IN THE MATTER OF MIDDLESEX COUNTY SHERIFF'S OFFICE and PHIILIP S. MANDATO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1728-16T3
IN THE MATTER OF MIDDLESEX
COUNTY SHERIFF'S OFFICE,
Respondent-Respondent,
and
PHIILIP S. MANDATO,
Charging Party-Appellant.
_________________________________
Argued January 23, 2018 – Decided March 19, 2018
Before Judges Yannotti and Carroll.
On appeal from New Jersey Public Employment
Relations Commission, P.E.R.C. No. 2015-042.
Cathlene Y. Banker argued the cause for
appellant (C. Elston & Associates, LLC,
attorneys; Catherine M. Elston and Cathlene
Y. Banker, of counsel; Cathlene Y. Banker, on
the briefs).
Arthur R. Thibault, Jr., argued the cause for
respondent Middlesex County Sheriff's Office
(Apruzzese, McDermott, Mastro & Murphy, PC,
attorneys; Arthur R. Thibault, of counsel and
on the brief; H. Thomas Clarke, on the brief).
Joseph P. Blaney, Deputy General Counsel,
argued the cause for respondent Public
Employment Relations Commission (Robin T.
McMahon, General Counsel, attorney; Joseph P.
Blaney, on the statement in lieu of brief).
PER CURIAM
Phillip S. Mandato appeals from a final decision of the Public
Employment Relations Commission (Commission), which dismissed his
unfair practice charges because they were not filed within the
time required by
N.J.S.A. 34:13A-5.4(c). We affirm.
I.
Since September 2003, Mandato has been employed by the
Middlesex County Sheriff's Office (MCSO) as a sheriff's officer.
During that time, Policemen's Benevolent Association, Local No.
165 (PBA 165), has been the majority representative for the MCSO's
sheriffs' officers and investigators below the rank of sergeant.
The Fraternal Order of Police, Lodge No. 59 (FOP 59), is a minority
representative of the MCSO's sheriffs' officers and investigators
below the rank of sergeant. In or around 2009, Mandato terminated
his membership with PBA 165 and joined FOP 59.
The MCSO is comprised of several divisions, which include the
Courts Division (CD) and the Investigations Division (ID). In July
2014, Mandato bid for a transfer from the CD, where he was then
serving, to the ID. On August 8, 2014, Sheriff Mildred S. Scott
announced the bid awards and permanent assignments. Mandato was
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one of twenty-three employees and the only member of the FOP 59
to be assigned to the ID.
On August 13, 2014, Mandato received a call from Internal
Affairs (IA) informing him that Sheriff Scott was removing him
from his assignment in the ID. According to Mandato, he was
reassigned because he had placed a so-called "nail of redemption"
in the holding cells.
1 On August 18, 2014, Mandato reported for
duty at his post in the holding cells, and he was informed that
Sheriff Scott had reassigned him to a different post in the main
courthouse "effectively immediately."
On August 19, 2014, Mandato was served with a written notice,
dated August 15, 2014, which informed him he was the subject of
an IA investigation. On August 22, 2014, Mandato submitted a report
stating that he found the "nail of redemption" in the desk drawer
at his post and hung it on a board, where it remained for several
months. On September 9, 2014, the IA interviewed Mandato.
On September 19, 2014, Mandato was served with a Notice of
Minor Disciplinary Action (NMDA). The NMDA charged Mandato with
violating the MCSO's rule pertaining to performance of duty for
placing the "nail of redemption" on the board in the holding cells
1
The record indicates that the "nail of redemption" is a
"medallion" that sits on top of a two-inch by two-inch prayer
card. The "medallion" is apparently a hand-wrought flat nail.
3 A-1728-16T3
of the main courthouse and suspended him for four days from October
6 to October 9, 2014. Mandato acknowledged receipt of the NMDA on
September 19, 2014.
On September 29, 2014, Mandato asked a superior officer if
he would be reinstated to his regular shift and post in the holding
cells after he served his suspension. Mandato was told the MCSO
did not want him working in the holding cells and his regular
shift was no longer available.
