P.E.R.C. No. 2025-5, Camden B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CAMDEN CITY SCHOOL DISTRICT, Respondent, -and- Docket No. TI-2024-003 K.L., Petitioner. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants a teacher’s contested transfer petition filed against the Camden City School District. The Commission finds that the District violated N.J.S.A. 34:13A-25 when it transferred the Petitioner between worksites for predominantly disciplinary reasons. The teacher was returned to work after spending a lengthy period on administrative leave pending the outcome of a disciplinary investigation. The Petitioner was then simultaneously disciplined and transferred to another worksite. The Commission orders the return of the Petitioner to her original work location. The Petitioner also seeks monetary damages, but the Commission declines to award make-whole relief or compensatory damages. ¶

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 CAMDEN CITY SCHOOL DISTRICT, RESPONDENT, -and- Docket No. TI-2024-003 K.L., PETITIONER. ¶

AppearancesAppearances: ¶

For the Respondent, Brown & Connery, LLP, attorneys (Louis Lessig, of counsel) ¶

For the Charging Party, Selikoff & Cohen, P.A., attorneys (Keith Waldman, of counsel; Liz Pudel, on the brief) ¶

DECISION ¶

On February 8, 2024, K.L., a teacher employed by the Camden City School District (District) petitioned for a contested transfer determination. K.L. alleges that the District transferred her between work locations for disciplinary reasons in violation of N.J.S.A. 34:13A-25. The District filed an Answer on March 15, admitting and denying certain allegations averred in the petition. The Answer was supported by the certification of Theresa Reese, Chief Talent Officer for the District. K.L. replied to the Answer on March 27. ¶

On April 30, 2024, the matter was assigned to a Commission representative to clarify the issues in dispute and explore the possibility of settlement. N.J.A.C. 19:18-3.2. The conference occurred on May 21 and the parties were unable to reach settlement. ¶

The petitioner requested an evidentiary hearing. The Board objected to petitioner’s request, asserting it would rely on its Answer and Statement of Facts. A determination was made that no substantial and material facts were in dispute requiring a hearing, and a briefing schedule was set pursuant to N.J.A.C. 19:18-3.9. On June 20, the parties submitted briefs in support of their respective positions and on July 3, submitted replies. The following facts appear. ¶

The District has employed K.L. as a Physical Education and Health teacher at the Charles E. Brimm Medical Arts High School (Brimm) for approximately twenty years. K.L. has been an employee of the District for approximately forty years. On June 7, 2023, the District placed K.L. on administrative leave following allegations that she improperly changed a student’s grade from a “D” to an “F” in February of that year. Subsequently, the District’s outside attorneys, Brown & Connery, LLP, conducted an investigation into the allegations and produced a Confidential Investigation Report (Investigation Report) on August 29, 2023. ¶

Based on the interviews of K.L. and a school principal, C.M., the Investigation Report determined that Physical Education teachers K.L., S.M. and G.G. attempted to input student grades into the electronic grades system on January 31, 2023. The next day, Yvette Pruitt, a guidance counselor, informed K.L. that none of the grades made it into the system. On February 3, K.L. again entered the grades for students in her classes, while S.M., who had just retired, requested that K.L. enter his grades. K.L. stated in the interview that she refused the request. The Investigation Report found that C.M. entered S.M.’s grades from K.L.’s personal laptop at K.L.’s home on February 4, a Saturday, before they went on a shopping trip together. The “Findings and Conclusions” Section of the Investigation Report states as follows: ¶

III. FINDINGS AND CONCLUSIONS ¶

Although the investigation finds it odd that [S.M’s] grades were entered by [C.M.] at [K.L.’s] home using one of [K.L.’s] laptops, on a Saturday before both went shopping, the investigation could not discern that there was any intent to fabricate a grade from a “D” to an “F” . It appears [S.M’s] extended absence and retirement created some last- minute hectic efforts to input his grades. [C.M.] states she entered the grades and there is no evidence to the contrary. The investigation could not discern any motive for why [C.M.] (or [K.L.]) would want to change the grade from a “D” to an “F” . [C.M.] states she does not even know the student at issue and there is no evidence to the contrary. Whether it is a “best practice” for a school principal to enter grades of an absent and retired teacher on a private laptop using another teacher’s password is beyond the scope of the investigation as the investigation only sought to determine if a student grade had been intentionally altered. ¶

