NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4826-12T1
DARCY J. KOLODZIEJ,
APPROVED FOR PUBLICATION
Petitioner-Appellant,
July 25, 2014
v.
APPELLATE DIVISION
BOARD OF EDUCATION OF SOUTHERN
REGIONAL HIGH SCHOOL DISTRICT,
OCEAN COUNTY,
Respondent-Respondent.
Submitted June 24, 2014 - Decided July 25, 2014
Before Judges Parrillo, Messano and Alvarez.
On appeal from the Commissioner of
Education, Docket No. 188-7/07.
Zazzali, Fagella, Nowak, Kleinbaum &
Friedman, P.C., attorneys for appellant
(Aileen M. O'Driscoll, of counsel and on the
briefs).
Berry Sahradnik Kotzas & Benson, P.C.,
attorneys for respondent Board of Education
of Southern Regional High School District,
Ocean County (Mathew B. Thompson, on the
brief).
John J. Hoffman, Acting Attorney General,
attorney for respondent Commissioner of
Education (Caroline Jones, Deputy Attorney
General, on the brief).
The opinion of the court was delivered by
PARRILLO, P.J.A.D.
Petitioner Darcy Kolodziej appeals from a final decision of
the Commissioner of Education, finding that she had not attained
tenure, due to an interruption in service because of a year-long
maternity leave, when she was laid off in April 2007, and thus
that she was not entitled to be rehired when a position became
available in August 2007. We disagree that petitioner's
maternity leave interrupted her period of service to achieve
tenure, and remand to the agency to determine whether petitioner
had attained the seniority to be automatically rehired when the
position became available and, if so, the measure of her
damages.
Petitioner began working as a full-time health and physical
education teacher for the Southern Regional High School Board of
Education (Board) in 2002. She was employed in this capacity
for the complete 2002-2003, 2003-2004 and 2004-2005 academic
years. On September 1, 2005, petitioner began a Board-approved
unpaid maternity leave, which lasted until June 30, 2006.
Petitioner returned to work on September 1, 2006 and was
continuously employed through the end of the 2006-2007 school
year. On April 27, 2007, petitioner received notice that her
2 A-4826-12T1
position with the Board would be terminated effective September
1, 2007, pursuant to a reduction in force (RIF) plan.
During her first three years of employment, petitioner had
been evaluated as required for the granting of tenure status
under N.J.S.A. 18A:28-5(b). However, as of the end of the 2006-
2007 school year, the Board had not granted petitioner tenure.
Thus, in August 2007, when a physical education position became
available, petitioner was not among those considered to fill it;
the position instead went to another teacher, who had been
granted tenure and placed on a recall list as part of the RIF
plan.
On July 2, 2007, petitioner filed an appeal with the
Department of Education (DOE), claiming that she was entitled to
tenure protection and status under the RIF plan. The case was
sent to the Office of Administrative Law (OAL) for hearing. In
a series of partial summary decisions, the administrative law
judge (ALJ) found that the petitioner had acquired tenure before
the RIF plan and thus that her tenure rights had been violated
under its provisions. The ALJ ordered that petitioner be
reinstated to her former position as a physical education
teacher and that she be granted back pay of $137,212 for the
2007-2008, 2008-2009 and 2009-2010 school years as well as
seniority credit for those years. In a final decision of April
3 A-4826-12T1
5, 2013, the ALJ confirmed all these prior decisions, and noted
that petitioner had waived her right to incidental damages
including health care costs and various tax credits.
On May 16, 2013, the Commissioner of Education
(Commissioner) rejected this decision, concluding that
petitioner had not attained tenure at the time of her dismissal
in 2007. Having so determined, the Commissioner did not address
the issue of petitioner's seniority and thus concluded that she
was not entitled to any relief.
Petitioner appeals from the Commissioner's decision,
arguing
I. THE COURT SHOULD REVERSE THE DECISION
OF THE COMMISSIONER BECAUSE IT IS
INCONSISTENT WITH, AND/OR IMPROPERLY
APPLIES[,] N.J.S.A. 18A:28-5 AND
RELEVANT CASE LAW.
