H.E. NO. 2003-14

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

IRVINGTON BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-H-2002-47

IRVINGTON EDUCATION ASSOCIATION,

Charging Party.

SYNOPSIS

A Hearing Examiner recommends that the Commission dismiss a Complaint based upon an unfair practice charge filed by the Irvington Education Association against the Irvington Board of Education. The charge alleges that the Board violated the New Jersey Employer-Employee Relations Act when it refused to appoint Adaiye Foluke to a paid summer language arts literacy curriculum committee. The charge alleges that the Board's refusal was in retaliation for Foluke's protected activities.

The Hearing Examiner recommends that the circumstantial evidence failed to prove that the Board had been hostile to Foluke's protected activities, pursuant to the standard set forth in In re Bridgewater Tp., 95 N.J. 235 (1984).

H.E. NO. 2003-14

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

IRVINGTON BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-H-2002-47

IRVINGTON EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, Hunt, Hamlin & Ridley, attorneys

(Ronald C. Hunt, of counsel)

For the Charging Party, Oxfeld Cohen, attorneys

(Nancy I. Oxfeld, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On August 16, 2001, the Irvington Education Association filed an unfair practice charge against the Irvington Board of Education. The charge alleges that the Board 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 refusing to appoint Andaiye Foluke to the English/Language Arts Literacy Curriculum Review Committee, in retaliation for her protected activities.

On January 14, 2002, a Complaint and Notice of Hearing issued (C-1).2/ On January 24, 2002, the Board filed an Answer, denying that it violated the Act and setting forth several defenses (C-2). A hearing was held on April 15, 2002; the parties submitted post-hearing briefs by July 18, 2002 and reply briefs by July 31, 2002. Based upon the entire record, I make the following:

FINDINGS OF FACT

1. The Association is the majority representative of a unit of all certificated personnel employed by the Board, excluding supervisors, secretaries, security guards, custodial and maintenance employees, and transportation employees (C-3).

2. Andaiye Foluke has been employed by the Board as a certified teaching staff member since 1986. Foluke began her employment at Grove Street School as a sixth grade teacher in a "self-contained" classroom (T113-T114; T140). In a self-contained elementary classroom, assigned students are taught math, language arts, social studies and science all by the same teacher (T113-T114; T158-T159). Students have different teachers only for "special" classes, such as music, art, foreign language and physical education. Teachers in self-contained classrooms are certified to teach all elementary subjects (T158-T159). Foluke taught all elementary subjects, including science, social studies, language arts, math and family life during her 13 years at Grove Street School (T141).

Foluke was laterally transferred to University Six School for the 1999-2000 school year. Unlike the self-contained classrooms at Grove Street, University Six School is considered to be "semi-departmentalized," meaning that students remain with their homeroom teacher for four periods per day and spend their other two periods with a different teacher (T113-T114; T142-T143). All sixth-grade students report to University Six School (T114).

3. Foluke has taught language arts throughout her Board employment. She currently teaches science and language arts to sixth grade students. Of her six class periods per day, Foluke teaches three science classes. In her other three periods, Foluke teaches language arts, which consists of six "strands": 1) reading; 2) writing; 3) spelling or vocabulary; 4) grammar; 5) mechanics and 6) oral public speaking (T115-T116; T140-T143). Foluke has taught the same balanced schedule at University Six School in 1999-2000, 2000-2001 and 2001-2002 (T115-T116).

All 15 University Six School teachers teach the 6 strands comprising language arts to their homeroom students (T119-T120). Also in a typical day, a group of three teachers working as a team (with each teaching either science, social studies or math) teach for three periods a day. In her team, Foluke teaches science (T119; T141).

