IN THE MATTER OF WAYNE ROCCO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2573-05T12573-05T1

IN THE MATTER OF WAYNE ROCCO,

CORRECTION CAPTAIN (PS8784I),

EDNA MAHAN CORRECTIONAL FACILITY

FOR WOMEN, GARDEN STATE RECEPTION

AND YOUTH CORRECTIONAL FACILITY,

MID-STATE CORRECTIONAL FACILITY

AND EAST JERSEY STATE PRISON

 

Argued March 21, 2007 - Decided April 9, 2007

 
Before Judges Winkelstein and Baxter.

On appeal from a Final Administrative Action of the Merit System Board, DOP Docket Nos. 2005-1831, 2005-2403, 2005-3530 and 2006-58.

Mario A. Iavicoli argued the cause for appellant, Wayne Rocco.

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent, Merit System Board (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

PER CURIAM

Appellant, Wayne Rocco, appeals from the December 7, 2005 final administrative decision of the Merit System Board (Board) that upheld decisions of four State correctional facilities (collectively, the appointing authorities) to bypass appellant on the promotional list for a Correction Captain position within the New Jersey Department of Corrections (DOC). On appeal, he claims he submitted sufficient evidence of age discrimination to warrant a hearing before an Administrative Law Judge (ALJ); the oral tests provided to the candidates by the appointing authorities violated the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6; and he was improperly denied discovery. We find his arguments to be without merit. Consequently, we affirm.

In 2004, appellant, a Correction Lieutenant, scored first on the DOC written examination for the position of Correction Captain. At that time, he had completed twenty-eight years of service with the DOC and was forty-nine years old.

He applied for vacant DOC Correction Captain positions at the Edna Mahan Correctional Facility for Women, the Mid-State Correctional Facility, the East Jersey State Prison, and the Garden State Reception and Youth Correctional Facility, and was bypassed in each instance in favor of other applicants. As part of the application process, he and the other applicants were given oral examinations at each facility.

At the Edna Mahan facility, he was bypassed in favor of three other individuals: Robert Johnson, Craig Mayhan, and Cathy Buchanan. Johnson was the same age as appellant, Mayhan two years older, and Buchanan ten years younger. At the Garden State facility, he was bypassed in favor of John Janeczek, who was eleven years younger than appellant. Mid-State bypassed appellant in favor of Stephen McWherter, who is two years older than appellant, and East Jersey bypassed appellant in favor of Harold Rosen and Robert Flowers, who are respectfully four years older and nine years younger than appellant.

Appellant requested discovery documents regarding the oral examinations given at each interview. The Department of Personnel provided him with some, but not all, of the requested information.

The DOC procedure for conducting panel interviews requires that panels consist of three voting members, who "evaluate the candidates by reviewing their credentials, rating responses to a pre-established set of interview questions and assessing the candidates' oral communication skills and understanding of the tasks associated with the position." The evaluation method "must be the same for all candidates" and "candidates attaining the highest rating will be recommended by the panel for final interviews." The interview consists of five "general" questions and five "job-specific" questions. The panel rates the candidates' responses to each question on a scale of one to five; five is the highest and one means the answer is non-responsive. The DOC provides examples of the questions to be asked of the candidates:

For example, the answer to the question "Why are you interested in the position?" should reflect the candidate's ability to express why he/she is interested in the position and should demonstrate the ability to link his/her experience to his/her interests. An answer such as: "The position represents a promotion," without further clarification, would be an example of an inadequate response. When asked "What experience and abilities do you have that qualify you as a supervisor and manager?" the candidate's answer should include: experience in conducting performance evaluations, setting work priorities, establishing new policies and procedures, preparing budget requests, assessing and adjusting the workloads of employees, hiring employees, providing advice to managers, decisionmaking and accountability.

The discovery provided to appellant included interview sheets from Edna Mahan. According to the notes of the interviewers, appellant scored the lowest numerical rating based on his responses to the questions of the four candidates interviewed. One panelist commented that appellant "appear[ed] to lack motivation." By contrast, panelists commented that candidate Buchanan "took initiative to take the time to answer the questions in detail," and that she "appear[ed] respectful, knowledgeable, and willing to cope and learn about the female offenders." Candidate Mayhan "presented himself very well during this interview," and he was considered a "good candidate, knowledgeable, experienced and well spoken." The panel observed that Lieutenant Johnson was "very self-confident in his verbal interview. Has nineteen years of DOC service. Came off very well in this interview." Johnson was considered to be a "very well mannered, intelligent, well spoken individual. Confident [with] his answers, respectful, knowledgeable, appears flexible and a good candidate to work with the female population."

