SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2196-16T1

FELICIA PUGLIESE,

Plaintiff-Appellant,

v.

STATE-OPERATED SCHOOL

DISTRICT OF THE CITY OF

NEWARK, ESSEX COUNTY,

Defendant-Respondent.

____________________________

Argued February 1, 2018 – Decided

Before Judges Simonelli, Haas and Rothstadt. 

On appeal from Superior Court of New Jersey, 

Chancery Division, Essex County, Docket No. 

C-000215-16.

Richard A. Friedman argued the cause for 

appellant (Zazzali, Fagella, Nowak, Kleinbaum 

& Friedman, attorneys; Richard A. Friedman, 

of counsel and on the briefs; Kaitlyn E. 

Dunphy and Marissa A. McAleer, on the briefs).

Brenda C. Liss argued the cause for respondent 

(Riker Danzig Scherer Hyland & Perretti, LLP, 

attorneys; Brenda C. Liss, of counsel and on 

the brief; Fiona E. Cousland, on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

August 28, 2018
2 A-2196-16T1

PER CURIAM

Plaintiff Felicia Pugliese appeals from the January 13, 2017 

Chancery Division order, which confirmed a June 8, 2016 arbitration 

award rendered pursuant to the Tenure Employees Hearing Law (TEHL), 

N.J.S.A. 18A:6-10 to -18.1. The arbitrator found plaintiff 

culpable of inefficiency and dismissed her from her position as a 

tenured teacher with defendant State-Operated School District of 

the City of Newark (District). We reverse.

I.

Pugliese was employed by the District from 2004 to 2013. She

has a Bachelor of Arts degree with a major in sociology and a 

Master's Degree as a reading specialist. In 2006, the Department 

of Education issued her a standard certificate stating she met the 

requirements to serve as an elementary school teacher. She also 

had an endorsement to teach "Language Arts Literacy (English, 

Reading, Language Arts)," and satisfied the "highly qualified" 

teacher definition under the No Child Left Behind Act of 2001 

(NCLB), 20 U.S.C.A. §§ 6301 to 7941 to teach that subject. She

taught language arts and reading to small groups of elementary 

school students for the 2004-2005 to 2009-2010 school years,

received "proficient" ratings for each school year, and acquired 

tenure in this position. 
3 A-2196-16T1

In the 2010-2011 and 2011-2012 school years, the District 

reassigned Pugliese to teach large departmentalized "Social 

Studies (Economics, History, Civics, Geography)" for fifththrough eighth-grade middle school students. She had no social 

studies or middle school social studies certificates,

endorsements, or authorizations,

1 and did not satisfy the "highly 

qualified" teacher definition under the NCLB or the New Jersey 

High Objective Uniform Standard of Evaluation for General 

Education and Special Education Teachers (HOUSE) to teach social 

studies. As required by the NCLB, the District notified the 

parents and guardians of Pugliese's students that she did not meet 

the "highly qualified" requirement to teach social studies. 20 

U.S.C.A. § 6312 (e)(1)(B).

For the school years 2010-2011 and 2011-2012, Pugliese

received ratings of "basic" and "unsatisfactory," respectively. 

The negative issues identified in her evaluations included her 

failure to design coherent instruction, engage students in 

learning, and demonstrate knowledge of content and pedagogy.

On March 26, 2012, the District served Pugliese with a notice 

of intent to file tenure charges against her for inefficiency. 

The District also served her with a professional improvement plan 

 

1 See N.J.A.C. 6A:9B-9.3(a)(6) (recodified at N.J.A.C. 6A:9-

9.2(a)(6)).
4 A-2196-16T1

(PIP), which allowed her ninety-days to correct and overcome the 

inefficiency, as required by the terms of N.J.S.A. 18A:6-11 and 

N.J.A.C. 6A:3-5.1(c)(4), then in effect. The ninety-day 

correction period expired on June 25, 2012. Pugliese did not meet

with the principal on March 26, 2012 to discuss the charge and the 

PIP because her union representative was not available. The 

meeting occurred on March 29, 2012.

