Ralph McCullough V. Board of Education of the City of Trenton, Mercer County, 5/11/05, #174-05

#174-05 (OAL Decision not yet available)
RALPH McCULLOUGH, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE CITY 	: 	DECISION
OF TRENTON, MERCER COUNTY,
:
RESPONDENT.
:
SYNOPSIS
Petitioner filed a Verified Petition seeking an order directing the respondent Board to pay him
back-pay for the period from July 1999 through January 2002, based on petitioner’s wrongful
suspension without pay during this period. 	Petitioner claimed the Board owed him $62,599,
plus 	interest, 	as 	well 	as 	out-of-pocket 	costs 	relating 	to 	medical 	and 	dental 	insurance,
prescriptions, and medical payments, totaling an additional $1,987.86.
The ALJ found that the petitioner’s unemployment compensation during the period of his
wrongful suspension, $6,725, mitigates against his claim for back-pay; and that the Board must
reimburse this amount to the unemployment system. 	Furthermore, the ALJ found that all of
petitioner’s earnings in 2000 and 2001, totaling $30,959, should be treated as mitigation income.
The ALJ found credible the petitioner’s claim that shift differentials must be applied in the
calculation of his back-pay.
The 	Commissioner 	adopted 	the 	Initial 	Decision 	of 	the 	OAL 	with 	modification. 	The
Commissioner found the Initial Decision to be replete with mathematical inaccuracies and
inconsistencies, and set forth clarification of the instant record to show a remaining unpaid back-
pay balance of $2,639.55. 	Furthermore, the Commissioner found no evidence in the record
showing that the criteria for the award of pre and/or post-judgment interest pursuant to N.J.A.C.
6A:3-1.17 have been satisfied. 	The Commissioner ordered the Board to remit to the petitioner
the sum of $2,639.55, minus required employment deductions, in satisfaction of the back-pay
award due him as a result of petitioner’s improper termination. 	A copy of the decision will be
forwarded to the Department of Labor so as to facilitate prompt reimbursement of offset
unemployment benefits by the Board.
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.

OAL DKT. NO. EDU 6164-03
AGENCY DKT. NO. 154-5/03
RALPH McCULLOUGH, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE CITY 	: 	DECISION
OF TRENTON, MERCER COUNTY,
:
RESPONDENT.
:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. Petitioner’s exceptions and the Board’s reply thereto, filed in
accordance with N.J.A.C. 1:1-18.4, were fully considered by the Commissioner in reaching his
determination herein.
Petitioner’s exceptions object, inter alia, to the Administrative Law Judge’s (ALJ)
interlocutory Letter Order determination of July 22, 2004 in this matter, which concluded that
principles of mitigation were applicable to any back-pay award received by petitioner. 	Citing
Goodman v. London Metals Exchange, Inc., 86 N.J. 19 (1981), he again maintains, as he did
below, that because mitigation was not raised as an affirmative defense by the Board, who bears
the burden of proof on this issue, or in any way addressed in any of the previous proceedings in
this matter, it must be deemed waived. 	(Petitioner’s Exceptions at pp. 1-4) 	Petitioner,
additionally, claims entitlement to an award of interest on the monies owed him by the Board
due to the protracted period of time the Board took to compensate him. (Id. at 4)

Upon his full and independent review, the Commissioner determines to adopt the
Initial Decision and the ALJ’s July 22, 2004 Letter Order, as modified below. 	Initially, the
Commissioner observes that it appears that petitioner harbors a misapprehension as to how
principles of mitigation affect this matter. 	In this regard, it is noted that petitioner claims
entitlement to back-pay pursuant to N.J.S.A. 18A:6-30, which specifies:
Any person holding office, position or employment in the public
school system of the state, who shall be illegally dismissed or
suspended therefrom shall be entitled to compensation for the
period covered by the illegal dismissal or suspension***.
The court in Mullen v. Board of Education of Jefferson Township, 81 N.J. Super. 151
(App. Div. 1963), in reviewing N.J.S.A. 18:5-49.1, the precursor to this statutory provision,
found that “the Legislature must be taken as having meant that all claims made by illegally
dismissed persons under [this statute] be subject to the common law rule of mitigation of
damages, in light of the plain meaning carried by the word ‘compensation’,” such being the case
because damages under this statute have been determined to be “compensatory” in nature, and,
thus, an individual should not be awarded more damages than actually sustained. 	(at 159.)
Therefore, under common law principles, petitioner here was under a duty to mitigate his
damages during the period of his improper termination by making reasonable efforts to secure
alternative employment, notwithstanding that he was improperly terminated from his position.
See 	Zielenski 	v. 	Board 	of 	Education 	of 	the 	Town 	of 	Guttenberg, 	Hudson 	County,
1981 S.L.D. 759; White v. Township of North Bergen, 77 N.J. 538 (1978); 	Miele v. McGuire,
31 N.J. 339 (1960). This obligation is not predicated on any action on the part of the Board or
any other individual or entity involved in adjudication of the case in chief. 	The record here
reflects that, upon receipt of petitioner’s demand for back-pay, the Board requested that he
2