On October 1, 2014, PBA 165 filed a grievance on Mandato's
behalf, seeking a reduction of his penalty from a four-day
suspension to a written reprimand. On that same day, Undersheriff
Kevin B. Harris denied the grievance. On October 8, 2014, Mandato
submitted a revised grievance, which Harris also denied. On
November 14, 2014, a final decision was issued denying the
grievance. Mandato did not seek arbitration of that determination.
II.
On March 23, 2015, Mandato filed an unfair practice charge
with the Commission, alleging he had been subjected to excessive
and disparate discipline for which anti-union animus was a
motivating or substantial factor, in violation of
N.J.S.A. 34:13A-
5.4(a)(1) and (3). Mandato cited the rescission of his transfer
from the CD to the ID, his reassignment from his post in the
holding cells, and the four-day suspension. Among other relief,
4 A-1728-16T3
Mandato sought reinstatement to his post in the holding cells and
modification of his four-day suspension to a written reprimand.
MCSO submitted its answer on October 28, 2015.
In January 2016, MCSO filed a motion with the Commission
seeking summary judgment on the ground that Mandato's claims were
barred because they were not filed within the time required by
N.J.S.A. 34:13A-5.4(c). Mandato opposed the motion. He also sought
to amend the charge to include further alleged retaliatory actions.
In March 2016, the Commission's hearing examiner allowed Mandato
to amend the charges.
On August 18, 2016, the Commission issued a decision and
order, granting MCSO's motion and dismissing the charges
pertaining to the rescission of Mandato's assignment to the ID,
the change from his post in the holding cells, and the four-day
suspension. Since the parties had not addressed the amendment to
the charges, the Commission remanded the matter to the hearing
examiner for further proceedings.
On September 7, 2016, Mandato filed a motion in this court
for leave to appeal from the Commission's decision and order of
August 18, 2016. MCSO and the Commission opposed the motion. On
October 12, 2016, we denied the motion.
On October 20, 2016, the Commission issued a revised decision
and order to reflect that one of the Commissioners had recused
5 A-1728-16T3
himself from voting on the matter. Thereafter, Mandato withdrew
the remaining charge, and the hearing examiner closed the case.
This appeal followed.
III.
On appeal, Mandato argues that the Commission erred by finding
that his claims based on his reassignment and suspension were not
filed within the time required by
N.J.S.A. 34:13A-5.4(c). He
contends the limitations period on his claim regarding his
reassignment did not begin to run until he learned his reassignment
was permanent, and the limitations period on his suspension did
not begin to run until that suspension went into effect.
Mandato further argues that the Commission erred by finding
that there was no genuine issue of material fact as to whether he
knew or should have known his reassignment was permanent when he
was reassigned on August 18, 2014, and the rescission of his
awarded bid for a transfer to ID is admissible as background
evidence.
We have considered these arguments in light of the record and
the applicable legal principles. We conclude that Mandato's
arguments are without merit. Accordingly, we affirm the
Commission's decision and order substantially for the reasons
stated by the Commission. R. 2:11-3(e)(1)(D). We add the following.
6 A-1728-16T3
The scope of our review of an administrative agency's final
determination is strictly limited. In re Stallworth,
208 N.J. 182,
194 (2011) (quoting Henry v. Rahway State Prison,
81 N.J. 571, 579
(1980)). We will not reverse an agency's decision unless we find
that "it was arbitrary, capricious or unreasonable, or that it
lacked fair support in the evidence." Thurber v. City of
Burlington,
191 N.J. 487, 501 (2007) (quoting Campbell v. Dep't
of Civil Serv.,
39 N.J. 556, 562 (1963)). An agency's legal
conclusions are, however, subject to de novo review on appeal.
Norfolk S. Ry. Co. v. Intermodal Props., LLC,
215 N.J. 142, 165
(2013) (quoting In re Taylor,
158 N.J. 644, 658 (1999)).
Our review of an agency's decision is limited to three
inquiries:
(1) whether the agency's action violates
express or implied legislative policies;
(2) whether the record contains substantial
evidence to support the findings on which the
agency based its action; and
(3) whether, in applying the legislative
policies to the facts, the agency clearly
erred in reaching a conclusion that could not
reasonably have been made upon a showing of
the relevant factors.
[R & R Mktg. v. Brown-Forman,
158 N.J. 170,
175 (1999).]
