NOT FOR PUBLICATION WITHOUT THE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-3383-15T1
C.H.,
Petitioner-Appellant,
v.
STATE-OPERATED SCHOOL DISTRICT
OF THE CITY OF CAMDEN, CAMDEN COUNTY,
Respondent-Respondent.
————————————————————————————————
Submitted August 1, 2017 – Decided August 23, 2017
Before Judges Hoffman and Currier.
On appeal from the Commissioner of
Education, Docket No. 122-6/15.
Michael A. Armstrong & Associates, LLC,
attorneys for appellant (Morrison Kent
Fairbairn, on the briefs).
Brown & Connery, LLP, attorneys for
respondent State-Operated School District of
the City of Camden (Louis R. Lessig and
Benjamin S. Teris, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey
Commissioner of Education (James M. Esposito,
Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
Petitioner C.H. appeals from the February 19, 2016 final
decision of the Commissioner of Education (Commissioner),
declining to reinstate her teaching position with respondent,
State-Operated School District of the City of Camden. For the
reasons that follow, we affirm.
Petitioner is a tenured teacher, certified to work with
handicapped students. She has worked for respondent as a
teacher for approximately twelve years. During the course of
her employment, petitioner had assignments teaching high school,
middle school, and elementary school students with special
needs.
On March 16, 2012, petitioner requested an "immediate
transfer" from her position teaching an autistic class at the
Bonsall Family School, "for [her] own mental wellbeing and
physical safety," and "due to circumstances beyond [her]
control." Respondent placed petitioner at the Forest Hill
Elementary School to teach a class with behavioral disabilities.
One year later, petitioner requested a leave of absence from
February 19, 2013 to March 31, 2013, claiming she suffered from
panic attacks, anxiety, and insomnia, which caused her
difficulty focusing and affected her job performance.
Upon returning from leave, respondent assigned petitioner
to teach a class with behavioral disabilities at the Molina
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Elementary School. On April 23, 2013, petitioner was involved
in an incident where she physically restrained one of her
students. Following an investigation, the Institutional Abuse
Investigation Unit determined that abuse was not established,
pursuant to N.J.S.A. 9:6-8.21. However, because of this
incident, respondent assigned petitioner to the Sumner
Elementary School for the 2013-2014 school year, again to teach
an elementary level class for students with behavioral
disabilities.
On November 15, 2013, petitioner attended a training
session for teachers of students with behavioral disabilities.
Petitioner left the session early, prompting respondent to send
her an official reprimand. According to petitioner, she left
the session after being chastised by a supervisor, and
thereafter suffered an anxiety attack.
Petitioner further claimed she received the reprimand on
December 11, 2013, which caused her to have a panic attack on
that date. According to the school principal's account of this
incident, on the morning of December 11, she found petitioner
agitated and crying in her classroom. The school nurse called
9-1-1 due to petitioner's "agitated state, rambling and
cursing," and emergency services transferred her to the
hospital.
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Because of this incident and her "alleged concerning
pattern of behavior this year," respondent placed petitioner on
administrative leave, pending the result of a mental fitness
examination scheduled for January 9, 2014. However, petitioner
declined to undergo the evaluation, after learning respondent's
chosen psychologist would review her personnel records. The
parties eventually reached an agreement, selecting Jonathan H.
Mack, Psy.D., to conduct the evaluation.
Dr. Mack interviewed petitioner and conducted psychological
tests on May 28 and 29, 2014. On August 11, 2014, he issued a
forty-five page "Confidential Report," outlining petitioner's
personnel file and medical records. He diagnosed petitioner
with an "Other Specified Personality Disorder," a "Sleep
Disorder," and a "History of Panic Disorder." Concluding his
review, Dr. Mack opined:
The totality of the information available to
me at this time indicates, within a
reasonable degree of psychological and
neuropsychological scientific certainty,
that [petitioner] is at a high risk for
continued problems in terms of disciplining
her behaviorally disordered students with
problematic behavior due to her chronic
pain, her borderline personality features,
and her overall heightened reactivity to the
administration of the Camden Board of
Education. It is my opinion, with all
factors taken into account by me at this
time that [petitioner] is at unacceptable
risk for inappropriate behavior with her
students when under stress. It is further
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likely that conflicts will continue with
Administration, given her personality style
and given her particular history with this
school district.