II. ASSUMING TH[E] COURT REVERSES THE
COMMISSIONER'S DECISION, THE ALJ'S
DECISION THAT [PETITIONER] WAS TENURED
AT THE TIME OF THE DISTRICT'S REDUCTION
IN FORCE AND HAD GREATER SENIORITY THAN
SEVERAL OTHER TEACHING STAFF MEMBERS
ASSIGNED TO POSITIONS AS PHYSICAL
EDUCATION TEACHERS, AND WAS AND IS
ENTITLED TO HER POSITION AS A TEACHER
OF PHYSICAL EDUCATION[,] SHOULD BE
AFFIRMED.
III. THE FEDERAL FAMILY LEAVE ACT, THE
DISTRICT FAMILY LEAVE POLICY AND THE
PARTIES' COLLECTIVE BARGAINING
AGREEMENT DID NOT PRECLUDE [PETITIONER]
4 A-4826-12T1
FROM ACQUIRING SENIORITY WHILE ON
MATERNITY LEAVE.
It is a well-settled principle of judicial review of
administrative agency decisions that we will "accord a strong
presumption of reasonableness to such decisions and do not
substitute our judgment for the wisdom of agency action if that
action is statutorily authorized and not arbitrary and
unreasonable." A.M.S. ex rel. A.D.S. v. Bd. of Educ., 409 N.J.
Super. 149, 159 (App. Div. 2009). However, we are not bound by
an agency's interpretation of a statute. Russo v. Bd. of
Trustees, 206 N.J. 14, 27 (2011). Instead, we review the
interpretation of a statute de novo. Div. of Youth & Family
Servs. v. T.B., 207 N.J. 294, 300 (2011).
Relevant here, the Tenure Act, N.J.S.A. 18A:28-5(a)
provides:
The services of all teaching staff members
employed prior to the effective date of
P.L.2012, c.26 [N.J.S.A. 18A:6-117 to -129]
in the position[] of teacher, . . . serving
in any school district or under any board of
education, . . . 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
and then only in the manner prescribed by
subarticle B of article 2 of chapter 6 of
this Title [N.J.S.A. 18A:6-9 to -25], after
employment in such district or by such board
for:
5 A-4826-12T1
(1) Three consecutive calendar years,
or any shorter period which may be
fixed by the employing board for
such purpose; or
(2) Three consecutive academic years,
together with employment at the
beginning of the next succeeding
academic year; or
(3) The equivalent of more than three
academic years within a period of
any four consecutive academic
years.
The parties agree that petitioner worked as a teacher for three
consecutive academic years, from 2002 to 2005. Thus, the
question of whether petitioner achieved tenure before her
dismissal in 2007 turns on whether she fulfilled the conditions
in (2) or (3), i.e., whether petitioner's unpaid leave of
absence under the Family and Medical Leave Act (FMLA)
constituted continued employment at the beginning of the next
succeeding academic year or at any point during the year. The
Commissioner concluded that petitioner's leave represented a
break in employment, which prevented petitioner from achieving
tenure notwithstanding the three years of continuous employment
and tenure evaluations that preceded the leave. We disagree.
We have found no case law directly on point as to whether
maternity leave constitutes continued employment under N.J.S.A.
18A:28-5(a). Nevertheless, our courts have considered the
effect that other types of leave might have on tenure status.
6 A-4826-12T1
Our Court has noted that "'continuous employment' exists
notwithstanding the 'mere occasional absence of a teacher by
reason of illness or excuse.'" Kletzkin v. Bd. of Educ., 136
N.J. 275, 279 (1994) (quoting Bd. of Educ. v. Wall, 119 N.J.L.
308, 309-10 (Sup. Ct. 1938)). In Kletzkin, supra, 136 N.J. at
280, the Court concluded that a teacher, who was on leave due to
a work-related injury for four months during the required three-
year tenure probation period, still had acquired tenure, even
though she did not actively work during the full period. In
reaching this decision, the Court noted that there had been
ample time to evaluate the employee during the twenty-eight
months she had been actively working. Ibid. Moreover, the
Court specifically noted that "an employee on a leave of absence
remains an employee." Ibid.; see also Ward v. Keenan, 3 N.J.
