SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 5699
- 14T 2
IN THE MATTER OF DELINDA HOLMES, PATERSON HOUSING AUTHORITY.

—————————————————————————

Submitted March 30, 2017

– Decided Before Judges Hoffman and Whipple. On appeal from New Jersey Civil Service Commission, Docket No. 2015
- 1813 . Fusco & Macaluso Partners, L.L.C., attorneys for appel lant Delinda Holmes (Amie E. Di Cola, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent Civil Service Commissio n (Brian M. Kerr, Deputy Attorne y General, on the statement in l ieu of brief). Cleary, Giacobbe, Alfieri & Jacobs, L . L . C . , attorneys for respondent Paterson Housing Authority ( Gregory J. Franklin, of counsel and on the brief).
PER CURIAM Appellant Deli nda Holmes appeals from the July 16, 2015 final agency decision of the Civil Service Commission (Commission) , denying her request for retroactive compensation. We affirm. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough it is posted on th e internet this opinion is binding only on the parties in the case and its use in other cases is limited . R .1:36
- 3.

June 13, 20172 A - 5699
- 14T 2

The long procedural history of this case details appellant's attempts to obtain cl arity regarding her job title and compensation
for work she performed as an employee for respondent, the City of Paterson Housing Authority . Respondent employed appellant since 1994, and she began permanently serving in the position of assistant purchasin g agent in 2004 . In March 2010, a ppellant sought classification review of her position with the Division of State and Local Operations (SLO), 1 contending she had performed the duties of purch asing agent since April 2006. Following its review, SLO determined appellant had been performing the duties of purchasing agent since 2002, and advised respondent to consider her a purchasing agent, serving provisionally and pending promotional examination procedures, effective March 27, 2010. Respondent app ealed this determination, and on January 19, 2011, the Commission denied the appeal and affirmed SLO. The Commission further ordered appellant's County and Municipal Personnel System (CAMPS) record be updated to reflect an interim appointment as purchasin g agent from May 10, 2006 , to June 30, 2008, and a provisional appointment as purchasing agent , pending promotional examination procedures, from July 1, 2008 , to June 30,

1 SLO is now known as the Division of Classification and Personnel Management.3 A - 5699
- 14T 2

2010. The Commission's decision did not address how respondent
should compensate app ellant for these periods. Shortly thereafter , on May 11, 2011, appellant filed a letter with the Commission s eeking enforcement of its January 19, 2011 decision . Appellant also noted her salary " still is not in accordance with the work being performed." W hile this request was pending, respondent informed appellant of its intention to replace the title of assistant purchasing agent with the ti t le of principal buyer. On August 15, 2012, the Commission denied appellant's request for enforcement as moot, finding her CAMPS record had been revised in accordanc e with its previous decision. The Commission also
addressed the salary issue in a footnote, stating it had no jurisdiction over local salaries unless the employee's base salary
fell outside the establi shed minimum or maximum range for the title in question . See N.J.S.A. 11A:3
- 7(d) ; N.J.A.C. 4A:3
- 4.1(a)(2).

I n March 2013, appellant's supervisor denied her request to attend the annual Rutgers Public Purchasing Educational F orum . According to appellant, respondent had always approved her
attendance in the past and had compensat ed her for the cost of the recertification credits . Respondent eventually allowed appellant
to attend the forum in 2013 , but it declined to reimburse her for4 A - 5699
- 14T 2

the costs. D ue to these events , appellant asserted a claim against respondent for retaliation . She also filed a request for a new classification review on March 21, 2013, f or the period from January 2011 to the present.
On April 30 , 2014, the Division of Appeals and Regulatory Affairs ( ARA ) rendered a brief decision, denying appellant's retaliation claim as moot because respondent permitted her to attend the forum. It also found the Civil Service rules did not require respondent to pay for her credits , even thou g h it had done so in the past. ARA further reiterated that the Commission could only review local employee salaries where the employee alleges her salary is not within the range approved for the subject title. Appellant also raised the issue of her title classification, which ARA referred to the Division of Classification and Personnel Management (CPM). The Commission formally reviewed appellant's claims in a decision dated July 16, 2014. It found , in relevant part, that appellant failed to prove the prima facie case for re taliation
because she u ltimately attended the forum.

O n December 12, 2014, CPM issued a classification review regarding appellant's position. CPM determined respondent was to consider appellant as serving provisionally in the title of5 A - 5699
- 14T 2

principal buyer, pending promotion al examination procedures , effective January 24, 2015. Shortly thereafter, on December 23, 2014, appellant requested retroactive compensation for the performance of "supervisory duties" from May 10, 200 6 , to June 30, 2010, and from 2011 to
2014. ARA denied this request on December 29, 2014, reiter ating
that the Commission lacked the authority to review a salary unless it fell outside the establi shed minimum and maximum for the subject title. It further d etermined appellant's requests were untimely, and she had never presented evidence showing her base salary was outside the established range. On or about this time , appellant contacted respondent to determine its established salary ranges for the titles of assistant purchasing agent and princip al buyer. Respondent replied to these inquires by letter dated January 28, 2015, noting it had not established minimum and maximum salary ranges for these titles.

