An administrative law judge ordered the city to reinstate fire captain James Reyes, who was terminated last year for allegedly shoveling snow, bending, and lifting while on leave for work-related injuries, with backpay in a late March decision.
Judge Barry Moscowitz ordered all disciplinary charges against Reyes dismissed. He also ordered the city to cover his attorney fees and other expenses associated with the case, according to the decision issued on Mar. 22, 2018.
Reyes, who had been working for the city since 1993, was placed on unpaid suspension on Jan. 23, 2017 for alleged “conduct unbecoming a public employee” and violation of the city’s injury and sick leave policy. He was terminated on Feb. 23, 2017 after a municipal hearing before hearing officer Philip Mizzone, a former Passaic County Superior Court judge.
Reyes’ suspension and later termination resulted from a surveillance operation. He was out on workers compensation leave since Jun. 22, 2016 for work related injuries. He was injured while stepping out of a fire truck, landing on uneven payment, twisting his torso, causing injury to his lumbar spine and bilateral hips.
In 12 separate instances, between Dec. 13, 2016 and Jan. 11, 2017, he was recorded shoveling snow, loading and unloading cases of bottled water from his vehicle, and dragging a garbage can to the curb.
Reyes appealed the city’s termination decision with the New Jersey Civil Service Commission.
Moscowitz heard testimony from Reyes; Gabriel Aboyoun, battalion chief, who serves as the sick-injury officer; former risk manager Samir Goow; Jeffrey Eisenberg, a private investigator with Confidential Security Associates (CSA); Robert Kayal, a doctor with Kayal Orthopaedic Center, who treated Reyes; fire chief Brian McDermott; and David Weiss, an orthopedist, who performed an independent examination of Reyes.
Kayal treated Reyes. He provided doctor’s note to Reyes excusing him for “all work” from Aug. through Dec. 2016. When he was provided footage captured by Eisenberg, Kayal was “outraged” and refused to further treat Reyes.
Kayal had provided the doctor’s notes because Reyes complained about pain and had said he could not do basic chores. He told the doctor has wife had to taken on tasks like cleaning the snow following a storm.
Kayal testified he kept Reyes out of work due to “subjective complaints of pain” and that when he saw the video of him cleaning snow, lifting cases of water it “changed his mind.” He also issued the notes stating Reyes was excused from “all work” because he was not aware modified duty was available at the fire department.
Reyes never told the doctor there was modified duty available at his workplace. McDermott testified fire employees know that modified duty is generally available at the fire department.
McDermott testified the doctor had to inform the city that Reyes could work modified duty. Kayal handles a small number — less than two-percent of his total — of workers’ compensation patients.
Weiss determined Reyes could have returned to work on modified duty in Dec. 2016, six months after he was injured. His testimony helped to undermine the video evidence presented by the city.
Weiss testified that his “physical findings meant that Reyes could bend forward, but not backward, without pain, and that none of the activities he saw Reyes perform on the video, including the shoveling of snow and the lifting of water cases, contradicted his medical profile, because shoveling of snow and the lifting of water cases involved bending forward, not backward,” reads the decision.
Moscowitz found Reyes as “honest about his symptom and his pain,” reads the decision.
“As I indicated on March 17, 2017, these charges were absurd and nonsense. The Court’s decision dismissing the charges confirms as much. The city of Paterson has serious credibility issues,” said Reyes’ attorney Christopher Gray of Sciarra & Catrambone on Friday afternoon.
The city is appealing the decision to the New Jersey Civil Service Commission to sustain the charges.
“We believe the evidence is strong enough,” said the city’s chief attorney Domenick Stampone. “We can re-argue our case.”
Stampone said the city has already filed what’s called an “exception” seeking the commission to uphold the termination. The commission will make a final decision on the case at a later date.