                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4826-12T1




DARCY J. KOLODZIEJ,
                                    APPROVED FOR PUBLICATION
    Petitioner-Appellant,
                                         July 25, 2014
    v.
                                       APPELLATE DIVISION
BOARD OF EDUCATION OF SOUTHERN
REGIONAL HIGH SCHOOL DISTRICT,
OCEAN COUNTY,

    Respondent-Respondent.



         Submitted June 24, 2014 - Decided July 25, 2014

         Before Judges Parrillo, Messano and Alvarez.

         On appeal from the Commissioner of
         Education, Docket No. 188-7/07.

         Zazzali, Fagella, Nowak, Kleinbaum &
         Friedman, P.C., attorneys for appellant
         (Aileen M. O'Driscoll, of counsel and on the
         briefs).

         Berry Sahradnik Kotzas & Benson, P.C.,
         attorneys for respondent Board of Education
         of Southern Regional High School District,
         Ocean County (Mathew B. Thompson, on the
         brief).

         John J. Hoffman, Acting Attorney General,
         attorney for respondent Commissioner of
         Education (Caroline Jones, Deputy Attorney
         General, on the brief).
           The opinion of the court was delivered by

PARRILLO, P.J.A.D.

    Petitioner Darcy Kolodziej appeals from a final decision of

the Commissioner of Education, finding that she had not attained

tenure, due to an interruption in service because of a year-long

maternity leave, when she was laid off in April 2007, and thus

that she was not entitled to be rehired when a position became

available in August 2007.    We disagree that petitioner's

maternity leave interrupted her period of service to achieve

tenure, and remand to the agency to determine whether petitioner

had attained the seniority to be automatically rehired when the

position became available and, if so, the measure of her

damages.

    Petitioner began working as a full-time health and physical

education teacher for the Southern Regional High School Board of

Education (Board) in 2002.    She was employed in this capacity

for the complete 2002-2003, 2003-2004 and 2004-2005 academic

years.    On September 1, 2005, petitioner began a Board-approved

unpaid maternity leave, which lasted until June 30, 2006.

Petitioner returned to work on September 1, 2006 and was

continuously employed through the end of the 2006-2007 school

year.    On April 27, 2007, petitioner received notice that her




                                 2                           A-4826-12T1
position with the Board would be terminated effective September

1, 2007, pursuant to a reduction in force (RIF) plan.

    During her first three years of employment, petitioner had

been evaluated as required for the granting of tenure status

under N.J.S.A. 18A:28-5(b).   However, as of the end of the 2006-

2007 school year, the Board had not granted petitioner tenure.

Thus, in August 2007, when a physical education position became

available, petitioner was not among those considered to fill it;

the position instead went to another teacher, who had been

granted tenure and placed on a recall list as part of the RIF

plan.

    On July 2, 2007, petitioner filed an appeal with the

Department of Education (DOE), claiming that she was entitled to

tenure protection and status under the RIF plan.   The case was

sent to the Office of Administrative Law (OAL) for hearing.       In

a series of partial summary decisions, the administrative law

judge (ALJ) found that the petitioner had acquired tenure before

the RIF plan and thus that her tenure rights had been violated

under its provisions.   The ALJ ordered that petitioner be

reinstated to her former position as a physical education

teacher and that she be granted back pay of $137,212 for the

2007-2008, 2008-2009 and 2009-2010 school years as well as

seniority credit for those years.   In a final decision of April




                                3                            A-4826-12T1
5, 2013, the ALJ confirmed all these prior decisions, and noted

that petitioner had waived her right to incidental damages

including health care costs and various tax credits.

    On May 16, 2013, the Commissioner of Education

(Commissioner) rejected this decision, concluding that

petitioner had not attained tenure at the time of her dismissal

in 2007.   Having so determined, the Commissioner did not address

the issue of petitioner's seniority and thus concluded that she

was not entitled to any relief.

    Petitioner appeals from the Commissioner's decision,

arguing


           I.    THE COURT SHOULD REVERSE THE DECISION
                 OF THE COMMISSIONER BECAUSE IT IS
                 INCONSISTENT WITH, AND/OR IMPROPERLY
                 APPLIES[,] N.J.S.A. 18A:28-5 AND
                 RELEVANT CASE LAW.

