New Jersey Civil Service Law Allows for Removal of Applicant from Hiring List for Negative Employment History, Appeals Court Says

New Jersey civil service law provides employees with an effective avenue for appealing adverse employment decisions to the New Jersey Civil Service Commission.  However, in the case of Matter of Trejo, Police Officer and Union City, a New Jersey appeals court held that an employee may be removed from a civil service hiring list for a negative prior employee disciplinary history.  This decision has significant implications for how employees should handle allegations of misconduct and resulting discipline.

 

Background

Ana Trejo was a public safety telecommunicator with the Union City Police Department for ten years when she took the civil service examination for police officer.  She passed and was placed on the eligible list.  However, Union City removed Trejo from the list because of her history of civil service employee discipline during her ten year employment as a telecommunicator with the Police Department.  Her disciplinary history included minor discipline for absenteeism; being reprimanded for sharing confidential law enforcement information; and imposition of major discipline for “inappropriate conduct.”  The New Jersey Civil Service Commission gave notice to Trejo that she had been removed from the list for having an “unsatisfactory employment record.”

Trejo filed an appeal with the Civil Service Commission within the twenty day limit.

The Civil Service Commission initially denied the appeal based on the initial submission by her employer when it removed her from the list, finding that her disciplinary record was sufficient grounds for removal and closed the case.  However, Trejo requested that the Commission reconsider her appeal based on a full review of the record.  In response, the Civil Service Commission reopened the case and advised that it would consider the matter based on written arguments and documentation.

Thereafter the New Jersey Civil Service Commission issued a final decision rejecting Trejo’s request for an evidentiary hearing and denying her appeal.  She requested reconsideration, which the Commission denied.  The Civil Service Commission explained that since the only relevant facts were Trejo’s history of discipline, which was clear, there was no need for a hearing.  Because Trejo had not appealed the discipline and, in the case of her major discipline, entered into a settlement admitting the conduct (which was indeed quite inappropriate), the Commission took her disciplinary history as admitted.  Additionally, for the first time in her motion for reconsideration, Trejo claimed that she was being treated differently, apparently because she was a Hispanic woman, but the New Jersey Civil Service Commission rejected this argument because it had not been originally raised, and also because she had not identified anyone who was treated more preferentially.

Trejo appealed to the Appellate Division of the Superior Court of New Jersey.  She argued that the Civil Service Commission should have referred her appeal to the New Jersey Office of Administrative Law for an evidentiary hearing by an administrative law judge.  She argued that the Commission should not have accepted her disciplinary history as uncontested because she was told that it would remain confidential and because she was suffering from a medical condition at the time.  Finally, she argued that she was treated differently because she was a Hispanic woman.

The Appellate Division rejected Trejo’s arguments and affirmed the Civil Service Commission’s dismissal of her appeal without a hearing.

It explained that New Jersey courts will defer to the Commission’s findings of fact if it is supported by “sufficient credible evidence,” which in this case it found there was.  Moreover, it explained that civil service hiring and promotions must be made according to merit and fitness.  The Commission’s regulations in the New Jersey Administrative Code specifically provide that an eligible candidate for hiring may be removed from a civil service eligible list for an unsatisfactory prior employment history.  In this case the Appellate Division found that the evidence in the record adequately supported her removal because of her prior disciplinary history which adversely impacted her merit and fitness for a law enforcement officer position.

The court also rejected her argument that she was removed based on her ethnicity or favoritism.  It explained that the appellant bears the burden of proof in New Jersey civil service list removal appeals, and not only had she failed to identify even one person treated differently from her for any reason, much less a prohibited one, she had not presented any evidence at all of disparate treatment.

 

The Takeaway

List removal appeals are hard, and the employee bears the burden of proof.  However, when an employee provides sufficient proof that her removal from a hiring or promotional list was illegal or that the underlying rationale was false, appeal to the New Jersey Civil Service Commission provides employees with an effective remedy.

However, a significantly negative disciplinary history is adequate grounds for removal from a civil service hiring list.  Moreover, under progressive discipline, earlier discipline, even minor discipline, may lead to harsher penalties for the same misconduct after subsequent occurrences.  For these reasons, employees should appeal discipline to the New Jersey Civil Service Commission whenever their employer is wrong, or imposed too severe discipline.

 

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Our New Jersey employment attorneys represent government employees and private sector employees in all aspects of New Jersey employment law, including civil service disciplinary appeals.  Call us at (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey civil service attorneys.  We can help.