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Kyer v. City of East Orange

October 30, 1998


Before Judges Pressler, Brochin and Kleiner.

The opinion of the court was delivered by: The opinion of the court was delivered by Pressler, P.j.a.d.

[9]    Submitted September 24, 1998

On appeal from the Superior Court of New Jersey, Law Division, Essex County.

The issue raised by this appeal is whether a merit system provisional employee in the municipal classified service who is denied the opportunity to become a permanent employee by reason of the municipality's negligence and her own unawareness of merit system requirements may, after seven years of exemplary service, be summarily discharged. We hold that under the circumstances of this case, the employee's job rights are a matter for determination by the Department of Personnel, which has the authority to grant a retroactive competitive examination or waiver thereof, to declare her status as a permanent and protected employee, and to fashion an appropriate remedy.

Plaintiff Ruby Robinson Kyer brought this wrongful termination action against defendants City of East Orange and J. Kenneth Garrett, its Municipal Court Director, *fn1 after her summary discharge on two days' notice on January 24, 1994. The matter was tried to a jury. At the close of the proofs, however, all the wrongful termination counts of the complaint were dismissed on the ground that plaintiff, because she was still a provisional employee despite the lapse of seven years from the date of her hire, had no protected job rights. The only issue that went to the jury was plaintiff's claim that her summary dismissal violated the East Orange ordinance, which requires that if the discharge is not for disciplinary reasons, permanent employees must be given forty-five days' notice and temporary employees must be given ten days' notice. Construing plaintiff's provisional status as temporary for purposes of the ordinance, the jury was asked to determine whether the discharge was for disciplinary reasons and, if not, to determine her damages as a result of defendants' failure to have given the required notice. The jury found that the discharge was not for disciplinary reasons and that plaintiff had sustained a loss of wages in the amount of $918.13 and other unspecified damages of $11,922.00. On defendants' motion, the court set aside the award of unspecified damages on the ground that there was no evidence to sustain any damage award for failure of required notice other than the pay loss.

Plaintiff appeals from the holding that she was subject to summary dismissal, claiming, as she did in the trial court, that under the facts as adduced, the City should be estopped from relying on her provisional status and denying her permanent status. She also claims that the trial Judge misconstrued the East Orange ordinance and erred by not deeming her to be a permanent employee under its notice provisions. Finally, she appeals from the setting aside of the nearly $12,000 damage award.

While we are reluctant in the circumstances to apply principles of estoppel against the City, we are persuaded that the facts here dictate a remedy or, at least, a remedial opportunity. We are also, however, persuaded that the affording of a remedy appropriately lies with the Department of Personnel, to which we transfer this dispute.

Our recitation of the relevant facts is based upon the proofs adduced at trial. Plaintiff was first employed by defendant City of East Orange in 1987 as a full-time municipal court mediator holding the merit system title of senior neighborhood and family counselor. Her appointment to that position was as a provisional employee in the classified service. N.J.S.A. 11A:4-13b. Although that statute prohibits the duration of provisional status for more than twelve months, plaintiff, because of defendant's negligence and inattention, remained in provisional status for the next seven years, performing her duties with distinction. Indeed, for most of that period she was the only municipal court mediator. She received mediation training from the Administrative Office of the Courts as well as other training when offered. Her success as a mediator led the City to refer municipal employees to her for dispute resolution and for referral to available services. The areas of her court mediation included family disputes, couple disputes, neighbor disputes and landlord-tenant disputes. She worked in community outreach programs and was fully familiar with available referral services. She was also responsible for preparing reports of her unit's work, including the monthly reports required by the Administrative Office of the Courts. Her job performance was described in glowing terms by the various municipal court administrators under whom she worked, the presiding Judge of the municipal court, and the former municipal court directors.

According to plaintiff's testimony, when she was hired she was told that her employment was subject to a ninety-day probationary period and that if she successfully completed that period, her employment status would be permanent. She had been originally issued an employee badge, which she was required to wear at work, that listed her status as provisional. Several years later she was issued a new badge, which listed her status as a permanent employee. After the initial period of her employment, she became a member of the Public Employees' Retirement System and was accorded health insurance and life insurance benefits. She became a member of the bargaining unit, the Communication Workers of America. She had no doubt that her employment was permanent and that she was fully protected in her job, dismissible only for cause. She claims never to have been told of any competitive examination or other requirement as a condition to her permanency.

The explanation for plaintiff's seven-year provisional status lies in the City's mishandling of her initial paper work. As we have noted, East Orange is a civil service municipality whose hiring actions are subject to Department of Personnel review. N.J.A.C. 4A:4-1.10(a). The City was free, pursuant to N.J.S.A. 11A:4-13(b), to make a provisional appointment to the senior neighborhood and family counselor position upon its certification to the Department of Personnel "that ... the appointee meets the minimum qualifications for the title at the time of appointment and that failure to make a provisional appointment will seriously impair the work of the appointing authority." It was also, of course, required to advise the Department of the provisional appointment and to seek the Department's approval thereof by filing the required "new-hire" forms, thereby permitting the Department to fulfill its function of notifying the appointing authority whether its action was approved or disapproved. N.J.A.C. 4A:4-1.10(b). There is no dispute that the Department never received plaintiff's initial hiring forms. While the City's Personnel Director suggested that perhaps they had been lost in the mail when sent to the Department in 1987, the fact remained that there was no copy in the City's files either, and that after plaintiff's termination and upon her inquiry of the Department, the City was requested by the Department to generate a new original hiring form for its records. It is further clear that whether or not the City had ever actually attempted to transmit plaintiff's initial hiring forms to the Department, it never received a communication from the Department approving or disapproving of plaintiff's provisional employment, *fn2 a fact that should obviously have alerted it that plaintiff's papers had not been received by the Department. Indeed, plaintiff was entirely unknown to the Department during the entire seven years of her employment.

In August 1993, defendant J. Kenneth Garrett, who had no prior experience in municipal court management, was appointed as municipal court director. Personality conflicts apparently soon developed between Garrett and plaintiff. According to plaintiff, Garrett inquired of her almost immediately upon his appointment as to her friendship with his predecessor. He also accused her of having parties in an unused office in her unit. The fact of the matter was that court employees occasionally used the empty office to make telephone calls and to eat their lunch. Immediately upon Garrett's criticism, she posted signs to make clear that the empty office was off limits to employees for personal business. Garrett also directed plaintiff to advise him whenever she left the building on either personal or business errands, her duties frequently taking her out of her office. A conflict then developed between them regarding plaintiff's report systems with Garrett asking her for additional information and more frequent reporting. He construed as insubordination her explanations to him regarding the need to maintain the confidentiality of the mediation sessions and rejected her attempted justification for the methods and systems she used in maintaining records and submitting reports. According to the proofs, plaintiff made good faith efforts to comply with Garrett's reporting requests as she understood them but was apparently never able to satisfy him. Finally, learning that plaintiff was a provisional employee with no permanent job rights, Garrett summarily dismissed her on two days' notice on January 24, 1994. This action ensued.

We consider the issues here involved in the light of the public policy underlying the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6. As stated by the Act itself, its purposes include the selection and advancement of employees on the basis of their merit, the encouragement of meritorious performance by employees in the public service and the retention and separation of employees on the basis of their performance. N.J.S.A. 11A:1-2a and -2c. As the Supreme Court noted in O'Malley v. Department of Energy, 109 N.J. 309, 313 (1987), respecting the predecessor act, "[t]he policy underlying the merit and fitness requirement is the provision of efficient public service in state, county and municipal from political control and personal favoritism." See also State v. Clark, 15 N.J. 334, 341 (1954) ("...the purpose of the Civil Service Law is to procure efficient public service and to secure tenure during good behavior for public officers...."); Jones v. Dept. of Civil Service, 118 N.J. Super. 323, 326 (App. Div. 1972) ([t]he underlying philosophy of the Civil Service Act, N.J.S.A. 11A:1-1, et seq., is to advance the welfare of the public and to protect permanent employees in the classified service by preventing their removal except for cause after due notice and hearing").

We think it plain that plaintiff's summary dismissal after seven years of effective and unblemished employment contravenes the underlying policy of the Civil Service Act of protecting the job rights of public employees from political and arbitrary infringement. We also recognize, however, that those job rights are reserved for permanent employees and are not accorded to provisional employees such as plaintiff. The real question then is whether a municipality can be permitted, whether by design or negligence, to effectively abrogate the Civil Service Act by retaining an employee in provisional status long after the twelve-month maximum period prescribed by N.J.S.A. 11A:4-13b.

That issue has been heretofore considered by the Supreme Court in O'Malley, supra, although in a substantially different context and on the basis of significantly disparate facts. There, plaintiff O'Malley had a permanent appointment as of 1978 as a senior engineer in the then State Department of Energy. In 1979, he accepted a provisional appointment as an administrator in that Department, and in 1981 he accepted another provisional appointment as a supervising energy specialist. In 1984, he was returned to his original permanent position as senior engineer. He appealed to the then Civil Service Commission, replaced in 1986 by Title 11A with the Department of Personnel. He claimed that he was denied permanent appointment to both of his provisional positions by reason of the Civil Service Commission's failure to comply with its statutory duty to schedule a competitive examination within the then four-month maximum period allowed by prior Title 11 for provisional employment. In rejecting plaintiff's argument and reversing this court's decision, which had applied principles of estoppel against the Civil Service Commission, the Supreme Court considered the practical difficulties faced by the Commission in attempting to schedule timely competitive examinations. By the effective date of the adoption of Title 11A in 1986, these difficulties had resulted in the employment of approximately 4,500 provisional employees in state service who had served for more than four months and many others in ...

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