Opinion
DOCKET NO. A-2184-15T1
04-13-2017
IN THE MATTER OF RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, Respondent-Respondent, and BRIAN CLANCY, Petitioner-Appellant.
Amie E. DiCola argued the cause for appellant (Fusco & Macaluso Partners, LLC, attorneys; Shay S. Deshpande, on the brief). James P. Lidon argued the cause for Rutgers, The State University of New Jersey (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; John J. Peirano, of counsel; Mr. Lidon, on the brief). Robin T. McMahon, General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Ms. McMahon, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Leone and Vernoia. On appeal from the State of New Jersey Public Employment Relations Commission, Docket No. DA-2016-003. Amie E. DiCola argued the cause for appellant (Fusco & Macaluso Partners, LLC, attorneys; Shay S. Deshpande, on the brief). James P. Lidon argued the cause for Rutgers, The State University of New Jersey (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; John J. Peirano, of counsel; Mr. Lidon, on the brief). Robin T. McMahon, General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Ms. McMahon, on the brief). PER CURIAM
Appellant Brian Clancy appeals a January 15, 2016 final agency decision of the Public Employee Relations Commission (PERC) denying as untimely his request for the appointment of an arbitrator under N.J.S.A. 40A:14-210(b) and N.J.A.C. 19:12-6.3(b). Because there is substantial credible evidence supporting PERC's determination that appellant requested the appointment of the arbitrator beyond the twenty-day time period required under the statute and regulation, we affirm.
I.
Appellant was employed as a police officer by the Rutgers University Police Department. On August 8, 2015, the department issued a final notice of disciplinary action terminating appellant's employment for violating department directives. The notice alleged appellant forged the signature of a superior officer to gain unauthorized entry into numerous training courses, knowingly disclosed false information from criminal investigations to another law enforcement officer, and made false statements to an internal affairs investigator.
Appellant received the notice of disciplinary action on August 11, 2015. On August 12, 2015, appellant's collective negotiations representative, Fraternal Order of Police Lodge 74 (FOP), filed a grievance challenging appellant's termination pursuant to the grievance procedure in its collective negotiations agreement with Rutgers. The FOP pursued the grievance on appellant's behalf through the second step of the grievance procedure. Appellant and representatives of the FOP and Rutgers attended a step-two grievance hearing on November 16, 2015. The record does not show any further action by the FOP under the grievance procedure following the November 16, 2015 step-two grievance meeting.
Under the collective negotiations agreement, Rutgers was required to issue a decision on the step-two grievance hearing within twenty-one days. The agreement further provided that if the grievance was not "satisfactorily resolved" at step two, step three of the procedure permitted "only" the FOP to request arbitration of the grievance. The FOP was required to make any such request to PERC within twenty-one days of the issuance of Rutgers's step-two decision. The record does not include any evidence Rutgers issued a step-two decision or that the FOP made a request to PERC for arbitration under step three of the grievance procedure.
On December 2, 2015, appellant, through counsel, requested that PERC appoint an arbitrator pursuant to N.J.S.A. 40A:14-210(b) to decide issues related to the termination of his employment. On December 9, 2015, Rutgers requested that PERC make an initial determination as to whether appellant was entitled to request an arbitrator under N.J.S.A. 40A:14-210(b), arguing the statute applied only to police officers employed by municipalities and therefore was inapplicable to appellant. Rutgers also asserted that even if N.J.S.A. 40A:14-210(b) permitted the appointment of an arbitrator, appellant's request was barred because it was not filed within twenty days of his receipt of the notice of termination as required by the statute and applicable regulation, N.J.A.C. 19:12-6.3(b).
PERC requested that appellant respond to Rutgers's contention that the request for the appointment of an arbitrator was untimely. Appellant's counsel submitted a letter claiming that at the November 16, 2015 step-two grievance proceeding, the FOP and Rutgers "agreed to move the grievance to [s]tep [t]hree of the [c]ollective [negotiations] [a]greement to arbitration with [PERC] with a request for a special disciplinary arbitrator." Counsel also claimed that appellant did not receive a final notice of termination until the November 16, 2015 meeting and, as such, timely filed the request for appointment of an arbitrator under N.J.S.A. 40A:14-210(b) and N.J.A.C. 19:12-6.3(b).
