Opinion
DOCKET NO. A-1409-13T2
11-18-2015
IN THE MATTER OF THE TENURE HEARING OF BRIGITTE GEIGER, SCHOOL DISTRICT OF THE TOWNSHIP OF MOUNT OLIVE, MORRIS COUNTY, and IN THE MATTER OF THE TENURE HEARING OF SHARON JONES, SCHOOL DISTRICT OF THE TOWNSHIP OF MOUNT OLIVE, MORRIS COUNTY.
Alan L. Zegas argued the cause for appellants Brigitte Geiger and Sharon Jones (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the brief). Marc H. Zitomer argued the cause for respondent Board of Education of the Township of Mount Olive (Schenck, Price, Smith & King, LLP, attorneys; Mr. Zitomer, of counsel; Mr. Zitomer and Joseph L. Roselle, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa and Currier. On appeal from the Commissioner of Education, Agency Docket Nos. 106-4/12 and 107-4/12. Alan L. Zegas argued the cause for appellants Brigitte Geiger and Sharon Jones (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the brief). Marc H. Zitomer argued the cause for respondent Board of Education of the Township of Mount Olive (Schenck, Price, Smith & King, LLP, attorneys; Mr. Zitomer, of counsel; Mr. Zitomer and Joseph L. Roselle, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the brief). PER CURIAM
Appellants Brigette Geiger and Sharon Jones were dismissed from their positions as teachers with the Mount Olive School District for conduct unbecoming a teaching staff member based on a claim of two students that the teachers made racially insensitive statements. Appellants denied making the statements, but at the conclusion of a nine-day hearing, an administrative law judge (ALJ) found credible the testimony of G.H. (Georgia) and Z.C. (Zenobia), the high school students who claimed to have overheard the statements. An Assistant Commissioner of Education adopted both the ALJ's findings and the recommendation that Geiger and Jones be dismissed. In appealing this final agency decision, Geiger and Jones argue, among other things, that the credibility findings were arbitrary, that their due process rights were violated because of what they claim was a deficient internal investigation, and that adverse inferences should have been drawn against their accusers. We reject those arguments but remand for further consideration of appellants' contention that the discipline imposed was excessive.
These are fictional names.
The matter was delegated to an assistant commissioner pursuant to N.J.S.A. 18A:4-34.
Appellants Geiger and Jones were health and physical education teachers at Mount Olive High School for approximately thirty-one and twenty-eight years, respectively, when, on Friday, March 2, 2012, two twelfth-graders, Georgia and Zenobia, reported to Vice-Principal James Kramer that, while they were changing in the girl's locker room, they heard Geiger and Jones making inappropriate comments in an adjacent office. Although their versions varied as to some surrounding circumstances, the substance of their complaint was consistent.
There seems to have been no dispute that, due to the configuration of the locker room, the teachers could not see these two students and had no reason to believe anyone else was present. According to Georgia, the teachers were "yelling really loud," with Jones saying, "[t]hese Negroes think they're fucking tough shit," and Geiger responding, "Yeah, that's what they are. They're fucking Negroes, Negroes, Negroes, Negroes." In her testimony, Zenobia said that the two teachers said the same thing with the exception of the word "fucking." Georgia and Zenobia told this to a fellow student, L.W., and then the three concluded the vice-principal should be informed. In a short time, the vice-principal met with Georgia and Zenobia, who repeated what they claimed to have heard. They were later summoned to the vice-principal's office and asked to give written statements, which they prepared separately. The statements, although largely consistent with what the girls had verbally reported earlier and with their later testimony, had slight differences regarding minor aspects of the incident.
The vice-principal provided the written statements to Principal Kevin Stansberry, who reviewed them with Susan Miranda, Director of Guidance. Stansberry and Miranda also met with Georgia and Zenobia, who repeated the story in a manner consistent with their written statements.
