                             NOT FOR PUBLICATION WITHOUT THE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-1323-18T1

IN THE MATTER OF
ALGENORIA SIMPSON,
POLICE SERGEANT (PM4108N),
EAST ORANGE
______________________________

                Submitted June 2, 2020 – Decided July 14, 2020

                Before Judges Fisher and Gilson.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2019-253.

                Caruso Smith Picini PC, attorneys for appellant
                (Timothy Richard Smith, of counsel; Sara B. Liebman
                on the letter briefs).

                Office of the Corporation Counsel, attorneys for
                respondent City of East Orange (Aaron Mizrahi,
                Assistant Corporation Counsel, of counsel and on the
                brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent Civil Service Commission (Pamela N.
                Ullman, Deputy Attorney General, on the statement in
                lieu of brief).

PER CURIAM
      Algenoria Simpson appeals from a final agency determination by the Civil

Service Commission (the Commission) upholding a decision by the City of East

Orange (the City) to bypass Simpson on the list of eligible police sergeants

because Simpson was on leave. Simpson also appeals from the denial of his

motion for reconsideration, in which he argued for the first time that the matter

should be referred to the Office of Administrative Law (OAL) for a contested

hearing. We affirm.

      Simpson is a police officer employed by the City's Police Department. On

September 28, 2017, the City issued an eligibility list for the position of police

sergeant, and Simpson was listed sixteenth. Less than a month later, on October

23, 2017, Simpson was injured and shortly thereafter took leave under the

Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 to 2654. On

November 8, 2017, while Simpson was on leave, the City promoted several

police officers to the position of sergeant, bypassing Simpson. The officers who

were promoted had been listed one through twelve, fifteen, eighteen, and

nineteen on the eligibility list. 1




1
  In its decision the Commission states that the City made twelve permanent
appointments but identified fifteen eligible persons who were promoted.
                                                                          A-1323-18T1
                                        2
        Simpson appealed his bypass to the Commission. In response, the City

represented that Simpson had been bypassed because he was on leave and

therefore was unavailable on November 8, 2017, and the City had a need, based

on public safety, to make promotions at that time.

        On May 31, 2018, the Commission issued a final decision denying the

bypass appeal and finding that the City's reasons were legitimate. As part of

that finding, the Commission determined that Simpson was a non-veteran for

purposes of the appointment.2 Therefore, the Commission found that the Rule

of Three applied. That rule allows an appointing authority, such as the City, to

use its discretion to select any of the top three eligible persons on a promotion

list. See In re Foglio, 207 N.J. 38, 45 (2011) (first citing N.J.S.A. 11A:4-8; then

citing N.J.A.C. 4A:4-4.8(a)(3)). The Commission also found that there was no

dispute that Simpson was not available for the appointment on November 8,

2017.

        Simpson moved for reconsideration and argued, for the first time, that the

City's reasons were pretextual because in the past employees on leave had been



2
  The Commission found that although Simpson had served in the military, he
did not establish veteran preference because he did not serve during a qualifying
period. Simpson does not challenge that part of the Commission's ruling on this
appeal.
                                                                           A-1323-18T1
                                         3
promoted. The Commission rejected that argument finding that Simpson offered

no support for his contention. The Commission also declined to refer the matter

to the OAL for a hearing.

      On appeal, Simpson makes two arguments: (1) the Commission erred in

accepting the City's position that it had legitimate reasons to bypass Simpson

because he was on leave; and, alternatively, (2) there are disputed facts

concerning the City's reasons for the bypass and the City's alleged past practice

of promoting persons on leave and, therefore, the matter should be remanded for

a contested hearing. We reject both these arguments.

      Our review of a final administrative agency decision is limited. Stein v.

Dep't of Law & Pub. Safety, 458 N.J. Super. 91, 99 (App. Div. 2019) (citing In

re Stallworth, 208 N.J. 182, 194 (2011)). We will "uphold an agency's decision

'unless there is a clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record.'" J.B. v. N.J. State Parole Bd., 229 N.J.

21, 43 (2017) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).                   In

evaluating whether a decision was arbitrary, capricious, or unreasonable, we

examine:

             (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
             substantial evidence to support the findings on which

                                                                              A-1323-18T1
                                          4
            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 Stallworth, 208 N.J. at 194 (quoting In re Carter,
            191 N.J. 474, 482-83 (2007)).]

