P.E.R.C. No. 2001-78, Tinton Falls B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TINTON FALLS BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2000-137 TINTON FALLS EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Reussille, Mausner, Carotenuto, Barger & Steel, attorneys (Martin M. Barger, of counsel) ¶

For the Charging Party, Oxfeld Cohen, attorneys ¶

(Sanford R. Oxfeld, of counsel) ¶

DECISION ¶

On December 2, 1999, the Tinton Falls Education Association filed an unfair practice charge against the Tinton Falls Board of Education. The charge alleges that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (3), 1/ by terminating library clerk Joy Rizzo in retaliation for her pursuing a grievance contesting a disciplinary letter placed in her personnel file. ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act." ¶

On March 6, 2000, a Complaint and Notice of Hearing issued. On March 14, the employer filed an Answer admitting some allegations, denying others and asserting that Rizzo's termination did not violate public policy. ¶

On September 11, 2000, Hearing Examiner Jonathon Roth conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On February 22, 2001, the Hearing Examiner issued his report and recommendations. H.E. No. 2001-16, 27 NJPER 144 (¶32052 2001). He found that the Board's asserted reason for the discharge, that the employee was "non-renewed" for legitimate reasons as her tenure date approached, was pretextual and that the Board would not have fired the employee in the absence of her grievance. ¶

On March 6, 2001, the employer filed exceptions. It asserts that the Hearing Examiner never focused on the fact that Rizzo made it clear that she would not comply with the contractual requirement that she work five days after the end of the school year. It further asserts that it was not going to give tenure to an employee who refused to comply with that requirement. According to the employer, nothing in the record supports a conclusion that Superintendent Carol Moldan would have recommended continued employment and therefore tenure if Rizzo's grievance had been withdrawn. The Board also asserts that the Hearing Examiner did not adequately consider its concerns with Rizzo's attendance problems. Finally, the Board argues that the Hearing Examiner erred in questioning the timing of the termination. According to the Board, whether 60 days' notice was required is irrelevant because the Superintendent was relying on advice of counsel. The Board also relies on its post-hearing brief. 2/ ¶

The charging party did not file an answering brief. But on March 9, 2001, it filed exceptions seeking punitive damages under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 59 (1980). ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings of fact (H.E. at 2-30). ¶

Joy Rizzo began her employment as a ten-month library clerk on March 3, 1997. She was informed that she would have to work five days before and five days after each school year. Article 6 of the parties' collective negotiations agreement includes those ten workdays. ¶

Rizzo worked the five days after the school year ended in June 1997 and the five days before the school year began the next fall. Her principal, John Lichtenberg, commended her work. In May 1998, she was renewed for the next school year. ¶

Rizzo did not work all five contractually required days in June 1998. She was absent three days before Lichtenberg telephoned her and told her that she was being paid for the days ¶

Note2/ We deny the Board's request for oral argument. The issues have been adequately addressed in the parties' briefs. ¶

and was needed at school. Rizzo responded that she was taking a sick day and two personal days, and that she was planning to take sick leave for at least the next day to take her children to the doctor. Lichtenberg responded that sick leave was inappropriate for taking children to the doctor and that personal or family illness leave had to be taken. Rizzo answered that she had exhausted those leaves. Lichtenberg advised that he would "work with her," allowing Rizzo to bring her children to work. She reported to work the next two days. In 1997-98, Rizzo used ten sick days, all three family illness days, and all three personal days. ¶

Rizzo worked all five contractually required days preceding the 1998-99 school year. In December 1997, she received the highest ratings on her performance evaluation. ¶

On March 13, 1999, Lichtenberg selected Rizzo to be the middle school substitute librarian after the certificated librarian left the district. A library clerk was hired to assist Rizzo. ¶

On June 7, 1999, Moldan wrote to Rizzo advising her that the Board had approved her reappointment as a ten-month library clerk for the 1999-2000 school year. On June 22, the last work day for certificated staff, Rizzo received a secretarial evaluation form giving her the highest ratings and praising her performance as substitute librarian. ¶

Rizzo reported to the middle school on June 23, 1999 to mail student report cards. She did not report on any of the four succeeding days, but telephoned the school office advising of family illness, sick and personal days. She was not sure of her status (substitute librarian or clerk). ¶

On July 8, 1999, Lichtenberg wrote a memorandum to Rizzo advising of his continuing concern about her "significant absences." He noted both her missing the days at the end of the school year and her absences during the school year. He wrote that corrective measures were needed and asked Rizzo to meet with him. He admonished that if her attendance did not improve, he would be forced to take action that could include requests for doctors' notes and an increment withholding. ¶

Rizzo replied that her sick leave did not compromise the children's education and that the absences were not excessive. She also wrote that personal days can be taken anytime without being questioned. She expressed sadness that Lichtenberg did not recognize all she had done for the school and requested a meeting. She sent copies of her letter to Moldan and the Association president, Claire Garland. ¶

Garland demanded that Lichtenberg's July 8 letter be removed from Rizzo's personnel file. On July 14, 1999, a grievance meeting was held. At the meeting, Lichtenberg asserted that Rizzo was contractually obligated to work the five days after the year ended. He also said that her second year of failing to work the five days caused him to look at her attendance in general. NJEA representative Ronald Villano attended the meeting and asked Lichtenberg to reconsider and discuss the matter with Moldan. Lichtenberg agreed. ¶

After Lichtenberg and Moldan talked, Lichtenberg sent a memorandum to Rizzo stating that they had decided to keep the letter in her file. He also wrote that they would review her attendance at the end of the next school year and would entertain removal at that time. ¶

Rizzo asked Garland to continue processing the grievance. On August 10, 1999, Garland asked the Board president for a meeting. The Association claimed that Rizzo was working under the teacher's contract in June 1999 and that her last day of school was therefore June 22. ¶

On August 25, 1999, Moldan met with Garland, Villano and Rizzo to discuss the grievance. The Association asked that the reprimand be removed or reduced. Moldan did not decide the grievance because of "conflicting facts." There apparently was a dispute over whether Rizzo was tenured. Rizzo testified that Moldan said that she was not tenured and that "it all depended how much I wanted to keep my job, as to how the outcome of this would turn out." The Hearing Examiner did not find that a threat was made at this point in time. Moldan later established that Rizzo did not have tenure. ¶

Between July 14 and September 21, 1999, Lichtenberg and Garland discussed the Rizzo grievance informally a few times. Lichtenberg once remarked that Rizzo "doesn't respect me." The Hearing Examiner found that this statement referred to Rizzo's not coming to work at the end of the school year rather than to Rizzo's filing a grievance. ¶

On September 14, 1999, Moldan requested another meeting. She noted that Rizzo had been hired on February 24, 1997 and did not yet have tenure; Lichtenberg would issue a memorandum to Rizzo reflecting the importance of attendance; the August 25 meeting had emphasized that improving attendance and meeting contract obligations were central to the dispute; and the parties had discussed future cooperation between Rizzo and Lichtenberg and a possible transfer. The Hearing Examiner found that Moldan was postponing her decision so that the grievance might be resolved and so that Lichtenberg and Rizzo would arrive at a satisfactory understanding. ¶

At about that time, Moldan asked Lichtenberg if she really thought Rizzo was a superior employee because Moldan believed that attendance was an indicator of performance. Lichtenberg responded that he did not check on the attendance of every clerk and aide, but he regarded Rizzo's performance as outstanding. ¶

On September 21, 1999, Rizzo, Garland and Villano met with Moldan to discuss the grievance. Moldan began by explaining that Rizzo did not have tenure. The main topic of the meeting was then Rizzo's attendance, including the issue of the five days at the end of the school year. Moldan said that she thought that Lichtenberg's and Rizzo's relationship was not going to improve. ¶

Moldan threatened that Rizzo's employment would be jeopardized if she continued to pursue the matter and not accept the reprimand. Villano argued that attendance issues were arbitrable, an increment withholding was unfair punishment for unsatisfactory attendance, and the letter should be removed from Rizzo's file because she was just made aware of the attendance concern. By the end of the meeting, Moldan suggested that Lichtenberg write another memorandum to clarify his intention to remove the reprimand from Rizzo's personnel file if she improved her attendance, including the ten-day service requirement. ¶

After the meeting, Lichtenberg and Garland met and agreed that they thought they could work it out. One proposal at their meeting was to move the five days at the end of the school year to other dates during the summer. ¶

On September 22, 1999, Moldan sent a memorandum to Garland summarizing the Board's position. She asserted that the reprimand would stay in Rizzo's file until there was improvement in attendance, including the ten-day service requirement. ¶

Rizzo was dissatisfied with the proposal. On September 23 or 24, 1999, Lichtenberg, assistant principal Sica, Garland and Rizzo met. Attendance continued to be Lichtenberg's concern. ¶

Rizzo said that she did not want to work the five days after the school year ended. Garland hoped to move the five days to other days during the summer and Lichtenberg agreed to move them, provided the two other principals agreed. In response to Association pressing, Lichtenberg stated that he was looking for "maybe 50% to 60%" improvement in attendance. Rizzo said that she sometimes must care for a sick child and attend to family responsibilities. Lichtenberg also told Rizzo that she had left early without permission on the last day of school (June 22, 1999). Lichtenberg was hoping to settle the matter, but believed that Rizzo could be dismissed if her attendance did not improve. ¶

