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August 21, 1980

Ronald A. NIEDERHUBER, Plaintiff,

The opinion of the court was delivered by: COHEN

In this civil rights action plaintiff, Ronald A. Niederhuber, challenges his dismissal as a public school teacher on the grounds that the termination of his employment deprived him both of his first amendment right to the free exercise of his religion and of his due process rights under the fourteenth amendment. Jurisdiction of the Court is predicated upon 28 U.S.C. § 1343(3).

Trial was held without a jury and this opinion is filed in lieu of findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a).

 Plaintiff, Niederhuber, was hired as a non-tenured teacher by the Camden County Vocational & Technical School District Board of Education (hereinafter "the Board" or "Board of Education") under a contract of employment which was to run from September 1, 1978 to June 30, 1979. His duties involved teaching handicapped children during discrete periods of the school day.

 In 1971 plaintiff became a member of the Worldwide Church of God. One of the tenets of that religion is that members must refrain from performing all work on the sabbath each week and on certain specified holy days during the year. On September 21, 1978 plaintiff submitted a written request to the school superintendent to take personal leave on October 2 and 11, 1978 to observe the religious holy days of Feast of Trumpets and Day of Atonement. His request was approved, and he was granted one day with pay and one day without pay. (Plaintiff was entitled to one day of paid personal leave under the Collective Bargaining Agreement (Ex. D-1)). Following that, he filed a second request for leave on October 4, 1978 to enable him to observe the Feast of the Tabernacles. That holiday ex- tended from October 16 to October 23, 1978 and would have entailed his missing six consecutive school days. With respect to this request for leave, plaintiff testified that he was told by his immediate supervisor that the superintendent would not approve his request and further remarked that "it would start a bad precedent." Despite this, plaintiff explained to his supervisor that he must still be excused from teaching on the holy days.

 In further discussions with his supervisor, concerning his religious absences, plaintiff was asked if he would be observing the same holy days every year. When he replied in the affirmative, he was told that his absences could hurt him in future job evaluations. Niederhuber was assured, however, that he would still have his job when he returned from his six-day absence. The plaintiff also spoke directly to the superintendent about his need for the holidays. The superintendent, while stating that he could not approve Niederhuber's absences, testified that he told him that his position would not be in jeopardy if he did take the time to observe his religion's holy days.

 Niederhuber had no further conversations with the school administration concerning his religious absences, and the record indicates that he did absent himself for the required days. Substitute teachers were hired to replace Niederhuber during his absence, and seven of the eight days he missed were deducted from his salary. (See discussion regarding Collective Bargaining Agreement, supra.)

 On November 30, 1978 plaintiff notified his supervisor that he must be excused from the last two periods of the following day. He filed a Request for Personal Leave form giving as his reason "very personal business. *fn1" " From the record it appears that he was told by his supervisor that the two-period absence would be unauthorized but that he should return to the office for further word the next morning. The plaintiff testified that he would not leave school during the two periods unless he had permission to do so.

 On the following morning, plaintiff went to his supervisor's office and was told by the secretary that he was "covered" for the two periods of requested leave. This conversation was verified by the testimony of the supervisor's secretary during the trial. Plaintiff left early that day and another teacher from the building stepped in to replace him the common procedure used whenever teachers needed partial day absences. At no time was he told that he would be charged with insubordination or that he would be fired if he was absent for the two periods. Nor was he ever expressly told not to leave the school during the two periods.

 Three days later, on December 4, 1978, Niederhuber's supervisor wrote the following memorandum to the superintendent:

On November 30, 1978 Mr. Niederhuber called my office and informed my secretary that he had to leave school 8th and 9th period for personal business without giving reason. I called him to the office and requested his need for leaving to which he responded "it was very personal which he would not divulge." I informed him that this could not be considered an authorized leave. He replied that "there was nothing he (sic) could do, he (sic) had to go and is prepared to be docked wages if necessary." On December 1, 1978 he did leave to keep his appointment. This is the same individual who took leave contrary to your disapproval on October 4, 1978.

 At that Board meeting the superintendent made his recommendation, and the next day the plaintiff was informed by letter that his "services were no longer needed." (Ex. P-6). The superintendent was subsequently advised by counsel that because of the Open Public Meetings Act, N.J.Stat.Ann. §§ 10:4-6 to -21 (West 1976), the plaintiff should have been given an opportunity to request that the Board discussion regarding matters which could effect his employment be held in public, rather than private, session. In accordance with this advice, the superintendent informed plaintiff by a second letter dated December 22, 1978 that the Board would be further discussing his case on January 9, 1979 and that he could, at his request, have the matter discussed in public. The letter also stated that the sixty-day notice of termination would commence upon his receipt of the action taken at the Board's meeting on that date.

 Niederhuber requested a public meeting, and on January 9, 1979 he and his New Jersey Education Association (NJEA) field representative appeared at the Board's session. While there is some conflict in the testimony concerning whether the Board asked the plaintiff if he had anything to say, the NJEA representative was given an opportunity to speak on the plaintiff's behalf. However, in his address to the Board, the NJEA representative began by accusing it of committing a misdemeanor under New Jersey law by terminating the plaintiff's employment, and the Board promptly stopped any further discussion. Immediately following that, the Board voted to terminate Niederhuber's employment contract. No further discussion of the reasons underlying the dismissal occurred, and plaintiff was never afforded a written statement of the reasons.

 The Board's position is that its decision to discharge Niederhuber was triggered solely by his unauthorized absence from school for the two periods on December 1, 1978, and was completely unrelated to his eight-day absence in October, six days of which were also unauthorized. The plaintiff's response is that the Board's stated reliance upon his two-period absence is mere pretext, and that the actual reason for his dismissal was his eight prior absences to observe his religion's holy days. Plaintiff further contends that even if his two-period absence was a factor contributing to the Board's decision to terminate his contract, the Board would never have reached the same decision if it had not also considered his religious absences in addition to his two-period absence.

 The Supreme Court's decision in Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977), set forth the applicable rules for analyzing the evidence in this case. There, the board of education decided not to rehire an untenured teacher for various reasons, some of which violated the teacher's right ...

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