P.E.R.C. No. 2011-15, Galloway Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of GALLOWAY TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. TO-2009-001 GALLOWAY TOWNSHIP EDUCATION ASSOCIATION, Petitioner. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission adopts a Hearing Examiner’s recommendation that a contested transfer petition filed by the Galloway Township Education Association be dismissed. The Association filed exceptions to the Hearing Examiner’s report. The petition alleged that a school psychologist was transferred in violation of N.J.S.A. 34:13A-25 for disciplinary reasons in retaliation for the psychologist’s refusing to evaluate a student for special needs placement and the subsequent filing of a complaint against the Board with the Department of Education. The Hearing Examiner found that the Board transferred the psychologist to best serve the needs of the District’s children with behavioral disabilities. The Commission adopts the Hearing Examiner’s recommendation noting that her determinations were based on witness credibility which the Commission will not disturb unless the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent evidence in the record. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of GALLOWAY TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. TO-2009-001 GALLOWAY TOWNSHIP EDUCATION ASSOCIATION, Petitioner. ¶

AppearancesAppearances: ¶

For the Respondent, William Cappuccio, attorney ¶

For the Petitioner, Wills, O’ Neill and Mellk, attorneys (Arnold M. Mellk, of counsel) ¶

DECISION ¶

This matter comes to us by way of exceptions to a Hearing Examiner’s Report and Recommendations. H.E. No. 2010-2, 35 NJPER 313 (¶108 2009). The Hearing Examiner recommended that we dismiss a petition for a contested transfer determination filed by the Galloway Township Education Association. The petition alleges that the Galloway Township Board of Education violated N.J.S.A. 34:13A-25 by transferring school psychologist Beverly Bodenlos between work sites for disciplinary reasons. After an independent review of the record, the Association’s exceptions, and the Board’s response, we adopt the Hearing Examiner’s recommendation to dismiss the petition. ¶

On July 8, 2008, the Association petitioned for a contested transfer determination. On July 30, the Board filed its Answer denying that the transfer was for disciplinary reasons. On April 21, 2009, Hearing Examiner Susan Stahl conducted a hearing. The parties examined witnesses, introduced exhibits, and argued orally. On August 25, the Hearing Examiner issued her report and recommendations. ¶

On September 29, 2009, the Association filed exceptions. On October 14, the Board filed a response. We set forth the pertinent facts. ¶

Bodenlos worked at the Reeds Road School as a school psychologist for 19 years until she was transferred in June of 2008 to the Roland Rogers School for the 2008-2009 school year.1/ ¶

In October 2007, Bodenlos and the other members of the child study team (CST) were asked by Thomas Hand, the Director of Special Education, to evaluate a kindergarten pupil for special needs placement. The CST decided that an evaluation was not needed. Hand, Bodenlos’ immediate supervisor, strongly disagreed with the CST’s decision as reflected in an October 29 memorandum that he issued to the three members of the CST, including Bodenlos. The Hearing Examiner stated that “Hand strongly disagreed with the team’s decision and issued a memo . . . stating his displeasure with their decision.” H.E. Finding No. 8. In its exceptions, the Association asserts that Hand did not simply state his displeasure and it then quotes from portions of the memorandum. That memorandum, however, was not admitted into evidence and we will not consider any details of the memorandum beyond those in the Hearing Examiner’s summary.2/ The Hearing Examiner found that the memorandum was later retracted.3/ ¶

As a result of the dispute between Hand and the CST, Hand accused Bodenlos of accessing and copying the same student’s confidential files. On January 17, 2008, a meeting about those allegations was conducted among Bodenlos, her NJEA representative, Hand and Reeds Road Principal William Zipparo. ¶

On January 25, 2008, Bodenlos was given a formal reprimand in which Hand characterized her actions as inappropriate and unprofessional. The reprimand, placed in her personnel file, recited that she had been “in-serviced” on electronic access to student files. The reprimand also criticized her for her early departure from the January 17 meeting. In February 2008, Bodenlos wrote a rebuttal that Superintendent of Schools Douglas Groff termed a “ranting, verbose story” which he characterized as more harmful than helpful to her explanation for accessing the student’s file. ¶

In early March 2008, Bodenlos and Robbyn Scott, another member of the CST, filed a complaint with the New Jersey Department of Education’s Office of Special Education Programs (DOE or OSEP) alleging violations of DOE regulations stemming from the October 2007 dispute over whether the student should be evaluated. The complaint alleged that Hand had directed that an evaluation be conducted without the participation of the CST, allegedly in violation of N.J.A.C. 6A:14-3.3e. The administration was advised of the investigation. ¶

On March 10, 2008, after receiving notice of the DOE inquiry, Groff e-mailed Bodenlos and Scott about the DOE complaint. Groff stated that he initially intended to meet to discuss their concerns but was unable to do so because of possible litigation from the investigation. We add to the Hearing Examiner’s finding no. 14 this excerpt from his e-mail: ¶

I am very disappointed that this incident is now beyond our school district. I am a firm believer that “dirty laundry” stays within the confines of the school district and that all efforts be made to resolve it internally. I am also concerned that third parties are now privy to the name of the student involved which violates that child’s confidentiality. The parent may be asked to be interviewed as part of this investigation which will make the parent and child relive this matter. Once the complaint investigation has been completed I sincerely hope that any findings and recommendations offered will be implemented so we can move forward and leave this matter behind – once and for all. I don’t expect or wish for a response to this email as I have read your rebuttal letters and reviewed the contents of the document you forwarded to the NJDOE requesting the complaint investigation which clearly outlines your position [P-3].4/ ¶

Nevertheless, Bodenlos responded by e-mail the next morning. We add to the Hearing Examiner’s finding no. 16 this excerpt: ¶

It took me 4 LONG months to decide to put my name on an OSEP document because I am a very loyal person & employee. After 4 months of retaliation with no resolution in sight I felt I had no choice but to go outside our district for help; it was a PAINSTAKING decision. ¶

It is my understanding that when a formal complaint is filed with OSEP, a 10 day period is allowed for the parties to resolve the issues in the complaint before an investigation begins. This is what I thought would happen and have been waiting for 4 months to sit down and discuss this case internally [P-3].5/ ¶

Prior to April 30, 2008, Hand began to meet with principals and CSTs about staffing and classes for the 2008-2009 school year. There had previously been behavioral disability classes at Reeds Road School. During the 2006-2007 school year, one class of behavioral disability students was moved to Arthur Rann School and one to Roland Rogers. In the 2007-2008 school year, the Board decided to consolidate and move all of the then-existing elementary behavioral disability classes to Roland Rogers for the 2008-2009 school year. ¶

On April 30, 2008, Hand wrote a memorandum to Bodenlos asking that she consider a transfer to the Roland Rogers School where her primary responsibility would be as the school psychologist for classes of students with behavioral problems.6/ He stated that in his opinion, having her as case manager for behavioral disabilities classes would be the best way for the district and Bodenlos to use her skills and expertise. According to Hand, Bodenlos’s principal agreed that transferring Bodenlos would be a better use of her expertise. ¶

A chart prepared by Hand at Groff’s request shows that within the previous three years, including the 2008-2009 year, approximately 50 percent of the CST members were transferred between schools. There was only one team member who did not want to be transferred. The chart does not indicate whether the transfers were voluntary or involuntary.7/ ¶

On May 2, 2008, Bodenlos responded to Hand that she preferred to remain at Reeds Road. On May 14, Hand thanked Bodenlos for her response and decided to make the transfer. ¶

Based on Hand’s testimony regarding Bodenlos’s experience, training and expertise, Bodenlos’s own testimony about her training and experience, and the discussion and correspondence between Hand and Bodenlos during April and May 2008, the Hearing Examiner found that Hand had a substantial and reasonable belief that Bodenlos had developed an expertise in behavioral disability case management and that Bodenlos was the most appropriate school psychologist to take responsibility for the behavioral disability classes at Roland Rogers. ¶

On May 9, 2008, the DOE issued a “Complaint Investigation Report” based on the complaint filed by Bodenlos and Scott. The report addressed three areas of non-compliance by the District and set forth a corrective action plan. A cover letter to Bondelos that was copied to Groff is dated May 13.8/ ¶