One or two days later, Garland told Lichtenberg that Rizzo wanted to take the matter further. Lichtenberg was exasperated about Rizzo's prospects as an employee because she was not attending and because she had misrepresented time. Lichtenberg did not distinguish Rizzo's not wanting to settle the grievance from her refusal to acknowledge either an attendance problem or a need to improve her attendance. Lichtenberg also told Moldan that he was concerned about granting tenure if these kinds of contract violations were occurring then. Moldan suggested that they consult Board labor counsel. ¶

Lichtenberg testified that as a result of the meeting with counsel, he recommended to Moldan that Rizzo not be retained. Lichtenberg testified that Rizzo did not follow the contract for the five days two years in a row, called in a misrepresentation of ill days and personal leave, and had an overabundance of absences. ¶

The Hearing Examiner did not credit Lichtenberg's testimony that he recommended Rizzo's termination. On October 18, 1999, two days before Moldan wrote a letter to Rizzo advising that the Board would discuss her employment status on October 25, Lichtenberg wrote a letter to Garland seeking Rizzo's input and offering to reword the reprimand. Nothing in Lichtenberg's letter suggests that termination was possible or imminent. The Hearing Examiner could not reconcile Lichtenberg's recommending termination and his soliciting input from Rizzo with an eye toward removing the reprimand from her personnel file at the end of the school year. The Hearing Examiner concluded that, at most, Lichtenberg knew or was convinced that Moldan intended to fire Rizzo. The Hearing Examiner inferred that Lichtenberg wrote his October 18 letter either without knowing that Moldan was imminently intending to recommend termination or with the intention of reaching a prompt resolution to preempt Moldan's decision to fire Rizzo. ¶

By October 18, 1999, Rizzo understood that she would be required to work the five days after the school year ended, but she never articulated that understanding to Board representatives. At her last meeting with Lichtenberg, Rizzo stated that she did not want to work the five days. Nor did she promise to work those days even if they were moved to other dates in the summer. She also refused to commit to any improvement in her attendance, citing family responsibilities. ¶

On October 20, 1999, Moldan advised Rizzo that her employment status would be discussed by the Board on October 25. At that meeting, Moldan recommended Rizzo's termination because of her attendance. The Board approved the recommendation. ¶

On November 5, 1999, Moldan sent Rizzo a letter advising that the Board had voted to terminate her employment as of December 31, 1999. The grievance was not mentioned in the Board meeting. ¶

Allegations of retaliation for the exercise of protected rights are governed by the standards set out in In re Bridgewater Tp., 95 N.J . 235 (1984). No violation will be found unless the charging party has proved, by a preponderance of the evidence on the entire record, that protected conduct was a substantial or motivating factor in the adverse action. This may be done by direct evidence or by circumstantial evidence showing that the employee engaged in protected activity, the employer knew of this activity, and the employer was hostile toward the exercise of the protected rights. Id. at 246. ¶

If the employer did not present any evidence of a motive not illegal under our Act or if its explanation has been rejected as pretextual, there is sufficient basis for finding a violation without further analysis. Sometimes, however, the record demonstrates that both unlawful motives under our Act and other motives contributed to a personnel action. In these dual motive cases, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the adverse action would have taken place absent the protected conduct. Id . at 242. This affirmative defense, however, need not be considered unless the charging party has proved, on the record as a whole, that anti-union animus was a motivating or substantial reason for the personnel action. ¶

The Association alleges that Rizzo's protected conduct - pursuing a grievance contesting a letter of reprimand - motivated the Board's decision to terminate her employment. Based on the entire record, we disagree. ¶

Rizzo was engaged in protected activity and the Board was aware of it. We nevertheless conclude that Rizzo was terminated because of her attendance and her resistance to working the five contractually-required days after each school year. Her grievance protest was intertwined with her refusal to acknowledge her employee obligations. But we cannot find that the grievance protest was a substantial or motivating cause of that termination. ¶

The Hearing Examiner found that Moldan, the Board's agent, was hostile toward Rizzo's pursuing her grievance. According to Garland, on September 21, Moldan said "if Joy [Rizzo] ¶

continued to fight the letter and not accept the reprimand, she would be jeopardizing her employment." According to Villano, Moldan said, "if she [Rizzo] continues to pursue this matter, she is jeopardizing her employment with the district." Garland's notes, which the Hearing Examiner also relied on in deciding what Moldan said, mention "jeopardizing employment," but do not mention the grievance or the reprimand. ¶

The Hearing Examiner concluded that Moldan was threatening to fire Rizzo if the grievance was not withdrawn or settled. We recognize that the grievance, reprimand and alleged attendance problems were related. We are not convinced, however, that it was Rizzo's pursing her grievance, rather than her refusal to acknowledge the Board's attendance concerns and her obligation to work the five days at the end of the school year, that motivated the termination decision. We accept the Hearing Examiner's findings about what was said, but we draw a different inference about Moldan's motivation. We note that the Hearing Examiner credited two somewhat different accounts, one referring to Rizzo's refusal to accept the reprimand and the other to her continuing to pursue the matter. Neither account proves that Moldan was focused on Rizzo's grievance. ¶