The principal met with Georgia and Zenobia on Monday because he "wanted to make sure their stories didn't change over the weekend." Their versions did not change. The principal also reviewed a surveillance video of the hallway outside the locker room that suggested Georgia and Zenobia were together in the locker room for approximately five minutes.
Principal Stansberry also met with Geiger and Jones on Monday, March 5; their union representative and Miranda were present as well. Jones at first stated she had no recollection of such a conversation with Geiger. Upon further questioning, she stated that she might have discussed with Geiger an incident the previous day concerning the use of a cellphone by Ze.C., a female black student, but Jones denied making the statements attributed to her. The principal thought she was evasive. During her interview, Geiger recalled a conversation with Jones that included negative statements about students but denied using the language reported by Georgia and Zenobia. The principal thought Geiger "was holding back in terms of the details of [the] conversation," and he ultimately placed the two teachers on administrative reassignment pending further investigation.
The next day, Geiger, Jones and their union representative met with Dr. Larrie Reynolds, the school superintendent, as well as Stansberry and Miranda. According to Reynolds, the purpose of the meeting was "to give the teachers an opportunity to tell their side of the story." Geiger and Jones, however, refused to respond to questioning without counsel present and, for that reason, asked for a postponement. Reynolds denied the request, advising the teachers that his internal investigation could not proceed if attorneys were involved; he further asserted that if Geiger and Jones refused to give their side of the story, he would assume the allegations were true. After further discussion — including Reynolds' assurance that, though serious, he did not view the allegations as "career ending" — both Geiger and Jones maintained they would not respond without counsel.
Reynolds directed that the investigation continue, and the girls were later interviewed by the school board's attorney. Their stories remained unchanged.
On March 22, 2012, Reynolds filed charges against Geiger and Jones, seeking their dismissal for conduct unbecoming a teaching staff member. The dispute was transferred by the Commissioner of Education to the Office of Administrative Law, where an ALJ conducted a lengthy hearing and eventually recommended that Geiger and Jones be dismissed from their positions as tenured teachers. The Assistant Commissioner ultimately adopted those recommendations for reasons set forth in a written opinion.
In appealing the final agency decision, Geiger and Jones argue: (1) the factual findings were arbitrary and not rationally based on the evidence; (2) their due process rights were violated; (3) the ALJ erred in denying their motion to dismiss or to draw an adverse inference based on the school district's failure to preserve evidence or provide discovery; (4) the ALJ erroneously shifted the burden of proof by seeking from Geiger and Jones an explanation for the students' accusations; (5) the ALJ erred by failing to rule on their motion for an adverse inference against Georgia for her failure to respond to their subpoena; and (6) even if the charges could be upheld on this record, the discipline imposed was arbitrary and excessive. We find no merit in the first five arguments, but, in considering the sixth, we agree the discipline imposed was excessive.
I
In attacking the ALJ's credibility determinations, which the Assistant Commissioner adopted, Geiger and Jones contend Georgia and Zenobia's testimony should have been viewed with great caution because they are children. They also argue the ALJ disregarded inconsistencies in the students' "various version[s] of events." Specifically, Geiger and Jones claim there were inconsistencies concerning some of the circumstances surrounding the event, including, among other things: whether the girls saw the teachers as they entered the locker room; whether the teachers visibly expressed shock when noticing the girls after making the statements; what the girls said to one another after hearing the comments; and whether the teachers used profanity during the exchange. Geiger and Jones also refer to alleged inconsistencies or inaccuracies regarding the girls' encounter with another teacher before their meeting with Reynolds that, in Geiger and Jones's view, constituted "an implied admission of collusion for the upcoming meeting with administrators." And the teachers argue the ALJ erred by relying on the statements of administrators finding credible Georgia and Zenobia's statements. We find that these arguments are without sufficient merit to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and add only the following comments.
We reject this last aspect of the teachers' arguments out of hand because it mischaracterizes the ALJ's determination. Although the ALJ did mention that Stansberry and Reynolds testified they found the girls credible, the ALJ did not rely on those credibility assessments in making her own credibility determination. Rather, the ALJ stated that she found the girls' versions "were corroborated by the witnesses to whom they reported their version of events as well as the documentary evidence of their statements." In short, the ALJ's statement simply reflects that the girls' testimony was consistent with that of Stansberry, Miranda and Reynolds regarding what the girls reported to them.
