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El-Hewie v. Board of Education of the Bergen County Vocational School Dist.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 24, 2009

MOHAMED F. EL-HEWIE, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF THE BERGEN COUNTY VOCATIONAL SCHOOL DISTRICT, BERGEN COUNTY, RESPONDENT-RESPONDENT.

On appeal from the State Department of Education, Docket No. 225-6/06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2009

Before Judges Lisa, Baxter and Alvarez.

Petitioner Mohamed F. El-Hewie (El-Hewie or petitioner) appeals the termination of his employment with the Board of Education of the Bergen County Vocational School District (Board). On April 10, 2008, the New Jersey Commissioner of Education (Commissioner) adopted the twenty-eight-page February 27, 2008 decision of Margaret M. Monaco, ALJ, that El-Hewie was lawfully terminated for the 2006-2007 school year. The Commissioner further agreed with the ALJ that petitioner failed to prove his claim of discrimination. We affirm.

The following facts were developed at the Office of Administrative Law (OAL) hearing. Petitioner's employment as a teacher of mathematics for the 2005-2006 school year, beginning on November 28, 2005, required him to teach two calculus classes and three statistics classes at the Bergen County Academy (Academy), a highly competitive magnet school. El-Hewie "held the equivalent of a Master's Degree and a Doctorate in Engineering," but did not have any prior teaching experience. El-Hewie's ten-month non-tenured teacher's contract stated that either party could terminate the agreement by giving the other sixty days notice. Additionally, on November 15, 2005, petitioner acknowledged receipt of an employee handbook stating that his "employment may be terminated by the Bergen County Technical Schools District or the Bergen County Special Services School District, as applicable, at any time, with or without cause or notice subject to any collective bargaining agreement."

Because El-Hewie was not a certified teacher, he was registered in the State's Alternate Route Program (ARP) on November 23, 2005. He attended training in the spring of 2006 and received a certificate of completion for the first of three phases. He was discharged from ARP on March 15, 2006, however, when the Human Resource manager for the District learned of his termination. As an ARP participant, El-Hewie was required to participate in a mentoring program.

According to the Academy's Dean of Students, problems with El-Hewie's classroom performance began within two weeks of his arrival. Students began to complain on a daily basis; on one occasion, three-quarters of a calculus class came to her office to do so. Their complaints included that El-Hewie was difficult to understand; that he appeared frustrated or angry when asked questions; that he would seat students according to their test scores, thereby embarrassing them; and that he assigned an excessive amount of homework. Several students and their parents also complained that El-Hewie discriminated against them, singling out individual students for embarrassing and unfavorable attention in class. Students also complained that not only were they not learning anything, but that they were concerned about their performance in standardized tests administered at the end of the year.

As a result of the complaints, petitioner's classroom was observed on several occasions by school administrators, including Dennis Montone, the District's Supervisor of Math and Science. When he observed El-Hewie, he noted that petitioner was "teaching above the kids' head[s]" and did not teach basic skills. As Montone walked around the classroom, a student tapped him on the hand and whispered, "please help us."

Principal Patricia Cosgrove began to receive complaints from students and their families during the second week of December 2005. As a result, she asked "the most seasoned recognized teacher on campus, . . . Joe Holbrook," to mentor and assist petitioner. Although Holbrook had never received formal mentor training, unlike those who were designated as ARP trainers, he had previously mentored approximately fifteen or sixteen math teachers. He met with petitioner nearly every morning, resulting in approximately fifty meetings. Cosgrove did not assign the official ARP math mentors to El-Hewie because she did not believe they could meet his significant needs.

School administrators came to agree that despite El-Hewie's advanced degrees, he was unable to effectively communicate any of his knowledge to the students and entirely lacked basic teaching skills due to either lack of prior teaching experience or other reasons. On February 16, 2006, the principal directed that the process begin to remove petitioner due to "the complaints, the embarrassment, the way [petitioner] treated students, [and his] lack of classroom management." At the end of March, two of petitioner's five classes were assigned to a teacher who had returned after maternity leave. All of petitioner's classes would have been reassigned to her if she had agreed to take the additional classes.

The record also demonstrates that petitioner's second formal evaluation should have been "formative" rather than "summative." The difference between the two is that a summative evaluation is done in paragraph form, whereas a formative evaluation is completed by way of a checklist. Participants in the provisional teaching program typically must undergo a ten-week formative evaluation, a twenty-week formative evaluation and a thirty-four-week summative evaluation. Only the first two evaluations were completed as to petitioner.

At the end of the school year, petitioner refused to submit grades for students in his three remaining classes. This especially impacted his senior students, whose transcripts were delayed in being sent to colleges due to petitioner's refusal to turn in grades.

