LEON VARJIAN v. MIDLAND PARK BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5219-07T25219-07T2

LEON VARJIAN,

Appellant,

v.

MIDLAND PARK BOARD OF EDUCATION,

AUGUST DePREKER, AS SUPERINTENDENT

OF THE MIDLAND PARK SCHOOL DISTRICT;

and PATRICIA TERRACIANO,

Respondents.

________________________________________________________________

 

Argued September 14, 2009 - Decided

Before Judges Lisa and Baxter.

On appeal from the New Jersey Department of Education, Docket No. 168-6/05.

Hope A. Lang argued the cause for appellant.

Robert M. Jacobs argued the cause for respondents Midland Park Board of Education, August Depreker, as Superintendent of the Midland Park School District, and Patricia Terraciano (Winne, Banta, Hetherington, Basralian & Kahn, P.C., attorneys; Mr. Jacobs, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent State Board of Education (Joyce D. Atkins, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant, Leon Varjian, a mathematics teacher at Midland Park High School, appeals from the May 27, 2008 final decision of the State Board of Education (State Board) dismissing his petition against the Midland Park Board of Education, its superintendent, and the principal of the high school. Appellant contended that he was discriminated against because of a disability or perceived disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. He contended that since his return to teaching from medical leave for cancer treatment, he was discriminated against because he was assigned fewer honors courses. He was also assigned a different classroom, and the activities of the student organization he advised were reduced. He contended that as a cancer survivor, he was disabled or perceived to be disabled, causing the discriminatory treatment.

After the local board of education rejected appellant's discrimination grievance through the required administrative steps, appellant filed this petition before the New Jersey Commissioner of Education (Commissioner). The matter was transmitted to the Office of Administrative Law (OAL). At the conclusion of appellant's case, in which he was the only witness and in which he entered into evidence numerous documents, the Administrative Law Judge (ALJ) granted respondents' motion to dismiss the petition on the ground that appellant failed to demonstrate a right to relief. See R. 4:37-2(b). With particular reference to the LAD claim, the ALJ found that appellant failed to establish a prima facie case under the McDonnell Douglas framework.

After the ALJ issued a written Initial Decision memorializing the dismissal, appellant filed exceptions. On October 15, 2007, after considering the record as a whole and taking into consideration appellant's exceptions, the Commissioner issued a decision adopting the ALJ's Initial Decision. Appellant filed an administrative appeal with the State Board and moved to supplement the record. The State Board denied the motion to supplement, after which it issued its final decision on May 27, 2008 affirming the decision of the Commissioner for the reasons expressed by the Commissioner. This appeal followed.

Appellant argues that the ALJ, Commissioner, and State Board erred in finding a lack of jurisdiction to adjudicate his LAD claim and in finding that he failed to establish a prima facie case of discrimination. He further argues that the ALJ misapplied the governing standards in granting a Rule 4:37-2(b) motion for involuntary dismissal, and that the ALJ, Commissioner, and State Board erred in finding facts not supported by record evidence. Finally, he argues that the State Board erred in denying his motion to supplement the record. We reject these arguments and affirm.

Appellant has taught mathematics at Midland Park High School since 1988. The school offers three levels of mathematics courses: basic, college preparation (CP), and honors, which includes advanced placement (AP) calculus. Without dispute, appellant is an excellent teacher. For many years through the 1999-2000 school term, he taught only CP and honors courses, and taught all honors pre-calculus courses. Appellant prefers to teach these high level courses, although his contract is to teach mathematics, not to teach any particular mathematics course.

In 1997, appellant began advising the student senate. From that time through the 1999-2000 school term, all student senate activities were approved, including used book sales that occurred six to eight times annually.

In February 2000, appellant was diagnosed with non-Hodgkin's Lymphoma, a form of cancer. He underwent surgery and missed the remainder of the school term for medical treatment. Because of uncertainty as to when he would return, the administration determined not to utilize substitute teachers for his classes, but instead assigned other mathematics teachers in the school to take them over. Although those teachers were qualified by their education and certifications to teach the higher level courses, their preference was not to do so.

Appellant returned to his teaching duties in September 2000. The administration made a determination that it was better school policy to have more than one teacher assigned to teach the higher level mathematics courses. The administration does not dispute that the impetus for this policy was appellant's absence, under circumstances in which he was the only individual in this relatively small school assigned to teach those courses.

Appellant contended that since his return to teaching he suffered harassment because he was assigned to teach fewer honors courses, he was assigned a different classroom, and his capacity to advise the student senate was restricted. His pay was not reduced, and he never contended that his contract was violated, other than because of the alleged discriminatory treatment. He never needed or requested any accommodations for a disability after his return to work. Appellant recognized the managerial prerogative of the administration to assign teachers within their contracted subject matters, as it saw fit. However, that prerogative does not allow for assignment decisions based upon discrimination against a person in a protected class.

At some point after appellant's return in September 2000, Patricia Terraciano, who had been vice-principal, became principal of the high school and implemented changes. During the 2000-2001 school term, AP calculus and honors pre-calculus were scheduled for the same period to accommodate a new AP chemistry course which was offered every other year. Appellant was assigned to teach AP calculus and one other honors course. He was upset about his course assignments and was of the view that the master course schedule was such that he could have taught both honors pre-calculus and AP calculus.

During the 2001-2002 term, appellant taught honors pre-calculus and AP calculus. During the 2002-2003 term, he taught three honors courses, but not honors pre-calculus. In the summer of 2003, appellant learned that he was assigned for the upcoming 2003-2004 term to teach two honors courses, two CP courses, and one basic course. He interpreted the assigned basic course as harassment and retaliation for having filed a grievance. He met with the superintendent to discuss the assignment, and the basic course was replaced with a third CP course.

In the summer of 2004, appellant learned he was assigned for the upcoming 2004-2005 term to teach one honors class, three CP classes, and one basic class. He again interpreted the assignment to a basic course as retaliation for filing a grievance. His review of the 2004-2005 master course schedule led him to conclude that he could have taught an additional honors course in place of the CP course.

During the 2006-2007 term, appellant taught one honors course, AP calculus, and one CP course. Another teacher taught pre-calculus honors during the period appellant taught AP calculus. Since appellant's illness, honors pre-calculus and AP calculus were taught during different periods only twice, and appellant taught both courses both times.

In the OAL hearing, appellant testified that he experienced discrimination in that "prior to lymphoma I was teaching three or four honors classes a year and after lymphoma I was assigned to teach one or two." He described how he was harmed by the change in his assignments, namely that he was deprived of the prestige, cachet, and status of teaching the higher level courses. He alleged the reduction in his assignments to teach the higher level courses was attributable to resentment that he missed work during his illness. He also contended that the change was motivated by a perception that, because of his illness, he was not capable of teaching as many higher level courses.

In July 2000, appellant was informed that his shared classroom had been cleaned and reorganized by other teachers. He felt "hurt" and "bewildered" when he saw the new location of his furniture and items.

In December 2002, appellant received a notice asking him to explain the educational significance of the Christmas displays set up in his classroom. This was because the district did not permit holiday decorations. Appellant responded that the shapes of the decorations had geometric and mathematic significance. He received a second notice requesting copies of lesson plans that included the decorations as part of his teaching. Appellant interpreted this request as harassment and retaliation for filing a grievance. He submitted a response and was not asked to remove the decorations.

Prior to the 2004-2005 school term, appellant was assigned to Room 54, which had a large storage space. That year, appellant was transferred to Room 16, which was smaller than Room 54. The reason for the change was that Room 54 was the only room with sufficient wiring to accommodate a new computer class that was being offered. Appellant was of the view that another room could have been wired and he could have been left in Room 54. He interpreted his changed classroom assignment as a retaliatory act.

