Marshall v. Board of Chosen Freeholders of Hudson County

• Decision Date: 11 April 1960
• Docket Number: No. A--231,A--231
• Citation: 60 N.J.Super. 587,160 A.2d 52
• Parties: Geraldine MARSHALL, Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY, Defendant, and Department of Civil Service of the State of New Jersey, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 587

60 N.J.Super. 587

160 A.2d 52

Geraldine MARSHALL, Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY, Defendant, and Department of Civil Service of the State of New Jersey, Respondent.

No. A--231.

Superior Court of New Jersey

Appellate Division.

Argued March 14, 1960.

Decided April 11, 1960.

Rolf G. Schudel, Waldwick, for plaintiff-appellant (Darling & Jobes, Jersey City, attorneys).

William L. Boyan, Deputy Atty. Gen., for respondent, Department of Civil Service (David D. Furman, Atty. Gen., attorney).

Before Judges GOLDMANN, CONFORD and HANEMAN.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiff Geraldine Marshall seeks review of a denial by the State Civil Service Department of her claim to permanent status in the employ of Hudson County as a principal clerk stenographer, and of a hearing of her grievance in respect thereof.

Plaintiff was employed by the Hudson County Board of Chosen Freeholders in 1942 as a senior clerk stenographer, permanently assigned to the department of engineering. In 1955, at the request of the board of freeholders, she was temporarily assigned to perform duties in various other county offices, although still carried on the records of the engineering department. While she was engaged on one of these temporary assignments the board of freeholders, on May 18, 1956, adopted a county-wide reclassification plan.

By letter dated August 15, 1957 plaintiff was informed by the Department of Civil Service that as a result of that reclassification her title, that of senior clerk stenographer, would remain unchanged. It does not clearly appear whether the reclassification of her position was based on the duties she was then temporarily performing in the Hudson County Rent Control Agency or on those she had previously peformed in the engineering department. It would seem, however, that it was the former, since her duties in the county engineering department were the same as those of one Elizabeth Grogan, a co-worker in that department, at the time of the reclassification. As a result of the reclassification, Miss Grogan's duties were deemed to warrant the next higher title of principal clerk stenographer.

The letter of August 15, 1957 also advised plaintiff to notify the Department of Civil Service within 60 days of any dissatisfaction she might have with the action taken. She apparently did not make any protest until April 17, 1958, at which time she wrote to the Civil Service Department complaining about her salary and status and requesting an interview. Prior to that protest letter, in January 1958, she had been permanently transferred, still as a senior clerk stenographer, to the department of power plants of the county.

In response to the protest letter the Civil Service Department held an informal interview with plaintiff on May 28, 1958, at which time, after discussion of the work she was actually performing, the department officials agreed that her duties were those of a principal clerk stenographer, and accordingly suggested to the county that it process promotion forms for her. The county did nothing, and on July 16, 1958 the Department made a desk audit of plaintiff's duties, confirmed its earlier determination, and again requested the county either to initiate a promotion for her or to return her to a position whose duties were in accord with her permanent title of senior clerk stenographer. Several months later the county informed the Department that it did not intend to request a promotion for plaintiff but that her duties would be made commensurate with her permanent title. After some months more of correspondence between plaintiff, her attorney, Civil Service and the county, and various oral communications which are referred to in the record, the Department again audited plaintiff's duties in May 1959 and found that various functions which she had performed at the time of the first audit were, on county directive, no longer assigned to her. It consequently concluded that her permanent title of senior clerk stenographer was the proper one for the work then being done.

Pursuant to notification by the Department of this finding and its conclusion that plaintiff had no right to promotion to the position of principal clerk stenographer, plaintiff's attorney on June 2, 1959 requested a formal departmental hearing. After concluding that plaintiff was wholly without rights to promotion, the Civil Service Commission denied the request. Plaintiff then brought an action in lieu of prerogative writs in the Superior Court, Law Division, against both the county and the Department. By consent, the complaint against the county was dismissed, and that against the Department, praying for an order compelling the Department to grant a hearing, was transferred to the Appellate Division.

Plaintiff was entitled to a hearing before the Civil Service Commission only if her complaint come with the statutory jurisdictional competence of that body. City of Bayonne v. Dougherty, 59 N.J.Super. 288, 297--298, 157 A.2d 533 (App.Div.1960). The only statutory provisions in any way relevant to plaintiff's claim of right to hearing are N.J.S.A. 11:5--1(d) and (e) and R.S. 11:25--1 et seq., N.J.S.A. The Commission is authorized to hear appeals of 'persons in the classified service sought to be removed, demoted in pay or position, suspended, fined or otherwise discriminated against * * *,' N.J.S.A. 11:5--1(d), or 'respecting the administrative work of the department, including appeals from the allocation of positions, the rejection of applicants for admission to examination, and the refusal to certify the name of an eligible, as may be referred to the commission by the chief examiner and secretary,' N.J.S.A. 11:5--1(e).

Plaintiff is clearly not entitled to a hearing under the first quoted subsection. She obviously has not been removed, suspended, or fined. She makes no allegation of having been discriminated against for such motives as would confer jurisdiction upon the Commission, that is, because of race, creed, color, religious faith or political belief. City of Bayonne v. Dougherty, supra (59 N.J.Super., at pages 294--295, 157 A.2d at page 536). Nor has she been demoted in pay or position. Cf. Tanis v. Passaic County, 126 N.J.L. 303, 306, 17 A.2d 807 (E. & A.1941), and Scancarella v. Department of Civil Service, 21 N.J.Super. 11, 90 A.2d 517 (App.Div.1952) (reduction in pay entitling plaintiff to hearing); Weaver v. New Jersey Department of Civil Service, North Bergen, Tp., Hudson County, 6 N.J. 553, 79 A.2d 305 (1951) (dismissal for alleged political motives entitling plaintiff to hearing). Her employment rights prior to the reclassification were those of a senior clerk stenographer. Plaintiff claims neither that that title was not appropriate to the duties in which she was actually engaged at the time of the reclassification nor that the Department in any way abused its statutory responsibility to classifiy employments, see N.J.S.A. 11:6--2(b); N.J.S.A. 11:22--4; Civil Service Rules 10, 11, by allocating that title to those duties. As a result of the reclassification her position and her compensation remained the same. After the reclassification she received two salary increases. There thus being no reduction of any kind in her status, she obviously was not demoted. See Carls v. Civil Service Commission of N.J., 17 N.J. 215, 221, 111 A.2d 45 (1955). Compare Civil Service Rule 53--1(d).

There is no significant difference, material to the present controversy, between the...