IN THE MATTER OF THE SUSPENSION OF THE TEACHING CERTIFICATE OF DANIELLE PONTI, GRAY CHARTER SCHOOL NEWARK, ESSEX COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4951-09T3

IN THE MATTER OF THE SUSPENSION

OF THE TEACHING CERTIFICATE OF

DANIELLE PONTI, GRAY CHARTER SCHOOL,

NEWARK, ESSEX COUNTY.

____________________________________

Argued March 29, 2011 Decided May 3, 2011

Before Judges Parrillo and Skillman.

On appeal from the New Jersey Department of Education,

Docket No. 294-1007.

Lane J. Biviano argued the cause for appellant

Danielle Ponti.

Cherie L. Adams argued the cause for respondent

Gray Charter School (Adams Stern Gutierrez & Lattiboudere, LLC, attorneys; Ms. Adams and Erin E.

McLaughlin, on the brief).

Paula T. Dow, Attorney General, attorney for

respondent Commissioner of Education (Joyce D. Williams, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Danielle Ponti appeals from the May 12, 2010 final decision of the Commissioner of Education (Commissioner) that suspended her State teaching certificate for one year, determining appellant wrongfully resigned from her teaching position at the Gray Charter School (the school) in Newark. We affirm.

The school employed appellant as a non-tenured first-grade teacher. On August 13, 2007, appellant signed an employment contract agreeing to teach at the school during the 2007-2008 academic year. The contract contained the following provision: "Termination Upon Agreement. Upon the written agreement of both Employee and the School (which agreement may be made by the Executive Director), this agreement shall immediately terminate." The agreement also authorized the school to terminate appellant for "cause." Verna Gray, the school's executive director, executed the contract on behalf of the school.

On August 29, 2007, only the second day of class, appellant resigned from her position with the school. On September 27, 2007, the school filed an order to show cause with the Commissioner to suspend appellant's teaching certificate for one year for unprofessional conduct. The school claimed that appellant's resignation without notice violated N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8,1 and was contrary to the terms of her employment contract. Appellant responded that the statutes were not applicable to her as a non-tenured charter school employee, and that in any event, she was the subject of a constructive discharge as the result of mistreatment and discriminatory harassment during a phonics workshop prior to the first day of school.

The matter was transferred to the Office of Administrative Law (OAL) for disposition, where it was heard by an administrative law judge (ALJ) over the course of three days.2 According to evidence adduced therein, appellant reported to work on August 14, 2007. On that date, five teachers unexpectedly and abruptly resigned from their positions causing Gray to hold a meeting with the teachers, including appellant, informing them that the start of the academic year was postponed until adequate replacements were hired. Gray informed the teachers in attendance that pursuant to statute, teachers were required to provide sixty days written notice before resignation. The school's affirmative action officer also spoke briefly at the meeting about the school's harassment policy, which appellant had previously received and signed.

As discussed at appellant's interview for the teaching position, the school retained Patrick Collins to conduct a workshop on teaching methods for phonics. Collins held the workshop over three days on August 22, 23 and 24, 2007. The workshop introduced the teachers to the teaching method the school required its teachers to apply.

According to appellant, Collins repeatedly referred to her as "Blondie" during the workshop, in a manner designed to embarrass her. For instance, at one point, Collins called appellant to the front of the room before the other teachers to read cards, and in a mocking gesture, said, "Don't worry, Blondie, we'll help you out." According to appellant

[Collins] was degrading, humiliating, I could tell he was making fun of me. The other faculty in the room were . . . laughing. I did a few cards[,] and I made mistakes[,] and he was laughing. He was like, "Oh, come on, Blondie, you could do it."

Appellant later learned from a colleague, Ramesha Francois, that the exchange was actually instigated by another teacher, a Ms. Zablow, who supposedly told Collins to embarrass "the blonde." Despite this alleged treatment, appellant never mentioned the incident to Gray.

Subsequently, before the start of the first day of school on August 27, 2007, Gray and appellant met, and Gray instructed appellant to teach phonics starting at 8:00 a.m., but, according to appellant, did not specifically say to apply the phonics teaching method as presented at the workshop. Gray also told appellant that she would provide assistance to her through another more experienced teacher, Megan Groome, and that Collins would observe her classroom as well.

Immediately after that conversation, appellant's mentor teacher, Groome, told her: "Don't worry, you're fine. Teach the Read, Sing, Spell and Write phonics cards [that] we teach in first grade until November, and continue on with what we were supposed to do." That method is different from the phonics method instructed at the seminar.

