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Kelly v. Board of Education of the Middlesex County Vocational Technical School Dist.

March 28, 2008


On appeal from a final decision of the State Board of Education, Docket No. SB #45-06.

Per curiam.


Argued March 4, 2008

Before Judges Parrillo and Baxter.

Petitioner Eileen Kelly appeals from a May 4, 2007 final agency decision of the State Board of Education (Board) in which the Board affirmed a determination rendered by the Commissioner of Education on November 9, 2006. The Board concluded that Kelly's employer, the Board of Education of the Middlesex County Vocational Technical School District (the District), properly calculated Kelly's seniority during a legitimate reduction in force (RIF). In so doing, the Board rejected Kelly's contention that she had accumulated more seniority as an instructor of Licensed Practical Nursing (LPN) than the employee whom the District retained. We affirm.


Kelly was hired by the District on January 2, 1992, as an instructor of nursing assistants (NA) through the Joint Training Partnership Act (JTPA), a federally-funded program. Shortly after she was hired, Kelly obtained an emergency certificate as a teacher of Production, Personnel and Service Occupations: Nursing Assistant (NA).

In September 1992, during the next school term, Kelly signed a second written contract with the District for employment as a NA instructor. Shortly after the beginning of that school year, the District learned that a change in the federal regulations governing the JTPA program had added additional requirements for NA instructors. In particular, such instructors were required to possess training or experience in geriatrics in order to obtain a permanent certificate as a NA instructor. Accordingly, the Assistant Superintendent of Schools, Joseph C. Colombo, arranged for Kelly and one other NA instructor to swap positions with two LPN instructors, so that Kelly and the other NA instructor could gain the required experience in geriatrics. Accordingly, two LPN instructors were transferred to the NA program while Kelly and the other NA instructor were transferred to the LPN program. Kelly began as an instructor in the LPN program in October 1992. At the time she began the temporary assignment in the LPN program in October 1992, there were no vacant teaching positions available in the LPN program.

When Kelly began her teaching responsibilities in the LPN program in October 1992, she still did not possess either a provisional or emergency certificate as a LPN teacher, and instead continued to rely upon her K-12 substitute teacher certificate, which she had renewed on October 30, 1992. Before beginning her work as a full-time LPN instructor in mid-October 1992, Kelly asked Colombo and the Director of Health Occupations, Betty Moore, whether her credentials were satisfactory for her to serve in the capacity of teacher of LPN, and both assured her that she was properly credentialed.

Although Kelly's transfer into the LPN program in October 1992 was intended to be temporary in nature consistent with the "swap" of positions we have described, a permanent full-time position became available in the LPN program in November 1992 due to a retirement. On November 11, 1992, Kelly applied for that position. On December 8, 1992, Colombo recommended that Kelly be appointed to the position of instructor in the LPN program to replace the retiree. The District hired her and she executed a formal written contract of employment for the position of LPN instructor, effective December 14, 1992. At the same time, the District hired Rosemary Simmons-Sestito as a LPN instructor, but awarded Simmons-Sestito a retroactive start date of December 1, 1992. For a reason that is not explained in the record, Kelly received the later start date of December 14, 1992, even though both were hired during the December 10, 1992 meeting of the District's board of education.

In April 1996, the human resources department submitted a work history data sheet to all of the District's employees for purposes of verifying the calculation of seniority. Kelly made a clerical change on that data sheet, but did not object to or revise the entry that showed she was employed in the capacity of a NA instructor from the date of her initial employment in January 1992 through December 14, 1992, at which time she became employed as an instructor in the LPN program.

By the end of December 1992, Kelly had completed all course requirements for attainment of a standard instructional certificate as a teacher of NA and LPN. She received her standard certificate as a teacher of NA in March 1993 and received her standard certificate as a teacher of LPN two months later in May 1993. She continued to work as an instructor of LPN from December 14, 1992, until May 9, 2001. On May 9, 2001, she received a notice of reduction in force and her position was abolished. The District determined that Simmons-Sestito had more seniority than Kelly. Accordingly, the District retained Simmons-Sestito but terminated Kelly as a result of the RIF. The District based the seniority calculation on Simmons-Sestito's earlier start date and on Kelly's use of forty-three workdays for health and bereavement purposes, which reduced her seniority as a LPN instructor accordingly.

In an effort to mitigate her damages, Kelly accepted a position as an adjunct nursing instructor that began at some point between mid-September and December 2001. When the next school year began in September 2002, Kelly accepted a one-year full-time position at the University of Medicine and Dentistry of New Jersey (UMDNJ) as a nursing instructor.

During that school year, on November 13, 2002, the District notified Kelly that she was being recalled to commence employment because a vacancy had recently occurred. Kelly notified the District on November 15, 2002, that she was under contractual obligation with UMDNJ and was unable to leave immediately. On November 20, 2002, the District advised Kelly that it was offering the position to the next individual on the seniority list because she had declined its offer of employment.

On June 25, 2001, prior to receiving the recall notice in November 2002, Kelly filed a verified petition with the Commissioner in which she challenged the determination of seniority and alleged that she had more seniority than Simmons-Sestito. After the District filed an answer, the matter was transferred to the Office of Administrative Law (OAL) as a contested case, where hearings were held in the spring of 2005. An administrative law judge issued a decision in Kelly's favor, to which the District filed exceptions. On November 9, 2006, the Commissioner issued a decision that rejected the ALJ's conclusion that "fundamental fairness" barred the District from awarding Kelly less seniority than Simmons-Sestito. Kelly appealed to the State Board of Education, which affirmed the decision of the Commissioner.

On appeal, Kelly argues that: the decision of the Commissioner is not based upon substantial and credible evidence in the record; the Commissioner's calculation of seniority was erroneous as a matter of law; the District was equitably estopped from terminating her; and she had a legal obligation to mitigate her damages by finding new employment and should not have been ...

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