by Kevin W. Bliss

In a precedent-setting case, the United States Court of Appeals for the Third Circuit ruled that there is not a constitutionally protected property interest for civil service employees in New Jersey to remain on government rehire lists. In fact, the state Civil Servicc Commission has discretion to remove individuals from the list at any time for sufficient reason.

Claudio Tundo and Ruben Gilgorri were employed as correctional officers in the Passaic County Sheriff’s Office on a 12-month trial. After many reports of absence, insubordination and incompetence, they were fired prior to completion of the term. Less than six months later, in a response to a need for more employees, they were placed on a rehire list compiled by New Jersey’s Civil Service Commission despite Passaic County’s objections. Rehired on a second 12-month trial basis, the two were told to sign a reemployment application specifically calling for an agreement not to sue Passaic County. They refused to sign and were removed from the rehire list.

The two filed suit for a Fourteenth Amendment violation of due process through attorneys Mark Frost and Ryan Lockman. They claimed they were placed on a special rehire list “for an unlimited duration,” which created a protected property interest for them.

The Commission stated that the New Jersey Administrative Code allowed them to remove employees from any created list for “sufficient reason.” Tundo’s and Gilgorri’s frequent reprimands were sufficient reason. The rehire list only provided applicants an opportunity to be rehired; no promises were ever made to any applicants not to remove them from the list.

On appeal from summary judgment, the Court of Appeals held that “a chance to a job is not a right to it.” Unless the government constrains its broad discretion to deny an employee a benefit, no protected property interest is created. The employee must have a legitimate claim to entitlement that both parties are aware of and in agreement to, such as holding rank or continued employment. Tundo and Gilgorri were given no promises from the Commission and did not establish a legitimate claim to a property interest. They affirmed the summary judgment and dismissed the claim

See: Tundo v. County of Passaic, No. 18-1460 (3d Cir. 2019)

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