submit evidence of any and all monies he received from unemployment compensation and
alternative employment during the period at issue. Such information was subsequently provided
and this amount is appropriately offset from petitioner’s monetary award, thereby according him
the full measure of his actual damages. 	To find otherwise would violate public policy as
petitioner would be provided compensation in excess of his economic loss at public expense.
However, while it is without question that the amount of petitioner’s award here must be reduced
by his actual earnings during the time of his removal, Goodman, supra., at 36, it is, similarly,
well settled that a charge of failure to mitigate is an affirmative defense and the burden to
demonstrate that petitioner did not put forth reasonable efforts to secure employment during the
period of his improper termination rests with the employer. 	With respect to such a contention,
the Supreme Court in Goodman, supra, stated:
The employer may establish a prima facie case [in this regard] by
first showing that comparable employment opportunities were
available and, if the lower sights doctrine is applicable, that there
were other suitable jobs. The burden of going forward would then
shift to the employee who may introduce evidence that comparable
employment did not exist, that reasonable and diligent efforts on
his part had not been successful, or that the circumstances did not
justify acceptance of a dissimilar job. 	Whether the individual
sought a job or not would be irrelevant in the absence of the
existence of a position. 	***So, if the proofs show that jobs were
not available, if the complainant had unsuccessfully expended
reasonable 	efforts 	and 	lowered 	his 	sights, 	if 	appropriate, 	no
reduction in the back-pay award would be warranted. The ultimate
burden of persuasion rests on the employer. (at 41)
Under the facts in this matter, the Board did not plead, nor was it required to plead, failure to
mitigate as such a contention was not at issue herein.
Turning to calculation of damages actually due petitioner in this matter, the
Commissioner finds that clarification is necessary here as the Initial Decision is replete with
mathematical inaccuracies and inconsistencies. The instant record establishes the following:
3

The contracted salary for petitioner’s position during the time of
his improper termination was:
1999-2000 school year - $22,698
2000/2001 school year - $24,100
July 1, 2001 – January 15, 2002 - $15,801.921
For a total of $62,599.92
From this amount should be deducted $30,680.582 for actual wages
earned 	by 	petitioner 	during 	this 	period 	and 	$6,725 	in
unemployment compensation he received,3 leaving a balance of
$25,194.34. 	The Board previously issued a check to petitioner in
the amount of $22,554.79, leaving a remaining unpaid back-pay
balance of $2,639.55, minus required employment deductions.
Additionally, petitioner was entitled to a refund, in the amount of
$1,987.86 	for 	certain 	out-of-pocket 	costs 	incurred 	($1,537.80
medical and dental insurance, $393.06 for prescriptions and $57.00
for medical payments). The Board has previously tendered a check
to petitioner in full satisfaction of his $1,987.86 out-of-pocket
costs.
Finally, the Commissioner finds that the instant record provides no showing that
the criteria for the award of pre and/or post-judgment interest pursuant to N.J.A.C. 6A:3-1.17
have been satisfied, in that there has been no showing of bad faith as a result of the Board’s
denial of petitioner’s claims or a deliberate violation of a statute or a rule. Rather, the denial of
the full extent of the back-pay award on the part of the Board was predicated at this juncture
upon a dispute over what the precise amount of the award should have been.
Accordingly, the Initial Decision of the OAL and the ALJ’s July 22, 2004
Interlocutory Order are adopted, as modified herein. 	The Board is hereby ordered to remit to
1 The Commissioner concurs with the ALJ’s determination that petitioner’s claim of shift differentials is
appropriately included here.
2 It is noted that the record contains W-2’s for wages earned by petitioner during the period at issue in the amounts
of $6,313.44, $12,461.58, $1,191, $1,000, $2,446.44, $316.68, $2,732.74, $184.61 and $4,034.09 which totals
$30,680.58 rather than the Initial Decision figure of $30,959 or the Board’s May 19, 2004 Motion for Summary
Decision figure of $30,950.58.
3 Although the Board is entitled to offset petitioner’s monetary award by the unemployment compensation he
received, the Board is reminded of its obligation, pursuant to N.J.S.A. 43:21-5(b), to transmit to the Department of
Labor monies offset for reimbursement for unemployment compensation.
4

petitioner the sum of $2,639.55, minus required employment deductions, in satisfaction of the
back-pay award due him as a result of petitioner’s improper termination during the period at
issue here. 	A copy of this decision will be forwarded to the Department of Labor so as to
facilitate prompt reimbursement of offset unemployment benefits by the Board.
IT IS SO ORDERED.4
COMMISSIONER OF EDUCATION
Date of Decision: May 11, 2005
Date of Mailing: 	May 12, 2005
4 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and N.J.A.C.
6A:4-1.1 et seq.
5