On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- none.
Plaintiff seeks to recover back pay for a period during which her employer, the Board of Managers of the Jersey City Medical Center (Medical Center), erroneously denied her the employment position to which she was later held to have been entitled. The Civil Service Commission (Commission) denied back pay because neither statute nor common law supported plaintiff's claim. The Appellate Division reversed, finding a basis for the award in the civil service statutes, particularly N.J.S.A. 11:15-6. We granted certification on the petitions of the Medical Center and the Commission, 89 N.J. 441 (1982), and now reverse.
The period for which plaintiff claims she is entitled to back pay of $5291.40 is April 20, 1974 to November 29, 1974. Before April 20, 1974 plaintiff had a permanent civil service appointment as Director of Nursing at Margaret Hague Maternity Hospital (Margaret Hague), a relatively small facility in Jersey City specializing in obstetrics and gynecology. On that date
Margaret Hague merged with the Medical Center, pursuant to a contract. See N.J.S.A. 30:9-27.1 (permitting freeholders of any county of the first class to convey, "at private sale and without consideration," a county-maintained maternity hospital to any municipality within that county that maintains a hospital "for the sick and injured . . ."). Before the merger Pura La Borde, a provisional employee, was the Director of Nursing at the Medical Center. The positions of Director of Nursing at the two institutions both involved major responsibility for nursing care. They differed, however, in their respective scopes of operations in that as a general hospital facility the Medical Center embraced a wider variety of specialized nursing functions than did Margaret Hague.
After the merger of the two hospitals Ms. La Borde was appointed provisionally to the position of Director of Nursing of the consolidated institutions. Plaintiff retained the title of Director of Nursing of what formerly had been Margaret Hague and performed most of her same duties, except that she functioned in a position subordinate to Ms. La Borde in the sense that she now reported to the latter and relinquished some administrative responsibilities to her. On November 29, 1974 -- the terminal date of the period with which we are concerned -- plaintiff was laid off as "Director of Nursing, Margaret Hague Hospital," for reasons of economy.
Thereafter the Division of Local Government Services, Department of Civil Service, performed an administrative review, on the basis of which it determined that Ms. Heath had re-employment rights to the title of Assistant Director of Nursing at the Medical Center and accordingly placed her on a special re-employment list for that title.*fn1 On December 4, 1974 plaintiff
was appointed permanently as Assistant Director of Nursing. Plaintiff resisted the appointment and successfully appealed that determination, with the result that her permanent appointment as assistant Director of Nursing was ordered rescinded. Instead, she was certified to the title of Director of Nursing against the provisional appointee, Ms. La Borde, and on June 11, 1976 she was permanently appointed as Director of Nursing.
There then began the quest for back pay, an unnecessarily protracted pilgrimage burdened by procedural missteps including a detour through the Law Division, in the course of which the Medical Center agreed voluntarily -- for reasons not disclosed by the record or otherwise apparent to us -- to pay plaintiff $9800.05, the difference in wages between the positions of Director of Nursing and Assistant Director of Nursing from November 29, 1974 (the date of her lay-off) to June 11, 1976 (the date of her permanent appointment as Director of Nursing).*fn2 In October 1980 the Appellate Division remanded the cause to the Commission for a final administrative determination of the back pay issue.
The Commission held that its authority to order any award of back pay is derived from N.J.S.A. 11:15-6 and N.J.S.A. 11:22-38, enactments that the Commission perceived as applying to disciplinary actions only. According to the Commission, inasmuch as Ms. Heath's appeal did not arise from any disciplinary proceeding, there was no statutory warrant for an award of back pay. The Commission relied in addition on Taylor v. Dep't of Civil Serv., 159 N.J. Super. 119, 123 (App.Div.1978), for the proposition ...