YASMIN HERNANDEZ-MANNO V. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY, 2/21/17, (60-17)

60-17
YASMIN HERNADEZ-MANNO, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
STATE-OPERATED SCHOOL DISTRICT 	: 	DECISION
OF THE CITY OF NEWARK,
ESSEX COUNTY, 	:
RESPONDENT. 	:
_______________________________________
SYNOPSIS
Petitioner challenged her reassignment from a supervisor position to a non-supervisory position,
contending that the action violated her tenure and seniority rights. Petitioner was notified in June 2013
that her position as Central Office Supervisor in the Office of Bilingual/ESL Education would be
eliminated; that she would revert to her prior position of Elementary teacher; and that she would be paid
through August 2013, and then placed on a preferred eligible list for future employment with the district.
Petitioner filed the within appeal in November 2013, seeking reinstatement to a supervisory position and
back pay. 	Subsequently, in August 2014, petitioner submitted a letter resigning her position with the
respondent District. 	The District filed a motion for summary decision, contending, inter alia, that the
case was both untimely filed and mooted by petitioner’s resignation.
The ALJ found, inter alia, that: a case is moot when the determination sought cannot have any practical
effect on the existing controversy; 	an employee who voluntarily resigns has no standing to pursue an
appeal; in accordance with N.J.A.C. 6A:3-1.3(i), petitioner was required to file her appeal no later than 90
days from the date of receipt of final notice from the respondent that her position was to be eliminated;
petitioner failed to file her appeal with the required time limit, and offered no reasons why this
requirement should be relaxed; and these issues are dispositive of the case. 	Accordingly, the ALJ
concluded that the petition must be dismissed.
Upon review, the Commissioner concurred with the ALJ’s findings and conclusions. 	Accordingly, the
Initial Decision of the OAL was adopted as the final decision in this matter. The petition was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.
February 21, 2017

OAL DKT. NO. EDU 18713-13
AGENCY DKT. NO. 295-11/13
YASMIN HERNADEZ-MANNO, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
STATE-OPERATED SCHOOL DISTRICT 	: 	DECISION
OF THE CITY OF NEWARK,
ESSEX COUNTY, 	:
RESPONDENT. 	:
_______________________________________
The record of this matter and the Initial Decision of the Office of Administrative
Law have been reviewed. The parties did not file exceptions to the Initial Decision.
Upon 	such 	review, 	the 	Commissioner 	concurs 	with 	the
Administrative Law Judge’s (ALJ) determination that the petition of appeal was time-barred
under N.J.A.C. 6A:3-1.3(i). 1 	Accordingly, the Initial Decision is adopted as the final decision in
this matter and the petition of appeal is dismissed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	February 21, 2017
Date of Mailing: 	February 22, 2017
1 Although it was not necessary to reach a determination on the substance of the appeal because the petition was
untimely filed, the Commissioner is also in accord with the ALJ’s finding – for the reasons articulated in the
Initial Decision – that the matter is moot because the petitioner voluntarily resigned from the district.
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36.
(N.J.S.A. 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 18713-13
AGENCY DKT. NO. 295-11/13
YASMIN HERNANDEZ-MANNO,
Petitioner,
v.
STATE-OPERATED SCHOOL DISTRICT OF
THE CITY OF NEWARK, ESSEX COUNTY,
Respondent.
_________
Yasmin Hernandez-Manno, pro se
Ramon E. Rivera, Esq., Christina M. Michelson, Esq., and Shana T. Don, Esq.,
for respondent (Scarinci & Hollenbeck, attorneys)
Record Closed: January 6, 2017 	Decided: January 6, 2017
BEFORE RICHARD McGILL, ALJ:
Yasmin Hernandez-Manno (“petitioner”) challenges her reassignment by the
State-Operated School District of the City of Newark (“respondent” or “District”) from a
supervisor to a non-supervisory position as a violation of her tenure and seniority rights.
As relief, petitioner seeks reinstatement with back pay.

OAL DKT. NO. EDU 18713-13
2
PROCEDURAL HISTORY
Petitioner filed her petition with the Commissioner of Education on November 29,
2013, pursuant to the Commissioner’s authority under N.J.S.A. 18A:6-9 to hear and
determine disputes arising under the education laws. The matter was transmitted to the
Office of Administrative Law on December 27, 2013, for determination as a contested
case.
On December 29, 2014, respondent filed a motion for summary decision. 	By
letter dated January 22, 2015, respondent requested on behalf of both parties an
adjournment of scheduled hearing dates. 	The letter advises that petitioner’s attorney
was seriously ill and in the hospital and requested a 30-day extension of the time for
petitioner to respond to respondent’s motion. Both requests were granted.
After petitioner’s attorney could not be reached for a telephone status conference
on March 7, 2016, the undersigned sent a letter to petitioner’s attorney inquiring as to
the 	status 	of 	his 	representation 	of 	petitioner. 	No 	response 	was 	received 	from
petitioner’s attorney.
By letter dated April 29, 2016, to petitioner, the undersigned requested that she
clarify her representation in this matter. In a letter dated May 11, 2016, petitioner stated
that she also had not been able to contact her attorney and that she was seeking new
legal representation. 	By letter dated June 16, 2016, respondent advised that it had
been contacted by two attorneys in regard to petitioner’s appeal, but no appearance
was entered on her behalf. By letter dated June 30, 2016, the undersigned advised that
if an appearance was not entered on behalf of petitioner within 20 days of the date of
the 	letter, 	the 	motion 	for 	summary 	decision 	would 	be 	submitted 	for 	disposition.
Thereafter, no appearance was entered on behalf of petitioner, but the matter was held
in abeyance to give her additional time to find legal representation. 	Letters were
received from two attorney’s advising that they did not represent petitioner.
MOTION FOR SUMMARY DECISION