Commencing on April 13, 2006, El-Hewie began to make broad-brush attacks against school administrators and teaching staff similar to those made in his appeal brief. Specifically, petitioner wrote to the District superintendent and requested that an investigation be conducted into the "deceptive tactics of the administration of Bergen Academy in regards to mentoring new teachers, manipulating students' grades to serve personal ties at the expense of academic proficiency, and not disclosing information upfront on hiring new teachers."

During his OAL hearing, El-Hewie complained that he should have been mentored for the entire first month of his employment, rather than being placed in a classroom, so that he would have understood "the culture and politics of the district." He also maintained, despite the plain language in his employment contract, that provisional teachers could not be terminated unless there was a "very good reason to terminate," meaning that the teacher "did not fulfill his professional obligation." ElHewie's testimony contradicted that of the Board's witnesses as far as meetings, mentoring efforts, and complaints. He denied that anyone had explained lesson plans to him or that he had ever been given lesson plans. El-Hewie insisted that when he asked questions of the mentor assigned to him, he was referred to the vice principal because the mentor would not respond. He also claimed that the mentor frequently lost his temper with him.

At the OAL hearing, petitioner admitted that he was not surprised when his calculus classes were reassigned. He also admitted forwarding letters in District envelopes to the parents of his students stating he would not submit final grades until "each student and family [knew] about the fraudulent management of an educational institution."

On April 28, 2006, petitioner sent a letter to the District claiming that his non-renewal was racially motivated. On October 24, 2006, he was advised that the claim was investigated and was not substantiated.

When El-Hewie appeared before the Board on May 17, 2006, he told them that he did not have any mentor and that he "never saw Holbrook teach anything." He explained that he was "really too exhausted, too loaded, too pressed to teach," and that he never had a chance to complete his lesson plans.

In his brief, El-Hewie asserts the following points of error:

POINT ONE

THE ALJ THREATENED PETITIONER BY MAKING HIM LOSE, THEN MANIPULATED THE FACTUAL FINDINGS AND APPLICATION OF LAW, BY LYING BY MAKING UP FACTS OF HER OWN, OMITTING ESSENTIAL FACTS, EXAGGERATING HEARSAY, AND APPLYING IRRELEVANT LAWS.

POINT TWO

THE ALJ ERRED BY OMITTING THE STATUTORY REQUIREMENT OF HAVING AND EXECUTING THE STATE-APPROVED DISTRICT MENTORING PLAN BEFORE A SCHOOL DISTRICT COULD TERMINATE FOUR TEACHERS OF MATHEMATICS IN THE SCHOOL YEAR 2005/2006 ALONE, WITH FABRICATED MENTORING ASSURANCES AND A BOGUS MENTORING PLAN.

POINT THREE

THE ALJ UNDERMINED PETITIONER'S BURDEN OF PROOF TO DISPARATE TREATMENT BY LYING, EXAGGERATING, OMITTING CRUCIAL FACTS, AND APPLYING IRRELEVANT LAWS, IN ORDER TO EXTRICATE HERSELF FROM AFFIRMING PETITIONER'S CLAIM TO DISPARATE TREATMENT IN PROVISIONAL TEACHER TRAINING AND EMPLOYMENT.

POINT FOUR

THE ALJ, DELIBERATELY AND MALICIOUSLY, OMITTED MULTIPLE CAUSES OF ACTION BY THE SCHOOL ADMINISTRATORS, TEACHERS, AND MANAGERS, WHICH CONSTITUTE FRAUD, CORRUPTION, DECEPTION, CONCEALMENT, NEGLIGENCE, CONSPIRACY, AND FAVORITISM.

POINT FIVE

THE COMMISSIONER'S FINAL DECISION ERRED BY OMITTING THE STATUTORY REQUIREMENTS OF EMPLOYING NOVICE TEACHERS PURSUANT TO N.J.A.C. 6A:9-8.3, 8.4, 8.6, AND 8.7 AND N.J.S.A. 18A:27-4.1A AND IN DISMISSING THE FALLIBILITY OF THE ALJ IN DISTORTING CRUCIAL FACTS AND APPLYING IRRELEVANT LAWS.

POINT SIX

THE FOUR DECISIONS OF THE COMMISSIONER OF EDUCATION, ON JANUARY 17, APRIL 10, MAY 27, AND JULY 8, 2008, CAUSED DELIBERATE AND UNDUE DELAY OF JUSTICE, CORRUPTED THE STATE LAW, AND INVADED APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS AND CONSTITUTE BASIS FOR SUMMARY DECISION BY THE APPELLATE COURT, IN ORDER TO END THE UNDUE DELAY IN ADJUDICATION AND THE IRREPARABLE HARM [INFLICTED] UPON APPELLANT.

