East Orange Board of Education v. Rotimi Owoh

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3964-22

EAST ORANGE BOARD OF

EDUCATION,

Plaintiff-Respondent,

v.

ROTIMI OWOH,

Defendant-Appellant.

__________________________

Submitted May 5, 2025 – Decided August 26, 2025

Before Judges Gummer and Berdote Byrne.

On appeal from the Superior Court of New Jersey,

Chancery Division, Essex County, Docket No.

C-000071-23.

Rotimi Owoh, appellant pro se.

Antonelli Kantor Rivera, attorneys for respondent

(Ramon E. Rivera, of counsel and on the brief;

Lawrence M. Teijido and Madelaine P. Hicks, on the

brief).

PER CURIAM

Defendant Rotimi Owoh was employed by plaintiff East Orange Board of

Education as a teacher. An arbitrator found plaintiff had substantiated certain

tenure charges against defendant that supported his dismissal. Defendant

appeals from the arbitration award, the arbitrator's denial of defendant's

reconsideration motion, and the Chancery Division's confirmation of the

arbitration award. Perceiving no legal error or abuse of discretion in the

arbitrator's or Chancery Division's decisions, we affirm.

I.

Defendant began working for plaintiff in September 2001 and

subsequently attained tenure status. Based on defendant's purported excessive

absenteeism during the 2018-19, 2019-20, and 2020-21 school years and other

alleged conduct, plaintiff certified the following tenure charges against him in

2021 pursuant to N.J.S.A. 18A:6-10: incapacity, conduct unbecoming,

insubordination, neglect of duty, and other just cause. N.J.S.A. 18A:6-10 is part

of the Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-10 to -18.1.

Plaintiff sought to terminate defendant's employment.

In his answer, defendant denied the charges, claimed he had a condition

that made it medically impractical for him to "keep up" with elementary-school

children and to climb the stairs at the school, asserted he had provided medical

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documentation to plaintiff, and contended the charges were pretextual and

issued in retaliation for activities he had engaged in that he claimed were

protected by various laws, including the New Jersey Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -50, and the Conscientious Employee

Protection Act, N.J.S.A. 34:19-1 to -14. In the answer, defendant referenced a

June 18, 2021 letter he had written to plaintiff. In that letter, defendant advised

plaintiff he was practicing law but might later choose to return to teaching if he

became medically able to do so without limitation or restriction.

The case was referred to an arbitrator pursuant to N.J.S.A. 18A:6-16.1

After denying plaintiff's summary-decision motion, temporarily staying the

matter at defendant's request, and granting defendant's multiple adjournment

requests, the arbitrator scheduled the hearing on the charges to take place on

November 1 and 9, 2022. On October 31, 2022, defendant requested an

adjournment of the November 1, 2022 hearing date for health reasons. The

arbitrator granted that request but advised defendant the matter would be marked

as peremptory going forward and that no further adjournments would be granted

1

Defendant did not include in his appellate appendix copies of plaintiff's

charges, his answer, related correspondence, or a transcript of the proceedings

before the arbitrator. We take this information from the summary set forth by

the arbitrator in his opinion. The arbitrator's summary appears to be undisputed.

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absent extraordinary and compelling circumstances. On November 1, 2022,

defendant told the arbitrator he was not available for the November 9, 2022

hearing date because he had a court appearance in another matter, of which he

had had notice since September 15, 2022. The arbitrator declined to adjourn the

hearing, citing defendant's delay in raising the issue and concluding defendant

had not presented extraordinary and compelling circumstances. On November

9, 2022, defendant did not appear at the hearing, and plaintiff decided to defer

presentation of its case until December 13, 2022, which was the next hearing

date.

Defendant moved for dismissal of the tenure charges based on a default

entered against plaintiff in a LAD action defendant had filed against plaintiff in

the Superior Court. Although the arbitrator advised defendant it would address

the motion at the December 13, 2022 hearing, defendant chose not to appear.

The arbitrator later denied the motion as moot after learning the court in the

LAD matter had vacated the default.