OAL DKT. NO. EDU 18713-13
3
A. Legal Standard
A motion for summary decision should be granted where there is no genuine
issue as to any material fact and the moving party is entitled to prevail as a matter of
law. 	N.J.A.C. 1:1-12.5(b). 	The same standard is applied in the courts of this State
pursuant 	to 	R. 	4:46-2. 	Summary 	judgment 	“is 	designed 	to 	provide 	a 	prompt,
businesslike and inexpensive method” to dispose of actions which do not present any
genuine issue of material fact. 	Judson v. Peoples Bank & Trust Co. of Westfield, 17
N.J. 67, 74 (1954). 	Although the pleadings may raise a factual issue, summary
judgment procedure pierces the allegations in the pleadings, where the other papers
show the absence of any genuine issue of material fact. Ibid. Excessive caution which
would undercut the purposes of a motion for summary judgment should be avoided.
Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 65 (1980).
In determining whether there exists a genuine issue as to a material fact, the
judge must “consider whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party in consideration of the
applicable evidentiary standard, are sufficient to permit a rational fact finder to resolve
the alleged disputed issue in favor of the non-moving party.” 	Brill v. Guardian Life Ins.
Co. of America, 142 N.J., 520, 523 (1995).
B. Respondent’s Position
Respondent advances four main arguments in support of its motion. 	First,
petitioner resigned from her position with the District, and therefore, the petition should
be dismissed as moot. Second, the petition of appeal was not filed in a timely manner.
Third, respondent acted in good faith in implementing a reduction in force, which
resulted in the elimination of petitioner’s position. 	Fourth, no tenure rights exists in an
“Executive 	Director” 	position, 	and 	therefore, 	petitioner 	is 	not 	entitled 	to 	claim 	an
executive director position based on any alleged seniority rights.
C. Facts

OAL DKT. NO. EDU 18713-13
4
There are no genuine issues of fact in regard to respondent’s first and second
arguments. 	During the 2012-2013 school year, petitioner was employed by respondent
in the position of Central Office Supervisor in the Office of Bilingual/ESL Education. By
letter dated June 21, 2013, sent by overnight delivery and PDF email, respondent
advised petitioner that her current position would be eliminated and that she would
revert to her prior position of Elementary Teacher. 	Further, her current salary would
end on August 31, 2013, and she would be placed on a preferred eligible list for future
employment 	with 	the 	District. 	Petitioner 	filed 	her 	Petition 	of 	Appeal 	with 	the
Commissioner on November 27, 2013. During the following year, petitioner sent a letter
dated August 5, 2014, to respondent’s superintendent resigning her position with
respondent effective August 25, 2014.
D. Analysis
Respondent’s first argument is that the petition in this matter should be dismissed
as moot because petitioner resigned from her position with the District. 	A case is moot
when 	the 	determination 	sought 	cannot 	have 	any 	practical 	effect 	on 	the 	existing
controversy. 	Greenfield v. New Jersey Dep’t of Corrections, 382 N.J. Super. 254, 257-
58 (App. Div. 2006).
An employee who voluntarily resigns her position has no standing to pursue an
appeal. 	DeKenipp v. Bd. of Educ. of the Township of Wall, Monmouth County, OAL
Dkt. No. EDU 07786-10, Final Decision (July 15, 2011). 	Here, petitioner voluntarily
resigned her employment effective August 25, 2014. 	Petitioner can no longer pursue
her appeal. 	Therefore, I CONCLUDE that the petition in this matter should be
dismissed as moot.
Respondent’s second argument is that the petition was not filed in a timely
manner and that therefore the petition should be dismissed. 	In accordance with
N.J.A.C. 6A:3-1.3(i), petitioner was required to file her petition no later than the 90th day
from the date of receipt of the notice from respondent. Here, petitioner filed her petition
well beyond ninety days after receipt of the notice. Under the circumstances, petitioner
failed to file her petition within the time limit set forth in N.J.A.C. 6A:3-1.3(i). 	Further,
petitioner has not advanced any reasons to relax this requirement pursuant to N.J.A.C.

OAL DKT. NO. EDU 18713-13
5
6A:3-1.16. Therefore, I CONCLUDE that the petition in this matter should be dismissed
because it was not filed in a timely manner.
The determinations in regard to respondent’s first and second arguments are
dispositive of the case. 	Under the circumstances, it is unnecessary to consider
respondent’s third and fourth arguments.
Based upon the above, I CONCLUDE that the petition in this matter must be
dismissed. Accordingly, it is ORDERED that the petition in this matter be dismissed.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 18713-13
6
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked "Attention: Exceptions." A copy of any exceptions must be sent to
the judge and to the other parties.
January 6, 2017
DATE 	RICHARD McGILL, ALJ
Date Received at Agency: 	January 6, 2017
Date Mailed to Parties:
ljb