# SHARONDA ALLEN v. EAST ORANGE BOARD OF EDUCATION, ETC. (C-000052-20, ESSEX COUNTY AND STATEWIDE)

> New Jersey Superior Court Appellate Division · February 4, 2022

URL: https://www.frixlaw.com/law-library/cases/6118723

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** February 4, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6118723

## How later opinions describe it (automated extraction)

- noting that a public employer can only find an employee guilty of offenses specifically mentioned in the charges
- noting that a public employer can only find an employee guilty of offenses specifically mentioned in the charges

## Opinion text

NOT FOR PUBLICATION WITHOUT THE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-3995-19

SHARONDA ALLEN,

Plaintiff-Appellant,

v.

EAST ORANGE BOARD OF
EDUCATION, ESSEX
COUNTY,

Defendant-Respondent.
___________________________

Argued November 30, 2021 – Decided February 4, 2022

Before Judges Currier, DeAlmeida, and Smith.

On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
C-000052-20.

William P. Hannan argued the cause for appellant
(Oxfeld Cohen, PC, attorneys; William P. Hannan, of
counsel and on the briefs).

George G. Frino argued the cause for respondent
(DeCotiis, Fitzpatrick, Cole & Giblin, LLP, attorneys;
George G. Frino, of counsel; Paul J. Miller and Ashanti
M. Bess, on the brief).
PER CURIAM

After an arbitration, plaintiff Sharonda Allen was dismissed from her

position as a tenured public-school teacher for the East Orange Board of

Education. Plaintiff filed suit, seeking to vacate the arbitration result. The trial

court dismissed her complaint, and plaintiff now appeals. On appeal, she

contends that: the Board should have been barred by the arbitrator from

introducing evidence at the hearing because the Board failed to comply with

N.J.S.A. 18A:6-17.1(b)(3); the Board presented no credible evidence at the

hearing which could support the tenure charges; plaintiff's termination violated

the doctrines of progressive discipline and mitigation of penalty; and plaintiff

was afforded insufficient notice of the tenure charges. We reject her arguments

and affirm for the following reasons.

I.

In 2003, plaintiff was hired by the Board as a public-school teacher. The

Board continued her employment as a non-tenured teacher for the 2003-2004,

2004-2005, and 2005-2006 school years. She subsequently acquired tenure

status with the Board in 2006. In 2011, the Board assigned her to teach at the

East Orange Campus High School (EOCHS) in East Orange. During her sixteen

years with the Board, her reviews were mixed. The Board consistently rated

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plaintiff's skill and competence as a teacher as "effective" in her annual

performance reviews. However, the record shows that she received multiple

written warnings regarding violations of various teaching and administrative

policies. On at least one occasion prior to the incident for which she was

terminated, the Board withheld plaintiff's annual salary increment and placed

her on probation for using "inappropriate language, interfering in the instruction

of students and disrupting the learning process."

On December 5, 2018, S.B., a ninth-grade student, failed to follow

plaintiff's directives during a school assembly. He became confrontational when

she approached him about his inappropriate behavior. A verbal altercation

between S.B. and plaintiff ensued. During this altercation, numerous students,

teachers, and staff heard plaintiff utter the following to S.B.: "[s]hut up," "[s]hut

the fuck up," "I will get you jumped," "[y]ou don't know me," "I will get one of

these big niggas to jump you," and "[w]atch your back at [c]ampus." In response

to S.B.'s mother's complaints about the incident, the Board hired an independent

investigator to conduct an inquiry.

After the incident, Dr. Kevin West, the Board superintendent, scheduled

a meeting among plaintiff, S.B., and S.B.'s mother to address the family's

concerns regarding the child's safety at school. S.B. apologized to plaintiff for

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telling her to "get out of his face," but plaintiff did not apologize to S.B. for her

conduct.

On February 1, 2019, after the meeting between plaintiff, S.B., and S.B.'s

mother, Dr. West convened a meeting with Dr. Ronald Estrict, the EOCHS

principal, Dr. Deborah Harvest, the Board assistant superintendent, and plaintiff.

