NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1347-17T3
DORIT SNOW,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE TOWNSHIP OF BRICK, OCEAN COUNTY,
Respondent-Respondent. _____________________________
Argued November 28, 2018 - Decided December 7, 2018
Before Judges Reisner and Mawla.
On appeal from the Commissioner of Education, Docket No. 98-3/16.
Kathleen Naprstek Cerisano argued the cause for appellant (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, PC, attorneys; Kathleen Naprstek Cerisano, of counsel and on the briefs).
Sebastian Ferrantell argued the cause for respondent Brick Township Board of Education (Montenegro, Thompson, Montenegro & Genz, PC, attorneys; Sebastian Ferrantell, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM
Petitioner Dorit Snow appeals from an October 12, 2017 final decision of
the Commissioner of Education upholding her termination because her
occupational therapist license expired. The Commissioner found that N.J.A.C.
6A:9B-5.1(c) requires removal of any teaching staff member who fails to
maintain a mandated license or certification, regardless of tenure or hardship.
We affirm.
The following facts are taken from the record. Petitioner has been
employed as an occupational therapist by respondent during various time
periods beginning in January 1991 through June 1998, then in 2006, and most
recently, on a full-time basis beginning in September 2007. Pursuant to N.J.S.A.
18A:28-5, petitioner possessed an occupational therapist license, issued through
the State of New Jersey by the Occupational Therapy Advisory Council, during
her employment with respondent.
A-1347-17T3 2 Petitioner's difficulties began prior to the 2015-2016 school year. On
September 2, 2015, she left work early because she claimed to be experiencing
dizziness, difficulty breathing, feelings of anxiety, and severe depression
resulting from marital discord with her husband. This was the last day petitioner
reported to work.
When petitioner failed to return to work on September 3 and 4, 2015,
respondent made several unsuccessful attempts to contact her. Respondent
certified it attempted to contact petitioner by telephone and text, and also
requested a welfare check by the Manalapan Police Department.
On September 8, 2015, petitioner emailed her supervisor, informing her
she was ill and had left the country to live with her parents in Israel, where she
was receiving medical treatment. Petitioner's supervisor responded the same
day by reply email as follows:
Thank you for making contact with me. At this time you have enough sick days until the end of September. . . . On the [d]istrict [w]ebsite there are forms that you will have to fill out so that you can take a medical leave of absence [because] you are unable to return to work before the end of September. Of course your leave would be without pay. I wish you well and a speedy [recovery].
On September 30, 2015, petitioner's occupational therapist license lapsed.
The same day, a letter was sent to petitioner's home in New Jersey indicating
A-1347-17T3 3 respondent had not received her request for leave, any update on her situation
since the September 8, 2015 communication, or any indication when petitioner
would be returning to work. Respondent's letter informed petitioner her
employment would be terminated on grounds of abandonment effective October
5, 2015. Petitioner did not see this letter until she returned to New Jersey in
November 2015.
The next contact petitioner had with respondent was on October 21, 2015,
when she emailed her supervisor stating: "I . . . need to apologize to you for my
delayed responses . . . I am doing well and feeling much better with more energy
and enthusiasm." On October 28, 2015, petitioner emailed her supervisor
indicating she and her husband were planning to return to the United States the
following week and stated:
I also wanted to ask you again about my leave entitlement. You mentioned I had enough sick leave to carry me to end of September. Is there any way you could advance me more leave with pay, as it will help me out financially, tremendously!
On January 7, 2016, petitioner left a voicemail informing respondent her
occupational therapist license had lapsed. The following day, respondent sent a
letter to petitioner advising a meeting was scheduled for January 14, 2016, at
Brick Memorial High School, pertaining to her employment. Petitioner did not
A-1347-17T3 4 attend the meeting. Respondent voted to terminate petitioner's employment
because her license had lapsed. The following day, respondent sent petitioner
formal notice of her termination by certified mail.
On January 18, 2016, petitioner emailed her supervisor seeking to appeal
her termination. In this email, petitioner claimed she had "not been medically
cleared to go back to work and submitted a note from [her] doctor that [she
would] be able to return on [February 1, 2016]." Petitioner renewed her
occupational therapy license on January 20, 2016.