Moreover, a court is "obliged to give due deference to the view of those charged

with the responsibility of implementing legislative programs."              In re

Reallocation of Prob. Officer, 441 N.J. Super. 434, 444 (App. Div. 2015)

(quoting In re N.J. Pinelands Comm'n Res. PC4–00–89, 356 N.J. Super. 363,

372 (App. Div. 2003)).

      The Commission found that Simpson was not available for appointment

because he was on leave and the City did not want to wait to make the

appointment because of public safety concerns. In making that finding, the

Commission pointed out that an eligible person can be removed from a list if

they are not available for appointment. N.J.A.C. 4A:4-4.7(a)(3).

      We discern nothing arbitrary, capricious, or unreasonable in the

Commission's determination. "No right accrues to a candidate whose name is

placed on an eligibility list." In re Foglio, 207 N.J. at 44 (citation omitted).

"'[T]he best that can be said' of a candidate on an eligible list is that he has 'a

right to be considered for appointment.'" Id. at 44-45 (alteration in original)


                                                                           A-1323-18T1
                                        5
(quoting Nunan v. N.J. Dep't of Pers., 244 N.J. Super. 494, 497 (App. Div.

1990)). Under the FMLA, Simpson had no right to a promotion while on leave.

Instead, the FMLA guaranteed that when he returned from leave, he would be

restored to his prior or an equivalent position. 29 U.S.C. § 2614(a)(1); James v.

Hyatt Regency Chicago, 707 F.3d 775, 780 (7th Cir. 2013) (citation omitted);

Bosse v. Balt. Cty., 692 F. Supp. 2d 574, 581 (D. Md. 2010) (citations omitted).

      The FMLA also states: "Nothing in [29 U.S.C. § 2614] shall be construed

to entitle any restored employee to . . . any right, benefit, or position of

employment other than any right, benefit, or position to which the e mployee

would have been entitled had the employee not taken the leave." 29 U.S.C. §

2614(a)(3)(B). Accordingly, while an employer cannot use the taking of FMLA

leave as a negative factor in a promotion decision, 29 C.F.R. § 825.220(c)

(2020), nothing in the FMLA entitles an employee to a promotion while on

leave. See Freeman v. Koch Foods of Ala.,777 F. Supp. 2d 1264, 1289-91 (M.D.

Ala. 2011) (holding that FMLA retaliation claims for failure to promote failed

because the employer supported its promotional actions with legitimate, non-

discriminatory reasons).

      Simpson argues that the City submitted a letter from a human resources

manager to establish the reasons for its promotional actions. Simpson, however,


                                                                         A-1323-18T1
                                       6
failed to dispute that letter before the Commission issued its final decision on

May 31, 2018. Instead, it was only on reconsideration that Simpson claimed

that the City's reasons were pretextual and asserted that the City had previously

promoted people even when they were on FMLA leave. 3

      The Commission rejected Simpson's request for reconsideration finding

that it did not meet the standard for reconsideration under N.J.A.C. 4A:2 -1.6(b)

and Simpson provided no evidence that the City had promoted people on leave.

In that regard, the Commission pointed out that in asking for reconsideration

Simpson speculated, without any factual support, that the City's reasons were

pretextual.

      We discern nothing arbitrary, capricious, or unreasonable in the

Commission's decision to deny reconsideration and a hearing. The Commission

correctly determined that Simpson failed to meet             the standard for

reconsideration under N.J.A.C. 4A:2-1.6(b). Moreover, the Commission had the

authority to determine whether there existed a "material and controlling dispute



3
  Simpson points out that the Commission had consolidated his matter with
another officer's bypass appeal and that officer had claimed before the
Commission that other people had been promoted while on leave. The
Commission rejected that claim because the other officer did not provide the
Commission with any factual support. Moreover, the other officer's assertion
does not mean that Simpson raised the issue before the Commission.
                                                                         A-1323-18T1
                                       7
of fact" that required a hearing. In re Wiggins, 242 N.J. Super. 342, 345 (App.

Div. 1990) (quoting N.J.A.C. 4A:2-1.1(d)). "The determination [of] whether [a

material dispute of fact] exists is one committed to the discretion of the

[Commission], and its decision will be affirmed unless it goes beyond the range

of sound judgment." Ibid.

      Affirmed.




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