GARY VICTOR v. NEW JERSEY DEPARTMENT OF PERSONNEL, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0604-05T10604-05T1

GARY VICTOR,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF

PERSONNEL and COMMISSIONER IDA

J. CASTRO, individually and in her

official capacity,

Defendants-Respondents.

__________________________________

 

Argued November 6, 2006 - Decided December 7, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2191-04.

David A. Gies argued the cause for appellant.

Lisa Dorio Ruch, Deputy Attorney General, argued the cause for respondents (Stuart Rabner, Attorney General, attorney; Ms. Ruch, on the brief).

PER CURIAM

Plaintiff Gary Victor (Victor) appeals the dismissal of his statutory and constitutional claims against the State of New Jersey Department of Personnel and Commissioner Ida J. Castro (collectively, the DOP) for failure to state a cause of action. We affirm.

Victor was an employee of the County of Mercer working at the Mercer County Corrections Center as a correctional officer. On November 19, 2001, Victor took a written promotion examination for the position of County Corrections Sergeant that was administered by the DOP. The examination was a multiple choice test, and the answers were "keyed." Applicants needed to correctly answer forty-six out of eighty questions to qualify for promotion. Victor failed the examination with a score of forty-two. The DOP's orientation guide provided as follows:

If there is any objection to the manner in which your examination is administered or to the appropriateness of the examination material, we need to know right away so that a fair solution can be found BEFORE examination scores are released. Appropriate forms will be provided to you for that purpose at the examination center.

On December 29, 2001, Victor and two other applicants filed an appeal to the Merit System Board (the MSB) regarding various questions contained in the examination. While that appeal was pending, the DOP on February 2, 2002, released the examination scores of the other applicants and notified Victor of his ineligibility for promotion to sergeant. More than a year later on April 29, 2003, the MSB issued a final administrative action that resolved Victor's administrative appeal. It held that one of the questions was defective and was, thus, eliminated from the scoring. This modification, however, did not affect defendant's eligibility for promotion.

On June 4, 2003, plaintiff sent a letter to Henry Maurer, Director of the MSB. Victor stated that upon his review of the examination, he answered fifty-six questions correctly. He appealed twenty-four allegedly defective questions to the MSB, received their decision, and requested an opportunity to review the exam. On July 21, 2003, Janet Hoesly, DOP Personnel and Labor Analyst, replied to Victor's letter. Hoesly explained that

candidates are instructed to call the [DOP] within seven days of the exam administration date to schedule an appointment to review the test booklet and the keyed responses. After candidates receive scoring notices, they are instructed to call within 20 days of the notice date for an appointment if they wish to review their answer sheet and the scoring key. See N.J.A.C. 4A:4-6.4. As such, candidates are not permitted to review the test booklet, the scoring key and their answer sheet at the same review. A review of the record indicates that candidates for the subject exam were sent examination results dated February 6, 2002. Thus, you had the opportunity to make an appointment to review your answer sheet and the scoring key within 20 days of February 6, 2002.

More than a year later on August 23, 2004, Victor filed this action against the DOP in the Law Division alleging substantive and procedural due process violations, equal protection violations, and claims under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, Title VII, 42 U.S.C.A. 2000e to -17, and the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, all in connection with the promotion examination. On January 7, 2005, the DOP responded by filing a motion to dismiss or, in the alternative, to transfer the matter to the Appellate Division.

On February 10, 2005, the motion judge placed his decision to grant the DOP's motion to dismiss on the record. He found that Victor suffered no compensable harm, that there was no basis for a race-based claim, nor was there any unfair dealing.

On October 11, 2005, Victor filed an untimely appeal and on October 31, 2005, we granted leave to file a notice of appeal nunc pro tunc. Victor contends that the motion judge erred in dismissing his complaint for failure to state a claim. He asserts that such a motion must be denied if a cause of action is even suggested by the facts. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (requiring the court to review the complaint "'in depth and with liberality'") (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). He urges that the motion judge failed to afford him "every reasonable inference of fact" and failed to "'ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Ibid.

Having carefully considered all of the arguments advanced on behalf of Victor, we conclude that the result reached by the motion judge must be affirmed, but on other grounds. The decision of the MSB on April 29, 2003, was a final agency action appealable as of right to the Appellate Division. N.J.S.A. 11A:2-6; Rule 2:2-3(a)(2). An action contesting final agency action, no matter how styled, is not cognizable in the Law Division where the essence of the relief is review of agency action. Mutschler v. N.J. Dep't of Envtl. Prot., 337 N.J. Super. 1, 9 (App. Div.), certif. denied, 168 N.J. 292 (2001); see also Sod Farm Assocs. v. Twp. of Springfield, 366 N.J. Super. 116, 132-33 (App. Div. 2004). This is so even where the claim is of constitutional proportions. Pascucci v. Vagott, 71 N.J. 40, 51-54 (1976) (holding that claim contending an agency regulation violated equal protection clause was cognizable only in the Appellate Division). We are the exclusive forum for review even where there appears to be concurrent or overlapping jurisdiction with the Law Division. Ibid.; Doe v. N.J. Dep't of Human Servs., 165 N.J. Super. 392, 399-400 (App. Div. 1979). See also Shop-Rite of Hunterdon County, Inc. v. Twp. Comm. of Raritan, 131 N.J. Super. 428 (App. Div. 1974), certif. denied, 67 N.J. 94 (1975).

Although we granted leave to appeal nunc pro tunc from the order of the Law Division, we decline to treat this appeal as a timely appeal from the final agency action. The time to appeal from the April 29, 2003, decision of the MSB expired on June 16, 2003, and this appeal was filed nunc pro tunc to March 28, 2005. As a consequence, the appeal from the final agency action is long out of time.

Affirmed.

 

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A-0604-05T1

December 7, 2006