In the Matter of Charles Stillitano, DOP Docket No (Merit System Board, decided June 8, 2005)

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1 In the Matter of Charles Stillitano, DOP Docket No (Merit System Board, decided June 8, 2005) Charles Stillitano, represented by Timothy R. Smith, Esq., petitions the Merit System Board (Board) for reconsideration of its attached decision rendered November 4, 2004, upholding the removal of his name from the eligible list for Sheriff s Officer Sergeant (PC3020C), Union County, based on his unsatisfactory employment record. By way of background, the petitioner s name appeared on the subject eligible list, which was certified to the appointing authority on April 24, In disposing of the certification, the appointing authority requested the removal of the petitioner s name on the basis of an unsatisfactory employment record. Specifically, the appointing authority asserted that the petitioner had served a 30-day suspension, commencing on July 14, 2003, on the charge of conduct unbecoming a public employee. This disciplinary suspension was imposed as a result of a July 11, 2003 settlement agreement between the parties, wherein the petitioner agreed to serve a 30-day suspension for use of unnecessary force, enroll in a counseling program for anger management, and author a letter of apology to his victim by July 28, The petitioner filed an appeal regarding the removal of his name from the subject eligible list, contending that this action constituted age discrimination in that he was more than 12 years older than the other candidates on the subject eligible list. In addition, the petitioner alleged that his removal from the list was part of a pattern of the appointing authority s unfair treatment of him, which also included the appointing authority s refusal to recognize an award of retroactive seniority in a prior Merit System Board decision and a delay in providing him with a bulletproof vest. The petitioner also asserted that other individuals who had been promoted had disciplinary records, but they were not removed from the subject eligible list. Finally, the petitioner claimed that, at the time he entered into the settlement in his disciplinary matter, he was assured that he would still be promoted if he promptly complied with the terms of the agreement requiring anger management classes and a letter of apology. In denying the petitioner s appeal, the Board found that the appointing authority properly considered his recent major disciplinary action in requesting the removal of his name from the subject eligible list. Specifically, the Board determined that the petitioner had sufficient notice when entering into the July 11, 2003 settlement agreement that the disciplinary action reflected therein could impact on his promotional opportunities. Additionally, the Board determined that the petitioner s recent 30-day suspension on disciplinary charges constituted sufficient reason to remove his name from the subject eligible list. Finally, the Board noted that the other employees named by

2 the petitioner, who allegedly had similar disciplinary histories but were promoted nonetheless, did not, in fact, have comparable disciplinary records. Rather, the Board found that the named employees possessed less severe disciplinary records that were more remote in time than the petitioner s 30-day suspension. In the instant petition for reconsideration, the petitioner argues that the Board committed a clear material error in its prior decision. Specifically, the petitioner argues that the Board did not properly evaluate his claim that age discrimination motivated the appointing authority s decision to remove his name from the subject eligible list. He cites McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and asserts that the Board did not apply the legal principles set forth in these decisions. In this regard, the petitioner claims that there can be no dispute that [he] has established a prima facie case of age discrimination. He notes that, since he was over 40 years of age at all relevant times, he was a member of a protected class, and he asserts that he was qualified for the position sought by virtue of his eligibility for and passing of the promotional examination for Sheriff s Officer Sergeant (PC3020C), Union County. Finally, he notes that, despite his qualifications, he was rejected, and the position remained open after his rejection. The petitioner argues that the Board inappropriately accepted the appointing authority s proffered legitimate reason for his rejection without undertaking any evaluation of whether that proffered reason was merely a pretext for discrimination. On this issue, he reiterates the claims presented in his initial appeal to the Board, suggesting that his initial rejection for employment based on his alleged medical unfitness for the position was motivated by his age. Similarly, he alleges that, throughout his employment, he has been deprived of training opportunities provided to other officers, he has not been given due consideration for assignments requested, and he was the last officer to receive a bullet proof vest. The petitioner argues that all of the actions were taken with discriminatory intent and are demonstrative of the appointing authority s pattern of discriminating against him on the basis of his age. The petitioner asserts that the Board did not appropriately address these claims in its prior decision, and he contends that these instances were probative of the unlawful motives of the appointing authority in denying him the subject promotion. The petitioner also reiterates that he entered into the July 11, 2003 settlement agreement under duress. As he argued in his initial appeal to the Board, the petitioner maintains that the appointing authority advised him that, if a settlement was not reached, he could be removed on the disciplinary charges, and the appeal process for challenging that action could take up to 18 months. He also maintains that he was told that acceptance of the 30-day suspension would not impact his promotional opportunities. Further, the petitioner adds that, due to poor advice from his prior attorney, he was not aware that he would be made whole if he was successful in pursuing an appeal of the disciplinary charges. Specifically, he

