LARHONDA RAGLAND VS. BOARD OF EDUCATION OF THE CITY OF NEWARK, ETC. (C-000142-19, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0430-19T1
LARHONDA RAGLAND,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION OF
THE CITY OF NEWARK,
ESSEX COUNTY,
Defendant-Respondent.
_________________________
Argued September 14, 2020 – Decided February 4, 2021
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. C-
000142-19.
Stuart Ball argued the cause for appellant. (Stuart Ball,
LLC, attorneys; Stuart Ball on the briefs).
Brenda C. Liss argued the cause for respondent (Office
of General Counsel and Riker Danzig Scherer Hyland
& Perretti, LLP, attorneys; Brenda C. Liss, of counsel
and on the brief; Stephanie D. Edelson, on the brief).
PER CURIAM
Plaintiff LaRhonda Ragland appeals from the August 26, 2019 order of
the Chancery Division dismissing her complaint and confirming an arbitration
award upholding teacher tenure charges against her. We affirm.
I.
The following facts are derived from the record. Ragland was employed
by defendant Newark Board of Education (BOE) as an elementary school dance
instructor. BOE evaluates its teachers based on a rubric approved by the State
Department of Education (DOE). The rubric is comprised of five evaluation
components, called competencies, including "student progress toward mastery,"
which is weighted most heavily. DOE granted BOE an equivalency that permits
it to use the rubric, which differs slightly from the evaluation rubric established
in N.J.A.C. 6A:10-4.1.
For the 2016-2017 school year, Ragland was evaluated by Vice Principal
Regina Sharpe. She completed both Ragland's mid-year and summative end-of-
year evaluations, rating her partially effective, a below par score, for both
evaluations. In her comments, Sharpe noted that during her classroom
observation Ragland's students appeared confused because she "lacked
consistency" in her instructions by giving different and contradictory directions
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regarding dance moves that were the subject of the class. Sharpe noted that it
appeared Ragland "was making the choreography up right there" rather than
having a clear lesson plan. According to Sharpe, during the school's midwinter
concert, Ragland's students "were on the stage and it looked like they had just
learned or were even, in some cases, still learning the dance moves . . . . [I]t
was almost as if instruction was happening right there on the stage." The
performance was intended to be "a showcase of what [the students] already
learned." Although Ragland had an opportunity during the evaluation process
to provide data showing student growth, she declined to do so. Sharpe noted
that Ragland was resistant to constructive criticism, guidance, instructions, and
strategies from administrators and other effective teachers.
Ragland was assigned a corrective action plan for the 2017-2018 school
year. Ragland had primary responsibility for drafting the plan. Vice Principal
Najran Cowins testified that she provided suggested edits to the plan
emphasizing student growth metrics. Ragland did not incorporate those changes
and failed to establish measurable goals for her students. Over the course of the
school year, Ragland on occasion did not have concrete lesson plans, attend
required meetings, respond to emails, or keep consistent grading. At one point,
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all of Ragland's students were listed as failing and having the same grade for all
assignments.
Cowins conducted Ragland's mid-year evaluation and rated her partially
effective, noting a lack of measurable standards for student growth objectives.
Ragland requested her remaining evaluations be done by someone else.
Vice Principal Sharanda Evans-Humes completed Ragland's year-end
evaluation, rating her ineffective, the lowest possible score. According to
Evans-Humes, Ragland failed to provide the full amount of student rubrics and
had not taken steps to improve after the previous school year. After an
evaluation conference, Evans-Humes gave Ragland an opportunity to
supplement her student growth data with evidence in her possession, and
reminded her of that opportunity several times, but Ragland declined to do so.
Following the second consecutive below par annual summative
evaluation, BOE served Ragland with the tenure charge of inefficiency. She
responded by letter, challenging the BOE's evaluation process. The BOE
referred the matter to the Commissioner of the DOE. The Commissioner
referred the matter to arbitration, having determined BOE followed its
evaluation process.