Following the issuance of the Investigation Report, K.L. was informed by the District’s General Counsel that she would be returned to work on September 1, 2023. However, prior to K.L.’s reinstatement, a member of the Board of Education had additional questions and concerns regarding the alleged improper grade change. This caused the District to extend K.L.’s administrative leave while it conducted further investigation. ¶

On December 28, 2023, a Supplemental Investigation Report was issued. The interviewees included Pruitt, K.L. (for a follow-up interview), and Ciani Green, a Data Analytics Senior Manager. The Supplemental Investigation Report made the following “Findings and Conclusions” : ¶

The investigation concludes that more likely than not due to some type of computer problem, [K.L], [G.G.] and [S.M.] were not able to post their grades on [S.M.’s] last day of work, Tuesday, January 31, 2023. [K.L.] asked Pruitt to address the problem and sometime later that week [K.L.] was advised she could post the grades. ¶

However, based on the forensic evidence, the Investigation concludes that more likely than not it was K.L., not [C.M.], who entered [S.M.’s] grades on Friday, February 3rd, and that [K.L.] did so while at work and not after school at [K.L.’s] home. [K.L.] would have used [S.M.’s] password in order to enter grades into the system. In doing so, some grades were changed, mostly with grades being reduced, including one student’s whose grade changed from a “D” to an “F” , but also with one student whose grades went up from a “B+” to an “A- “. ¶

However, the investigation could not: (1) determine why [K.L.] and [C.M.] would simply not have admitted the [sic] [K.L.] entered the grades and instead advised that it was [C.M.] who entered the grades and (2) regardless of who entered the grades, that there was any evidence that [K.L.] and [C.M.] intentionally sought to alter the grades of any students. It is more likely than not, as related by [K.L.], that she did not know [S.M.’s] students and thus she would not have had any reason to change their grades downwards because she harbored any ill-will or animus towards them. ¶

On January 25, 2024, K.L. and District administrators met to discuss the outcome of the investigation and her employment status. K.L.’s supervisors informed her that they were recommending an increment withholding to the Superintendent for a lack of candor during the investigation and other policy violations. At the same meeting, K.L. was also informed that her administrative leave was ending and that her work location was changed from Brimm to East Side High School (East Side). Documentation of both the increment withholding recommendation and the transfer were provided to K.L. on the same day. ¶

K.L.’s written notice of the increment withholding states in pertinent part as follows: ¶

Statement of Findings ¶

An investigation was launched after the district received a complaint that a student attending Brimm Medical Arts grade in physical education was changed from a “D” to an “F” in Genesis after the retirement of the teacher of record. During the investigation process, both you and Principal [C.M.] inputted the grades of that teacher using one of your personal electronic devices and the retired teacher’s password due to a computer problem experienced at the school. ¶

Based on the forensic evidence, the investigation concluded that more likely than not, the following is true: ¶

· You entered the retired teacher’s grades and not Principal [C.M.] ¶

· This action occurred on Friday, February 1, 2023, while you were at work and not after school hours at your home. ¶

· You used the retired teacher’s password in order to enter grades into Genesis. The grades of many students were reduced at this time, which included the student in question, and one student’s grade was increased from a “B+” to an “A-.” ¶

Effect of this Letter: ¶

Based on the information available, you lacked candor when you failed to give complete evidence during this investigation. In addition, you entered student grades under someone else’s login. Your conduct constitutes a major violation of District Policy. As a result, you will be recommended to the Superintendent for an increment withholding. ¶

This Letter is a serious step in the District Progressive Discipline process and will be placed in your personnel file. You are expected to be upfront and honest at all times with District administration, with your colleagues, and with your students. You are also directed to immediately refrain from using another person’s username and password to access any District system. Failure to do so may result in the District considering one or all of the following: ¶

· Additional Notice to Employee; Letter to File ¶

· Development Plan ¶

· Ineffective Ratings ¶

· Recommendation for tenure charges ¶

The District’s Chief Talent Officer certifies that at the time of K.L.’s initial placement on administrative leave, there were no other female Physical Education teachers working at Brimm, which posed an issue in class assignments and curriculum. T.F., another teacher, returned from a leave of absence on December 1, 2023. The District’s Chief Talent Officer certifies that T.F. was assigned to Brimm to ensure there was a permanent female Physical Education teacher at the school, filling the assignment left empty by K.L. being placed on administrative leave. ¶

The District further asserts, through uncertified facts, that another reason K.L. was transferred to East Side was because it was facing a deficiency of females in their Physical Education Department at East Side. However, K.L. certifies that there had been a vacancy for a female Physical Education Teacher at East Side since September 2021, and that since then at least three female Physical Education teachers have been hired, none of whom were placed at East Side. ¶

Finally, the Board also contends through uncertified facts that East Side would be undergoing major construction, which would require staff and students’ relocation to a different site. The Board asserts that K.L.’s prior experience with working at an alternate site during a construction project would be useful in her East Side assignment. ¶

N.J.S.A. 34:13A-25 prohibits transfers of school employees between work sites for disciplinary reasons. The Commission has jurisdiction to determine whether a transfer is predominately disciplinary and, if so, to take reasonable action to effectuate the purposes of our Act. N.J.S.A. 34:13A-27. Where we find that a school employee was transferred for disciplinary reasons, the remedy is to return the employee to the former work site. The petitioner has the burden of proving its allegations by a preponderance of the evidence. Irvington Bd. of Ed., P.E.R.C. No. 98-94, 24 NJPER 113 (¶29056 1998). ¶

In West New York Bd. of Ed., P.E.R.C. No. 2001-41, 27 NJPER 96 (¶32037 2001), the Commission set standards for assessing whether a transfer is disciplinary under our statute. The Commission stated: ¶

Our case law does not establish a bright line test for assessing whether a transfer is disciplinary. . . . [O]ur 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 these 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 affected predominantly to further an employer’s educational, operational, or staffing objectives. Other of our cases have found that 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. ¶

This case law provides a framework for assessing whether a transfer is disciplinary under N.J.S.A. 34:13A-25, and is consistent with what appears to have been the Legislature’s understanding that a transfer is predominately disciplinary when it is punitive and/or is not made for educational or staffing reasons. Accordingly, 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. ¶

[27 NJPER at 98; citations omitted.] ¶

The Commission finds that K.L.’s transfer from Brimm to East Side was predominantly for disciplinary reasons. One of the key factors considered in West New York is whether the disputed transfer was closely related in time to an alleged incident of misconduct. Here, the Supplemental Investigation Report, which made unfavorable findings about K.L., was issued on December 28, 2023. The increment withholding, which the Board itself characterized as disciplinary in its notification to K.L, and K.L.’s transfer to East Side occurred on the same day, January 25, 2024. The very close timing of the issuance of the Supplemental Report to the transfer, and the fact that the increment withholding and the transfer occurred simultaneously, weighs strongly in petitioner’s favor that the disputed transfer was predominately for disciplinary reasons, a finding consistent with precedent. See Woodbridge Tp. Bd. of Ed., P.E.R.C. No. 2024-46, 50 NJPER 402 (¶98 2024) (contemporaneous disciplinary increment withholding and transfer is indicative of disciplinary transfer); see also East Orange Bd. of Ed., P.E.R.C. No. 2020-13, 46 NJPER 151 (¶35 2019). ¶

The District claims that they had to return K.L. to active duty prior to making any personnel decision, which was why it imposed the increment withholding and the transfer on the same day. Even accepting that as true, it is still necessary for us to look at the complete picture and timeline of events. We note that the investigation, on a limited issue involving limited actors, was conducted over a protracted period. K.L. was initially put on administrative leave on June 7. 2023. The Investigation Report was issued on August 29, 2023. Due to continuing questions from the Board, the investigation was reactivated and Pruitt and Green were interviewed, and a follow- up interview was conducted of K.L. The Supplemental Investigation Report was not issued until December 28, 2023. Due to the lengthy period over which the investigation was conducted, the District characterized K.L.’s empty assignment at Brimm as a vacancy needing to be filled instead of a temporary absence. However, the length of time that it took to complete the investigation was fully within the Board’s control, not K.L.’s. Considering all of these factors together, the Board at least partially created or contributed to any operational issues that it puts forward to support K.L.’s transfer. ¶