In its final decision, PERC denied appellant's request for appointment of an arbitrator. PERC found appellant received the final notice of termination on August 11, 2015, and did not file his request for the appointment of an arbitrator under N.J.S.A. 40A:14-210(b) until three months and five days later on December 2, 2015. PERC concluded appellant's request was time-barred because it was not made within twenty days of receiving his notice of termination as mandated by N.J.S.A. 40A:14-210(b) and N.J.A.C. 19:12-6.3(b). Appellant appealed PERC's final decision.
Appellant subsequently filed a request for reconsideration, which PERC denied. Appellant's notice of appeal does not include an appeal of PERC's denial of the request for reconsideration.
In support of his appeal, appellant makes the following arguments:
POINT ONE
THIS COURT SHOULD REVERSE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION'S DENIAL OF THE APPOINTMENT OF AN ARBITRATOR BECAUSE THE [TWENTY-DAY] NOTICE REQUIREMENT SET FORTH IN N.J.A.C. 19:12-6(b) SHOULD HAVE BEEN EQUITABL[Y] TOLLED, GIVEN THAT A GRIEVANCE WAS TIMELY FILED WITH[IN] THE [TWENTY] DAYS OF THE SERVICE OF THE TERMINATION NOTICE UPON [] APPELLANT[.]
POINT TWO
THE COURT SHOULD REVERSE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION'S DENIAL OF THE APPOINTMENT OF AN ARBITRATOR, REQUEST FOR CO[M]MISSION REVIEW, RECONSIDERATION, AND ORAL ARGUMENT BECAUSE AT THE NOVEMBER 16, 2015 HEARING THE PARTIES ADJOURNED THE STEP[-]TWO GRIEVANCE HEARING, WHICH TOOK PLACE PURSUANT TO THE COLLECTIVE [NEGOTIATIONS] AGREEMENT, AND THE PARTIES MUTUALLY DECIDED TO MOVE FORWARD WITH ARBITRATION BECAUSE THE COLLECTIVE [NEGOTIATIONS] AGREEMENT IS NOT PREEMPTED BY THE SUBJECT STATUTE.
II.
Our review of agency decisions is deferential and generally we will reverse only if we determine a decision is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "Our inquiries are limited to: (1) whether the agency followed the law; (2) whether the agency's decision is supported by substantial evidence in the record; and (3) whether in applying the law to the facts, the agency reached a supportable conclusion." In re Cty. of Atlantic, 445 N.J. Super. 1, 11 (App. Div.), certif. granted, 227 N.J. 152-53 (2016). Our review of an agency's determinations on issues of law is de novo. Maeker v. Ross, 219 N.J. 565, 574-75 (2014); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Appellant does not dispute that on December 2, 2015, he requested for the first time the appointment of an arbitrator under N.J.S.A. 40A:14-210(b). He concedes the statute required his request be made within twenty days of his receipt of the notice of termination, which he now agrees occurred on August 11, 2015. See N.J.S.A. 40A:14-210(b) (requiring that requests for appointment of a special disciplinary arbitrator be submitted "[w]ithin [twenty] days of receiving notice of termination"); N.J.A.C. 19:12-6.3(b) (requiring that appeals of the termination of a non-civil service law enforcement officer "shall be filed within [twenty] days after the employee has been personally served with a notice of termination"). He also does not contest that his request for the appointment of an arbitrator was made pursuant to N.J.S.A. 40A:14-210(b) and N.J.A.C. 19:12-6.3(b) or that he filed his request beyond the twenty-day time period required under the statute and regulation.
Appellant argues for the first time on appeal that PERC erred by finding his request for appointment of an arbitrator was time-barred because he was entitled to an equitable tolling of the twenty-day deadline to file his request. He contends he is entitled to equitable tolling because the FOP filed a timely grievance under the collective negotiations agreement, and based on a purported November 16, 2015 agreement the matter would proceed to arbitration.