At 8:00 a.m., appellant disregarded Gray's instruction and decided to wait for Collins to arrive so that he could observe her teaching phonics. When Collins arrived at approximately 8:30 a.m., appellant started the phonics lesson using the alternate method as instructed by Groome. After the phonics lesson, appellant read a book to the students. At approximately 9:00 a.m., Collins left the classroom without offering appellant a critique of her teaching. At 10:00 a.m., Gray entered appellant's classroom during standardized testing without acknowledging appellant's presence.

The next day, August 28, 2007, appellant received a warning letter signed by Gray, expressing her concern that appellant had not taught phonics as directed. The letter stated:

When I entered your room at 8:25 AM you were showing the children colors and not teaching the lesson that I had given you orders just one hour earlier to teach.

This is insubordination on your part. I have a right as your boss and employer to expect that you will follow my orders when I give them to you. I expect Phonics at 8:00 AM, and then Reading and Language taught every morning on First Grade levels. I expect this schedule to be followed everyday.

Upset with this letter, appellant went to Groome for advice. Groome told her that "it was just a warning, not to worry." Appellant then approached Gray after school and was instructed to teach phonics, reading and language arts in the morning, but was issued no further warning.

The following morning, August 29, 2007, appellant submitted her letter of resignation by sliding it under Gray's door. Her letter objected to the allegation that she was insubordinate, claiming Gray did not observe her classroom while she taught phonics and that she "adhered to [Gray's] 'orders' using the Phonic cards as directed." Appellant stated that she subsequently followed the lesson by reading the students a story, and utilizing a direct questioning process." She acknowledged that Collins observed her classroom between 8:20 and 8:50 a.m. and that "[i]t should also be noted, [she] was highly offended by Mr. Collins' disrespectful and inappropriate behavior when he referred to [her] as 'Blondie,' in front of [her] colleagues throughout the three day workshop."

On August 30, 2007, appellant accepted an offer as a full-time middle school teacher at a private school earning approximately $12,000 less per annum.

In contrast, Collins denied ever referring to appellant as "Blondie." At most, he heard Zablow refer to appellant as "the blonde" once during the three day workshop, when she said "Why don't you call on the blonde . . . [s]he hasn't said very much during the entire training."

Another teacher who attended the workshop, Jennifer Orlando, also denied that Collins referred to appellant as "Blondie." Instead, it was Zablow who said something to the effect: "Call [on] Blondie instead of me." Orlando considered Zablow's comment a joke and was unaware that appellant was offended by it. In addition, Hyun Shin, a third grade teacher, and Groome, a first grade teacher, supported Collins's and Orlando's accounts. And Gray, who attended the workshop for short durations, noted that at a luncheon she hosted after the final workshop session, appellant appeared "very happy" and was "friendly" with the other teachers. At the time, appellant never complained to Gray about the treatment she supposedly experienced during the workshop.

According to Gray, before the start of the first day of school on August 27, 2007, she instructed appellant to teach phonics beginning at 8:00 a.m. and to apply the teaching method from the workshop. When Gray visited appellant's classroom at 8:25 a.m., she saw Collins observing appellant. However, appellant, whose back was to Gray, was not teaching phonics during the fifteen minutes Gray observed her either through the classroom window or in the classroom itself. Gray's evaluation was not a formal evaluation, but rather a routine practice undertaken at the beginning of each school year. Prompted by what she observed, Gray asked Richard Salles, the school's vice principal, to draft a warning letter for her signature to appellant.

After receiving appellant's resignation letter, Gray notified her that she had to give sixty days written notice and that the school did not have a replacement teacher for her class. Gray later modified her demand and requested that appellant return only until the school hired a replacement. Although appellant agreed to come to work the next day, she never returned. The school hired a substitute teacher to instruct appellant's class until a permanent teacher was hired three and one-half weeks after appellant's resignation.

In response to the allegations made in appellant's resignation letter, Gray commenced an investigation, interviewing every teacher present during the workshop as well as Collins. All denied that Collins referred to appellant as "Blondie." Gray did not, however, discuss the alleged incident with appellant.

At the conclusion of the evidence, the ALJ recommended that appellant's certificate be suspended for one year, finding

[Appellant] ceased to perform her duties before the expiration of the term of her employment without the consent of The Gray Charter School contrary to N.J.S.A. 18A:26-10 and that [her] actions constituted unprofessional conduct.

. . . .

[T]he findings in this matter do not support [appellant's] contention that she was subject to harassment, discrimination, disparate treatment or a hostile work environment.