In assessing Moldan's motivation, we ask whether she would have acted any differently had Rizzo withdrawn her grievance and accepted the reprimand, but continued to resist improving her attendance or working the five days. We believe that Moldan would have taken the same action, which supports our conclusion that her motivation was attendance, not the grievance. ¶

Similarly, we ask whether Moldan would have acted any differently had Rizzo acknowledged her obligation to work the five days and promised to improve her attendance, but continued her quest to have the reprimand removed from her personnel file. We believe that Moldan would have acted differently, which also supports our conclusion that her motivation was overall attendance and Rizzo's unwillingness to work the five days, not the grievance. ¶

We reach these conclusions, which we recognize involve necessary speculation as to what might have happened had Rizzo had acted differently, because the record shows that Moldan's motivation was her unwillingness to give tenure to an employee with an attendance problem who refused to acknowledge her obligation to work at the end of the school year and to improve her attendance. That Rizzo's continuing refusal came to light at meetings prompted by her filing a grievance contesting a reprimand does not insulate her from the obligation to perform her duties during the pendency of any grievance proceeding. We note that as late as September 23 or 24, Rizzo told Lichtenberg that she did not want to work the five days after the school year ended, had not promised to work those five days even if they were moved to other dates during the summer, and refused to commit to any improvement in her attendance. Lichtenberg was exasperated with Rizzo. ¶

The Hearing Examiner found that Lichtenberg did not recommend Rizzo's termination and that the timing of Moldan's recommendation to fire Rizzo was intended to thwart Lichtenberg's efforts to resolve the grievance. We accept those findings. But the Hearing Examiner also found that Lichtenberg told Moldan he was concerned about granting tenure given Rizzo's violations of her end-of-year work obligation. Moldan had consistently believed that poor attendance evidenced poor performance and therefore disagreed with Lichtenberg's giving Rizzo such positive evaluations. Rizzo's mid-year hiring meant that the Board had to make a mid-year tenure decision. Had Rizzo been hired in September, perhaps they would have let Rizzo complete the year to see if her attendance would improve and if she would work the five days at the end of the year. But those were not the circumstances and Moldan had to make a mid-year determination. That she chose to do it when she became aware of the controversy with Rizzo rather than two months later is of little consequence. We do not believe that the earlier treatment was triggered by hostility to Rizzo's grievance. At most it reflected Moldan's belief that Rizzo's attendance would not improve and perhaps her desire to shortcircuit Lichtenberg's attempts to engineer a compromise. ¶

The Hearing Examiner surmised that if Rizzo had not filed a grievance and had persisted in refusing to commit to improving her attendance, Lichtenberg would have recommended an increment withholding and requests for doctors' notes. The Hearing Examiner based this conclusion on Lichtenberg's July 8 letter threatening that action. But the Hearing Examiner also noted that, at that time, Lichtenberg was not aware of Rizzo's unusual mid-year tenure date. ¶

The Hearing Examiner surmised that had Rizzo been on a regular tenure cycle and had she improved her general attendance throughout the year, Lichtenberg would have assumed her willingness to work the last five days, or he would have substituted other days later in the summer. The Hearing Examiner also surmised that without Rizzo's grievance, Lichtenberg would have recommended Rizzo for tenure around December 31, 1999 because of an improvement in her attendance. Finally, the Hearing Examiner surmised that, absent her grievance, Rizzo's attendance would not have prompted Moldan to recommend non-renewal. ¶

We agree that Lichtenberg was more likely than Moldan to have tried to accommodate Rizzo. He might even have recommended her for tenure had her attendance improved and had they been able to work out the after-school days. But Lichtenberg was not the superintendent. Moldan was, and she had a different view of Rizzo's overall evaluation, given the problems with her attendance. It may be that the grievance procedure brought to light Rizzo's refusal to accept the view that she had an attendance problem. But that refusal was nonetheless present. Rizzo continued to resist working the five days at the end of the year. It may be that Rizzo's grievance brought the disagreement to a head sooner than if she had accepted the reprimand. But as we stated earlier, the Association has not proven that it was the grievance, rather than Rizzo's position on when she had to work, that prompted Moldan to recommend her termination. Had she given some indication that she would improve her attendance and that she would work those five days, and had Moldan then recommended termination, we might have been able to infer hostility to the grievance. But those are not the facts. Under all these circumstances, we conclude that Rizzo's termination was not motivated by her protected activity and dismiss the Complaint. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. Commissioner Buchanan voted against this decision. Commissioner Madonna abstained from consideration. ¶

DATED: June 28, 2001 ¶

Trenton, New Jersey ¶

ISSUED: June 29, 2001 ¶