IN THE MATTER OF THALIA TRETSIS, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3682-19
IN THE MATTER OF THALIA
TRETSIS MIDDLESEX
COUNTY, SHERIFF'S OFFICE.
____________________________
Argued February 3, 2022 – Decided February 15, 2022
Before Judges Haas and Mawla.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2018-2711 and 2018-1572.
Catherine M. Elston argued the cause for appellant
Thalia Tretsis.
Benjamin D. Leibowitz, Senior Deputy County
Counsel, argued the cause for respondent Middlesex
County Sheriff's Office (Thomas F. Kelso, Middlesex
County Counsel, attorney; Benjamin D. Leibowitz, on
the brief).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Craig S. Keiser, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Appellant Thalia Tretsis appeals from the May 1, 2020 final
administrative determination of the Civil Service Commission (Commission)
removing her from her position as a sheriff's officer with the Middlesex County
Sheriff's Office (County), but modifying that removal to a resignation in good
standing. The Commission adopted the findings of fact and conclusions of law
from the initial decision of Administrative Law Judge (ALJ) Sarah G. Crowley,
who found appellant could not perform her duties at the time of her termination
due to a knee injury from which she could not recover. See N.J.A.C. 4A:2-
2.3(a)(3) (permitting an employer to remove an employee for "[i]nability to
perform duties[.]"). We affirm.
Maureen Thompson, the County's employee benefits specialist, testified
that appellant injured her right knee when she fell on ice in her job-site parking
lot on March 6, 2015. Thompson processed appellant's workers' compensation
claim for this incident. Between March and August 2015, appellant treated with
two orthopedic doctors. She then returned to work on temporary light duty and
later resumed her full responsibilities.
Thompson stated appellant left work again on unpaid leave between June
and December 2016 due to personal unrelated medical issues. When appellant
complained about continuing issues with her knee, Dr. Gregory Gallick took
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over her case. Gallick qualified as an expert in orthopedic medicine at the Office
of Administrative Law (OAL) hearing. After he reviewed appellant's medical
records, Gallick performed arthroscopic surgery on her knee on January 5, 2017.
He then prescribed medication and physical therapy.
Gallick testified that patients with similar conditions usually return to
light duty in a short period of time and are able to resume their full duties within
three months. However, appellant told Gallick she still suffered significant pain
a few weeks after the surgery, and did not clear her for light duty until mid-
February. When Gallick next saw her in March, appellant stated she was still in
pain, had trouble on stairs, was unable to run, and had weakness in her knee.
Appellant repeated these complaints when Gallick examined her in April and
May 2017.
Because appellant had not recovered as expected, Gallick recommended
that she undergo a "Functional Capacity Examination" (FCE). Monica A.
Lynch, the Director of Kinematic Consultants, Inc. (Kinematic), 1 testified on
behalf of the County and qualified without objection as an expert in FCEs.
1
Kinematic is a private company and is not affiliated with the County.
According to Lynch, who had twenty years of experience at the company,
Kinematic performs FCEs on employees from a number of law enforcement
agencies and other public entities.
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Lynch explained that an FCE tests an employee's ability to perform tasks
associated with their jobs. By using computerized technology, the FCE
measures such skills as an employee's strength, balance, and ability to move,
lift, and pull. Each test is repeated a number of times to obtain an accurate
representation of the individual's abilities.
Kinematic performed the FCE on appellant on June 8, 2017. After
reviewing the results, Gallick found they confirmed his determination that
appellant could not perform the full duties of a sheriff's officer. Appellant told
Gallick she "did not feel comfortable going back to her regular job" because she
had pain and weakness in her knee and was unable to run. The FCE supported
these complaints and also showed that appellant's ability to lift over thirty-five
pounds was compromised. Therefore, Gallick opined that appellant had reached
her "maximum medical improvement" (MMI) level and could not perform her
required duties. 2
On June 27, 2017, Thompson attended an employee status conference with
appellant to review the FCE. Appellant asked the county to send her to another
2
Thompson and Undersheriff Kevin Harris testified about the full range of
duties a sheriff's officer performed. Harris stated there was no permanent light
duty available for sheriff's officers.
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doctor for a second opinion. The County agreed and arranged with its workers'
compensation carrier to have Dr. David Epstein examine appellant. Epstein
qualified as an expert in orthopedic surgery and testified at the hearing.
On July 13, 2017, Epstein evaluated appellant. She told him she was still
having pain and discomfort in her knee. He recommended gel injections, and
with appellant's consent, the first injection occurred on August 15, 2017.
