Brianna Butts v. Board of Education of the City of Newark, Essex County, 4/14/2022, (#74-22)

OAL Dkt. No. EDU 08894-21
Agency Dkt. No. 182-9/21
New Jersey Commissioner of Education
Final Decision
Brianna Butts,
Petitioner,
v.
Board of Education of the City of Newark,
Essex County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed and considered. The parties did not file exceptions.
Petitioner in this matter was employed by the Board and was released from
employment after a 90-day working test period. Upon review, the Commissioner concurs with
the Administrative Law Judge (ALJ) that the Commissioner lacks jurisdiction to adjudicate
petitioner’s claims, as claims related to working test periods fall under the jurisdiction of the
Civil Service Commission.
The Commissioner notes that the ALJ refers in the Initial Decision to a motion to dismiss
filed by the Department of Education. The Department of Education is not a party to this
matter and the motion to dismiss was filed by the Newark Board of Education, a separate
entity. Nonetheless, this correction does not alter the Commissioner’s analysis or conclusion.
74-22

2
Accordingly, the Initial Decision is adopted as the final decision in this matter and the
petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
April 14, 2022
April 14, 2022

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT.NO. EDU 08894-21
AGENCY DKT. NO. 182-9/21
BRIANNA BUTTS,
Petitioner,
v.
BOARD OF EDUCATION OF THE CITY OF
NEWARK,
Respondent.
____________________________________
Samuel Wenocur, Esq. for petitioners (Oxfeld Cohen, attorneys)
Bernard Mercado, Esq., for respondent, (Newark City Board of Education)
Record Closed: February 24, 2022 	Decided: March 2, 2022
BEFORE KIMBERLY A. MOSS, ALJ:
Appellant Brianna Butts appeals the determination by respondent Board of
Education of the City of Newark (Newark) releasing her from employment following a
ninety-day working test period. The matter was transmitted to the Office of Administrative
Law on October 27, 2021, for determination as a contested case. 	Respondent filed a
motion for summary decision on October 26, 2021. Petitioner filed opposition on February

OAL DKT. NO. EDU 08894-21
2
8, 2022. Respondent replied to the opposition on February 24, 2022, on which date the
record closed.
.
FACTUAL DISCUSSION
Petitioner was a civil service employee hired by Newark as a custodial worker
under a ninety-day working test period on June 9, 2021. 	She worked at the South
Seventeen Street school during the working test period. 	Petitioner’s performance was
rated unsatisfactory during the ninety-day working test period. Petitioner was issued a
letter of termination at the end of her ninety-day test period on September 9, 2021. The
letter stated that petitioner had a right to appeal to the New Jersey Civil Service
Commission in writing within twenty days of receipt of the letter. Petitioner filed an appeal
with New Jersey Department of Education on or about September 29, 2021. 	Petitioner
filed the appeal as pro se on September 17, 2021. 	A notice of appearance by Lorenzo
Hall, President of Local 617 on behalf of petitioner was signed by petitioner on September
17, 2021. Hall took part in a telephone conference at OAL on petitioner’s behalf.
LEGAL ARGUMENT AND CONCLUSION
At any time prior to transmittal of the pleadings to the OAL, in the Commissioner's
discretion or upon motion to dismiss filed in lieu of answer, the Commissioner may dismiss
the petition on the grounds that the petitioner has advanced no cause of action even if
the petitioner's factual allegations are accepted as true or for lack of jurisdiction, failure to
prosecute or other good reason. N.J.A.C. 6A:3-1.10.
The New Jersey Commission of Education has jurisdiction only over controversies
and disputes that arise under the school laws. The New Jersey Civil Service Commission
hears disputes that arise under civil service law involving its employees. The Civil Service
commission among other things renders final decisions in appeals concerning employees
in there working test period including termination at the end of the working test period for
unsatisfactory performance. N.J.S.A. 11A:2-6(a)(4).

OAL DKT. NO. EDU 08894-21
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Petitioner was a civil service employee who was sent a termination notice on
September 9, 2021, which specifically stated that to appeal the decision she would have
to file an appeal with the Civil Service Commission within twenty days. 	She filed the
appeal within twenty days, but with the Department of Education, not the Civil Service
Commission. Petitioner states that she filed the petition on September 17, 2021, as pro-
se. 	However, a notice of representation was also filed on her behalf by Lorenzo Hall,
president of Local 617 on September 17, 2021. Petitioner was represented by the union
before the expiration of the twenty-day period.
R.1:13-4(a)On Motion. Subject to the right to be prosecuted by indictment, if any
court is without jurisdiction of the subject matter of an action or issue therein or if there
has been an inability to serve a party without whom the action cannot proceed as provided
by R. 4:28-1, it shall, on motion or on its own initiative, order the action, with the record
and all papers on file, transferred to the proper court, or administrative agency, if any, in
the State. 	The action shall then be proceeded upon as if it had been originally
commenced in that court or agency.
In Driggins v. Board of Education of the City of Newark, 93 N.J.A.R. 2d (EDU) 371
the Commissioner of Education remanded the case to OAL to determine if the matter
should be dismissed for failure to comply with the ninety day rule. An initial decision had
previously been rendered on the merits. Driggins had requested back pay and benefits
because of being acquitted of criminal charges. 	Newark stated that he was precluded
from back pay due to the circumstances regarding his retirement. 	Driggins filed a
complaint in Middlesex County Superior Court seeking damages because of not receiving
back pay. 	Middlesex County Superior Court transferred the matter to Essex County
Superior Court. 	At that time the Commissioner of Education requested that the matter
be transfer to the Commissioner of Education.
In this matter, petitioner filed a petition with the wrong agency not the wrong court.
In addition, in the Driggins case the Commissioner of Education requested that the matter
be transferred from Superior Court to the Commission of Education. 	It then remanded

OAL DKT. NO. EDU 08894-21
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the matter. In this case the Department of Education elected to file a motion to dismiss
the petitioner. The Department of Education does not handle civil services matters.
Petitioner is requesting that the Department of Education to transfer the matter to Civil
Service Commission. The Department of Education has decided to file a motion to
dismiss. 	This is distinguished from Driggins where the Commissioner of Education
requested that the matter be transferred from Superior Court to the Commissioner of
Education.
Petitioner received a letter from Newark stating that if she wanted to appeal her
termination, the appeal had to be filed with the Civil Service Commission within twenty
days. Petitioner filed her appeal within twenty days but with the Department of Education.
Petitioner argued that she was pro se when she filed the petition. Petitioner had a
representative Lorenzo Hall, President of Local 617 file an appearance on her behalf on
on or about September 17, 2021, which is the same day she filed the petition. She had
representation with the union within twenty days of the notice of termination.
I CONCLUDE that the Petitioner filed her petition with the wrong agency. 	The
Department of Education Decided to file a Motion to Dismiss in this matter and not transfer
it to the Civil Service Commission.
I further CONCLUDE that petitioner was represented by the president of Local 617
on September 17, 2021, within twenty days of the date she received the termination
notice.

OAL DKT. NO. EDU 08894-21
5
ORDER
It is therefore ORDERED that the respondent’s Motion to Dismiss the petition be
and hereby is GRANTED.
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 08894-21
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.
March 2, 2022
DATE 	KIMBERLY A. MOSS, ALJ
Date Received at Agency: 	March 2, 2022
Date Mailed to Parties: 	March 2, 2022
ljb