CORDELIA JOHNSON v. PATHMARK STORES, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4499-07T34499-07T3

CORDELIA JOHNSON,

Appellant,

v.

PATHMARK STORES, INC.,

Respondent.

________________________________

 

Submitted November 4, 2009 - Decided

Before Judges Carchman and Ashrafi.

On appeal from the State of New Jersey, Division on Civil Rights, ED 21 WB-53085.

Cordelia Johnson, appellant pro se.

Proskauer Rose LLP, attorneys for respondent Pathmark Stores, Inc. (John P. Barry, Wanda L. Ellert and Lauren B. Palais, on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Leland S. McGee, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Cordelia Johnson appeals a final decision of the New Jersey Division on Civil Rights ("the Division") finding no probable cause for her discrimination complaint against her former employer, Pathmark Stores, Inc. We dismiss the appeal.

On March 28, 2007, Johnson filed a verified complaint with the Division and the federal Equal Employment Opportunity Commission (EEOC) alleging that Pathmark discriminated against her because of her race and age. The Division obtained information from Johnson about the specifics of her allegations and later conducted an investigation, interviewing Johnson and representatives of Pathmark.

Johnson, a fifty-six year-old African-American, had worked as a deli clerk at Pathmark since 2004. About fifteen months after she began employment, one of her supervisors encouraged her to apply for promotion to a managerial position and also informed her that she must take a manager's test administered by Pathmark. On April 19, 2006, Johnson went to another Pathmark location to take the test. The test was not being administered on that date, but a human resources employee allowed her to take the test because she had traveled some distance for that purpose. Johnson was told that she would receive the results in about two weeks.

Months passed, and Johnson did not hear anything about her performance on the test. In the meantime, three Caucasian employees in their forties and one twenty-year-old mixed-race employee were given promotion opportunities as manager-trainees, but Johnson was not offered a similar position. After being passed over again in February 2007, Johnson stopped going to work and was eventually terminated from her job.

In response to her discrimination complaint, Pathmark initially asserted that Johnson had not taken the manager's test and had not applied for any managerial positions. However, hearing Johnson insist at a conference conducted by the Division that she had taken the test and notified her supervisor that she was seeking a promotion, Pathmark conducted further investigation of its files and found Johnson's actual test papers. Pathmark determined that a temporary employee had failed to input the test results correctly into the computer system, thus failing to make a record of Johnson's test.

The actual test documents, which are part of the record on this appeal, showed that Johnson had passed one part of the test but had received a failing score on the other part, arithmetic. Passing marks on both parts were required for promotion. Consequently, Pathmark revised its response to Johnson's discrimination complaint asserting that she was not qualified for promotion.

Based on this information, the Division made written findings regarding its investigation and concluded that there was insufficient evidence to support Johnson's claim of race and age discrimination. By notice dated March 7, 2008, and mailed to Johnson on March 13, 2008, the Division informed her of its decision to close her file because it had found no probable cause to credit the allegations of the complaint.

Johnson filed a notice of appeal to this court on May 21, 2008.

Under Rule 2:4-1(b), appeals from final decisions of a State administrative agency must be filed within forty-five days of service of the decision. If an appeal is not timely filed, we have no jurisdiction to decide the appeal. In re Hill, 241 N.J. Super. 367, 371-72 (App. Div. 1990); see also Alberti v. Civil Serv. Comm., 41 N.J. 147, 154 (1963) (Appellate Division loses jurisdiction if appeal is not perfected according to the rules of the court).

On May 21, 2008, when Johnson filed her notice of appeal, sixty-eight days had passed since the Division served its decision upon her on March 13, 2008. Johnson never requested or received an extension of time to file her notice of appeal under Rule 2:4-4, and she is not excused for the late filing by any other rule. Because she did not file a timely appeal, we must dismiss Johnson's appeal.

In her reply brief, Johnson admits that she received the Division's decision about the time of its mailing on March 13, 2008, but she argues that her notice of appeal was timely because she did not receive a dismissal notice from the EEOC until about May 30, 2008, which is actually after the filing date of her notice of appeal. She suggests that she was confused by the information contained in a letter from the Division stating that she had fifteen days to have the EEOC review her allegations.

Even if we could exercise jurisdiction because of Johnson's confusion between the state and federal complaints, the relevant facts, which Johnson has not challenged, reveal that Johnson's appeal has no merit. Because she did not pass both parts of the manager's test, Johnson did not qualify for promotion to manager-trainee. The Division reached that conclusion after conducting a full investigation of her claims and after Pathmark produced the actual test papers.

The decision of an administrative agency must be upheld on appeal unless it is arbitrary, capricious, or unreasonable, or it is not supported by substantial credible evidence in the record. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985). The Division's decision to dismiss Johnson's complaint was not arbitrary, capricious, or unreasonable, and was based on the undisputed evidence that she was not qualified for promotion.

Johnson has also alleged facts in her brief that are relevant only to her federal claims. The Division did not have jurisdiction to consider those claims and the appeal before us is only from the Division's determination. We do not review the EEOC's decision to dismiss Johnson's federal claims.

Finally, Johnson argues in her reply brief that the Division's finding of probable cause does not preclude her from filing a lawsuit raising the same claims. In our disposition of this appeal, we reach no conclusion about Johnson's rights to pursue judicial remedies by filing a lawsuit.

 
The appeal is dismissed.

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A-4499-07T3

January 8, 2010