Judicial review of administrative action is limited. In re Herrmann, 192 N.J. 19, 27 (2007). A final agency decision "will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. Our role is limited to determining
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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.
[Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995).]
A reviewing court will not "substitute its own judgment for the agency's even though the court might have reached a different result." In re Carter, 191 N.J. 474, 483 (2007); see also In re Stallworth, 208 N.J. 182, 194 (2011). "This is particularly true when the issue under review is directed to the agency's special 'expertise and superior knowledge of a particular field.'" Id. at 195 (quoting Herrmann, supra, 192 N.J. at 28). In adhering to this approach, our appellate courts will not "disturb [an ALJ's] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. Dep't of Human Servs., 184 N.J. 367, 384 (2005). "Because [the factfinder] 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Similarly, an "agency head may not reject or modify [an ALJ's] findings of fact as to issues of credibility of lay witness testimony" without demonstrating the findings were "arbitrary, capricious or unreasonable or [were] not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c).
Inconsistencies can be found in a comparison of the students' written statements, the notes taken by Kramer and Miranda of their meetings with the students, and the students' testimony at the hearing. But the minor inconsistencies cited lack sufficient materiality to overcome the deference we owe the credibility determinations made by the ALJ and adopted by the Assistant Commissioner.
For example, Geiger and Jones contend that Georgia and Zenobia gave "false and inconsistent statements" regarding whether they saw the teachers when they entered the locker room. Although the girls' written statements and Kramer's notes do not mention whether Geiger and Jones were in the locker room when the girls entered, Kramer's March 15 notes state that the girls reported that they saw both teachers in the offices when they entered the locker room. At the plenary hearing, Georgia testified that when she entered the locker room she saw Jones in her office but not Geiger, and she did not remember telling Kramer she saw Geiger. Zenobia testified she did not see the teachers when she entered the locker room and did not recall telling Kramer she had. And a surveillance video showed Geiger entering the locker room after the girls had already entered. While Geiger and Jones characterize these inconsistencies as "deliberate[] lying under oath," they were not so material as to compel a holding from this court that the ALJ was required to reject the entirety of Georgia and Zenobia's testimony. Inconsistent recollections by eyewitnesses are hardly uncommon and they do not necessarily compel — particularly when they do not go to the heart of the matter — rejection of everything that eyewitness said.
Edith Wharton famously wrote in the opening sentence of Ethan Frome (1911): "I had the story, bit by bit, from various people and, as generally happens in such cases, each time it was a different story." Contrary to what is argued here, variations do not warrant rejection of eyewitnesses accounts; if anything, suspicions may be more justifiable when eyewitnesses present near identical versions.
Having closely examined the evidence in light of the teachers' arguments, we find no principled reason for intervening or otherwise rejecting the credibility findings upon which the final agency decision was based. Because the ALJ had the opportunity to hear the witnesses and observe their demeanor, her credibility determinations were entitled to deference not only by the Assistant Commissioner, N.J.S.A. 52:14B-10(c), but also by this court, State v. Locurto, 157 N.J. 463, 474 (1999).
We also briefly observe the lack of substance in the teachers' argument that Georgia and Zenobia "blatantly lied" about a "suspicious encounter" with Sean Smyth, another gym teacher at the high school, where, the teachers argue, the students "implicitly admitted that they were colluding about their stories" as proof of fabrication. Even if the encounter occurred as Smyth described — that is, that after missing class, the girls told him they had "things to sort out" because of a "big meeting" — it does not necessarily follow that the girls were colluding. The evidence is not so clear or compelling to suggest that the students actually fabricated the conversation between Geiger and Jones. In fact, the record reveals that by the time this conversation with Smyth occurred, the students had already given written statements and had already been interviewed by Stansberry and Miranda. The ALJ's decision to find the girls' testimony credible notwithstanding Smyth's testimony was not arbitrary, capricious or unreasonable.