Interview sheets from Garden State showed that appellant's numerical score was lower than that of the candidate chosen for the position, John Janeczek. The panelists' comments regarding appellant read: "Responses not impressive. General lack of knowledge when responding to operation questions. Candidate not impressive. Not a good candidate for Captain." The panel found that his responses were inadequate, and he "missed key issues on most questions." On the other hand, the panel concluded that Janeczek,

demonstrated understanding of leadership role and operational procedures. Although he did not hit on all points outlined as appropriate responses he did supply the key elements to responding to operational emergencies. . . . [O]verall answered questions thoroughly. Ambitious & motivated. Appears to strive to cover all bases. Good candidate for Captain. . . . knowledgeable of the procedure regarding the questions he was asked.

The Board consolidated the appeals from the decisions of the four appointing authorities and reviewed them on the written record, denying appellant a hearing, finding "no material issue of disputed fact [had] been presented which would require a hearing." The Board concluded that appellant's age discrimination claims were unsupported because "all but two of [the] individuals selected were also over forty and . . . three were older than the appellant." The Board further stated that,

with regard to the two individuals below age forty, Buchanan and Janeczek, a review of the interview sheets reveal[s] that the interviewers indicated that compared with the appellant they were the better candidates. Specifically, it was noted that the appellant lacked motivation, his answers were inadequate, he displayed a general lack of knowledge when responding to "operation questions," and he missed key issues on most questions. However, Buchanan appeared respectful, knowledgeable and willing to learn about the female population and Janeczek demonstrated an understanding of the leadership role and operational procedures, appeared knowledgeable, ambitious and motivated, overall answered questions thoroughly and appeared to strive to cover all bases.

Against this factual and procedural history, we address appellant's claims. We begin with his contention that he was entitled to a hearing before an ALJ.

Not every party dissatisfied with an administrative action is entitled to a hearing. A hearing before an ALJ is required only for a "contested case," which includes proceedings involving constitutional rights or obligations required by statute to be determined by an agency after an opportunity for a hearing. See N.J.S.A. 52:14B-2(b); N.J.S.A. 52:14B-10; see also In re Crowley, 193 N.J. Super. 197, 208-09 (App. Div. 1984) ("A party affected by an administrative action who desires a hearing must first demonstrate the existence of a constitutional or statutory right to such hearing."). Appellant has not established these criteria.

To establish a constitutional right to a hearing, an individual must show, first, that a genuine dispute of material fact exists and, second, that he has a constitutionally protected interest. Crowley, supra, 193 N.J. Super. at 209. A protected interest is one that is a particularized property right or other special interest. Ibid. "'To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.'" Ibid. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972)).

In Crowley, supra, a parole officer was bypassed for positions to which he applied, and received written notification without explanation. 193 N.J. Super. at 200-01. The court found that the appellant did not have a constitutional right to a hearing because he had not demonstrated that he had "an interest in the position of senior parole officer protected by procedural due process." Id. at 210. "Since a mere subjective 'expectancy' is not an interest in property protected by procedural due process, [the] appellant was not entitled to a hearing on constitutional grounds." Ibid. (internal citation omitted).

Here, appellant ranked first out of the 120 candidates on the eligible list for the Correction Captain position. Nevertheless, like in Crowley, his placement on the list did not create a "legitimate claim of entitlement" to the Correction Captain position that would entitle him to a hearing. Id. at 209.

Nor has appellant demonstrated a statutory right to a hearing, or that a genuine dispute of material fact exists. As to the latter, the material facts are essentially undisputed; the question is not what are the facts, but whether the Board properly applied the facts in arriving at its decision. Accordingly, appellant's claim for a hearing is unsupported by the record.

We next turn to appellant's substantive claim, that he was improperly passed over for the Captain's position. New Jersey's Constitution and the New Jersey Civil Service Act express a general policy that selection for State employment should be dependent on merit. Brady v. Dep't of Pers., 149 N.J. 244, 254 (1997). To carry out this policy, the Civil Service Act creates the Department of Personnel and endows it with broad power over the selection and retention of State employees. Ibid.

Regulations implementing the Civil Service Act, N.J.A.C. 4A4-1.1 to -7.12, provide that an appointing authority must select from among one of the three highest scoring eligible candidates from an open competitive or promotional examination, known as the "rule of three." Local 518, N.J. State Motor Vehicle Employees Union v. Div. of Motor Vehicles, 262 N.J. Super. 598, 600 (App. Div. 1993). The rule states that

[u]pon receipt of a certification, an appointing authority shall . . . [a]ppoint one of the top three interested eligibles (rule of three) from an open competitive or promotional list, provided that: i. Disabled veterans and then veterans shall be appointed in their order of ranking from an open competitive list; ii. If the eligible who ranks first on a promotional list is a veteran, then a non-veteran may not be appointed . . . .

[N.J.A.C. 4A:4-4.8(a)3.]

