IN THE MATTER OF JALEILA WILSON

NOT FOR PUBLICATION WITHOUT THE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-0058-18T1

IN THE MATTER OF JALEILA
WILSON, DEPARTMENT OF
LAW AND PUBLIC SAFETY.
___________________________

                Argued October 14, 2020 – Decided November 2, 2020

                Before Judges Yannotti and Haas.

                On appeal from the New Jersey Civil Service
                Commission, Docket Nos. 2015-2484, 2016-1288 and
                2017-3138.

                Pauline M.K. Young argued the cause for appellant
                (McLaughlin & Nardi, LLC, attorneys; Maurice W.
                McLaughlin and Pauline M.K. Young, on the briefs).

                Emily A. Samuels, Deputy Attorney General, argued
                the cause for respondent New Jersey Department of
                Law and Public Safety (Gurbir S. Grewal, Attorney
                General, attorney; Melissa H. Raksa, Assistant
                Attorney General, of counsel; Emily A. Samuels, on the
                brief).

                Pamela N. Ullman, Deputy Attorney General, argued
                the cause for respondent New Jersey Civil Service
                Commission (Gurbir S. Grewal, Attorney General,
                attorney; Melissa H. Raksa, Assistant Attorney
                General, of counsel; Pamela N. Ullman, on the brief).
PER CURIAM

      Jaleila Wilson appeals from three decisions of the Civil Service

Commission (CSC): (1) the October 20, 2015 decision on her classification

appeal; (2) the February 28, 2017 decision on her reprisal petition; and (3) the

July 24, 2018 decision denying her motion for reconsideration. We affirm.

                                        I.

      We briefly summarize the pertinent facts. In June 2004, Wilson was

appointed as a permanent employee in the Division of Consumer Affairs of the

Department of Law and Public Safety (Department). Her position was classified

as Auditor 3.

      Wilson claims that sometime in November 2012, she "realized" that she

was doing the work of an Auditor 2 or Investigator 1. On November 26, 2012,

Wilson completed a Position Classification Questionnaire (PCQ) seeking

reclassification of her position as either Auditor 2 or Investigator 1 (PCQ-1).

      Wilson asserts that her direct supervisor supported her request for

reclassification. The Deputy Director of Wilson's agency signed PCQ-1 on

December 10, 2012; however, he did not complete the form indicating that he

agreed or disagreed with the reclassification request.



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      In July 2013, Wilson filed a grievance asserting in part that her July 26,

2013 Performance Assessment Review (PAR) did not accurately reflect her

principal job duties. In December 2013, Wilson and the Department resolved

the grievance. The Department agreed Wilson's performance would only be

evaluated based upon "the duties [she was then] performing." Wilson claimed,

however, that the Department did not follow through on its agreement to remove

out-of-title duties.

      In March 2014, the Department submitted Wilson's PCQ-1 to the CSC and

recommended that it be disapproved. The Department informed Wilson that

effective immediately, her out-of-title duties would have to be removed from

her position. It also informed Wilson that a new PCQ would be forwarded to

the CSC after her duties were changed.

      In July 2014, Wilson filed two grievances seeking an investigation into

the status of PCQ-1 and reclassification of her position. In August 2014, the

Department submitted the revised PCQ-1 to the CSC. The Department indicated

that Wilson had refused to sign the document, and that on February 6, 2014,

some of her "higher-level duties" had been removed from her position. Both

grievances were settled when the Department advised Wilson that the revised




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PCQ-1 had been submitted to the CSC and it was "awaiting a definitive answer

from CSC."

      In February 2015, the Division of Agency Services (AS) in the CSC issued

a decision finding that the preponderance of the duties and responsibilities in

Wilson's assigned position were consistent with the title of Auditor 3. Wilson

appealed that decision to the CSC.

      On July 1, 2015, Wilson filed another PCQ (PCQ-2), claiming her duties

had changed and her position should now be classified as an Administrative

Analyst 1. On August 25, 2015, the Department forwarded PCQ-2 to the CSC.

Wilson claimed the Department improperly delayed in submitting PCQ-2 to

rearrange her job duties and removed certain out-of-title duties before its

submission to the CSC.

      Between August and September 2015, Wilson wrote three letters

supplementing her appeal regarding PCQ-1. In the letters, Wilson claimed that

the Department falsely stated her out-of-title duties had been removed, and the

Department falsified documents indicating she refused to sign the revised PCQ.

