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Kyer v. City of East Orange10/30/1998
Submitted September 24, 1998
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
The issue raised by this appeal is whether a merit system provisional employee in the municipal classified service who is denied the opportunity to become a permanent employee by reason of the municipality's negligence and her own unawareness of merit system requirements may, after seven years of exemplary service, be summarily discharged. We hold that under the circumstances of this case, the employee's job rights are a matter for determination by the Department of Personnel, which has the authority to grant a retroactive competitive examination or waiver thereof, to declare her status as a permanent and protected employee, and to fashion an appropriate remedy.
Plaintiff Ruby Robinson Kyer brought this wrongful termination action against defendants City of East Orange and J. Kenneth Garrett, its Municipal Court Director, after her summary discharge on two days' notice on January 24, 1994. The matter was tried to a jury. At the close of the proofs, however, all the wrongful termination counts of the complaint were dismissed on the ground that plaintiff, because she was still a provisional employee despite the lapse of seven years from the date of her hire, had no protected job rights. The only issue that went to the jury was plaintiff's claim that her summary dismissal violated the East Orange ordinance, which requires that if the discharge is not for disciplinary reasons, permanent employees must be given forty-five days' notice and temporary employees must be given ten days' notice. Construing plaintiff's provisional status as temporary for purposes of the ordinance, the jury was asked to determine whether the discharge was for disciplinary reasons and, if not, to determine her damages as a result of defendants' failure to have given the required notice. The jury found that the discharge was not for disciplinary reasons and that plaintiff had sustained a loss of wages in the amount of $918.13 and other unspecified damages of $11,922.00. On defendants' motion, the court set aside the award of unspecified damages on the ground that there was no evidence to sustain any damage award for failure of required notice other than the pay loss.
Plaintiff appeals from the holding that she was subject to summary dismissal, claiming, as she did in the trial court, that under the facts as adduced, the City should be estopped from relying on her provisional status and denying her permanent status. She also claims that the trial Judge misconstrued the East Orange ordinance and erred by not deeming her to be a permanent employee under its notice provisions. Finally, she appeals from the setting aside of the nearly $12,000 damage award.
While we are reluctant in the circumstances to apply principles of estoppel against the City, we are persuaded that the facts here dictate a remedy or, at least, a remedial opportunity. We are also, however, persuaded that the affording of a remedy appropriately lies with the Department of Personnel, to which we transfer this dispute.
Our recitation of the relevant facts is based upon the proofs adduced at trial. Plaintiff was first employed by defendant City of East Orange in 1987 as a full-time municipal court mediator holding the merit system title of senior neighborhood and family counselor. Her appointment to that position was as a provisional employee in the classified service. N.J.S.A. 11A:4-13b. Although that statute prohibits the duration of provisional status for more than twelve months, plaintiff, because of defendant's negligence and inattention, remained in provisional status for the next seven years, per
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