298, 310-11 (1949) (noting that a police officer's leave of
absence did not constitute a "complete severance of
responsibility" and so he could not "lose his tenure during good
behavior" while on leave); Blinn v. Bd. of Trustees, 173 N.J.
Super. 277, 278 (App. Div. 1980) (noting that "the phrase 'leave
of absence' itself 'connotes a continuity of the employment
status'") (citations omitted).
Although the Commissioner distinguished Kletzkin, on the
grounds that it involved an involuntary, work-related leave, we
7 A-4826-12T1
see no meaningful distinction for present purposes. Like in
Kletzkin, supra, the Board here had an adequate period, thirty
months, in which to evaluate petitioner's fitness for tenure,
and did, in fact, evaluate her the requisite number of times in
that period. See Bd. of Educ. v. Raubinger, 78 N.J. Super. 90,
100 (App. Div. 1963) ("Three full years are a sufficient term
within which a board of education may judge the competency of a
teacher, principal or superintendent. It is also a reasonable
period for one in the teaching profession to be expected to
demonstrate his or her capacity before achieving tenure
status."). Thus, concerns about evaluation are irrelevant here.
Moreover, petitioner did, in fact, return to work in the
same position when her allowed leave had expired. There is
nothing to suggest, therefore, that petitioner did not remain an
employee throughout the time she was on leave, albeit an
inactive one for the 2005-2006 academic year. The employment
relationship did not cease during her leave; she was not rehired
at the beginning of the 2006-2007 year, undergoing a new
interview and hiring process, but rather simply returned to
work.
Additionally, interpreting the statute to allow tenure in
this case fits within the public policy purposes of the Tenure
Act and the FMLA, under which petitioner took her leave. The
8 A-4826-12T1
FMLA was developed "to entitle employees to take reasonable
leave . . . for the birth or adoption of a child . . . ." 29
U.S.C.A. § 2601(b)(2). Recognizing that "due to the nature of
the roles of men and women in our society, the primary
responsibility for family caretaking often falls on women, and
such responsibility affects the working lives of women more than
it affects the working lives of men[,]" one of its explicit
goals is "to promote . . . equal employment opportunity for
women and men[.]" 29 U.S.C.A. § 2601(a)(5) & (b)(5). The FMLA
specifically provides that a returning employee is "to be
restored by the employer to the position of employment held by
the employee when the leave commenced; or to be restored to an
equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment." 29 U.S.C.A. §
2614(a)(1). And, importantly, the leave "shall not result in
the loss of any employment benefit accrued prior to the date on
which the leave commenced." 29 U.S.C.A. § 2614(a)(2). Thus, it
is clear that the FMLA seeks to return the employee to the same
position that he or she was in before the leave, treating the
leave itself not as a cessation, but instead as a temporary
pause in the ongoing working relationship. To therefore punish
an employee by denying her tenure she had earned over three
years of continuous employment and satisfactory evaluations
9 A-4826-12T1
simply because she took the leave that her employer granted her,
would not serve the purpose of the FMLA.
The Board argues that the FMLA itself contains language
which prevents petitioner from acquiring tenure while on leave.
29 U.S.C.A. § 2614(a)(3) provides:
Nothing in this section shall be
construed to entitle any restored employee
to
(A) the accrual of any seniority or
employment benefits during any
period of leave; or
(B) any right, benefit, or position of
employment other than any right,
benefit, or position to which the
employee would have been entitled
had the employee not taken the
leave.
However, this section merely prevents the FMLA from establishing
new or increased rights other than those specifically
enumerated; it does not supersede state statutes that provide
other rights nor does it prohibit states from guaranteeing those
rights separately. See 29 C.F.R. § 825.215(d)(2) ("An employee
may, but is not entitled to, accrue any additional benefits or
seniority during unpaid FMLA leave."). Thus, by adopting the
Board's interpretation of the statute, we would be adopting a
position that penalizes pregnant employees by returning them not
to the same position as of the day they went on leave, but
rather to a new, worsened position, one for which the tenure
10 A-4826-12T1
clock must reset. This would utterly defeat the purpose of the
FMLA, which is to preserve the rights of employees granted
leave, not to penalize them for taking such leave.
Our own Family Leave Act, N.J.S.A. 34:11B-1 to -16, further
illustrates this public policy goal of protecting employees who
take such leaves of absence. In N.J.S.A. 34:11B-2, our
Legislature declared that "employees should be entitled to take
a period of leave upon the birth . . . of a child . . . without
risk of termination of employment . . . and without loss of
certain benefits." To that end, like the FMLA, the Family Leave
Act provides that an employee is "entitled to be restored to the
position held by the employee when the leave commenced or to an
equivalent position of like seniority, status, employment
benefits, pay, and other terms and conditions of employment."
N.J.S.A. 34:11B-7. The Act further provides that the employee
"shall retain all rights under any applicable layoff and recall
system, including a system under a collective bargaining
agreement, as if the employee had not taken the leave." Ibid.
Thus, like the FMLA, our statutory authority reveals an intent
to return an employee on maternity leave to the same position
she was in before she took the leave; in other words, our public
policy also favors treating petitioner as though her leave did
11 A-4826-12T1
not occur since she otherwise would have gained tenure on
September 1, 2005.
Because petitioner remained an employee even during her
maternity leave and because the principles underlying the FMLA
and our own Family Leave Act encourage an interpretation that
preserves the rights of our pregnant employees, we find that
petitioner's tenure rights were maintained even though she went
on leave, and thus that she was tenured as of the beginning of
her leave on September 1, 2005.
As such, petitioner claims that she is entitled to relief
because at the time of the RIF plan in April 2007, she had
acquired three years and nine months of seniority, which
allegedly was a greater amount of seniority time than that
acquired by the individual who ultimately obtained the vacant
position in the physical education department in August 2007.
To arrive at this number, however, petitioner includes thirty
days of credit acquired during the 2005-2006 academic year when
she was on leave. Petitioner relies on N.J.A.C. 6A:32-5.1(b) to
support her contention that the thirty days may be included:
Seniority, pursuant to N.J.S.A. 18A:29-
9 et seq., shall be determined according to
the number of academic or calendar years of
employment, or fraction thereof, as the case
may be, in the school district in specific
categories as hereinafter provided. The
periods of unpaid absences not exceeding 30
calendar days aggregate in one academic or
12 A-4826-12T1
calendar year, leaves of absence at full or
partial pay and unpaid absences granted for
study or research shall be credited toward
seniority. All other unpaid absences or
leaves of absence shall not receive
seniority credit.
[(emphasis added).]
Petitioner claims that the phrase "[t]he periods of unpaid
absences not exceeding 30 calendar days aggregate in one
academic or calendar year . . . shall be credited toward
seniority" should be interpreted as allowing her a thirty-day
seniority credit from her ten-months of unpaid leave.
As noted, because he found that petitioner did not attain
tenure, the Commissioner did not address the issue of her
seniority or entitlement to damages. Specifically, the
Commissioner did not determine whether petitioner's
interpretation of N.J.A.C. 6A:32-5.1(b) (as allowing her a
thirty-day seniority credit from her ten-months of unpaid leave)
was correct or whether the regulation should be construed as
permitting the consideration of only periods of absence of less
than thirty days in calculating seniority time. The proper
interpretation of N.J.A.C. 6A:32-5.1(b) is thus determinative of
petitioner's seniority rights1 and its resolution, we find, is
1
It appears that without those thirty days, petitioner had three
years and eight months of seniority, which was equal to the
amount of seniority time held by the teacher who assumed the
(continued)
13 A-4826-12T1
best left to the agency charged with its enforcement. We
therefore remand the matter to the Commissioner for a
determination of petitioner's seniority rights and any
consequent entitlement to relief.
Reversed and remanded.
(continued)
vacant position in August 2007. If so, petitioner would not be
automatically entitled to that position based on seniority, but
rather would have, at most, been considered with the other
teacher for the position. However, when two teachers have the
same seniority time, the Board is empowered to choose between
the two.
14 A-4826-12T1