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Appellate Division Affirms Decision to Revoke Teacher’s Certificates

By: Gabi Aste-Molina, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On October 6, 2023, the Appellate Division of New Jersey affirmed the revocation of the teacher’s certificates in In re Certificates of Rita O’Malley by the State Board of Examiners for repeatedly failing to test and evaluate her students with learning disabilities.

Woodbridge Township School District (“District”) employed the teacher in 2000 as a special education teacher and Learning Disabilities Teacher Consultant. She was responsible for testing and diagnosing learning disabilities, developing individualized education programs, and meeting with parents and teachers to discuss the special education needs of her students. In 2015, the parents of one of her students contacted the District to report that their child had not been tested and evaluated by their teacher. The District decided to conduct a random review of the tests the teacher had given, and this review revealed missing test scores and testing deficiencies. Due to this review, the District certified tenure charges against the teacher, citing her neglectful conduct, amongst other causes. The teacher resigned from her tenured position without contesting the charges.

The teacher appealed the revocation of her teaching certificates several times. First, the State Board of Examiners (“Board”), the educator licensing agency in New Jersey, filed an order to show cause regarding the teaching certificates. She answered the order and requested to transfer the matter to an Administrative Law Judge (“ALJ”). The ALJ recommended that the Board suspend the teacher’s certificates for three years. The matter returned to the Board, which decided to revoke the teacher’s certificates, citing that her repeated failure to test and evaluate her students merited revoking her certificates. The teacher appealed the Board’s decision to the Commissioner of Education (“Commissioner”). In a final agency decision, the Commissioner agreed with the Board and held that the record supported its decision to revoke her teaching certificates. The teacher appealed again, this time to the Appellate Division.

The teacher argued that the Board’s revocation was arbitrary, capricious, and unreasonable, citing a lack of credible evidence in the record. The Appellate Division disagreed and held that the record did support the decisions of the Board and Commissioner to revoke her teaching certificates because there was unconverted evidence that she failed to test her students and correctly record the results of the tests she did administer. By failing to perform these obligations, she did not provide adequate educational services to her students with learning disabilities, and these failures made her unfit for her position. Accordingly, the Appellate Division held that the Board had cause to revoke her teaching certificates under N.J.A.C. 6A:9B-4.4 and that the Commissioner’s decision to uphold the Board’s decision was not arbitrary, capricious, or unreasonable.

N.J. Legislation Expands Uses of Sick Leave for School District Employees

By: Gabi Aste-Molina, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On July 3, 2023, Governor Murphy signed legislation that expands sick leave for school district employees. Bill A5060/S3440 amends the law by allowing school district employees to use their sick leave for preventative care, care of a family member, recovery from domestic or sexual violence or that of a family member, bereavement of a family member, to attend their child’s school-related conference or meeting, and when their child’s school or place of care is closed. Previously, school district employees could only use sick leave for a personal disability due to an illness or injury or when an employee or someone in their immediate household was exposed to a contagious disease or quarantined for it. This bill does not supersede any collective bargaining rights for school district employees and does not “reduce, diminish, or adversely affect” those rights either.

The new legislation also states that a board of education may require an employee to file a physician’s certificate with its secretary only for sick leave due to a personal injury or illness (and not the new eligible uses). Finally, the bill explains when a board of education may request advance notice or reasonable documentation for sick leave use.

N.J. Supreme Court Holds Teacher Maintains Tenure Because She Did Not Knowingly Waive That Right

By: Eric M. Richwine, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

On June 12, 2023, the New Jersey Supreme Court in Parsells v. Board of Education of the Borough of Somerville held that a New Jersey teacher did not knowingly waive her tenured right to a full-time teaching position under the Tenure Act when she voluntarily moved to a part-time position, unaware that she had no right to return to her full-time role.   

Catherine Parsells, a full-time, tenured teacher employed by the Somerville Board of Education (“Board”), requested a transfer from full-time teaching to an available in-district, part-time teaching position with benefits. The Board approved the request but did not advise her in advance that she would not have a right to return to a full-time position if she voluntarily took the part-time position. When Parsells eventually wished to return to full-time work, she was informed that she had no automatic entitlement to a full-time teaching position and that if one were to become available, she would be required to apply for it. Parsells eventually applied for a full-time teaching position but was not selected.

Parsells appealed to the New Jersey Commissioner of Education (“Commissioner”), arguing that she did not waive her tenure rights by accepting a part-time position and that the Board violated her rights by hiring out-of-district teachers with no tenure for full-time positions instead of herself. The Administrative Law Judge rendered an initial decision in favor of the Board; however, the Commissioner ultimately reversed, reasoning that Parsells did not waive any rights to her full-time position and that the Board had a duty to inform Parsells of the consequences of switching to part-time employment, i.e., the loss of her right to return to full-time job status before she voluntarily switched to part-time employment.  

The Board appealed to the New Jersey Appellate Division, arguing that the Commissioner erred in finding that it was required to give notice of the impact of Parsells’ switch to a part-time role and that there was no valid waiver by Parsells. The Appellate Division extended the holding of Bridgewater-Raritan Education Association v. Board of Education of Bridgewater-Raritan School District, 221 N.J. 349 (2015) to impose a duty to notify full-time teachers who consider voluntarily transferring to part-time teaching that they may not have the right to return to their full-time position and therefore affirmed the Commissioner’s decision.

