KATHLEEN CAREW v. BOARD OF EDUCATION OF THE BOROUGH OF OLD TAPPAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KATHLEEN CAREW,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE

BOROUGH OF OLD TAPPAN,

Respondent-Respondent.

___________________________________________

ANGELA MAIDA,

Intervenor-Respondent.

____________________________________________

November 29, 2016

Argued October 18, 2016 Decided

Before Judges Yannotti and Kennedy.

On appeal from the Commissioner of Education, Docket No. 201-8/13.

Alfred F. Maurice argued the cause for appellant (Springstead & Maurice, attorneys; Mr. Maurice, on the briefs; Harold N. Springstead, on the briefs).

Vittorio S. LaPira argued the cause for respondent (Fogarty & Hara, attorneys; Mr. LaPira, of counsel and on the brief).

Gail Oxfeld Kanef argued the cause for intervenor-respondent Angela Maida (Oxfeld Cohen, P.C., attorneys; Ms. Kanef, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent Commissioner of Education (Lauren A. Jensen, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Kathleen Carew appeals from a final decision of the Commissioner of Education, dated February 25, 2015, who found that Carew's tenure rights as a teacher in the Borough of Old Tappan (Borough) School District had not been violated. We affirm.

This appeal arises from the following facts, which are not in dispute. In June 2009, the Board of Education for the Borough of Old Tappan (Board) hired Carew to fill a vacant full-time teaching position for the 2009-2010 school year. Carew holds certificates as an elementary school teacher, an English teacher, and a reading specialist. At the same time, the Board hired Vanessa Walsh to fill a vacant full-time teaching position for the 2009-2010 school year. Walsh holds certificates as an elementary school teacher and an English teacher.

During the 2009-2010 school year, Carew taught sixth-grade and eighth-grade language arts classes, as well as four periods per week of curriculum extension classes. Walsh taught fifth-grade and seventh-grade language arts classes, and two periods per week of curriculum extension classes. The Board hired Carew and Walsh to continue as full-time teachers for the 2010-2011 school year.

During the 2010-2011 school year, Carew taught sixth-grade and eighth-grade language arts classes, two periods per week of seventh-grade study skills, and four periods each week of curriculum extension classes. Walsh taught fifth-grade language arts classes, and two periods each week of curriculum extension classes.

At the end of the school year, the Board reduced its staff. Walsh was renewed as a full-time teacher for the 2011-2012 school year, and she was assigned to teach fifth-grade language arts classes, as well as ten periods per week of the language arts component of the sixth- and eighth-grade cycle classes. Carew was hired as a part-time teacher, a fifty percent equivalent (FTE). She was assigned to teach sixth- and eighth-grade language arts classes.

During the 2011-2012 school year, Walsh requested a leave of absence for a portion of the following year since she was pregnant and anticipated giving birth early in the 2012-2013 school year. In July 2012, the Superintendent of Schools informed Carew that she had been approved as an additional fifty percent family leave replacement for Walsh for the 2012-2013 school year, with responsibility for teaching language arts classes. This was in addition to the part-time teaching duties that Carew had performed in 2011-2012. The Superintendent indicated that Carew's position for 2012-2013 would be a full-time position.

Walsh worked until she began her maternity disability leave from September 13, 2012, to October 12, 2012. Thereafter, Walsh was on child-rearing leave through June 30, 2013. During the 2012-2013 school year, Carew taught sixth- and eighth-grade language arts classes, as well as three periods each week of curriculum extension classes.

In that school year, Kelley Fielder worked as an aide and as a teacher assigned to teach twenty periods per week of fifth-grade language arts classes, as well as five hours per week of homework club. Until her leave began, Walsh taught twenty periods of fifth-grade language arts classes, and worked with Fielder to prepare her to take over the fifth-grade classes when her leave began.

In June 2013, the Board took action to re-employ its tenured staff for the 2013-2014 school year, and included Carew and Walsh. Later that summer, the Board hired Angela Maida as a full-time kindergarten teacher. During the 2013-2014 school year, Walsh again taught fifth-grade language arts classes, one contact period per week of seventh-grade art history, and one class period of curriculum extension. Walsh was employed on a full-time basis. Carew taught sixth- and eighth-grade language arts classes, and one period each week of curriculum extension. She was employed on a fifty percent basis for the school year. Maida taught kindergarten on a full-time basis that year.

The parties agree that Carew acquired tenure at the beginning of the 2012-2013 school year. Carew claimed that she acquired tenure as a full-time teacher, and she had been subjected to a reduction in force (RIF) at the beginning of the 2013-2014 school year when she was renewed on a part-time basis. The Board disagreed, and on August 28, 2013, Carew filed a petition with the Commissioner.

