DOCKET NO. A-3650-12T1
Edward A. Cridge argued the cause for appellant Courtney Watson (Mellk O'Neill, attorneys; Arnold M. Mellk, of counsel and on the brief; Gidian R. Mellk, on the brief). John E. Collins argued the cause for respondent Franklin Township Board of Education (Parker McCay, P.A., attorneys; Mr. Collins, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Lihotz and Maven.
On appeal from the Commissioner of the New Jersey Department of Education, Agency Docket No. 74-3/12.
Edward A. Cridge argued the cause for appellant Courtney Watson (Mellk O'Neill, attorneys; Arnold M. Mellk, of counsel and on the brief; Gidian R. Mellk, on the brief).
John E. Collins argued the cause for respondent Franklin Township Board of Education (Parker McCay, P.A., attorneys; Mr. Collins, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Courtney Watson, who was dismissed from her position as a tenured teacher employed by Franklin Township School District (District), appeals from the final decision of the Commissioner of the New Jersey State Board of Education (Commissioner). The Commissioner upheld the District's termination of her employment determining her conduct towards her special needs students was unbecoming and violated the standards required by public school teachers. Appellant seeks reversal, arguing the Commissioner's decision was arbitrary, capricious, and unreasonable because it was not factually supported and resulted from an erroneous application of the law. Alternatively, appellant argues that if the alleged conduct is found unbecoming, removal was an inappropriately severe sanction.
We have considered each argument in light of the record and applicable law. We affirm.
Appellant was a tenured special education teacher working at the Sampson G. Smith School, a fifth and sixth grade elementary school within the District. During the 2011-2012 school year, appellant taught two periods of math to nine special needs fifth grade students in a small resource room setting. These same students were mainstreamed with a larger classroom of students, during which appellant and Robert Burt co-taught social studies and science. Niki Ivey, a resource paraprofessional, was assigned to work with appellant's students. Her duties included assisting appellant in her resource classroom and accompanying the students as they traveled between Burt's and appellant's classrooms.
On February 27, 2012, Edward Q. Seto, District Superintendent, initiated tenure charges against appellant, N.J.S.A. 18A:6-10 to -11, seeking to terminate her public employment for "unbecoming conduct and other just cause." The official charges recited seven incidents that occurred in December 2011, both in and outside the classroom. The District compiled these charges following its investigation, during which it gathered affidavits from five students and statements from faculty describing appellant's actions. Some of the students' assertions were confirmed by Ivey, Burt, Safety Officer Mary Figueroa, and school secretary Elizabeth Gagliardi. Finally, appellant admitted making some comments attributed to her by the students, when she, along with her association representative, participated in a January 4, 2012 meeting conducted by District officials to address the allegations. At the conclusion of the investigation, the District issued formal tenure charges against appellant and suspended her without pay, effective March 16, 2012.
During the four-day hearing before an Administrative Law Judge (ALJ), the District presented testimony from nine witnesses and offered numerous documents to support its decision to remove appellant. Appellant testified in her own behalf and offered four fact witnesses to dispute the charges. Appellant denied what she maintained were false and unreliable student allegations motivated by Ivey's close relationship with the students and past antagonistic behavior toward her.
The ALJ issued a written determination. Appellant filed exceptions to the initial decision. Following his review, the Commissioner affirmed the ALJ's findings, sustaining these five of the original seven tenure charges:
Specification No. 1The Commissioner concluded appellant's conduct violated the required professional standards of a public school teacher, warranting appellant's removal and dismissal. This appeal ensued.
[Appellant] engaged in unbecoming conduct on December 14, 2011, by stating to her pull-out special education class of educationally disabled students (who were predominantly African American in race) that their behavior was "stupid" and that they were "acting like monkeys."
. . . .
Specification No. 4
On December 15, 2011, [appellant] grabbed the shirt of another student (J.H.) and hit him.
Specification No. 5
On diverse dates in 2011, [appellant] uttered profanities to her students. In particular, on December 14, 2011, [appellant] cursed at the students in her pull-out special education class; when asked by her students why she had cursed at them, she stated that "all teachers curse at kids."
Specification No. 6
On December 15, 2011, [appellant] grabbed a rubber band from one of her students (A.H.W.), causing it to snap back and inflict pain upon A.H.W.'s wrist; [appellant] then told A.H.W. that she "deserved it."
