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Domenick Malinconico v. State-Operated School District of the City of Newark

December 10, 2010

DOMENICK MALINCONICO, PETITIONER-APPELLANT,
v.
STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY, RESPONDENT-RESPONDENT.



On appeal from the State Department of Education, Docket No. 260-9/09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 27, 2010

Before Judges Fuentes and Nugent.

Appellant Domenick Malinconico appeals pro se from the final decision of the Commissioner of Education, adopting the initial decision of the Administrative Law Judge (ALJ) dismissing appellant's petition for lost wages and emotional distress. We affirm.

Appellant began substitute teaching for respondent State Operated School District for the City of Newark (the "District") in 1984. On June 9, 2008, the District sent appellant a letter of "Reasonable Assurance of Employment" informing him the District was "placing [him] on [the] active Per Diem list for the 2008 - 2009 school year" and that he would be contacted "for work when school commences on September 8, 2008 on an as needed basis." On January 21, 2009, appellant spoke with the substitute teacher placement administrator who told him Ron Hale, the District's risk manager, instructed her to place appellant on inactive status. The administrator could provide no explanation for the status change.

Seeking an explanation for his placement on inactive status, appellant had an attorney write to the Executive Director of the District's Human Resources Services on January 27, 2009. The attorney received no response. On May 4, 2009, the attorney again wrote to the Executive Director of the District's Human Resources Services. The attorney confirmed that "Mr. Ron Hale indicated that Mr. Malinconico would not be returned to the active list as a substitute teacher," and requested "a written explanation as to why [Mr. Malinconico] has been removed from the active list." Neither appellant nor the attorney received a response to the letters.

Receiving no response to the letters, appellant filed a complaint in Superior Court on July 30, 2009, seeking compensation for lost wages and damages for emotional distress. The complaint was dismissed for lack of subject matter jurisdiction on December 4, 2009.

While the Superior Court action was pending, appellant filed on September 25, 2009, a petition of appeal with the Department of Education, but did not serve it on the District. Appellant subsequently perfected service and filed a completed petition on October 5, 2009. In his petition, appellant claimed that he was entitled to lost wages as a result of improperly being placed on inactive status from January 21, 2009 through June 8, 2009.*fn1 Appellant also claimed he was entitled to damages for emotional distress.

Appellant's petition was forwarded to the Office of Administrative Law on November 19, 2009. The ALJ conducted a pre-hearing telephone conference on December 7, 2009, set a briefing schedule for motions for summary decision, and scheduled a hearing for February 18, 2010. Appellant subsequently filed a petition for emergent relief which was denied.

The ALJ issued an initial decision on February 1, 2010, granting the District's motion for summary disposition, and dismissing the petition. The ALJ held that the petition was not filed within ninety days of appellant "first learn[ing] that he had been placed on 'inactive status' on January 21, 2009," as required by N.J.A.C. 6A:3-1.3(i). Acknowledging limited circumstances under which the "90-day rule" may be relaxed, the ALJ noted that "[t]he petitioner has not come forward with any argument that the right he is asserting, i.e., to be called as a substitute for work on a daily basis, has constitutional implications or promotes some wider public interest," and therefore found no basis to relax the 90-day rule.

The ALJ also addressed the substantive claims in the petition. The ALJ held that the June 2008 letter of "Reasonable Assurance of Employment" did not create a binding contract between the District and appellant and did not bind the District to call appellant for work. Concluding that appellant had no contractual or statutory right to be called to work as a substitute teacher, the ALJ ruled there was no statutory or regulatory authority that permitted the award of money damages to appellant.

Appellant filed exceptions to the ALJ's decision. On March 11, 2010, the Commissioner of Education in a written decision adopted the Initial Decision of the ALJ as the Final Decision in the case. The Commissioner explained:

In the Initial Decision on the merits, the Administrative Law Judge (ALJ) concluded that petitioner's appeal was untimely, in that it was filed past the 90 day period allowed by N.J.A.C. 6A:3-1.3(i). More specifically, the ALJ found that petitioner admittedly learned of his removal from the active substitute list on January 21, 2009, but did not file his petition until October 1, 2009. After reviewing the Initial Decision, the record, and the exceptions submitted by the ...


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