The matter was referred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). Walsh and Maida intervened in the matter, and the parties filed cross-motions for summary decision. The ALJ issued an initial decision finding that Carew had not been subject to a RIF.

The ALJ noted that Carew had acquired tenure at the start of the 2012-2013 school year, but at that time, she held a fifty percent part-time teaching position in language arts, along with a fifty percent part-time position as leave replacement for Walsh. The ALJ noted that under N.J.S.A. 18A:28-5(a)(2), a teacher acquires tenure after the teacher has been employed by a district for "[t]hree consecutive academic years, together with employment at the beginning of the next succeeding academic year." N.J.S.A. 18A:16-1.1 provides, however, that a teacher's service in a temporary position may not count towards tenure.

The ALJ noted that there was no dispute that Walsh was on a leave of absence for the 2012-2013 school year, and Carew was hired that year as an additional fifty percent language arts teacher as a replacement for Walsh. The ALJ rejected Carew's claim that she did not actually replace Walsh, even though she had not been assigned to cover Walsh's classes. Her part-time assignment was intended as a replacement for Walsh.

The ALJ found that Carew had not acquired tenure in a regular full-time position at the beginning of the 2012-2013 school year. Therefore, when Walsh returned to her full-time position in the 2013-2014 school year, and Carew was returned to her part-time tenured position, there was no RIF. The ALJ therefore determined that Carew's tenure rights had not been violated. Carew filed exceptions to the ALJ's initial decision. The Board and the intervenors filed responses.

The Commissioner issued his final decision in the matter on February 25, 2015. The Commissioner agreed with the ALJ that Carew's tenure rights had not been violated. The Commissioner rejected Carew's contention that the Superintendent's letter of July 17, 2012 confirmed that she was a full-time teacher for 2012-2013. The Commissioner noted that Carew's contract made clear that she had been employed as a fifty percent family leave replacement teacher, and a fifty percent part-time teacher for that school year.

The Commissioner also rejected Carew's assertion that Fiedler was Walsh's replacement leave teacher. The Commissioner noted that Fiedler had only taken over some of Walsh's classes. The Commissioner stated that Walsh's responsibilities for ten cycle classes, two curriculum extension classes, and other work "clearly needed to be covered by other staff."

The Commissioner concluded that the district had hired two part-time staff members (Carew and Fiedler) to cover Walsh's entire assignment while she was on family leave. The Commissioner observed that in the 2012-2013 school year Carew

was teaching the same subject language arts that Walsh taught, and was assigned to the same school in which Walsh taught. The fact that the schedules of other language arts teachers in the school may have been tweaked to cover the exact classes that Walsh had taught, leaving [Carew] to teach grade levels with which she was familiar, does not bear upon [Carew's] status as a replacement leave teacher.

The Commissioner concluded that in 2012-2013, Carew had a half-time tenure track position and a half-time leave replacement position. Consequently, in the 2013-2014 school year, there was no RIF when Walsh returned from her leave, and Carew was renewed as a half-time tenured teacher. The Commissioner therefore found that the Board had not violated Carew's tenure rights. This appeal followed.

On appeal, Carew argues: (1) she was subject to a RIF when she was reduced to part-time employment in 2012-2013, and the characterization of her assignment as a replacement teacher was a ruse to defeat her seniority rights; (2) she was the subject of a RIF and should have been assigned Maida's kindergarten position rather than being reduced to part-time employment; and (3) Walsh had less seniority than Carew at the time of the RIF and Walsh should have been reduced instead of Carew for the 2013-2014 school year.1

The scope of our review of a final decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999) (quoting Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)). An agency's decision is entitled to a "strong presumption of reasonableness[.]" City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980). A reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008).

We are convinced from our review of the record that Carew's arguments on appeal are without merit. We affirm the Commissioner's decision substantially for the reasons stated by the ALJ and the Commissioner in their respective decisions.

There is substantial credible evidence in the record for the Commissioner's determination that Carew did not acquire tenure in a full-time position. The record supports the Commissioner's determination that Carew did not suffer a RIF when she was hired for a part-time position for the 2013-2014 school year. R. 2:11-3(e)(1)(D). Carew's arguments to the contrary are without sufficient merit to warrant further comment. R. 2:11-3(e)(1)(E).

Affirmed.

1 We note that while the appeal was pending, Walsh resigned her position in the Old Tappan school district. She advised the court that because the outcome of the appeal could no longer affect her, she was no longer participating in this matter.