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Kolodziej v. Board of Education of Southern Regional High School Dist., Ocean County

Superior Court of New Jersey, Appellate Division

July 25, 2014

DARCY J. KOLODZIEJ, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF SOUTHERN REGIONAL HIGH SCHOOL DISTRICT, OCEAN COUNTY, RESPONDENT--RESPONDENT

Submitted: June 24, 2014.

Approved for Publication July 25, 2014.

On appeal from the Commissioner of Education, Docket No. 188-7/07.

Zazzali, Fagella, Nowak, Kleinbaum & Friedman, P.C., attorneys for appellant ( Aileen M. O'Driscoll, of counsel and on the briefs).

Berry Sahradnik, Kotzas & Benson, P.C., attorneys for respondent Board of Education of Southern Regional High School District, Ocean County ( Mathew B. Thompson, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education ( Caroline Jones, Deputy Attorney General, on the brief).

Before Judges PARRILLO, MESSANO and ALVAREZ. The opinion of the court was delivered by PARRILLO, P.J.A.D.

OPINION

Page 764

[436 N.J.Super. 548] PARRILLO, P.J.A.D.

Petitioner Darcy Kolodziej appeals from a final decision of the Commissioner of Education, finding that she had not attained tenure, due to an interruption in service because of a year-long maternity leave, when she was laid off in April 2007, and thus that she was not entitled to be rehired when a position became available in August 2007. We disagree that petitioner's maternity leave interrupted her period of service to achieve tenure, and remand to the agency to determine whether petitioner had attained the seniority to be automatically rehired when the position became available and, if so, the measure of her damages.

Petitioner began working as a full-time health and physical education teacher for the Southern Regional High School Board of Education (Board) in 2002. She was employed in this capacity for the complete 2002-2003, 2003-2004 and 2004-2005 academic years. On September 1, 2005, petitioner began a Board-approved unpaid maternity leave, which lasted until June 30, 2006. Petitioner returned to work on September 1, 2006 and was continuously employed through the end of the 2006-2007 school year. On April 27, 2007, petitioner received notice that her position with the Board would be terminated effective September 1, 2007, pursuant to a reduction in force (RIF) plan.

During her first three years of employment, petitioner had been evaluated as required for the granting of tenure status under N.J.S.A. 18A:28-5(b). However, as of the end of the 2006-2007 school year, the Board had not granted petitioner tenure. Thus, [436 N.J.Super. 549] in August 2007, when a physical education position became available, petitioner was not among those considered to fill it; the position instead went to another teacher, who had been granted tenure and placed on a recall list as part of the RIF plan.

On July 2, 2007, petitioner filed an appeal with the Department of Education (DOE), claiming that she was entitled to tenure protection and status under the RIF plan. The case was sent to the Office of Administrative Law (OAL) for hearing. In a series of partial summary decisions, the administrative law judge (ALJ) found that the petitioner had acquired tenure

Page 765

before the RIF plan and thus that her tenure rights had been violated under its provisions. The ALJ ordered that petitioner be reinstated to her former position as a physical education teacher and that she be granted back pay of $137,212 for the 2007-2008, 2008-2009 and 2009-2010 school years as well as seniority credit for those years. In a final decision of April 5, 2013, the ALJ confirmed all these prior decisions, and noted ...


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