Rooth v. Bd. of Trs., Pub. Employees' Ret. Sys.

• Decision Date: 03 June 2022
• Docket Number: DOCKET NO. A-2378-20
• Citation: 472 N.J.Super. 357,277 A.3d 26
• Parties: Cheryl ROOTH, Petitioner-Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

472 N.J.Super. 357

277 A.3d 26

Cheryl ROOTH, Petitioner-Appellant,

v.BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.

DOCKET NO. A-2378-20

Superior Court of New Jersey, Appellate Division.

Submitted April 4, 2022

Decided June 3, 2022

Chamlin Uliano & Walsh, attorneys for appellant (James J. Uliano, on the brief, West Long Branch).

Matthew J. Platkin, Acting Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Brian D. Ragunan, Deputy Attorney General, on the brief).

Before Judges Sabatino, Rothstadt, and Bishop-Thompson.

The opinion of the court was delivered by

BISHOP-THOMPSON, J.S.C. (temporarily assigned).

In this appeal, we are asked to decide whether, as a matter of law, a school employee separated from service by irrevocably resigning from employment to resolve a pending grievance, can later obtain disability retirement benefits through the Public Employees' Retirement System (PERS). Under the circumstances presented in this case, a school employee cannot obtain disability retirement benefits where disciplinary charges have not been shown to "relate" to a disability under N.J.A.C. 17:1-6.4.

Appellant Cheryl Rooth, a school employee who agreed to irrevocably resign from the Lacey Township Board of Education (BOE), argues that PERS erred in applying N.J.A.C. 17:1-6.4 when it declared Rooth ineligible to file an accidental disability retirement benefits application. According to Rooth, she is disabled and therefore entitled to disability retirement benefits despite her resignation. She requests that we reverse the PERS's decision and declare this matter a contested case to be transmitted to the Office of Administrative Law (OAL) for a hearing.

We hold that when a PERS member, here a school bus driver, irrevocably resigns from active service based upon a negotiated settlement agreement resolving a pending grievance concerning disciplinary charges that do not "relate to" a disability, such a separation from employment renders the member ineligible for ordinary or accidental disability retirement benefits. Here, Rooth agreed to not seek any future employment with the BOE because of her irrevocable resignation, not her alleged mental disability

. The inability to return to work based upon a settlement agreement and irrevocable resignation precludes the member from filing a disability application under the prevailing regulatory framework and case law.

Rooth was employed as a school bus driver with the BOE for twenty-four years. On April 29, 2019, Rooth's bus rear-ended another school bus in the school parking lot with children on her bus. Toms River police officers responded to the accident. Rooth was subsequently charged with several moving violations: driving while intoxicated, reckless driving, driving while intoxicated in a school zone, driving while intoxicated in a school crosswalk area, and driving while intoxicated with a minor child present, as well as administrative charges.¹ There is no proof that the disciplinary charges concerned an alleged disability that caused her to have the accident.

As a result of the administrative and motor vehicle charges, Rooth was placed on administrative leave and subsequently terminated. The Lacey Township Education Association (LTEA), on behalf of Rooth, filed a grievance challenging her termination. The grievance was resolved through a Confidential Separation Agreement and Full and Final Release (Agreement) dated December 12, 2019. The relevant terms of the Agreement, which are critical to this matter, are Rooth's waiver of "any and all rights to seek future employment with the BOE" and the signed irrevocable resignation letter, referenced and incorporated into the Agreement.²

Rooth applied for accidental disability retirement benefits in March 2020. In the application, Rooth claimed disability due to "extreme depression and anxiety after [her] bus accident." (Emphasis added). She further claimed that she had not driven a school bus since the accident.

The BOE submitted an employer certification stating Rooth's dismissal on June 30, 2019 was "due to the settlement agreement." The BOE thereafter submitted a copy of the Agreement.

On September 8, 2020, the Bureau of Retirements (Bureau) denied Rooth's application for ordinary disability retirement benefits in a letter (Denial Letter).³ The Bureau declared Rooth ineligible to file for disability benefits and further stated:

Your termination from employment, as stated on the employer certification for disability retirement dated March 16, 2020 and the letter dated August 26, 2020, clearly shows that there would be no position for you should your alleged disability diminish at some time in the future to the point that you could return to employment and thereby comply with the provisions of N.J.S.A. 43:15A-22.

