School District Gets a Tenure Surprise for Teacher Returning after Maternity Leave

By: Robert A. Muccilli, Esq.

Just when you think you have teacher tenure acquisition figured out, someone throws a curve ball – in this instance, the Superior Court of New Jersey in Kolodziej v. Board of Education of Southern Regional High School District.  The Appellate Division, held that a teacher had acquired tenure despite what appeared on the surface to be a failure to satisfy the length of employment criteria of the tenure acquisition statute.

Darcy Kolodziej was employed as a physical education teacher for Southern Regional High School Board of Education for the complete 2002-2003, 2003-2004 and 2004-2005 academic years.  On September 1, 2005, Ms. Kolodziej began an unpaid maternity leave which lasted until June 30, 2006.  She returned to school on September 1, 2006 and was continuously employed through the end of the 2006-2007 school year.  On April 27, 2007, Ms. Kolodziej was notified that her position was terminated effective September 1, 2007 pursuant to a reduction in force.

Kolodziej challenged her termination, claiming that she had acquired tenure.  Relying on the criteria of the applicable tenure acquisition statute (N.J.S.A. 18A:28-5(a)), Southern Regional took the position that Ms. Kolodziej had not acquired tenure.  Simply put, Ms. Kolodziej did not meet the express statutory criteria because she had neither been employed for three consecutive academic years, together with employment at the beginning of the next succeeding academic year, nor had she been employed the equivalent of more than three academic years within a period of any four consecutive academic years. The Commissioner agreed with Southern Regional.

The plain words of the statute do not always control the legal outcome, as demonstrated by the Appellate Division’s reversal of the Commissioner’s decision.  The Appellate Division framed the issue as whether Ms. Kolodziej’s leave under the Family and Medical Leave Act (‘FMLA”) constituted continued employment at the beginning of the next succeeding academic year or at any point during the year.  The Court concluded that the leave constituted a continuation of employment and not a break in employment.

In reaching this conclusion, the Court explained that there was nothing to suggest that Ms. Kolodziej did not remain an employee throughout the time she was on leave.  Further, the Court explained that interpreting the statute to allow tenure acquisition fits within the public policy purposes of both the tenure law and the FMLA.  The Court reasoned that Southern Regional had the opportunity to evaluate Ms. Kolodziej’s performance for 30 months and that she should not be punished for taking leave under the FMLA which provides for a returning employee to be restored to the position of employment held when the leave commenced.

While raising many questions, the applicability of the Appellate Division decision appears to be limited to a situation in which the individual has taken an FMLA leave and the school district has had three full academic years in which to review the individual’s performance.  Nonetheless, the Court has added an interesting wrinkle to the calculation of tenure acquisition in a leave situation.

Notice of Prior Icing Condition at Different Location Not Notice of Dangerous Condition to Township Under Tort Claims Act

By: Betsy G. Ramos, Esq.

Plaintiff Andrew Buterbaugh was injured in a one car accident when his car skidded on a patch of ice and collided with trees on the other side of the road. In Buterbaugh v. Township of Readington, 2014 N.J. Super. Unpub. LEXIS 1779 (July 21, 2014 App. Div.), he sued the Township of Readington on the basis that the icy roadway was caused by water draining down the roadway due to a low spot. He also alleged the Township failed to spread salt properly, failed to have proper signage as to the curve in the road, and failed to warn of the icy conditions. The Township was granted summary judgment by the trial court due to the plaintiff’s failure to show that the Township had actual or constructive notice of the dangerous condition.

Under the Tort Claims Act, N.J.S.A. 59:4-2, the plaintiff must prove that the Township had actual or constructive notice of the dangerous condition “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  Plaintiff’s proof of notice relies upon a prior incident in which ice contributed to an accident about 2 years earlier at a location approximately 1000 feet from the site of the plaintiff’s accident.

However, there was no evidence of any complaints or other accidents relating to icing caused by poor drainage either before or after the prior accident. Further, the Appellate Division pointed out that complaints about a dangerous condition at one location cannot serve as notice of a dangerous condition at a different location.

Thus, the Appellate Division ruled that, without any other supporting proof, a single ice related accident 2 years earlier in a different location is insufficient to establish notice of the alleged dangerous condition.  The appeals court also disposed of the plaintiff’s claim concerning failure to post signage. The Township was immune from liability under N.J.S.A. 59:4-5, which provides that a public entity is not liable “for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices.”

The Appellate Division never reached the argument that immunity was also provided under the weather immunity provision of the Tort Claims Act because it found that summary judgment was properly granted due to the lack of notice to the Township. Therefore, it upheld the order granting summary judgment and dismissing the case.

Betsy G. Ramos Named to YMCA Board

Betsy G. RamosMt. Laurel, NJ  – –  Capehart Scatchard Executive Committee Member, Betsy G. Ramos, Esq. was recently appointed to the board of governors of the YMCA of Burlington and Camden Counties.  The YMCA is a cause-driven, community-based, charitable nonprofit organization that strengthens community through youth development, healthy living and social responsibility.