3 claims that he believed that he would not be entitled to any compensation or pension credit during the pendency of his appeals. Moreover, the petitioner asserts that his prior attorney was lax in not advising him of his due process rights or all of the potential consequences of signing the subject settlement agreement. Additionally, the petitioner maintains that the disciplinary charges were without merit, and the fact that they were brought against him constitutes further evidence of the appointing authority s ongoing discriminatory treatment of him. Finally, the petitioner requests a hearing in this matter based on the disputed facts in the record. In response, the appointing authority, represented by Frank G. Capece, Esq., argues that the petitioner has failed to demonstrate that he was qualified for the position at issue. Specifically, it contends that the petitioner s 30-day suspension on disciplinary charges relating to striking a juvenile under his supervision goes to the heart of his qualification for the position and, in fact, renders him unqualified for a promotion. Moreover, the appointing authority submits a list of 14 employees who have been or will be promoted when they were over the age of 40, and it contends that this demonstrates that age is not a factor in making promotions. The appointing authority also contends that the petitioner s attempts to challenge the July 11, 2003 settlement agreement are untimely and without merit. Accordingly, the appointing authority maintains that the petitioner has failed to present any basis for reconsideration of the Board s decision. In response, the petitioner asserts that the appointing authority s provision of the names of several employees that it has promoted or will promote does not demonstrate that the petitioner was not discriminated against. In this regard, the petitioner notes that the referenced promotions occurred over a 20 year time period, and only one of the individuals was promoted from the eligible list at issue. Moreover, the petitioner emphasizes that he has established a prima facie case of age discrimination, since he was qualified for the position at issue by virtue of his eligibility for and success on the promotional examination. CONCLUSION Initially, the petitioner requests a hearing in this matter. However, requests for reconsideration are treated as reviews of the written record. See N.J.S.A. 11A:2-6(b). Hearings are granted in those limited instances where the Board determines that a material and controlling dispute of fact exists which can only be resolved through a hearing. See N.J.A.C. 4A:2-1.1(d). No material issue of disputed fact has been presented in this matter which would require a hearing. See Belleville v. Department of Civil Service, 155 N.J. Super. 517 (App. Div. 1978). N.J.A.C. 4A:2-1.6(b) sets forth the standards by which the Merit System Board may reconsider a prior decision. This rule provides that a party must show

4 that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding. A review of the record in the instant matter demonstrates that reconsideration is not justified. The instant petition for reconsideration is based on the contention that the Board committed a clear material error in its prior decision. In this regard, the petitioner asserts that the Board ignored established precedent in evaluating his claim of age discrimination. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). In essence, these cases provide a framework for evaluating cases in which it is alleged that employment action was initiated for unlawful discriminatory reasons. Specifically, the first prong of the tests established in these cases is that an employee must prove by a preponderance of the evidence a prima facie case of discrimination. In order to do so, the employee must prove that he is a member of a protected class, he applied for an available position for which he was qualified, he was rejected despite his qualifications, and the position remained open and the employer continued to seek applicants from persons with the employee s qualifications. See McDonnell Douglas, supra at 802. The petitioner argues that he met his initial burden by demonstrating that he was deemed eligible for and passed the Sheriff s Officer Sergeant (PC3020C), Union County, promotional examination. However, these facts alone do not demonstrate that the petitioner was qualified for the position sought. Rather, N.J.A.C. 4A:4-6.1 provides a number of instances in which an applicant for a position may be deemed disqualified from the examination or selection process, including where an applicant lacks the requirements for the job, is physically or psychologically unfit to perform effectively the duties of the title, or has a prior employment history which relates adversely to the title. Significantly, in the instant matter, the appointing authority determined that the petitioner s 30-day suspension on serious disciplinary charges in July 2003 constituted a prior employment history that relates adversely to the position at issue. The Board agrees. As noted in its prior decision in this matter: Clearly, the recent nature of the petitioner s unsatisfactory employment history indicates he would not be a suitable candidate for the title at issue at this time. In this regard, it is recognized that a Sheriff s Officer is a law enforcement employee who must help promote adherence to the law. Sheriff s Officers, like municipal Police Officers, hold highly visible and sensitive positions within the community and the standard for an applicant includes good character and an image of utmost confidence and trust. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965, cert. denied, 47 N.J. 80 (1966); See also In re Phillips, 117 N.J. 567 (1990). The public expects Sheriff s Officers to present a background that exhibits respect for the law and rules.

5 Moreover, in the instant matter, the position sought, Sheriff s Officer Sergeant, is reserved for employees who exhibit leadership skills, a positive work ethic, and respect for the rules and regulations. The petitioner s record of major discipline within three months of the certification is unacceptable for an individual seeking a position of leadership at such an institution. Thus, the appointing authority s determination that the petitioner s disciplinary record disqualified him from consideration for the position at issue, which was upheld by the Board, precludes the petitioner from establishing a prima facie case of age discrimination. His July 2003 major disciplinary infraction rendered him unqualified for the subject promotion, pursuant to N.J.A.C. 4A:4-6.1(a)7. Due to the Board s determination in its prior decision that the petitioner, indeed, possessed an adverse employment history that rendered him unqualified for the position of Sheriff s Officer Sergeant, there was no basis to continue in a detailed evaluation of the petitioner s claims of age discrimination. In this regard, the other allegations presented by the petitioner, i.e., his initial rejection for employment in 1991, the deprivation of training and preferable assignments, and the delay in providing him with a bullet proof vest, are outside the Board s purview. Since the petitioner failed to present a prima facie case of discriminatory intent in the matter under the Board s immediate review, evidence that is offered to establish a pattern of discrimination is irrelevant. In other words, having found that the petitioner did not present sufficient evidence to raise an inference that he was rejected for a promotion for unlawful discriminatory reasons, it was unnecessary to further explore the appointing authority s motivation for the removal of his name from the list. Concerning the petitioner s claims regarding the validity of the July 11, 2003 settlement agreement, the claimed ignorance of the petitioner and his attorney of applicable Merit System law and regulations concerning the major disciplinary appeal process and the remedies available do not serve as the basis for vacating the agreement or to excuse the untimely presentation of these claims. See N.J.A.C. 4A:2-1.1(b). Moreover, it must be noted that, even if the settlement were somehow determined to be invalid on this basis, this would not result in the dismissal of the disciplinary charges, and it would not change the outcome of the instant matter. ORDER Therefore, it is ordered that this request for reconsideration be denied. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.

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