Darcy J. Kolodziej v. Board of Education of Southern ( 2014 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4826-12T1
    DARCY J. KOLODZIEJ,
    APPROVED FOR PUBLICATION
    Petitioner-Appellant,
    July 25, 2014
    v.
    APPELLATE DIVISION
    BOARD OF EDUCATION OF SOUTHERN
    REGIONAL HIGH SCHOOL DISTRICT,
    OCEAN COUNTY,
    Respondent-Respondent.
    Submitted June 24, 2014 - Decided July 25, 2014
    Before Judges Parrillo, Messano and Alvarez.
    On appeal from the Commissioner of
    Education, Docket No. 188-7/07.
    Zazzali, Fagella, Nowak, Kleinbaum &
    Friedman, P.C., attorneys for appellant
    (Aileen M. O'Driscoll, of counsel and on the
    briefs).
    Berry Sahradnik Kotzas & Benson, P.C.,
    attorneys for respondent Board of Education
    of Southern Regional High School District,
    Ocean County (Mathew B. Thompson, on the
    brief).
    John J. Hoffman, Acting Attorney General,
    attorney for respondent Commissioner of
    Education (Caroline Jones, Deputy Attorney
    General, on the brief).
    The opinion of the court was delivered by
    PARRILLO, P.J.A.D.
    Petitioner Darcy Kolodziej appeals from a final decision of
    the Commissioner of Education, finding that she had not attained
    tenure, due to an interruption in service because of a year-long
    maternity leave, when she was laid off in April 2007, and thus
    that she was not entitled to be rehired when a position became
    available in August 2007.    We disagree that petitioner's
    maternity leave interrupted her period of service to achieve
    tenure, and remand to the agency to determine whether petitioner
    had attained the seniority to be automatically rehired when the
    position became available and, if so, the measure of her
    damages.
    Petitioner began working as a full-time health and physical
    education teacher for the Southern Regional High School Board of
    Education (Board) in 2002.    She was employed in this capacity
    for the complete 2002-2003, 2003-2004 and 2004-2005 academic
    years.    On September 1, 2005, petitioner began a Board-approved
    unpaid maternity leave, which lasted until June 30, 2006.
    Petitioner returned to work on September 1, 2006 and was
    continuously employed through the end of the 2006-2007 school
    year.    On April 27, 2007, petitioner received notice that her
    2                           A-4826-12T1
    position with the Board would be terminated effective September
    1, 2007, pursuant to a reduction in force (RIF) plan.
    During her first three years of employment, petitioner had
    been evaluated as required for the granting of tenure status
    under N.J.S.A. 18A:28-5(b).   However, as of the end of the 2006-
    2007 school year, the Board had not granted petitioner tenure.
    Thus, in August 2007, when a physical education position became
    available, petitioner was not among those considered to fill it;
    the position instead went to another teacher, who had been
    granted tenure and placed on a recall list as part of the RIF
    plan.
    On July 2, 2007, petitioner filed an appeal with the
    Department of Education (DOE), claiming that she was entitled to
    tenure protection and status under the RIF plan.   The case was
    sent to the Office of Administrative Law (OAL) for hearing.       In
    a series of partial summary decisions, the administrative law
    judge (ALJ) found that the petitioner had acquired tenure before
    the RIF plan and thus that her tenure rights had been violated
    under its provisions.   The ALJ ordered that petitioner be
    reinstated to her former position as a physical education
    teacher and that she be granted back pay of $137,212 for the
    2007-2008, 2008-2009 and 2009-2010 school years as well as
    seniority credit for those years.   In a final decision of April
    3                            A-4826-12T1
    5, 2013, the ALJ confirmed all these prior decisions, and noted
    that petitioner had waived her right to incidental damages
    including health care costs and various tax credits.
    On May 16, 2013, the Commissioner of Education
    (Commissioner) rejected this decision, concluding that
    petitioner had not attained tenure at the time of her dismissal
    in 2007.   Having so determined, the Commissioner did not address
    the issue of petitioner's seniority and thus concluded that she
    was not entitled to any relief.
    Petitioner appeals from the Commissioner's decision,
    arguing
    I.    THE COURT SHOULD REVERSE THE DECISION
    OF THE COMMISSIONER BECAUSE IT IS
    INCONSISTENT WITH, AND/OR IMPROPERLY
    APPLIES[,] N.J.S.A. 18A:28-5 AND
    RELEVANT CASE LAW.