However, when Epstein saw appellant again on September 7, 2017, she still
complained of knee pain. Epstein then recommended another FCE. 3
Kinematic conducted this FCE on September 18, 2017. Lynch testified
appellant still had a deficit in her balance on her right side. She failed to meet
the minimum requirements for the strength test, which also measured her
diminished ability to lift and pull. Appellant continued to complain of pain in
her knee, which worsened when bending, walking, and standing. According to
Lynch, the FCE results indicated that appellant was only able to perform light
duty work.
Gallick reviewed the results of the September FCE and Epstein's notes.
Gallick testified that a patient's MMI is reached within three or four months. In
3
Epstein stated he did not recommend another injection because appellant still
experienced pain after the first one.
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appellant's case, her surgery occurred in January 2017 and she was still
complaining of pain in September 2017. Therefore, Gallick opined appellant
had reached her MMI and could not perform the required duties of a sheriff's
officer.
Epstein also reviewed the September FCE. According to Epstein, the
results showed that appellant had significant limitations and continued to
complain of pain. Like Gallick, Epstein opined appellant had reached full MMI
and was unable to perform her full duties.
Harris testified that he is responsible for disciplining employees. After
receiving the September FCE, Harris reviewed appellant's record and
determined that her physical limitations prevented her from returning to full
duty.
On September 28, 2017, the County served appellant with a Preliminary
Notice of Disciplinary Action seeking to remove her from her position, together
with a summary of the results of the September FCE. Harris testified the County
Sheriff conducted a Loudermill4 hearing for appellant on that same date. 5
4
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). At a
Loudermill hearing, the public employer is required to give the employee "notice
[of] and an opportunity to respond" to the disciplinary charges. Ibid.5
Harris was present at the hearing.
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Following an October 25, 2017 departmental hearing, the County sustained the
charge of inability to perform the essential functions of the job and issued
appellant a Final Notice of Disciplinary Action on November 14, 2017. The
County removed appellant from her position effective that date.
Appellant requested a hearing concerning her removal, and the
Commission transmitted the matter to the OAL as a contested case. The ALJ
conducted a multi-day hearing.
Appellant did not testify at the hearing. She presented the testimony Dr.
Donald R. Polakoff, who qualified as an expert in orthopedic surgery. Polakoff
examined appellant on May 1, 2019 for about forty-five minutes. He opined
that appellant was able to perform the duties of a sheriff's officer beca use she
demonstrated for him that she could hop on one leg at a time, do pushups and
squats, and lift a file box he found in his office over her head while doing three
knee bends. Polakoff did not know how much the box weighed. Polakoff was
unable to provide any expert testimony on the value of FCE reports and did not
offer an opinion on appellant's fitness for duty at any time prior to May 1, 2019,
the date of his examination.
In her March 12, 2020 initial decision, the ALJ concluded appellant was
unable to perform the duties of a sheriff's officer at the time the County
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terminated her employment. In so ruling, the ALJ assessed the credibility of all
the witnesses. She found the County's witnesses, Gallick, Epstein, Thompson
and Harris, credible. However, the ALJ determined that Polakoff, who was
appellant's sole witness, "provided no credible testimony on the issue of
appellant's condition on the date of [her] MMI or about the validity of the FCE
examinations."
In reaching these conclusions, the ALJ explained that Gallick's and
Epstein's evaluations of appellant demonstrated she was not getting any better
following her knee surgery. She still "report[ed] pain and weakness in the knee
and an inability to run."
Gallick's and Epstein's expert diagnoses were supported by the two FCEs
Kinematic conducted in 2017. The ALJ found these "reports and tests
demonstrate[d] . . . that at the time of the appellant's removal she had reached
[MMI] and was unable to perform the duties of a sheriff's officer and was
therefore not fit for duty." The ALJ rejected appellant's contention that
Kinematic may have incorrectly performed the FCEs. The ALJ found Lynch's
credible expert testimony established that Kinematic "used all the normal
protocols on appellant" and Kinematic's "equipment is tested on a regular basis
to ensure the accuracy of the equipment."
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On the other hand, the ALJ found Polakoff's testimony was not credible
because it
did not address appellant's ability to perform her job in
September of 2017, when she was removed from her
position as a sheriff's officer. An appointing authority
is not required to wait three, four[,] or five years for an
individual to return to duty. By the appellant's own
admission to Dr. Gallick and Dr. Epstein, she continued
to experience weakness and limitations in September of
2017.
Therefore, the ALJ concluded "that the appellant had reached [MMI] and was
incapable of performing the duties of her position at the time of her termination."