The Board challenged the Appellate Division’s decision, but the New Jersey Supreme Court unanimously affirmed the holding. The Court reasoned that Parsells did not knowingly waive her tenured right to returning to a full-time teaching position as required under the Tenure Act. However, the Court rejected the Appellate Division’s extension of Bridgewater-Raritan to impose a duty of notification on school boards in this instance. Instead, the Court held that Parsells did not abandon her right to her full-time position knowingly and unequivocally as required by the Court’s decision interpreting the Tenure Act in Knorr v. Smeal, 178 N.J. 169, 177 (2003). As such, the Court affirmed as modified.

Moving forward, despite the Court holding that there was no legal basis for a duty to notify in this instance, the Court encouraged school boards to address whether a tenured teacher is voluntarily and knowingly waiving their right to a full-time position: any waiver of a teacher’s tenure rights must be “clear, knowing, and unequivocal.”

Appellate Division Defines Arbitrator’s Authority Regarding Tenure Charges

By: Erika Vasant, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On August 25, 2022, in Sanjuan v. School District of West New York, the New Jersey Appellate Division in a published decision addressed the scope of an arbitrator’s authority under N.J.S.A. 18A:6-16 regarding tenure charges against a teacher. The Appellate Division held that an arbitrator may uphold a suspension without pay if a teaching staff member’s conduct was unbecoming. However, arbitrators lack the authority to demote teaching staff members from their positions.

In this case, the West New York Board of Education (“Board”) demoted plaintiff Sanjuan from assistant principal to fourth-grade teacher for inappropriate conduct. Sanjuan attended a high school activity and fell down a flight of stairs. After the fall, she reached into her purse, removed a piece of paper, and walked halfway up the stairway to place it on one of the steps. She then returned to the bottom of the stairs. The incident was caught on camera. The next morning, the benefits coordinator contacted her, and she confirmed that she fell after seeing the piece of paper on the stairs. The school district found that she manipulated the scene, allowed a false incident report to be made, and engaged in insurance fraud. 

The Board approved tenure charges against Sanjuan in accordance with the Tenure Employees Hearing Law (“TEHL”), suspending her for 120 days without pay. After reviewing Sanjuan’s response, the Commissioner of Education found that Sanjuan’s conduct warranted “dismissal or reduction in salary” and referred the case to an arbitrator in accordance with N.J.S.A. 18A:6-17.1. The arbitrator found that Sanjuan’s conduct warranted retention of her tenure but as a fourth grade teacher (instead of assistant principal) without back pay. Sanjuan sought to vacate the arbitration reward, be reinstated as assistant principal, and receive the lost wages. The trial court then denied her relief, and affirmed the entire arbitration award. Sanjuan appealed.

On appeal to the New Jersey Appellate Division, Sanjuan argued that the arbitrator exceeded his authority and that since her tenure was not terminated, she should receive back pay during her suspension. The Appellate Division disagreed and noted that the trial court upheld the Board’s determination of Sanjuan’s conduct as unbecoming. Accordingly, under N.J.S.A. 18A:6-14, the arbitrator’s determination that Sanjuan was not permitted to receive back pay was authorized. However, the Appellate Division found that the arbitrator exceeded his authority in demoting Sanjuan, because it deviated from the disciplinary action specified in N.J.S.A. 18A:6-10. The statute provides that tenure charges against a teaching staff member may only include either termination or depriving him or her of salary – not demotion.

As a result, the Appellate Division vacated the trial court’s order and remanded the case to the arbitrator to “reconsider the penalty of termination.”

NJ Supreme Court Holds Adverse Employment Action Not a Required Element of a Failure to Accommodate Claim

By: Gitika Kapoor, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

On June 8, 2021, the Supreme Court of New Jersey held in Richter v. Oakland Board of Education that an employee is not required to establish adverse employment action such as demotion or termination in a failure to accommodate disability claim brought against an employer under the New Jersey Law Against Discrimination (“NJLAD”).  In addition, the Court considered whether the plaintiff’s claim was barred by the exclusive remedy provision of the Workers’ Compensation Act (“WCA”). The Court held that the NJLAD and WCA are not in tension with each other, and the WCA did not bar the plaintiff’s lawsuit.

In Richter, a teacher who suffered from Type 1 diabetes was assigned a late lunch period and experienced a hypoglycemic event in the classroom.  As a result, she suffered a seizure, lost consciousness, and struck her head on a lab table and the floor, causing excessive bleeding. She filed a workers’ compensation claim and received compensation for her medical bills and disability benefits. She later brought a NJLAD action asserting a failure to accommodate disability claim against the Oakland Board of Education. In her complaint, she alleged that, despite repeated requests to alter her schedule, the principal failed to accommodate her request to be assigned an earlier lunch time. The trial court granted summary judgment in favor of the Board, which the Appellate Division reversed.

On the NJLAD issue, the New Jersey Supreme Court held that a failure to accommodate claim may arise from an “employer’s inaction, silence or inadequate response to reasonable accommodation request,” and that causing harm to the employee through an adverse employment action is not a necessary element of the claim. The Court recognized that a failure to accommodate is itself an actionable harm, because the wrongful act is the employer’s failure to fulfill its duties under the law. Importantly, the Court noted that a lack of demonstrable consequences in the form of adverse employment action may affect damages. 

Regarding the WCA, the Court held that the statute’s exclusive remedy provision did not bar the plaintiff’s NJLAD claim, reasoning that the legislature intended for the NJLAD to supplement other legal remedies. According to the Court, the NJLAD and WCA both aim to protect workers in the workplace and can function harmoniously, without conflicting with each other. Therefore, the WCA did not bar the plaintiff’s lawsuit.

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