In Re Hearn
417 N.J. Super. 289
| N.J. Super. Ct. App. Div. | 2010Background
- Hearn, a CPA, supervised the Single Grant Audit Unit in DOE’s Office of Compliance Investigations and was regarded as technically skilled.
- Feliciano, an African-American auditor, was hired by DOE and subsequently filed a discrimination complaint against Hearn on April 8, 2004.
- DOE found Hearn violated the anti-discrimination policy on September 7, 2004 and demoted him, removing supervisory duties and ordering diversity training.
- Hearn appealed to the Merit System Board; before the hearing he began a regular appointment to Education Program Development Specialist 1.
- ALJ found no discrimination by Hearn and recommended back pay and attorney’s fees; the Board rejected back pay and fees on October 24, 2007 and June 27, 2008.
- On limited remand, the Civil Service Commission later ordered Hearn to return to the Planning Associate 1 title; this opinion concludes with a reversal and remand for attorney’s fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney’s fees were mandatory under regulation. | Hearn contends N.J.A.C. 4A:2-2.12(a) applies. | Board says 4A:2-2.12(a) only for classified employees; in unclassified role it doesn’t apply. | Fees must be awarded under applicable disciplinary/antidiscrimination procedures. |
| Whether the Board erred by requiring bad faith for fee awards under 'sufficient cause'. | Hearn argues Board misapplied 'sufficient cause' and relied on unpublished precedents. | Board held sufficient cause only when bad faith or invidious motivation exists. | Board erred; 'sufficient cause' can support fees beyond bad faith interpretations. |
| Whether the appeal was a disciplinary appeal under chapter 7 and thus subject to fee rules. | Disciplinary action under N.J.A.C. 4A:7-3.1(k) supported by the SEP letter. | Disciplinary actions limited to chapter 2 for career service. | Appeal falls under chapter 7; fees governed by 4A:2-2 rules for disciplinary appeals. |
| Whether the Board’s failure to award fees violated rulemaking requirements. | Regulatory interpretation requires rulemaking; prior decisions cannot bind without rule adoption. | Board’s interpretation bound by existing regulations and case law. | Board’s fee-denial based on adjudicatory rule interpretation improper; remand for fee determination. |
Key Cases Cited
- Mazza v. Bd. of Trustees, 143 N.J. 22 (1995) (high court on administrative review standards)
- Carter v. Dept. of Civil Serv., 191 N.J. 474 (2007) (scope of judicial review of agency actions)
- In re Herrmann, 192 N.J. 19 (2007) (deference to agency expertise; plenary on legal issues)
- O'Lone v. Department of Human Services, 357 N.J. Super. 170 (App. Div. 2003) (rule-making versus adjudication, back pay standards)
- DelRossi v. Department of Human Services, 256 N.J. Super. 286 (App. Div. 1992) (need for promulgated rules under N.J.S.A. 11A:2-22 for attorney’s fees)
- Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313 (1984) (agency rulemaking procedure required for substantive changes)