The Bureau cited to N.J.A.C. 17:1-6.4(b), which "requires that disability applicants must prove that the retirement is due to a total and permanent disability and that the disability is the reason the member left employment." In the Denial Letter, the Bureau listed five reasons that precluded a member from filing for disability retirement benefits when the member "involuntarily or voluntarily terminated service."

Rooth appealed the denial to PERS on the basis that "the underlying administrative charges which resulted in her loss of employment related to her disability." Relying on N.J.A.C. 17:1-6.4, PERS similarly found Rooth ineligible to apply for accidental disability retirement benefits and therefore denied her request in a written decision on November 18, 2020.

PERS also relied on N.J.A.C. 17:1-6.4, which states in full:

(a) Each disability retirement applicant must prove that his or her retirement is due to a total and permanent disability that renders the applicant physically or mentally incapacitated from performing normal or assigned job duties at the time the member left employment; the disability must be the reason the member left employment.

(b) Members who have involuntarily or voluntarily terminated service for any of the reasons listed below will not be permitted to apply for a disability retirement:

1. Removal for cause or total forfeiture of public service;

2. Settlement agreements reached due to pending administrative or criminal charges, unless the underlying charges relate to the disability;

3. Loss of licensure or certification required for the performance of the member's specific job duties;

4. Voluntary separation from service for reasons other than a disability; and

5. Job abolishment or reduction in force.

(c) The Division will review all disability retirement applications submitted after a member has terminated service to determine whether the member's application is eligible for processing, pursuant to (a) above.

PERS's determination was based upon a review of Rooth's filed application, the BOE's certification, and the Agreement. PERS disagreed with Rooth that the underlying administrative charges related to her disability. PERS found, based on N.J.A.C. 17:1-6.4, that Rooth's irrevocable resignation prevented her from applying for disability retirement benefits. PERS also concluded "nothing in the Agreement pertain[ed] to an alleged disability," and based upon the record, her separation was not disability related.

Rooth appealed PERS's initial decision. On January 7, 2021, Rooth requested a hearing with the OAL as a contested case. She also requested to amend her disability application to ordinary disability retirement benefits, "conceding she did not qualify for an accidental disability pension under the relevant facts and case law." In support of the amended application, Rooth submitted letters⁴ from her treating medical providers stating she was attending physical therapy for a lumbar injury, "which may potentially result in poor balance issues," had been treating for over five years for chronic, noncontagious, blepharitis

, dry eye syndrome, diabetes, and taking various prescribed medications.

At its meeting on February 17, 2021, PERS found no genuine issue of material fact in dispute and denied Rooth's request for an administrative hearing.

On March 18, 2021, PERS issued a final agency decision adopting the initial denial of accidental disability retirement benefits. After considering the submissions, PERS determined the "statutes governing PERS and relevant case law did not permit [Rooth] to file for [a]ccidental [d]isability retirement benefits because she did not terminate employment due to a disability." PERS further confirmed "she was terminated from employment and [was] therefore not eligible to file for a disability benefit." PERS explained "pursuant to N.J.S.A. 43:15A-42, [-]43 and the regulation, Ms. Rooth [was] required to establish that she separated from employment due to a disability rather than administrative charges." PERS found Rooth was terminated from employment due to "administrative and motor vehicle charges from a work-related incident on April 29, 2019." This appeal followed.

On appeal, Rooth argues PERS erred in applying N.J.A.C. 17:1-6.4, because her separation of employment was related to her underlying mental disability

. She raises substantially the same argument as she did before PERS, contending that her termination was not premised on the underlying administrative charge. She also contends PERS erred in its application of the "separation of service" rule in N.J.A.C. 17:1-6.4(b)(2) and In re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. 386, 397, 185 A.3d 928 (App. Div. 2018) since the court was "silent on the relevant provisions of N.J.A.C. 17:1-6.4(b)(2) concerning separation agreements." Rooth asserts the settlement agreement is silent as to her disability and it is therefore immaterial since she received treatment from various medical providers before April 29, 2019. Lastly, Rooth contends PERS should have ordered an administrative hearing given the contested fact of her disability. We are not...