This provision is intended to guarantee the appointing authority an opportunity to exercise minimal discretion in the selection of particular employees. Crowley, supra, 193 N.J. Super. at 210; see also Terry v. Mercer County Bd. of Chosen Freeholders, 86 N.J. 141, 149 (1981) ("purpose of the 'rule of three' is to narrow hiring discretion, not to eliminate it").

Appellant, who is not a veteran, complains that the actions taken by the appointing authorities constituted age discrimination, a violation of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. To establish age discrimination pursuant to the LAD, "an employee must 'show that the prohibited consideration[, age,] played a role in the decision making process and that it had a determinative influence on the outcome of that process.'" Bergen Commercial Bank v. Sisler, 157 N.J. 188, 207 (1999) (quoting Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 344 (App. Div.), certif. denied, 152 N.J. 189 (1997)). The employee may attempt to establish discrimination by either direct or circumstantial evidence. Id. at 208.

Here, appellant fails to establish evidence of age discrimination. Five out of the seven candidates for the Captain's position were over forty years old; three of those selected were older than appellant, and one was only six months younger. The two candidates who were not over age forty scored substantially higher than appellant during the interviews. These facts do not support an inference of age discrimination. Simply put, appellant has provided no evidence that his age played a part in the institutions' decisions to bypass him on the Captain's list.

Appellant contends that the failure to promote him was impermissibly based on the consideration that he would retire in two years. He claims that at his interview at Edna Mahan, the panelists asked him how much longer he intended to work and when he was going to retire. He asserts that prior to his panel interview at Garden State, Acting Chief Buffa questioned him about why he had not retired because he only had ten more months before he "[got] out." Appellant says that he was pointedly told not to mention to the panelists that he intended to retire within two years because administrators would want to hire someone who would remain with the DOC longer. Though these statements might demonstrate that appellant's plans for retirement affected the decisions not to promote him, an employer is permitted to consider the anticipated length of time an applicant intends to remain employed.

In Young v. Hobart West Group, 385 N.J. Super. 448, 457 (App. Div. 2005), a forty-eight-year-old employee claimed that she was terminated because of her age where she presented evidence that her supervisor had mentioned to other employees that she was not a "long term" employee because she was soon going to retire. The employee claimed that a reasonable interpretation of the comments supported an inference of age discrimination. Id. at 462. The employee's supervisor admitted that he wanted branch managers to stay for "the long haul," and considered that the employee might soon retire. Id. at 457.

The court determined that the supervisor's comment regarding the employee's near retirement did not present evidence of age discrimination. Id. at 462. In upholding the trial court's grant of summary judgment to the employer, we said that "employers are entitled to consider the long-term potential of employees when making business decisions." Id. at 463; see also Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (employers are free to consider which employees will contribute to the company over the long haul when making reduction in force decisions).

Nor has appellant provided a cogent reason why an individual's eligibility for retirement should not be a consideration when a State agency seeks to fill a vacant position. Hiring an individual with some potential longevity would seem to us to be more reasonable, all other factors being equal, than hiring someone who would soon be retiring, necessitating beginning the hiring process anew, with its concomitant delays and expense and general adverse effects on an organization.

We next turn to appellant's argument that the administration of oral examinations by the appointing authorities violates the Civil Service Act. That argument too is without merit.

In making civil service appointments, the New Jersey Department of Personnel is permitted to administer examinations that may include both oral and written tests, N.J.A.C. 4A:4-2.2, and the Department of Personnel Commissioner is authorized to delegate the responsibility for administering examinations to the appointing authority. N.J.S.A. 11A:2-12. The statutory scheme provides an appointing authority with discretion in its appointment process.

An example of this principle is found in Commc'n Workers v. N.J. Dep't of Pers., 154 N.J. 121, 129-30 (1998), where the Court approved the Department of Personnel's plan to increase the number of eligible applicants generated from the test rankings from three to ten because it preserved the "rule of three's" purposes: to narrow, but not eliminate, the appointing authority's discretion, and to ensure that employment discretion was not exercised in a manner inconsistent with merit consideration. The Court observed that candidates who score lower on a written examination might "possess more experience, education or training, or superior communication, managerial, or other skills that are not readily reflected in the exam scores." Id. at 130; see also Marranca v. Harbo, 41 N.J. 569, 576 (1964) ("no test can fully determine fitness"). Thus, here, informed by these principles, we conclude that the appointing authorities' use of oral examinations was within their discretion and did not violate the Civil Service Act.

Appellant's claim that the Civil Service Act requires the DOC to provide reasons for bypassing him in favor of other candidates is also without merit. An appointing authority is not compelled, "as a matter of course, to apprise an unsuccessful candidate of its reasons for promoting a lower ranking eligible individual." Local 518, supra, 262 N.J. Super. at 602.

Appellant's final argument, that he is entitled to additional discovery, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D), (E).

Affirmed.

 

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A-2573-05T1

April 9, 2007