Castellano v. Linden Board of Education , 79 N.J. 407 ( 1979 )

Schreiber, J.,

concurring and dissenting. I join in the majority’s judgment that the mandatory maternity leave and sick leave provisions of the agreement between the Linden Board of Education and the Linden Education Association violated the Law Against Discrimination, N. J. S. A. 10:5-l et seq. I also agree with the majority’s determination concerning the award for humiliation and mental suffering. However, I cannot agree with its blanket approval of the Director’s order which in some significant respects far exceeds the issues which were presented.

The first indication of the limited scope of the questions which were to be resolved may be found in the pleadings. The verified complaint filed by Sandra Castellano with the Division on Civil Rights alleged that she had been a teacher in the Linden school system since 1970, that she had given birth to a child on August 29, 1974, that she had been prepared to return to the classroom on October 1, 1974, but that the Linden Board of Education had involuntarily placed her on a leave of absence status until June 30, 1975. It was only because of her sex that she had been prevented from returning to her duties. The respondents Linden Board of Education, Superintendent of Schools and President of the Board of Education admitted substantially all the operative facts in the complaint, but denied any discrimination.

The plaintiff, her husband, the assistant superintendent and the superintendent of schools were the only witnesses at the hearing before the Division. The exhibits consisted of the union contract and some correspondence between plaintiff and the school officials. The facts were virtually undisputed.

Plaintiff, a first grade school teacher with tenure, wrote the superintendent of schools on August 7, 1974 that the birth of her child “may come as late as early September” and that she intended at present to be at her job for the opening of school; that she anticipated a short-term absence which would begin and terminate in accordance with her obstetrician’s instructions; and that at the discretion of the Board of Education the absence should be treated as sick leave or as a temporary leave of absence without pay.

The Board denied the request for sick leave because of the provisions of the contract between the Board of Education and the Linden Education Association. It granted plaintiff a maternity leave of absence from September 1, 1974 to June 30, 1975 in accordance with Article XXII of the contract which required a maternity leave to terminate at the commencement of the next school year following termination of the pregnancy.

Plaintiff’s child was born on August 29, 1974. On October 1, 1974 plaintiff wrote the superintendent that she was able to return to work. She enclosed a confirmatory medical report. Her complaint with the Division on Civil Rights was filed on October 17, 1974.

Counsels’ openings, their colloquies throughout the proceeding, and summations were directed to the validity of Article XXII (maternity leave) and Article XIX (sick leave) of the agreement between the Board of Education and the Linden Education Association. The Hearing Examiner viewed these as the principal issues. His recommended award was based on findings of fact and conclusions of law that Articles XIX and XXII of the agreement violated N. J. 8. A. 10:5-12 (a) and 10:5-4, resulting in Mrs. Castellano’s damages.

The Director’s order went far beyond the issues framed by the pleadings, expounded in his Finding of Probable Cause, developed at the hearing, and resolved by the Hearing Examiner’s findings of fact and conclusions of law. In paragraphs 5 and 6 of the ordering portion of his judgment, the Director determined that the respondents were not to differentiate between men and women with regard to life insurance, health or temporary disability insurance ot sick leave plans. In paragraph 4 he provided that:

Respondents will maintain no written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy.

No evidence was presented or record made on any of these matters. The parties had neither briefed nor argued them.

There should be a sufficiently related nexus between the orders of the Director and the issues which have been raised and tried out in the proceedings. Professor Davis has stated the general guiding principle to be that “administrative orders must be reasonably related to the findings upon which they rest and must avoid undue breadth.” 1 K. Davis, Administrative Law Treatise § 8.19 at 603 (1958). In the leading opinion of NLRB v. Express Publishing Co., 312 U. S. 426, 61 S. Ct. 693, 85 L. Ed. 930 (1941), the United States Supreme Court laid down the basic rule that an administrative agency’s order

must, like the injunction order of a court, state with reasonable specificity the acts which the respondent is to do or refrain from doing. It would seem equally clear that the authority conferred on the Board to restrain the practice which it has found the employer to have committed is not an authority to restrain generally all other unlawful practices which it has neither found to have been pursued nor persuasively to be related to the proven unlawful conduct. [ 312 U. S. at 433, 61 S. Ct. at 698, 85 L. Ed. at 936]

Though the Director has been vested with broadly stated remedial powers, N. J. 8. A. 10:5-6 and N. J. 8. A. 10: 5-17, the remedial steps which may be required to correct the improper conduct and insure compliance with respect to that conduct contemplate a reasonable relationship between the remedy and the illegality. Under the circumstances here, the Director exceeded the limits of sound discretion.

The nature of the problems involved in these gratuitous ordering paragraphs demonstrates the inappropriateness of such broadly drawn orders. For example, the prohibition in ordering paragraph 4 against a denial of employment to an applicant because of pregnancy would seem to conflict with Gilchrist v. Haddonfield Bd. of Ed., 155 N. J. Super. 358 (App. Div. 1978), whose holding the majority is approving today. In GilchHst the refusal to rehire a non-tenured teacher because she contemplated the birth of a child during the school year was held not to violate the Law Against Discrimination in the absence of a showing that other contemplated disabilities would not result in a like disqualification. The issue in Gilchrist has not been presented to us. Nor was it before the Division. The question should not have been resolved in the Director’s order. Nor is there any need or justification for this Court to place its stamp of approval on that action.

So, too, determinations under our Law Against Discrimination concerning life insurance and sick leave plans which may have some differential impact due to sex should be resolved not in a vacuum, but on the basis of a record after the parties have had an opportunity to discuss and argue the issue. Compare General Electric Co. v. Gilbert, 429 U. S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976), and Geduldig v. Aiello, 417 U. S. 484, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1974), with Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978). In my opinion paragraphs 4, 5 and 6 are overbroad and I would eliminate them.

Other than as stated herein, I concur in the majority opinion and I would affirm the judgment as modified.

Justice Clifford joins in this opinion except for its expression of approval of the majority’s determination concerning the award for humiliation and mental suffering.