JAMES TAYLOR VS. BOARD OF EDUCATION, ENGLEWOOD SCHOOL DISTRICT, BERGEN COUNTY (C-000199-16, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1867-16T3
JAMES TAYLOR,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION,
ENGLEWOOD SCHOOL DISTRICT,
BERGEN COUNTY,
Defendant-Respondent.
___________________________________
Argued April 18, 2018 – Decided August 14, 2018
Before Judges Koblitz and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
C-000199-16.
William P. Hannan argued the cause for
appellant (Oxfeld Cohen, PC, attorneys;
William P. Hannan, on the brief).
Janet C. Lucas argued the cause for respondent
(Weiner Law Group, LLP, attorneys; Mark A.
Tabakin, of counsel; Janet C. Lucas, on the
brief).
PER CURIAM
Plaintiff James Taylor appeals the December 5, 2016 amended
order dismissing his order to show cause and verified complaint
that sought to vacate an arbitration award and decision. Plaintiff
was a tenured teacher employed by defendant Board of Education,
Englewood School District. Defendant brought tenure charges
against plaintiff for "unbecoming conduct, insubordination,
incompetence and other just cause," seeking his dismissal from
employment. The arbitrator's decision revoked plaintiff's tenure
and terminated his employment. We affirm the dismissal.
Plaintiff was assigned to teach physical education at the
Dwight Morris High School. On March 25, 2015, he became involved
in a physical altercation with B.L., who was not a student in
plaintiff's gym class. When B.L. would not return to his own gym
class, it was alleged that plaintiff "confronted the student,
pointing at the student's chest, then 'bumping' and ultimately
pushing the student across the gym and 'mushing' the student in
the head, while using inappropriate language." Eyewitnesses to
the incident, gave statements, and a security camera filmed the
incident. The next day, the interim superintendent suspended
plaintiff with pay. Plaintiff submitted a written statement in
response, explaining that the student had "stepped into my face
and bumped his nose to mine and began yelling." When the student
would not leave, plaintiff said he pointed to the other side of
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the gym. The student claimed that plaintiff touched him and became
irate. Another teacher then had to physically restrain the
student.
On July 29, 2015, the Board filed tenure charges against
plaintiff, alleging unbecoming conduct, insubordination,
incompetence and other just cause, and sought his dismissal from
employment. Plaintiff opposed the charges. On September 21,
2015, the Board certified the tenure charges, suspended plaintiff
without pay, and forwarded the charges to the Commissioner of
Education (Commissioner). During the two-day arbitration hearing,
the parties agreed to admit into evidence plaintiff's entire
personnel file and the videotape. Plaintiff did not testify.
On May 20, 2016, the arbitrator issued a written award and
opinion, concluding the Board had satisfied its burden of proof,
that no adequate defenses were raised by plaintiff to the charges
or penalty, and that the charges and dismissal were justified.
The arbitrator found that the incident involving plaintiff was
recorded on a videotape that showed plaintiff as "the clear
aggressor, if not, i.e., the initiator and/or instigator, of a
physical and/or emotional confrontation with a student." The
arbitrator noted that plaintiff had received "retraining and
rehabilitative efforts" in handling difficult students. However,
he stated, it was "clear enough that the [t]eacher did not back
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down nor [] take any other action to diffuse the situation from
escalating." He found "the only clear interpretation of the events
portrayed in the video demonstrates this teachers [sic] aggressive
and unwarranted behavior toward a student." The arbitration
decision noted that plaintiff "possessed a clear predilection
toward similar behavior in the past." The arbitrator found that
the Board met its burden of proving its case and that plaintiff
had not defended within "appropriate guidelines." The videotape
showed "clear evidence" of "unbecoming conduct for aggressive
behavior."
The arbitrator found the evidence clear and convincing; the
video showed the teacher escalating the dispute. The arbitrator
questioned why plaintiff had not sought "external assistance"
during the incident. The arbitrator found no mitigating
circumstances were present. Based on "clear evidence," he
concluded that plaintiff's "behavior was deemed to include
aggravating factors." Those found "were that this [t]eacher did
not back off or away from an emotional or physical confrontation.