At the meeting, Dr. West suspended plaintiff with pay for two weeks, effective

February 4, 2019. In addition, Dr. West informed her that she was being

transferred to a different school at the conclusion of her suspension. Dr. West

stated to plaintiff that the transfer was a precaution in response to student safety

concerns, as the incident involved a teacher threatening physical violence

against a high school student. The suspension notice stated: "[y]our behavior

demonstrated a total disregard and disrespect for the position [of] teacher, [for]

the student that you made inappropriate comments to, and [for] the [Board]."

At the meeting, plaintiff contested the transfer. She told Dr. West, "[y]ou

don't know my reach. The mayor will not support this . . . . I am sure that

parents will contact you and students will protest . . . . Be prepared for the

amount of people at the Board meeting."

After the meeting, Dr. West handed plaintiff a list of Board policies she

had violated, including written policies concerning: inappropriate staff conduct;

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healthy workplace environment; use of electronic communication; and civility.

He directed plaintiff to keep the matter confidential and not to disclose S.B.'s

name to anyone.

A few days after the meeting, plaintiff helped organize a school-wide

student walk-out in protest of her suspension and transfer. She communicated

with students and parents, encouraging them to protest on her behalf. She asked

them to call the mayor and demand her immediate return to EOCHS. Plaintiff

also disclosed S.B.'s name in a social media exchange with another student. The

following exchange was posted on Facebook Messenger 1:

Plaintiff: [A student] said that the boy told her that he
lied about the incident just to get me in trouble.

Student: Who's the boy and we're gonna [sic] report
this.

Plaintiff: [S.B.]

Student: Bet!!

Plaintiff admits to disclosing S.B.'s name to the student.

As a result of the post, S.B. was confronted by schoolmates about the

December 5 incident. S.B.'s mother, fearing for her child's safety, enrolled S.B.

1
Facebook Messenger is a mobile messaging application and platform used for
instant messaging, sharing photos, videos, and audio recordings.
A-3995-19
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at another high school. Dr. West next recommended that tenure charges be

brought against plaintiff. Dr. West testified that he decided to file tenure

charges against plaintiff because: the social media post identified S.B. as the

student who caused her suspension and transfer; the confrontations and threats

S.B. endured due to the social media post; and the recommendations in the

Board's investigative report. He also noted that plaintiff's communications with

students and parents on social media were a violation of the Board's social

media policy. Dr. West further testified that all school policies were available

on the Board's website for all staff members. Plaintiff testified that she was

keenly aware of the policies.

On or about June 11, 2019, Dr. West submitted tenure charges and a

statement of evidence against plaintiff to the Board.2 Approximately a month

later, the Commissioner of Education assigned an arbitrator for the tenure

hearing. On July 29, plaintiff moved to dismiss the charges, arguing that the

2
The tenure charges included: writing an email that rises to a level of
insubordination warranting removal; conduct unbecoming; inciting student
misconduct in the form of cutting class for a school-wide protest; using social
media to inappropriately communicate with students; and jeopardizing the
safety of S.B. by way of releasing his name to another student with the intent to
have him harassed, intimidated, bullied, or as retaliation for her suspension.
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Board failed to provide discovery pursuant to N.J.S.A. 18A:6-17.1(b)(3). The

next day, the Board produced the relevant discovery.

On August 22, 2019, the arbitrator heard plaintiff's motion to dismiss and

denied it. Following a two-day hearing, the arbitrator rendered an award and

issued an opinion on December 28, 2019 sustaining the tenure charges against

plaintiff and terminating her employment with the Board.3 Plaintiff filed a

verified complaint and order to show cause seeking to vacate the arbitration

award on March 13, 2020. On May 29, 2020, the judge made findings, granted

the Board's motion to confirm the arbitrator's award, and dismissed plaintiff's

complaint.

Plaintiff raises the following points on appeal:

I. THE ARBITRATOR'S AWARD AND OPINION MUST BE VACATED
BECAUSE HE VIOLATED N.J.S.A. 18A:6-17.1[(b)](3) BY FAILING
TO PRECLUDE THE RESPONDENT FROM INTRODUCING
WITNESSES AND EVIDENCE BARRED BY STATUTE.

II. THE ARBITRATOR'S AWARD AND OPINION IS NOT SUPPORTED
BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AND
MUST BE VACATED.

A. THE ARBITRATOR'S DECISION SUSTAINING COUNT
[EIGHT] OF THE TENURE CHARGES IS NOT SUPPORTED BY
SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD.

