IN THE MATTER OF THE TENURE HEARING OF SUSAN PAREZO, SCHOOL DISTRICT OF THE BOROUGH OF LAKEHURST, OCEAN COUNTY.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2013
On appeal from the State Department of Education, Docket No. 646-11/10.
Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for appellant Susan Parezo (Jason E. Sokolowski, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Commissioner of Education (Angela L. Velez, Deputy Attorney General, on the statement in lieu of brief).
Citta, Holzapfel & Zabarsky, attorneys for respondent Lakehurst Borough Board of Education (Steven A. Zabarsky and Christian E. Schlegel, on the brief).
Before Judges Axelrad, Nugent and Haas.
Appellant Susan Parezo, formerly a teacher in the Borough of Lakehurst School District, appeals from the Acting Commissioner of Education's final decision upholding charges against her of unbecoming conduct, and dismissing her from her tenured teaching position. Appellant contends that the Acting Commissioner's decision is unsupported by substantial credible evidence in the record and violates statutory law. Appellant also contends that during an administrative law hearing, the judge's in camera examination of two children violated appellant's right to due process. Lastly, appellant challenges her dismissal as contrary to the doctrine of progressive discipline. We reject those contentions and affirm.
Appellant was employed for more than twenty years as a health and physical education teacher with respondent Borough of Lakehurst School District (the District) before the District filed the tenure charges that led to her dismissal. During her tenure she taught physical education "to every student in the school, pre-k[indergarten] through eighth grade for the entire school year, " and health education for half of the school year. On September 30, 2010, the District, through its superintendent, filed tenure charges against her alleging that she humiliated and embarrassed a student (charge one), and that she later made a false statement to the superintendent by denying the incident (charge two). Appellant disputed the charges, which were then referred to the Office of Administrative Law (OAL) where a five-day hearing took place before an administrative law judge (ALJ). The parties presented the following proofs at the OAL hearing.
On Friday, June 11, 2010, during gym class for teacher Kathleen Bixby's fourteen second-grade students, appellant asked four or five of the children to help her remove colored and laminated shapes from the gym wall. The geometric shapes, which were made from construction paper, had been taped to the gym wall with single-sided tape that was looped to make it double-sided.
According to the account of the events that appellant later gave to the school principal, as appellant and the children began peeling tape from the shapes, "[t]he children were laughing as she placed tape on herself and pretended to place tape on [a student's] cheek since [the child] had been standing in front of her." The child, Michael, was seven years old.
Appellant also reported to the principal that "another student attempted to place tape on [Michael's] mouth as well, but [appellant] . . . stopped the student right away." Although appellant pushed the other student's hand away from Michael's lips, appellant admitted that she allowed "several students to place balls of tape on [Michael] while he stood in the center of the gym." No other student had tape placed on them. Appellant never admitted to the principal that she put tape on Michael.
When the second grade teacher, Kathleen Bixby, went to the gym to take her fourteen second-graders back to her class the children were not waiting in line. Bixby heard what she considered to be "chaotic sounds" coming from the kids in the gym. Bixby looked through the entrance to the gym and "observed [appellant] removing tape from one of [her] student's . . . mouth." Feeling a sense of uncertainty and confusion, almost disbelief, Bixby turned around and walked to the end of the hallway. After composing herself, she returned to the gym and lined up her students.
Michael and another student, Alex, were the last two students to come out of the gym. Noticing that Michael looked "quite shy, had his head down, and seemed embarrassed, " Bixby walked to the back of the line where Michael and Alex were standing, and asked them what happened. Alex said that appellant "was taking tape off of [Michael's] mouth." When Bixby asked how the tape got on Michael's mouth, Alex said that appellant put it there. Bixby asked Michael why appellant put the tape on his mouth. Michael said, "[m]aybe because I talk too much." Bixby subsequently reported the incident to the superintendent.
Michael and another student, who testified in camera outside of the presence of the attorneys, also said that appellant had taped Michael's mouth. The ALJ asked questions that had been prepared by the attorneys, and the witnesses spoke into microphones which transmitted their testimony into the courtroom where the attorneys listened. When the ALJ asked if Michael knew why he was in court, Michael said "because [appellant] put tape on my mouth." Michael explained that during the 2009-10 school year he went to gym classes two days each week. On June 11, appellant asked Michael and three other students if they would take the shapes off the wall. The students gave the shapes to appellant who, according to Michael, started to put tape on him, first on his left arm, then on his shoulder. Michael began to get scared. Another student who saw appellant put tape on Michael's arm thought she was joking, so the student put tape on Michael's other shoulder. Appellant then put tape on Michael's mouth. According to Michael, appellant put the tape over his entire mouth and pressed on it. Michael could not move his lips under the tape.
Michael further testified that shortly after appellant taped his mouth, Michael's second grade teacher, Mrs. Bixby, walked in, and appellant removed the tape from his mouth. Appellant hurt Michael when she removed the tape. Two of Michael's friends were giggling, pointing at him, and laughing. Appellant did not put tape on anyone else.
In response to other questions from the ALJ, Michael explained that he did not like appellant before she taped his mouth because sometimes she would make him "sit out on [his] favorite things even if [he] wasn't doing anything." Michael claimed appellant would not make anyone else sit out. Michael felt that appellant picked on him.
Michael's classmate, Jayne, who also testified in camera, was one of the students that appellant asked to take the shapes off the wall. According to Jayne, appellant said: "Just put the tape on [Michael's] shoulder." Jayne was surprised, "[b]ecause there was a garbage can in [appellant's] office." Appellant did not tell the students to put tape on anyone else. Jayne put tape on Michael's left shoulder, and then appellant put tape across Michael's mouth. Jayne said that another student was laughing and wanted to put another piece of tape on Michael's mouth, but appellant said the student could not do that. When appellant removed the tape, it left a red mark on Michael. According to Jayne, Michael reacted by laughing.
Shana, an eighth-grader, testified by telephone at appellant's request. In response to the ALJ's questions, Shana testified that she was in the gym waiting to get permission slips from appellant. Appellant had "the little kids" take the tape off the wall. Shana saw appellant and the other kids "taking the tape off the back of the shape, and . . . sticking it on this one kid[.]" According to Shana, they were playing around and "the kid" was laughing. Shana recounted that appellant "put a piece of tape next to the kid's cheek, like kind of on it, but not really." At that point, another teacher walked into the doorway and "looked at [appellant] kind of in a dirty look like she was upset with something." When that happened, appellant had the other children take the tape off the other student. The kids then left the gym.
When questioned further, Shana said she did not actually hear appellant instruct the children to put tape on another student. Rather, "they were kind of playing around, and one kid put it on and then the other kid decided to do it." Appellant did not attempt to stop them, "but it wasn't like they were doing it in a bullying or mean type of way. ...