Following the filing of petitioner's administrative appeal, the parties filed
competing motions for summary judgment. Respondent's motion for summary
judgment was granted by an administrative law judge (ALJ). The Commissioner
adopted the ALJ's decision and dismissed petitioner's appeal. This appeal
followed.
I.
"[We] have 'a limited role' in the review of [agency] decisions." In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81
N.J. 571, 579 (1980)). "[A] 'strong presumption of reasonableness attaches to
[an agency decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001)
(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). "In order to
A-1347-17T3 5 reverse an agency's judgment, [we] must find the agency's decision to be
'arbitrary, capricious, or unreasonable, or . . . not supported by substantial
credible evidence in the record as a whole.'" Stallworth, 208 N.J. at 194 (quoting
Henry, 81 N.J. at 580). The burden of proving an agency action is arbitrary,
capricious, or unreasonable is on the challenger. Bueno v. Bd. of Trs., 422 N.J.
Super. 227, 234 (App. Div. 2011) (citations omitted).
We "may not substitute [our] own judgment for the agency's, even though
[we] might have reached a different result." Stallworth, 208 N.J. at 194 (quoting
In re Carter, 191 N.J. 474, 483 (2007)). "It is settled that [a]n administrative
agency's interpretation of statutes and regulations within its implementing and
enforcing responsibility is ordinarily entitled to our deference." E.S v. Div. of
Med. Assistance & Health Servs., 412 N.J. Super. 340, 355 (App. Div. 2010)
(quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App.
Div. 2001)). "[W]e are not bound by the agency's legal opinions." A.B. v. Div.
of Med.
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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-1347-17T3
DORIT SNOW,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF THE TOWNSHIP OF BRICK, OCEAN COUNTY,
Respondent-Respondent. _____________________________
Argued November 28, 2018 - Decided December 7, 2018
Before Judges Reisner and Mawla.
On appeal from the Commissioner of Education, Docket No. 98-3/16.
Kathleen Naprstek Cerisano argued the cause for appellant (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, PC, attorneys; Kathleen Naprstek Cerisano, of counsel and on the briefs).
Sebastian Ferrantell argued the cause for respondent Brick Township Board of Education (Montenegro, Thompson, Montenegro & Genz, PC, attorneys; Sebastian Ferrantell, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent Commissioner of Education (Beth N. Shore, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM
Petitioner Dorit Snow appeals from an October 12, 2017 final decision of
the Commissioner of Education upholding her termination because her
occupational therapist license expired. The Commissioner found that N.J.A.C.
6A:9B-5.1(c) requires removal of any teaching staff member who fails to
maintain a mandated license or certification, regardless of tenure or hardship.
We affirm.
The following facts are taken from the record. Petitioner has been
employed as an occupational therapist by respondent during various time
periods beginning in January 1991 through June 1998, then in 2006, and most
recently, on a full-time basis beginning in September 2007. Pursuant to N.J.S.A.
18A:28-5, petitioner possessed an occupational therapist license, issued through
the State of New Jersey by the Occupational Therapy Advisory Council, during
her employment with respondent.
A-1347-17T3 2 Petitioner's difficulties began prior to the 2015-2016 school year. On
September 2, 2015, she left work early because she claimed to be experiencing
dizziness, difficulty breathing, feelings of anxiety, and severe depression
resulting from marital discord with her husband. This was the last day petitioner
reported to work.
When petitioner failed to return to work on September 3 and 4, 2015,
respondent made several unsuccessful attempts to contact her. Respondent
certified it attempted to contact petitioner by telephone and text, and also
requested a welfare check by the Manalapan Police Department.
On September 8, 2015, petitioner emailed her supervisor, informing her
she was ill and had left the country to live with her parents in Israel, where she
was receiving medical treatment. Petitioner's supervisor responded the same
day by reply email as follows:
Thank you for making contact with me. At this time you have enough sick days until the end of September. . . . On the [d]istrict [w]ebsite there are forms that you will have to fill out so that you can take a medical leave of absence [because] you are unable to return to work before the end of September. Of course your leave would be without pay. I wish you well and a speedy [recovery].
