Denise Davis v. Board of Education of the City of Newark, Essex County, 11/20/2023, (#340-23)

340-23
New Jersey Commissioner of Education
Final Decision
Denise Davis,
Petitioner,
v.
Board of Education of the City of Newark,
Essex County,
Respondent.
Synopsis
The petitioner was hired as a custodian by the respondent Board’s school district and commenced
working on January 19, 2021. Her employment was terminated at the end of her 90-day working test
period, on April 19, 2021. Petitioner filed the within appeal of her termination with the Commissioner
on July 23, 2023. The Board filed a motion to dismiss on the basis that the Department of Education
does not have jurisdiction over this termination, which should have been filed with the Civil Service
Commission (CSC).
The ALJ found, inter alia, that: the Department of Education does not have jurisdiction over this matter,
and the case must be dismissed as a matter of law; the petitioner conceded that she filed the dispute
with the wrong State agency and agrees with the Board that her petition should have been filed with the
CSC; the petitioner sought to have the case deemed to have been filed with the CSC, but there is no
authority to do so; further, the petitioner received a letter from the Board giving her proper notice that,
pursuant to N.J.A.C. 4A:2-4.2, an appeal of her termination needed to be filed with the CSC within
twenty days of written notice of termination. 	Accordingly, the ALJ granted the Board’s motion to
dismiss.
Upon review, the Commissioner concurred with the ALJ’s findings and conclusions and adopted the
Initial Decision as the final decision in this matter. 	In so doing, the Commissioner noted that the
petitioner both failed to allege any violation of the school laws in her appeal and filed her petition
beyond the statutory time limit for the filing of appeals with either the CSC or the Commissioner.
Accordingly, the petition of appeal 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.

OAL Dkt. No. 06963-21
Agency Dkt. No. 110-7/21
New Jersey Commissioner of Education
Final Decision
Denise Davis,
Petitioner,
v.
Board of Education of the City of Newark,
Essex County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by the petitioner pursuant to N.J.A.C. 1:1-18.4, and the reply thereto by the
Newark Board of Education (Board), have been reviewed and considered.
Petitioner was employed by the Board as a custodian beginning on January 19, 2021.
She was terminated on April 19, 2021, at the end of her 90-day working test period. Petitioner
filed her petition of appeal on July 23, 2023. The Administrative Law Judge (ALJ) granted
respondent’s motion to dismiss, concluding that the Commissioner does not have jurisdiction
over this matter, which should have been filed with the Civil Service Commission (CSC). The ALJ
found that there was no authority to grant petitioner’s request that the matter be deemed to
have been filed with the CSC.
In her exceptions, the petitioner acknowledges that the CSC, not the Commissioner, has
exclusive jurisdiction over this type of appeal. Petitioner argues that she is not legally savvy and
340-23

2
that her mistake in filing her petition with the Commissioner rather than the CSC should not
result in dismissal, because if she had filed with the CSC, that agency would have transmitted
the case to the OAL. Accordingly, the petitioner requests that the matter be transferred to the
CSC.
In reply, the Board argues that the ALJ appropriately dismissed the case and urges the
Commissioner to adopt the Initial Decision.
Upon review, the Commissioner concurs with the ALJ that the petition must be
dismissed. It is clear – and petitioner concedes – that the CSC has exclusive jurisdiction over
this type of appeal. Furthermore, the Commissioner’s authority pursuant to N.J.S.A. 18A:6-9 is
limited to controversies and disputes arising under the school laws, but petitioner has not
alleged any violation of N.J.S.A. 18A:1-1 et seq. or N.J.A.C. 6A:1-1.1 et seq. Finally, the
petitioner points to no legal authority allowing the Commissioner to transfer the case to
another state agency such as the CSC, and the Commissioner has previously declined to do so in
similar circumstances. See Brianna Butts v. Bd. of Educ. of the City of Newark, Essex Co.,
Commissioner Decision No. 74-22 (decided Apr. 14, 2022). In further support of this conclusion,
the Commissioner notes that N.J.A.C. 4A:2-4.1 provides that an employee terminated at the
end of a working test period has twenty days to request a hearing before the CSC, and the
record reflects that petitioner did not meet that deadline.
Additionally, even if the petitioner had alleged a violation of the school laws, her appeal
to the Commissioner was untimely pursuant to N.J.A.C. 6A:3-1.3(i), which requires all petitions
to be filed within 90 days of the decision being contested. The petitioner was terminated on

3
April 19, 2021, and 90 days thereafter was July 20, 2021; however, petitioner did not file her
petition until July 23, 2021, making it untimely.
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.
November 20, 2023
November 22, 2023

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION ON
MOTION TO DISMISS
OAL DKT. NO. EDU 06963-21
AGENCY DKT. NO. 110-7/21
DENISE DAVIS,
Petitioner,
v.
BOARD OF EDUCATION OF THE CITY OF
NEWARK, ESSEX COUNTY,
Respondent.
______________________________________
Arnold Shep Cohen, Esq., for petitioner Denise Davis (Oxfeld Cohen, attorneys)
Bernard Mercado, Esq., for respondent City of Newark Board of Education (Office
of General Counsel, attorneys)
Record Closed: October 12, 2023 	Decided: October 16, 2023
BEFORE GAIL M. COOKSON, ALJ:
STATEMENT OF THE CASE
Petitioner, Denise Davis (Davis or petitioner) appeals her termination by the City
of Newark Board of Education (Board or respondent) on April 19, 2021, at the end of her
90-day working test period (WTP). 	She had been hired as a custodian worker by the
Board and commenced her employment on January 19, 2021.

