Our employment attorneys represent employees in New Jersey Civil Service appeals and disciplinary proceedings. One frequent matter of contention in the New Jersey Civil Service System is bypassing candidates for selection or promotion under the “Rule of Three.”
The Rule of Three
The New Jersey Civil Service Act requires that hiring and promotion must be based on fitness and merit, determined by competitive Civil Service examinations wherever possible. After a test, the New Jersey Civil Service Commission will issue a list of eligible candidates ranked in order of their scores. Hiring and promotion must be made according to the eligible candidates’ ranks on the list. However, an exception exists. The Rule of Three allows New Jersey Civil Service employers to bypass eligible candidates ranked higher on hiring and promotion lists in favor of lower ranked candidates so long as they select one of the top three eligible candidates remaining on the list. After each decision to hire or promote, the Rule of Three evaluation begins all over again. So, for example, if the first candidate is selected, the employer may then select any of the candidates ranked second through fourth for the second spot.
The Simpson Case
In the recent case of Matter of Simpson, the Appellate Division of New Jersey’s Superior Court considered Officer Algenoria Simpson’s appeal of the City of East Orange’s decision to bypass him for promotion to sergeant.
Officer Simpson took the Civil Service test for sergeant and passed. However, shortly after the promotion list came out, he was injured and took leave under the Federal Family and Medical Leave Act. While Simpson was on leave, the City promoted several officers, including two who were higher on the list. However, the City also exercised the Rule of Three to promote the two officers immediately lower than Simpson on the list.
Simpson appealed the bypass to the New Jersey Civil Service Commission. The City maintained that it bypassed him because he was unavailable to fill the position since he was on leave, which is permitted under New Jersey Civil Service regulations in Title 4A of the Administrative Code, and the City had an urgent need for sergeants. Simpson argued that the reasons were pretextual because other officers had been promoted while they were out on leave. The New Jersey Civil Service Commission denied Simpson’s appeal and upheld the City’s exercise of the Rule of Three to bypass him for promotion. Simpson then appealed to the Appellate Division.
The Appellate Division upheld the Civil Service Commission’s decision to uphold the list bypass under the Rule of Three. The Appellate Division first explained that an employee does not gain a vested right to promotion just by being on a promotion list. At best, the court explained, earning a spot of a promotion list gives a candidate the right to be considered for promotion, subject to the Rule of Three. The court then went on to explain that while the FMLA requires that an employee’s position be held, it does not entitle him to anything else, including a promotion he would have gotten if he had not been on leave.
The court also rejected Simpson’s argument that the reason given by the City was pretextual because they had promoted other officers who had been on leave. Rather, the burden of proof is on the employee challenging the employer’s decision to exercise the Rule of Three. Because Simpson did not produce any evidence to support his argument that the City had indeed promoted other employees while they were on leave he did not meet his burden of proof. Therefore, the Appellate Division upheld the bypass.
The first takeaway from the case should obviously be that challenges to list bypass appeals are difficult for employees to win because of the leeway given New Jersey Civil Service employers under the Rule of Three. However, difficult is not the same thing as impossible, and employees can and often do win these appeals.
Therefore, the second takeaway should be to learn from where Simpson fell short. Evidence is everything. Simpson should have presented evidence, even in the form of an affidavit from someone in the City’s organization, that other officers actually were promoted. Without that the court was right that he could not been his burden of proof.
Also, the grounds of the appeal were narrowly focused on the FMLA. However, an argument could be made that because Simpson was on leave because of an injury, his injury might have qualified as a disability under New Jersey’s Law Against Discrimination (“LAD”), which has far broader coverage than the Federal Americans With Disability Act (“ADA”). The Law Against Discrimination prohibits both public and private employers from discriminating against New Jersey employees because of a disability. The argument might have been made that if Simpson was passed over because he was out on medical leave under the FMLA, then the bypass constituted unlawful disability discrimination. However, this is something to be considered; the opinion does not give enough information to make a conclusive determination in this case.
However, this brings us to the last takeaway: Document, document, document! As this case shows, evidence is the key, so document everything.
Our New Jersey employment attorneys represent public and private employees in a wide range of employment matters. We represent New Jersey government employment employees, including Civil Service and non-Civil Service government employees, on the matters specific to public employment law, including representing public employees in New Jersey Civil Service appeals. Call us at (973) 890-0004