Opinion
DOCKET NO. A-5020-12T1
07-21-2014
JOSE SALAS, Plaintiff-Respondent, v. CITY OF PERTH AMBOY, Defendant-Appellant.
Melissa J. Kanbayashi argued the cause for appellant (Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., attorneys; Sean X. Kelly and Ms. Kanbayashi, on the briefs). David H. Kaplan argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Waugh and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1484-11.
Melissa J. Kanbayashi argued the cause for appellant (Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., attorneys; Sean X. Kelly and Ms. Kanbayashi, on the briefs).
David H. Kaplan argued the cause for respondent. PER CURIAM
Defendant City of Perth Amboy appeals, on leave granted, the denial of its motion for summary judgment dismissing plaintiff Joe Salas's complaint under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We reverse.
Plaintiff received a provisional appointment to the position of maintenance technician in the City's Parking Utility effective November 5, 2007. Department of Personnel (DOP) records list plaintiff's title as maintenance repairer. In November 2008, DOP's successor, the Civil Service Commission (Commission) approved a layoff plan in which the City proposed to eliminate eight positions due to budgetary constraints. Plaintiff was not among those initially laid off. In March 2009, however, the Commission provided the City with a special reemployment list of laid-off employees having rights to their former permanent titles of maintenance repairer and a list of employees in all departments of the City provisionally appointed in the maintenance repairer title. Plaintiff's being the only name on the provisional list, the City terminated his appointment and re-hired the first person listed on the special reappointment list.
Effective June 30, 2008, the Civil Service Commission assumed the duties of the DOP. N.J.S.A. 11A:11-2b.
Plaintiff sued claiming violations of the LAD and the workers' compensation statute, breach of contract and retaliation. At the conclusion of discovery, the City moved for summary judgment arguing that it was required by civil service rules to terminate plaintiff's provisional appointment and replace him with one of the permanent employees laid off in the same title. Plaintiff claimed that the City's proffered reason for his firing was a pretext for discrimination.
Plaintiff contended that he was promoted in the summer of 2008 to the position of parking enforcement officer, only the City failed to notify the Commission of the change in title. He pointed to his pay stubs from the City and internal memos in the record recommending his promotion to parking enforcement officer effective July 2008. He claimed the City was not required to terminate him because he was in a parking enforcement title and not that of maintenance repairer. Plaintiff claimed that the City's real reason for firing him was because he filed a workers' compensation claim.
Plaintiff suffered a work-related injury to his back on December 10, 2008, shortly after the City completed its lay-off plan. The City directed his medical care and authorized treatment for him. It sent plaintiff to an orthopedic surgeon who prescribed physical therapy and light duty. Plaintiff returned to work within days, but experienced an exacerbation of his symptoms in late February 2009. On March 4 his doctor recommended that he not return to work until his symptoms abated. The City advised plaintiff that it was terminating his employment on March 16, effective March 20.
At argument on the motion, the judge focused counsel on the issue of plaintiff's title. The City argued that there was no question of fact. Plaintiff was a provisional employee in the maintenance repairer title, the only one in the City according to the Commission's records. The Commission sent two lists to the City, the certification of eligibles for reappointment in the maintenance repairer title and the provisional appointment list for the maintenance repairer title, both bearing the same certification number and having the same date, February 24, 2009. Because plaintiff was the only employee on the provisional appointment list, the City terminated him and re-hired the person at the top of the eligibles list into the title of maintenance repairer.
Plaintiff's counsel contended that there was no proof that the City actually had the list identifying plaintiff as a provisional employee at the time it made the decision to fire plaintiff. Moreover, based on the memo recommending that plaintiff be made a parking enforcement officer and his pay stubs, counsel maintained that "a fair reading of those memos indicates that he becomes a parking enforcement officer." Counsel argued that there was a genuine dispute as to whether plaintiff was or was not a parking enforcement officer which would have to be resolved by a jury.
Counsel bases this argument on the City's business administrator's deposition testimony that she could not recall whether her assistant showed her the document and her inability to testify as to what documents her assistant reviewed and when. The remainder of the business administrator's deposition testimony makes clear, however, that she made the decision to terminate plaintiff based on the civil service list of eligibles for the title and plaintiff's provisional status in that same title.
The judge denied the City's motion based on his uncertainty as to whether plaintiff could acquire seniority in the parking enforcement title sufficient to have allowed him to avoid termination or whether his length of service in the parking enforcement position was immaterial because "plaintiff was working in a position different than what [the Commission] had on the civil service list."
The City's motion for reconsideration was denied by another judge, the motion judge having retired. We granted the City's motion for leave to file an interlocutory appeal.
On appeal, the City argues that it is a civil service municipality governed by the civil service statutes and regulations and that it terminated plaintiff pursuant to direction from the Civil Service Commission. It contends that plaintiff can thus never prevail on a claim of discrimination or retaliation because the City acted in accordance with its legal obligations under civil service.
Plaintiff renews his argument that there is no proof that the City reviewed or relied on the provisional appointment list in determining to terminate him. He contends that a rational juror could thus conclude that the City "never received a [provisional appointment list] from civil service and drafted the one produced in discovery." Further, he contends that the City violated the Civil Service Act by retaining plaintiff in a provisional status beyond the twelve-month period established by N.J.S.A. 11A:4-13b and is thus barred from relying on the Act to provide a legitimate, non-discriminatory reason for his termination or "to defeat the question of fact as to pretext." He argues that the jury must decide whether plaintiff was a parking enforcement officer and thus not subject to layoff and that the timing of plaintiff's injury and disability to his firing is suspicious.