[Petitioner] appeared to have done much
better when dealing with the high school
autistic population, and this may be a
better placement for her. However, based on
the information available to me at this
time, it is my opinion that [petitioner] is
at unacceptable risk for future problems
with the elementary school behaviorally
disordered population through the Camden
Board of Education at this time.
If another less stressful population is
found for [petitioner] to work with, it is
my opinion that she should be mandated to
have weekly psychological counseling with a
licensed psychologist and to be evaluated
for mood stabilizing medications, and that
she take these medications as prescribed if
medically so ordered.
Following this report, on August 29, 2014, petitioner sent
respondent a letter, requesting a transfer to a position
teaching students without behavioral disabilities, in accordance
with Dr. Mack's report and her previous accommodation requests.
According to petitioner, respondent did not respond to this
request. However, she received a document in December 2014, in
connection with a records update, which suggested respondent had
transferred her to a position at Woodrow Wilson High School,
effective September 2014.
Nonetheless, on March 3, 2015, respondent advised
petitioner she was ineligible for further service, pursuant to
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N.J.S.A. 18A:16-4, due to Dr. Mack's report indicating she
suffered from a mental abnormality. The letter stated
respondent would terminate her from payroll in sixty days, and
she would "remain ineligible for service absent the submission
of proof of recovery, satisfactory to the District"; further,
her failure to submit such proof within two years would render
her "permanently ineligible for service with the District."
Thereafter, petitioner submitted two one-page letters to
respondent as proof of her recovery. In the first letter,
petitioner's treating psychiatrist, Safeer Ansari, D.O., stated,
"I currently find [petitioner] to be stable and mentally healthy
to return to work." However, Dr. Ansari agreed with Dr. Mack's
recommendation that petitioner
is not to be placed in a B.D. or
Behaviorally Disordered Classroom with
students who are emotionally disabled and
can become physically violent particularly
at the elementary level. As stated by Dr.
Mack, it appears that [petitioner] had the
most success working with students at the
High School level who suffer from
Multiple/Learning Disabilities, Other Health
Impairments, and/or the Autistic population.
In the second letter, petitioner's primary care physician,
Chris F. Colopinto, D.O., stated he reviewed Dr. Mack's report,
but based on his own independent findings, he believed
petitioner was "mentally healthy enough to return to work
6 A-3383-15T1
granted that she is provided with the accommodations that have
been recommended as appropriate."
According to petitioner, respondent terminated her from
payroll on May 3, 2015. On June 1, 2015, petitioner filed a
petition with the Commissioner, requesting an order reinstating
her position and claiming respondent failed to respond to her
proofs of recovery.
Shortly thereafter, on June 16, 2015, respondent informed
petitioner it reviewed her recovery letters, which "confirm that
she continues to be ineligible for service since neither letter
provides proof of [petitioner's] recovery satisfactory to the
District so that she can return to work." Respondent noted Dr.
Mack diagnosed petitioner with "at least three mental
abnormalities," and his report did not contain "any definitive
conclusion" that her "mental abnormalities would allow her to
safely work with any population in the District." Respondent
found petitioner's doctors both agreed with Dr. Mack's
recommendation not to place her in a behaviorally disordered
classroom.
After the matter was transferred to the Office of
Administrative Law, petitioner moved for summary decision, and
respondent cross-moved for summary decision. On January 4,
2016, an Administrative Law Judge (ALJ) issued an Initial
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Decision, granting summary decision in favor of respondent. The
ALJ concluded respondent acted reasonably by rejecting
petitioner's proofs of recovery, noting that "[w]hen balancing a
teacher's ability to teach against the safety of the student
population, a reasonable person would err on the side of the
safety of the student population."
The Commissioner adopted these findings in its decision,
dated February 19, 2016, expressing concern that petitioner's
letters failed to "reference[] the multiple diagnoses made by
Dr. Mack" or "describe petitioner's recovery efforts and/or any
treatment regimen in place to address Dr. Mack's concerns." The
Commissioner further criticized the letters for "merely
provid[ing] conditional recommendations that petitioner be
permitted to return to work – with certain parameters in place,"
finding instead that "student safety must be the District's
paramount concern."
This appeal followed. Petitioner now raises two issues for
our consideration: (1) the ALJ and Commissioner should have
granted her motion for summary decision because respondent's
actions were arbitrary and capricious; and (2) the ALJ and
Commissioner improperly granted respondent's cross-motion for
summary decision based upon disputed facts.
8 A-3383-15T1
Our scope of review of an agency's final decision is
limited and deferential. In re Carter, 191 N.J. 474, 482
(2007). A "strong presumption of reasonableness attaches to the
actions of the administrative agencies." In re Carroll, 339
N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J.
Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)),
certif. denied, 170 N.J. 85 (2001). We will refrain from
"disturb[ing] 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 Application of Virtua-W. Jersey
Hosp. Voorhees for a Certificate of Need, 194 N.J 413, 422
(2008). We are bound by this standard even if we would have
reached a different conclusion. Circus Liquors, Inc. v.
Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009).
Conversely, we review the agency's legal conclusions de novo.
Utley v. Bd. of Review, 194 N.J. 534, 551 (2008).
Similar to summary judgment, an ALJ must grant summary
decision upon a showing "that there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to prevail as a matter of law." N.J.A.C. 1:1-12.5(b);
see also E.S. Div. of Med. Assistance & Health Servs., 412 N.J.
9 A-3383-15T1
Super. 340, 350 (App. Div. 2010). If the moving party properly
supports its motion for summary decision, the "adverse party in
order to prevail must by responding affidavit set forth specific
facts showing that there is a genuine issue which can only be
determined in an evidentiary proceeding." N.J.A.C. 1:1-12.5(b).
In deciding a summary judgment motion, the evidence must be
viewed "in the light most favorable to the non-moving party."
Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010)
(citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
540 (1995)).
At issue in this case are several statutory provisions
governing psychological evaluations of teachers. First, under
N.J.S.A. 18A:16-2(a), school boards "may require individual
psychiatric or physical examinations of any employee, whenever,
in the judgment of the board, an employee shows evidence of
deviation from normal, physical or mental health." "If the
result of any such examination indicates mental abnormality or
communicable disease, the employee shall be ineligible for
further service until proof of recovery, satisfactory to the
board, is furnished . . . ." N.J.S.A. 18A:16-4.
As these provisions demonstrate, our legislature has
granted school boards the duty to determine teacher fitness, in
order to protect students from harm. Gish v. Bd. of Educ. of
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Paramus, 145 N.J. Super. 96, 104-05 (App. Div. 1976), certif.
denied, 74 N.J. 251, cert. denied, 434 U.S. 879, 98 S. Ct. 233,
54 L. Ed. 2d 160 (1977). The "reasonable possibility" of harm
warrants action by a board. Id. at 105. Moreover, teacher
fitness "may not be measured 'solely by his or her ability to
perform the teaching function and ignore the fact that the
teacher's presence in the classroom might, nevertheless, pose a
danger of harm to the students for a reason not related to
academic proficiency.'" Ibid. (quoting In re Tenure Hearing of
Grossman, 127 N.J. Super. 13, 32 (App. Div. 1974), certif.
denied, 65 N.J. 292 (1974)).
Importantly, "[a]n 'action of the local board which lies
within the area of its discretionary powers may not be upset
unless patently arbitrary, without rational basis or induced by
improper motives.'" Parsippany-Troy Hills Educ. Ass'n v. Bd. of
Educ. of Parsippany-Troy Hills, 188 N.J. Super. 161, 167 (App.
Div.) (quoting Kopera v. Bd. of Educ. of West Orange, 60 N.J.
Super. 288, 294 (App. Div. 1960)), certif. denied, 94 N.J. 527
(1983); see also Gish, supra, 145 N.J. Super. at 105 (finding a
school board's decision was "fair and reasonable"). Similarly,
an agency's review of a school board decision is entitled to "a
presumption of correctness" and will not be disturbed unless
arbitrary and unreasonable. Thomas v. Bd. of Educ. of Morris,
11 A-3383-15T1
89 N.J. Super. 327, 332 (App. Div. 1965), aff'd, 46 N.J. 581
(1966).
With these standards in mind, we turn to petitioner's
argument that the ALJ and Commissioner erred by denying her
motion for summary decision because respondent's actions were
arbitrary and unreasonable. In support of her argument,
petitioner cites statutes and case law that are not applicable
to this matter, such as the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1 to -49, which we decline to
address at length.1 Nonetheless, we interpret petitioner's
argument as asserting respondent misread Dr. Mack's report and
her proof of recovery letters, unreasonably deeming her
ineligible for service in all teaching positions without
considering alternative placement. Petitioner adds that
respondent "failed to reasonably exercise its discretion in
evaluating whether [she] was fit to return to work with or
without reasonable accommodations."
However, having reviewed the record and applicable law, we
discern no basis to disturb respondent's decision. Dr. Mack's
extensive report diagnosed petitioner with several mental
conditions, which placed her at risk for inappropriate behavior
1
In her brief supporting summary decision, petitioner stated
she had filed a discrimination claim with the EEOC, and thus she
was not asserting a discrimination claim here.
12 A-3383-15T1
with students. The report left no question that petitioner's
mental health issues affected her teaching and disciplinary
abilities. See Kochman v. Keansburg Bd. of Educ., 124 N.J.
Super. 203, 211-12 (Ch. Div. 1973). Moreover, Dr. Mack only
noted a different position "may" be better for petitioner, and
only upon certain specified conditions. Although the report
raised the possibility that petitioner could return to a "less
stressful population," given the totality of Dr. Mack's
findings, respondent acted reasonably by deeming her ineligible
for service absent proof of recovery.
We further agree with the Commissioner that respondent
acted reasonably by rejecting petitioner's proof of recovery
letters. Both letters stated petitioner was able to "return to
work," while agreeing with Dr. Mack's suggested conditions and
accommodations. As a "reasonable possibility" of harm will
justify a board decision, the Commissioner appropriately noted
that given the interest of student safety, petitioner's letters
were insufficient proof of recovery. Gish, supra, 145 N.J.
super. at 105. Therefore, under our deferential scope of
review, we find the Commissioner's decision to uphold
respondent's actions was not arbitrary, capricious, or
unreasonable. Carter, supra, 191 N.J. at 482.
13 A-3383-15T1
Petitioner further argues the Commissioner and ALJ erred
because they granted summary decision for respondent based on
disputed facts. According to petitioner, these disputed issues
included whether she actually threatened student safety; whether
she failed to comply with Dr. Mack's recommendations; the basis
for Dr. Mack's conclusions; and the sufficiency of her doctors'
conclusions. We decline to discuss this argument at length, as
the ultimate resolution of these issues has no bearing on
whether respondent's exercise of its statutory authority was
reasonable. See Parsippany-Troy Hills, supra, 188 N.J. Super.
at 167. In other words, this case turned on whether respondent
reasonably deemed petitioner ineligible for service based on Dr.
Mack's report and reasonably rejected petitioner's proof of
recovery letters. See N.J.S.A. 18A:16-4. Here, because a
"reasonable possibility" of harm warrants board action, we find
the Commissioner's grant of summary decision was appropriate in
this matter. Gish, supra, 145 N.J. super. at 105.
Any remaining arguments not specifically addressed lack
sufficient merit to warrant further discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
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