He is observed on the video touching and/or pushing [s]tudent
[B.L.], neither retreating nor calling for other professional
assistance and thus demonstrating poor judgment." The arbitrator
found that plaintiff was dismissed from employment for "just and
sufficient cause."
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Plaintiff filed a verified complaint in the Chancery Division
on July 21, 2016, seeking to vacate the arbitration award, alleging
that it was procured by "undue means," and citing to N.J.S.A.
2A:24-8. Plaintiff asked for reinstatement to his employment with
back pay and other "emoluments." The court signed an order to
show cause requiring defendant to show cause why the arbitration
award should not be vacated. Based on the papers submitted and
oral argument, the court entered an order on November 30, 2016,
denying plaintiff's requested relief. The amended order on
December 5, 2016, also dismissed plaintiff's verified complaint
with prejudice.
In an attached rider to the orders, the court rejected
plaintiff's argument that the arbitrator did not make factual
findings about the incident involving B.L. The court found the
arbitrator made "unambiguous factual findings as to the
confrontation between [p]laintiff and B.L." It cited to the
section of the award where the arbitrator characterized plaintiff
as the aggressor, which was included in the "Findings and Opinion"
section. The judge found the arbitrator did not use plaintiff's
prior record in deciding the present charges. Instead, the
arbitrator had considered aggravating and mitigating factors "in
the prior conduct of [p]laintiff to determine whether to uphold
the penalty in this case." The court stated this was consistent
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with the concept of progressive discipline. It further held that
the arbitrator's use of plaintiff's prior work history did not
violate public policy. Based on the arbitrator's findings of fact
and subsequent proper application of the law regarding progressive
discipline, the court did not find the arbitrator's award to be
deficient so as to render it procured by undue means. The court
upheld the award under the "deferential[,] reasonably debatable
standard."
In this appeal, plaintiff contends that the court should have
applied a substantial evidence standard in evaluating the award,
rather than the reasonably debatable standard. Applying the
substantial evidence standard, he contends the award should have
been vacated because the arbitrator did not make factual findings
about what actually occurred during the March 25, 2015 incident
with B.L. He argues that the arbitrator improperly used his
employment and disciplinary history in evaluating the underlying
tenure charges. Plaintiff contends the arbitrator relied on an
"inaccurate and over-generalized version" of his employment
record. Based on these alleged mistakes, plaintiff contends the
award was procured by "undue means" within the meaning of N.J.S.A.
2A:24-8(a), and also that it violated N.J.S.A. 2A:24-8(d) and
should be vacated. He denies that there was any "significant
misconduct warranting his termination" from employment.
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We have recently stated that,
"Judicial review of an arbitration award is
very limited." Bound Brook Bd. of Educ. v.
Ciripompa, 228 N.J. 4, 11 (2017) (quoting
Linden Bd. of Educ. v. Linden Educ. Ass'n ex
rel. Mizichko, 202 N.J. 268, 276 (2010)). "An
arbitrator's award is not to be cast aside
lightly. It is subject to being vacated only
when it has been shown that a statutory basis
justifies that action." Ibid. (quoting
Kearny PBA Local # 21 v. Town of Kearny, 81
N.J. 208, 221 (1979)).
In reviewing the award confirmation, we owe
no special deference to the trial court's
interpretation of the law and the legal
consequences that flow from established
facts." Town of Kearny v. Brandt, 214 N.J.
76, 92 (2013) (citing Manalapan Realty, LP v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)). We thus review the trial court's
decision on a motion to vacate an arbitration
award de novo. Minkowitz v. Israeli, 433 N.J.
Super. 111, 136 (App. Div. 2013).
[Yarborough v. State Operated Sch. Dist. of
the City of Newark, __ N.J. Super. __, __
(App. Div. 2018) (slip op. at 3).]
The Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-10
to -18.1, "provides tenured public school teachers with certain
procedural and substantive protections from termination." Bound
Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11-12 (2017). Under
that law, "if the Commissioner determines the tenure charges merit
termination, the case is referred to an arbitrator." N.J.S.A.