In the first instance, we reject appellant's equitable tolling argument because it was not raised before PERC and does not challenge "the jurisdiction of [PERC] or concern matters of great public interest." State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); see also In re Stream Encroachment Permit, 402 N.J. Super. 587, 602 (App. Div. 2008) (noting we will not consider issues not raised before an administrative agency unless they are of public importance). Appellant argued before PERC only that the filing of his December 2, 2015 request for appointment of an arbitrator was timely because he first received final notice of his termination at the November 16, 2015 step-two grievance proceeding. He does not make that argument here and does not contend PERC erred by rejecting it.
Moreover, the record does not support appellant's assertion he is entitled to an equitable tolling of the statutory deadline.
Equitable tolling has been generally applied in the following three circumstances:
(1) [where] 'the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass' . . .
(2) where a plaintiff has 'in some extraordinary way' been prevented from asserting his rights [and] . . .
(3) where a plaintiff has timely asserted his rights mistakenly by either defective pleading or in the wrong forum.
[Binder v. Price Waterhouse & Co., L.L.P., 393 N.J. Super. 304, 312 (App. Div. 2007) (quoting Freeman v. State, 347 N.J. Super. 11, 31 (App. Div.), certif. denied, 172 N.J. 178 (2002)).]
Where there is no "showing of intentional inducement or trickery by [an adverse party], the doctrine . . . should be applied sparingly and only in the rare situation where it is demanded by sound legal principles and in the interest of justice." Ibid. (quoting Freeman, supra, 347 N.J. Super. at 32). "[E]quitable tolling requires [claimants] to 'diligently pursue their claims' because although it "'affords relief from inflexible, harsh or unfair application of a statute of limitations," [it] does not excuse claimants from exercising the reasonable insight and diligence required to pursue their claims.'" Ibid. (quoting Freeman, supra, 347 N.J. Super. at 32).
The record is bereft of any evidence that Rutgers engaged in trickery or otherwise induced appellant to not timely file his request for appointment of an arbitrator during the twenty-day time period following his August 11, 2015 receipt of his termination notice as required under N.J.S.A. 40A:14-210(b). The record shows, and appellant does not dispute, that he and the FOP made the choice to challenge appellant's termination through an alternative proceeding, the grievance procedure available under the FOP and Rutgers's collective negotiations agreement. See N.J.A.C. 19:12-5.1 to -5.11 (providing for PERC's processing of requests for arbitration of grievances arising under collective negotiations agreements under N.J.S.A. 2A:24-1 to -11). There is no evidence Rutgers suggested the course of action, induced it through any trickery, or otherwise influenced appellant's and the FOP's choice to exclusively challenge appellant's termination through a grievance under the collective negotiations agreement, rather than a timely request for the appointment of an arbitrator under N.J.S.A. 40A:14-210(b) and N.J.A.C. 19:12-6.3(b). Appellant does not argue otherwise.
The collective negotiations agreement permitted the FOP to grieve the termination of appellant's employment in a three-step process. The third step involved the submission to arbitration of disputes concerning the termination of employment, but allowed only the FOP to request arbitration of termination cases.
Nor is there evidence that during the twenty-day time period appellant mistakenly asserted his rights in the wrong forum. Binder, supra, 393 N.J. Super. at 312. Appellant and the FOP were permitted to file a grievance challenging his termination under the collective negotiations agreement and they did so. The grievance procedure was never the wrong forum; it was an alternative forum in which the FOP was permitted to challenge the appellant's termination at step three of the grievance procedure in the collective negotiations agreement.
