Newark Firefighter Loses Appeal of Termination

A Newark firefighter who was terminated in 2016 after falling asleep in a firehouse kitchen, missing a run, and testing positive for drugs and alcohol, has lost his appeal to the Appellate Division of the New Jersey Superior Court. Antonio Cruz had asked the court to overturn a decision by the New Jersey Civil Service Commission that reversed a decision by an administrative law judge that he should have been offered conditional employment.

As explained in the decision:

  • On October 27, 2014, appellant [Cruz] began his employment with the City as a firefighter.
  • He reported to work on June 25, 2016, and fell asleep while having a cup of coffee with Captain Orlando Alvarez.
  • After appellant spilled his coffee, Alvarez told him to clean it up but appellant only partially complied and left the kitchen.
  • Shortly thereafter, the fire station received an emergent phone call from St. James Hospital and the firefighters on duty reported to the fire truck with the exception of appellant, who was assigned as the driver that day.
  • The firefighters blew the fire truck’s horn, sounded the siren, paged appellant on the intercom, and searched for him, to no avail.
  • He failed to report to the fire truck and the crew left without him in light of the emergency. After returning to the fire house, Captain Alvarez and others looked for appellant but could not find him, prompting Alvarez to notify his superior, Battalion Chief Steven P. DeCeuster. Eventually, appellant was found asleep in an empty room at the firehouse.
  • DeCeuster and Alvarez tried to awaken appellant by shouting his name and kicking his boot, which evoked a limited response.
  • Based upon appellant’s condition, DeCeuster suspected he was under the influence of a controlled dangerous substance (CDS) and unfit for duty.
  • Appellant was ordered to undergo drug and alcohol testing at Concentra Medical Center in Elizabeth that morning, which yielded positive results for alcohol, cocaine, benzodiazepines  and alprazolam, which were not prescribed.
  • He was suspended “based on being unfit for duty” on June 25, 2016.

Following a departmental hearing, Cruz was terminated. Cruz appealed to an Administrative Law Judge who concluded that the City should have offered him a letter of conditional employment before removing him. The city appealed that decision to the NJ Civil Service Commission who affirmed the city’s original decision to terminate, concluding the conditional employment decision was discretionary on the part of the city, not mandatory.

Cruz appealed to the Superior Court Appellate Division, arguing the Commission’s decision was “arbitrary, capricious, and unreasonable because it failed to adopt the ALJ’s findings of fact and conclusions of law; the City failed to adhere to its long-standing policy of providing conditional letters of employment; appellant’s conduct was not sufficiently egregious to warrant removal; he had no notice that such conduct was prohibited; and his removal was disproportionate and shocking to one’s sense of fairness.”

The Appellate Division rejected each of Cruz’s arguments, stating:

  • [T]he City was not obligated to execute a conditional letter of employment to appellant.
  • Although we have acknowledged the need to accommodate employees handicapped by substance abuse, “[r]efusal to continue employment of a handicapped person is lawful where employment in a particular position would be hazardous to that individual or to others.”
  • Saliently, we have stated that improper performance of a firefighter’s duties “can result in serious harm to persons and property” and, where a firefighter is terminated from his employment following a positive drug test, “[t]he nature of [his] job duties satisfies the city’s burden of proving with a reasonable certainty that his handicap would probably cause injury to himself or to others.”
  • Thus, while the Commission acknowledged that there is a general preference for providing an addict with an opportunity for rehabilitation, it found that, due to appellant’s contumacious behavior in his position as a firefighter, removal was justified.
  • The principle of progressive discipline can be applied to downgrade the penalty for a current offense “for an employee who has a substantial record of employment that is largely or totally unblemished by significant disciplinary infractions.”
  • However, progressive discipline is not a necessary consideration when reviewing an agency head’s choice of penalty when the misconduct is severe, when it is unbecoming to the employee’s position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest.
  • Accordingly, progressive discipline need not apply where the appointing authority determines that an employee’s conduct “has so utterly rendered [him or] her devoid of the trust that [the appointing authority] must place in its… workers.”
  • Under these circumstances, the appointing agency’s “judgment should not be lightly second-guessed.”
  • We maintain that “[w]ith firefighters, much as with commercial airline pilots or brain surgeons, drug impairment increases exponentially the risks to others, and must correspondingly affect the extent of an employer’s accommodation efforts which may be reasonable in the circumstances.”
  • We conclude that the Commission did not act arbitrarily, capriciously, or unreasonably in finding that Cruz’s drug and alcohol use, and his resulting conduct on June 25, 2016, was sufficiently egregious to warrant his removal.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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