Moreover, the District assigned T.F. to K.L.’s position on December 1, 2023, only shortly before the Supplemental Investigation Report was issued on December 28, 2023. Therefore, by placing T.F. in K.L.’s position, the District gained only a short period of having K.L.’s position filled before the investigation was completed and K.L could return to work. ¶

Regarding the District’s asserted need for a female Physical Education teacher at East Side, K.L. certifies that there had been a vacancy for a female Physical Education teacher at East Side since September 2021 that had not been filled, and that three female Physical Education teachers had been hired since that time and not assigned to East Side. This certified fact by K.L. was unrebutted by the District and undermines its stated urgency for placing K.L. at East Side. ¶

With respect to the District’s uncertified reasoning for wanting to place K.L. at East Side due to her prior experience with working at an alternate site during a construction project, even accepting that as true, that reason alone does not outweigh the aforementioned factors. Weighing all of the above considerations, we find that K.L.’s transfer was predominately for disciplinary reasons. ¶

We next address remedy. In its reply brief and for the first time, K.L. certifies that as a direct result of her transfer to East Side, she suffered monetary damages. Specifically, K.L. avers that she was removed from stipend positions that she would have held but for her transfer to East Side. K.L. also certifies that as a result of her transfer to East Side, she lost the ability to store any personal or professional items on employer property, which necessitated the rental of a storage unit. ¶

K.L. argues that a request for monetary damages as part of a contested transfer petition is an issue of first impression for the Commission. She urges the Commission find that it has broad remedial authority to award damages to effectuate the purposes of the Act and argues that the Commission should adopt the current National Labor Relations Board’s interpretation of “make whole relief” to include “all direct or foreseeable pecuniary harms that result from a respondent’s” action. K.L. acknowledges that the parties dispute whether she would be entitled to monetary relief and requests a proof hearing on damages to adjudicate the claim. ¶

The District, in its accepted sur-reply, argues that the Commission should not consider awarding any monetary damages because raising the issue in a reply brief is procedurally defective. Further, the District contends that the Commission has no history of awarding monetary damages in contested transfer cases and it should limit its remedy to a recission of the transfer. The District also factually disputes whether K.L. would have been entitled to any of stipend positions but for her transfer and contests the amounts sought by K.L. Finally, the District also avers that the costs of the storage unit are not related to the transfer and categorizes it as superfluous. ¶

In 1989, the Legislature amended the Act to make it unlawful to transfer an education employee for disciplinary reasons. N.J.S.A. 34:13A-25. The Legislature directed that when PERC found that the transfer of an education employee was disciplinary, PERC should “take reasonable action to effectuate the purposes of the Act.” N.J.S.A. 34:13A:27c. The remedy that we have applied in meritorious contested transfer cases since 1989 is to return the employee to the original work site. Putting aside any procedural issues that may exist regarding petitioner’s late claim for damages, we find that the facts of this case do not warrant expanding the well-established remedy that we have applied in all previous contested transfer cases. A return to the original work site is “reasonable action to effectuate the purposes of the Act.” In contested transfer cases, our statutory role is to determine whether the transfer itself was disciplinary. N.J.S.A. 34:13A-27a. Our jurisdiction does not expand to considering any potential effects that may have occurred outside of the transfer (like K.L.’s alleged loss of a stipend position or costs for a storage locker). Camden Bd. of Ed., P.E.R.C. No. 2001-9, 26 NJPER 366 (¶31148 2000) (finding that a removal from a coaching position, and other claims beyond the transfer between worksites, is outside of the Commission’s jurisdiction). ¶

OrderORDER ¶

The Camden City School District is ordered to return K.L. to her Physical Education Teacher position at Charles E. Brimm Medical Arts High School. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford, Kushnir, and Papero voted in favor of this decision. None opposed. Commissioners Eaton and Higgins were not present. ¶

ISSUED: September 26, 2024 ¶

Trenton, New Jersey ¶