II
Geiger and Jones claim their due process rights were violated at the informal investigation stage because: (a) Reynolds attempted to "coerce statements" from them and precluded them from having counsel present; (b) Reynolds did not review the videos of the area outside the locker room or the notes generated by Kramer, Miranda or Stansberry before filing tenure charges, and these administrators additionally failed to record their conversations with Georgia and Zenobia each time the girls were interviewed; (c) Kramer did not separately interview the girls when they made their initial report of the incident; and (d) Reynolds presumed the allegations were true when Geiger and Jones refused to answer questions without counsel. We reject these arguments.
Geiger and Jones were provided with all the process that was due. There is a process prescribed by statute concerning tenure charges against teachers. Tenured teachers may be dismissed "for inefficiency, incapacity, unbecoming conduct, or other just cause" but only after written charges are filed and a hearing is held. N.J.S.A. 18A:6-10. The charges must be filed with the board of education and accompanied by a written statement of evidence supporting the charges. N.J.S.A. 18A:6-11. The board then
shall forthwith provide such employee with a copy of the charge, a copy of the statement of the evidence and an opportunity to submit a written statement of position and a written statement of evidence under oath with respect thereto. After consideration of the charge, statement of position and statements of evidence presented to it, the board shall determine by majority vote of its full membership whether there is probable cause to credit the evidence in support of the charge and whether such charge, if credited, is sufficient to warrant a dismissal or reduction of salary. The board of education shall forthwith notify the employee against whom the charge has been made of its determination, personally or by certified mail directed to his last known address. In the event the board finds that such probable cause exists and that the charge, if credited, is sufficient to warrant a dismissal or reduction of salary, then it shall forward such written charge to the [C]ommissioner
for a hearing pursuant to N.J.S.[A.] 18A:6-16, together with a certificate of such determination.In addition, an accused teacher has fifteen days to "submit a written response to the charges to the [C]ommissioner." N.J.S.A. 18A:6-16. The Commissioner then must review the charges and "render a determination on the sufficiency of the charges." Ibid. If the Commissioner determines the charges are "not sufficient to warrant dismissal or reduction in salary of the person charged, he shall dismiss the [charges]." Ibid. If, however, the Commissioner determines the "charge [was] sufficient to warrant dismissal or reduction in salary of the person charged," he is required to refer the case to the OAL for a hearing. Ibid. Geiger and Jones do not contend any of these statutory procedures were bypassed or disregarded; they complain only of the internal investigation that occurred before charges were lodged.
[N .J.S.A. 18A:6-11.]
The Teacher Effectiveness and Accountability for the Children of New Jersey Act was enacted August 6, 2012, several months after the conduct here in question. The Act amended N.J.S.A. 18A:6-16, which now requires the Commissioner to refer such cases to an arbitrator.
Even if the internal investigation could have been more searching and thorough, Geiger and Jones received adequate notice of the charges and were given an opportunity to address those charges. And, over the course of a nine-day hearing, Geiger and Jones had the opportunity to present witnesses and confront the administrators who conducted the investigation and the witnesses who made the allegations.
We find no merit in Geiger and Jones's argument that the inadequacies in the pre-notice investigation by the school administrators constituted an actionable violation of due process principles.
III
Geiger and Jones argue that the district's failure to preserve footage from surveillance cameras, other than the images captured in the hallway outside the girls' locker room, constituted spoliation of evidence and required "at least an adverse inference that the unpreserved video supported" their factual contentions. We find this argument also has insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following few comments.