      Wilson asserted that certain persons in the Department had bullied her,

attempted to intimidate her, and threatened to discipline her for failing to




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perform her duties. She also alleged the Department delayed the processing of

her initial PCQ in retaliation for the grievances she previously filed.

      Wilson submitted her letters alleging retaliation to the analyst handling

the appeal concerning PCQ-1. The analyst informed Wilson that her reprisal

complaints had to be made separately. The analyst provided Wilson with a

separate docket number for her retaliation claims.

      On October 9, 2015, the CSC issued its decision on the PCQ-1 finding

that Wilson's position had been misclassified as an Auditor 3. The CSC found

the position should be reclassified as Investigator 2, and she would be deemed

to have obtained a provisional appointment to that position as of January 12,

2013, subject to promotional examination procedures. She was awarded back

pay from that date.

      In its decision, the CSC acknowledged that Wilson's PCQ-2 was still

pending, and she claimed she was currently performing duties of a different title.

The CSC ordered AS to conduct an expedited review of Wilson's current duties,

and stated that if AS found Wilson was performing duties of a different title, she

would only be entitled to back pay as an Investigator 2 up to the date of the AS's

new decision.




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      The CSC issued a corrected decision on October 20, 2015, which deleted

the statement in the October 9, 2015 decision indicating that Wilson would be

given a provisional appointment, subject to promotional examination

procedures. The CSC stated that the change was made because the position of

Investigator 2 in the Department is not part of the competitive civil service.

       On February 23, 2016, AS notified Wilson that based on its review of

PCQ-2, her duties were commensurate with those of an Investigator 2. Wilson

asked an analyst if she could appeal the PCQ-2 decision to the CSC as part of

her ongoing reprisal appeal. The analyst informed her that the reprisal and

classification appeals must be filed separately.

      Wilson appealed AS's decision on PCQ-2 to the CSC and it was assigned

a separate docket number. In January 2017, Wilson withdrew her appeal of AS's

decision regarding PCQ-2, stating that she was no longer performing the duties

of an Administrative Analyst. She stated that the Department's removal of those

duties was the "true issue" in the appeal, and that issue had been raised in the

reprisal appeal.

      On February 22, 2017, the CSC issued its decision on Wilson's reprisal

appeal, and on February 28, 2017, it issued a corrected decision. The CSC found

Wilson had not presented "a prima facie case of reprisal." She failed to establish


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the Department had taken reprisal actions against her in retaliation for seeking

reclassification of her position and filing grievances regarding her PAR.

        On March 29, 2017, Wilson filed a motion for reconsideration of the

February 28, 2017 decision. On July 24, 2018, the CSC issued its decision on

the reconsideration motion. The CSC noted that under N.J.A.C. 4A:2-1.6(b), a

party seeking reconsideration must show that the CSC has made a clear, material

error, or present new evidence that would change the outcome of the proceeding,

and explain why such evidence had not been presented in the original

proceeding. Applying that standard, the CSC found that reconsideration of its

earlier decision was not warranted.

        On September 6, 2018, Wilson filed a notice of appeal. She filed an

amended notice of appeal on September 12, 2018. She stated she was appealing

from the CSC's decisions of October 20, 2015, February 20, 2017, and July 24,

2018.

                                       II.

        The CSC and the Department argue that the court should not consider

Wilson's appeal from the October 20, 2015 and February 28, 2017 decisions

because Wilson failed to file a notice of appeal from those decisions within the

time required by Rule 2:4-1(b). The Rule states that "[a]ppeals from final


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decisions or actions of state administrative agencies . . . shall be filed within

[forty-five] days from the date of service of the decision or notice of the action

taken." Ibid.

      As noted, Wilson filed her notice of appeal on September 6, 2018. She

contends that her appeal from the October 20, 2015 decision was timely filed

because her claims in the reclassification appeal and those in her reprisal action

were all part of a single controversy, which was not finally resolved until the

CSC's decision on the reprisal appeal.

      We recognize that in its decision of October 20, 2015, the CSC stated that

its decision "is the final administrative action in the matter [and] [a]ny further

review should be presented in a judicial forum." We also recognize that when

Wilson raised her claims of retaliation, she was told the matter must be docketed

as a separate matter.