Pursuant to the PIP, a master social studies teacher was to 

assist Pugliese throughout the ninety-day period. However, the 

master teacher only assisted Pugliese on three occasions. The 

District provided no master teacher or other remedial assistance

to Pugliese after May 9, 2012. Thus, Pugliese received no 

assistance from the District for forty-seven of the ninety-day 

correction period. 

On July 23, 2012, the District served Pugliese with a postimprovement period notice, charging her with inefficiency based 

on her alleged failure to improve during the ninety-day correction 

period. On September 12, 2012, the District certified the tenure 

charge to the Commissioner of Education (Commissioner), and 

suspended Pugliese without pay for 120 days, effective September 

12, 2012.

Prior to the disposition of the tenure charge, in August 

2012, the Legislature enacted the Teacher Effectiveness and 
5 A-2196-16T1

Accountability for Children of New Jersey Act (TEACHNJ), N.J.S.A. 

18A:6-117 to -129. Although tenure charges are still filed under 

the TEHL, TEACHNJ amended the procedural process applicable to 

those charges. Under the amended procedures, if the Commissioner 

determined the tenure charge was sufficient to warrant dismissal 

or reduction in salary, "he shall refer the case to an arbitrator 

pursuant to [N.J.S.A. 18A:6-17.1] for further proceedings[.]" 

N.J.S.A. 18A:6-16. 

On September 28, 2012, Pugliese filed an answer and separate 

defenses. She asserted her assignment as a departmentalized social 

studies teacher was illegal because she was not "highly qualified" 

to teach social studies, as required by the NCLB, and the District 

could not find her inefficient in a position to which she was 

illegally assigned. She asserted the District failed to afford 

her the full ninety-day correction period. She also asserted the 

District did not afford her the opportunity to participate in the 

formulation of the PIP or provide reasonable assistance, and the 

assistance provided was inadequate, as it was not individualized 

or created or provided solely for her benefit.

On October 1, 2012, the Commissioner determined the tenure 

charge was sufficient to warrant dismissal or a reduction in 

salary, and transferred the matter to an arbitrator. The 

arbitrator applied the procedural standard in TEACHNJ to determine 
6 A-2196-16T1

whether the tenure charge demonstrated that Pugliese failed to 

perform in a satisfactory manner for two consecutive years. See

Pugliese v. State-Operated Sch. Dist. of City of Newark, 440 N.J. 

Super. 501, 511-12 (App. Div. 2015). This differed from the 

procedural standard another arbitrator applied in a companion case 

involving a teacher who, like Pugliese, had tenure charges filed 

after TEACHNJ was enacted for conduct occurring before then. Id.

at 511. We reversed, determining that "[b]oth arbitrators cannot 

be correct in applying different standards to similar procedural 

matters." Id. at 512. We remanded for the Commissioner to 

determine "[w]hich standard is appropriate for teachers whose 

tenure charges [were] brought after the passage of TEACHNJ, but 

before the TEACHNJ evaluation rubric [was] implemented[.]" Ibid. 

We held "[t]he Commissioner must . . . inform the arbitrator what 

legal standard to utilize, after which the arbitrators must review 

the facts anew within this legal framework." Id. at 503.

We also found that the arbitrator, Commissioner, and trial 

court did not resolve Pugliese's legal defenses. Id. at 512. 

Thus, we directed the Commissioner, on remand, "to explicitly 

decide those legal defenses that the Commissioner does not 

expressly delegate to the statutorily-mandated arbitrator to 

decide." Id. at 503. The Commissioner subsequently returned the 

matter to the same arbitrator with instruction to review the facts 
7 A-2196-16T1

anew under the preponderance of the evidence standard and determine

the validity of Pugliese's legal defenses. 

In a June 8, 2016 arbitration award, the arbitrator determined 

the District demonstrated by a preponderance of the evidence that 

the tenure charge should be sustained. Addressing Pugliese's 

legal defenses, the arbitrator found her assignment to teach 

departmentalized social studies was not illegal because the

"highly qualified" requirement of the NCLB only applied to teachers

in a departmental high school setting. 