Specification No. 7
On December 14, 2011, [appellant] told a fellow staff member that she was "going to flatten" M.J. and J.H.
Appellant presents five arguments to support her position the evidence did not support the Commissioner's ultimate finding that her conduct was unbecoming of a teacher. Accordingly, appellant maintains the Commissioner's decision must be reversed as arbitrary, capricious, and unreasonable. We will first recite appellant's challenges to the Commissioner's findings, addressed in the order she presents them in her merits brief. In doing so, we include any underlying factual support relied on by the Commissioner. Thereafter, we will examine the law and its application to these facts. Finally, we separately review appellant's challenge to the sanction imposed.
First, appellant challenges the Commissioner's adoption of the ALJ's finding regarding Specification No. 7, which stated:
On December 14, 2011, [appellant] told fellow staff members that she was "done" and was "going to flatten" them, referring to students M.J. and J.H. She used a hand gesture of pressing her hands together, and also gestured a slicing motion across her throat.The charge was based on Figueroa's and Gagliardi's testimony that appellant uttered the statement after two students, M.J. and J.H., were removed from her classroom after appellant issued disciplinary reports. The Commissioner found the conduct reflected appellant's inappropriate management of expected frustrations that are bound to arise when teaching children. Appellant does not refute the charge's accuracy. Rather, notes she uttered this comment outside of the classroom, not in the presence of students. She maintains it was a benign and appropriate expression of exasperation made to other adults.
Second, appellant challenges the findings substantiating Specification No. 5 that she uttered profanities and told students "all teachers curse at kids." The ALJ relied upon Burt's and Ivey's testimony, student testimony, and appellant's admissions. He found:
On diverse dates in December 2011, [appellant] uttered profanities to her students within their hearing, including the words "shit" and "ass." In contradiction to her certified answers to interrogatories that profanities were not uttered in the presence of her students, [appellant] testified that she probably said "damn," or
possibly "shit," on December 15, and did not dispute Burt's first-hand account that she said "shit" or "oh shit" in his class on another occasion. Thus, she used profanity occasionally; according to her, it was "not on a daily or normal basis." The students' statements regarding her use of profanity in class were corroborated by the testimony of [students] I.J., T.R., A.H.W. and Burt. Most if not all of the students were offended by [appellant's] use of profanity. When they asked why she had cursed at them, she told the students, "all teachers curse at kids," as witnessed, reported and testified to by Ivey.
Appellant maintains the Commissioner erred in relying on these findings. She asserts the students' testimony was not credible because appellant disciplined them for disruptive behavior in the classroom and because they were interviewed as a group on December 15, 2011. Appellant suggests her view is supported by the fact that the students' statements, introduced at the hearing, listed a "plethora" of abusive and crude language, which was not corroborated by anyone else, despite the fact that Ivey or Burt were consistently with her in the classroom. Appellant states the proofs showed she "may have said 'damn' or 'shit' one time," which she argues was not sufficiently flagrant to warrant discipline.
Appellant next challenges the findings regarding Specification No. 6. She suggests the Commissioner correctly found appellant did not snap the rubber band held by A.H.W. with the intent to inflict pain on her student; however, he ignored the remaining evidence, disputing A.H.W.'s claim that appellant said she "deserved it." Appellant suggests student A.H.W. was the only witness supporting this charge, pointing out that two other students, in close proximity to the interaction, did not hear appellant make an offensive remark.
The charges in Specification No. 4, which the Commissioner determined were partially supported, are refuted by appellant as erroneous. The Commissioner found on December 15, 2011, appellant grabbed J.H.'s shirt or arm to force him to sit down. The Commissioner acknowledged the difference in the charges as made and as proven, stating Specification No. 4 was "incorrectly drafted." Nevertheless, he concluded the record supported the ALJ's finding, which he upheld based on the testimony of A.H.W. and T.R. who corroborating J.H.'s oral statement to Ivey and in his written account stating he was "slammed into his seat." Further, the Commission considered appellant's hearing testimony, which he found "inconsistent," as she first asserted she had no physical contact with J.H., then admitted "there was physical contact with him" as she "guide[d] him to his seat without force[.]" Appellant essentially refutes the accuracy of the Commissioner's findings, stating they are unsupported because J.H.'s reports of physical contact contained contradictory allegations, and were inconsistent with reports by other students. Further, she maintains her unwavering testimony was more believable.