In 1988 or 1989, Foluke served on a summer curriculum writing committee for kindergarten through grade 12 (K-12) with Ethel Davion, the language arts supervisor at that time. The curriculum was not revised again until the summer of 2001 (T117). Foluke has also tested or "piloted" new book series and programs (T117-T118). In about April 2000, Davion became the Assistant Superintendent for Academic Affairs, providing direction to principals to ensure that the schools' curricula meet State mandates. She possesses an M.A. degree in educational administration (T62; T63; T116-T117).

4. Foluke is an Association member and has held several positions with the Association (T120-T121; C-1). From 1998-2000, Foluke was a member of the Association's negotiations team and in 1999-2000, she served as a building representative. During the 2000-2001 school year, Foluke served as grievance co-chair and in June 2001, she became Association vice-president (T120-T121). Foluke and Davion have discussed an unspecified number of contractual grievances since April 2000 (T66). All Association grievances bear Foluke's name and that of President Madeline Edwards (T134-T136). I infer that their names signal to the Board the Association's authorization to process grievances.

Foluke testified that Board Superintendent Dr. Ernest Smith "offered her positions" to leave the Association on three separate occasions (T134-T139). Foluke testified that she was once "taken out of" a negotiations meeting and offered the assistant superintendent position at Union Avenue School (T136). According to Foluke, the solicitation was in "probably to maybe April or May" and when asked for the year, she testified: "I want to say 2000" (T136-T137). Foluke next testified that during negotiations, "and again that would have been between 1999-2000," Board President Andrea McElroy and Vice-President Lorene Capers, took her to a diner and solicited her to disassociate from the Association, offering to pay her daughter's college tuition if she agreed (T137-T138). Capers testified on behalf of the Board at the hearing and was not asked to confirm or deny Foluke's testimony about the solicitation at the diner (T175-T188). I draw an adverse inference from that omission because Capers would be favorably disposed to deny the solicitation, if it did not occur. Finally, Foluke testified that in November 2001, Superintendent Smith offered her a promotion: ". . [B]efore he left [the Board] he wanted to make me an assistant vice-principal but I had to leave the Association" (T139).

Foluke refused the Board's offers. The Board never paid tuition for Foluke's daughter. None of the solicitations were written. No witnesses were called to corroborate or refute Foluke's testimony (T139-T140). I credit it.

5. Lucia T. Schneck has been employed by the Board as a K-12 language arts literacy supervisor since 1999. Her duties include evaluating and training teachers, evaluating programs, screening textbook selections and overseeing language arts assessment and curriculum development (T15-T16).

Schneck promptly discovered that the Board's language arts curriculum needed revision to comply with State law. She recommended revision to the Superintendent and to the Director of Curriculum. During the 2000-2001 school year, the Board decided to proceed with revisions to the curriculum, pursuant to Schneck's recommendation (T19; T43). The Board wanted a K-12 curriculum revision completed by the end of summer 2001. On February 21, 2001, Schneck issued a memorandum, together with a posting to all K-12 english/language arts teachers and specialists, soliciting curriculum writers to revise the language arts literacy curriculum (T19-T20; T46; CP-1). Foluke received the memorandum and posting (T122; T144). Interested candidates were to apply for the $28 per hour positions (to a maximum of 20 hours) not later than March 16, 2001 (CP-1). Schneck considered teachers that worked extensively in the language arts, and preferably those with "curricular experience" to be ideal for the curriculum writer positions (T46; T110).

6. In late February 2001, Foluke sent a letter expressing interest to Schneck (T122-T123; T144-T145). In April, Foluke encountered Schneck at a job fair. Schneck asked Foluke why she had not responded to the posting; Foluke replied that she had sent a letter. Schneck explained that the Board required her to re-post the notice and she asked Foluke to respond in writing to the new notice. Schneck also told Foluke that she needed people with experience and that her previous curriculum committee experience would be valuable (T122-T123). Schneck testified that she "probably encouraged [Foluke to apply] because I really needed bodies" (T28). She conceded: "I wasn't screening [the candidates] extensively because as indicated, I had a lot of trouble getting teachers to want to come on board" (T51). Sometime after the meeting, Schneck called Foluke to remind her to send her response (T122-T123; T145). Foluke submitted a second letter of interest to Schneck (T123-T124; T145).