      However, Wilson, who was representing herself at the time, apparently

thought that her reprisal complaints were all part of the dispute over the

classification of her position. In this regard, we note that Wilson's retaliation

claims were initially submitted to the CSC with regard to the appeal regarding

PCQ-1. We conclude that, under the circumstances, the time for appealing the

CSC's October 20, 2015 decision should be extended nunc pro tunc.


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        Moreover, the CSC issued its final decision on the reprisal appeal on

February 28, 2017. Rule 2:4-3(b) provides that the time for appeal from a final

decision of an administrative agency is tolled "by the timely filing . . . of an

application for reconsideration made . . . to the agency pursuant to its rules and

practice . . . ." The Rule further provides that "the remaining time shall again

begin to run from the . . . date of service of the decision or denial of such

application by the agency . . . ." Ibid.

        It is undisputed that Wilson filed a timely motion for reconsideration with

the CSC on March 29, 2017, which tolled the time for filing the notice of appeal

from the February 28, 2017 decision. As stated previously, the CSC issued its

final decision on the reconsideration motion on July 24, 2018.

        Sixteen days remained for the filing of the notice of appeal from that

decision. Wilson did not file her notice of appeal until September 6, 2018. Thus,

Wilson did not file a timely appeal from the February 28, 2017 decision, and she

did not file a motion to extend the time for appeal.

        We are convinced, however, that the time for appeal from the February

28, 2017 decision should be extended. Our court rules allow the time for appeal

to be extended for a period not to exceed thirty days for good cause. R. 2:4-

4(a).


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      Wilson's appeal should have been filed on or about August 10, 2018. 1 She

may have assumed that she had forty-five days after the decision on the

reconsideration motion to appeal both decisions. In any event, the notice of

appeal was filed within the thirty-day period in which the time for appeal may

be extended. We conclude the time for appealing the CSC's February 28, 2017

decision should be extended pursuant to Rule 2:4-4(a).

                                        III.

      On appeal, Wilson argues: (1) the CSC should have awarded her back pay

for the entire time she was performing out-of-title duties; (2) the 2017 order

failed to address or remedy her second PCQ or the Department's improper

removal of her duties; and (3) she presented sufficient evidence to support her

reprisal claims.

      It is well-established that this court has "a limited role" in reviewing final

decisions of state administrative agencies. In re Stallworth,  208 N.J. 182, 194

(2011) (quoting Henry v. Rahway State Prison,  81 N.J. 571, 579 (1980)). In

reviewing such decisions, we consider:

            (1) whether the agency's action violates express or
            implied legislative policies, that is, did the agency
            follow the law; (2) whether the record contains

1
  We note that if the decision was served by ordinary mail, an additional three
days is added to the time within which an action must be taken. R. 1:3-3.
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            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 on a showing of the relevant factors.

            [In re Carter,  191 N.J. 474, 482-83 (2007) (quoting
            Mazza v. Bd. of Trustees,  143 N.J. 22, 25 (1995)).]

       Moreover, a reviewing court "owes substantial deference to the agency's

expertise and superior knowledge of a particular field." In re Herrmann,  192 N.J. 19, 28 (2007); In re Taylor,  158 N.J. 644, 657 (1999). The Legislature has

delegated to the CSC broad authority to enforce the Civil Service Act, and its

authority includes classification of employees into appropriate titles.      See

 N.J.S.A. 11A:2-6;  N.J.S.A. 11a:3-1 to -8.

      A. Decision on Reclassification Appeal.

      Wilson does not challenge the CSC's finding that her position should have

been classified as Investigator 2. She argues, however, that the CSC erred by

making her retroactive appointment and award of back pay effective as of

January 12, 2013. She contends her retroactive appointment should have been

made effective in 2004, when she first began to perform the duties. We disagree.

      The applicable administrative rules provide that "[w]ithin [ten] days of

receipt of the petition [for reclassification of a position], the agency

representative shall either notify the petitioner that specific additional

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information is required, or forward the petition with [the] organizational chart

to the appropriate representative of the [CSC]." N.J.A.C. 4A:3-3.9(c)(4). If the

CSC grants the appeal, "the effective date of implementation shall be . . . the

pay period immediately after [fourteen] days from the date an appropriate [CSC]

representative first received the appeal or reclassification request, or at such

earlier date as directed by the Commission . . . ." N.J.A.C. 4A:3-3.9(e)(3)(i).

      In its decision of October 20, 2015, the CSC noted that Wilson submitted

her PCQ on November 26, 2012, and the Deputy Director of her agency signed

the PCQ on December 1, 2012. The Department did not, however, submit the

PCQ to the CSC until March 2014.

