NOT FOR PUBLICATION WITHOUT THE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-0802-15T2
IN THE MATTER OF JOHANNA RIOS,
NEWARK SCHOOL DISTRICT.
____________________________________________________
Submitted February 7, 2017 – Decided February 23, 2017
Before Judges Fisher and Ostrer.
On appeal from the Civil Service Commission,
Agency Nos. 2016-171 and 2015-861.
Zazzali, Fagella, Nowak, Kleinbaum & Friedman,
attorneys for appellant Johanna Rios (Colin
M. Lynch, of counsel; Mr. Lynch and Kaitlyn
E. Dunphy, on the brief).
Charlotte Hitchcock, General Counsel, attorney
for respondent Newark School District (Bernard
Mercado, of counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey Civil
Service Commission (Pamela N. Ullman, Deputy
Attorney General, on the statement in lieu of
brief).
PER CURIAM
Johanna Rios was employed by the Newark School District for
more than fourteen years until her termination – pursuant to a
reduction in force plan – in August 2014. In appealing an
unfavorable decision rendered by the Civil Service Commission,
Rios argues the evidence demonstrated – or at least generated a
genuine factual dispute – that she was a "teacher's aide" and not
a "community aide – bilingual," and that she, consequently, had
seniority over six other teacher's aides who were retained in the
wake of the reduction plan. Because we agree there was a genuine
factual dispute about her position that could not be resolved
without an evidentiary hearing, we remand for that purpose.
The record reveals that the Commission correctly recognized
that Rios's seniority or layoff rights were informed by the factors
set forth in N.J.A.C. 4A:8-2.1,1 but the Commission only assessed
Rios's argument through a mechanical consideration of the precise
title assigned to her without a fair consideration of the nature
of her employment. For this and other reasons, Rios argues the
Commission's final decisions2 were arbitrary, capricious, and
contrary to law, and should be reversed; in the alternative, Rios
seeks a remand for an evidentiary hearing.
We agree an evidentiary hearing is required. Rios asserted
she was classified as, and performed the duties of, a teacher's
1
Subsection (a) provides four factors for determining "title
comparability," and subsection (b) provides four factors for
determining the presence of a demotional title right.
2
She also appeals the Commission's denial of reconsideration.
2 A-0802-15T2
aide, that she was enrolled in the Public Employees Retirement
System as a teacher's aide, and that she was compensated as a
teacher's aide.
In disregarding these and other illuminating circumstances,
the Commission relied on the title provided by the employer to the
Commission when Rios was hired fourteen years earlier; allegedly
unknown to Rios, the employer then designated her as a community
aide. Because there seems to be no dispute that – if considered a
teacher's aide – Rios possessed sufficient seniority over others
to preclude her termination pursuant to the reduction plan, we
remand for an evidentiary hearing to ascertain Rios's appropriate
title and position in light of what she actually was hired to do
and what she did for the school district over the years, as well
as the other relevant factors set forth in N.J.A.C. 4A:8-2.1. We
reject not only the contention that the applicable regulations
preclude consideration of the actual circumstances surrounding
Rios's employment and turns only on a label placed in a file
without the employee's knowledge, but also the argument that there
can be no hearing even when the facts are contested because such
appeals are normally determined through consideration of a paper
3 A-0802-15T2
record, N.J.A.C. 4A:8-2.6(a)(2).3 In fact, although N.J.A.C. 4A:2-
1.1(d) may presuppose that most appeals of this sort can be fairly
adjudicated on the papers, that regulation also recognizes there
will be cases in which "a material and controlling dispute of fact
can only be resolved by a hearing." This is one such case.
Reversed and remanded for further proceedings in conformity
with this opinion. We do not retain jurisdiction.
3
The school district contends an evidentiary hearing is foreclosed
by these regulations; interestingly, the Commission has not made
that argument.
4 A-0802-15T2