Teachers of language arts were Schneck's first choice for the curriculum writing committee. By April 2001, and in the absence of interested candidates, Schneck desperately sought "bodies" who were somewhat qualified (T47; T51-T52). Schneck wanted as many curriculum writers as possible in order to increase funding for the project (T52). Schneck knew Foluke to "teach predominantly science" and recommended her for the language arts curriculum writer position (T59; CP-2). On rebuttal examination, Schneck testified that she regarded Foluke as highly as the other staff she recommended for the position (T28-T29; T170). Schneck's testimony is seemingly equivocal; Schneck issued the memorandum and posting directly to Foluke, knew of her previous curriculum-writing experience, and urged her to apply for a position in early April, demonstrating her belief that the union vice-president was desirable as a curriculum writer in language arts literacy. Schneck also testified of her knowledge that Foluke was a "science" teacher; and that her desperation for volunteers drove her solicitation of Foluke, impliedly suggesting a lack of enthusiasm for Foluke's language arts literacy qualifications. I draw no such (latter) inference from Schneck's testimony. Any equivocation or ambivalence may be attributable to a knowledge revealed in an aside in one of her answers to a question on direct examination by Association counsel:

Q: How did you come to know Ms. Foluke?

A: I had seen her at Board meetings. I learned she was a teacher in the district. I learned through whatever means, talk, that she was - I knew that she was at University Six School. I knew she was a science teacher. I probably learned that she had some affiliation with the IEA. Politics is not always my strength, so I learned things late, you know.3/ [T28]

On April 23, 2001, Schneck issued a memorandum to Foluke and 8 other applicants, advising that their names will be submitted to the Board for approval at a May agenda meeting (T29-T32). Unit personnel listed were Judy D'Alessio, a reading specialist; Shirley Dutton, a high school English teacher; Foluke; Jackie Hirschfield, an elementary teacher with language arts curriculum experience; Terri Jefferson, a middle school language arts teacher; Lori Jenkins, a social studies teacher; Linda Kronstadt, a basic skills teacher; Sara Sutton, a high school English teacher; and Cary York, a "relatively new" elementary teacher, who, according to Schneck, "teaches language arts in the course of every-day work for at least two periods a day" (T59-T60; T166-T167; CP-2). I credit the facts reported about York but regard Schneck's phrasing as an anticipatory bow to Assistant Superintendent of Academic Affairs Ethel Davion's testimony that she believed that Foluke taught only one period daily of language arts (see finding no. 8). Copies of the memorandum were also issued to Davion and Personnel Director Anthony Salters, among others (T107; CP-2).

Schneck told Davion of her extreme difficulty in enlisting candidates, and that her list set forth practically every individual she persuaded to apply (T47). When Schneck handed Davion her list of candidates, Davion said, "Well, okay. We'll submit it to the committee and we'll see what happens" (T108).

In May, Schneck revised her language arts literacy curriculum writers list when she discovered other interested teachers, and learned that recommended teacher Linda Kronstadt was no longer available as a writer (T173; T174). Schneck also testified that "the earliest grade level I taught was middle school, so I wanted people that really knew elementary curriculum" (T164). When asked to define "elementary," Schneck testified: "K-5, K-6" (T164). In the absence of specific and contradictory evidence about Foluke's teaching schedule and experience, and in light of Schneck's enthusiasm for Foluke to apply for a position, I find that Foluke fit Schneck's definition of someone who "really knew elementary curriculum." Schneck testified on redirect rebuttal examination ". . . As I learned more of what was really going to happen [after her April 23 list was submitted] I realized how important it was for me to have more primary people there, additionally to have primary people there" (T171). She defined "primary" as "K-2." Schneck's testimony was unrebutted. Patricia Allen, Sheri Doll, Rosemary Lipinski, and Tina Lindor were added to the recommended list of language arts literacy curriculum writers (CP-3). They all were "primary" educators, Doll being a "relatively new" first grade teacher (T165-T166; T167). Schneck added: "[E]very K-5 school has the minimum of two periods a day of language arts and some have three periods a day of language arts, if you include reading" (T167). I credit Schneck's testimony and do not infer that a sixth grade class would necessarily have a different language arts schedule than classes of K-5 students. Schneck had no further role in selecting language arts literacy curriculum writers after submitting the lists of recommended candidates (T31-T32).