"Spoliation typically refers to the destruction or concealment of evidence by one party to impede the ability of another party to litigate a case." Jerista v. Murray, 185 N.J. 175, 201 (2005). "In civil litigation . . . spoliation of evidence can result in . . . an adverse . . . inference against the party that caused the loss of evidence." Id. at 201-02. "The spoliation inference permits [a factfinder] to infer that the evidence destroyed or concealed would not have been favorable to the spoliator" and "serves the purpose 'of evening the playing field where evidence has been hidden or destroyed.'" Id. at 202 (quoting Rosenblit v. Zimmerman, 166 N.J. 391, 401 (2001)).
The record does not support Geiger and Jones's argument. What the record shows is that two videos from cameras pointed at the hallway outside the girls' locker room from different angles were entered into evidence. Stansberry testified there were cameras in other areas of the building, including the gym and the gym lobby, but there was no camera in the girls' locker room. Further, the evidence revealed that once a camera's hard drive reaches capacity, it empties itself out and then starts recording again.
One of the videos admitted into evidence shows Jones outside the locker room immediately after the alleged incident and contains images of Georgia and Zenobia leaving the locker room. There is no evidence that any other video of Geiger and Jones was recorded on March 2, 2012, and, even if Geiger and Jones did appear in another video later that day, the evidentiary value of such a video would be extremely limited. And, regarding videos from the gym and gym lobby that may have captured the girls after the alleged incident, there is no dispute that Georgia and Zenobia were together in the lobby and gym and had the opportunity to discuss the incident. If available, video of such events, without audio, of the girls in the gym or lobby, or anywhere else in the building, would not likely provide any evidence to support Geiger and Jones's contentions that the students fabricated their allegations about what was said in the locker room.
IV
Geiger and Jones argue the ALJ improperly shifted the burden to them to prove that Georgia and Zenobia had a motive to lie. They allude to the ALJ's determination that "the lack of motive to lie renders [Georgia and Zenobia] more credible than" them. Geiger and Jones's contention mischaracterizes the ALJ's determination.
In fact, the ALJ correctly noted that the burden of persuasion was on the district to establish the allegations supporting the charges by a preponderance of the evidence. See Atkinson v. Parsekian, 37 N.J. 143, 149 (1962). The ALJ's determination that Georgia and Zenobia lacked a motive to lie was an entirely proper device for assessing their credibility, Scouler v. City of Camden, 332 N.J. Super. 69, 75 (App. Div. 2000) (noting that "one obvious consideration" in assessing credibility is whether the accuser "had a motive" to fabricate), and the application of this inference should not be interpreted as requiring these teachers to prove the events did not occur.
We hasten to add this was not the only ground upon which the ALJ found Georgia and Zenobia credible. For example, the ALJ also found the girls were "confident, unwavering and detailed in their recollection of the statements that were made" and their stories closely matched and were "corroborated by the witnesses to whom they reported their version of events." In addition, the ALJ rejected potential biases suggested, including the contentions that the girls had past negative experiences with Geiger and Jones, were associated with a group of black students who had complained about Jones, or were retaliating for Jones having disciplined Ze.C. for using her cell phone in class.
V
In their fifth point, Geiger and Jones argue the ALJ erred by refusing to draw an adverse inference against Georgia because she did not answer their subpoena for information from her Facebook account. They rely on N.J.A.C. 1:1-11.4, which declares that "[a] party who refuses to obey a subpoena may . . . suffer an inference that the documentary or physical evidence or testimony that the party fails to produce is unfavorable." This regulation has no bearing here because Georgia was a witness, not a party. In any event, even if applicable, we find the contention that Georgia may have made contradictory statements on Facebook to be too speculative to warrant relief.
Moreover, the appropriate remedy when a person fails to answer a subpoena is to "seek enforcement" through "an action in the Superior Court pursuant to the New Jersey Court Rules." N.J.A.C. 1:1-11.5. Because Geiger and Jones failed to seek this remedy while the matter was pending before the ALJ, we conclude the argument that the ALJ abused her discretion in failing to draw an adverse inference is without merit and requires no further comment. R. 2:11-3(e)(1)(E).
