Bound Brook Bd. of Educ. v. Ciripompa

• Decision Date: 21 February 2017
• Parties: BOUND BROOK BOARD OF EDUCATION, Plaintiff–Appellant, v. Glenn CIRIPOMPA, Defendant–Respondent.
• Court: New Jersey Supreme Court

228 N.J. 4
153 A.3d 931

BOUND BROOK BOARD OF EDUCATION, Plaintiff–Appellant,
v.
Glenn CIRIPOMPA, Defendant–Respondent.

Supreme Court of New Jersey.

Argued November 9, 2016
Decided February 21, 2017

Robert J. Merryman argued the cause for appellant (Apruzzese, McDermott, Mastro & Murphy, attorneys).

Arnold M. Mellk argued the cause for respondent (Mellk O'Neill, attorneys; Edward A. Cridge, on the brief).

Robert A. Greitz argued the cause for amicus curiaeNew Jersey School Boards Association (Cynthia J. Jahn, General Counsel, attorney).

JUSTICE TIMPONE delivered the opinion of the Court.

228 N.J. 6

In this case we determine whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim in a law against discrimination

228 N.J. 7

(LAD) case to a claim of unbecoming conduct in a tenured teacher disciplinary hearing. We find that he did.

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. Reviewing under the Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6–10 to -18.1, the arbitrator 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, 626 A .2d 445 (1993).

The arbitrator impermissibly converted the second charge into one of sexual harassment. Accordingly, we reverse the judgment of the Appellate Division and remand for arbitration with a new arbitrator to determine whether defendant committed unbecoming conduct, and any appropriate penalty.

I.

We distill the following pertinent facts from the record. Defendant's behavior came under Board scrutiny after the Board received copies of student Twitter posts alleging "Mr. C" was electronically transmitting nude photographs. An investigation 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. The results of the investigation spurred the Board to seek defendant's termination from his tenured position and served as the substantive allegations of the two-count tenure complaint against defendant.

Count I of the complaint, unambiguously labelled "Conduct Unbecoming," centered on defendant's improper use of the District-issued laptop and iPad. The District's policy prohibits "all employees and students using District computers, iPads and District networks" from accessing content for "illegal, inappropriate or obscene purposes, or in support of such activities." The complaint alleged that defendant had "received and signed for a copy

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of the District's acceptable use policy."

153 A.3d 934

Evidence adduced at the arbitration hearing established that defendant used the devices, sometimes during work hours, on the District computer network to send explicit pictures of himself and to seek similar pictures in return from various women on the internet. On the District-issued devices, defendant saved nude pictures and sexually explicit emails, sent and received by defendant, including negotiations for paid sexual services.

Count II, without a specific label, set forth the following allegations:

1. Teaching Staff members in the Bound Brook School District, including Mr. Ciripompa, receive training with respect to appropriate conduct towards staff members and workplace harassment on an annual basis.

2. During the 2013–14 School Year complaints were received about Mr. Ciripompa's inappropriate conduct towards female staff members.

3. Interviews of female staff members revealed that Mr. Ciripompa has repeatedly engaged in unprofessional, inappropriate and potentially harassing behavior towards female staff members.

4. On two occasions Mr. Ciripompa asked female staff members out on dates in front of students, thereby making the staff members very uncomfortable.

5. Mr. Ciripompa has repeatedly commented about the physical appearance and dress of female staff members, making them very uncomfortable.

6. Mr. Ciripompa sent flowers to a female staff member, using students to deliver the flowers, along with messages that the female staff member found to be inappropriate.

The concluding prayer for relief applied to both counts of the complaint. It stated that "the foregoing unbecoming conduct warrants [defendant's] dismissal from the Bound Brook Borough School District in accordance with N.J.S.A. 18A:6–10."

In support of the charges, the Board produced physical evidence taken from defendant's Board-issued computer and iPad, as well as testimonial evidence that defendant, in the presence of students, propositioned staff members to date him and commented on the physical appearance of female staff. Notably, defendant's remark about the tight fit of a female teacher's pants prompted a follow-up question by a student who was present when defendant uttered the remark. Defendant also used a student as his personal

228 N.J. 9

courier to deliver flowers and "inappropriate" messages to a colleague he was pursuing.

In accordance with the TEHL, the Board determined by a majority vote that the evidence supported the charges and warranted dismissal. The Commissioner of Education (Commissioner) reviewed the charges and agreed they warranted termination. The charges were then submitted for review by an arbitrator, pursuant to N.J.S.A. 18A:6–16. 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.

The arbitrator began his analysis of Count II by noting 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 then announced that, under this Court's decision in Lehmann , supra , 132 N.J. at 610, 626 A .2d 445, a successful claim for sexual harassment requires a showing that "working conditions were affected by the harassment to the point at which a reasonable woman would consider the working environment

153 A.3d 935

hostile." The arbitrator emphasized that the subjective feelings of the female staff members were insufficient to establish a hostile work environment claim. He found that defendant's conduct was not severe or pervasive enough to "modify the [female staff members'] behavior or routine in any material way." While announcing that defendant's "conduct cumulatively amounted to a shocking abdication of his professional responsibility" and "rais[ed] bad judgment to an art form," the arbitrator found, contrary to evidence presented, that defendant "had no prior warnings" concerning misuse of the computer system. The arbitrator concluded that misuse of the District-issued electronics did not justify defendant's removal from his tenured teaching position.

Pursuant to N.J.S.A. 18A:6–17.1(e), the District sought review in the Superior Court, Chancery Division. The court reversed the arbitrator's decision, remanding it for a review before a new

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arbitrator. The court held that the arbitrator "erroneously changed the nature of Count II and imposed an inappropriate standard."

On appeal, the Appellate Division reversed the Chancery Division's decision vacating the arbitral award and reinstated the suspension. Bound Brook Bd. of Educ. v. Ciripompa , 442 N.J.Super. 515, 518, 124 A .3d 1205 (App. Div. 2015). The panel found no error in the arbitrator's application of the Lehmann standard to the charges proffered against defendant. Id. at 526, 124 A .3d 1205.

We granted the Board's petition for certification, limited to the issue of whether the arbitrator's reliance on Lehmann in dismissing the Board's second charge of inappropriate and unprofessional conduct supported vacating the arbitrator's award. Bound Brook Bd. of Educ. v. Ciripompa , 224 N.J. 280, 132 A .3d 422 (2016). We granted leave to the New Jersey School Board Association (Association) to appear as amicus curiae.

II.

The Board urges this Court to reverse the judgment of the Appellate Division, contending that the arbitrator's hostile work environment analysis was improper. The Board argues that there is a fundamental difference between charges of "unbecoming conduct" and "sexual harassment" and that the arbitrator improperly conflated the two to require the Board to prove a hostile work environment under Lehmann .

In support of the Board's position, the amicus Association maintains that the arbitrator lacked the authority to alter or rewrite the charges. The Association contends that the arbitrator should have limited his analysis to a determination of unbecoming conduct. The...