On September 30, 2015, petitioner's occupational therapist license lapsed.
The same day, a letter was sent to petitioner's home in New Jersey indicating
A-1347-17T3 3 respondent had not received her request for leave, any update on her situation
since the September 8, 2015 communication, or any indication when petitioner
would be returning to work. Respondent's letter informed petitioner her
employment would be terminated on grounds of abandonment effective October
5, 2015. Petitioner did not see this letter until she returned to New Jersey in
November 2015.
The next contact petitioner had with respondent was on October 21, 2015,
when she emailed her supervisor stating: "I . . . need to apologize to you for my
delayed responses . . . I am doing well and feeling much better with more energy
and enthusiasm." On October 28, 2015, petitioner emailed her supervisor
indicating she and her husband were planning to return to the United States the
following week and stated:
I also wanted to ask you again about my leave entitlement. You mentioned I had enough sick leave to carry me to end of September. Is there any way you could advance me more leave with pay, as it will help me out financially, tremendously!
On January 7, 2016, petitioner left a voicemail informing respondent her
occupational therapist license had lapsed. The following day, respondent sent a
letter to petitioner advising a meeting was scheduled for January 14, 2016, at
Brick Memorial High School, pertaining to her employment. Petitioner did not
A-1347-17T3 4 attend the meeting. Respondent voted to terminate petitioner's employment
because her license had lapsed. The following day, respondent sent petitioner
formal notice of her termination by certified mail.
On January 18, 2016, petitioner emailed her supervisor seeking to appeal
her termination. In this email, petitioner claimed she had "not been medically
cleared to go back to work and submitted a note from [her] doctor that [she
would] be able to return on [February 1, 2016]." Petitioner renewed her
occupational therapy license on January 20, 2016.
Following the filing of petitioner's administrative appeal, the parties filed
competing motions for summary judgment. Respondent's motion for summary
judgment was granted by an administrative law judge (ALJ). The Commissioner
adopted the ALJ's decision and dismissed petitioner's appeal. This appeal
followed.
I.
"[We] have 'a limited role' in the review of [agency] decisions." In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81
N.J. 571, 579 (1980)). "[A] 'strong presumption of reasonableness attaches to
[an agency decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001)
(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). "In order to
A-1347-17T3 5 reverse an agency's judgment, [we] must find the agency's decision to be
'arbitrary, capricious, or unreasonable, or . . . not supported by substantial
credible evidence in the record as a whole.'" Stallworth, 208 N.J. at 194 (quoting
Henry, 81 N.J. at 580). The burden of proving an agency action is arbitrary,
capricious, or unreasonable is on the challenger. Bueno v. Bd. of Trs., 422 N.J.
Super. 227, 234 (App. Div. 2011) (citations omitted).
We "may not substitute [our] own judgment for the agency's, even though
[we] might have reached a different result." Stallworth, 208 N.J. at 194 (quoting
In re Carter, 191 N.J. 474, 483 (2007)). "It is settled that [a]n administrative
agency's interpretation of statutes and regulations within its implementing and
enforcing responsibility is ordinarily entitled to our deference." E.S v. Div. of
Med. Assistance & Health Servs., 412 N.J. Super. 340, 355 (App. Div. 2010)
(quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App.
Div. 2001)). "[W]e are not bound by the agency's legal opinions." A.B. v. Div.
of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)
(quoting Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div.
2001)). "Statutory and regulatory construction is a purely legal issue subject to
de novo review." Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.
85, 93 (1973)).
A-1347-17T3 6 On appeal, petitioner claims she was wrongfully terminated because
respondent failed to file tenure charges and hold a tenure hearing. She argues
the Commissioner's decision overlooked that she had a valid excuse for
permitting her certification to lapse, namely, the stress caused by her marital
discord, and that she was not servicing students as a school occupational
therapist during her medical leave. She also argues respondent's true reason for
terminating her was to avoid accommodating her mental health condition.
II.
"The tenure of educational personnel is authorized by the Tenure Act[.]"