On May 30, 2008, Groff met with Bodenlos and an Association representative about the proposed transfer. Bodenlos asserted that the transfer was in retaliation for her filing the DOE complaint. Groff responded that “he wouldn’t be bullied by anyone,” her transfer did not have anything to do with her DOE complaint, and the District had not done anything wrong.9/ ¶

In West New York Bd. of Ed., P.E.R.C. No. 2001-41, 27 NJPER 96 (¶32037 2001), we explained that before the 1990 amendments prohibiting disciplinary transfers between work sites, our case law did not establish a bright line test for assessing whether a transfer is disciplinary. However, when read together, our decisions indicate that we have found transfers to be disciplinary where they were triggered by an incident for which the employee was also reprimanded or otherwise disciplined or were closely related in time to an alleged incident of misconduct. In all of those cases, we noted that the employer did not explain how the transfer furthered its educational or operational needs. By contrast, we have found transfers not to be disciplinary where they were effected predominantly to further an employer's educational, operational, or staffing objectives. In addition, transfers effected because of concern about an employee's poor performance of core job duties -- as opposed to concerns about absenteeism or violation of administrative procedures -- were not disciplinary but instead implicated the employer's right to assign and transfer employees based on their qualifications and abilities. We summed up our finding by stating that in exercising our jurisdiction under N.J.S.A. 34:13A-27, we will consider such factors as whether the transfer was intended to accomplish educational, staffing or operational objectives; whether the Board has explained how the transfer was so linked; and whether the employee was reprimanded for any conduct or incident which prompted the transfer. ¶

The Association argues that a proper review of the record shows overwhelming evidence of animus toward Bodenlos. The Association asserts that she was harshly reprimanded for several incidents preceding her transfer, stemming from first, the CST’s professional decision not to evaluate a particular student, and second the Board’s belief that Bodenlos had, without authority, accessed the student’s school records. The Association contends that Bodenlos had also filed the DOE complaint, which resulted in a finding of three procedural violations. Finally, the Association argues that the Hearing Examiner’s reliance on In re Bridgewater Tp., 95 N.J. 235 (1984), was misplaced because its discussion about proofs relating to protected activity under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., has nothing to do with the question of prohibited punitive transfers. ¶

The Board responds that its explanation for the transfer was both given and verified. The Board contends, among other things, that there was no retaliation and that Bodenlos received only one reprimand,10/ there was no “whistle blowing,” Bodenlos agreed and verified her experience and expertise to work with these particular children, Bodenlos’s access to student records was a causative factor in the DOE’s requested remediation, and there was a history of numerous transfers for educational purposes. ¶

We have no doubt that there was evidence of hostility to Bodenlos prior to her transfer. Hand’s October 29, 2007 memorandum, although later superseded, expressed his displeasure with the CST’s decision not to evaluate the student. Hand then reprimanded Bodenlos for accessing the student’s records. Groff expressed his “disappointment” in the filing of the DOE complaint, which led to the finding of three District violations. We also have no doubt that if Bodenlos was transferred because of the CST decision not to evaluate, her access to student records, or the filing of the DOE complaint, the transfer would be disciplinary within the meaning of N.J.S.A. 34:13A-25. The reason why we will not find the transfer to be disciplinary is because the Hearing Examiner, who heard the witness testimony, believed both Hand and Groff that their reason for the transfer was rooted in Bodenlos’s ability to best serve the needs of the District’s children with behavioral disabilities.11/ N.J.S.A. 52:14B-10(c) provides that an administrative agency may not reject or modify any findings of fact as to issues of credibility unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent and credible evidence in the record. Based on our review of the documents and transcript, we believe that there might be sufficient evidence to find that the transfer was disciplinary. But it is not our role to act on that belief. That is because there is also sufficient, competent and credible evidence in the record to find that the transfer was not disciplinary. The Hearing Examiner relied on that latter reading of the record and we have no basis to reject those findings because they were made based on her assessment of the credibility of the Board’s witnesses. We therefore adopt the Hearing Examiner’s recommendation to dismiss the petition. ¶

OrderORDER ¶

The petition is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Commissioners Colligan, Eaton, Fuller, Krengel and Watkins voted in favor of this decision. None opposed. Commissioner Voos abstained. ¶