    II.   ASSUMING TH[E] COURT REVERSES THE
    COMMISSIONER'S DECISION, THE ALJ'S
    DECISION THAT [PETITIONER] WAS TENURED
    AT THE TIME OF THE DISTRICT'S REDUCTION
    IN FORCE AND HAD GREATER SENIORITY THAN
    SEVERAL OTHER TEACHING STAFF MEMBERS
    ASSIGNED TO POSITIONS AS PHYSICAL
    EDUCATION TEACHERS, AND WAS AND IS
    ENTITLED TO HER POSITION AS A TEACHER
    OF PHYSICAL EDUCATION[,] SHOULD BE
    AFFIRMED.
    III. THE FEDERAL FAMILY LEAVE ACT, THE
    DISTRICT FAMILY LEAVE POLICY AND THE
    PARTIES' COLLECTIVE BARGAINING
    AGREEMENT DID NOT PRECLUDE [PETITIONER]
    4                        A-4826-12T1
    FROM ACQUIRING SENIORITY WHILE ON
    MATERNITY LEAVE.
    It is a well-settled principle of judicial review of
    administrative agency decisions that we will "accord a strong
    presumption of reasonableness to such decisions and do not
    substitute our judgment for the wisdom of agency action if that
    action is statutorily authorized and not arbitrary and
    unreasonable."    A.M.S. ex rel. A.D.S. v. Bd. of Educ., 409 N.J.
    Super. 149, 159 (App. Div. 2009).    However, we are not bound by
    an agency's interpretation of a statute.    Russo v. Bd. of
    Trustees, 
    206 N.J. 14
    , 27 (2011).    Instead, we review the
    interpretation of a statute de novo.    Div. of Youth & Family
    Servs. v. T.B., 
    207 N.J. 294
    , 300 (2011).
    Relevant here, the Tenure Act, N.J.S.A. 18A:28-5(a)
    provides:
    The services of all teaching staff members
    employed prior to the effective date of
    P.L.2012, c.26 [N.J.S.A. 18A:6-117 to -129]
    in the position[] of teacher, . . . serving
    in any school district or under any board of
    education, . . . shall be under tenure
    during good behavior and efficiency and they
    shall not be dismissed or reduced in
    compensation except for inefficiency,
    incapacity, or conduct unbecoming such a
    teaching staff member or other just cause
    and then only in the manner prescribed by
    subarticle B of article 2 of chapter 6 of
    this Title [N.J.S.A. 18A:6-9 to -25], after
    employment in such district or by such board
    for:
    5                            A-4826-12T1
    (1)   Three consecutive calendar years,
    or any shorter period which may be
    fixed by the employing board for
    such purpose; or
    (2)   Three consecutive academic years,
    together with employment at the
    beginning of the next succeeding
    academic year; or
    (3)   The equivalent of more than three
    academic years within a period of
    any four consecutive academic
    years.
    The parties agree that petitioner worked as a teacher for three
    consecutive academic years, from 2002 to 2005.    Thus, the
    question of whether petitioner achieved tenure before her
    dismissal in 2007 turns on whether she fulfilled the conditions
    in (2) or (3), i.e., whether petitioner's unpaid leave of
    absence 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
    Commissioner concluded that petitioner's leave represented a
    break in employment, which prevented petitioner from achieving
    tenure notwithstanding the three years of continuous employment
    and tenure evaluations that preceded the leave.   We disagree.
    We have found no case law directly on point as to whether
    maternity leave constitutes continued employment under N.J.S.A.
    18A:28-5(a).   Nevertheless, our courts have considered the
    effect that other types of leave might have on tenure status.
    6                             A-4826-12T1
    Our Court has noted that "'continuous employment' exists
    notwithstanding the 'mere occasional absence of a teacher by
    reason of illness or excuse.'"    Kletzkin v. Bd. of Educ., 
    136 N.J. 275
    , 279 (1994) (quoting Bd. of Educ. v. Wall, 
    119 N.J.L. 308
    , 309-10 (Sup. Ct. 1938)).    In 
    Kletzkin, supra
    , 136 N.J. at
    280, the Court concluded that a teacher, who was on leave due to
    a work-related injury for four months during the required three-
    year tenure probation period, still had acquired tenure, even
    though she did not actively work during the full period.    In
    reaching this decision, the Court noted that there had been
    ample time to evaluate the employee during the twenty-eight
    months she had been actively working.    
