Torian v. Newark Sch. Dist.

• Docket Number: A-3006-21
• Decision Date: 08 November 2023
• Parties: HALLIE TORIAN, NORHREENA THOMAS, and CLIFFORD WALKER, JR., Plaintiffs-Appellants, v. NEWARK SCHOOL DISTRICT, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

1

HALLIE TORIAN, NORHREENA THOMAS, and CLIFFORD WALKER, JR., Plaintiffs-Appellants,
v.
NEWARK SCHOOL DISTRICT, Defendant-Respondent.

No. A-3006-21

Superior Court of New Jersey, Appellate Division

November 8, 2023

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.

Submitted September 18, 2023

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7317-15.

Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi &Gill, attorneys for appellants (Elliott J. Almanza, of counsel and on the briefs).

Adams Gutierrez &Lattiboudere, LLC, attorneys for respondent (Perry L. Lattiboudere, of counsel and on the brief).

Before Judges Gilson and DeAlmeida.

PER CURIAM

2

This appeal involves a class action lawsuit filed by employees of the Newark School District (the District) for alleged violations of the Civil Service Act (the Act), N.J.S.A. 11A:1-1 to 11A:12-6.^[1] The class representatives filed suit contending that the District had failed to provide class members with paid vacation leave as required by the Act and its associated administrative regulations, N.J.A.C. 4A:1-1.1 to 4A:10-3.2.

The trial court certified a class and defined it as "all full[-]time [ten]-month or part-time employees of the [District] in the career service, (excluding employees in the unclassified service) who were employed after October 16, 2009." The court then required the District to provide plaintiffs with the name, Civil Service title, dates of employment, and last known address of each class member. The District complied with that order but withheld the names of per diem employees because the District believed those employees did not fit within the definition of the class. Thereafter, the court required the District to provide plaintiffs with the additional names of per diem employees, but the court did not decide whether those per diem employees were within the class.

3

Following years of motion practice, including discovery motions and repeated motions for summary judgment, the District moved for summary judgment contending that plaintiffs had failed to demonstrate that any class member was in the career service. The trial court agreed and issued an order dismissing the complaint with prejudice. Plaintiffs now appeal, arguing that the trial court erred in granting summary judgment and dismissing the class action. Plaintiffs also appeal from orders denying several summary judgment motions they had filed, as well as certain rulings on discovery issues.

Having considered the procedural history of this case, the relevant facts established in the record, and the applicable law, we affirm in part and reverse in part.

I.

In October 2015, plaintiffs, a teacher's aide and two cafeteria workers employed by the District, filed a complaint on behalf of a proposed class. They sought to represent a class consisting of full-time and part-time employees of the District, excluding teachers. Plaintiffs contended that the District had failed to provide them with paid vacation leave as required by the Act and its associated administrative regulations.

4

On September 16, 2016, the trial court issued an order certifying the case as a class action. The class was defined as "all full[-]time [ten]-month or parttime employees of the [District] in the career service, (excluding employees in the unclassified service) who were employed after October 16, 2009." Approximately two months later, on November 28, 2016, the trial court entered an order prescribing notice to the class. That order directed, in relevant part:

1. [The District] shall provide to the plaintiff[s], within [fourteen] days, in an electronic data spreadsheet format, the name, Civil Service title, dates of employment, and last known address of each class member, and it is further ordered that the last known addresses shall be kept confidential and shall only be used for purposes of this litigation;

2. Within [thirty] days of receiving the last known addresses from [the District], [p]laintiff[s'] counsel shall send the notice, attached as Exhibit A, to the address of each class member by regular mail[.]

"Exhibit A" explained the notice was being provided "to all persons who were [ten-]month or part-time ('per diem') Civil Service employees, who were employed by the [District] in a non-teacher position, at any time from October 16, 2009 to the present."

The following month, on December 13, 2016, the District provided plaintiffs' counsel with a "CD and a hard copy of the report . . . pursuant to the

5

[o]rder dated November 28, 2016." The CD and report provided information concerning approximately 1,593 District employees.

In January 2017, counsel for plaintiffs received a letter from a "per diem" aide employed by the District. In the letter, the aide explained she had not received any vacation days or time off and was seeking information on the class action. Plaintiffs' counsel then emailed the District and asked why information about the aide had not been included in the District's December 13, 2016 production, and whether information about other per diem employees had also not been included.

In response, the District stated it had not included information about per diem employees in its production because it did not believe those employees were within the scope of the class. According to the District's business administrator, per diem employees "are used for absence replacement." In other words, the District maintained that per diem employees were used when needed to replace absent employees and were paid hourly.

Plaintiffs filed a motion to compel the production of information regarding the District's per diem employees. On May 26, 2017, the trial court issued an order granting that motion. The order did not, however, include any explanation of the court's decision. Accordingly, the District asked the court to

6

issue a statement of reasons clarifying the order, and, on August 25, 2017, the court issued that explanation. The court explained that it "was not convinced that the 'per diem' employees fell squarely within the unclassified service statutory category," but it had not made a ruling on that classification issue. Instead, the court stated its ruling "merely indicated that [the District had] not compl[ied] with its initial obligations pursuant to court order."

Thereafter, the District provided information on the employees it considered per diem employees, which totaled approximately 3,650 employees. In addition, on two separate occasions, the District provided information regarding additional employees it had not previously included. In all, the District provided information concerning approximately 7,500 employees.

Within the class, there are several sub-classes representing different job titles associated with different bargaining units. Some per diem employees are covered by collective bargaining agreements. In March 2017, the District filed a motion to compel arbitration of the claims of co-lead plaintiff Walker and all class members associated with his bargaining unit, Local 481 NTU. The District contended those claims were substantively arbitrable under Local 481 NTU's collective bargaining agreement. The trial court denied that motion, holding that the agreement did not expressly address paid vacation. We affirmed that

7

decision. Torian v. Newark Sch. Dist., No. A-3398-16 (App. Div. Mar. 28, 2018).

During discovery, the District served interrogatories asking class members whether they had been paid for certain holidays, including Thanksgiving and "Christmas/Winter Recess." Plaintiffs objected to the interrogatories, contending the District had access to that information in its payroll records. In December 2017, plaintiffs filed a motion for a protective order to prevent members of the class from having to respond to the interrogatories propounded by the District.

On January 25, 2018, after hearing argument, the trial court issued an order denying the motion. In its oral decision, the court explained it had evaluated plaintiffs' motion under the criteria set forth in Towpath Unity Tenants Ass'n v. Barba, 182 N.J.Super. 77 (App. Div. 1981), and concluded the interrogatories propounded by the District were proper. In that regard, the court found "the interrogatories request[ed] information . . . necessary for the trial class issues in this case"; the information requested was not readily obtainable from payroll records because those records did not indicate which class members contended they had not been paid; and permitting plaintiffs to withhold this information would be "contrary to the spirit of discovery" and inconsistent with

8

Towpath. In their responses to the interrogatories, several class members stated they had received their "full wages and salary, without having to report to work or perform any work" on several school holidays, including "Christmas/Winter Recess" and "Spring/Easter Recess."

In December 2018, plaintiffs filed a motion for partial summary judgment, seeking a declaration that the Act applied to the District's per diem employees. After hearing argument, the court issued an order on March 15, 2019, denying the motion. In its oral decision, the court noted it could not simply compare the job titles of the per diem employees to the job titles listed by the Civil Service Commission and determine whether the employees were covered by the Act. The court further noted plaintiffs had not submitted any progress reports, examination records, or certifications from the Civil Service Commission demonstrating the per diem employees were covered by the Act. In short, the court explained that "whether the [Act] covers and protects per diem employees" involved...