However, because "the reason for this separation was her inability to perform
her job due to physical injury and not as the result of any conduct or action that
is worthy of discipline," the ALJ modified appellant's termination "to a
resignation in good standing."
The Commission thereafter adopted the ALJ's initial decision as its final
administrative decision and concluded the County was justified in removing
appellant from employment. The Commission also modified appellant's
removal to a resignation in good standing.
Now on appeal, appellant raises the same contentions she unsuccessfully
presented to the ALJ and the Commission. She asserts:
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[I].[6] BY DISREGARDING UNCONTESTED
MEDICAL EVIDENCE ESTABLISHING
THAT [APPELLANT] RECOVERED FROM
HER INJURY AND IS FIT TO RETURN TO
HER EMPLOYMENT AS A SHERIFF'S
OFFICER, THE [COMMISSION] VIOLATED
NEW JERSEY STATUTES, REGULATIONS,
AND APPELLATE COURT RULINGS
INTERPRETING SAME.
[II]. THE [COMMISSION'S] DETERMINATION IS
ARBITRARY, CAPRICIOUS[,] AND
UNREASONABLE AS IT AFFIRMED THE
COUNTY'S ARBITRARY, CAPRICIOUS[,]
AND UNREASONABLE CONDUCT IN
TERMINATING [APPELLANT]. . . . THE
[COMMISSION'S] DETERMINATION IS
FURTHER ARBITRARY, CAPRICIOUS[,]
AND UNREASONABLE AS THE
TESTIMONY OF THE COUNTY'S
WITNESSES WAS NOT CREDIBLE.
A. The County Admitted to Requiring
[Appellant] to Satisfy Physical
Requirements No Other Middlesex County
Sheriff's Officer had to Satisfy.
B. The County Admitted that it Took
Diametrically Opposed Positions Based on
Identical FCE Conclusions.
C. The County Admitted that it Could Not,
and Did Not, Identify Either the Essential
Functions of a Sheriff's Officer's Job
Referenced in the Specifications to the
Charges, or the "DOT" Job Description
6
Appellant's original Point I set forth the applicable "Standard of Review."
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Relied Upon by Kinematics and the
County's Medical Experts.
[III]. THE [COMMISSION] ERRED BOTH IN ITS
RELIANCE ON INADMISSIBLE EVIDENCE,
SPECIFICALLY, THE COUNTY'S FCEs AND
EXPERT REPORTS, AND FURTHER, BY
IMPROPERLY SHIFTING THE BURDEN TO
[APPELLANT] TO ESTABLISH THE
SCIENTIFIC RELIABILITY OF
FUNCTIONAL CAPACITY EXAMINATIONS
WHEN IT IS WELL-SETTLED THAT THE
PARTY PROPOSING THE EVIDENCE, HERE,
THE COUNTY, HAS THE BURDEN TO
ESTABLISH ITS SCIENTIFIC RELIABILITY.
A. Contrary to the [Commission's]
Determination, It is the County's Burden to
Establish the Scientific Reliability of the
FCEs Relied Upon in Terminating
[Appellant].
B. Notwithstanding the Inadmissibility of the
FCEs in and of themselves, the County
Proffered No Evidence that the Testing
Protocols Were Scientifically Reliable or
that the Equipment Utilized to Measure
[Appellant's] Physical Capabilities was
Reliable in Terms of Performance or
Calibration.
C. By Lynch's Admission, the Insurance
Industry Does Not Consider the Testing
Conducted by Kinematics as a "Medical
Evaluation."
[IV]. THE [COMMISSION] ERRONEOUSLY
FAILED TO REVERSE THE COUNTY'S
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SUSPENSION OF [APPELLANT], WITHOUT
PAY, IN LIGHT OF UNCONTROVERTED
EVIDENCE THAT THE COUNTY VIOLATED
ITS OWN POLICIES BY FAILING TO
EXPLORE REASONABLE
ACCOMMODATIONS FOR [APPELLANT]
WHILE ON RESTRICTED OR LIGHT DUTY.
. . . IN SUSPENDING [APPELLANT]
WITHOUT PAY, THE COUNTY FURTHER
VIOLATED [APPELLANT'S] PROCEDURAL
DUE PROCESS RIGHTS.
[V]. THE [COMMISSION'S] FINAL
ADMINISTRATIVE RULING VIOLATES THE
CIVIL SERVICE ACT; THE [COMMISSION]
ALSO FAILED TO TURN SQUARE CORNERS
WITH [APPELLANT].