    Ibid. Moreover, the Court
    specifically noted that "an employee on a leave of absence
    remains an employee."   Ibid.; see also Ward v. Keenan, 
    3 N.J. 298
    , 310-11 (1949) (noting that a police officer's leave of
    absence did not constitute a "complete severance of
    responsibility" and so he could not "lose his tenure during good
    behavior" while on leave); Blinn v. Bd. of Trustees, 173 N.J.
    Super. 277, 278 (App. Div. 1980) (noting that "the phrase 'leave
    of absence' itself 'connotes a continuity of the employment
    status'") (citations omitted).
    Although the Commissioner distinguished Kletzkin, on the
    grounds that it involved an involuntary, work-related leave, we
    7                          A-4826-12T1
    see no meaningful distinction for present purposes.   Like in
    
    Kletzkin, supra
    , the Board here had an adequate period, thirty
    months, in which to evaluate petitioner's fitness for tenure,
    and did, in fact, evaluate her the requisite number of times in
    that period.   See Bd. of Educ. v. Raubinger, 
    78 N.J. Super. 90
    ,
    100 (App. Div. 1963) ("Three full years are a sufficient term
    within which a board of education may judge the competency of a
    teacher, principal or superintendent.   It is also a reasonable
    period for one in the teaching profession to be expected to
    demonstrate his or her capacity before achieving tenure
    status.").   Thus, concerns about evaluation are irrelevant here.
    Moreover, petitioner did, in fact, return to work in the
    same position when her allowed leave had expired.   There is
    nothing to suggest, therefore, that petitioner did not remain an
    employee throughout the time she was on leave, albeit an
    inactive one for the 2005-2006 academic year.   The employment
    relationship did not cease during her leave; she was not rehired
    at the beginning of the 2006-2007 year, undergoing a new
    interview and hiring process, but rather simply returned to
    work.
    Additionally, interpreting the statute to allow tenure in
    this case fits within the public policy purposes of the Tenure
    Act and the FMLA, under which petitioner took her leave.   The
    8                          A-4826-12T1
    FMLA was developed "to entitle employees to take reasonable
    leave . . . for the birth or adoption of a child . . . ."     29
    U.S.C.A. § 2601(b)(2).   Recognizing that "due to the nature of
    the roles of men and women in our society, the primary
    responsibility for family caretaking often falls on women, and
    such responsibility affects the working lives of women more than
    it affects the working lives of men[,]" one of its explicit
    goals is "to promote . . . equal employment opportunity for
    women and men[.]"   29 U.S.C.A. § 2601(a)(5) & (b)(5).    The FMLA
    specifically provides that a returning employee is "to be
    restored by the employer to the position of employment held by
    the employee when the leave commenced; or to be restored to an
    equivalent position with equivalent employment benefits, pay,
    and other terms and conditions of employment."   29 U.S.C.A. §
    2614(a)(1).   And, importantly, the leave "shall not result in
    the loss of any employment benefit accrued prior to the date on
    which the leave commenced."   29 U.S.C.A. § 2614(a)(2).    Thus, it
    is clear that the FMLA seeks to return the employee to the same
    position that he or she was in before the leave, treating the
    leave itself not as a cessation, but instead as a temporary
    pause in the ongoing working relationship.   To therefore punish
    an employee by denying her tenure she had earned over three
    years of continuous employment and satisfactory evaluations
    9                           A-4826-12T1
    simply because she took the leave that her employer granted her,
    would not serve the purpose of the FMLA.
    The Board argues that the FMLA itself contains language
    which prevents petitioner from acquiring tenure while on leave.
    29 U.S.C.A. § 2614(a)(3) provides:
    Nothing in this section shall be
    construed to entitle any restored employee
    to
    (A)    the accrual of any seniority or
    employment benefits during any
    period of leave; or
    (B)    any right, benefit, or position of
    employment other than any right,
    benefit, or position to which the
    employee would have been entitled
    had the employee not taken the
    leave.
    However, this section merely prevents the FMLA from establishing
    new or increased rights other than those specifically
    enumerated; it does not supersede state statutes that provide
    other rights nor does it prohibit states from guaranteeing those
    rights separately.   See 29 C.F.R. § 825.215(d)(2) ("An employee
    may, but is not entitled to, accrue any additional benefits or
    seniority during unpaid FMLA leave.").   Thus, by adopting the
    Board's interpretation of the statute, we would be adopting a
    position that penalizes pregnant employees by returning them not
    to the same position as of the day they went on leave, but
    rather to a new, worsened position, one for which the tenure
    10                        A-4826-12T1
    clock must reset.    This would utterly defeat the purpose of the
    FMLA, which is to preserve the rights of employees granted
    leave, not to penalize them for taking such leave.
