In Bound Brook Board of Education v. Glenn Ciripompa, the Supreme Court of New Jersey held that an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim under the Law Against Discrimination (LAD) to a claim of unbecoming conduct in a tenured teacher misconduct hearing.
Facts of the Case
Defendant Glenn Ciripompa is a tenured high school math teacher in the Bound Brook School District (District). The Bound Brook Board of Education (Board) charged defendant with two counts of unbecoming conduct after an investigation into the transmission of nude photographs uncovered defendant’s pervasive misuse of his District-issued laptop and iPad, as well as evidence of inappropriate behavior toward female colleagues, often in the presence of students. Count I of the complaint centered on Ciripompa’s improper use of the District-issued laptop and iPad, while Count II set forth allegations concerning his inappropriate behavior.
Pursuant to the Tenure Employees Hearing Law (TEHL), the matter was referred to an arbitrator. He determined that the Board failed to prove that the conduct charged in the second count met the four-prong hostile work environment test set forth in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 603-04 (1993). In his analysis of Count II, the arbitrator noted that, “[w]hile the charges contained in Count II do not specifically state sexual harassment, it is clear from the nature of the allegations and the cited policy that this is in fact the case, as [defendant] has likewise recognized.”
The arbitrator found that the Board had proven the allegations underlying Count I but dismissed Count II with prejudice, reducing the penalty from dismissal to a 120-day suspension without pay. On appeal, the Superior Court reversed the arbitrator’s decision, holding that the arbitrator “erroneously changed the nature of Count II and imposed an inappropriate standard.” However, the Appellate Division reinstated the award, finding no error.
The New Jersey Supreme Court held that “[t]he arbitrator impermissibly converted the second charge [of unbecoming conduct] into one of sexual harassment.” Accordingly, it deemed the arbitrator’s award invalid and remanded the case to be decided by a new arbitrator.
While the court acknowledged that an arbitration award is “not to be cast aside lightly,” it noted that there are several statutory bases upon which a court may vacate an arbitral award. Citing the Third Circuit’s decision in Metromedia Energy, Inc. v. Enserch Energy Servs., 409 F.3d 574, 579 (3d Cir. 2005), the court concluded that “a claim that an arbitrator decided a legal question not placed before him or her by the parties is tantamount to a claim that the arbitrator ‘imperfectly executed [his or her] powers’ as well as a claim that the arbitrator exceeded his or her authority within the meaning of N.J.S.A. 2A:24-8(d).”
In this case, the court found that the arbitrator “imperfectly executed his powers” as well as exceeded his authority by failing to decide whether Count II stated a successful claim of unbecoming conduct in support of termination. As highlighted by the court, “proving hostile work environment is not necessary to satisfy the burden of showing unbecoming conduct.” Rather, a charge of unbecoming conduct requires only evidence of inappropriate conduct by teaching professionals.
Here, the arbitrator impermissibly transmuted the allegation of unbecoming conduct into a charge of hostile work environment sexual harassment. As explained in the opinion:
Here, the arbitrator erroneously faulted the Board for failing to prove a charge that it did not bring. The arbitrator erred in his reliance on Lehmann because he imposed a different
and inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim. The arbitrator “imperfectly executed” his power by misinterpreting the intentions of the Board so significantly as to impose a sexual harassment analysis, when such an analysis was wholly ill-suited in this context. The Lehmann standards for hostile-work-environment, sexual-harassment claims arise in an entirely different context -- under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.
As the decision highlights, school boards should use precise language when filing tenure charges. Had the complaint been drafted more specifically, the costly legal dispute likely could have been avoided.
For more information about the decision in Bound Brook Board of Education v. Glenn Ciripompa or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.