VI
We lastly turn to Geiger and Jones's argument that dismissal was an excessive and arbitrary penalty. They contend that because dismissal was partially based on their failure to admit they made the statements in question violates their right to due process and, also, that the penalty is disproportionate because it was inconsistent with past precedent and did not give sufficient weight to mitigating factors.
We start with the premise that disciplinary sanctions imposed by administrative agencies are entitled to deference. Herrmann, supra, 192 N.J. at 28. Consequently, "courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Carter, supra, 191 N.J. at 486; see also In re Polk, 90 N.J. 550, 578 (1982) (observing that a court has "no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency [and] can interpose its views only where it is satisfied that the agency has mistakenly exercised its discretion or misperceived its own statutory authority"). Because of the deference owed to such determinations, "the test" to be applied by an appellate court is to determine "whether [the] punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." Polk, supra, 90 N.J. at 578 (internal quotation marks omitted); see also Herrmann, supra, 192 N.J. at 28. This standard inevitably requires consideration of penalties imposed in the past for similar conduct.
Geiger and Jones rely on several administrative decisions in arguing that no more than a 120-day suspension was warranted. In re Tenure Hearing of Lauren Cooke, EDU 74-09, initial decision (July 22, 2010), final decision (Nov. 23, 2010); In re Tenure Hearing of Jayson H. Burg, EDU 3291-97, initial decision (Oct. 30, 1997), Comm'r decision (Dec. 18, 1997), final decision (June 3, 1998); In re Tenure Hearing of Barbara Emri, EDU 4579-00, initial decision (Aug. 30, 2002), Comm'r decision (Oct. 21, 2002), final decision (Dec. 5, 2003); and In the Matter of the Tenure Hearing of Adelphia Poston, EDU 3876-05, initial decision, (July 19, 2006), final decision (Oct. 19, 2006). Cooke referred to another teacher by use of "the N word" and "Aunt Jemima"; in imposing only a suspension, the Commissioner relied on Cooke's unblemished sixteen years as a teacher and the fact the comments were made during a private conversation and not directed at or heard by any students. Burg uttered the word "nigger" in his class in direct reference to his students; the Commissioner ordered a lengthy suspension to "impress upon [Burg] the seriousness of his conduct and his substantial need for greater control and sensitivity in dealing with students." Emri, who received a similar suspension, used the word "nigger" when speaking about a student to another staff member and compared some black students to monkeys; she also exhibited a pattern of inappropriate anger and insensitivity to students. Poston used the word "dyke" in referring to a student's mother after being taunted repeatedly with the same word by the student; concluding the penalty must be "sufficiently heavy to make it clear that obscene and derogatory outbursts of the type displayed by [Poston] . . . in her classroom interaction with a student, are a very serious matter and simply cannot be tolerated in the school setting no matter how grievously a teaching staff member may be provoked," the Commissioner ordered Poston to forfeit 120 days salary.
http://njlaw.rutgers.edu/collections/oal/final/edu74-09.pdf.
http://njlaw.rutgers.edu/collections/oal/final/edu3291-97.pdf.
http://njlaw.rutgers.edu/collections/oal/final/edu4579-00.pdf.
http://njlaw.rutgers.edu/collections/oal/final/edu3876-05.pdf.
Although it seems the ALJ's recommendation that Geiger and Jones be dismissed was based in large part on their refusal to admit they made the offensive comments, this was not a factor adopted by the Assistant Commissioner in finding Geiger and Jones unfit. Indeed, Geiger and Jones's refusal to admit their culpability would have been an improper consideration. Cf. In re Fulcomer, 93 N.J. Super. 404, 419 (App. Div. 1967). Geiger and Jones should not have been expected to admit something they assert did not occur and insistence on their innocence should not have been weighed against them. Instead, the discipline imposed should have been related to the conduct found to have occurred, as well as Geiger and Jones's past performances as teachers.