We do not reverse an agency's decision unless it is "'arbitrary, capricious or unreasonable' or it is unsupported by 'substantial credible evidence in the record as a whole.'" In re Morrison, 216 N.J. Super. 143, 160 (App. Div. 1987) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In determining whether an agency decision was arbitrary or capricious, judicial review is limited to four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Karins v. City of Atl. City, 152 N.J. 532, 540 (1998) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]

Even if the reviewing court would have come to a different result after evaluating the record, if "'the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)).

I.

As noted by the ALJ, it is well-settled that a board of education has broad "discretionary authority to decide whether any particular teacher should or should not be reengaged." Donaldson v. Bd. of Educ., 65 N.J. 236, 245-46 (1974). When one is engaged as a teacher, "he is fully aware that he is serving a probationary period and may or may not ultimately attain tenure." Id. at 245.

Accordingly, "absent constitutional constraints or legislation affecting the tenure rights of teachers, local boards of education have an almost complete right to terminate the services of a teacher who has no tenure and is regarded as undesirable by the local board." Dore v. Bd. of Educ., 185 N.J. Super. 447, 456 (App. Div. 1982). The board may "reach its conclusion about a non-tenured teacher on a broad base of input received from a variety of people, including members of the public, parents of students and a board member's own knowledge of a teacher." Id. at 454.

The ALJ concluded that the Board's decision not to renew petitioner's contract was supported by substantial, credible evidence and was neither arbitrary nor capricious. She noted that prior to reaching a decision, the Board received input from "the Principal, Vice Principal, District Supervisor of Curriculum, District supervisor of mathematics, guidance counselors, parents, and students." She also cited "deficiencies in petitioner's teaching," including his improper teaching methods, inability to manage a classroom, and inability to foster positive relationships with his students. The ALJ opined that "[w]hile any one of these reasons would be sufficient to justify his non-renewal, a combination of all of these shortcomings plainly supports the Board's action."

Additionally, the ALJ noted that petitioner "fully apprised the Board at his informal appearance in May 2006" of his complaints concerning the lack of mentoring and of the purportedly improper timing of his evaluations. She rejected his claim that "the Board's decision was predicated upon misinformation by school employees concerning the obligations of the alternate route program, his mentoring status and his formative-phase status."

"When error in factfinding of a judge or administrative agency is alleged, the scope of appellate review is limited." Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999). The reviewing court's role is to "survey the record to determine whether there is sufficient credible competent evidence in the record to support the agency head's conclusions." Clowes v. Terminix Int'l, Inc., supra, 109 N.J. at 587.

The reviewing court should generally give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . [give] due regard also to the agency's expertise where such expertise is a pertinent factor.'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). "Deference must be given to those findings . . . which are substantially influenced by [the] opportunity to hear and see witnesses and to have the feel of the case." Cannuscio, supra, 319 N.J. Super. at 347. When the reviewing court is satisfied that the findings are sufficiently supported by the record, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Without offering any support in the record, petitioner takes issue with most of the ALJ's factfinding. Deference must be given, however, to those findings that are substantially influenced by the ALJ's opportunity to hear and see witnesses. Ibid. This is especially appropriate when "the significant evidence is largely testimonial." Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989).

In the ALJ's twenty-eight-page opinion, she carefully and thoroughly summarized the testimony proffered by eleven of petitioner's twenty-one witnesses. She explicitly compared this testimony with that of petitioner himself. Over the course of the six-day hearing, she had the opportunity to observe all the witnesses and determine their credibility. Indeed, the witnesses she found credible offered ample evidence justifying petitioner's termination. Therefore, petitioner has not demonstrated that the ALJ's findings were "'so wholly insupportable as to result in a denial of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960)).

II.

We will now address El-Hewie's arguments set forth in point two and a portion of point four. El-Hewie's second point appears to raise objections to the implementation of the mentoring program and training for provisional teachers. In reliance on Dore, supra, 185 N.J. Super. at 455, the ALJ concluded that the School Board's implementation of the mentoring program and summative, rather than formative, evaluation of El-Hewie were not fatal errors that prevented the Board from terminating him.

In Dore, we said a school board's "lack of strict compliance" with statutory teacher evaluation requirements did not mean a non-renewed teacher had to be reinstated, or that the error allowed financial recovery. Ibid. The statute "does not provide for any penalty in the event a local board fails to follow the pr[e]scribed procedures." Id. at 456.

Applying the Dore principle to the present case, the ALJ found that although petitioner was not assigned an official ARP mentor, the Board made substantial efforts to provide him with even more extensive assistance and mentoring from various sources. Despite these efforts, petitioner's deficiencies persisted. Moreover, the relevant statutes do not purport to limit a board's right to conduct evaluations of its non-tenured teaching staff. See N.J.S.A. 18A:27-3.1 ("Every board of education in this State shall cause each nontenure teaching staff member employed by it to be observed and evaluated in the performance of her or his duties at least three times during each school year but not less than once during each semester."). Failure to precisely adhere to the evaluation format by supplying a formative instead of summative evaluation is not error either.