Appellant's decision to challenge his termination under the contractual grievance procedure did not otherwise toll the statutory limitations period applicable to the arbitration procedure available under N.J.S.A. 40A:14-210(b). See, e.g., State v. Council of State College Locals, 153 N.J. Super. 91, 93-94 (App. Div. 1977) (finding pursuit of contractual grievance procedure does not toll the statutory time deadline for filing an unfair practice charge), certif. denied, 78 N.J. 326 (1978); Bd. of Educ. v. Bernards Twp. Educ. Ass'n, 79 N.J. 311, 326, n.4 (1979) (finding that pursuit of advisory arbitration under a collective negotiations agreement does not relieve compliance with the time deadline to file a petition with the Commissioner of Education). A "statutory provision[] limiting the action of an administrative agency to claims presented within a specified term are jurisdictional in nature." Council of State College Locals, supra, 153 N.J. Super. at 94. "When a statutory time limitation for filing an administrative appeal is mandatory and jurisdictional, it may be extended only by the legislature, not by an agency or the courts." Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 621 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).
Appellant's late filing under N.J.S.A. 40A:14-210(b) deprived PERC of jurisdiction to appoint an arbitrator and would have required rejection of any claim by appellant that he was entitled to equitable tolling because he and the FOP chose to challenge his termination through the grievance procedure. Council of State College Locals, supra, 153 N.J. Super. at 93-94. Their other choice, to abandon the grievance procedure and not request arbitration under step-three, does not require or permit an equitable tolling of the twenty-day limitations period in N.J.S.A. 40A:14-210(b). Ibid.
Appellant further contends he is entitled to equitable tolling based on the purported agreement reached at the step-two grievance hearing on November 16, 2015, that the matter would proceed to arbitration. We reject the argument because any purported agreement could not have equitably tolled appellant's obligation to request arbitration under N.J.S.A. 40A:14-210(b) since the agreement was allegedly reached long after the twenty-day tolling period in the statute passed. See, e.g., Binder, supra, 393 N.J. Super. at 312 (finding equitable tolling inapplicable in part because there was no evidence of misconduct during the limitations period that caused the untimely filing). Moreover, even if such an agreement might otherwise provide the basis for equitable tolling, there is no evidentiary record establishing an agreement was reached and, if so, the nature of its terms. Appellant's contention there was an agreement is supported by nothing more than the arguments of counsel. See Baldyga v. Oldman, 261 N.J. Super. 259, 265 (App. Div. 1993) ("The comments following [Rule 1:6-6] illustrate that its purpose is to . . . eliminate the presentation of facts which are not of record by unsworn statements of counsel made in briefs and oral arguments." (citing Pressler, Current N.J. Court Rules, comment 1 on R. 1:6-6 (1992))); see also Bonzella v. Monroe Twp., 367 N.J. Super. 581, 585 n.2 (App. Div. 2004) (refusing to consider whether a collective negotiations agreement provided for certain medical coverage because the agreement was not included in the record).
Rutgers denies the existence of any agreement, and appellant's contentions concerning the agreement are contradictory. Before PERC appellant asserted that the FOP and Rutgers agreed to "move the grievance to [s]tep [t]hree" of the grievance procedure "with a request for a special disciplinary arbitrator" and alternatively that the FOP and Rutgers agreed to refer appellant's "termination matter to [PERC] for selection of a panel of arbitrators." Here, appellant asserts that he and Rutgers "agreed to go to arbitration." Appellant also failed to introduce any evidence concerning the terms of the purported agreement including, for example, whether Rutgers waived any defenses to arbitration, such as a defense that a request for arbitration under N.J.S.A. 40A:14-210(b) would be untimely.
We also observe there is no evidence that the FOP, which brought the grievance under the collective negotiations agreement and allegedly reached the agreement with Rutgers on November 16, 2015, has taken any action to enforce the agreement. We express no opinion as to whether the FOP, which is not before us, could take action at the present time to enforce the putative agreement. The record does not disclose if Rutgers issued a decision on the step-two grievance, and we offer no opinion whether the grievance procedure's twenty-one-day filing deadline for the FOP to request arbitration under step-three, which is triggered by Rutgers's issuance of a step-two decision, has yet commenced. --------
Based on the record presented, we are satisfied PERC correctly determined that appellant's request for the appointment of an arbitrator was time-barred under N.J.S.A. 40A:14-210(b) and N.J.A.C. 19:12-6.3(b). Appellant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION