STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF JERSEY CITY v. GILDA NICOLE HARRIS
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4869-15T1
STATE-OPERATED SCHOOL DISTRICT
OF THE CITY OF JERSEY CITY,
Plaintiff-Appellant,
v.
GILDA NICOLE HARRIS,
Defendant-Respondent.
__________________________________
Argued April 26, 2018 – Decided May 9, 2018
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No.
C-000195-15.
Adam S. Herman argued the cause for appellant
(Adams Gutierrez & Lattiboudere, LLC,
attorneys; Derlys M. Guitierrez and Adam S.
Herman, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff State-Operated School District of the City of
Jersey City (District) appeals from the June 1, 2016 Law Division
order confirming an arbitration award rendered pursuant to the
Tenure Employees Hearing Law (TEHL),
N.J.S.A. 18A:6-10 to -18.1.
The award found defendant Gilda Harris, a tenured teacher in the
District, culpable of eleven charges of conduct unbecoming, and
suspended her for 262 days. On appeal, the District alleges the
arbitrator should have terminated defendant's employment and,
therefore, the trial court erred by denying its request for a
modification of the penalty. We affirm.
The procedural history and facts of this case are set forth
at length in the arbitrator's sixty-one page opinion and award
and, for the limited purposes of this appeal, need not be repeated
here in the same level of detail. Defendant began working for the
District as a teacher assistant in 1997. At the time of the events
pertinent to this appeal, she was a tenured elementary school
teacher teaching a fourth-grade class.
On September 23, 2014, the District served defendant with the
first of two sets of tenure charges. The first group of ten
charges primarily concerned defendant's conduct on April 4, 2014.
On that date, defendant directed any student who was receiving
failing grades to stand in front of the class. She then asked
"students with dark skin" to line up on one side of the room, and
"other students with light skin" to line up on the other side of
the room. Defendant told the students in the first line that
unlike the students in the second line, they would not pass the
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fourth grade. Earlier in the school year, defendant had grouped
the students into "four specific seating tables" based on the
grades they were receiving in the class.
The District also asserted in this set of charges that during
the seven-year period between 2007 and 2014, defendant was absent
from school on 118 occasions. Although the District had not
previously cited defendant for excessive absenteeism,1 it now
asserted that her absences from school "had a profoundly negative
impact upon" her school and the District community. On November
18, 2014, the District certified the charges to the Commissioner
of Education (Commissioner), and suspended defendant from work
without pay beginning on November 19, 2014.
On November 21, 2014, the District issued a set of seven
additional tenure charges against defendant. Among other things,
the District asserted that defendant improperly included
confidential information about her students in her written
response to the first set of charges. In addition, the District
alleged that on February 15, 2013, defendant encouraged her
students to write letters to school officials about the conduct
of an art teacher, who had disparaged defendant in front of the
students.
1
Defendant had an unblemished disciplinary record prior to the
District's presentment of the charges involved in this appeal.
3 A-4869-15T1
The District was also critical of a homework assignment
defendant gave the class on January 8, 2014. On that date,
defendant asked the students to explain their study habits at home
in a written report. In response, a number of the students
revealed private and personal information about their families.
The District asserted that the assignment "was not part of the
curriculum or any lesson plan approved by the District[,]" and
violated District policy that prohibited the solicitation of such
information. On December 16, 2014, the District certified the
second set of tenure charges to the Commissioner.
The Commissioner consolidated the two sets of charges, and
referred the matter to arbitration pursuant to
N.J.S.A. 18A:6-16.
Following a six-day hearing, the arbitrator2 issued an opinion and
award upholding eleven of the seventeen charges of conduct
unbecoming a teacher, but he imposed a lengthy suspension without
pay instead of the termination of employment sought by the
District.
2
A different arbitrator presided at the first day of the hearing
but, after he recused himself, the Commissioner appointed a second
arbitrator who conducted the rest of the hearing and rendered the
opinion and order involved in this appeal.
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The arbitrator made the following findings concerning the
charges he sustained.3 Beginning with defendant's actions on April
4, 2014, the arbitrator found that defendant made the students who
were failing stand in front of the classroom, and she then
separated the students into two lines based on their skin color.