When petitioner was hired, he was given a ten-month non-tenured teacher's contract stating that either party could terminate the agreement by giving sixty days notice. The Board had no obligation to renew his employment and was sufficiently justified in deciding to do otherwise. Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 577-78 (2009). The Board made significant efforts to help petitioner adapt to a classroom environment. The failure to strictly comply with statutory procedures does not require petitioner's reinstatement.

III.

El-Hewie also contends it was error for the ALJ to find he failed to establish racial discrimination by the Board. He supports his claims with the termination of two recently immigrated Russian teachers, although he acknowledges one of them resigned. He also avers he received no assistance in the classroom, that the mentoring documents were falsified, and that other teachers did not suffer similarly adverse action. He disagrees with the ALJ's conclusion that his poor performance caused his termination, as opposed to discrimination. He further asserts that the ALJ erred in relying on the District's investigation, as those who conducted the investigation were District employees and therefore were not impartial. He alleges the ALJ maliciously undermined his claims by shifting the burden of proof, and that he established that it was more likely than not that a discriminatory reason was the cause of the Board's decision to terminate him.

On the contrary, in assessing petitioner's discrimination claim, the ALJ correctly applied the burden-shifting analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed. 2d 668, 677 (1973). Under this framework, petitioner bears the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. Ibid. To do so, he must demonstrate that: (1) he "belongs to a protected class"; (2) he "was performing . . . at a level that met [his] employer's legitimate expectations"; (3) he "suffered an adverse employment action"; and (4) "others not within the protected class did not suffer similar adverse employment actions." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005).

When a claimant establishes a prima facie case, the burden shifts to the employer to "produce evidence of a legitimate non-discriminatory reason for the employment action." Id. at 171. The employer meets its burden "'[b]y producing evidence (whether ultimately persuasive or not) of non-discriminatory reasons.'" Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 469 (2000) (quotations omitted).

When the employer offers a legitimate, non-discriminatory reason for its adverse action, the burden again shifts to petitioner "to prove by a preponderance of the evidence that the legitimate nondiscriminatory reason articulated . . . was not the true reason for the employment decision but was merely a pretext for discrimination." Andersen v. Exxon Co., 89 N.J. 483, 493 (1982). "An employee successfully meets this burden 'by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Greenberg v. Camden County Vocational and Technical Sch., 310 N.J. Super. 189, 199-200 (App. Div. 1998) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed. 2d 207, 217 (1981)).

Here, the ALJ concluded that even if petitioner satisfied his initial burden, the Board "proffered credible, legitimate, non-discriminatory reasons" for non-renewal. She found that petitioner failed to sustain his burden of demonstrating that the reasons articulated by the Board were pretextual. She opined:

The record is bereft of any evidence to support petitioner's discrimination claim, or any evidence that petitioner was treated different[ly] than other individuals in the alternate route program and, as a result, suffered an adverse employment action. On the contrary, the evidence in the record is overwhelming that [the Board's] actions were predicated on legitimate, non-discriminatory reasons. Clearly, an employee's poor performance in discharging the duties of his position is a legitimate, non-discriminatory reason to terminate the services of the employee.

Even if petitioner had met the initial burden of presenting a prima facie case of discrimination, he did not proffer any evidence that a discriminatory reason more likely motivated the Board's non-renewal decision or that the Board's explanation was unworthy of credence. Ibid. "'[A]n employee's poor performance in discharging his duties is a legitimate nondiscriminatory reason to fire or demote the employee.'" El-Sioufi, supra, 382 N.J. Super. at 174 (quoting Casseus v. Elizabeth Gen. Med. Ctr., 287 N.J. Super. 396, 405 (App. Div. 1996)).

The ALJ was presented substantial credible evidence from multiple witnesses demonstrating that petitioner's teaching performance fell far below the Board's expectations and that he was unresponsive to the assistance offered to him. When presented with this evidence, petitioner merely reiterated his arguments regarding his lack of mentoring. Accordingly, the ALJ properly found that he failed to sustain his burden under the burden-shifting framework applicable to discrimination claims.

IV.

Petitioner's remaining points are so lacking in merit as to warrant no further discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).

Overall, the agency decision in this case was overwhelmingly grounded in substantial credible evidence in the record as a whole, and was not arbitrary, capricious or unreasonable. After reviewing the record, we believe that the decision is a fair and reasonable implementation of applicable law and legislative policies.

Affirmed.

20091224

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