           II.   ASSUMING TH[E] COURT REVERSES THE
                 COMMISSIONER'S DECISION, THE ALJ'S
                 DECISION THAT [PETITIONER] WAS TENURED
                 AT THE TIME OF THE DISTRICT'S REDUCTION
                 IN FORCE AND HAD GREATER SENIORITY THAN
                 SEVERAL OTHER TEACHING STAFF MEMBERS
                 ASSIGNED TO POSITIONS AS PHYSICAL
                 EDUCATION TEACHERS, AND WAS AND IS
                 ENTITLED TO HER POSITION AS A TEACHER
                 OF PHYSICAL EDUCATION[,] SHOULD BE
                 AFFIRMED.

           III. THE FEDERAL FAMILY LEAVE ACT, THE
                DISTRICT FAMILY LEAVE POLICY AND THE
                PARTIES' COLLECTIVE BARGAINING
                AGREEMENT DID NOT PRECLUDE [PETITIONER]




                                  4                        A-4826-12T1
                 FROM ACQUIRING SENIORITY WHILE ON
                 MATERNITY LEAVE.

    It is a well-settled principle of judicial review of

administrative agency decisions that we will "accord a strong

presumption of reasonableness to such decisions and do not

substitute our judgment for the wisdom of agency action if that

action is statutorily authorized and not arbitrary and

unreasonable."    A.M.S. ex rel. A.D.S. v. Bd. of Educ., 409 N.J.

Super. 149, 159 (App. Div. 2009).    However, we are not bound by

an agency's interpretation of a statute.    Russo v. Bd. of

Trustees, 206 N.J. 14, 27 (2011).    Instead, we review the

interpretation of a statute de novo.    Div. of Youth & Family

Servs. v. T.B., 207 N.J. 294, 300 (2011).

    Relevant here, the Tenure Act, N.J.S.A. 18A:28-5(a)

provides:

            The services of all teaching staff members
            employed prior to the effective date of
            P.L.2012, c.26 [N.J.S.A. 18A:6-117 to -129]
            in the position[] of teacher, . . . serving
            in any school district or under any board of
            education, . . . shall be under tenure
            during good behavior and efficiency and they
            shall not be dismissed or reduced in
            compensation except for inefficiency,
            incapacity, or conduct unbecoming such a
            teaching staff member or other just cause
            and then only in the manner prescribed by
            subarticle B of article 2 of chapter 6 of
            this Title [N.J.S.A. 18A:6-9 to -25], after
            employment in such district or by such board
            for:




                                 5                            A-4826-12T1
               (1)   Three consecutive calendar years,
                     or any shorter period which may be
                     fixed by the employing board for
                     such purpose; or

               (2)   Three consecutive academic years,
                     together with employment at the
                     beginning of the next succeeding
                     academic year; or

               (3)   The equivalent of more than three
                     academic years within a period of
                     any four consecutive academic
                     years.

The parties agree that petitioner worked as a teacher for three

consecutive academic years, from 2002 to 2005.    Thus, the

question of whether petitioner achieved tenure before her

dismissal in 2007 turns on whether she fulfilled the conditions

in (2) or (3), i.e., whether petitioner's unpaid leave of

absence under the Family and Medical Leave Act (FMLA)

constituted continued employment at the beginning of the next

succeeding academic year or at any point during the year.       The

Commissioner concluded that petitioner's leave represented a

break in employment, which prevented petitioner from achieving

tenure notwithstanding the three years of continuous employment

and tenure evaluations that preceded the leave.   We disagree.

    We have found no case law directly on point as to whether

maternity leave constitutes continued employment under N.J.S.A.

18A:28-5(a).   Nevertheless, our courts have considered the

effect that other types of leave might have on tenure status.



                                6                             A-4826-12T1
Our Court has noted that "'continuous employment' exists

notwithstanding the 'mere occasional absence of a teacher by

reason of illness or excuse.'"    Kletzkin v. Bd. of Educ., 136

N.J. 275, 279 (1994) (quoting Bd. of Educ. v. Wall, 119 N.J.L.

308, 309-10 (Sup. Ct. 1938)).    In Kletzkin, supra, 136 N.J. at

280, the Court concluded that a teacher, who was on leave due to

a work-related injury for four months during the required three-

year tenure probation period, still had acquired tenure, even

though she did not actively work during the full period.    In

reaching this decision, the Court noted that there had been

ample time to evaluate the employee during the twenty-eight

months she had been actively working.    Ibid.   Moreover, the

Court specifically noted that "an employee on a leave of absence

remains an employee."   Ibid.; see also Ward v. Keenan, 3 N.J.

298, 310-11 (1949) (noting that a police officer's leave of

absence did not constitute a "complete severance of

responsibility" and so he could not "lose his tenure during good

behavior" while on leave); Blinn v. Bd. of Trustees, 173 N.J.

Super. 277, 278 (App. Div. 1980) (noting that "the phrase 'leave

of absence' itself 'connotes a continuity of the employment

status'") (citations omitted).

    Although the Commissioner distinguished Kletzkin, on the

grounds that it involved an involuntary, work-related leave, we




                                 7                          A-4826-12T1
see no meaningful distinction for present purposes.   Like in

Kletzkin, supra, the Board here had an adequate period, thirty

months, in which to evaluate petitioner's fitness for tenure,

and did, in fact, evaluate her the requisite number of times in

that period.   See Bd. of Educ. v. Raubinger, 78 N.J. Super. 90,

100 (App. Div. 1963) ("Three full years are a sufficient term

within which a board of education may judge the competency of a

teacher, principal or superintendent.   It is also a reasonable

period for one in the teaching profession to be expected to

demonstrate his or her capacity before achieving tenure

status.").   Thus, concerns about evaluation are irrelevant here.

    Moreover, petitioner did, in fact, return to work in the

same position when her allowed leave had expired.   There is

nothing to suggest, therefore, that petitioner did not remain an

employee throughout the time she was on leave, albeit an

inactive one for the 2005-2006 academic year.   The employment

relationship did not cease during her leave; she was not rehired

at the beginning of the 2006-2007 year, undergoing a new

interview and hiring process, but rather simply returned to

work.

    Additionally, interpreting the statute to allow tenure in

this case fits within the public policy purposes of the Tenure

Act and the FMLA, under which petitioner took her leave.   The




                                8                          A-4826-12T1
FMLA was developed "to entitle employees to take reasonable

leave . . . for the birth or adoption of a child . . . ."     29

U.S.C.A. § 2601(b)(2).   Recognizing that "due to the nature of

the roles of men and women in our society, the primary

responsibility for family caretaking often falls on women, and

such responsibility affects the working lives of women more than

it affects the working lives of men[,]" one of its explicit

goals is "to promote . . . equal employment opportunity for

women and men[.]"   29 U.S.C.A. § 2601(a)(5) & (b)(5).    The FMLA

specifically provides that a returning employee is "to be

restored by the employer to the position of employment held by

the employee when the leave commenced; or to be restored to an

equivalent position with equivalent employment benefits, pay,

and other terms and conditions of employment."   29 U.S.C.A. §

2614(a)(1).   And, importantly, the leave "shall not result in

the loss of any employment benefit accrued prior to the date on

which the leave commenced."   29 U.S.C.A. § 2614(a)(2).    Thus, it

is clear that the FMLA seeks to return the employee to the same

position that he or she was in before the leave, treating the

leave itself not as a cessation, but instead as a temporary

pause in the ongoing working relationship.   To therefore punish

an employee by denying her tenure she had earned over three

years of continuous employment and satisfactory evaluations




                                9                           A-4826-12T1
simply because she took the leave that her employer granted her,

would not serve the purpose of the FMLA.

    The Board argues that the FMLA itself contains language

which prevents petitioner from acquiring tenure while on leave.

29 U.S.C.A. § 2614(a)(3) provides:

              Nothing in this section shall be
         construed to entitle any restored employee
         to

              (A)    the accrual of any seniority or
                     employment benefits during any
                     period of leave; or

              (B)    any right, benefit, or position of
                     employment other than any right,
                     benefit, or position to which the
                     employee would have been entitled
                     had the employee not taken the
                     leave.

However, this section merely prevents the FMLA from establishing

new or increased rights other than those specifically

enumerated; it does not supersede state statutes that provide

other rights nor does it prohibit states from guaranteeing those

rights separately.   See 29 C.F.R. § 825.215(d)(2) ("An employee

may, but is not entitled to, accrue any additional benefits or

seniority during unpaid FMLA leave.").   Thus, by adopting the

Board's interpretation of the statute, we would be adopting a

position that penalizes pregnant employees by returning them not

to the same position as of the day they went on leave, but

rather to a new, worsened position, one for which the tenure



                                10                        A-4826-12T1
clock must reset.    This would utterly defeat the purpose of the

FMLA, which is to preserve the rights of employees granted

leave, not to penalize them for taking such leave.

