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In re Fasanella


October 5, 2009


On appeal from the Merit System Board, Department of Personnel, Docket Nos. 2008-1414 and 2008-3053.

Per curiam.


Argued telephonically May 26, 2009

Before Judges Axelrad, Messano and Kestin.

John Fasanella, a sheriff's officer in Mercer County, appeals from a decision of the Merit System Board (Board) upholding adverse administrative determinations regarding a promotional examination for lieutenant. Fasanella argues that the eligibles list resulting from the initial examination should have been conditional pending his return from active military service, that his name should have been added to the eligibles list as first-ranked following the result of a make-up examination in which he participated after his return from active military duty, and that he was entitled to veteran's status in that listing. We affirm in part, reverse in part, and remand.

In its ruling on a consolidated matter, the Board also upheld a determination by the Division of Selection Services that Fasanella was ineligible for a captain's examination because he did not hold a permanent position in the title to which that examination was open. In his brief in the instant matter, Fasanella notes his withdrawal of the appeal from the latter decision.

The promotional examination for lieutenant was announced with a closing date of December 21, 2004. Fasanella was one of nine individuals who applied for and were admitted to that examination. The examination was conducted in written form on June 9, 2005; however, Fasanella, who was on active military duty from May 12, 2004 to June 25, 2006, was unavailable to take the examination on the date it was given.

The June 9, 2005 examination resulted in a four-name eligibles list, promulgated on September 29, 2005, with an expiration date of September 28, 2008. The first-ranked person on that list, a non-veteran, was appointed effective December 1, 2005.

On July 24, 2006, shortly after Fasanella's return from active military duty, the Department of Military and Veterans Affairs granted his application for veteran's status. He made several requests of the Department of Personnel (DOP) to schedule his make-up examination for the lieutenant position. His examination for that position occurred in June 2007. A memorandum from DOP, dated September 10, 2007, noted an "employment list change" with Fasanella ranked first on the list for Sheriff's Officer--Lieutenant in Mercer County with veteran's status. An October 15, 2007 memorandum from the Sheriff's Office to Fasanella advised that the ranking had been modified as "for future certifications only." Fasanella promptly filed his internal appeal from the latter determination.

Subsequently, DOP notified Fasanella that his veteran's status designation had been incorrect and that the eligibles list had been corrected to reflect his rank on the then-existing list as "A1 non-veteran." Fasanella appealed that decision.

In considering the issues raised in the two appeals, the Board rejected Fasanella's contention that he was entitled to the lieutenant appointment because he was, ultimately, first on the eligibles list and had veteran's status. The Board determined that Fasanella did not qualify for veteran's status at the time the list was certified. The Board also decided that the latitude conferred on the appointing authority by operation of the "rule of three" validated the appointment of the person who had been designated, notwithstanding that he was second on the list after Fasanella's name had been added.

On this appeal, Fasanella contends the Board was mistaken and he is entitled to the lieutenant appointment. He argues, inter alia, that the Board erred in its interpretation and application of the rights conferred by statute protecting persons on leave for active military service, that "the eligible[s] list . . . should have been labeled as 'conditional' pending [his completion of] the examination" upon his return from active military duty, that such errors as occurred "may be corrected at any time and may result in a change in ranking," and that he "is entitled to veteran['s] status."

On oral argument of the appeal, counsel for Fasanella informed us that he had applied for retirement as of July 31, 2009. The issues before us, therefore, resolve themselves to questions of back-pay and benefits entitlement in the event Fasanella ultimately prevails.

In reviewing the decision of an administrative agency, we are bound to accord "substantial deference to the agency's expertise and superior knowledge of [its subject matter] field," In re Herrmann, 192 N.J. 19, 28 (2007), and its interpretation and implementation of the statute and regulations it is charged with enforcing, see In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The usual deference is not required, however, where the agency, in rendering its decision, did not follow the law, failed to base its findings and conclusion on substantial evidence in the record, or otherwise acted arbitrarily, capriciously or unreasonably. See Herrmann, supra, 192 N.J. at 27-28; Atlantic City Med. Ctr. v. Squarrell, 349 N.J. Super. 16, 22 (App. Div. 2002). In conducting our review and evaluation, we are not bound by the agency's interpretation of law, whether based on statute or its own regulations. See In re Taylor, 158 N.J. 644, 658 (1999); Squarrell, supra, 349 N.J. Super. at 33.

It is clear that the Board, in rendering its decision, did not adequately consider federal law governing the subject matter area or its impact upon the situation presented. The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C.A. §§ 4301 to 4335, which explicitly pre-empts state law that reduces or restricts the rights conferred by federal law, see 38 U.S.C.A. § 4302(b), controls the outcome.

