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Paul Ebert v. the Judiciary of the State of New Jersey

March 11, 2011

PAUL EBERT, PLAINTIFF-APPELLANT,
v.
THE JUDICIARY OF THE STATE OF NEW JERSEY, MIDDLESEX COUNTY VICINAGE, DEFENDANT-RESPONDENT, AND AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 73, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2506-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2011

Before Judges Wefing and Baxter.

Plaintiff appeals from a trial court order granting summary judgment to defendant Judiciary of the State of New Jersey and dismissing his complaint with prejudice.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff filed suit in February 2009 alleging in a six-count complaint that his termination from his position as a Judiciary Clerk 3 ("JC-3") was wrongful. Plaintiff premised his claim on the following factual complex.

In 2004 he applied to fill a vacant position as a Judiciary Clerk 2 ("JC-2") in the Probation Division in Middlesex County. Appointment to a classified position, such as a JC-2, is through an open competitive civil service examination. The Civil Service Commission will provide the hiring entity, in this case defendant, with a list of persons deemed eligible, generally ranked in the order of the scores they received on the civil service exam. There are two exceptions to this ranking. Disabled veterans who receive a passing score on the exam are placed at the head of the list of eligibles, N.J.S.A. 11A:5-4, and veterans who receive a passing score are placed immediately below disabled veterans and ahead of other individuals.

N.J.S.A. 11A:5-5. N.J.S.A. 11A:5-6 provides that if a disabled veteran or veteran appears on the list of eligibles, "the appointing authority shall appoint the disabled veteran or veteran in the order of ranking."

Plaintiff served in the military during the Vietnam War and received an honorable discharge; he was thus entitled to a veteran's preference, and he was appointed as a JC-2 at the end of October 2004. N.J.S.A. 11A:4-13 creates six categories of appointment, the first of which is a "regular appointment."

N.J.S.A. 11A:4-13(a) provides that such an appointment "shall be permanent after satisfactory completion of a working test period." N.J.S.A. 11A:4-15 states that "[t]he purpose of the working test period is to permit an appointing authority to determine whether an employee satisfactorily performs [his or her] duties." An individual with a regular appointment has a working test period of four months; that four-month period may be extended to six months in the discretion of the Civil Service Commission. N.J.S.A. 11A:4-15(a). If the individual performs satisfactorily during the working test period, the appointment becomes permanent. Ibid. If the individual's performance is not satisfactory, he or she may be terminated or, if the individual had previously worked in a lower title, be returned to that lower title. N.J.S.A. 11A:4-15(d).

Plaintiff started work as a JC-2 on November 15, 2004. He said when he started he found a letter on his desk referring to a four-month working test period. While he said he had no real understanding of what that meant, he did not ask anyone. His supervisor was Barbara Mason. He said she did not describe the evaluation process to him from the outset. While she disputed that assertion, that disagreement is not material to the issues before us.

Plaintiff described his duties as a JC-2 as primarily clerical. He gave the following description at his deposition

My job duties with the Probation Department were filing. Opening up e-mails. Routing process. Filing cards with reference to cases. Putting things in alphabetical order. Answering phones. Bringing other mail [to the appropriate location.]

According to Mason, plaintiff had difficulty completing tasks such as answering the phone and taking messages and was slow at other tasks such as filing. She completed a two-month evaluation on ...


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