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11 N.J.A.R. 546

Varga, Alex v. Union County Department of Public Works
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Citation: 11 N.J.A.R. 546
Decision Date: 1989
Agency: MERIT SYSTEM PROTECTION BOARD
Synopsis: Appellant was removed from his position as a drawbridge oper- ator on disciplinary charges for possessing, consuming and being under the influence of an alcoholic beverage while on duty. He ap- pealed his removal to the Merit System Board and the matter was transmitted to the Office of Administrative Law for a hearing. The administrative law judge assigned to the case found that the appellant had been intoxicated while on duty. The judge concluded that the appointing authority was justified in removing appellant from his position. Appellant had characterized his alcohol problem as a 'handi- cap,' but the administrative law judge said the attempt to create an actionable discrimination claim was misplaced. The New Jersey Su- preme Court recently held that alcoholism is a handicap within the purview of the New Jersey Law Against Discrimination. However, in this case, appellant did not prove he was an alcoholic and therefore did not establish that he was in the protected group. Even if appellant had proved he was an alcoholic, the discrimina- tion statute would not protect him, because the law does not prohibit discrimination against an alcoholic where the nature and extent of the handicap precludes the performance of particular employment. The appropriate test in this case was whether continued employment posed a reasonable probability of harm and enhanced the risk of injury. The administrative law judge concluded that improper per- formance of'appellant's job could result in serious harm to persons and property. Appellant's continued employment would have posed an unacceptable risk of substantial harm to the public. Accordingly, respondent's action removing appellant from his position was af- firmed and the appeal was dismissed. State of New Jersey 547 Upon review, this initial decision was adopted by the Merit System Board. Audrey S. Leiwant, Esq., for appellant (Fox & Fox, attorneys) Francine A. Schott, Esq., for respondent (DeMaria, Ellis & Hunt, attorneys) Patrice M. Renner, Esq., special appearance for Elizabeth General Medical Center (Lindabury, McCormick & Estabrook, attorneys)
Statute(s) Cited: 10:5-4.1