After appellant's return in September 2000, the administration changed the location of the used book sale. This was done to avoid crowding outside the cafeteria during lunch and to avoid the sale being the first thing parents saw on Back to School Night. Appellant's request for various student senate activities was denied that year and afterwards, including requests for programs that had been approved in prior years. In 2003, the administration limited the student senate to four book sales (one per quarter) and denied applications for five additional book sales. The reason was a general school policy limiting fundraisers to provide different organizations an equal opportunity to raise funds.

In the past, the student senate held meetings during homeroom. Like other student organization homerooms, the student senate homeroom was eliminated at the commencement of the 2003-2004 term because the administration determined that homerooms should not be used for student organizations, which should meet outside the regular school day. Appellant also contended that the administration limited the student senate's ability to provide notice of its activities, and that the restrictions were greater than those imposed on other student organizations. The superintendent explained to appellant that some activities required more time in order to obtain a response. However, appellant interpreted these actions by the administration as an indication that the student senate was a less respected, less important program since his return. During the 2004-2005 term, no student senate activity requests were denied and the student senate held nine of the school's thirty-eight approved activities. Appellant continued to feel this was insufficient.

Appellant argues that from the outset of the OAL hearing, the ALJ asserted this was not a civil rights case and she did not have jurisdiction to consider a LAD claim. Appellant further argues that during the course of the hearing, the ALJ continued to make comments to that effect, although she allowed appellant to present evidence by which he attempted to demonstrate discrimination. Appellant therefore argues that the ALJ never treated this as a LAD claim, but instead treated it as a contractual entitlement claim, and failed to appropriately consider and analyze the discrimination issue.

Notwithstanding the circumstances described in the preceding paragraph, our review of the complete record satisfies us that, in the end, the ALJ did consider and rule upon the LAD issue. At the conclusion of appellant's case, when respondents moved for dismissal, extensive arguments were presented regarding the four elements a claimant is required to establish to make out a prima facie case under the McDonnell Douglas framework.

The LAD protects presently or previously disabled employees from being discriminated against in the terms, conditions, or privileges of employment. N.J.S.A. 10:5-12a; N.J.S.A. 10:5-4.1. The protection embraces actual or perceived disability. Rogers v. Campbell Foundry, Co., 185 N.J. Super. 109, 112-13 (App. Div.), certif. denied, 91 N.J. 529 (1982). Because direct evidence of discriminatory intent is usually difficult to establish, see Bergen Commercial Bank v. Sisler, 157 N.J. 188, 209-10 (1999), complainants usually proceed under the indirect method prescribed by the burden-shifting framework articulated in McDonnell Douglas, which has been adopted in New Jersey, to prove disparate treatment under the LAD. Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14 (2002). Under the three-part McDonnell Douglas framework, a complainant must first prove the prima facie elements of discrimination, after which the employer must produce a legitimate, non-discriminatory reason for the adverse employment action, after which the plaintiff bears the burden to prove that the articulated non-discriminatory reason is not the true reason for the adverse employment action, but is a pretext for discrimination. McDonnell Douglas, supra, 411 U.S. at 802-04, 93 S. Ct. at 1824-25, 36 L. Ed. 2d at 677-79.

To establish a prima facie case of discrimination, a complainant in the context presented in this case must establish:

(1) the complainant was handicapped within the meaning of the law; (2) the complainant had been performing his or her work at a level that met the employer's legitimate expectations; (3) the complainant nevertheless had been required to labor under conditions that were unreasonably different from those of other employees, had been transferred, or had been fired; and (in the case of discriminatory transfer or discharge) (4) the employer had sought another to perform the same work after complainant had been removed from the position.

[Maher v. N.J. Transit Rail Operations, 125 N.J. 455, 480-81 (1991) (citing Jansen v. Food Circus Supermarkets, 110 N.J. 363, 382 (1988).]

As to the second element, the required showing has been relaxed such that the complainant need only show that she was "actually performing the job." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 454 (2005). Further, the third element may be satisfied by a showing of any action by the employer that a reasonable employee would interpret as "materially adverse." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-70, 126 S. Ct. 2405, 2414-16, 165 L. Ed. 2d 345, 359-61 (2006).

The evidentiary burden on a complainant to establish a prima facie showing has been described as a "rather modest" and "not onerous" one, it being sufficient to show that discrimination could be a reason for the employer's action. Zive, supra, 182 N.J. at 447 (citations omitted). The prima facie showing determination must be evaluated solely on the basis of the complainant's evidence, irrespective of the employer's efforts to dispute that evidence. Id. at 448.

After hearing arguments on respondents' motion to dismiss, which included extensive discussion regarding the four elements required for a prima facie showing of discrimination, the ALJ considered and discussed the evidence and concluded in her oral opinion:

There's been much talk, citation to standards for establishing a prima facie case. None of those standards have been met here and accordingly based upon all of that, having heard, reviewed the arguments of Counsel, the -- the testimony, the documents that have been presented, motion to dismiss is granted.

In her written Initial Decision, the ALJ stated:

While this is not a civil rights case, counsel for petitioner repeatedly cited the standards for establishing a prima facie discrimination case, and not a single element has been met in the within matter. Indeed, petitioner has presented nothing that would give this tribunal any authority to overrule any of the decisions made by the district concerning petitioner, which have been the result of uniform application by the administration and the district of its managerial rights and prerogatives.

The Commissioner agreed, reasoning as follows:

In the Commissioner's view, the ALJ appropriately decided petitioner's LAD claim within the context of a school law dispute - which petitioner himself initiated by choosing to file his appeal with the Commissioner of Education rather than the Division on Civil Rights, as the Board policy on which petitioner relies in asserting Commissioner jurisdiction clearly gave him the option to do. Thus, the Commissioner finds, the ALJ correctly analyzed petitioner's claim primarily in terms of school law and secondarily in terms of the standard applicable to claims under the LAD, concluding from her review of the law, testimony and evidence that petitioner had no entitlement under the former and had not met his burden of proof under the latter.

Although petitioner repeatedly stresses that he is not claiming entitlement to relief under the school laws, but solely under the LAD, he cannot ignore that the demands he is making would - as found by the ALJ - significantly limit the Board's lawful discretionary authority to operate and manage the schools within its district. While the Commissioner is well aware that boards of education are not permitted to exercise such authority in a discriminatory fashion, petitioner has presented no evidence that the Board in this instance has done so; thus, there is no basis on which to award even appropriately limited relief.

In essence, petitioner claims that his work environment has been rendered hostile by the cumulative effect of numerous adverse actions at the hands of the Board and its administration, for which there is no possible explanation other than discrimination toward him as a former cancer patient. Although he concedes (for example, in Exceptions at 2, 27-28) that the actions of which he complains would not have constituted harassment or discrimination under different circumstances, he repeatedly asserts that such actions began only after he took leave for treatment of cancer and have persisted ever since; thus, in his view, the nexus between his illness and the offending actions is self-evident.

The reality revealed by the record, however, is that petitioner's absence and return to work coincided with the emergence of a new building-level administration which progressively undertook to make systematic changes in the operation of the high school, a number of which affected petitioner's ability to maintain what he perceived as his accustomed (and rightful) position of status and autonomy. Following careful review of petitioner's extensive testimony and evidence, the Commissioner must concur with the ALJ that petitioner presented no proof whatsoever that any of the "adverse actions" he suffered were the result of either his absence for medical treatment or any perception upon his return that he had (or would again) become disabled. All petitioner has shown is that during his illness and in the years after he returned to work, things changed at the high school in ways he did not like: that policies and practices were put into place for reasons he did not believe valid or fair (and protested to no avail), and the resulting changes had the effect, to his mind, of diminishing the prestige and unhindered scope of activity he previously enjoyed. From this fact alone, petitioner assumes - and asks the ALJ and Commissioner to conclude - that he was the victim of adverse employment actions which were the direct and discriminatory result of his illness; in other words, he equates imposition of general policies and procedures - all within the lawful scope of a board of education's authority - with action against him personally, and sequence of events with cause and effect - without a scintilla of evidence to support either equation.2