3
The Board filed eight tenure charges against plaintiff, the arbitrator dismissed
seven charges as "unsubstantiated."
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B. THERE IS NO SUBSTANTIAL CREDIBLE EVIDENCE IN THE
RECORD TO SUPPORT THE ARBITRATOR'S
DETERMINATION OF TERMINATION AS THE
APPROPRIATE PENALTY.

III. THE ARBITRATOR IMPROPERLY FOUND APPELLANT GUILTY
OF CONDUCT THAT SHE WAS NOT CHARGED WITH IN THE
TENURE CHARGE.

II.

In reviewing the award confirmation, we owe no special deference to the

trial court's interpretation of the law and the legal consequences that flow from

the established facts. Yarborough v. State Operated Sch. Dist. of City of

Newark, 455 N.J. Super. 136, 139 (App. Div. 2018) (citing Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Therefore, we

review the trial court's decision on a motion to vacate an arbitration award de

novo. Ibid. (citing Minkowitz v. Israeli, 433 N.J. Super. 111, 136 (App. Div.

2013)). However, we give deference to a trial court's factual findings if they are

supported by substantial, credible evidence in the record. Lee v. Brown, 232

N.J. 114, 126-27 (2018); Zaman v. Felton, 219 N.J. 199, 215 (2014).

On the other hand, "[j]udicial review of an arbitration award is very

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

(quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J.

268, 276 (2010)). In the public sector, an "arbitrator's award will be confirmed

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'so long as the award is reasonably debatable.'" Linden Bd. of Educ., 202 N.J.

at 276 (quoting Middletown Twp. PBA Loc. 124 v. Twp. of Middletown, 193

N.J. 1, 11 (2007)). In pertinent part, N.J.S.A. 2A:24-8 sets forth the limited

statutory grounds on which we may vacate an arbitration 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
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.

"'[U]ndue means' ordinarily encompasses a situation in which the

arbitrator has made an acknowledged mistake of fact or law or a mistake that is

apparent on the face of the record . . . ." Borough of E. Rutherford v. E.

Rutherford PBA Loc. 275, 213 N.J. 190, 203 (2013) (alteration in original)

(quoting Off. of Emp. Rels. v. Commc'ns Workers of Am., AFL-CIO, 154 N.J.

98, 111 (1998)). "[A]n arbitrator's failure to follow the substantive law may

. . . constitute 'undue means' which would require the award to be vacated." In

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re City of Camden, 429 N.J. Super. 309, 332 (App. Div. 2013) (quoting Jersey

City Educ. Ass'n v. Bd. of Educ. of Jersey City, 218 N.J. Super. 177, 188 (App.

Div. 1987)). An arbitrator exceeds their authority where they ignore "the clear

and unambiguous language of the [statute] . . . ." City Ass'n of Supervisors &

Adm'rs v. State Operated Sch. Dist. of City of Newark, 311 N.J. Super. 300, 312

(App. Div. 1998). An arbitrator is prohibited from contradicting the express

language of the statute. Linden Bd. of Educ., 202 N.J. at 276.

III.

Plaintiff first argues that the arbitrator should have barred the Board from

introducing evidence because the Board failed to comply with N.J.S.A. 18A:6-

17.1(b)(3). She further argues that (1) the statutory language in N.J.S.A. 18A:6-

17.1(b)(3) is clear, plain, and unambiguous, thus the arbitrator's failure to

preclude the Board's witnesses from testifying is contrary to the plain meaning

of the statute; (2) the arbitrator's violation of the statute was highly prejudicial

to her; and (3) the arbitrator exceeded his authority by ignoring and violating

the statute. She also contends the Board's failure to supply discovery

immediately upon referral of the case to arbitration warrants vacation of the

arbitrator's award pursuant to N.J.S.A. 2A:24-8(a), (c) and (d). We disagree.

A-3995-19
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We review issues of statutory interpretation de novo. MasTec Renewables

Constr. Co. v. Sunlight Gen. Mercer Solar, LLC, 462 N.J. Super. 297, 318 (App.

Div. 2020) (citing Verry v. Franklin Fire Dist. No. 1, 230 N.J. 285, 294 (2017)).