7. The Board personnel committee is a subcommittee of the Board and meets before the regular Board meeting in any given month. In 2001, the personnel committee members were Board President McElroy, Superintendent Smith, Assistant Superintendent of Academic Affairs Davion, and three other Board members (T83; T179). Personnel or hiring recommendations must be approved by vote of the personnel committee before proceeding to a Board meeting agenda for a vote by the full Board (T71).

Recommendations to the personnel committee arise from various sources, such as a principal or a supervisor. These recommendations are submitted to Human Resources Director Salters, who prepares the agenda for the personnel committee (T72). Davion testified that all recommendations for the agenda are first reviewed by the Superintendent, who has authority to reject any particular recommendation. If the Superintendent rejects a recommendation, the item (or candidate's name) is cut from the agenda and is not considered by the personnel committee (and by necessity, the Board) (T76-T77; T147-T148). She also testified that if the recommendation concerned a "curricular issue," Salters would ask her for approval (T72-T73). The record is not clear whether Superintendent Smith personally reviewed Schneck's recommendations before the personnel committee meeting.

8. Sometime before June 20, 2001, the personnel committee met and discussed Schneck's recommended curriculum writers (T80-T84; CP-2). The name of each individual was read aloud. When Foluke's name was announced, Board President McElroy asked what Foluke taught. Davion replied that Foluke taught "mostly science courses" (T84). Davion testified that she "understood" that Foluke "taught three science classes and maybe one language arts" (T92). Davion did not testify about the basis of her understanding. She conceded not knowing the actual "breakdown" of Foluke's teaching of language arts and science classes (T102). Davion's reply was inaccurate, as is her "understanding" because I have credited Foluke's detailed testimony about her schedule. At least one Board member, probably McElroy, was troubled by that fact, as reported by Davion (T93). Board members asked about other names on the list. Davion recognized the others because "most of them appeared to be language arts teachers or specialists" and so informed the group (T84). Unspecified Board member(s) asked questions about candidates Lori Jenkins and Judy D'Alessio, who teach social studies and language arts literacy, respectively (T87; T94; T99). McElroy objected at length to hiring Foluke to revise the language arts curriculum when "her strength appeared to be in science," according to Davion (T85; T93). She testified:

The Board members in their discussion felt that individuals ought to be writing the curriculum guide who ha[ve] demonstrated experience and expertise in those [subject] areas. They really did not want science teachers or teachers who had a strength in science doing a curriculum guide

for language arts literacy; so they sought language arts literacy teachers and I think that was the final result, that they accomplished that. [T89]

I credit Davion's testimony to the extent that she, McElroy and perhaps Smith had that discussion with other Board members on the personnel committee, who concurred with their expressed view. The group did not discuss why elementary school teachers in a self-contained classroom who taught as many or more subjects than Foluke would be desirable as curriculum writers, while Foluke would not (T104). I infer that Davion did not report that Foluke had participated in curriculum writing with her about 11 or 12 years ago.

During the personnel committee meeting, no one mentioned Foluke's Association affiliation or positions, including building representative and grievance committee co-chair (T91). I infer that her role in collective negotiations was not mentioned. Foluke's name was not approved by the personnel committee. All of Schneck's other recommendations, except Kronstadt (who became unavailable), were approved (T86-T87; T162-T163; CP-3). I credit Davion's testimony that the Board members removed Foluke from the list because they concurred with McElroy's opinion (based on Davion's characterization of Foluke's teaching load) that Foluke's area of expertise - science - would not adequately help produce a language arts literacy curriculum.