Appellant's fifth challenge is directed to Specification No. 1, stating she made racially charged and profane comments. Specifically, the Commissioner found appellant admitted she said her students' behavior was "stupid" and they were "acting like monkeys." He was not persuaded by appellant's alleged ignorance regarding the import attached to the comment. The Commissioner also concluded appellant's testimony failed to "exonerate her from responsibility for using demeaning language in her directions to students." Appellant argues her single slip, without racial malice, did not justify a finding of unbecoming conduct.
A "strong presumption of reasonableness attaches to the actions of the administrative agencies," In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (citation and internal quotation marks omitted), limiting our review of the agency's final decision. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We have "no power to act independently" to reweigh the evidence or substitute our judgment for that of the agency. In re Herrmann, 192 N.J. 19, 28 (2007). In our review, we will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). See also Twp. Pharmacy v. Div. of Med. Assistance and Health Servs., 4 32 N.J. Super. 273, 283-84 (App. Div. 2013) (stating appellate review is "guided by three major inquiries: (1) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether, in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion."). On the other hand, our review of an agency's interpretation of a statute or its legal determination is a legal issue for our de novo consideration. In re Hearn, 417 N.J. Super. 289, 298 (App. Div. 2010). Indeed, the party challenging the administrative action has the burden to establish the agency's action was arbitrary, capricious or unreasonable. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
Appellant, as a tenured teacher, is given certain protections before she can be dismissed. The tenure statute is designed to protect educators "from dismissal for 'unfounded, flimsy or political reasons.'" Wright v. Bd. of Educ. of E. Orange, 99 N.J. 112, 118 (1985) (quoting Zimmerman v. Newark Bd. of Educ, 38 N.J. 65, 71 (1962) cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963)). The statute authorizes school boards to terminate tenured teachers in light of proof of "unbecoming conduct, or other just cause," provided statutory procedural safeguards are followed. N.J.S.A. 18A:6-10.
Tenured employees must act in a professional manner and serve the welfare of the students in their care. In this regard, tenure charges may be sustained based on a pattern of unprofessional conduct or even a single incident that is found to be "sufficiently flagrant." In re Fulcomer, 93 N.J. Super. 404, 421 (App. Div. 1967). "The touchstone of the determination lies in the [employee]'s 'fitness to discharge the duties and functions of one's . . . position.'" In re Young, 202 N.J. 50, 66 (2010) (quoting In re Grossman, 12 7 N.J. Super. 13, 29 (App. Div. 1974)). "Unbecoming conduct . . . has been defined as conduct 'which has a tendency to destroy public respect for [government] employees and confidence in the operation of [public] services.'" Ibid. (alteration in original) (quoting Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (citation omitted)). Such misconduct need not necessarily "be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct." Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992) (citations omitted).
The Commissioner considered all of the evidence presented during the hearing. See Mainland Manor Nursing & Rehab . Ctr . v . N . J . Dep ' t . of Health & Senior Servs ., 403 N . J . Super . 562, 571 (App. Div. 2008) ("[A]n administrative agency must conduct an independent evaluation of all relevant evidence and legal arguments presented in support of and in opposition to proposed administrative agency action. . . .") (citation omitted). He properly adopted the ALJ's credibility determinations in assessing testimonial evidence, understanding that the ALJ heard the witnesses and observed them testify placing him in the best position to discern credibility. On appeal, appellant's challenges attack the ALJ's credibility determination regarding testimony identified to support Specification Nos. 1, 4, 5, 6, and 7.
Although a portion of the student assertions were not proven, we nonetheless reject appellant's arguments of insufficiency. We determine the findings made by the ALJ that were adopted and relied upon by the Commissioner were sufficiently supported by substantial credible evidence in the record and warranted imposition of a sanction.
Specifically, the record unequivocally shows Burt observed appellant display "great impatience," increasing frustration and limited self-control with her students, causing her to utter expletives. He warned appellant such conduct was "crossing the line." Ivey's and student testimony confirmed appellant's use of four-letter profanities. Appellant admitted she had labeled students' actions "stupid," used expressions like "shit or damn," yelled at students telling them they were "acting like "a bunch of monkeys." Further, she understood these comments were inappropriate. Moreover, appellant's response to the question of whether she used profanity was not a strong denial, but the equivocal: "Not on a daily or normal basis, no" reflecting she in fact had done so. The ALJ credited A.H.W.'s testimony that appellant told her she "deserved it" when appellant accidently snapped a rubber band, stinging the student's arm and observed appellant grabbed J.H.'s arm "and just turned him" to get him to be seated. Figueroa directly witnessed appellant's hand gesture of a slicing motion across her throat and slapping her palms together while exclaiming she was done with two of her male students and "would flatten them."
These facts easily refute appellant's characterization of the evidence as showing she once misstepped, by using an inappropriate expression in Burt's presence. The events supporting the tenure charges occurred over several days throughout December 2011. Figueroa was called to appellant's classroom on successive days when the students were acting out. Appellant used demeaning and extremely course language, and inappropriate physical interaction with her students. The testimony of students, Ivey, Figueroa, Gagliardi, and Burt, as well as the written statements of other students, confirmed these facts. Despite Burt's warning to appellant that she was "crossing the line," and had better watch herself, she, thereafter, made the remarks to Figueroa and Gagliardi that she had had it with two students and would "flatten them." She also grabbed J.H. to force him to sit down and told A.H.W. she deserved it when she stung her with the rubber band.
We also reject the notion appellant's conduct does not fall within the scope of "unbecoming conduct" of a teacher. A teacher is charged with guiding students and must exemplify self-control. Appellant's behavior is just the opposite. Appellant's admission to calling her special education children's behavior "stupid," symbolizes the epitome of unacceptable name-calling by a professional whose standards of conduct demands much more. Incorporating profane expressions of any type, while in charge of a fifth-grade classroom, cannot be defended. Appellant's admissions also show she had engaged in unwarranted physical contact with students to effectuate disciplinary efforts. Finally, appellant's demonstrated threatening motion of slicing across her throat, accompanied by a statement of intended physical harm made to school professionals, is neither benign nor tolerable.
We conclude substantial credible evidence in the record supports appellant engaged in a pattern of unbecoming conduct when interacting with students. Her conduct manifests behavior that specifically undermines the public's trust and confidence in her as a teacher, and generally reflects negatively on the public school, charged with caring for and educating young students. The Commissioner's findings and conclusions in this regard are supported and we discern no basis to intervene or correct the agency action. In re Polk, 90 N.J. 550, 578 (1982).
Turning to the penalty determination and whether the supported charges are sufficient to warrant appellant's dismissal, we note the test for reviewing an administrative sanction is "whether the punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness." In re Stallworth, 208 N.J. 182, 195 (2011) (citations and internal quotation marks omitted). Such a determination considers the teacher's prior record and present attitude, the nature and circumstances of the incidents or charges, the effect of such conduct on the maintenance of discipline among the students and staff, and the likelihood of the behavior recurring. See City of Newark v. Massey, 93 N.J. Super. 317, 324-25 (App. Div. 1967) (holding that in the context of disciplinary actions, we will not disturb the penalty imposed unless it is "so utterly disproportionate to the offense as to amount to a clear abuse of discretion.") (citation and internal quotation marks omitted).
Here, the Commissioner's decision to uphold appellant's removal noted her conduct, as articulated in Specification Nos. 1, 4, 5, 6, and 7, violated the standards required by public school teachers. The Commissioner determined appellant's relationship with her students had become "adversarial, and the responsibility for that must rest in great part with the adult — the professional." Finally, the Commissioner noted that appellant expressed no regret about the impact of her actions and she did not "truly accept responsibility." Accordingly, the nature and circumstances of the incidents, along with appellant's seeming lack of introspection and expressed concern for the effect of her behavior on the students, the school and her profession, militated against the likelihood of correction.
In light of appellant's aggregate conduct, we are not shocked by the imposition of a dismissal sanction and defer to the Commissioner's determination. Herrmann, supra, 192 N.J. at 34-35 (stating we owe substantial deference to the agency's "choice of remedy or sanction, seeing it as a matter of broad discretion, . . . especially where considerations of public policy are implicated") (citations and internal quotation marks omitted). Accordingly, we will not disturb the Commissioner's decision. Polk, supra, 90 N.J. at 578.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION