Tina Gagliano v. Board of Education of the Village of Ridgewood, Bergen County, 10/2/2020, (#212-20)

212-20
New Jersey Commissioner of Education
Decision
Tina Gagliano,
Petitioner,
v.
Board of Education of the Village of
Ridgewood, Bergen County,
Respondent.
Synopsis
Petitioner – a home economics/food teacher formerly employed under tenure by the respondent
Board’s school district – withdrew her application for disability retirement and sought to return
to service in her previous position. The Board advised that her position had been filled, and no
comparable position was available. Petitioner filed the within petition of appeal, contending that
her tenure rights had been violated, and seeking immediate reinstatement, restoration of her sick
and personal days, as well as salary and benefits. 	The parties filed cross motions for summary
decision.
The ALJ found, inter alia, that: 	there are no material facts at issue here, and the matter is ripe
for summary decision; 	the Board is not required to create a position for petitioner or bump
another teacher; petitioner is, however, entitled to the next opening in her former position,
provided she is able to perform her former duties; 	further, petitioner’s claim for salary and
benefits is not yet ripe for review, as those claims are still pending before the Workers’
Compensation Court. 	The ALJ granted the Board’s motion for summary decision, denied
petitioner’s cross motion, and dismissed the petition without prejudice.
Upon review, the Commissioner concurred with the ALJ’s findings and conclusion, and adopted
the Initial Decision as the final decision is this matter. Accordingly, 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.
October 2, 2020

212-20
OAL Dkt. No. EDU 09584-19
Agency Dkt. No. 146-6/19
New Jersey Commissioner of Education
Decision
Tina Gagliano,
Petitioner,
v.
Board of Education of the Village of
Ridgewood, Bergen County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. The parties did not file exceptions.
In 2016, petitioner – a tenured home economics/food teacher – suffered job-
related injuries, filed claims for workers’ compensation, and returned to work intermittently. On
February 14, 2017, petitioner was granted leave under the Family and Medical Leave Act
(FMLA) 	and 	subsequently 	filed 	an 	application 	for 	accidental 	disability 	retirement 	on
August 14, 2017. 	The New Jersey Teachers’ Pension and Annuity Fund (TPAF) denied her
accidental disability retirement application, and petitioner appealed that determination. 	On
March 13, 2019, petitioner withdrew both her TPAF appeal and her application for accidental
disability retirement and sought to return to her teaching duties. 	The Board denied her return
because her position was filled, and no comparable position was available. 	Petitioner filed a

2
petition of appeal seeking immediate reinstatement, restoration of her sick and personal days,
along with salary and benefits.
The Administrative Law Judge (ALJ) found that the Board is not required to
create a position for petitioner or bump another teacher, but petitioner is entitled to the next
opening in her former position, provided she is able to perform her former duties. With respect
to the salary, benefits, and leave days, the ALJ found that they are not ripe for review as those
claims are still pending before the Workers’ Compensation Court.
Upon review, the Commissioner concurs with the ALJ’s conclusion that while
petitioner is entitled to the next opening in her former position, the Board is not required to bump
an existing teacher or create a position for petitioner. See Klumb v. Board of Education of the
Manalapan-Englishtown Regional High School District, Monmouth County, 199 N.J. 14 (2009).
The Commissioner further agrees that he may not exercise jurisdiction on petitioner’s claims
involving her work-related injury until after the Division of Workers’ Compensation makes a
determination. N.J.A.C. 6A:3-1.3(c) and N.J.A.C. 6A:3-1.3(i)(1).
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter and the petition is hereby dismissed.
IT IS SO ORDERED. 1
INTERIM COMMISSIONER OF EDUCATION
Date of Decision: October 2, 2020
Date of Mailing: 	October 5, 2020
1 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 09584-19
AGENCY DKT. NO. 146-6/19
TINA GAGLIANO,
Petitioner,
v.
VILLAGE OF RIDGEWOOD
BOARD OF EDUCATION,
BERGEN COUNTY.
Respondent.
______________________________
Lane J. Biviano, Esq., for petitioner
Jeffrey R. Merlino, Esq., for respondent (Sciarrillo, Cornell, Merlino, McKeever &
Osborne, LLC, attorneys)
Record Closed: July 6, 2020 	Decided: August 19, 2020
BEFORE BARRY E. MOSCOWITZ, ALJ:
STATEMENT OF THE CASE
Tina 	Gagliano, 	a 	former 	teacher 	in 	the 	Ridgewood 	Public 	School 	District,
withdrew her application for disability retirement and sought a return to service in the
school district, but no opening exists. 	Must the school district create a new position or

OAL DKT. NO. EDU 09584-19
2
bump the incumbent? 	No. 	Under Klumb v. Board of Education of Manalapan-
Englishtown Regional High School District, 199 N.J. 14, 19 (2009), a school district
must return a disabled teacher to the next available opening and is not required to
create a new position or bump an incumbent.
PROCEDURAL HISTORY
Gagliano was a tenured teacher in the Ridgewood Public School District.
On February 14, 2017, Gagliano applied for and was granted leave under the
Family and Medical Leave Act (FMLA).
On March 14, 2019, Gagliano reported to the Ridgewood Board of Education to
return to service as a Home Economics/Food teacher for the Ridgewood Public School
District, but the position had already been filled and no other position was available.
On June 18, 2019, Gagliano filed a petition of appeal with the Department of
Education, Office of Controversies and Disputes. 	Gagliano seeks 	an order reinstating
her to her former duty, or any other comparable duty; restoring her sick and personal
days, as well as her health benefits retroactive to the date of cancellation; and
indemnifying 	her 	for 	any 	medical 	costs 	she 	incurred, 	including 	hospital 	and
pharmaceutical costs. Finally, Gagliano seeks an order requiring Ridgewood to pay her
an amount equal to her full salary for the period following her disability for up to one
year.
On July 16, 2019, the Department of Education, Office of Controversies and
Disputes, 	transmitted 	the 	case 	to 	the 	Office 	of 	Administrative 	Law 	under 	the
Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, and the act establishing the
OAL, 	N.J.S.A. 	52:14F-1 	to 	-23, 	for 	a 	hearing 	under 	the 	Uniform 	Administrative
Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6.
On September 10, 2019, the parties participated in a prehearing telephone
conference call. 	During that conference, the parties determined that no genuine issues

OAL DKT. NO. EDU 09584-19
3
of material fact existed, that the case was ripe for summary decision, and that I could
render a decision as a matter of law. A briefing schedule was to follow.
On April 15, 2020, Gagliano filed her motion for summary decision; on May 11,
2020, Ridgewood filed its opposition and cross-motion for summary decision; and on
June 25, 2020, Gagliano filed her reply.
STATEMENT OF FACTS
Based on the documentation the parties submitted in support of and in opposition
to the motions for summary decision, including their stipulation of facts, I FIND the
following as FACT for the purpose of these motions only:
On September 1, 2008, Gagliano began serving as a Home Economics/Food
teacher for the Ridgewood Board of Education in the Ridgewood Public School District,
eventually becoming a tenured teacher in that position.
On March 28, 2016, Gagliano suffered job-related injuries to her shoulder.
On May 16, 2016, Gagliano suffered job-related injuries to her head, neck, and
upper body, including a concussion.
Gagliano filed claims for workers’ compensation in Workers’ Compensation
Court.
Those claims are pending.
Meanwhile, on September 1, 2016, Gagliano returned to work, but her return was
intermittent, due to her injuries.
On February 14, 2017, Gagliano applied for and was granted leave under the
FMLA. 	Her end date for leave under the FMLA was June 22, 2017. 	During this time,
Ridgewood 	provided 	no 	pension 	contributions 	on 	behalf 	of 	Gagliano. 	In 	fact,

OAL DKT. NO. EDU 09584-19
4
Ridgewood has provided no pension contributions on behalf of Gagliano since February
13, 2017.
According to the Division of Pensions, Gagliano has eight years and seven
months of service credit in the New Jersey Teachers’ Pension and Annuity Fund
(TPAF), which requires ten years of service credit to be eligible for a regular pension at
age sixty.
A regular pension through the TPAF, however, may include purchase of service
credit from another jurisdiction outside of the State of New Jersey.
Toward this end, Gagliano has purchased service credit from the State of New
York for her prior employment there, which brings her total years of service credit to
more than ten.
Thus, Gagliano is eligible to retire on a regular pension at age sixty.
Eligibility for retirement for ordinary disability through the TPAF, on the other
hand, requires ten years of service credit exclusively in the State of New Jersey, but
eligibility for retirement for accidental disability through the TPAF only requires a teacher
to be an active member of the TPAF on the date of his or her application.
Hence, Gagliano filed an application for accidental disability retirement with the
TPAF on August 14, 2017.
On 	July 	16, 	2018, 	the 	TPAF 	denied 	Gagliano’s 	application 	for 	accidental
disability retirement but approved her application for deferred retirement at age sixty.
On 	August 	27, 	2018, 	Gagliano 	appealed 	the 	denial 	of 	her 	application 	for
accidental disability retirement, but on March 13, 2019, Gagliano withdrew both her
appeal and her application for accidental disability retirement, as well as her application
for deferred retirement at age sixty.

OAL DKT. NO. EDU 09584-19
5
Any New Jersey public employee may withdraw his or her retirement application
without penalty before its acceptance and implementation by the Division of Pensions.
On March 14, 2019, Gagliano reported to the Ridgewood Board of Education to
return to service as a Home Economics/Food teacher for the Ridgewood Public School
District.
Ridgewood, however, denied her return.
The position to which Gagliano sought to return was filled and no comparable
position was available.
CONCLUSIONS OF LAW
A party may move for summary decision upon all or any of the substantive issues
in a contested case. N.J.A.C. 1:1-12.5(a).
The decision sought may be rendered if the papers and discovery that have been
filed show that no genuine issue of material fact exists and that the moving party is
entitled to prevail as a matter of law. N.J.A.C. 1:1-12.5(b).
In this case, no genuine issue of material fact exists, and Ridgewood is entitled to
prevail as a matter of law.
The statute governing disability retirement for teachers is N.J.S.A. 18A:66-39.
Subsection 	(b) 	governs 	ordinary 	disability, 	and 	subsection 	(c) 	governs 	accidental
disability, but reemployment is still possible for either under N.J.S.A. 18A:66-40. In fact,
that provision requires a beneficiary under the age of sixty to undergo a medical
examination once a year for five years, if asked, to determine whether the disability had
vanished or materially diminished, and if so, the beneficiary must report for his or her
former duty, or some other comparable duty that his or her former employer is willing to
assign:

OAL DKT. NO. EDU 09584-19
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Once each year the retirement system may, and upon his
application shall, require any disability beneficiary who is
under the age of 60 years to undergo medical examination
by a physician or physicians designated by the system for a
period 	of 	5 	years 	following 	his 	retirement 	in 	order 	to
determine whether or not the disability which existed at the
time 	he 	was 	retired 	has 	vanished 	or 	has 	materially
diminished. 	If the disability beneficiary is engaged in an
occupation, then the amount of his pension shall be reduced
to an amount which, when added to the amount then earned
by him, shall not exceed the amount of the salary now
attributable to his former position.
. . . .
If a disability beneficiary, while under the age of 60 years,
refuses to submit to at least one medical examination in any
year by a physician or physicians designated by the system,
his pension shall be discontinued until withdrawal of his
refusal. 	If the report of the medical board shall show that
such beneficiary is able to perform either his former duty or
other comparable duty which his former employer is willing
to assign to him, the beneficiary shall report for duty; such a
beneficiary shall not suffer any loss of benefits while he
awaits his restoration to active service. 	If the beneficiary
fails to return to duty within 10 days after being ordered so to
do, or within such further time as may be allowed by the
board of trustees for valid reason, as the case may be, the
pension shall be discontinued during such default.
[N.J.S.A. 18A:66-40(a).]
In Klumb v. Board of Education of Manalapan-Englishtown Regional High School
District, 199 N.J. 14, 19 (2009), the New Jersey Supreme Court held that under the
above subsection, N.J.S.A. 18A:66-40(a), “a school district must return a formerly
disabled teacher to the next available opening in the position that he or she held at the
time of the disability retirement, so long as the teacher meets the standards set by the
State Board of Education for that position.”
In reviewing agency decisions interpreting that statutory provision, the Court
noted that in Bublin v. Board of Education of Point Pleasant, 96 N.J.A.R.2d (EDU) 768,

OAL DKT. NO. EDU 09584-19
7
the TPAF determined that Bublin, an English teacher, was no longer disabled, and that
she could return to teaching, but that no positions were open in the school district,
whether for English teachers or librarians. When Bublin was not hired, she appealed to
the Commissioner of Education. 	The Court noted that the Commissioner held that the
school district was not required to create a new position or bump an incumbent. 	In
short, Bublin was merely entitled to the next opening. 	Indeed, the Court asserted that
this holding remained the Commissioner’s interpretation of N.J.S.A. 18A:66-40(a), which
the Court sanctioned. 	According to my research, this remains the Commissioner’s
interpretation.
Accordingly, in this case, two obstacles stand in the way of petitioner’s return to
service. 	First, a genuine issue of material fact exists whether Gagliano’s disability has
vanished or materially diminished. 	Second, if Gagliano’s disability has vanished or
materially diminished, the fact remains that an opening for her position, or for some
other comparable duty which Ridgewood is willing to assign, does not exist, and
Ridgewood is not required to create a new position or bump the incumbent. Therefore, I
CONCLUDE as a matter of law that Gagliano is merely entitled to the next opening—
should she be able to perform her former duty, or some other comparable duty that
respondent is willing to assign.
Finally, Gagliano’s claims to salary and to benefits are not yet ripe. 	Under
N.J.S.A. 18A:30-2.1(a), whenever an employee is absent due to personal injury caused
by an accident at work, the employer shall pay the full salary or wage for up to one year,
but the employee must have received or was eligible to receive a temporary disability
benefit under the workers’ compensation laws, and any amount must be reduced by the
amount of any such award. 	As such, N.J.A.C. 6A:3-1.3(c) requires such a petitioner to
include a copy of the ruling or settlement agreement issued by the Division of Workers’
Compensation.
In 	this 	case, 	Gagliano’s 	claims 	for 	workers’ 	compensation 	in 	Workers’
Compensation Court are pending. 	Stated otherwise, no ruling or settlement yet exists.
Therefore, I CONCLUDE that Gagliano’s claims to salary and benefits are not yet extant

OAL DKT. NO. EDU 09584-19
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and, 	in 	the 	absence 	of 	a 	ruling 	or 	settlement 	from 	the 	Division 	of 	Workers’
Compensation, must be dismissed.
ORDER
Given my findings of fact and conclusions of law, I ORDER that Gagliano’s
motion for summary decision is DENIED, that Ridgewood’s cross-motion for summary
decision is GRANTED, and that Gagliano’s petition is DISMISSED without prejudice.
I 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 is authorized by law
to make a final decision in this case. 	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 under N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 09584-19
9
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.
August 19, 2020
DATE 	BARRY E. MOSCOWITZ, ALJ
Date Received at Agency: 	August 19, 2020
Date Mailed to Parties: 	August 19, 2020
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