The personnel committee's approved list included representatives from kindergarten through grade 8, except for grade 6 - Foluke's grade. At no time was a replacement candidate for a 6th grade language arts literacy curriculum writer added to the list (T106). That position was never filled (T108-T109).

9. The personnel committee's approved list of candidates was placed on the agenda for the June 20, 2001 full Board meeting. Before every public Board meeting, the Board meets in a closed session, when it reviews the agenda. In the June 20 closed session, the Board members, the Superintendent, and Board counsel discussed the curriculum writers. Although Foluke's name had been deleted (i.e., not merely crossed-out) from the recommended list of candidates presented to the Board, and was not on its agenda, it nevertheless arose in the discussion (T176-T183).

The Superintendent was asked if the teachers listed were language arts teachers (T178-T180). Superintendent Smith or another Board member said that all those listed [under the category, 'Language Arts Literacy'] were language arts teachers and that Foluke was not, which explained her rejection by the personnel committee. There was no discussion about Foluke being rejected because of her Association affiliation or positions (T178-T181; T185-T187). I do not find as a fact that all applicants approved by the Board were "language arts teachers," at least so far as that term distinguishes them from Foluke.

10. On June 20, 2001, immediately prior to the public Board meeting, a written agenda was issued, pursuant to Board custom (T125). Schneck approached Foluke and said, "Andaiye, I'm so sorry. I submitted your name and it's not here" (T125). Schneck confirmed to Foluke that her name was the only one omitted from the list recommended to the Board personnel committee (T127).

Foluke showed the agenda to Association President Madeline Edwards, noting that she was not on the list of summer curriculum writers. Edwards directed Foluke to address the Board. During the public comment section of the meeting, Foluke asked the Board if there was an oversight because her name was omitted from the list of summer curriculum writers. Board President McElroy directed Foluke to speak to the Superintendent, stating that he makes the recommendations and that she knew nothing about the matter. The summer curriculum writers list without Foluke's name, together with lists of other curriculum writers under separate categories of "Computer Education," "Music," "Social Studies," and "Science" was approved by the Board (T128-T129; T153-T154; T161; T182; CP-3).

11. The Board has the authority to modify, reject, or pass a resolution. Schneck, Edwards, Davion and Foluke have attended Board meetings at which they observed the Board reject and edit resolutions. Foluke further acknowledges that the Board has specifically added or removed names from resolutions during Board meetings (T54-T55; T89; T146-T148; T160; T185). The Board does not advise Schneck of its modifications to her recommendations and Schneck never asks (T50). The Board had moved teacher Lori Jenkins' name from Schneck's recommended "Language Art Literacy" curriculum writers group to a "Social Studies" category. Jenkins teaches at University Six School (CP-2; CP-3).

12. Soon after the June 20, 2001 Board meeting, Foluke phoned the Superintendent's office to schedule an appointment to discuss the matter. Superintendent Smith was unavailable and Foluke was directed to arrange an appointment with Davion (T130; T155).

On July 3, 2001, Foluke, Edwards and Davion met in Davion's office to discuss why Foluke was not chosen as a summer language arts curriculum writer (T78-T80; T130). Foluke and Edwards asked Davion to state the Board's criteria for selecting the curriculum writers; Davion replied that she did not know (T130). Davion phoned Salters and asked him for a copy of the personnel committee records. Salters came to Davion's office but did not provide any records (T131-T132). Davion shrugged her shoulders and said that the Board could appoint whomever it wanted (T134; T155). Davion testified that "it was not her place" to tell Foluke that she was not chosen because the Board believed that her expertise was in science and not in language arts (T104; T155). I do not credit Davion's testimony regarding the reason for her silence. I am also suspicious of her feigned ignorance of the Board's "criteria" for selecting the curriculum writers. In all likelihood, Davion did not wish to disclose to Foluke that she had advised the personnel committee of Foluke's "mostly science" teaching. Such an admission would have likely prompted their further discussion of Foluke's actual language arts teaching responsibilities and her previous curriculum writing experience with Davion, when the Assistant Superintendent was the language arts supervisor (see finding no. 3).

