IN THE MATTER OF YOBANY MARTI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF YOBANY

MARTI, COUNTY CORRECTION

SERGEANT (PC2666J), CUMBERLAND

COUNTY.

___________________________________

August 19, 2015

Submitted August 5, 2015 Decided

Before Judges Reisner and Espinosa.

On appeal from the Civil Service Commission,

Docket No. 2012-1850.

Alterman & Associates, attorneys for appellant

Yobany Marti (Matthew R. Dempsky, on the brief).

John J. Hoffman, Acting Attorney General,

attorney for respondent Civil Service

Commission (Pamela N. Ullman, Deputy Attorney

General, on the brief).

Theodore E. Baker, Cumberland County Counsel,

attorney for respondent County of

Cumberland Department of Corrections.

PER CURIAM

Yobany Marti, a corrections officer at the Cumberland County Jail (appointing authority), appeals from a November 29, 2011 final administrative action (FAA) of the Civil Service Commission (Commission), and from the Commission's July 18, 2013 FAA denying her request for reconsideration.1 Having reviewed the record in light of the applicable legal standards, we affirm substantially for the reasons stated by the Commission in its November 29, 2011 decision. See R. 2:11-3(e)(1)(D); In re Stallworth, 208 N.J. 182, 194 (2011).

Before the Commission, Marti contended that the appointing authority twice unfairly bypassed her for promotion to sergeant, in favor of persons ranked lower on the promotional list. She asserted that she was passed over as a reprisal, because she previously filed a discrimination complaint. See N.J.S.A. 10:5-12(d) (prohibiting an employer from retaliating against an employee because she has complained about discrimination). Invoking the Rule of Three, she also asserted that the individual chosen for the second promotion was not one of the top three interested eligible candidates on the list. See N.J.S.A. 11A:4-8; N.J.A.C. 4A:4-4.8(a)(3).

In response, the appointing authority presented evidence that the first successful candidate, who was ranked within the top three on the list, had a more favorable disciplinary record than Marti and performed better at the interview. The appointing authority explained that the second successful candidate was within the top three, because the person just above her on the list withdrew his name from consideration and therefore was not an "interested" eligible. See N.J.A.C. 4A:4-4.8(a)(3) (requiring the appointing authority to make the appointment from among "the top three interested eligibles").2 The appointing authority further explained that the second successful candidate had paralegal training as well as thirty college credits, and had demonstrated leadership qualities, and was therefore considered better qualified than Marti or the other eligible candidate.

In a lengthy and detailed written decision, the Commission found that the appointing authority presented legitimate non-retaliatory reasons for bypassing Marti each time, and there was no evidence that those reasons were pretexts for retaliation. See In re Foglio, 207 N.J. 38, 43 (2011). The Commission agreed with the appointing authority that the second successful candidate was properly considered under the Rule of Three, because a candidate who withdraws his name from consideration is not an "interested" eligible.

On this appeal, Marti once again argues that the individual who declined to be considered for this sergeant promotion was nonetheless an "interested" eligible. Her contention is without sufficient merit to warrant discussion beyond the following brief comments. R. 2:11-3(e)(1)(E). In support of her argument, Marti quotes language from In re Foglio, supra, 207 N.J. at 45, and In re Martinez, 403 N.J. Super. 58, 72 (App. Div. 2008), generally describing the Rule of Three. However, those cases do not address or even touch upon the issue Marti is raising here, i.e., whether a candidate who expressly indicates that he is not interested in being considered for an available promotional position must nonetheless be considered an "interested eligible" for purposes of the Rule of Three.

We owe deference to an agency's reasonable construction of its authorizing statute and its own regulations. See SJC Builders, LLC v. State of N.J. Dep't of Envtl. Prot., 378 N.J. Super. 50, 54 (App. Div. 2005). We find nothing unreasonable in the Commission's interpretation of the term "interested eligible." We also agree with the Commission that, both times, the appointing authority gave sufficiently specific, legitimate explanations for bypassing Marti and choosing another candidate. See Foglio, supra, 207 N.J. at 49. We find nothing arbitrary in the Commission's conclusion that Marti failed to demonstrate that those explanations were pretextual.

Affirmed.

1 Marti's brief does not address alleged errors in the July 18, 2013 decision denying reconsideration, and that aspect of her appeal is therefore waived.

2 After the next highest individual on the list withdrew his name from consideration, the appointing authority actually sought and obtained the Commission's permission before interviewing the second successful candidate.