ISSUED: August 12, 2010 ¶

Trenton, New Jersey ¶

Note1/ In its exceptions, the Association claims that Bodenlos never provided counseling to students at Reeds Road, nor was she responsible for crisis response for students with behavioral disabilities at either Reeds Road or Arthur Rann School. We reject this exception because the Association has not supported it by citation to any portions of the record as required by N.J.A.C. 19:14-7.3(b). ¶

2/ The Hearing Examiner noted that a number of exhibits were identified but not offered into evidence. H.E. at 6 n.3. ¶

3/ In its response to the exceptions, the Board asserts that the memorandum was not retracted, but that another letter was issued “in lieu of” the memorandum. That other letter is also not in the record. ¶

4/ The Hearing Examiner found in finding no. 15 that Groff was concerned that the student at issue had been identified to a third party and that the student and parents could be negatively affected by the investigation. In its exceptions, the Association argues that it cannot be considered a finding of fact that the parents and students could be negatively affected by the investigation where the only support for such a finding is the self-serving one of Groff. We reject this exception because the Hearing Examiner found only that Groff had the concern that the students and parents could be negatively affected. She did not find that they, in fact, could be affected. ¶

5/ The Hearing Examiner stated in finding no. 16 that the record is unclear as to what retaliation Bodenlos was referring. The Association excepts to this finding and relies on Bodenlos’s affidavit provided in support of her petition. There were 26 exhibits attached to that affidavit. N.J.A.C. 19:18-3.11 describes the record before the Commission after a hearing. The record does not include exhibits attached to an affidavit in support of an initial petition. Accordingly, we reject this exception, but have no doubt that Bodenlos believed that she was being retaliated against. We agree, however, with the Hearing Examiner that the specifics of her claim of retaliation in her March 11 e-mail is not clear. ¶

6/ Based on a memorandum from Hand to Bodenlos, the Hearing Examiner found that Bodenlos had referred to her experience and expertise working with students with behavioral problems. In its exceptions, the Association states that Bodenlos has never called herself an expert. We reject this exception. The memorandum is in the record and the Association has not pointed to any other portion of the record that contradicts that finding. ¶

7/ The Hearing Examiner’s finding no. 25 states that neither the exhibits nor Hand’s testimony explains the reasons for the transfers or whether they were essentially voluntary or involuntary. The Association excepts to this finding based on Hand’s testimony that only one person did not want to be transferred. We will modify this finding to indicate that only one transfer was involuntary. ¶

8/ The Association excepts to the Hearing Examiner’s finding no. 30 that the District implemented the remedial action recommended in the DOE report by conducting an in-service for employees on accessing student files and reviewing its procedures on access to student records. The Hearing Examiner based her finding on Groff’s testimony. Groff stated that “We received findings from the department, New Jersey Department of Education.” He was then asked, “Were there in-services taking place after that?” He answered, “Yes.” He was then asked, “And did in fact the method of reviewing and accessibility of student records, does that come into play?” His answer, “Yes.” It is not clear from this testimony that Groff was stating that the in-service was in response to the DOE report. Given that the report does not recommend in-service training about access to student records, and given other evidence that the in- service on student access took place on January 24, 2008, before the DOE complaint was filed, we reject this finding. ¶

9/ The Association’s final exception is that Bodenlos’s performance rating was reduced from “Distinguished” to “Effective” with no explanation from Hand. The exception relies on documents not in the record and will not be considered. ¶

10/ The Board states that Association Exhibit C verifies that a March 25, 2008 letter of reprimand was the first and only letter of reprimand. It appears that the Board was probably referring to the January 25, 2008 letter of reprimand discussed above at page 4. That reprimand concerned electronic accessing of student records. ¶

11/ We reject the Association’s exception that contends that the Hearing Examiner’s inappropriately relied on Bridgewater’s test for assessing allegations of retaliation for protected activity. The Hearing Examiner did not apply the Bridgewater test, but simply stated that evidence of an intention to punish in a disciplinary transfer case corresponds to the type of evidence necessary to prove retaliation for engaging in protected conduct in an unfair practice case. ¶