The arbitrator also found that Pugliese "could properly have 

been assigned under her licensure to teach all elementary core 

subjects, including social studies, in a non-departmentalized 

elementary school setting." The arbitrator reasoned that the 

elementary school level social studies curriculum required a 

teacher to "possess general knowledge of history, government, 

sociology, and other related topics sufficient to understand and 

implement the curriculum[,]" and as a former sociology major, 

Pugliese could grasp and convey the social studies curriculum. 

The arbitrator also noted that the NCLB and New Jersey statute 

then in effect did not expressly limit "highly qualified" 

designations for teaching social studies to history or government.

The arbitrator found that Pugliese "was invited to 

participate in the formulation of her [PIP] or to add input 
8 A-2196-16T1

concerning the parameters of the PIP, but elected not to avail 

herself of this opportunity." The arbitrator also found the

truncation of the ninety-day correction period by three days was 

attributable to Pugliese's refusal to meet with school 

administrators because her union representative was unavailable. 

The arbitrator reasoned that while Pugliese was entitled to union 

representation, "an employee cannot unilaterally precipitate an 

entitlement to an additional year's employment simply by delaying 

the meeting at which tenure charges are to be delivered or a PIP 

is to commence until fewer than ninety days remain in the school 

year." The arbitrator concluded, "if the PIP was properly created, 

and if the school administration provided the requisite support 

materials, evaluations, feedback, and opportunity for [Pugliese] 

to demonstrate improvement, the loss of three days would not 

invalidate an otherwise proper PIP interval." The arbitrator also 

determined that the extra three days would not have altered the 

outcome because Pugliese did not demonstrate significant 

improvement during the eighty-seven day period she was afforded.

Notably, the arbitrator found that:

the District failed to provide tailored 

support for [Pugliese] throughout the PIP 

interval, as . . . no [m]aster [t]eacher or 

other supporting expert assisted [Pugliese] in 

improving her classroom performance after midMay of the 2011-12 school year. The 

evidentiary record established that no 
9 A-2196-16T1

remedial help was provided to [Pugliese] after 

May 9, 2012, creating a potentially material 

defect in administering the PIP as required 

under pre-[TEACH]NJ standards.

The arbitrator determined "the District's failure to provide 

substantial assistance for almost half the PIP interval 

constituted a significant defect in the PIP process" and "[t]he 

District's failure to provide supervision and supplemental support 

after May 9, 2012 potentially eroded the essential purpose of the 

PIP." 

Despite these findings, the arbitrator determined "the 

District's failure to provide more adequate assistance after May 

9, 2012 was not a material defect in the [PIP] invalidating the 

tenure charges solely on the basis of diminished [m]aster [t]eacher 

interaction or insufficient provision of other support 

resources[.]" He concluded that Pugliese could have demanded more 

assistance from the master teacher or other support services after 

May 9, 2012, but did not do so. He also concluded that "absent 

any clearly articulated demand for more help from [Pugliese] or 

any noticeable improvement in her teaching, the perfunctory

support afforded to [Pugliese] during the second half of the [PIP] 

interval did not invalidate the District's compliance with the PIP 

requirements then in effect." The arbitrator held that termination 

was the appropriate penalty.
10 A-2196-16T1

Pugliese filed a motion to vacate the arbitration award. The 

motion judge agreed with the arbitrator's findings on Pugliese's 

legal defenses, concluded the arbitrator's decision was based on 

substantial credible evidence in the record, and confirmed the 

arbitration award. This appeal followed.

II.

On appeal, Pugliese contends the motion judge erred in 

confirming the arbitration award because it was contrary to the 

law, and thus, procured by undue means, and against public policy. 

She argues the award violated N.J.S.A. 18A:6-11 and N.J.A.C. 6A:3-

5.1(c)(4) because she was deprived of the entire ninety-day 

correction period to improve her performance and positive 

assistance during that period. She also argues the District could 

not evaluate or terminate her for inefficiency in an assignment 

to which she was illegally assigned and for which she was not 

"highly qualified" to teach. 

The arbitrator has the sole authority to "hear and make a 

final determination on a controversy and dispute arising under 

[N.J.S.A. 18A:6-10]." N.J.S.A. 18A:6-9. The arbitrator's 

decision is "final and binding and may not be appealable to the 

[C]omissioner" but rather, "shall be subject to judicial review 

and enforcement as provided pursuant to N.J.S.A. 2A:24-7 [to -10.] 

N.J.S.A. 18A:6-17.1(e).
11 A-2196-16T1

"Judicial review of an arbitration award is very limited." 

Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) 

(quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. 

Mizichko, 202 N.J. 268, 276 (2010)). "An arbitrator's award is 

not to be cast aside lightly. It is subject to being vacated only 

when it has been shown that a statutory basis justifies that 

action." Ibid. (quoting Kearny PBA Local # 21 v. Town of Kearny, 

81 N.J. 208, 221 (1979)). "As the decision to vacate an 

arbitration award is a decision of law, [we] review[] the denial 

of a motion to vacate an arbitration award de novo." Minkowitz 

v. Israeli, 433 N.J. Super. 111, 136 (App. Div. 2013) (quoting 

Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010)).

The court may vacate an arbitration award "[w]here the award 

was procured by corruption, fraud or undue means[.]" N.J.S.A. 

2A:24-8(a). "'[U]ndue means' ordinarily encompasses a situation 

in which the arbitrator has made an acknowledged mistake of fact

or law or a mistake that is apparent on the face of the record[.]" 

Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 

190, 203 (2013) (first alteration in original) (quoting Office of 

Emp. Relations v. Commc'n Workers of Am., 154 N.J. 98, 111-12 

(1998)). "[A]n arbitrator's failure to follow the substantive law 

may . . . constitute 'undue means' which would require the award 

to be vacated." In re City of Camden, 429 N.J. Super. 309, 332 
12 A-2196-16T1

(App. Div. 2013) (quoting Jersey City Educ. Ass'n, Inc. v. Bd. of 

Educ., 218 N.J. Super. 177, 188 (App. Div. 1987)). However, to 

constitute undue means, "[t]he judicial inquiry must consider more 

than whether a mere mistake occurred." Minkowitz, 433 N.J. Super. 

at 150). Rather, the

formulation requires that the arbitrator[] 

must have clearly intended to decide according 

to law, must have clearly mistaken the legal 

rule, and that mistake must appear on the face 

of the award. In addition, the error, to be 

fatal, must result in a failure of intent or 

be so gross as to suggest fraud or misconduct.

[Id. at 150-51) (alteration in original) 

(quoting Trentina v. Fitzpatrick & Assocs., 

135 N.J. 349, 357 (1994)).]

"'[U]ndue means' . . . does not include situations . . . where the 

arbitrator bases his decision on one party's version of the facts, 

finding that version to be credible." Local No. 153, Office & 

Prof'l Emps. Int'l Union, AFL-CIO v. Tr. Co. of N.J., 105 N.J. 

442, 450 n.1 (1987)). 

In addition, a court may vacate an arbitration award for 

public policy reasons. Borough of E. Rutherford, 213 N.J. at 202. 

"However, '[r]eflecting the narrowness of the public policy 

exception, that standard for vacation will be met only in rare 

circumstances.'" Ibid. (alteration in original) (quoting N.J. 

Tpk. Auth. v. Local 196, I.F.T.E., 190 N.J. 283, 294 (2007)). 

"Public policy is ascertained by 'reference to the laws and legal 
13 A-2196-16T1

precedents and not from general considerations of supposed public 

interests.'" Id. at 202-03 (quoting Weiss v. Carpenter, Bennett 

& Morrissey, 143 N.J. 420, 434-35 (1996)). "And, even when the 

award implicates a clear mandate of public policy, the deferential 

'reasonably debatable' standard still governs. Thus, '[i]f 

correctness of the award, including its resolution of the publicpolicy question, is reasonably debatable, judicial intervention 

is unwarranted.'" Id. at 203 (alteration in original) (quoting 

Weiss, 143 N.J. at 443). As our Supreme Court explained, 

"[a]ssuming that the arbitrator's award accurately has identified, 

defined, and attempted to vindicate the pertinent public policy, 

courts should not disturb the award merely because of disagreements 

with arbitral fact findings or because the arbitrator's 

application of the public-policy principles to the underlying 

facts is imperfect." Ibid. (alteration in original) (quoting 

Weiss, 143 N.J. at 443). 

A.

We first address Pugliese's argument that the arbitration 

award violated N.J.S.A. 18A:6-11 and N.J.A.C. 6A:3-5.1(c)(4) 

because she was deprived of the entire ninety-day correction period 

to improve her performance and positive assistance during that 

period. 
14 A-2196-16T1

Prior to its amendment, N.J.S.A. 18A:6-11 provided, in 

pertinent part, "that if the [tenure] charge is inefficiency, 

prior to making its determination as to certification, the board 

shall provide the employee with written notice of the alleged 

inefficiency, specifying the nature thereto, and allow at least 

[ninety] days in which to correct and overcome to inefficiency."

N.J.A.C. 6A:3-5.1(c)(4) provided:

Concurrent with notifying the employee of such 

charges of inefficiency, the district board 

of education or the State district 

superintendent shall direct that there be a 

modification of the individual professional 

improvement plan mandated by [N.J.A.C.] 6A:32-

4.3 or 4.4, to assure that such plan addresses 

the specific charges of inefficiency and 

comports with the timelines established for 

correction.

As we have held, "compliance by the local board with its 

obligation to afford the teacher the 90-day correction period 

constitutes an absolute prerequisite to its right to certify 

charges against the teacher and, consequently, that a failure of 

compliance compels dismissal of the charges." Rowley v. Bd. of 

Educ., 205 N.J. Super. 65, 72 (App. Div. 1985). Moreover, Section 

IIB4 of the Guidelines for Implementation of the TEHL, Department 

of Education, Division of Controversies and Disputes (May 3, 1977),

"provides that '[d]uring the aforementioned [ninety] day period, 

members of the administrative/supervisory staff should make 
15 A-2196-16T1

reasonable efforts to provide assistance to the teaching staff 

member to overcome the specific inefficiencies.'" Ibid. The 

Commissioner "has consistently construed the statutory mandate in 

the light of this guideline, concluding that 'if a board chooses 

to file tenure charges of inefficiency against any teacher, the 

administration bears the heavy responsibility to render positive 

assistance to the teacher in an effort to overcome his 

inefficiencies.'" Ibid. (emphasis added) (citations omitted). 

The State Board of Education has stated that:

under [N.J.S.A.] 18A:6-11, a local board of 

education is duty bound to assist a tenured 

teaching staff member, against whom it has 

filed charges of inefficiency, in improving 

his teaching performance before removing him 

from his teaching position. . . . The 

rationale underlying this rule is that a 

teacher whose teaching effectiveness is called 

into question after years of meritorious 

service in a school district should, in 

recognition of that contribution, be afforded 

an opportunity to demonstrate that he is still 

capable of effective teaching. He can only 

avail himself of that opportunity if he 

understands clearly the basis for the 

criticism supporting the allegations of 

inefficiency and is offered constructive 

advice as to how he might restore his teaching 

skills.

[Id. at 73.]

Accordingly, the failure to accord a teacher a ninety-day 

correction period and positive assistance during that period

compels dismissal of the charges. Id. at 74; see also In the 
16 A-2196-16T1

Matter of the Tenure Hearing of Parisi, EDU 5793-03, final 

decision, at 9 (Aug. 7, 2008), http://njlaw.rutgers.edu/

collections/oal/final/edu09654-08_1.pdf.

Here, Pugliese received notice of the tenure charge and the 

PIP on March 26, 2012. The ninety-day correction period began on 

that date, not on March 29, 2012, as she argues. See id. at 8-9. 

Pugliese's delay in meeting to discuss the tenure charge and PIP 

did not extend the ninety-day period, and she cites no authority 

to the contrary. Accordingly, the arbitrator correctly determined

that the truncated ninety-day correction period was no reason to 

dismiss the tenure charge.