    Our own Family Leave Act, N.J.S.A. 34:11B-1 to -16, further

illustrates this public policy goal of protecting employees who

take such leaves of absence.   In N.J.S.A. 34:11B-2, our

Legislature declared that "employees should be entitled to take

a period of leave upon the birth . . . of a child . . . without

risk of termination of employment . . . and without loss of

certain benefits."   To that end, like the FMLA, the Family Leave

Act provides that an employee is "entitled to be restored to the

position held by the employee when the leave commenced or to an

equivalent position of like seniority, status, employment

benefits, pay, and other terms and conditions of employment."

N.J.S.A. 34:11B-7.   The Act further provides that the employee

"shall retain all rights under any applicable layoff and recall

system, including a system under a collective bargaining

agreement, as if the employee had not taken the leave."     Ibid.

Thus, like the FMLA, our statutory authority reveals an intent

to return an employee on maternity leave to the same position

she was in before she took the leave; in other words, our public

policy also favors treating petitioner as though her leave did




                                 11                         A-4826-12T1
not occur since she otherwise would have gained tenure on

September 1, 2005.

    Because petitioner remained an employee even during her

maternity leave and because the principles underlying the FMLA

and our own Family Leave Act encourage an interpretation that

preserves the rights of our pregnant employees, we find that

petitioner's tenure rights were maintained even though she went

on leave, and thus that she was tenured as of the beginning of

her leave on September 1, 2005.

    As such, petitioner claims that she is entitled to relief

because at the time of the RIF plan in April 2007, she had

acquired three years and nine months of seniority, which

allegedly was a greater amount of seniority time than that

acquired by the individual who ultimately obtained the vacant

position in the physical education department in August 2007.

To arrive at this number, however, petitioner includes thirty

days of credit acquired during the 2005-2006 academic year when

she was on leave.    Petitioner relies on N.J.A.C. 6A:32-5.1(b) to

support her contention that the thirty days may be included:

              Seniority, pursuant to N.J.S.A. 18A:29-
         9 et seq., shall be determined according to
         the number of academic or calendar years of
         employment, or fraction thereof, as the case
         may be, in the school district in specific
         categories as hereinafter provided. The
         periods of unpaid absences not exceeding 30
         calendar days aggregate in one academic or



                                  12                        A-4826-12T1
          calendar year, leaves of absence at full or
          partial pay and unpaid absences granted for
          study or research shall be credited toward
          seniority. All other unpaid absences or
          leaves of absence shall not receive
          seniority credit.

          [(emphasis added).]

Petitioner claims that the phrase "[t]he periods of unpaid

absences not exceeding 30 calendar days aggregate in one

academic or calendar year . . . shall be credited toward

seniority" should be interpreted as allowing her a thirty-day

seniority credit from her ten-months of unpaid leave.

     As noted, because he found that petitioner did not attain

tenure, the Commissioner did not address the issue of her

seniority or entitlement to damages.   Specifically, the

Commissioner did not determine whether petitioner's

interpretation of N.J.A.C. 6A:32-5.1(b) (as allowing her a

thirty-day seniority credit from her ten-months of unpaid leave)

was correct or whether the regulation should be construed as

permitting the consideration of only periods of absence of less

than thirty days in calculating seniority time.   The proper

interpretation of N.J.A.C. 6A:32-5.1(b) is thus determinative of

petitioner's seniority rights1 and its resolution, we find, is


1
  It appears that without those thirty days, petitioner had three
years and eight months of seniority, which was equal to the
amount of seniority time held by the teacher who assumed the
                                                      (continued)


                                13                          A-4826-12T1
best left to the agency charged with its enforcement.    We

therefore remand the matter to the Commissioner for a

determination of petitioner's seniority rights and any

consequent entitlement to relief.

    Reversed and remanded.




(continued)
vacant position in August 2007. If so, petitioner would not be
automatically entitled to that position based on seniority, but
rather would have, at most, been considered with the other
teacher for the position. However, when two teachers have the
same seniority time, the Board is empowered to choose between
the two.



                               14                             A-4826-12T1