Earlier in the school year, she had also assigned the students to
one of four different seating tables based on their grades.
The arbitrator found that defendant's "conduct was
inappropriate and demonstrated exceptionally poor judgment." The
children were hurt and confused, and their self-esteem was
adversely affected. He further found that defendant's conduct
violated District policies prohibiting discrimination in any
activity, and "protect[ing] students' right to privacy regarding
grades." Therefore, he found defendant culpable of unbecoming
conduct under charges one, two, four, seven, and eight of the
September 23, 2014 set of charges.
However, the arbitrator stated he could not find that
defendant's actions were "intentionally cruel and abusive or that
she intended to create racial animus. Rather[, the arbitrator was
convinced defendant] wanted students to feel the sting of
3
We again note that the parties are fully familiar with the
arbitrator's rulings concerning each of the seventeen charges.
Therefore, we need only briefly summarize his most pertinent
findings here.
5 A-4869-15T1
discrimination so they would know how to act in potentially
racially charged situations." The arbitrator further explained:
Teachers often attempt to impart an
understanding to their students concerning
racial issues. [Defendant] testified that
simply because a person's complexion or skin
color is brown does not make him or her black.
The fact a person is fair-skinned complexion
does not make him or her white. . . .
[Defendant] stated this was a theme she had
to teach students in an urban school many
times and she reiterated it that day. Every
student in her Fourth Grade 2013/14 classroom
was a person of color. . . . [Defendant], an
African American teacher, apparently was
attempting to teach her students a lesson
concerning race, but should have chosen a more
suitable methodology.
The arbitrator also found defendant culpable of unbecoming
conduct under charge nine because of excessive absenteeism over a
seven-year period. The arbitrator found defendant not culpable
of charges three, five, six, and ten.
Turning to the second set of charges, the arbitrator concluded
that defendant used students' personal information in responding
to the first set of allegations and, therefore, she was culpable
of charge one. However, he found that defendant did not
"intentionally [misappropriate or] disclose[]" this information
because she "believed that these proceedings [were] private and
the use of the documents would be permissible."
6 A-4869-15T1
The arbitrator also found that defendant "acted
unprofessionally and failed to exercise the restrain[t] that is
expected by a professional by using her students for her own
devices[,]" namely, encouraging them to write letters criticizing
an art teacher who had earlier disparaged her to the students.
Although the arbitrator therefore found defendant culpable of
charge two of unbecoming conduct, he stated that "the record does
not reveal that [defendant's] conduct in having the students write
these letters [rose] to a level of placing the students at risk
of harm or cause[d] her to be unfit to be a teacher."
The arbitrator next found defendant culpable of charges
three, five, and six, which concerned the homework assignment
where the children revealed private information about their
families in the course of discussing their study habits at home.
The arbitrator stated:
I concur with the District's position that
this writing assignment caused students to
disclose private and personal information
about their families and that this information
was often negative. However, there has been
no showing that students were placed at a risk
of harm from these letters or were humiliated
because of them. The record does not
demonstrate that the letters were punitive in
nature, that [defendant] failed to exercise
self-restraint and control behavior, or that
the assignment made the students feel
humiliated and embarrassed.
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The arbitrator found defendant not culpable of charges four and
seven of the second set of charges.
The arbitrator then turned to the issue of the appropriate
penalty. The District argued that defendant must be terminated
and that her conduct was "sufficiently egregious that even one
incident in the charges [was] sufficient to warrant termination."
However, the arbitrator disagreed based on his independent
review of the matter. The arbitrator stated:
While I find a significant penalty is
warranted, [defendant's] termination is not.
[Defendant] is a long-term employee who has
no prior discipline. The record demonstrates
that [defendant] is a highly credentialed
instructor and, prior to the instant matter,
had participated in a myriad of positive
school and community activities. The record
does reveal she exercised poor judgment in her
actions and is culpable of the charges to the
extent discussed above.
Nevertheless, the arbitrator concluded that termination was
not an appropriate penalty under the circumstances of this case.
The arbitrator continued:
[Defendant] did not act in a manner that was
willful, vindictive, or with malicious intent.
The record does not support the allegation
that [defendant] is not capable of returning
to her position as a teacher. There is
testimony that parents are pleased [defendant]
taught children and that when entering
[defendant's] classroom, the students were
always engaged and working and that the
students seem[ed] well mannered. I believe
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[defendant] is aware of her mistakes and will
conform to the District's rules and standards.
The arbitrator also did not believe that defendant's
absenteeism over the course of seven years warranted her removal.
Instead, he concluded that "[a] lengthy suspension should
sufficiently place [defendant] on notice concerning her need to
improve her attendance."
For these reasons, the arbitrator restored defendant to her
teaching position effective September 8, 2015. He held that
defendant's "record shall reflect a 'time served' suspension from
the period when she was first suspended on November 19, 2014 until
her restoration to the payroll on September 8, 2015," a period of
293 days. From this figure, the arbitrator subtracted thirty-one
days, representing the period between April 28, 2015 and May 29,
2015 "for which she was [previously] awarded back pay" by the
arbitrator. Thus, the arbitrator suspended defendant for a total
of 262 days, or 8.6 months.
The District subsequently filed a complaint in the Law
Division in which it sought to vacate or modify the arbitrator's
decision to impose a suspension rather than terminate defendant
from employment. The District argued that: (1) the arbitrator's
award was procured by undue means in violation of
N.J.S.A. 2A:24-
8(a); (2) the arbitrator exceeded his powers within the meaning
9 A-4869-15T1
of
N.J.S.A. 2A:24-8(d); and the award was contrary to public
policy.
In a June 1, 2016 order and written opinion, the trial judge
confirmed the arbitration award. The judge rejected the District's
arguments, finding it merely wanted him to substitute his own
judgment as to an appropriate penalty for that of the arbitrator.
While the judge stated that he found defendant's conduct
"distasteful[,]" he found no basis for disturbing the arbitrator's
determination that a lengthy suspension without pay, rather than
termination, was the appropriate penalty under the circumstances
of this case. In this regard, the judge noted that the District
"fail[ed] to cite to a single legal authority, statute[,] or case[]
which stands for the proposition that if conduct unbecoming is
found, an arbitrator must terminate a teacher." This appeal
followed.
On appeal, the District raises the same contentions it
unsuccessfully pursued before the trial court. It again asserts
that the arbitrator's award violated
N.J.S.A. 2A:24-8(a) and (d),
and was contrary to public policy. We disagree.
"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
10 A-4869-15T1
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)). "As the decision to vacate an
arbitration award is a decision of law, [we] review[] the denial
of a motion to vacate an arbitration award de novo." Minkowitz
v. Israeli,
433 N.J. Super. 111, 136 (App. Div. 2013) (quoting
Manger v. Manger,
417 N.J. Super. 370, 376 (App. Div. 2010)).
Under the TEHL, "[t]he arbitrator's determination shall be
final and binding and may not be appealable to the commissioner
or the State Board of Education. The determination 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.
18A:6-17.1(e). The court may vacate an arbitration award only in
these limited circumstances:
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;
11 A-4869-15T1
d. Where the arbitrators exceeded or so
imperfectly executed their powers that a
mutual, final and definite award upon the
subject matter submitted was not made.
[N.J.S.A. 2A:24-8.]
The claim of error in this case implicates subsections (a)
and (d) of the statute.
N.J.S.A. 2A:24-8(a) provides for vacation
of an arbitration award "[w]here the award was procured by
corruption, fraud or undue means." "'[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 Office 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)).
N.J.S.A. 2A:24-8(d) permits the vacation of an arbitration
award in cases where the arbitrator exceeded the scope of his or
her authority. "When parties have agreed, through a contract, on
a defined set of rules that are to govern the arbitration process,
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an arbitrator exceeds his [or her] powers when he [or she] ignores
the limited authority that the contract confers." 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) (quoting
Cty. Coll. of Morris Staff Ass'n v. Cty. Coll. of Morris,
100 N.J.
383, 391-92 (1985)).
In addition, a court may vacate an arbitration award for
public policy reasons. Borough of E. Rutherford,
213 N.J. at 202.
"However, '[r]eflecting the narrowness of the public policy
exception, that standard for vacation will be met only in rare
circumstances.'" Ibid. (alteration in original) (quoting N.J.
Tpk. Auth. v. Local 196, I.F.P.T.E.,
190 N.J. 283, 294 (2007)).
"Public policy is ascertained by 'reference to the laws and legal
precedents and not from general considerations of supposed public
interests.'" Id. at 202-03 (quoting Weiss v. Carpenter, Bennett
& Morrissey,
143 N.J. 420, 434-35 (1996)). "And, even when the
award implicates a clear mandate of public policy, the deferential
'reasonably debatable' standard still governs. Thus, '[i]f the
correctness of the award, including its resolution of the public-
policy question, is reasonably debatable, judicial intervention
is unwarranted.'" Id. at 203 (alteration in original) (quoting
Weiss,
143 N.J. at 443). As our Supreme Court explained,
"[a]ssuming that the arbitrator's award accurately has identified,
13 A-4869-15T1
defined, and attempted to vindicate the pertinent public policy,
courts should not disturb the award merely because of disagreements
with arbitral fact findings or because the arbitrator's
application of the public-policy principles to the underlying
facts is imperfect." Ibid. (alteration in original) quoting Weiss,
143 N.J. at 443).
Applying these principles in light of our very limited
standard of review, we conclude that the arbitrator's award must
stand.
N.J.S.A. 2A:24-9 provides that an arbitration award may
only be modified:
a. Where there was an evident miscalculation
of figures or an evident mistake in the
description of a person, thing or property
referred to therein;
b. Where the arbitrators awarded upon a
matter not submitted to them unless it affects
the merit of the decision upon the matter
submitted; and
c. Where the award is imperfect in a matter
of form not affecting the merits of the
controversy.
The District does not specify which prong of the three prongs
of
N.J.S.A. 2A:24-9 warrants modification of the arbitrator's
penalty. Nevertheless, none of the prongs apply. There was no
miscalculation of figures or mistake in a description of a person;
the arbitrator did not base his award on an argument or evidence
14 A-4869-15T1
not submitted to him; and the award was not imperfect in a matter
of form.
Contrary to the District's contention, the arbitrator did
not use "undue means" to produce the award. While, like the trial
judge, we may have reached a different result had we been in the
arbitrator's place in the first instance, nothing in the award
indicates it was based on a clearly mistaken view of fact or law
within the intendment of
N.J.S.A. 2A:24-8(a).
The District does not question any of the arbitrator's
findings in connection with the charges for which he found
defendant culpable. Its only disagreement is with the arbitrator's
decision to impose a lengthy suspension rather than to remove
defendant from employment. However, it is well established that
"[e]ven after finding [an] employee guilty of the specified charges
of misconduct, [an] arbitrator [is] free to apply his [or her]
special expertise and determine that these offenses do not rise
to a level of misconduct that constitutes just cause for
discharge." Cty. Coll. of Morris,
100 N.J. at 394. In those
instances, the arbitrator may impose "a disciplinary penalty less
severe than that of discharge." Ibid.
The District argues the arbitrator improperly ruled that
unless it demonstrated that defendant "act[ed] in a manner that
was willful, vindictive, or with malicious intent," he was
15 A-4869-15T1
powerless to remove her from employment. However, that is a
misreading of the arbitrator's decision. In explaining his
decision that a long suspension was the appropriate sanction for
her misconduct, the arbitrator did note that defendant did not
intentionally attempt to harm the children. However, he also
pointed, among other things, to her unblemished disciplinary
record, "positive school and community activities[,]" and good
relationship with a number of the parents of children in her
classroom, as circumstances further supporting his determination
of the penalty. Thus, the arbitrator considered a number of
relevant factors before concluding that a penalty less severe than
termination was warranted.
The arbitrator also did not violate
N.J.S.A. 2A:24-8(d) or
violate public policy by suspending defendant for 262 days. The
District has not pointed to anything in its collective bargaining
agreement with the teacher, or any law, regulation, or court
decision that prevented the arbitrator from considering the
imposition of a penalty other than termination if he sustained the
charges against her. Thus, it is clear that the arbitrator acted
within the scope of his authority and the public policy embodied
in our arbitration laws.
Affirmed.
16 A-4869-15T1
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