"The objective of all statutory interpretation is to discern and effectuate the

intent of the [l]egislature[,]" Murray v. Plainfield Rescue Squad, 210 N.J. 581,

592 (2012), and "the best indicator of that intent is the statutory language [,]"

which should be given its "ordinary meaning and significance . . . . " DiProspero

v. Penn, 183 N.J. 477, 492 (2005). "We construe the words of a statute 'in

context with related provisions so as to give sense to the legislation as a whole.'"

Spade v. Select Comfort Corp., 232 N.J. 504, 515 (2018) (quoting N. Jersey

Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 570 (2017)). If the

language is clear, our job is complete. In re Expungement Application of D.J.B.,

216 N.J. 433, 440 (2014). However, "when the statutory language is ambiguous

and 'leads to more than one plausible interpretation,' [we] may resort to extrinsic

sources, like legislative history and committee reports." MasTec Renewables,

462 N.J. Super. at 320 (quoting State v. Twiggs, 233 N.J. 513, 533 (2018)).

We disagree with the statutory argument advanced by plaintiff. In

determining whether to allow the Board to produce its witnesses and discovery ,

the arbitrator focused on the express language of N.J.S.A. 18A:6-17.1(b)(3),

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namely that "[u]pon referral of the case for arbitration, the . . . board . . . shall

provide all evidence including, but not limited to, documents, . . . statements of

witnesses, and a list of witnesses with a complete summary of their testimony,

to the employee or the employee's representative." In applying the plain

language of that provision, the arbitrator determined that the Board provided the

discovery required by the statute. The arbitrator adjourned the hearing to give

plaintiff additional time to conduct her own discovery and prepare for

arbitration.

We find the arbitrator's decision to allow both parties a full and fair

opportunity to prepare for the arbitration gave the pertinent language of N.J.S.A.

18A:6-17.1(b)(3) its "ordinary meaning and significance." DiProspero, 183 N.J.

at 492. In his comprehensive review of the arbitration record, the judge correctly

concluded that

the statutory use of the phrase 'upon referral' [does not
require] that evidence be provided at the same time of
the referral. [Plaintiff's] statutory construction is
mechanistic and absolute and does not legitimately
promote the [l]egislative policy of 'student
achievement.' In addition, that interpretation does not
benefit the teacher who ultimately wants their matter
heard.

To support his reasoning, the judge found the phrase "upon referral" to be

ambiguous and, thus, extrinsic evidence was needed to discern legislative intent.

A-3995-19
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In his cogent opinion, the judge found that "one of the various definitions of the

word 'upon' includes 'on the occasion of, at the time of, or immediately after.'"4

He added that the legislature will use terms such as "simultaneously with" to

indicate that documents need to be provided at the same time of the referral. See

N.J.S.A. 2A:18-61.6; N.J.S.A. 2A:44A:21; N.J.S.A. 19:60-1; N.J.S.A. 40A:11-

16; N.J.S.A. 48:3-60.

The arbitrator's award was consistent with the plain language of N.J.S.A.

18A:6-17.1(b)(3). The arbitrator articulated a basis to support his decision and

explained that plaintiff, not the Board, sought additional discovery when the

hearing was adjourned. We conclude the arbitrator did not exceed his powers

by denying plaintiff's motion, and we agree with the motion judge's construction

of the statute.

Plaintiff also contends there was no credible evidence presented at the

hearing that could support count eight of the tenure charge and, therefore, the

arbitrator erred in sustaining her termination. She also argues that the arbitrator

deliberately ignored facts that disproved the allegations against her. Having

4
See Upon, Merriam-Webster, https://www.merriam-
webster.com/dictionary/upon (last visited January 24, 2022).
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considered the record, the parties' arguments, and applicable law, we disagree

with plaintiff's assertion.

Count eight of the tenure charge states:

S.A. jeopardized the safety of student S.B. by way of
releasing his name to another student with the intent to
have him harassed, intimidated, bullied, or worse, as
retaliation for her suspension.

Plaintiff's blatant disregard of Dr. West's instruction and the consequences

of her actions were all substantiated through credible testimony and

documentary evidence at the hearing. It is undisputed that students approached

S.B. after his name was released on social media and that S.B. subsequently

transferred to a different school. We defer to the arbitrator's credibility findings.

Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) ("As a general rule, the

reviewing court should give due regard to the opportunity of the one who heard

the witnesses to judge of their credibility . . . .") (internal quotation marks

omitted).