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After seven days of testimony, the arbitrator upheld the tenure charge,
finding BOE's witnesses to be credible and concluding that the "evidence is clear
that all appropriate elements for a just and proper dismissal of [Ragland] were
present . . . ." More specifically, the arbitrator found:
[t]he evidence is convincing that [Ragland]
demonstrated a blatant lack of cooperation, inattention
or indifference to the necessary protocols of her
teaching position . . . . [BOE's] evidence was replete
with documentation and credible testimony concluding
that ongoing and continued efforts over an extended
time period attempted to correct [Ragland's]
deficiencies.
....
Moreover, the evidence . . . overwhelmingly
demonstrated that the [BOE] adhered substantially to
its evaluation process. While disputed by [Ragland],
the only showing to support her theoretical insinuation
and arguments against the validity of [BOE]
evaluations and observations came in the form of
cross[-]examination of [BOE] witnesses. The cross[-]
examination was insufficient to overcome [BOE]'s
proof.
The arbitrator also found that the alleged discrepancies between the regulatory
requirements and the evaluations BOE performed were "de minimis mistakes in
calculation or interpretation of the regulations . . . . Nonetheless, the alleged
discrepancies were determined to actually be based upon the lack of cooperation
of" Ragland.
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Ragland thereafter filed an order to show cause and verified complaint in
the Chancery Division, seeking to overturn the arbitration award. BOE cross-
moved to dismiss the complaint and confirm the arbitration award.
The trial court issued an oral decision after hearing counsel's arguments.
The court concluded that the award was supported by credible evidence and
rejected Ragland's contention that BOE failed to abide by its evaluation rubric,
in particular with respect to student growth objectives. The court explained that:
[t]he school appears to have followed closely the
obligations that it had under the regulations and did
have permission by virtue of this equivalency letter to
follow other procedures pursuant to the permission of
the [DOE].
[Given] the extreme deference that the [c]ourt is
required to give the arbitrator in these sorts of cases, the
[c]ourt is denying the application of [Ragland] and will
grant the cross-motion of [BOE] to affirm the
arbitration award.
An August 26, 2019 order memorializes the court's decision.
This appeal follows. Ragland raises the following arguments.
POINT I
THE ARBITRATOR AND THE CHANCERY JUDGE
COMPLETELY FAILED TO CONSIDER AND
ASSESS THE LEGAL SIGNIFICANCE OF THE
HUGE ARRAY OF PROCEDURAL FAILURES BY
THE DISTRICT IN ITS EVALUATION OF MS.
RAGLAND.
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POINT II
THE NECESSARY LEGAL PREREQUISITES FOR
THE CHARGES HERE ARE ENTIRELY ABSENT
FOR BOTH YEARS AND THEREFORE THE
CHARGES ARE INVALID.
POINT III
FAILURE TO IMPLEMENT THE LEGALLY
MANDATED CORRECTIVE ACTION PLAN AND
[INDIVIDUAL PROFESSIONAL DEVELOPMENT
PLAN], INVALIDATE THE [ANNUAL
SUMMATIVE EVALUATIONS] AND CHARGES
FOR THE BOTH [SIC] SCHOOL YEARS.
POINT IV
THE DISTRICT'S FAILURES TO DEVELOP
PROPER [ANNUAL SUMMATIVE EVALUATIONS]
ARE NOT EXCUSED BY ANY WAIVER OR
EQUIVALENCE.
POINT V
THE DECISION BELOW WAS INCORRECT AS A
MATTER OF LAW AND WAS BASED ON A
FATALLY FLAWED ARBITRATION DECISION.
II.
"Judicial review of an arbitration award is very limited, and 'the
arbitrator's decision is not to be cast aside lightly.'" Linden Bd. of Educ. v.
Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010) (quoting Bd. of
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Educ. v. Alpha Educ. Ass'n, 190 N.J. 34, 42 (2006)). Where, as here, arbitration
is required by statute, "judicial review should extend to consideration of whether
the award is supported by substantial credible evidence present in the record."
Div. 540, Amalgamated Transit Union AFL-CIO v. Mercer Cty. Improvement
Auth., 76 N.J. 245, 254 (1978). Our review of the trial court's decision to uphold
or vacate the arbitration award, however, is de novo. Manger v. Manger, 417
N.J. Super. 370, 376 (App. Div. 2010).
The Tenure Employees Hearing Law, N.J.S.A. 18A:6-10 to -18.1,
provides tenured public school teachers "certain procedural and substantive
protections from termination." Bound Brook Bd. of Educ. v. Ciripompa, 228
N.J. 4, 11 (2017). No tenured public school teacher "shall be dismissed or
reduced in compensation . . . except for inefficiency, incapacity, unbecoming
conduct, or other just cause . . . ." N.J.S.A. 18A:6-10. If the charges are
substantiated, they first go to the Commissioner of the DOE who then refers the
matter to an arbitrator if the charges merit termination. See N.J.S.A. 18A:6-11;
N.J.S.A. 18A:6-16.
If the matter is before an arbitrator based on a teacher's charge of
inefficiency, the arbitrator "shall only consider" the following four defenses:
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(1) the employee's evaluation failed to adhere
substantially to the evaluation process, including, but
not limited to providing a corrective action plan;
(2) there is a mistake of fact in the evaluation;
(3) the charges would not have been brought but for
considerations of political affiliation, nepotism, union
activity, discrimination as prohibited by State or federal
law, or other conduct prohibited by State or federal law;
or
(4) the district's actions were arbitrary and
capricious.
[N.J.S.A. 18A:6-17.2(a).]
If the teacher is able to prove any of the four defenses, "the arbitrator shall then
determine if that fact materially affected the outcome of the evaluation[,] [and
if not,] the arbitrator shall render a decision in favor of the board and the
[teacher] shall be dismissed." N.J.S.A. 18A:6-17.2(b); see also Yarbrough v.
State Operated School Dist., 455 N.J. Super. 136, 141-42 (App. Div. 2018)
(describing the limited scope of review when arbitrating inefficiency charges).
Once rendered, "[t]he arbitrator's decision shall be final and binding . . . .
The determination shall be subject to judicial review and enforcement as
provided pursuant to N.J.S.[A.] 2A:24-7 through N.J.S.[A.] 2A:24-10."
N.J.S.A. 18A:16-17.1(e). Those provisions provide that a reviewing court shall
vacate the arbitration award in any of the following circumstances:
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a. Where the award was procured by corruption,
fraud, or undue means;
b. Where there was either evident partiality or
corruption in the arbitrators, or any thereof;
c. Where the arbitrators were guilty of misconduct
in refusing to postpone the hearing, upon sufficient
cause being shown therefor, or in refusing to hear
evidence, pertinent and material to the controversy, or
of any other misbehaviors prejudicial to the rights of
any party;
d. Where the arbitrators exceeded or so imperfectly
executed their powers that a mutual, final and definite
award upon the subject matter submitted was not made.
[N.J.S.A. 2A:24-8.]
"Undue means," as that term is used in the statute, "ordinarily encompasses
situations where the arbitrator has made a mistake of fact or law that is either
apparent on the face of the record or admitted to by the arbitrator." N.J.
Highway Auth. v. Int'l Fed'n of Prof'l and Tech. Eng'rs, Local 193, 274 N.J.
Super. 599, 609 (App. Div. 1994). To put it another way, courts have interpreted
undue means as basing an award on what amounts to "a clearly mistaken view
of fact or law." Local Union 560 I.B.T. v. Eazor Express, Inc., 95 N.J. Super.
219, 227-28 (App. Div. 1967).
Ragland argues her evaluations were invalid because of procedural and
substantive deficiencies by BOE in the evaluation process, specifically with
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respect to the use of student growth objectives in her summative evaluations and
deficiencies in her corrective action plan. She argues that BOE's departure from
statutory and regulatory requirements resulted in an arbitration award obtained
by undue means. BOE argues that Ragland, in effect, challenges BOE's
evaluation rubric, which was approved by the DOE, and notes that such a
challenge is outside the scope of the arbitrator's and trial court's review. BOE
also argues that Ragland failed to overcome the significant evidence of her
inefficiency submitted to the arbitrator.
While carefully reviewing the record in light of the relevant legal
precedents, we identified no basis on which to reverse the trial court's order
confirming the arbitrator's decision. Ragland's argument that BOE employed an
evaluation rubric not approved by statute or regulations is meritless. Tenure
charges may be brought based on the result of "evaluations conducted in
accordance with a rubric adopted by the board and approved by the
[C]ommissioner" of the DOE. N.J.S.A. 18A:6-17.3(d). The BOE applied an
evaluation rubric to Ragland approved by the Commissioner through issuance
of an equivalency as allowed by law.
When enacting the Teacher Effectiveness and Accountability for the
Children of New Jersey Act, N.J.S.A. 18A:6-117 to -129, the Legislature found
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that "[c]hanging the current evaluation system to focus on improved student
outcomes, including objective measures of student growth, is critical to
improving teacher effectiveness . . . ." N.J.S.A. 18A:6-118(b). The statute is
intended "to raise student achievement by improving instruction through the
adoption of evaluations that provide specific feedback to educators, inform the
provision of aligned professional development, and inform personnel decisions
. . . ." N.J.S.A. 18:6-118(a).
In pertinent part, the standards for such evaluation rubrics include, at a
minimum:
(1) four defined annual rating categories for
teachers, principals, assistant principals, and vice-
principals: ineffective, partially effective, effective,
and highly effective;
(2) a provision requiring that the rubric be partially
based on multiple objective measures of student
learning that use student growth from one year's
measure to the next year's measure;
(3) a provision that allows the district, in grades in
which a standardized test is not required, to determine
the methods for measuring student growth;
(4) a provision that multiple measures of practice and
student learning be used in conjunction with
professional standards of practice using a
comprehensive evaluation process in rating
effectiveness with specific measures and
implementation processes. Standardized assessments
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shall be used as a measure of student progress but shall
not be the predominant factor in the overall evaluation
of a teacher; [and]
....
(6) a provision ensuring that performance measures
used in the rubric are linked to student achievement
....
[N.J.S.A. 18A:6-123(b).]
Under N.J.A.C. 6A:10-4.2(a), the student achievement components
required in the evaluations include "median student growth percentile[s]" and
"[s]tudent growth objective(s), which shall be specific and measurable, based on
available student learning data . . . ." However, a district may submit an
application for equivalency to gain "approval to achieve the intent of a speci fic
rule through an alternate means that is different from, yet judged to be
comparable to or as effective as, those prescribed within the rule." N.J.A.C.
6A:5-1.2. The Commissioner may approve an equivalency to a specific rule
provided it meets the spirit and intent of an existing rule and provides
measurable results. N.J.A.C. 6A:5-1.4(a) to (b).
Normally, a teacher begins the school year with an individual professional
development plan, but after a below par summative evaluation, "a corrective
action plan shall be developed by the teaching staff member and the teaching
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staff member's designated supervisor." N.J.A.C. 6A:10-2.5(a). In addition to
the normal course of "[e]ach teacher . . . develop[ing], in consultation with his
or her supervisor . . . , each student growth objective[,]" a corrective action plan
must include specific goals for improvement and address areas in need of
improvement from the evaluation rubric. N.J.A.C. 6A:10-4.2(e)(3); N.J.A.C.
6A:10-2.5(c); N.J.S.A. 18A:6-119.
Ragland contends that her two below par summative evaluations are
invalid for failing to include the required measurable student growth objectives
and also contends that her corrective action plan was deficient for failing to
include same. However, N.J.S.A. 18A:6-17.2(a) unequivocally limits the
arbitrator to determining whether a district substantially complied with its
approved evaluation rubric, not whether the district's evaluation rubric complied
with controlling statutes and regulations. Here, the arbitrator found that BOE
complied with its approved evaluation rubric and that any lapses from the legal
requirements were de minimis and due to Ragland's failure to cooperate,
particularly with respect to providing data on her students' development .
Similarly, N.J.S.A. 2A:24-8 limits the trial court's authority to review the
arbitrator's decision only for those matters listed in the statute. The validity of
the district's evaluation rubric is not among the topics subject to judicial review.
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The record supports the trial court's determination that Ragland established none
of the statutory predicates for vacating the arbitration award.
To the extent we have not specifically addressed any of Ragland's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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