                     NOT FOR PUBLICATION WITHOUT THE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-0802-15T2

IN THE MATTER OF JOHANNA RIOS,
NEWARK SCHOOL DISTRICT.

____________________________________________________

            Submitted February 7, 2017 – Decided           February 23, 2017

            Before Judges Fisher and Ostrer.

            On appeal from the Civil Service Commission,
            Agency Nos. 2016-171 and 2015-861.

            Zazzali, Fagella, Nowak, Kleinbaum & Friedman,
            attorneys for appellant Johanna Rios (Colin
            M. Lynch, of counsel; Mr. Lynch and Kaitlyn
            E. Dunphy, on the brief).

            Charlotte Hitchcock, General Counsel, attorney
            for respondent Newark School District (Bernard
            Mercado, of counsel and on the brief).

            Christopher S. Porrino, Attorney General,
            attorney for respondent New Jersey Civil
            Service Commission (Pamela N. Ullman, Deputy
            Attorney General, on the statement in lieu of
            brief).

PER CURIAM

     Johanna Rios was employed by the Newark School District for

more than fourteen years until her termination – pursuant to a

reduction    in   force   plan   –   in   August   2014.   In   appealing       an
unfavorable decision rendered by the Civil Service Commission,

Rios argues the evidence demonstrated – or at least generated a

genuine factual dispute – that she was a "teacher's aide" and not

a "community aide – bilingual," and that she, consequently, had

seniority over six other teacher's aides who were retained in the

wake of the reduction plan. Because we agree there was a genuine

factual dispute about her position that could not be resolved

without an evidentiary hearing, we remand for that purpose.

       The record reveals that the Commission correctly recognized

that Rios's seniority or layoff rights were informed by the factors

set forth in N.J.A.C. 4A:8-2.1,1 but the Commission only assessed

Rios's argument through a mechanical consideration of the precise

title assigned to her without a fair consideration of the nature

of her employment. For this and other reasons, Rios argues the

Commission's    final   decisions2   were   arbitrary,   capricious,   and

contrary to law, and should be reversed; in the alternative, Rios

seeks a remand for an evidentiary hearing.

       We agree an evidentiary hearing is required. Rios asserted

she was classified as, and performed the duties of, a teacher's



1
  Subsection (a) provides four factors for determining "title
comparability," and subsection (b) provides four factors for
determining the presence of a demotional title right.
2
    She also appeals the Commission's denial of reconsideration.

                                     2                            A-0802-15T2
aide, that she was enrolled in the Public Employees Retirement

System as a teacher's aide, and that she was compensated as a

teacher's aide.

     In disregarding these and other illuminating circumstances,

the Commission relied on the title provided by the employer to the

Commission when Rios was hired fourteen years earlier; allegedly

unknown to Rios, the employer then designated her as a community

aide. Because there seems to be no dispute that – if considered a

teacher's aide – Rios possessed sufficient seniority over others

to preclude her termination pursuant to the reduction plan, we

remand for an evidentiary hearing to ascertain Rios's appropriate

title and position in light of what she actually was hired to do

and what she did for the school district over the years, as well

as the other relevant factors set forth in N.J.A.C. 4A:8-2.1. We

reject not only the contention that the applicable regulations

preclude consideration of the actual circumstances surrounding

Rios's employment and turns only on a label placed in a file

without the employee's knowledge, but also the argument that there

can be no hearing even when the facts are contested because such

appeals are normally determined through consideration of a paper




                                3                          A-0802-15T2
record, N.J.A.C. 4A:8-2.6(a)(2).3 In fact, although N.J.A.C. 4A:2-

1.1(d) may presuppose that most appeals of this sort can be fairly

adjudicated on the papers, that regulation also recognizes there

will be cases in which "a material and controlling dispute of fact

can only be resolved by a hearing." This is one such case.

     Reversed and remanded for further proceedings in conformity

with this opinion.   We do not retain jurisdiction.




3
 The school district contends an evidentiary hearing is foreclosed
by these regulations; interestingly, the Commission has not made
that argument.

                                4                            A-0802-15T2