      The CSC found that based on the time periods in the regulations, the

appropriate date for implementation of the reclassification was January 12,

2013, which is the beginning of the pay period after the CSC representative first

received the appeal or reclassification request. The CSC found there was no

basis to implement the reclassification at an earlier date.

      The CSC noted that while Wilson claimed she had been performing out-

of-title duties since 2009 or 2010, she did not seek reclassification of her

position until 2012. The CSC emphasized that "the foundation of position

classification, as practiced in New Jersey, is the determination of duties and


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responsibilities being performed at a given point in time as verified though an

audit or other formal study." The CSC stated that "classification reviews are

based on a current review of assigned duties and any remedy derived therefrom

is prospective in nature since duties which may have been performed in the past

generally cannot be reviewed or verified."

      We conclude that the CSC's decision to implement its reclassification of

Wilson's position as of January 12, 2013, was not arbitrary, capricious, or

unreasonable.    The CSC"s decision was consistent with the applicable

regulations and supported by sufficient credible evidence in the record. Wilson

failed to establish good cause for implementation at an earlier date.

      B. Reprisal Appeal and the Denial of Reconsideration.

      Wilson argues that the CSC erred by denying her reprisal appeal and

refusing to reconsider that decision. Again, we disagree.

      An appointing authority may not take or threaten action against an

employee in retaliation for the employee's lawful disclosure "of information on

the violation of any law or rule, governmental mismanagement or abuse of

authority.  N.J.S.A. 11A:2-24; N.J.A.C. 4A:2-5.1. The CSC has determined that

to establish a reprisal claim, the employee must show, among other things, a

nexus between the employee's "disclosure" and the alleged retaliatory action.


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      Here, the CSC found Wilson did not present sufficient evidence to support

her retaliation claim.   She failed to show the required nexus between her

disclosures and the alleged retaliatory acts. The CSC noted that the Department

had delayed submitting Wilson's first PCQ, but that it had done so in accordance

with its internal procedures. The CSC found the delay was not an intentional

attempt to sabotage Wilson's reclassification request or retaliation for the filing

of the grievances.

      The CSC further stated that Wilson had not presented sufficient evidence

to support her claim that the Department threated to discipline her because of

her disclosures of the alleged wrongful handing of the PCQ and the removal of

her out-of-title responsibilities. The CSC found that the evidence did not show

that any of the Department's management representatives made threatening

statements, as Wilson alleged. The CSC observed that the only "evidence" of

the threats was a letter in which Wilson stated that her supervisor had made such

threats.

      Wilson contends she presented sufficient evidence to support her reprisal

claims. She contends the Department improperly rejected her reclassification

requests, delayed in submitting PCQ-1 to the CSC, and falsified documents

submitted to the CSC regarding the PCQ-1. She contends the Department


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created an "alternative" PCQ and falsely stated that she had refused to sign it.

She claims the Department improperly removed certain out-of-title duties while

the PCQ was pending, and threatened her with disciplinary actions for refusing

to perform out-of-title work.

      The CSC found, however, that these allegations were either not supported

by sufficient evidence, or that alleged actions did not constitute unlawful

reprisals. We are convinced there is sufficient credible evidence in the record

to support the CSC's findings.

      Wilson further argues that in its decision on the reprisal appeal, the CSC

failed to address her second PCQ and the removal of out-of-title duties during

that appeal. She contends the appropriate remedy for the retaliation would have

been reclassification to the position of Administrative Analyst 4, back pay for

the time she should have been working in that title, and a reprimand to the

Department for its threats and retaliatory actions.

      These arguments lack sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E). We note, however, that the CSC had no reason to address Wilson's

second PCQ, because she had withdrawn her appeal on the that PCQ. Moreover,

as noted, the CSC determined Wilson was properly classified in her role as an

Investigator 2 and she had been provided back pay to January 12, 2013.


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      We also conclude that the record supports the CSC's determination that

reconsideration of the February 28, 2017 decision was not warranted. The CSC

found that Wilson's "arguments and [the] documentation provided on

reconsideration simply rehash her original position that has already been

addressed . . . and do not evidence that the appointing authority's actions were

intentional, much less retaliatory or an act of sabotage." There is sufficient

credible evidence in the record to support the CSC's decision.

      Affirmed.




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