18A:6-16." Ibid. (citing N.J.S.A. 18A:6-17.1). Pursuant to
N.J.S.A. 18A:6-17.1, "[t]he arbitrator's determination shall be
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final and binding" and "shall be subject to judicial review and
enforcement as provided pursuant to N.J.S.[A] 2A:24-7 through
N.J.S.[A] 2A:24-10."
N.J.S.A. 2A:24-8 provides four bases to vacate an arbitration
award. These include:
a. Where the award was procured by corruption,
fraud or undue means;
b. Where there was either evident partiality
or corruption in the arbitrators, or any
thereof;
c. Where the arbitrators were guilty of
misconduct in refusing to postpone the
hearing, upon sufficient cause being shown
therefor, or in refusing to hear evidence,
pertinent and material to the controversy, or
of any other misbehaviors prejudicial to the
rights of any party;
d. Where the arbitrators exceeded or so
imperfectly executed their powers that a
mutual, final and definite award upon the
subject matter was not made.
[N.J.S.A. 2A:24-8.]
Plaintiff contends that the arbitrator's award should be
vacated under either subsections (a) or (d). As used in subsection
(a), "'[U]ndue means' ordinarily encompasses a situation in which
the arbitrator has made an acknowledged mistake of fact or law or
a mistake that is apparent on the face of the record . . . ."
Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J.
190, 203 (2013) (first alteration in original) (quoting N.J. Office
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of Emp. Relations v. Commc'ns Workers of Am., 154 N.J. 98, 111-12
(1998)). "[A]n arbitrator's failure to follow the substantive law
may . . . constitute 'undue means' which would require the award
to be vacated." In re City of Camden, 429 N.J. Super. 309, 332
(App. Div. 2013) (quoting Jersey City Educ. Ass'n, Inc. v. Bd. of
Educ., 218 N.J. Super. 177, 188 (App. Div. 1987)).
Subsection (d) permits the vacation of an arbitration award
in cases where the arbitrator exceeded the scope of his or her
authority. See Port Auth. Police Sergeants Benevolent Ass'n of
N.Y., N.J. v. Port Auth. of N.Y., N.J., 340 N.J. Super. 453, 458
(App. Div. 2001). A court also may vacate an arbitration award
for public policy reasons. E. Rutherford PBA Local 275, 213 N.J.
at 202. This applies only in "rare circumstances." Ibid.
(quoting N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 190 N.J. 283,
294 (2007)).
Here, because the arbitration was compelled by statute under
N.J.S.A. 18A:6-16, "judicial review should extend to consideration
of whether the [arbitration] award is supported by substantial
credible evidence present in the record." Amalgamated Transit
Union v. Merce Cty. Improvement Auth., 76 N.J. 245, 254 (1978).1
1
There is nothing in this record showing that the arbitration was
based on a collective bargaining agreement. It does not include
correspondence transmitting the case to the Commissioner nor to
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The court used the reasonably debatable standard that applied
before N.J.S.A. 18A:6-16 was amended in 2012. L. 2012, c. 26, §
8. See Linden Bd. of Educ., 202 N.J. at 276 (providing that the
standard of review of public sector arbitration awards was to
uphold the arbitrator's decision if it was reasonably debatable).
That said however, based on our review of the record, we conclude
that the arbitrator's findings are supported by substantial
credible evidence. We have no basis to disturb them.
Plaintiff contends that the arbitrator did not make factual
findings about what actually occurred during the March 25, 2015
incident. We agree with the trial court in rejecting this
argument. The arbitrator found that plaintiff was the aggressor
in the incident with B.L., that he physically contacted the youth,
and that he had not acted to defuse the situation from escalating.
Based on the videotape he found "clear evidence" of "unbecoming
conduct for aggressive behavior." Plaintiff did not seek external
assistance. The arbitrator did not find any mitigating evidence.
The arbitrator saw plaintiff on the video "touching and/or pushing
[s]tudent [B.L.], neither retreating nor calling for other
the arbitrator. Before N.J.S.A. 18A:6-16 was amended in 2012, our
standard of review of public sector arbitration awards was to
uphold the arbitrator's decision if it was reasonably debatable.
