On September 28, 2010, the Appellate Division decided In the Matter of Manuel Oliveira, Docket No.: A-3325-08T2. In the case, Manuel Oliveira appealed from a final decision of the Civil Service Commission (“Commission”) denying his application for back pay and counsel fees.

Oliveira is a Senior Corrections Officer with the Department of Corrections (“DOC”), who was removed from his employment on May 31, 2001. On October 20, 2005, the Merit System Board found that mitigating circumstances warranted a six-month suspension rather than removal. Following denial of a motion for reconsideration by the DOC, Oliveira returned to duty and pay status on April 24, 2006.

When the parties failed to agree on the amount of back pay and other benefit credits due to Oliveira, he requested the Merit System Board resolve these issues. In support of his application for back pay, Oliveira certified that he did not work for the entire time of his suspension. He further certified that he applied for three security positions with three different companies, but did not obtain a position. He further stated that he applied for a job in construction, which he did not obtain. He surmised that he was perceived as “damaged goods” and made not further efforts to obtain employment.

In its final decision, the Commission found that Oliveira was not entitled to back pay because he did not make reasonable efforts to mitigate his damages. The agency also found that Oliveira was not entitled to counsel fees because the record did not support a finding that his employer unreasonably delayed implementation of the reinstatement order. The Commission awarded Oliveira twenty (20) vacation days for 2005 and 2006, the maximum number of days permitted by statute. This appeal ensued.

On appeal, Oliveira argued that the Commission acted arbitrarily and unreasonably in denying back pay and limiting his vacation time. He further contended that he was entitled to counsel fees. After considering Oliveira’s arguments and the contents of the record, the Court affirmed the Commission’s determination in its entirety. Specifically, the Court found the Commission’s determination was supported by sufficient, credible evidence in the record and the ruling was consistent with the law governing the award of back pay and benefits.

The case illustrates the principle that public employees who are terminated from their employment and, thereafter, ultimately reinstated to their position are not automatically entitled to back pay during their period of separation. Rather, the employee must make reasonable efforts to obtain alternate employment in order obtain an award of back pay. Without making such efforts, a court will likely find that the employee is not entitled to any back pay such as in this case. Therefore, in the event you are ever terminated from your employment, it is imperative to speak with an experienced attorney to ensure you rights are protected.