13. In early July 2001, the curriculum writers had their first meeting. Only a small number attended. Schneck realized that she could not produce a K-12 curriculum revision, as originally planned. No sixth grade teacher had been approved and the approved seventh and eighth grade teachers failed to attend. Schneck directed the group to work on a K-5 document; a draft K-5 curriculum revision was completed by the summer's end (T39-T41; T52-T54).

ANALYSIS

In Bridgewater Tp. v. Bridgewater Public Works Ass'n, 95 N.J. 235 (1984), the New Jersey Supreme Court set forth the standard for determining whether an employer's action violates 5.4a(3) of the Act. Under Bridgewater, no violation will be found unless the charging party has proven, 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 an illegal motive has been proven and if the employer has not presented 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 motives unlawful 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 union animus was a motivating or substantial reason for the personnel action. Conflicting proofs concerning the employer's motives are for the hearing examiner and Commission to resolve.

The decision on whether a charging party has proved hostility in such cases is based upon consideration of all the evidence, including that offered by the employer, and the credibility determinations and inferences drawn by the hearing examiner. Rutgers Medical School, P.E.R.C. No. 87-87, 13 NJPER 115, 116 (¶18050 1987).

I find insufficient direct evidence proving that the decision not to approve Foluke as a summer language arts literacy curriculum writer was in retaliation for protected activity. I must next assess the circumstantial evidence to determine if the Act was violated.

The Association has proved the first two Bridgewater elements; Foluke engaged in protected activity and the Board knew it. Specifically, Foluke had participated in collective negotiations on behalf of the Association with Board representatives and she was grievance co-chair and Association vice-president, signing contractual grievances given to the Board for processing. The evidence, however, does not show that the Board was hostile to Foluke's protected conduct when it deleted her name from a recommended list of candidates for paid language arts literacy curriculum writer positions.

The Association contends that hostility is circumstantially shown by Board efforts to woo Foluke away from her membership and organizational positions; by the purported, pretextual justification that she was predominantly a science teacher; and by the facts that she was the only recommended candidate rejected by the Board and was more qualified for a position than other approved unit personnel.

Foluke was twice offered promotions in exchange for quitting the Association and once offered college tuition payment(s) for her daughter. Two of the solicitations were extended during collective negotiations for a successor agreement, demonstrating a modicum of earnestness and a desire to have Foluke leave the Association or diminish her efforts on its behalf during a period that would be especially advantageous to the Board's collective negotiations posture. The offer of payments shows a more single-minded desire to be rid of her efforts on behalf of the Association. The two offers were extended about 12-14 months before the alleged discriminatory act, and does not particularly connote hostility. The third lure was extended in November 2001, several months after the Board deleted Foluke's name from the recommended list of writers and is not particularly relevant to prove hostility. It could show a continuing Board interest in turning Foluke's allegiance away from the Association throughout the period of April 2000 through June 20, 2001 (the date of the Board's approval of the list of curriculum writers minus Foluke) and beyond. One might further infer that Foluke's protected activities, including grievance processing, were an ongoing annoyance or tiresome encumbrance to the Board throughout that period, but no particular evidence demonstrates that state of mind. The November 2001 solicitation alternatively could suggest that the Board harbored no hostility and wished to reward and promote Foluke to a supervisory position in recognition of administrative excellence.