In examining the propriety of the discipline imposed, we recognize that "unfitness to remain a teacher may be demonstrated by a single incident if sufficiently flagrant." Id. at 421; see also Redcay v. State Bd. of Educ., 130 N.J.L. 369, 371 (Sup. Ct. 1943), aff'd o.b., 131 N.J.L. 326 (E. & A. 1944). Here, the Assistant Commissioner found that Geiger and Jones's "inexcusable use of racially derogatory remarks to refer to students in the district necessitate[d] the termination of their employment," explaining that
[t]he use of such an inappropriate expression to refer to a group of students is completely unprofessional and reveals a total lack of self[-]restraint on the[ir] part . . . .Although the Assistant Commissioner correctly observed that a single incident of sufficient seriousness and gravity may warrant dismissal in an appropriate case, we must also recognize that "consideration should be given to the impact of the penalty on [an employee's] teaching career," Fulcomer, supra, 93 N.J. Super. at 421, and that an employee's past disciplinary record is relevant in determining the appropriate penalty for the committed offense, West New York v. Bock, 38 N.J. 500, 522-24 (1962). Here, there is no dispute that Geiger and Jones had lengthy, unblemished careers of thirty-one and twenty-eight years.
Unlike the circumstances [in Cooke], [Geiger and Jones's] use of the racial slur was not only heard by the students but it was specifically directed at students in the school. Notwithstanding [their] assertion that there was no deliberate exposure to the students or the public at large, the reality is that students did in fact hear [them] using the inflammatory term. As a result there was a direct impact to the school environment. Moreover, the ALJ found that . . . Geiger's demeanor during parts of her testimony revealed evidence of disdain and contempt for a group of African-American students, and similarly . . . Jones[] emotionally testified about her frustration with several African-American students. Therefore, the ALJ found that a potential negative impact on the school community remains an ongoing concern. As a result, the Commissioner finds that [Geiger and Jones] are unfit to discharge the duties and functions of their positions as teachers in the . . . [d]istrict.
[Citation omitted.]
For example, in In re Tenure Hearing of Chaki, No. A-2430-11 (App. Div. Aug. 13, 2013), we upheld the Commissioner's dismissal of a teacher who had made inappropriate comments about ethnic groups during a chemistry class that included a characterization of African-Americans as "lazy" and who instructed the class about what she believed were the capabilities of other ethnic groups. (Although Rule 1:36-3 would appear to prohibit our citation to this unpublished opinion, we cite it only for what it was that the Commissioner held in that case and not to suggest that our opinion constitutes binding precedent.)
In our view, the conclusion reached here by the Assistant Commissioner is inconsistent with the Commissioner's determinations in Emri, Poston, Burg and Cooke. In fact, the Assistant Commissioner seems to have realized the decision in this case represented a significant departure. In expressly rejecting Emri, where the teacher received only a suspension despite having referred to a student as a "nigger" in a discussion with another teacher, the Assistant Commissioner invoked and took comfort in Justice Francis's comment that "experience is a teacher and not a jailer." In re Masiello, 25 N.J. 590, 598 (1958).
In a footnote in the Assistant Commissioner's opinion in this case, it was announced that Emri should no longer be considered as "controlling precedent and in fact if the same unbecoming conduct was proven today, the penalty imposed [there] would most likely be significantly different."
The administrative process thrives on its ability to adjust to change and to remain flexible in light of experience; administrative bodies must often act swiftly to meet new challenges, and in this regard the Commissioner is certainly entitled to consider a sterner standard for dealing with such matters. By the same token, employees are entitled to rely upon standards existing at the time of their questioned conduct. Geiger and Jones were expected to govern their conduct in accordance with precedent existing in March 2012, and should not be subject to punishment based on a standard that has since evolved. Although views may and should change as certain conduct becomes more or less acceptable in society — a circumstance which prompted the observation that "experience is a teacher and not a jailer," ibid. — the Assistant Commissioner should also have considered Justice Francis's less quotable comment that "a realization has grown over the years that constancy of decision is desirable" and that "the agency charged with administration of the school laws ought to be . . . sensitive to the significance of precedent." Id. at 599.