During the December 13, 2022 hearing, Marissa McKenzie, plaintiff's

business administrator, testified plaintiff maintained an attendance policy,

which stated in relevant part:

The East Orange Board of Education recognizes that an

effective educational system is one in which all

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members, whenever possible, report for duty each and

every working day. Therefore, to foster and maximize

staff attendance at the [ninety-five] percent level, an

attendance improvement program shall be developed

and implemented.

The primary purpose of the attendance program shall be

to improve and maintain the quality of education.

Improved attendance will increase the level of staff

contact time and ensure the continuity of learning by

reducing to a minimum the interruption of services

provided students by full[-]time staff.

The regular and prompt attendance of teaching staff

members is an essential element in the efficient

operation of the school district and the effective

conduct of the educational program. Staff member

absenteeism disrupts the educational program [and] the

Board of Education considers attendance an important

component of staff member's job performance.

A teaching staff member who fails to give prompt

notice of an absence, misuses sick leave, fails to verify

an absence in accordance with Board policy, falsifies

the reason for an absence, is absent without

authorization, is repeatedly tardy, or accumulates an

excessive number of absences may be subject to

appropriate consequences, which may include the

withholding of salary increments, dismissal and/or

certification of tenure charges.

McKenzie also testified about defendant's absences from work, his

reported health issues, the leaves of absence he had taken, his communications

with the principal and others, his stated intention to return to work, and his

failure to return to work and to provide a return-to-work clearance from his

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doctor and other requested medical information to support his absences.

According to McKenzie, she sent him a letter on April 26, 2021, noting he had

been out of work since September 16, 2019, and making a "final request for

medical information to support [his] absence from December 3, 2020 to [the]

present." McKenzie testified she had advised defendant that if he did not

respond by May 14, 2021, he would be considered "absent without leave

effective December 3, 2020, and subject to discipline." McKenzie stated that

because defendant had not responded by May 14, 2021, she sent him a letter

dated May 17, 2021. In the letter, she advised him plaintiff had determined he

abandoned his position and that it would pursue tenure charges against him for

insubordination, job abandonment, and other charges. McKenzie also opined

that discharge was the appropriate penalty.

On February 21, 2023, the arbitrator issued an opinion and award, finding

plaintiff had substantiated the charges of incapacity, conduct unbecoming, and

insubordination and that those charges warranted defendant's dismissal. The

arbitrator dismissed the remaining charges. The arbitrator noted that since

failing to appear for the hearing, defendant had not requested or attempted to

present any evidence or argument in support of a defense to the charges. The

arbitrator nevertheless accepted defendant's answer as well as the June 18, 2021

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letter as a statement of defendant's position. The arbitrator viewed defendant's

pretext and retaliation claims as affirmative defenses but found he had failed to

prove them because his claims were "hearsay" and "entirely conclusory, with no

supporting factual assertions included."

Defendant moved for reconsideration or, alternatively, to include in the

record six exhibits he submitted with the motion. In a March 2, 2023 order and

written decision, the arbitrator denied both aspects of the motion. The arbitrator

found he did not have authority to decide the reconsideration motion because

his authority had terminated with the issuance of the February 21, 2023 opinion

and award. Nevertheless, he concluded the motion was without merit.

On May 19, 2023, plaintiff filed in the Chancery Division an order to show

cause (OTSC) application and a verified complaint seeking to confirm the

arbitration award pursuant to Rule 4:67-1. The court issued the OTSC,

scheduling the hearing date. After hearing argument, the court on July 3, 2023,

issued an order confirming the arbitrator's opinion and award. In an oral

decision it rendered the same day, the court found defendant had not established

any basis pursuant to N.J.S.A. 2A:24-8 to set aside the arbitration award and

that defendant's separate LAD case and unsuccessful attempts to appeal the

award on an interlocutory basis were not reasons to deny plaintiff's application.

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This appeal followed.

II.

We review de novo a trial court's legal conclusions, including legal

conclusions made in confirming an arbitration award. Pami Realty, LLC v.