These arguments are so lacking in merit as to not warrant much discussion
in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons
set forth in the Commission's final administrative determination, which adopted
the well-supported findings of fact and conclusions of law the ALJ detailed in
her comprehensive initial decision. See R. 2:11-3(e)(1)(D).
Our scope of review of an administrative agency's final determination is
limited. In re Herrmann, 192 N.J. 19, 27 (2007). "[A] 'strong presumption of
reasonableness attaches'" to the agency's decision. In re Carroll, 339 N.J. Super.
429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App.
Div. 1993)). Additionally, we give "due regard to the opportunity of the one
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who heard the witnesses to judge . . . their credibility." In re Taylor, 158 N.J.
644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
The burden is upon the appellant to demonstrate grounds for reversal.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002);
see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.
1993) (holding that "[t]he burden of showing the agency's action was arbitrary,
unreasonable[,] or capricious rests upon the appellant."). To that end, we will
"not disturb an administrative agency's determinations or findings unless there
is a clear showing that (1) the agency did not follow the law; (2) the decision
was arbitrary, capricious, or unreasonable; or (3) the decision was not supported
by substantial evidence." In re Application of Virtua-West Jersey Hosp.
Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).
When an agency decision satisfies such criteria, we accord substantial
deference to the agency's fact-finding and legal conclusions, acknowledging
"the agency's 'expertise and superior knowledge of a particular field.'" Circus
Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). It
is not our place to second-guess or substitute our judgment for that of the agency
and, therefore, we do not "engage in an independent assessment of the evidence
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as if [we] were the court of first instance." Taylor, 158 N.J. at 656 (quoting
State v. Locurto, 157 N.J. 463, 471 (1999)).
In addition, we give "due regard to the opportunity of the one who heard
the witnesses to judge . . . their credibility[,]" and therefore accept their findings
of fact "when supported by adequate, substantial[,] and credible evidence." Ibid.(first quoting Close, 44 N.J. at 599 (second quoting Rova Farms Resort, Inc. v.
Invs. Ins. Co., 65 N.J. 474, 484 (1974))). With regard to expert witnesses, we
rely upon the trier of fact's "acceptance of the credibility of the expert's
testimony and the [judge's] fact-findings based thereon, noting that the [judge]
is better positioned to evaluate the witness' credibility, qualifications, and the
weight to be accorded [to his or] her testimony." In re Guardianship of D.M.H.,
161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599,
607 (1989)).
Applying our highly deferential standard of review, we are satisfied the
record amply supports the Commission's determination that appellant could not
perform the duties of her sheriff's officer position when respondent removed her
from employment in September 2017. See N.J.A.C. 4A:2-2.3(a)(3). The
Commission adopted the ALJ's findings of fact, which were based on her
assessment of the credibility of the expert and lay testimony. We must give
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appropriate deference to the ALJ's and the Commission's findings where, as
here, those findings are based on sufficient credible evidence in the record.
Taylor, 158 N.J. at 658-59.
Contrary to appellant's contentions, the ALJ and the Commission
considered all of the medical and lay evidence presented and concluded the
County's proofs were more persuasive than the testimony of appellant's single
witness. We defer to that well-reasoned determination. The ALJ never shifted
the burden of proof to appellant on any issue. Appellant asserts the Commission
ignored case law and statutes in its review but that claim also lacks merit because
appellant's purported authorities concerned individuals who retired on disability
pensions, not employees removed pursuant to N.J.A.C. 4A:2-2.3(a)(3).7
We also reject appellant's argument that the County provided insufficient
proof of the nature and scope of her required duties and no credible evidence
concerning the viability of the FCEs. As the ALJ correctly found, Thompson
7
Appellant devotes a portion of her brief to a discussion of an application for
accidental disability retirement benefits she filed following her removal.
However, as we noted in Tretsis v. Bd. of Trs., Police & Firemen's Ret. Sys.,
No. A-1723-18 (June 24, 2020) (slip op. at 12), the pension board properly
deferred its consideration of appellant's retirement application pending the
outcome of the County's action to remove appellant from employment.
Therefore, nothing in appellant's still pending retirement litigation is before us
in this appeal.
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and Harris testified in detail concerning the sheriff's officer's position, and
Lynch provided the only expert testimony at the hearing about the validity of
the FCEs.
We also discern no merit in appellant's contention that the County
deprived her of due process during the removal proceedings. The County
provided appellant with a Loudermill hearing and a departmental hearing, and
an independent ALJ presided at her contested case hearing when the
Commission referred her appeal to the OAL.
In sum, we conclude that the ALJ's findings are fully supported by the
record and her legal conclusions are unassailable. Like the Commission, we
affirm 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).
Affirmed.
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