7 A-1728-16T3
In addressing these questions, the court must give "substantial
deference to the agency's expertise and superior knowledge of a
particular field." In re Herrmann,
192 N.J. 19, 28 (2007).
Here, the Commission found that Mandato's unfair practice
charges were not filed within the time required by
N.J.S.A. 34:13A-
5.4(c). The statute provides in pertinent part:
The [C]ommission shall have exclusive power
as hereinafter provided to prevent anyone from
engaging in any unfair practice . . . .
Whenever it is charged that anyone has engaged
or is engaging in any such unfair practice,
the [C]ommission, or any designated agent
thereof, shall have authority to issue and
cause to be served upon such party a complaint
stating the specific unfair practice charged
and including a notice of hearing containing
the date and place of hearing before the
commission or any designated agent thereof;
provided that no complaint shall issue based
upon any unfair practice occurring more than
[six] months prior to the filing of the charge
unless the person aggrieved thereby was
prevented from filing such charge in which
event the [six]-month period shall be computed
from the day he was no longer so prevented.
[Ibid.]
In this matter, Mandato raised unfair practice charges
regarding his reassignment from the holding cells to the main
courthouse, his four-day suspension, and the rescission of his
awarded bid for a transfer to the ID. Before the Commission,
Mandato conceded that the last of these three claims was not filed
within six-months after the transfer was rescinded.
8 A-1728-16T3
On appeal, Mandato argues that his charge regarding the
reassignment from the holding cells was timely filed. As we noted
previously, the record shows that on August 18, 2014, Mandato
reported to the holding cells and he was informed that Sheriff
Scott had reassigned him to a different post in the courthouse
"effective immediately." Mandato did not file his charge regarding
the reassignment within six months after August 18, 2014.
On appeal, Mandato argues that the limitations period did not
begin to run until September 29, 2014, when he asked his superior
officer if he would be returned to his post in the holding cells
after he served his four-day suspension. Mandato was told he would
not be returned to the holding cell.
The Commission properly found that the limitations period
began to run when Mandato was reassigned. The Commission noted
that an employee need not be told whether a change in assignment
is permanent before the limitations period begins to run.
As the Commission stated in its decision, "there is no reason
to focus on the duration of a reassignment, including whether it
is temporary or permanent, since its unlawfulness would not
ordinarily turn on its duration." The Commission noted that taken
to its logical conclusion, an employee could extend the time for
filing a charge merely by asking if a change in assignment was
9 A-1728-16T3
temporary or permanent, thereby allowing the employee "to
resurrect a stale charge."
Mandato argues that there is a genuine issue of material fact
as to whether he knew or should have known that his reassignment
on August 18, 2014, was permanent. However, as the Commission
noted in its decision, for purposes of determining whether an
unfair practices charge was filed within the time required by
N.J.S.A. 34:13A-5.4(c), it is immaterial whether a reassignment
is permanent or temporary. The Commission correctly stated that
if the change of assignment is unlawful it is irrelevant whether
the change is permanent or temporary.
Mandato further argues that the Commission erred by finding
that his unfair practice charge regarding the four-day suspension
was untimely. The record shows that on September 19, 2014, Mandato
was served with the NMDA, which stated that he had been charged
with violating the MCSO's rule regarding performance and duty. The
NMDA stated that he was suspended for four days, from October 6
to October 9, 2014.
Mandato contends the time within which an unfair practice
charge must be filed did not begin to run on the date he was served
with the NMDA, but rather on October 6, 2014, when the suspension
went into effect. The Commission concluded, however, that the
operative date for purposes of the statute of limitations was
10 A-1728-16T
3 September 19, 2014, because the NMDA served on that date was not
a preliminary notice of disciplinary action and there was nothing
conditional about the suspension. The Commission found that on the
date he was served with the notice, Mandato was told he was being
suspended, and the filing of a grievance challenging the suspension
did not toll the statute of limitations. The record supports the
Commission's determination.
Mandato contends, however, the Commission's decisions
regarding the timeliness of his claims regarding his reassignment
and suspension are not consistent with the Commission's decisions
in other matters. He also contends that the rescission of his
awarded bid for a transfer to the ID is admissible as background
evidence to show the Sheriff's alleged anti-FOP bias.
These arguments lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
11 A-1728-16T3
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