    Our own Family Leave Act, N.J.S.A. 34:11B-1 to -16, further
    illustrates this public policy goal of protecting employees who
    take such leaves of absence.   In N.J.S.A. 34:11B-2, our
    Legislature declared that "employees should be entitled to take
    a period of leave upon the birth . . . of a child . . . without
    risk of termination of employment . . . and without loss of
    certain benefits."   To that end, like the FMLA, the Family Leave
    Act provides that an employee is "entitled to be restored to the
    position held by the employee when the leave commenced or to an
    equivalent position of like seniority, status, employment
    benefits, pay, and other terms and conditions of employment."
    N.J.S.A. 34:11B-7.   The Act further provides that the employee
    "shall retain all rights under any applicable layoff and recall
    system, including a system under a collective bargaining
    agreement, as if the employee had not taken the leave."     
    Ibid. Thus, like the
    FMLA, our statutory authority reveals an intent
    to return an employee on maternity leave to the same position
    she was in before she took the leave; in other words, our public
    policy also favors treating petitioner as though her leave did
    11                         A-4826-12T1
    not occur since she otherwise would have gained tenure on
    September 1, 2005.
    Because petitioner remained an employee even during her
    maternity leave and because the principles underlying the FMLA
    and our own Family Leave Act encourage an interpretation that
    preserves the rights of our pregnant employees, we find that
    petitioner's tenure rights were maintained even though she went
    on leave, and thus that she was tenured as of the beginning of
    her leave on September 1, 2005.
    As such, petitioner claims that she is entitled to relief
    because at the time of the RIF plan in April 2007, she had
    acquired three years and nine months of seniority, which
    allegedly was a greater amount of seniority time than that
    acquired by the individual who ultimately obtained the vacant
    position in the physical education department in August 2007.
    To arrive at this number, however, petitioner includes thirty
    days of credit acquired during the 2005-2006 academic year when
    she was on leave.    Petitioner relies on N.J.A.C. 6A:32-5.1(b) to
    support her contention that the thirty days may be included:
    Seniority, pursuant to N.J.S.A. 18A:29-
    9 et seq., shall be determined according to
    the number of academic or calendar years of
    employment, or fraction thereof, as the case
    may be, in the school district in specific
    categories as hereinafter provided. The
    periods of unpaid absences not exceeding 30
    calendar days aggregate in one academic or
    12                        A-4826-12T1
    calendar year, leaves of absence at full or
    partial pay and unpaid absences granted for
    study or research shall be credited toward
    seniority. All other unpaid absences or
    leaves of absence shall not receive
    seniority credit.
    [(emphasis added).]
    Petitioner claims that the phrase "[t]he periods of unpaid
    absences not exceeding 30 calendar days aggregate in one
    academic or calendar year . . . shall be credited toward
    seniority" should be interpreted as allowing her a thirty-day
    seniority credit from her ten-months of unpaid leave.
    As noted, because he found that petitioner did not attain
    tenure, the Commissioner did not address the issue of her
    seniority or entitlement to damages.   Specifically, the
    Commissioner did not determine whether petitioner's
    interpretation of N.J.A.C. 6A:32-5.1(b) (as allowing her a
    thirty-day seniority credit from her ten-months of unpaid leave)
    was correct or whether the regulation should be construed as
    permitting the consideration of only periods of absence of less
    than thirty days in calculating seniority time.   The proper
    interpretation of N.J.A.C. 6A:32-5.1(b) is thus determinative of
    petitioner's seniority rights1 and its resolution, we find, is
    1
    It appears that without those thirty days, petitioner had three
    years and eight months of seniority, which was equal to the
    amount of seniority time held by the teacher who assumed the
    (continued)
    13                          A-4826-12T1
    best left to the agency charged with its enforcement.    We
    therefore remand the matter to the Commissioner for a
    determination of petitioner's seniority rights and any
    consequent entitlement to relief.
    Reversed and remanded.
    (continued)
    vacant position in August 2007. If so, petitioner would not be
    automatically entitled to that position based on seniority, but
    rather would have, at most, been considered with the other
    teacher for the position. However, when two teachers have the
    same seniority time, the Board is empowered to choose between
    the two.
    14                             A-4826-12T1
    

Document Info

Docket Number: A-4826-12

Filed Date: 7/25/2014

Precedential Status: Precedential

Modified Date: 10/30/2014