Accordingly, while the Commissioner may — going forward — give notice of an intent to impose greater discipline for racially insensitive comments, fundamental fairness precludes application of such an approach to conduct that occurred in March 2012. Geiger and Jones were entitled to be treated in the manner reflected by then-existing precedent. Because similar circumstances in the past warranted only a suspension, we conclude that the Assistant Commissioner acted arbitrarily and capriciously in dismissing Geiger and Jones.
In crafting an appropriate sanction following today's remand, the Assistant Commissioner should be guided by the fact that Geiger and Jones's comments, although certainly derogatory and racially motivated, carried a less pejorative sting than those uttered in cases where a sanction less than dismissal was imposed, such as Emri, and, also, Cooke (where, in 2010, a 120-day suspension was imposed for a teacher who, in a conversation with another teacher, referred to an African-American teacher with "use of the 'N word' and 'Aunt Jemima'"), Burg (where, in 1998, a 180-day suspension was imposed when the teacher not only told students in his classroom that they were "fools" and "jerks" but also "niggers"), and Poston (where, in 2006, a 120-day suspension was imposed when the teacher, after "relentless needling" by a "persistently disruptive" student, who "taunt[ed] her repeatedly with the epithet 'dyke,' . . . hurled the same epithet back at him with reference to his mother"). In addition, greater weight should be given to the fact that the statements in question were not directed at students and were not intended to be heard by students or others, although they were actually overheard by two students. The Assistant Commissioner should also give considerable weight to the fact that Geiger and Jones had unblemished records of greater duration than others who received less severe discipline in the recent past. Ultimately, consistency in decision-making plays an important role in such matters and requires here issuance of a sanction bearing similarity to past rulings. Dismissal was too harsh a sanction in these circumstances.
Without meaning to fall into an etymological rabbit hole the exploration of which is unnecessary for today's decision, it is fair to conclude the word "Negro," which Geiger and Jones were found to have used here, is not always considered as having a pejorative connotation, at least not to the degree of the word "nigger" used in Emri and Burg. Certainly, the word "Negro" is obsolete. The United Negro College Fund retains the word in its name but now mainly refers to itself as UNCF. Douglas Quenqua, Revising a Name, but Not a Familiar Slogan, N.Y. Times (Jan. 17, 2008), http://www.nytimes.com/2008/01/17/business/media. The Census Bureau used the word "Negro" in the 2010 census, as it had previously, but changed course in light of complaints. See Tanya Ballard Brown, No More "Negro" For Census Bureau Forms And Survey, NPR (Feb. 25, 2013), http://www.npr.org/sections/thetwo-way/2013/02/25/172885551. In 2014, the United States Army adopted a regulation that stated a service member could use the word "Negro" to describe black or African-American personnel, although once made public, a public outcry led the Army to amend the regulation. See Barbara Starr & Jeremy Diamond, Army Apologizes for Policy Approving Use of Word "Negro", CNN (Nov. 7, 2014), http://www.cnn.com/2014/11/07/politics. To be sure, there was a time when "Negro" was considered the preferred term for African-Americans. Dr. Martin Luther King, Jr. repeatedly referred to the circumstances of "the Negro" in his famous 1963 "I Have a Dream" speech, i.e.: "100 years later the Negro still is not free." But within a few years, the Black Power movement led to the word's abandonment, citing its nexus to slavery days and an implication of inferiority. Notwithstanding the relatively benign history of the word "Negro" suggested by its common use fifty and more years ago, we readily agree the words attributed to Geiger and Jones were racially motivated even if it could be reasonably argued the word "Negro" does not quite convey the exact pejorative sting as those uttered in Emri and Burg.
Emri, Cooke and Poston were teachers of approximately twenty, sixteen, and seven years, respectively; none had ever been previously disciplined; the Burg decision does not indicate that teacher's length of service. In Cooke, the Commissioner made a point of specifically observing, in responding to the district's demand for dismissal, that "removal of respondent from her tenured position is an unduly harsh penalty." --------
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION