IN THE MATTER OF THE TENURE CHARGES AGAINST JOSE ORTIZ-Â BATISTA, PROFESSOR, COUNTY COLLEGE OF MORRIS(BOARD OF TRUSTEES OF THE COUNTY OF MORRIS) ( 2017 )

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5570-14T2
IN THE MATTER OF THE TENURE
CHARGES AGAINST JOSE ORTIZ-BATISTA,
PROFESSOR, COUNTY COLLEGE OF MORRIS
____________________________________
Argued May 24, 2017 – Decided June 27, 2017
Before Judges Accurso, Manahan and Lisa.
On appeal from the Board of Trustees of the
County of Morris.
Stephen B. Hunter argued the cause for
appellant Jose Ortiz-Batista (Detzky, Hunter
& DeFillippo, LLC, attorneys; Mr. Hunter, of
counsel and on the brief).
David H. Soloway argued the cause for
respondent County College of Morris (Vogel,
Chait, Collins and Schneider, PC, attorneys;
Mr. Soloway, of counsel and on the brief;
Craig A. Long, on the brief).
PER CURIAM
Petitioner Jose Ortiz-Batista appeals from a July 7, 2015
final decision of the Board of Trustees of the County College of
Morris adopting the Initial Decision of Administrative Law
Judge, Ellen S. Bass, finding petitioner guilty of conduct
unbecoming, warranting his dismissal as a tenured faculty member
of the College. We affirm.
The facts are set forth at length in ALJ Bass's Initial
Decision. Professor Ortiz-Batista was a respected and well-
regarded member of the faculty of the College for fourteen
years. He served as a professor of World Languages and chaired
the College's Languages and ESL Department for ten of those
years. In the 2014 spring semester, however, the Dean advised
petitioner the College would appoint a new Chair to lead the
Department. Judge Bass noted that decision "apparently angered
Ortiz-Batista enough to file suit in Superior Court and to file
a discrimination claim before the Equal Employment Opportunity
Commission (EEOC) where he alleged that his demotion was unfair
and constituted harassment."
When the fall term began, petitioner, described as "hard-
working," "enthusiastic," and "highly effective" in earlier
evaluations, passionate about his subject matter and devoted to
his students, began to miss class and fail to appear for office
hours without notice to his students and colleagues. Despite
efforts by the new Chair of his Department and other
administrators and colleagues, the situation did not improve as
the term wore on. Students lodged repeated complaints, and the
administration referred petitioner to the Employee Assistance
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Program. ALJ Bass concluded from the uncontroverted testimony
that during that fall semester, petitioner "was frequently
absent from his classroom and office hour duties, often without
advance notice, and often without following proper protocols for
requesting leave." She found that members of the administration
"all made efforts to communicate with Ortiz-Batista relative to
their concerns about his performance, but that their efforts
were met with vague excuses or no response at all."
On October 30, 2014, the College suspended petitioner with
pay and took steps to try and cover his six Italian classes.
The College retained adjunct professors to teach four of the
classes, but determined so little progress had been made by
students in the remaining two classes that they were deemed
"unsalvageable." Students enrolled in those classes were
prevented from fulfilling their language requirement and, for
some, their graduations may have been delayed as a result. ALJ
Bass found the class cancellations cost the College $20,477 in
refunded tuition.
Even after his suspension, the College continued to try and
work with petitioner. Recounting the testimony of the
Department Chair, the judge found "nothing about his demeanor or
testimony that led [her] to question that [the Chair] would have
offered assistance instead of discipline if he could have done
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so." The Human Resources Director, the administrator who had
earlier referred petitioner to the Employee Assistance Program,
testified the administrators and faculty members present at the
October 30 meeting expressed concerns about petitioner's health
and well-being. According to the Director, he specifically told
petitioner that sick leave might be an option with proper
documentation, but petitioner never followed up or provided him
with the necessary information. ALJ Bass concluded "no medical
documentation was provided either to [the College] or [the ALJ]
that would allow [her] to view Ortiz-Batista's aberrant behavior
as health or disability related."
After hearing the testimony of the witnesses and reviewing
the evidence submitted, ALJ Bass concluded the College had met
its burden of proving the tenure charges against petitioner by a
preponderance of the credible evidence. See N.J.S.A. 18A:6-18;
In re Polk, 90 N.J. 550, 560-61 (1982). Specifically, the judge
found:
Ortiz-Batista failed to meet his
professional obligations in the fall of
2014, and in a manner that did not permit
[the College] to assist either him or many
of his students in salvaging the semester of
instruction. His assertion that he was
absent just a little bit, after years of
good attendance, is inconsistent with the
facts on record. He was consistently
absent; he was unreliable; and he was
unwilling to discuss whatever issues or
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problems were preventing him from properly
attending to his duties. Notwithstanding
his history of satisfactory performance,
Ortiz-Batista's unwillingness to explain
this change in his conduct and demeanor
portends a continued inability or
unwillingness by him to properly discharge
his professional responsibilities. Finally,
the negative effect created by his absences
and non-communicativeness is readily borne
out by the record.
ALJ Bass concluded based on the evidence in the record that
petitioner's termination was indeed the appropriate remedy. She
wrote:
For all these reasons, I likewise agree
with [the College] that no lesser form of
discipline could have put an end to the
disruption to the language department and
its students. As it is, two classes were
cancelled. Had the [C]ollege not acted when
it did to remove Ortiz-Batista from the
classroom, it is likely that it would have
had to cancel several more. I am thus
compelled to reject Ortiz-Batista's
contention that he should not be dismissed
because the [C]ollege failed to employ
progressive discipline. As our Supreme
Court stated in West New York v. Bock, 38
N.J. 500, 523 (1962), "numerous occurrences
over a reasonably short space of time, even
though sporadic, may evidence an attitude of
indifference amounting to a neglect of duty
and, thus, constitutes sufficient grounds
for termination."
Finally, Counsel's argument that [the
College] failed to accommodate Ortiz-
Batista's disability is flawed for a
fundamental reason; nowhere on the record is
there any competent proof that a disabling
condition caused Ortiz-Batista's aberrant
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behavior. Ortiz-Batista was asked for
medical documentation before the charges
were filed, and was offered an opportunity
to supply such documentation after his
suspension. He could have supplied such
documentation to me, or appeared at the
hearing and explained his problems to me.
But throughout, he has persisted in failing
to offer any explanation, medical or
otherwise, for the dereliction of his
duties. I agree with [the College] that I
cannot ask it to grant an extended sick
leave to a professor who will not explain
the nature of his disability, and relied at
hearing only on the testimony of a colleague
who, with no medical background whatsoever,
shared that in September 2014 he noticed a
change in Ortiz-Batista's affect. Nor am I
able to accept counsel's claim that [the
College] personnel did not try hard enough
to talk to Ortiz-Batista or give him an
opportunity to explain why he was unable to
meet his professional responsibilities.
This record reveals that Ortiz-Batista's
supervisors tried to have a productive
conversation with him repeatedly, but to no
avail.
On appeal, petitioner argues the College failed to prove
the charges against him, that the penalty was excessive and
disproportionate, that the College "received sufficient
information to conclude that [petitioner] was suffering from a
significant physical and/or psychiatric impairment and yet . . .
failed to reasonably accommodate [his] disabilities" and that
there were "numerous alternatives to termination that were never
proposed by the College that would have avoided the
certification of tenure charges."
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In light of the comprehensive record established in the
Office of Administrative Law, we reject those arguments as
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(D) and (E). Accordingly, we affirm
the decision of the Board of Trustees, substantially for the
reasons expressed in Judge Bass's thorough and thoughtful
Initial Decision of June 10, 2015.
Affirmed.
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