Locations XIX Inc., 468 N.J. Super. 546, 556 (App. Div. 2021). However, in

reviewing an arbitration decision, "we must be mindful of New Jersey's 'strong

preference for judicial confirmation of arbitration awards.'" Sanjuan v. Sch.

Dist. of W. N.Y., 256 N.J. 369, 381 (2024) (quoting Middletown Twp. PBA Loc.

124 v. Twp. of Middletown, 193 N.J. 1, 10 (2007)). "[O]ur review is further

circumscribed by the TEHL's specific provisions stating that an 'arbitrator's

determination shall be final and binding and . . . subject to judicial review and

enforcement as provided pursuant to N.J.S.A. 2A:24-7 [to ]-10.'" Ibid. (quoting

N.J.S.A. 18A:6-17.1(e)). Under N.J.S.A. 2A:24-8, a court "shall vacate" an

arbitrator's award:

a. Where the award was procured by corruption, fraud

or undue means;

b. Where there was either evident partiality or

corruption in the arbitrators, or any thereof;

c. Where the arbitrators were guilty of misconduct in

refusing to postpone the hearing, upon sufficient cause

being shown therefor, or in refusing to hear evidence,

pertinent and material to the controversy, or of any

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other misbehaviors prejudicial to the rights of any

party;

d. Where the arbitrators exceeded or so imperfectly

executed their powers that a mutual, final and definite

award upon the subject matter submitted was not made.

[Sanjuan, 256 N.J. at 381 (quoting N.J.S.A. 2A:24-8).]

See also Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) ("An

arbitrator's award is not to be cast aside lightly. It is subject to being vacated

only when it has been shown that a statutory basis justifies that action" (quoting

Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979))). We

review an order on a reconsideration motion under an abuse-of-discretion

standard. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).

We affirm because, as the Chancery Division correctly held, defendant

did not establish a statutory basis, or any other basis, to set aside the arbitration

award. The record is devoid of any evidence the arbitrator was impartial or

corrupt; issued the award as a result of "corruption, fraud or undue means";

engaged in misconduct; or exceeded his authority. Sanjuan, 256 N.J. at 381

(quoting N.J.S.A. 2A:24-8). Given the number of adjournment requests granted

by the arbitrator and the circumstances surrounding the last request, we perceive

no misconduct in the arbitrator's decision to deny that request. And despite

defendant's non-appearance at the December 13, 2022 hearing, the arbitrator

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accepted defendant's answer and 2021 letter as a statement of defendant's

position and considered that position and the evidence, or lack of evidence,

submitted regarding it. Ultimately, the arbitrator concluded plaintiff had

substantiated three of the five tenure charges filed against defendant and

defendant had not proved his affirmative defenses. That record provides no

basis to deny confirmation of the arbitration award.

On appeal, defendant contends the Chancery Division lacked jurisdiction

because in March 2023 he had filed with this court a notice of appeal of the

arbitrator's award. But defendant had improvidently filed that notice without

leave to appeal, and we dismissed the appeal as interlocutory on June 1, 2023.

Many of defendant's appellate arguments are premised on issues relating to his

LAD lawsuit and assertions about that lawsuit, such as a purported failure to

produce a witness or document in discovery. But that lawsuit is not this lawsuit,

and the issues defendant has regarding the conduct of that lawsuit have no

impact on this tenure-charge arbitration. See, e.g., Bound Brook, 228 N.J. at

17-18 (faulting an arbitrator for applying in a tenure-charge arbitration a

standard applicable in a LAD case). Defendant's remaining contentions on

appeal are based on arguments and evidence he could have presented but did not

present in the arbitration proceedings. Accordingly, we decline to consider them

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on appeal. See J.K. v. N.J. State Parole Bd., 247 N.J. 120, 138 n.6 (2021)

("[O]ur appellate courts will decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a presentation is

available." (quoting State v. Robinson, 200 N.J. 1, 20 (2009))).

To the extent we have not expressly addressed any other arguments made

by defendant, we have considered them and find they are without sufficient merit

to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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