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In re Asplen

July 8, 2008

IN THE MATTERS OF RALPH ASPLEN AND EDWARD REARDON, HAZARDOUS SITE MITIGATION SPECIALIST 1 (PS4887G), DEPARTMENT OF ENVIRONMENTAL PROTECTION.


On appeal from a final decision of the Merit System Board, DOP Docket Nos. 2006-2292 and 2007-1092.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 4, 2008

Before Judges Parrillo and Gilroy.

Appellants Ralph Asplen and Edward Reardon appeal from the October 5, 2006 final decision of the Merit System Board (Board), which denied their: 1) appeal challenging the decision of the Department of Environmental Protection (DEP) to bypass them in selecting candidates eligible for appointment to the position of Hazardous Site Mitigation Specialist 1 (HSMS1); and 2) request for reconsideration of the Board's July 28, 2005 decision, granting a one-time rule relaxation of the one-year supervisory experience requirement to establish examination eligibility for the HSMS1 title. We affirm.

Appellants are employed with the DEP as Principal Environmental Specialists in the Division of Solid and Hazardous Waste (Division). Asplen has been employed with the DEP since September 1988, and possesses a Bachelor of Science Degree in Geography & Environmental Planning and a Master's Degree in Geography. Reardon has been employed with the DEP since 1985 and possesses a Bachelor of Science Degree in Environmental Engineering and a Master's Degree in Environmental Engineering, Water Resource Planning and Management.

In June 2004, the DEP issued a notice of vacancy for eight HSMS1 positions within the Division,*fn1 after which it provisionally appointed eight Division employees to the HSMS1 position, pending their passing a promotional examination. Because of complaints voiced by several other DEP employees who had not been provisionally appointed, the DEP's Review Panel conducted an investigation, which determined that the process utilized by the DEP in selecting its provisional appointees was "horribly flawed and that the DEP, as an institution, failed to have a credible, fair, and consistent promotional process."

In January 2005, the Department of Personnel (DOP) announced an examination for the HSMS1 position (PS4887G). Because no Division employees were permanent in the HSMS2 title, the examination was open to all Division employees, who had an aggregate of one year of continuous permanent service as of the announced closing date who possessed a Bachelor's degree from an accredited college or university in the physical sciences, environmental sciences, chemical sciences, biological sciences, or environmental planning or engineering and had four years of experience performing enforcement, field investigations, inspections, surveys, and/or interrelated environmental work, two years of which shall have been in the control of hazardous/non-hazardous substances or waste in environmental and/or solid waste management, or four years of experience involving case management, project management, administering contracts or interrelated environmental work for hazardous/non-hazardous waste clean-up activities. One of the four years of the indicated experience shall have been in a supervisory capacity.

[(Emphasis added).]

Eleven of the Division employees who applied for the examination, including four provisional appointees, were deemed ineligible because each lacked the one-year supervisory experience requirement. Because of a climate of "distrust of management in the unit," the DEP and the employees' local union representative requested that the DOP grant a one time rule relaxation of the one-year supervisory experience eligibility requirement for taking the HSMS1 examination. On July 28, 2005, the Board issued a seventeen-page written decision, granting the request, which, as a result, mooted appeals from fifteen employees who had challenged a determination of the Division of Selection Services, concluding they had not met the supervisory experience requirement for the promotional examination.

After the rule relaxation, twenty-nine Division employees applied to take the promotional examination, and twenty-eight were found eligible. The promotional examination was conducted in August and September 2005, which resulted in an employment roster of twenty-three eligibles. On September 29, 2005, the DOP promulgated a certification containing the names of the top twelve eligibles. Asplen and Reardon were ranked second and seventh, respectively. On October 17, 2005, the eligibles interviewed with the Selection Panel, consisting of four DEP employees, three of whom were not employed in the Division. The interview process consisted of a standard set of four questions, from which the candidates' responses were numerically rated by each panel member. "The numeric ratings were then compiled and a 'ranking' was developed based on the scores. The panel then used the formal promotional list and the interview scores as a means for making the final selection."

Eight individuals from the certified list of twelve eligibles were appointed to the HSMS1 position. Although appellants were ranked second and seventh following the written examination, they were bypassed for promotion. On December 14, 2005, appellants appealed their bypass for promotion and requested that the Board reconsider its July 28, 2005 decision relaxing the one-year supervisory experience eligibility requirement for the HSMS1 title.

In support of their request for reconsideration of the Board's relaxation of the one-year supervisory experience eligibility requirement, appellants argued that their request was timely because an appeal of that ruling made prior to the examination would have been premature, that is, if appellants were to have been selected to fill one of the eight available positions, then their objections to the rule relaxation would have been moot. As to their bypass for promotion, appellants argued that the appointments made from the promotional list were arbitrary and unreasonable because the DEP failed to provide an adequate explanation as to why "the appointees were selected instead of a higher rank eligible or an eligible in the same rank." The appellants also contended that the DEP had violated the "Rule of Three" when making selections from the certified list of eligibles. Lastly, appellants asserted that the selection of all four female candidates was "discriminatory with respect to Asplen."

On October 5, 2006, the Board issued its final decision, denying appellants' request for reconsideration of the relaxation of the one-year supervisory experience eligibility requirement, determining that the request was time barred; and moreover, appellants had failed to present any new evidence that the Board had not already previously considered when it granted the rule relaxation on July 28, 2005. The Board denied appellants' appeal challenging their bypass for promotion, determining that: 1) the DEP had "in fact, substantiated that it utilized an impartial, valid, non-discriminatory methodology in making its selections"; and 2) ...


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