Plaintiff next contends that, given her positive annual performance

evaluations, her termination violated the doctrines of progressive discipline and

mitigation of penalty. On this record, we find no merit to her argument.

Progressive discipline is used "in two ways when determining the

appropriate penalty for present misconduct." In re Herrmann, 192 N.J. 19, 30

A-3995-19
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(2007). The first is to "support the imposition of a more severe penalty for a

public employee who engages in habitual misconduct." Ibid. The second "is to

mitigate the penalty for a current offense." Id. at 32.

However, progressive discipline is not a "fixed and immutable rule to be

followed without question." In re Carter, 191 N.J. 474, 484 (2007). Rather,

"some disciplinary infractions are so serious that removal is appropriate

notwithstanding a largely unblemished prior record." Ibid. The New Jersey

Supreme Court has held:

Although progressive discipline is a recognized and
accepted principle . . . that is not to say that incremental
discipline is a principle that must be applied in every
disciplinary setting. To the contrary, judicial decisions
have recognized that progressive discipline is not a
necessary consideration when reviewing an agency
head's choice of penalty when the misconduct is severe,
when it is unbecoming to the employee's position or
renders the employee unsuitable for continuation in the
position, or when application of the principle would be
contrary to the public interest.

[Herrmann, 192 N.J. at 33.]

"[P]rogressive discipline has been bypassed when an employee engages

in severe misconduct, especially when the employee's position involves public

safety and the misconduct causes risk of harm to persons . . . ." Ibid. Moreover,

we have found "notions of progressive discipline inapplicable when disciplinary

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charges against a public employee have demonstrated lack of competence or

unfitness for a position." Id. at 35.

The record shows that the Board used progressive discipline to address

plaintiff's inappropriate conduct throughout her tenure. For example, plaintiff

was disciplined in 2015, which resulted in the loss of a salary increment and

placement on probation. Moreover, as a result of the December 5 incident with

S.B., plaintiff was suspended for two weeks. She was ultimately fired when she

put S.B.'s safety at risk by disclosing his name on social media.

The record shows that plaintiff demonstrated conduct which would permit

a factfinder to conclude that she was unfit to perform the duties of a

schoolteacher. The record also shows that her inability to follow school policies

posed a risk of harm and endangered the safety of both students and staff. We

find this record does not support use of the doctrines of progressive discipline

and mitigating of penalty. See Herrmann, 192 N.J. at 33.

Plaintiff next argues the arbitrator's decision is based on a finding that she

"intended to put undue pressure on S.B.," which plaintiff alleges was not in the

tenure charge and did not afford her proper notice. She contends that "by

deciding issues not placed before [the arbitrator] by the allegations in the tenure

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charge, the arbitrator exceeded his authority within the meaning of N.J.S.A.

2A:24-8(d), warranting vacation of the award." We disagree.

"Plain notice" is the standard to be applied when considering the adequacy

of disciplinary charges filed against public employees. Pepe v. Twp. of

Springfield, 337 N.J. Super. 94, 97 (App. Div. 2001). "It is elementary that an

employee cannot legally be tried or found guilty on charges of which he has not

been given plain notice by the appointing authority." Town of W. New York v.

Bock, 38 N.J. 500, 522 (1962). See also Borough of Ho-ho-kus v. Menduno, 91

N.J. Super. 482, 485 (App. Div. 1966) (noting that a public employer can only

find an employee guilty of offenses specifically mentioned in the charges).

These principles emanate from the concept of affording due process and fairness

in proceedings which impact an employee so significantly. See, e.g., Hammond

v. Monmouth Cnty. Sheriff's Dep't, 317 N.J. Super. 199, 206 (App. Div. 1999);

In re Caldwell v. N.J. Dep't of Corrs., 250 N.J. Super. 592, 615-17 (App. Div.

1991).

Plaintiff knew the December 5 incident was the genesis of the discipline

against her. Moreover, she was intimately familiar with the facts the Board used

to meet its burden on the charge that she "inten[ded] to have [S.B.] harassed,

intimidated, bullied, or worse, as retaliation for her suspension." We note that

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while the arbitrator wrote, "[plaintiff] intended to put undue pressure on SB," he

also referenced count eight of the tenure charge. Plaintiff had a full and fair

tenure hearing on charges for which she received sufficient notice. We find the

award of termination to be consistent with the charges, and discern no error.

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6118723. Public record. Not legal advice.