undergo an evaluation by a County physician to ascertain her ability to perform her job duties as an Omnibus Operator. This evaluation was scheduled for November 1, 2004. However, Colleen Boucher, the County s physical therapist, notified the appointing authority that she was unable to complete an evaluation because the petitioner s heart rate during the examination was above safe levels. Boucher also noted that the petitioner indicated that she did not feel safe driving a bus and [she] may kill somebody. Her examination was, thus, rescheduled for November 9, 2004. In a report issued on that date, Boucher indicated that, while the petitioner might have been able to return to her position with certain restrictions, it was difficult to predict whether [the petitioner] can sustain the Sedentary level of work for an eight-hour day. Boucher also noted that the petitioner s self-limiting behavior presented an obstacle to making a determination regarding her ability to continue her job duties. Due to the inconclusive nature of this report, the appointing authority scheduled the petitioner for a second evaluation by a County physician on December 7, 2004. The record reflects that the petitioner refused to participate in any further evaluations. It is noted that the petitioner was prohibited from returning to work from November 1, 2004 through November 28, 2004. She was permitted to return to work performing clerical duties on November 29, 2004. At no time did the petitioner receive a Preliminary Notice of Disciplinary Action (PNDA) or a departmental hearing regarding the appointing authority s refusal to permit her to return to her position. In the instant petition for interim relief, the petitioner argues that she was improperly immediately suspended without the opportunity to review and respond to the charges against her as required by N.J.A.C. 4A:2-2.5 and Cleveland Board of Education v. Loudermill, 47 U.S. 532 (1985). The petitioner asserts that, upon her return from a leave of absence on October 29, 2004, she requested a reasonable accommodation for her orthopedic condition. Specifically, the petitioner requested that she be permitted to operate a minivan, rather than an omnibus, upon her return to work in light of the restrictions recommended by her physician. The petitioner asserts that the appointing 1 The record reflects that this condition was unrelated to the petitioner s leave of absence.
authority s refusal to allow her to return to work constituted an immediate suspension, and she relies on In the Matter of Anthony Recine (MSB, decided March 10, 1998) and In the Matter of Thomas Hascup (MSB, decided September 29, 1998) in support of this contention. With regard to the factors set forth in N.J.A.C. 4A:2-1.2(c), the petitioner contends that she is likely to succeed on the merits, since the appointing authority barred her from returning to work without the requisite notice and departmental hearing. She also asserts that she is in danger of irreparable harm in that she was suspended without pay from November 1, 2004 through November 28, 2004. Although she was permitted to return to work to perform clerical duties on November 29, 2004, the petitioner asserts that she was only permitted to work 25 hours per week in this position, as opposed to the 25 to 30 hours she routinely worked as an Omnibus Operator. Thus, in addition to a complete loss of salary during the period of time she was without pay, she claims that she continues to suffer financially as a result of the reduction in hours and resultant wages. Moreover, she argues that, as her salary is a routine business expense for the appointing authority, there is no substantial harm if ordered to compensate her fully. Finally, the petitioner asserts that the public interest is served by requiring the appointing authority to abide by Merit System law and regulations. In response, the appointing authority, represented by Susan M. Leming, Esq., argues that N.J.A.C. 4A:2-2.5 is inapplicable to the instant matter. In this regard, the appointing authority claims that the petitioner was not suspended at any time for disciplinary reasons. Rather, the appointing authority was exercising its statutory right and ethical obligation to ascertain the petitioner s fitness to resume her duties as an Omnibus Operator. The appointing authority asserts that the instant matter is instead governed by N.J.A.C. 4A:6-1.4(g), which provides that an appointing authority may require an employee to be examined by a physician designated and compensated by the appointing authority as a condition of the employee s continuation of sick leave or return to work. Moreover, the appointing authority notes that it attempted to minimize the impact of its requirement that the petitioner undergo a medical evaluation by immediately scheduling the evaluation and permitting her to return to work in a clerical position when the evaluation proved inconclusive. The appointing authority also emphasizes that the petitioner has repeatedly refused to undergo further evaluations to determine her ability to return to her duties as an Omnibus Operator. In response to the appointing authority s submission, the petitioner indicates that the November 1, 2004 examination is not properly characterized as an evaluation of her fitness to return to work, since she returned to work on October 29, 2004 and worked again for part of the day on November 1, 2004. The petitioner also notes that N.J.A.C. 4A:6-1.4(g), upon which the appointing authority relies, is only applicable to employees in State service. Thus, as an employee of a local jurisdiction, this regulation is inapplicable to the petitioner. Finally, the petitioner presents a note from Dr. Bauer- Sheldon, dated November 1, 2004, which indicates that she was able to return to work, provided that she was not required to lift over five pounds. 2 2 There is no indication in the record as to whether the petitioner presented this note to the appointing authority.