Noting that "[t]he obvious purpose of N.J.S.A. 18A:26-10 is to provide notice to the school so that a suitable replacement can be hired without adversely impacting students[,]" the ALJ concluded that appellant's precipitous departure created disruptions that were contrary to the best interests of the pupils in the class to which she was assigned.

Specifically, the ALJ found that the instructor and three other seminar attendees denied that the alleged behavior occurred, and that appellant never complained to the school affirmative action officer, the principal, or her mentor about the so-called harassment. Further, the ALJ regarded appellant's testimony as lacking in credibility. The ALJ also rejected appellant's related complaint that she was unfairly evaluated on her first day of work, finding instead that appellant was observed by the phonics instructor to ascertain whether she understood and could implement the techniques taught at the phonics seminar, and was only informally observed by Gray, who apparently routinely observes teachers on their first day. And lastly, as to appellant's claim that she was unfairly characterized as insubordinate, the ALJ found Gray credible as a witness, and concluded that Gray had directed appellant to teach phonics at 8:00 a.m. and that appellant did not do so. Consequently, the warning about insubordination was not unfounded.

Upon independent review of the record, the Commissioner adopted the ALJ's recommendation and suspended appellant's teaching certificate for one year, finding appellant's actions constituted unprofessional conduct and that there was no support for her contrary claim of constructive discharge.

On appeal, appellant raises the following arguments:3

I. THE ALJ AND DOE IMBUED THE RELIED UPON STATUTE WITH STRICT LIABILITY AND UNJUSTLY DISMISSED PONTI'S COMPELLING REASONS FOR HER RESIGNATION.

II. PONTI WAS SUBJECT TO RACIAL AND SEXUAL HARASS[]MENT DURING THE MANDATORY THREE DAY PHONICS SEMINAR.

III. VERNA GRAY'S LETTER OF INSUBORDINATION WAS DISCRIMINATORY AND FRA[U]DULENT.

IV. THE GRAY CHARTER SCHOOL VIOLATED PUBLIC POLICY BY RETALIATING INSTEAD OF INVESTIGATING PONTI'S RACIAL AND SEXUAL HARASSMENT CLAIMS.

V. THE GRAY CHARTER SCHOOL VIOLATED STATE REGULATIONS IN ITS OBSERVATIONS AND EV[A]LUATION OF PONTI.

VI. GRAY CHARTER SCHOOL BREACHED ITS CONTRACT WITH PONTI.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). We, therefore, affirm substantially for the reasons stated by the ALJ in his February 18, 2010 Initial Decision and the Commissioner in his written decision of May 12, 2010.

1 N.J.S.A. 18A:26-10 states:

Any teaching staff member employed by a board of education or an approved private school for the disabled, who shall, without the consent of the board or, in the case of an approved private school for the disabled, the board of directors of the school, cease to perform his duties before the expiration of the term of his employment, shall be deemed guilty of unprofessional conduct, and the commissioner may, upon receiving notice thereof, suspend his certificate for a period not exceeding one year.

N.J.S.A. 18A:28-8 provides:

Any teaching staff member, under tenure of service, desiring to relinquish his position shall give the employing board of education at least 60 days written notice of his intention, unless the board shall approve of a release on shorter notice and if he fails to give such notice he shall be deemed guilty of unprofessional conduct and the commissioner may suspend his certificate for not more than one year.

2 Originally, appellant's matter had been consolidated with six others because, collectively, they challenged the applicability of N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 to charter schools. On June 6, 2008, the ALJ assigned to these matters considered the consolidated challenges and concluded that the statutes applied to charter schools. Appellant and six other teacher-respondents requested interlocutory review and on July 9, 2008, the Commissioner affirmed the ALJ's decision. Thereafter, on August 14, 2008, the ALJ entered an order deconsolidating the seven cases for separate hearings. On July 27, 2010, in three separate opinions, the Appellate Division affirmed the suspension of three certificates in the related cases, one of which is a published opinion that concluded that N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 applied to charter school teachers. See In re the Suspension of the Teaching Certificate of Melissa Van Pelt, 414 N.J. Super. 440, 449-51 (App. Div. 2010).

3 Although appellant mentions in her preliminary statement that N.J.S.A. 18A:26-10 and N.J.S.A. 18A:28-8 do not apply to her, it is not the subject of any point heading in her brief and she does not address the contention any further therein. See R. 2:6-2(a)(1) & (5). In any event, the matter was definitively decided in In re Van Pelt, supra, and we adopt its reasoning herein. See 414 N.J. Super. at 449-51.