Nelson v. Bd. of Educ. of Twp. of Old Bridge, 148 N.J. 358, 363 (1997) (citing
N.J.S.A. 18A:28–1 to –18). The Act's purpose "is to aid in the establishment of
a competent and efficient school system by affording [public school employees]
'a measure of security in the ranks they hold after years of service.'" Carpenito
v. Bd. of Educ. of Borough of Rumson, Monmouth Cty., 322 N.J. Super. 522,
528-29 (App. Div. 1999) (quoting Viemeister v. Prospect Park, Passaic Cty., Bd.
of Educ., 5 N.J. Super. 215, 218 (App. Div. 1949)).
"The Tenure laws are an 'important expression of legislative policy' and
should be given 'liberal support, consistent, however, with legitimate demands
A-1347-17T3 7 for governmental economy.'" Id. at 529 (quoting Viemeister, 322 N.J. Super. at
218).
The ultimate administrative decision-maker in reviewing law concerning school matters is the State Board, whose determination should not be vacated absent a showing that the decision is arbitrary or capricious, that it lacks support in the record, or that it violates legislative policies expressed or fairly to be implied in the statutory scheme administered by that agency.
[Ibid. (citing Dore v. Bd. of Educ. of Bedminster Twp., 185 N.J. Super. 447, 453 (App. Div. 1982)).]
The Tenure Act requires:
The services of all [public school] teaching staff members . . . and such other employees as are in positions1 which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, excepting those who are not the holders of proper certificates in full force and effect . . . shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause[.]
[N.J.S.A. 18A:28-5(a) (emphasis added).]
1 "[T]he word 'position' includes any office, position or employment." N.J.S.A. 18A:28-1. A-1347-17T3 8 However, "[n]o teaching staff member shall acquire tenure in any position in the
public schools in any school district . . . who is not the holder of an appropriate
certificate for such position." N.J.S.A. 18A:28-4.
N.J.S.A. 18A:6-10 governs the dismissal of employees under tenure in the
public school system. In pertinent part, it states:
No person shall be dismissed . . . if [she] is or shall be under tenure of . . . position . . . except for inefficiency, incapacity, unbecoming conduct, or other just cause, and then only after a hearing held . . . by the commissioner, or a person appointed by him to act in his behalf, after a written charge or charges, of the cause or causes of complaint, shall have been preferred against such person, signed by the person or persons making the same, who may or may not be a member or members of a board of education, and filed and proceeded upon[.]
However, N.J.S.A. 18A:28-14 provides:
The services of any teaching staff member who is not the holder of an appropriate certificate, in full force and effect, issued by the state board of examiners under rules and regulations prescribed by the state board of education may be terminated without charge or trial[.]
The regulations pertinent to petitioner's employment state:
To be eligible for the school occupational therapist endorsement, a candidate shall have:
1. A bachelor's degree from a regionally accredited college or university;
A-1347-17T3 9 2. Completed a program in occupational therapy from an approved school; and
3. A currently valid license issued by the New Jersey Occupational Therapy Advisory Council.
[N.J.A.C. 6A:9B-14.11(b) (emphasis added).]
There is no dispute petitioner lacked the certifications required by
N.J.A.C. 6A:9B-14.11(b) for employment with respondent. Petitioner's January
7, 2016 voicemail informed respondent she had let her certifications lapse on
September 30, 2015. Therefore, respondent could terminate petitioner, pursuant
to N.J.S.A. 18A:28-14, without a hearing. As the Commissioner noted, the fact
petitioner was not assisting students during the time period her license had
lapsed was not an exception to N.J.S.A. 18A:28-14 because, pursuant to
N.J.A.C. 6A:9B-5.1(c), "it is mandatory for districts to remove individuals who
do not have required licenses[.]" Therefore, the Commissioner's ruling was not
arbitrary, capricious, unreasonable, or unsupported by substantial credible
evidence in the record.
Finally, in affirming the Commissioner's determination, we do not reach
petitioner's claim that respondent's actions were motivated by a desire to avoid
accommodating petitioner's medical needs. The record is devoid of facts
supporting this contention, and it was not raised before the Commissioner.
A-1347-17T3 10 Affirmed.
A-1347-17T3 11