In response, the appointing authority asserts that the purpose of the petitioner s medical evaluation was to assess her ability to return to work as an Omnibus Operator, in light of the restrictions recommended by her personal physician in the October 25, 2004 note. While the appointing authority concedes that the petitioner returned to work on October 29, 2004, it notes that she did not perform the duties of an Omnibus Operator on that date. The appointing authority also argues that the instant matter is distinguishable from the facts presented in Recine, supra, and Hascup, supra, in that those cases involved employees who were actively working in their regular positions when they were separated from employment. In contrast, the appointing authority asserts that the petitioner was not actively performing the duties of her position as an Omnibus Operator at the time she was ordered to undergo a fitness for duty evaluation. Finally, although the appointing authority recognizes that N.J.A.C. 4A:6-1.4(g) is inapplicable to local employees, it contends that local appointing authorities still have the ability to ascertain an employee s ability to perform his or her job duties. CONCLUSION Initially, the Board notes that, while N.J.A.C. 4A:6-1.4(g) applies only to employees in the State service, local governments may look to State regulations for guidance. See In the Matter of Thomas Tyler (MSB, decided October 22, 2003). Thus, the appointing authority was entitled to obtain medical verification before returning the petitioner to work as an Omnibus Operator. In the instant matter, the record demonstrates that the appointing authority prohibited the petitioner from performing her regular duties as an Omnibus Operator, based on the recommendation of her personal physician, Dr. Bauer-Sheldon. In response to Dr. Bauer-Sheldon s October 25, 2004 note, the appointing authority immediately scheduled the petitioner for a medical evaluation to ascertain her precise functional limitations on November 1, 2004. When the petitioner was unable to safely participate in the November 1, 2004 evaluation, it was rescheduled for November 9, 2004. According to the November 9, 2004 report, the petitioner s self-limiting behavior during the evaluation made it difficult for Boucher to accurately assess her ability to perform her work duties. However, Boucher noted that the petitioner was limited in several functions required in her position. For example, while the petitioner s job as an Omnibus Operator required constant sitting and frequent stair climbing, the petitioner s ability to engage in these activities was limited. Because Boucher s report was inconclusive, the appointing authority requested that the petitioner undergo a second evaluation to ensure that she was safely able to perform her job duties. To date, the petitioner has refused to take part in any further examinations by County physicians. While the petitioner has submitted a brief note from Dr. Bauer-Sheldon, dated November 1, 2004, indicating that her only restriction was the inability to lift over five pounds, it cannot be ignored that, on that same date, the petitioner voiced concerns to Boucher regarding her ability to safely operate an omnibus. Specifically, the petitioner commented that, if required to operate an omnibus, she may kill somebody. The appointing authority s action in precluding the petitioner from returning to her position as an Omnibus Operator was reasonable based on Dr. Bauer-Sheldon s recommendation, as well as Boucher s assessment that the
petitioner was limited in her ability to sit for long periods or to climb stairs, required activities of her position. Further, the petitioner does not dispute that she was and remains unable to perform the duties of an Omnibus Operator. In essence, by not presenting definitive medical documentation demonstrating her ability to safely perform her job duties and by refusing to participate in any further medical evaluations, the petitioner has acquiesced to the situation. In the absence of any definitive evidence that the petitioner is medically able to safely perform the duties of an Omnibus Operator, the Board will not require the appointing authority to return the petitioner to this position. In addition, even if the Board found that the appointing authority immediately suspended the petitioner without proper notice and an opportunity for a departmental hearing, no remedy would be available for such procedural violations. In this regard, it is settled that an employee is not entitled to back pay for any period of time during which she was unable to work. See In the Matter of Joseph Hornick (MSB, decided January 29, 2003); In the Matter of Carl Underwood (MSB, decided July 10, 2001); In the Matter of Charles Diehm (MSB, decided October 14, 1998); In the Matter of Andrew Ross (MSB, decided January 2, 1996). In the instant matter, since the petitioner admittedly is unable to safely perform the duties of her position as an Omnibus Operator, she would not be entitled to any compensation for the time period she was precluded from working in this position. Finally, the Board notes that the petitioner has placed the appointing authority in a difficult position through her refusal to consent to a second medical evaluation by a County physician. Due to the inconclusive nature of Boucher s November 9, 2004 report, the appointing authority does not possess adequate information upon which to base a final decision regarding the petitioner s future work status. The appointing authority cannot maintain the status quo indefinitely, and it clearly would not be in the public interest to return the petitioner to a position as an Omnibus Operator when there are legitimate concerns regarding her ability to safely perform the duties of that position. Therefore, within 30 days of receipt of this decision, the appointing authority shall schedule the petitioner for a further medical evaluation by a County physician, so that a definitive determination may be made regarding the petitioner s status. In the event that the petitioner continues to refuse to participate in any further evaluation, the appointing authority may wish to pursue disciplinary action, either in the form of the petitioner s removal or permanent demotion to a clerical position. Further, should conclusive medical documentation show that the petitioner is unable to perform her regular job duties, and she continues to object to her placement in a clerical position, disciplinary action will be necessary in order to continue to preclude the petitioner from working as an Omnibus Operator. ORDER Therefore, it is ordered that the petitioner s request for interim relief be denied. It is also ordered that the appointing authority schedule the petitioner for further medical evaluation by a County physician within 30 days of receipt of this decision.