Plaintiff's argument that the City created the provisional appointment list after the fact finds no support in the record. The document was not produced by the City but by the Commission pursuant to subpoena.
We review summary judgment using the same standard that governs the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Summary judgment must be granted under Rule 4:46-2(c) "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
Plaintiff's defense to summary judgment was premised entirely on his contention that there existed a genuine dispute of fact concerning his civil service title. We conclude that issue is one of law and not fact on this record. Because there is no dispute that the State's civil service records list plaintiff as a provisional appointee in a maintenance repairer title, we conclude that there is no genuine issue of material fact on this record and that the City is entitled to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
The City is a civil service municipality whose hiring and promotion decisions are subject to Commission review and approval. N.J.A.C. 4A:4-1.10(a). Whereas permanent appointments to a title in the competitive division of the career service are dependent upon examination, certification and satisfactory completion of a working test period, provisional appointments may be made without satisfying those requirements so long as the appointee meets the minimum qualifications for the title and the appointing authority certifies that failure to make a provisional appointment will seriously impair its work. N.J.S.A. 11A:3-2; N.J.S.A. 11A:4-13(a) and (b). A provisional appointment is only held "'pending the appointment of a person from an eligible list,'" In re Chief Clerk, 282 N.J. Super. 530, 533-34 (App. Div.) (quoting N.J.A.C. 4A:1-1.3), certif. denied, 142 N.J. 573 (1995), and is limited to a period of twelve months. N.J.S.A. 11A:4-13(b).
Although plaintiff contends that a "fair reading" of the City's records could lead to a conclusion that he was a parking enforcement officer, he concedes, as he must, that the Commission never reviewed or approved any such title change. The law is well-established that municipalities and political subdivisions subject to civil service are not free to evade the Commission's authority to review and approve hiring and promotion decisions. N.J.A.C. 4A:4-1.10(a), N.J. Dep't of Civil Service v. Clark, 15 N.J. 334, 337, 340 (1954).
The Supreme Court has also made clear that a provisional employee has no right to retain a provisional appointment or to have that appointment become permanent by virtue of the expiration of the time allowed for the holding of a provisional appointment. O'Malley v. Dep't of Energy, 109 N.J. 309, 316 (1987). "It is the welfare of the public, not that of a particular provisional employee, that underlies civil service legislation." Id. at 316. Because "[w]ith respect to provisional employees, [the legislative] goal [of appointments based on merit and fitness] is met by competitive examinations, not by holding a position beyond the time prescribed by the Legislature," estoppel will also not lie against the Commission or an appointing authority. Melani v. Cnty. of Passaic, 345 N.J. Super. 579, 588 (App. Div. 2001) (quoting O'Malley, supra, 109 N.J. at 316-17).
Plaintiff's reliance on Kyer v. City of East Orange, 315 N.J. Super. 524, 527 (App. Div. 1998), is misplaced. In that case, and in Melani, supra, 345 N.J. Super. at 582, 588-91, we determined that the Commission had the authority to retroactively determine whether provisional employees, who had performed satisfactorily for seven years and failed to achieve permanent status because of the appointing authority's neglect, would have qualified for permanent employment in the normal course. Plaintiff was a sixteen-month provisional employee alleging that the City's reliance on a Commission directive requiring his termination was a pretext for unlawful discrimination. Those cases have no applicability here.
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A review of these authorities establishes beyond doubt that plaintiff's title is controlled by operation of civil service law and is not a factual dispute for resolution by a jury. As a provisional employee, plaintiff held his appointment "pending the appointment of a person from an eligible list." N.J.A.C. 4A:1-1.3, In re Chief Clerk, supra, 282 N.J. Super. at 533-34. When the Commission certifies a list of appointees eligible for appointment to a position, the appointing authority must hire or promote from that list. N.J.S.A. 11A:4-9; N.J.S.A. 11A:4-12; In re Chief Clerk, supra, 282 N.J. Super. at 534. Special reemployment lists, such as the one at issue here, take priority over all other reemployment lists, open competitive lists and lateral title changes pending examination for the entire jurisdiction, except those resulting from position reclassifications. N.J.A.C. 4A:8-2.3(b)(1). Because the City was legally required to terminate plaintiff's provisional employment in order to honor the special reemployment right of a laid-off permanent employee, plaintiff cannot refute the City's proffered reason for his termination, and thus cannot succeed on his LAD claim. See Young v. Hobart West Group, 385 N.J. Super. 448, 463-64 (App. Div. 2005) (explaining that a plaintiff's inability to demonstrate termination under circumstances that give rise to an inference of unlawful discrimination is fatal to plaintiff's prima facie case).
Plaintiff's common law claim for wrongful discharge in violation of the Workers' Compensation Act, N.J.S.A. 34:15-39.1, Lally v. Copygraphics, 173 N.J. Super. 162, 181-82 (App. Div. 1980), aff'd, 85 N.J. 668 (1981), falls for the same reason. Because the Commission directed plaintiff's termination, he cannot show that the City discharged him in retaliation for making a workers' compensation claim. See Cerracchio v. Alden Leeds, 223 N.J. Super. 435, 442-43 (App. Div. 1988) (defining the elements of a prima facie case of retaliation under the Workers' Compensation Act). Plaintiff has failed to brief opposition to the City's argument that it should have been granted summary judgment on plaintiff's contract claim. We thus deem the argument unopposed. Cf. Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.) (issues not briefed are deemed waived), certif. denied, 169 N.J. 606 (2001).
The order denying the City's summary judgment motion is reversed and the matter remanded to the Law Division for entry of an order granting summary judgment.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION