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Varjian v. Midland Park Board of Education

September 28, 2009

LEON VARJIAN, APPELLANT,
v.
MIDLAND PARK BOARD OF EDUCATION, AUGUST DEPREKER, AS SUPERINTENDENT OF THE MIDLAND PARK SCHOOL DISTRICT; AND PATRICIA TERRACIANO, RESPONDENTS.



On appeal from the New Jersey Department of Education, Docket No. 168-6/05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2009

Before Judges Lisa and Baxter.

Appellant, Leon Varjian, a mathematics teacher at Midland Park High School, appeals from the May 27, 2008 final decision of the State Board of Education (State Board) dismissing his petition against the Midland Park Board of Education, its superintendent, and the principal of the high school. Appellant contended that he was discriminated against because of a disability or perceived disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. He contended that since his return to teaching from medical leave for cancer treatment, he was discriminated against because he was assigned fewer honors courses. He was also assigned a different classroom, and the activities of the student organization he advised were reduced. He contended that as a cancer survivor, he was disabled or perceived to be disabled, causing the discriminatory treatment.

After the local board of education rejected appellant's discrimination grievance through the required administrative steps, appellant filed this petition before the New Jersey Commissioner of Education (Commissioner). The matter was transmitted to the Office of Administrative Law (OAL). At the conclusion of appellant's case, in which he was the only witness and in which he entered into evidence numerous documents, the Administrative Law Judge (ALJ) granted respondents' motion to dismiss the petition on the ground that appellant failed to demonstrate a right to relief. See R. 4:37-2(b). With particular reference to the LAD claim, the ALJ found that appellant failed to establish a prima facie case under the McDonnell Douglas*fn1 framework.

After the ALJ issued a written Initial Decision memorializing the dismissal, appellant filed exceptions. On October 15, 2007, after considering the record as a whole and taking into consideration appellant's exceptions, the Commissioner issued a decision adopting the ALJ's Initial Decision. Appellant filed an administrative appeal with the State Board and moved to supplement the record. The State Board denied the motion to supplement, after which it issued its final decision on May 27, 2008 affirming the decision of the Commissioner for the reasons expressed by the Commissioner. This appeal followed.

Appellant argues that the ALJ, Commissioner, and State Board erred in finding a lack of jurisdiction to adjudicate his LAD claim and in finding that he failed to establish a prima facie case of discrimination. He further argues that the ALJ misapplied the governing standards in granting a Rule 4:37-2(b) motion for involuntary dismissal, and that the ALJ, Commissioner, and State Board erred in finding facts not supported by record evidence. Finally, he argues that the State Board erred in denying his motion to supplement the record. We reject these arguments and affirm.

Appellant has taught mathematics at Midland Park High School since 1988. The school offers three levels of mathematics courses: basic, college preparation (CP), and honors, which includes advanced placement (AP) calculus. Without dispute, appellant is an excellent teacher. For many years through the 1999-2000 school term, he taught only CP and honors courses, and taught all honors pre-calculus courses. Appellant prefers to teach these high level courses, although his contract is to teach mathematics, not to teach any particular mathematics course.

In 1997, appellant began advising the student senate. From that time through the 1999-2000 school term, all student senate activities were approved, including used book sales that occurred six to eight times annually.

In February 2000, appellant was diagnosed with nonHodgkin's Lymphoma, a form of cancer. He underwent surgery and missed the remainder of the school term for medical treatment. Because of uncertainty as to when he would return, the administration determined not to utilize substitute teachers for his classes, but instead assigned other mathematics teachers in the school to take them over. Although those teachers were qualified by their education and certifications to teach the higher level courses, their preference was not to do so.

Appellant returned to his teaching duties in September 2000. The administration made a determination that it was better school policy to have more than one teacher assigned to teach the higher level mathematics courses. The administration does not dispute that the impetus for this policy was appellant's absence, under circumstances in which he was the only individual in this relatively small school assigned to teach those courses.

Appellant contended that since his return to teaching he suffered harassment because he was assigned to teach fewer honors courses, he was assigned a different classroom, and his capacity to advise the student senate was restricted. His pay was not reduced, and he never contended that his contract was violated, other than because of the alleged discriminatory treatment. He never needed or requested any accommodations for a disability after his return to work. Appellant recognized the managerial prerogative of the administration to assign teachers within their contracted subject matters, as it saw fit.

However, that prerogative does not allow for assignment decisions based upon discrimination against a ...


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