On July 16, 2015, the Commission issued its fin al administrative determination, which is the subject of th e instant appeal, denying appellant's request for retroactive compensation . The Commission noted appellant had been informed in August 2012 and April 2014 that it could only review salary claims where the employee was paid outside the established minimum or maximum . Moreover, appellant failed to request reconsideration of the6 A - 5699
- 14T 2

August 2012, April 2014, and July 2014 decisions resolving her

out - of
- ti t le service . Ins tead, appellant only later raised the issue that respondent had not set salary ranges for the subject titles . As such, t he Commission concluded appellant's request for additional compensation was untimely, and there was no basis to
relax the statutor y tim e to appeal. The Commission also found , although respondent should have established the relevant salary guides, its failure to do so did not automatically entitle appellant to additional compensation. Instead, it ordered respondent to update appellant' s CAMPS records
and to pr esent the range for the title of principal buyer ; if appellant's s alary was not within that range , she could appeal the matter to the Commission. Appellant filed her appeal from this decision on August 17,
2015. Thereafter, o n October 5, 2015, respondent notified the Commission that the salary range for the title of principal buyer was $37,500 to $60,000. Now on appeal, appellant present s four argument s : ( 1) the Commission wrongfully deemed her claim for additional compensation time barred; (2) good cause exists for her failure to file for reconsideration within the required period; (3) respondent's October 5, 2015 salary guide is improper and arbitrary; and ( 4 ) respondent's failure to pay for her training constitute d7 A - 5699
- 14T 2

retaliation . For the reasons that follow, we reject these arguments . Our scope of review of an administrative agency's final determination is limited. In re Carter , 191 N.J. 474, 482 (2007). We accord a "strong presumption of reasonableness" to the a gency's exercise of its statutorily delegated responsibilities . City of Newark v. Nat. Res. Council in Dep't of Envtl. Prot. , 82 N.J. 530,
539 , cert. denied , 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). As such, we will not reverse an agency decision unless it is "arbitrary, ca pricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole." In re Stallworth , 208 N.J. 182, 194 (2011) (alteration in original) (qu oting Henry v. Rahway State Prison , 81 N.J. 571, 579
- 80 (1980) ) . Under the arbitrary, capricious, and unreason able standard, we will consider (1) whether the agency follow ed the law, (2)
whether substantial credible eviden ce supports the agency decision , 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. " Ibid. (quoting Carter , supra , 191 N.J. at 482
- 83). " Th e burden of showing that an action was arbitrary, unreasonable or capricious rests upon the appellant. " McGowan v. N.J. State Parole Bd. , 347 N.J. Super. 544, 563 (App. Div. 2002)8 A - 5699
- 14T 2

( quoting Barone v. Dep't of Human Serv s . , Div. of Med. Asst. , 210

N.J. Super. 276, 285 (App. Div. 1986), aff'd , 107 N.J. 355 (1987) ) . We first reject appellant's argument that she timely requested additional compensation . Under N.J.A.C. 4A:2
- 1.6(a), a party must appeal to the Commission for reconsideration within forty
- fiv e days of receipt of a decision. We find t he Commission's determination that a ppellant failed to meet this time limit was not arbitrary, capricious, or unreasonable . See Stallworth , supra , 208 N.J. at 194.
The Commission did not address compensation in its January 2011 decision, prompting appellant to state , in her May 2011 request to enforce , that her salary was "not in accordance with the work being performed . " In its August 2012 decision, t he Commission noted that it lacked jurisdiction to review local salaries that did not fall outside the minimum or maximum range for the subject title. See N.J.S.A. 11A:3
- 7(d); N.J.A.C. 4A:3
- 4.1(a)( 2 ) . ARA reiterated th e Commission's position in its April
30 , 2014 decision , and the Commission did not address the issue in its July 2014 decision.

A ppellant failed to request reconsideration f rom any of these
three agency decisions. Instead, she waited until December 2014

to request retroactive compensation for the perfor mance of "supervisory duties," and she did not bring respondent's lack of9 A - 5699
- 14T 2

salary guides to the attention of the Commission until after this time. As such, we discern no basis to disturb the Commission ' s conclusion that appellant's delay unreasonably exceeded the "threshold of finality. "
We also reject appellant's argument that the Commission
should have exercised its discretion to relax the forty
- five day time limit for reconsideration . Under N.J.A.C. 4A:1
- 1.2(c), the Commission "may relax [its] rules for good cause in a particular

s ituation." We have found "good cause" requires both a valid excuse for the delay and a showing that the appeal has merit. See

In re Appeal of Syby , 66 N.J. Super. 460, 463 (App. Div. 1961). Appellant argues good cause exists because she did not learn

re spondent failed to establish the salary range s until January
2015. However, a ppellant had numerous chances to investigate whether her salary fell below the minimum

- maximum threshold and to present such information to the Commission . Contrary to her

asse rtion, the Commission had no obligation to conduct an independent review to determine whether respondent had set such guidelines. T he Commission's decision on this issue was not arbitrary, capricious, or unreasonable. See Stallworth , supra , 208 N.J. at 194.10 A - 5699
- 14T 2

Appellant next challenges respondent's October 5, 2015 notice, setting the salary range for principal buyer at $37,500 to $60,000 , on the basis it is an improper and arbitrary figure. However, because this issue was not before the Commission in its July 2015 decision, we decline to consider it here. Finally, appellant argues respondent's decision to end its past "pattern and practice" of reimbursement for training seminars was "clearly retaliatory in nature" because it only ceased due to
her nu merous appeals. However, as the Commission correctly noted, respondent had no legal obligation to reimburse appellant for these seminars , even though it had done so in the past. Therefore, the Commission's rejection of appellant's claim was not arbitrary , capricious, or unreasonable. See i bid. Any additional arguments that we have not specifically
addressed lack sufficient merit to warrant discussion in a written opinion. R. 2:11
- 3(e)(1)(E). Affirmed.