In an important New Jersey employment law decision, the Appellate Division of the State Superior Court examined exceptions to the 90 day limit for challenging a board of education’s decision regarding a teacher’s tenure status. In that case, Frayne v. Board of Education of the Borough of Highland Park, the Appellate Division demonstrated that the limitation period is a “hard” deadline, and missing it will likely mean the teacher’s appeal will be rejected.
Deana Frayne was a non-tenure track maternity leave replacement teacher for the Highland Park Board of Education from the 2008-2009 though 2011-2012 school years; thereafter she was employed as a full-time, tenure track teacher. She signed her fourth contract as a tenure track first grade teacher for the 2015-2016 school year on May 15, 2015. However, on June 25, 2015, she was served with a letter advising that the Board believed that she did not have tenure and that her employment would be terminated effective August 23, 2015 based on performance, behavior and attendance. The Board offered her an agreement ending her tenure track employment, giving her sixty days health benefits and salary in exchange for a release. She did not sign. She then received a Rice Notice, and on August 23, 2015, the Board voted unanimously to terminate Frayne’s employment.
Ten months later, Frayne filed suit in Law Division of the Superior Court, claiming that she had tenure. The judge transferred the determination of Frayne’s tenure rights to the Commissioner of Education, and stayed Frayne’s remaining claims. The Commissioner transferred the matter to the New Jersey Office of Administrative Law (“OAL”) as a contested case, where an administrative law judge (“ALJ”) issued an initial decision which found that the June 25th letter put Frayne on notice that the 90 day limitation period to file a petition with the Commissioner to assert and protect her tenure rights, and the ALJ thus dismissed Frayne’s tenure claim because she missed the 90 day deadline. The Commissioner adopted the ALJ’s decision and upheld Frayne’s termination.
Plaintiff appealed to the Appellate Division of the New Jersey Superior Court, claiming that she was not time-barred because of the doctrine of equitable estoppel. The Appellate Division rejected her argument and upheld the Commissioner’s decision.
The Court cited the New Jersey Administrative Code, which provides that: “The petitioner shall file a petition no later than the 90th day from the date of receipt of the notice of a final order, ruling or other action by the district board of education, individual party, or agency, which is the subject of the requested contested case hearing.”
The Appellate Division explained that
The ninety-day rule has been strictly construed by the courts and consistently applied. This period begins to run when the petitioner “learn[s] from the Local Board the existence of that state of facts that would enable him to file a timely claim.” A petitioner need not receive official and formal notification that he or she may have a valid claim.
On the other hand, the Court explained, equitable estoppel “has been used to prevent a defendant from asserting the statute of limitations when the defendant engages in conduct calculated to mislead plaintiff into believing that it is unnecessary to seek civil redress.” However, here Frayne presented no evidence that the Board had done anything to lead her to postpone filing her claim. Indeed, the court explained it did quite the opposite. It advised her three times of the action and that it did not consider her to have tenure: in the initial notice, in the proposed agreement, and the Rice Notice. Therefore, the Appellate Division found that she could not invoke equitable estoppel to excuse her late filing.
The 90 period to challenge tenure determinations is a “hard” deadline. Missing it will in all likelihood result in a teacher’s appeal being denied. When a teacher receives notice of the board of education’s action, equitable estoppel won’t save her. So the key is file the appeal as soon as possible. Don’t wait!
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