STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION v. JANE LYONS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      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-5655-13T2

STATE OF NEW JERSEY
DEPARTMENT OF TRANSPORTATION,

        Respondent-Respondent,

v.

JANE LYONS,

     Charging Party-Appellant.
_______________________________

              Argued December 11, 2017 - Decided February 1, 2018

              Before Judges Messano and Accurso.

              On appeal from the Public Employment
              Relations Commission, P.E.R.C. No. 2014-85.

              Jane Lyons, appellant, argued the cause
              pro se.

              Adam K. Phelps, Deputy Attorney General,
              argued the cause for respondent New Jersey
              Department of Transportation (Christopher S.
              Porrino, Attorney General, attorney; Melissa
              Dutton Schaffer, Assistant Attorney General,
              of counsel; Adam K. Phelps, on the brief).

              David N. Gambert, Deputy General Counsel,
              argued the cause for respondent New Jersey
              Public Employment Relations Commission
              (Robin T. McMahon, General Counsel, on the
              statement in lieu of brief).

PER CURIAM
     Jane Lyons appeals from a final decision of the Public

Employment Relations Commission (PERC) dismissing her unfair

practice charge as untimely.   We affirm.

     This matter has a long and complicated procedural history,

the details of which are largely unimportant.1    The key facts are

these.   Lyons is a senior engineer and has worked for the

Department of Transportation for over thirty-five years.       On

November 4, 2005, her supervisor, Jeff Palmer, relieved her of

her duties as resident engineer on the Route 73 median closure

project and reassigned her to the Cherry Hill regional office.

     Lyons grieved the reassignment.     Following a departmental

hearing on June 26, 2006, her grievance was denied.     Treating

the matter as a non-contractual grievance, Lyons' union did not

seek arbitration.   Lyons appealed the denial of her grievance to

the Merit System Board, which found no basis to conclude the

Department had abused its authority in reassigning her out of

the field.   See N.J.A.C. 4A:2-3.7(b).    Lyons continued to

protest her reassignment, filing several more grievances, which

1
   For more of the history of this matter, see New Jersey
Department of Transportation and Jane Lyons, P.E.R.C. No. 2009-
16, 34 N.J.P.E.R. ¶ 104, 2
008 N.J. PERC LEXIS 177 (2008); and
P.E.R.C. No. 2009-69, 35 N.J.P.E.R. ¶ 74, 2
009 N.J. PERC LEXIS 210 (2009). We addressed an earlier matter between these same
parties in In re Lyons, No. A-2488-07 (App. Div. April 26,
2010). We are also aware of a federal court case regarding
Lyons' employment by the Department, Lyons v. N.J. DOT, No. 06-
2875–NLH-JS (D.N.J. September 30, 2010).

                                2                          A-5655-13T2
the Department eventually declined to process, claiming she was

simply re-filing the same grievance already decided against her.

On October 23, 2006, the Director of Human Resources sent Lyons

an email stating with regard to her "desire to perform field

work" that "[t]his matter has been the subject of at least one

previous grievance and has been resolved and will not be

reopened."

    On May 25, 2007, Lyons filed an unfair practice charge,

alleging her reassignment from a resident engineer in the field

to an administrative position in the regional office was done in

retaliation for grievances she filed protesting her working

conditions.   She later amended that charge to add claims

relating to the Department's refusal to accept her grievances.

    After Lyons presented her case during a multi-day hearing

before a PERC hearing examiner, the Department moved to dismiss

the charge, claiming it was untimely.   Accepting the evidence

supporting Lyons' allegations as true and according her the

benefit of all reasonable inferences from the facts, the hearing

examiner agreed with the Department the charge was untimely.

    The New Jersey Employer-Employee Relations Act, 
N.J.S.A.

34:13A-1 to -43, requires an unfair practice charge to be filed

within six months of the alleged unfair practice.   
N.J.S.A.

34:13A-5.4(c); Kaczmarek v. N.J. Tpk. Auth., 
77 N.J. 329, 333

                                3                           A-5655-13T2
(1978).   Lyons alleged that although she was transferred in

November 2005, "the permanency [of her reassignment] started to

become a reality" in May 2007.

    The hearing examiner found, however, "that Lyons knew or

should have known that her assignment was permanent no later

than June 26, 2006, when she was present for Palmer's testimony

to that fact" at the departmental hearing over the reassignment,

"which was subsequently memorialized in the grievance decision."

The hearing examiner further found that "Lyons acknowledged her

understanding of Palmer's testimony in a July 12 email to

Palmer" stating she was "told that this assignment is a

permanent assignment and not temporary at the grievance

hearing."   Relying on the October 23, 2006 email Lyons received

from the Director of Human Resources, the hearing examiner found

"that October 23, 2006 is the date Lyons on which knew, or

should have known, that [the Department] did not intend to

accept any more grievances relating back to her November 2005

assignment."

    PERC adopted the hearing examiner's factual findings,

concluding "the Hearing Examiner's findings of fact and

conclusions of law with regard Lyons' charge being untimely are

supported by sufficient, credible evidence in the record."

Relying on the extensive record generated over the course of

                                 4                        A-5655-13T2
five days of hearings, PERC found no "support in the record for

the general assertions made by Lyons that she was not given a

full and fair opportunity to be heard."

    Our role in reviewing the decision of an administrative

agency is limited.    Brady v. Bd. of Review, 
152 N.J. 197, 210

(1997).   "Unless . . . the agency's action was arbitrary,

capricious, or unreasonable, the agency's ruling should not be

disturbed."   Ibid.   We "intervene only in those rare

circumstances in which an agency action is clearly inconsistent

with its statutory mission or with other State policy."      Ibid.

(quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 
137 N.J.
 8, 27 (1994)).

    Applying those standards to this matter, we find no reason

to disturb PERC's finding that Lyons' unfair practice charge was

untimely; Lyons' own email communications with management

confirm that fact beyond any doubt.   Accordingly, we affirm,

substantially for the reasons expressed by PERC in its

affirmance of the Hearing Examiner's meticulously documented

decision.

    Affirmed.




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