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.

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DONALD C. BARBATI, JR.

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault.  In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.