OAL DKT. NO. EDU 06963-21
2
PROCEDURAL HISTORY
On July 23, 2021, petitioner filed her Petition of Appeal with the Commissioner of
Education. 	On August 17, 2021, this matter was transmitted by the Department of
Education, Bureau of Controversies and Disputes, to the Office of Administrative Law
(OAL) where it was filed as a contested matter pursuant to N.J.S.A. 52:14B-1 to -15
and N.J.S.A. 52:14F-1 to -13. 	The matter was assigned to the undersigned on August
20, 2021. 	I convened a series of telephonic case management conferences, several of
which petitioner failed to participate in. 	Petitioner then advised that she was seeking
representation either with an attorney or through the union.
On November 9, 2021, we were informed that petitioner had obtained counsel with
Oxfeld Cohen, P.C. 	It was also suggested that counsel consult with his client to see if
she would consider a voluntary withdrawal in light of the jurisdictional issues asserted by
the 	Deputy 	Attorney 	General. 	Months 	passed 	without 	any 	communications
notwithstanding regular requests for a status update from my chambers. 	Finally, in the
spring of this year, we convened a case management conference, at which time a briefing
schedule was established on the jurisdictional questions.
On July 14, 2023, the Board filed a Notice of Motion for Dismissal on the merits of
petitioner’s appeal on the basis that the Department of Education does not have
jurisdiction over this termination, which should have been filed with the Civil Service
Commission. 	After several reminders and then warnings to counsel, petitioner filed its
response to the motion on October 12, 2023. 	The matter is now ripe for determination.
For the reasons set forth herein, I hold that the respondent’s Motion to Dismiss must be
granted with prejudice.
LEGAL ANALYSIS AND CONCLUSIONS OF LAW
On a motion to dismiss, the legal standard to be applied is whether the moving
party is entitled to relief as a matter of law even granting the factual pleadings alleged in
the petition the presumption of truth. Printing Mart-Morristown v. Sharp Elecs. Corp., 116

OAL DKT. NO. EDU 06963-21
3
N.J. 739 (1989). Here, petitioner concedes that she filed the dispute with the wrong State
agency and agrees with the Board that her petition should have been filed with the Civil
Service Commission.
Insofar as there is no dispute that the Department of Education does not have
jurisdiction over this matter, this case must be dismissed as a matter of law. 	While
petitioner seeks to have the undersigned merely deem the case as having been filed
under the Civil Service Commission, there is no authority for such to take place. The OAL
is a forum of limited jurisdiction derived specifically in each case by the matter and issues
transmitted by a State agency head over to it for hearing as a contested dispute. In fact,
it is a first principal of administrative law that --
The Office of Administrative Law shall acquire jurisdiction over
a matter only after it has been determined to be a contested
case by an agency head and has been filed with the Office of
Administrative Law or as otherwise authorized by law, except
as provided by N.J.A.C. 1:1-17. The Office of Administrative
Law shall not receive, hear or consider any pleadings, motion
papers, or documents of any kind relating to any matter until
it has acquired jurisdiction over that matter; . . .
[N.J.A.C. 1:1-3.2.]
Furthermore, it is the head of each such agency that determines whether to retain a case
for in-house determination or transmit a dispute to the OAL for hearing, as well as which
asserted issues the Administrative Law Judge is granted jurisdiction to determine.
It is the agency head who determines initially whether a case
is contested and, if so, whether the case should be sent to the
OAL for an adjudicatory hearing to be conducted by an
administrative 	law 	judge. 	See N.J.A.C. 1:1-2.2(a)
(OAL jurisdiction limited to 	cases 	submitted 	to 	it 	by 	the
agency head after agency head determines that the case is
contested and appropriate for a hearing).
In re Appeal of Certain Sections of Uniform Administrative
Procedure Rules, 90 N.J. 85, 105 (1982)

OAL DKT. NO. EDU 06963-21
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This case is virtually identical to that of Butts v. Bd. of Education of the City of
Newark 2022 N.J. AGEN LEXIS 365, *5, Initial Decision (March 2, 2022), aff’d by Final
Decision (April 14, 2022), and I CONCLUDE that the result shall be identical.
Furthermore, petitioner received a letter from the Board stating that if she wanted
to appeal her termination, the appeal had to be filed with the Civil Service Commission
within twenty days. Pursuant to N.J.A.C. 4A:2-4.2: “An appeal shall be made in writing
to the Civil Service Commission no later than 20 days from the employee's receipt of
written notification from the appointing authority of the termination from service.” 	The
Board provided proper notice but petitioner did not file until July 23, 2023, ninety (90) days
after that notice. I CONCLUDE that petitioner failed to file her appeal within twenty days
with either agency, which is another jurisdictional basis for dismissing her appeal.
ORDER
Accordingly, and for the reasons articulated above, it is ORDERED that the motion
of respondent Newark Board of Education for an Order Granting Dismissal is hereby
GRANTED. 	It is further ORDERED that the appeal of petitioner Denise Davis for relief
from her termination during her working test period is hereby dismissed with prejudice.
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 06963-21
5
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.
October 16, 2023
DATE 	GAIL M. COOKSON, ALJ
Date Received at Agency: 	10/16/23
Date Mailed to Parties: 	10/16/23
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