Among other protections afforded by USERRA, a person who is absent from employment because of military service for less than five years is entitled to reemployment rights and benefits if he "has given advance written or verbal notice of such service to [his] employer . . . and . . . reports to, or submits an application for re-employment to, such employer[.]" 38 U.S.C.A. § 4312(a). These rights and benefits encompass both "the seniority [an employee] would have acquired by virtue of continued employment but for his absence in military service[,]" Tilton v. Missouri Pac. R.R. Co., 376 U.S. 169, 181, 84 S.Ct. 595, 602, 11 L.Ed. 2d 590, 597 (1964), and promotional opportunities, see Goggin v. Lincoln St. Louis, 702 F.2d 698 (8th Cir. 1983), including those emanating from promotional examinations, see Fink v. City of New York, 129 F. Supp. 2d 511 (E.D. N.Y. 2001).

The Act specifies that public employment by the states or their agencies and political subdivisions is within the scope of its provisions. See 38 U.S.C.A. § 4303(4)(A)(iii), (14). Although the Act establishes a particularized enforcement mechanism, we discern no reason why its provisions and policies should not apply in the administrative and quasi-judicial processes by which employee rights and benefits in public employment are determined.

The Act's stated purposes include "eliminating or minimizing the disadvantages to civilian careers and employment which can result from [military] service; [and] . . . providing for the prompt reemployment of such persons upon their completion of such service[.]" 38 U.S.C.A. § 4301 (a). Liberal construction is clearly required to achieve the articulated ends. See Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 303 (4th Cir. 2006); Duarte v. Agilent Techs., Inc., 366 F. Supp. 2d 1039 (D. Colo. 2005). Nevertheless, certain factual premises must first be established, including whether the qualification standards of the Act have been met and whether the employer can satisfy its burden to prove that certain narrow criteria exist validating its failure to reemploy or promote the protected person. See, e.g., 38 U.S.C.A. § 4312(d).

It is not our place to make such determinations of fact; that is the duty of the Board. See Herrmann, supra, 192 N.J. at 28. However, it appears from the record before us that Fasanella furnished the required notices and satisfied the other particular qualifications for the protections conferred by federal law, 38 U.S.C.A. §§ 4312, 4313, 4316. He was, therefore, entitled to invoke those protections, and his rights to the promotion he sought must be redetermined under the eligibles list that included his name.

We are mindful of the Board's apparent concern that broad application of the protections afforded by USERRA would result in all promotional appointments to classified positions being conditional because potential candidates might be engaged in active military service. Such an onerous result may be avoided when, in a particular case, an employer can demonstrate, consistently with the standards of USERRA, that its decision not to remploy or promote was necessary to the efficient operation of its workforce. In this case, no such proof was ever adduced before the Board.

The Board was correct, however, for the reasons it stated, that Fasanella was not entitled to veteran's status on the list. Veteran's status is solely a creation of State law. N.J.S.A. 11A:5-1b limits the application of veteran's status to persons who meet the definition of one "who has served in the active military . . . service of the United States" and who has "received a determination of [that] status no later than eight days prior to the issuance of an employment list, for which that individual received a passing score on an examination[.]" N.J.S.A. 11A:5-1a. Even if Fasanella could prevail on the other issues he raises, it is clear that, when the lieutenant examination was announced and when Fasanella qualified for the examination, he had not yet engaged in his active military service.

Manifestly, the protections afforded Fasanella under federal law are not designed to expand his employment rights on return from active military service, but only to preserve those rights he possessed at the time his active military service began, as well as those that would accrue during his absence. His rights regarding the list in question, including his entitlement to inclusion on the list as a result of the make-up examination he took, must be seen to relate back to the time Fasanella and others qualified to sit for the exam and the date on which the list was initially promulgated. Cf. Brown v. Department of Pers., 257 N.J. Super. 84 (App. Div. 1992). Therefore, we agree with the Board that Fasanella did not qualify for veteran's status in respect of the eligibles list in this matter.

With the veteran's status issue resolved in this way, the "rule of three" clearly applies to the situation at hand. Given the protections conferred by USERRA, Fasanella is entitled to reconsideration of the appointment from the superseding list on which his name appeared as first-ranked, without veteran's status, subject to the "rule of three."

We affirm the Board's decision regarding Fasanella's lack of veteran status. We remand for the Board to determine what the promotions result would have been or should have been if the choice had been properly made, i.e., from the list as ultimately modified.

Affirmed in part; reversed in part; remanded. We do not retain jurisdiction.


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