See Linden Bd. of Educ. v. Linden Educ. Ass'n, 202 N.J. 268, 276
(2010).
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professional assistance and thus demonstrating poor judgment."
We are satisfied that the arbitrator made findings that supported
the tenure charges and that there was substantial credible evidence
in the record to support the findings.
The arbitrator made reference to plaintiff's prior employment
and disciplinary history. In 2009, plaintiff was involved in a
physical altercation with a student. This incident was not found
by the Institutional Abuse and Investigation Unit report to
constitute abuse. In January 2010, a student alleged plaintiff
scratched her face when he took a way her cell phone, a claim that
he denied. A written letter from the principal advised him to
"use better judgment, refrain from physical force with students
and ask for assistance if needed." In November 2010, he received
a written reprimand about the lack of quality of his lesson plans.
In November 2010, plaintiff was involved in a verbal altercation
with a student and was issued a written reprimand because his
response to the student was to use "inappropriate language" that
took the confrontation to a "higher level" instead of calming it.
He was directed to enroll in a workshop on dealing with difficult
students. He was issued a disciplinary memo in 2010, when he did
not report his absence. In 2011, he was directed to undergo a
psychological evaluation. His increment was withheld in 2011-2012
based on his performance including "poor classroom management" and
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his "exercise of poor judgment in conducting teacher
responsibilities." Plaintiff contends that the arbitrator relied
on this record in evaluating whether plaintiff committed the
present charges. Plaintiff does not dispute that the arbitrator
was permitted to rely on his employment record in evaluating
whether he should be terminated from employment. See W. New York
v. Bock, 38 N.J. 500, 522 (1962).
We agree with the trial judge that the arbitrator's award did
not use plaintiff's past record as proof of the current charges,
although the arbitrator's award could have been more clearly
written. The arbitrator wrote:
If the surrounding facts/interpretation of the
March 25, 2015 'incident' were, standing
alone, to be the sole determinative factor for
whether there was a 'just cause' dismissal
here, the [t]eacher's defense to it might have
provided some pause for consideration.
We read "'just cause' dismissal" as referencing the penalty to be
imposed; not the underlying charges. In another part of the
decision, the arbitrator wrote "[m]oreover, as stated above, this
[t]eacher possessed a clear predilection toward similar behavior
in the past." When read in context, this was a simply a reference
to progressive discipline. The arbitrator also wrote that,
"[t]herefore and notwithstanding the
[t]eacher's defenses [as documented but not
testified to] surrounding his actions on March
25, 2015, any attempts to dissect the events
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of that day are simply deemed to be a futile
attempt to avoid the more critical and
underlying question about this [t]eacher's
suitability for continued employment within
the [s]chool [d]istrict.
Because the arbitrator found the tenure charges by clear and
convincing evidence, we read this passage as the arbitrator's
evaluation of plaintiff's suitability for employment in
determining whether to terminate employment and not in determining
the underlying charges.
There was no indication the arbitrator relied on an inaccurate
or over-generalized version of plaintiff's employment record. The
tenure charges detailed plaintiff's employment history. The
parties had stipulated that plaintiff's full employment record was
in evidence. There is no reason to think that the arbitrator did
not fully appreciate that some of the issues in his record did not
relate to interactions with students and others did not result in
written reprimands.
We agree with the trial court that the arbitrator's award
should not be vacated on grounds that it was "procured by . . .
undue means." There was substantial evidence to support the
charges and also to support termination of plaintiff's employment.
N.J.S.A. 2A:24-8(d) does not apply in this case. Plaintiff did
not contend that the arbitrator exceeded the scope of his authority
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or that the award should have been vacated for public policy
reasons.2
The reported case cited by plaintiff does not require a
different result. In In re Fulcomer, 93 N.J. Super. 404 (App.
Div. 1967), where we remanded the case to the Commissioner to
determine the proper penalty to be imposed, the teacher had not
been disciplined in the past and consistently had received pay
raises. That was not the situation with plaintiff who had a
disciplinary record and had been denied a pay increment.
Affirmed.
2
This would have required analysis under the reasonably debatable
standard. E. Rutherford PBA Local 275, 213 N.J. at 203.
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