________

2 The Commissioner is not unmindful of petitioner's evidence to the effect that his absence caused the district to re-think its apparent past practice of regularly assigning all or most of the advanced courses within a department to a single teacher. However - although petitioner's situation may well have been the impetus for bringing the disadvantages of this practice to the attention of the administration - there was nothing discriminatory about the district's response, which was to make the entirely reasonable and appropriate decision to avoid henceforth, whenever possible, assigning teachers in a way that would cause expertise to reside in only one person when other staff members within a department were also certified in the same area.

As we have stated, the State Board upheld the Commissioner's decision for the reasons stated by the Commissioner.

Initially, we reiterate our conclusion that, at all stages of the administrative process, jurisdiction to hear and decide the LAD claims was accepted. The dismissal was not based upon a lack of jurisdiction, but was on the merits.

The scope of our review of factfinding by an administrative agency is limited, and we will only decide whether the findings could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We will not upset the ultimate determination of an agency unless shown that it was arbitrary, capricious or unreasonable, or that it violated legislative policies, or if the findings on which it was based are not supported by the evidence. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

We are satisfied that all of the factual findings in this case are supported by sufficient credible evidence in the record. We are further satisfied that the decision comports with the governing legal principles, and is not unreasonable or arbitrary.

Although the threshold to establish the elements of a prima facie showing of discrimination is a low one, it must nevertheless be met. Although the ALJ and Commissioner (and by adoption the State Board) found that appellant failed to establish any of the four elements, it is probably fair to say that he established some of them, at least the second and fourth elements. Whether he satisfied the first element is questionable. Appellant contends that the administration acted adversely toward him out of resentment that he missed four months of work due to treatment for his cancer. But no evidence supports that contention. After his return from cancer treatment, appellant never needed or requested any accommodations. Therefore, he was not actually disabled after his return. Appellant contends he is entitled to an inference that he was perceived as disabled. He suggests that because his teaching assignments included fewer high level courses, the administration must have believed he was incapable, because of his illness, of teaching them. We do not agree. All of the evidence presented here was presented by appellant. That evidence included information that the school administration implemented a general policy to spread out the teaching assignments of the higher level courses, and that the adjustments in appellant's assignments were merely a consequence of that policy.

The ALJ, Commissioner, and State Board found that appellant failed to make a prima facie showing of adverse employment action. That finding is well supported by the record and precludes establishment of a prima facie case of discrimination.

In the years following his return from cancer treatment, appellant continued to teach mostly high level courses. Although he personally preferred teaching the high level courses, the record reveals that other mathematics teachers preferred the opposite. Appellant's reasons for his preference were that it gave him greater prestige, status and cachet. This does not meet the required objective standard, but reflects his subjective feelings about the merits of some teaching assignments within his subject matter over others. The other matters of which appellant complains also failed to qualify as adverse employment actions. The change in room assignment was based on a sound policy reason. The reduction in student activities was uniformly applied to all student organizations. The other matters constituted nothing more than minor day-to-day incidents. A rational factfinder could not find that a reasonable employee would consider any of these actions, individually or collectively, materially adverse.

Finally, we find no mistaken exercise of discretion in the denial of appellant's motion to supplement the record with two documents and his certification. In denying the motion, the State Board held that appellant could have presented these documents to the ALJ as part of his proofs and there was no suggestion that the information appellant sought to include in the record was unknown to him at the time of the OAL hearing. That determination was not arbitrary or unreasonable, and we have no occasion to interfere with it.

 
Affirmed.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

(continued)

(continued)

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A-5219-07T2

September 28, 2009