On appeal from the Department of Education, Docket No. 411-8/10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2012
Before Judges Parrillo and Maven.
Appellant Beatriz Ashe appeals from the October 14, 2011 decision of the Commissioner of Education (Commissioner) denying her motion to reinstate her petition of appeal challenging her placement on the school district's seniority list, which she had previously withdrawn with prejudice. We affirm.
Some background is in order. Appellant was a tenured Spanish teacher in the State-operated school district of the City of Paterson (District). In May 2010, pursuant to a reduction in force (RIF) implemented in the 2010-2011 school year, the District eliminated hundreds of teaching positions, including appellant's, based on their level of seniority as reflected on a list developed by the District. Appellant, along with approximately ninety other affected tenured teachers, filed petitions of appeal with the Commissioner challenging their termination and alleging that their placement on the seniority list was incorrect.
The matters were transmitted to the Office of Administrative Law (OAL), where they were consolidated. Extensive discovery ensued. Over the course of the next eleven months, the parties reviewed multiple drafts of an evolving seniority list, based on employment records produced by the District and other information provided by the petitioners. On August 1, 2011, the parties agreed that the finalized seniority list for each position affected by the RIF was accurate and, through counsel, represented their agreement to the Administrative Law Judge (ALJ) hearing the petitions. In reliance upon the completed seniority list, the District budgeted the approximate amount of $500,000 for settlement of any claims that had merit, since it became evident that the tenure rights of some of the petitioners had been violated.
In further reliance, counsel for petitioners notified those clients who had no valid claim to any position based on their placement level on the agreed-upon seniority list and sought their consent to withdraw their petitions of appeal. Because she was so low on the list, appellant and her counsel concluded that she had no valid claim and consequently withdrew her petition with prejudice prior to the administrative hearing. In an August 15, 2011 letter to the ALJ, appellant's counsel informed:
As a result of the course of discovery and the finalization of the corrected 2010 seniority lists by the Paterson School District, my client and I have concluded that there is no basis for a claim to relief in her case for the 2010-11 school year. Accordingly, pursuant to N.J.A.C. 1:1-19.2, the petition in this matter is hereby withdrawn with prejudice as to any claim for the 2010-11 school year. This withdrawal is without prejudice to any and all tenure, seniority and/or recall rights which my client may have as to future school years and those rights are not waived by this withdrawal.
Based on this request, appellant's petition was withdrawn with prejudice, effective August 15, 2011.
Thereafter, appellant's counsel was told by another of his clients that the seniority list as it pertained to District Spanish teachers may be incorrect based on employment history information contained in questionnaires prepared by the Paterson Education Association (PEA) and filled out by petitioners in advance of their filing their petitions of appeal. Apparently, the completed questionnaires had not previously been shared between the affected teachers and their counsel nor had the PEA provided them to the District until ordered to do so by the ALJ on September 15, 2011. Consequently, on September 7, 2011, appellant moved before the Commissioner to vacate her withdrawal and reinstate her petition pursuant to N.J.A.C. 1:1-19.2(c).
In a letter opinion of October 14, 2011, the Commissioner denied the motion, reasoning:
The petitioner's voluntary withdrawal occurred after several months of discovery during which the District had produced its employment records and multiple versions of the evolving seniority list. Certainly, the petitioner was not required to accept the District's final seniority list as accurate nor was she prohibited from continuing to pursue her claims through the contested case process at the Office of Administrative Law (OAL). But instead, petitioner and her counsel concluded that there was no valid basis for her claim and she freely opted to withdraw her petition prior to a hearing at the OAL. More importantly, petitioner voluntarily withdrew her petition with respect to any claims related to the 2010-2011 school year with prejudice. A withdrawal with prejudice amounts to a final disposition on the matter and effectively bars any subsequent litigation of the same claim. See ...