Alan Schorr’s Employment Case of The Week ending July 25, 2014

Kolodziej v. Board of Education of Southern Regional High School District, Ocean County, __ N.J. Super. __; 2014 N.J. Super. LEXIS 105 (published) (N.J.App.Div. July 25, 2014)

This week, in a published opinion, the Appellate Division made clear that maternity leave should not and does not interfere with a teacher’s entitlement to tenure upon otherwise satisfying all other requirements.

Darcy J. Kolodziej was a full-time health and physical education teacher with the Southern Regional Board of Education during the 2002-2003, 2003-2004, and 2004-2005 academic years. On September 1, 2005, she took a Board-approved unpaid maternity leave, which lasted until June 30, 2006. She returned on September 1, 2006 and worked continuously through the end of the 2006-2007 school year. At the end of that year, she was terminated as part of a reduction in force (“RIF”). An issue remained as to whether, had she been granted tenure, she would have had the seniority to avoid terminated as part of the RIF.

Ms. Kolodziej appealed to the Department of Education and was granted reinstatement, $137,212, and seniority for the three years that it took to have the hearing. Three more years later, on May 16, 2013, the Commissioner rejected the decision, concluding that Ms. Kolodziej had not attained tenure at the time of her dismissal. Accordingly the Department of Education did not address the issue of seniority since it found no tenure.

It is remarkable that this is a case of first impression, but apparently no other New Jersey School District had attempted to strip a teacher of tenure simply because they took maternity leave. In any event, the Appellate Division reversed, finding that Ms. Kolodziej was continuously employed during her maternity leave. They pointed out that she was not a new hire for the 2006-2007 school year but rather showed up as if she were continuing her employment.

The Appellate Division analyzed the Family Medical Leave Act and the New Jersey Family Leave Act and held that these laws require an employer to return the employee to the same position that he or she was in before the leave and shall not result in the loss of any employee benefit, in this case, tenure.

Because the Department of Education had never addressed the issue of whether Ms. Kolodziej had enough seniority to have escaped the RIF, that issue was remanded to the Department of Education.

Petitioner’s counsel: Aileen M. O’Driscoll, Zazzali, Fagella, Nowak, Kleinbaum & Friedman, P.C.

Respondent’s counsel: Matthew B. Thompson, Berry Sahradnik Kotzas & Benson, P.C.

Board of Education’s counsel: Caroline Jones, D.A.G., for John J. Hoffman, Acting Attorney General.

Appellate Judges: Perrillo, Messano and Alvarez (Opinion by Perrillo).

Trial Court Judge: Donald S. Coburn, J.S.C.