In early April 2001, language arts literacy supervisor Schneck personally encouraged Foluke to submit a (second) letter expressing interest in a summer curriculum-writing position. She knew of Foluke's previous curriculum-writing experience. Soon afterwards, Schneck called Foluke and reminded her to file the letter. Foluke filed the letter. On April 23, Schneck, who had become "desperate for bodies" to fill the positions, recommended Foluke and 8 other unit members to the Board for paid positions in language arts literacy curriculum writing.

Foluke was the only recommended curriculum writer applicant rejected by the Board. Its personnel committee included Board President McElroy and Superintendent Smith, both of whom had directly solicited Foluke to leave the Association. The record shows that in the committee meeting, McElroy asked what Foluke taught and argued against her approval to the members present. The argument persuaded the Board members on the committee. Davion, for her part, inaccurately answered the President's question, saying that Foluke taught "mostly science." The record shows that Foluke had a teaching load comprised of equal parts of science and language arts for the three most recent and consecutive academic years. No evidence suggests that McElroy or Smith had specific and independent knowledge of Foluke's teaching responsibilities or previous curriculum-writing experience. I have inferred that Davion did not disclose to the committee the facts of Foluke's 13 years of elementary teaching at Grove Street and participation with her (Davion) on the previous language arts curriculum-writing endeavor in 1988 or 1989. Assuming that Davion intentionally withheld Foluke's relevant curriculum experience from the committee and misrepresented her teaching responsibilities, I find no evidence in the record indicating that her motive was hostility to protected conduct. Davion had met with Foluke to discuss an unspecified number of grievances on unspecified dates, and about unspecified topics. I cannot infer hostility from those meetings. Nor is there evidence that McElroy or Smith conspired with Davion against Foluke.

I also do not infer hostility from the fact of the Board's discussion of Foluke's candidacy at its June 20 closed agenda meeting, inasmuch as her name had been deleted by the personnel committee on a previous date. In the June closed session, Superintendent Smith confirmed aloud that Foluke was not a language arts teacher, merely reiterating the (inaccurate) justification cited by McElroy and Davion at the committee meeting. The question of motive again distills to Davion's negligent or intentional and undefined reasons for mischaracterizing Foluke's teaching and curriculum writing experience. The reprised discussion of Foluke's qualifications (i.e., that she was a "science" teacher not suitable for a language arts literacy curriculum writing position) before the full Board may have been prompted by a knowledge of her Association position, coinciding with the knowledge among some Board members (those on the personnel committee) that Foluke was the only candidate rejected. No evidence suggests that Foluke's Association activities were mentioned at this session or in the previous personnel committee meeting; the Board may have only reassured itself of the propriety of its decision.

I find that Foluke's qualifications for the paid position were at least as compelling as those of elementary teachers Hirschfield, Doll and York, who were approved by the committee and the full Board. The result was that the sixth grade - Foluke's grade - was the only unrepresented elementary or middle school class (K-8) among the approved language arts literacy curriculum writers. Assuming that Foluke was more qualified than the three others named, I am not persuaded that the Board was hostile. From the evidence on this record, I can conclude only that the personnel committee and full Board relied upon the substance of Davion's mischaracterization of Foluke's experience. This fact undercuts the significance of the assumption; it is enough (i.e., legally sufficient) that Hirschfield, Doll and York rationally appeared to be desirable or qualified for the position and that Foluke did not.

Finally, I have found that Davion's terse, dismissive and misleading responses to the Association's inquiry of the criteria used for selecting language arts literacy curriculum writers at their July 3, 2001 meeting bespeaks an intention to withhold facts. Standing alone or with other evidence, Davion's conduct does not prove that the Board was hostile to Foluke's protected activities when it refused to appoint Foluke to a Language Arts Literacy Curriculum writing position in June 2001.

RECOMMENDATION

I recommend that the Commission dismiss the Complaint.

__________________________

Jonathan Roth
Hearing Examiner

DATED:	January 28, 2003

Trenton, New Jersey