Nevertheless, the arbitrator erred in determining the 

District's failure to provide Pugliese with positive assistance 

throughout the ninety-day correction period was no reason to 

dismiss the tenure charge. As the arbitrator found, the PIP was 

not specifically tailored for Pugliese throughout the PIP period, 

as required by N.J.A.C. 6A:3-5.1(c)(4), and the only real 

assistance she received was from the master teacher. However, the 

PIP provided that a master teacher would assist Pugliese throughout 

the entire ninety-day PIP period, but a master teacher only 

assisted her on three occasions, and assistance ceased on May 9, 

2012. The District provided no remedial assistance to Pugliese 

thereafter to help her correct or improve her performance. As the 
17 A-2196-16T1

arbitrator acknowledged, the District's failures "constituted a 

significant defect in the PIP process" and "potentially eroded the 

essential purpose of the PIP." 

Contrary to the arbitrator's reasoning, it was not Pugliese's

burden to demand continuation of the master teacher or additional

assistance during the correction period. Nor could the District 

unilaterally decide to prematurely terminate assistance for 

Pugliese's alleged failure to improve. The law clearly required

the District to render positive assistance to Pugliese throughout 

the entire ninety-day correction period, which it failed to do. 

See Rowley, 205 N.J. Super. at 73. 

The District's non-compliance with the law in this case 

compelled dismissal of the tenure charge. Id. at 74. The 

arbitrator's failure to dismiss the tenure charge was contrary to 

the law, and thus, the arbitration award was procured by undue 

means and must vacated.

B.

We next address Pugliese's argument that the District could 

not evaluate or terminate her for inefficiency in an assignment 

to which she was illegally assigned and for which she was not 

"highly qualified" to teach. As a threshold issue, we address the 

District's contention that collateral estoppel and the law-of-thecase doctrine bar Pugliese from re-litigating the "highly 
18 A-2196-16T1

qualified" issue. Collateral estoppel prevents future litigation 

on the issue when:

(1) the issue to be precluded is identical to 

the issue decided in the prior proceeding; (2) 

the issue was actually litigated in the prior 

proceeding; (3) the court in the prior 

proceeding issued a final judgment on the 

merits; (4) the determination of the issue was 

essential to the prior judgment; and (5) the 

party against whom the doctrine is asserted 

was a party to or in privity with a party to 

the earlier proceeding.

[Winters v. N. Hudson Reg'l Fire & Rescue, 212 

N.J. 67, 85 (2012) (quoting Olivieri v. Y.M.F. 

Carpet, Inc., 186 N.J. 511, 521 (2006)).]

"Fundamental to the application of estoppel is an assessment of 

considerations such as 'finality and repose; prevention of 

needless litigation; avoidance of duplication; reduction of 

unnecessary burdens of time and expenses; elimination of 

conflicts, confusion and uncertainty; and basic fairness.'" Ibid.

(quoting Olivieri, 186 N.J. at 522). "In short, collateral 

estoppel will not apply if a party did not have a 'full and fair 

opportunity to litigate the issue.'" State v. K.P.S., 221 N.J. 

266, 278 (2015) (quoting Zirger v. Gen. Accident Ins. Co., 144 

N.J. 327, 338 (1996)).

"The law-of-the-case doctrine 'is a non-binding rule intended 

to prevent relitigation of a previously resolved issue' in the 

same case." Id. at 276 (quoting Lombardi v. Masso, 207 N.J. 517, 
19 A-2196-16T1

538 (2011)). "The law of the case doctrine teaches us that a 

legal decision made in a particular matter 'should be respected 

by all other lower or equal courts during the pendency of that 

case.'" Lombardi, 207 N.J. at 538 (quoting Lanzet v. Greenberg, 

126 N.J. 168, 192 (1991)). "A hallmark of the law of the case 

doctrine is its discretionary nature, calling upon the deciding 

judge to balance the value of judicial deference for the rulings 

of a coordinate judge against those 'factors that bear on the 

pursuit of justice and, particularly, the search for truth.'" Id.

at 538-39 (quoting Hart v. City of Jersey City, 308 N.J. Super. 

487, 498 (App. Div. 1998)). "Importantly, the law of the case 

doctrine is only triggered when one court is faced with a ruling 

on the merits by a different and co-equal court on an identical 

issue." Id. at 539.

In Pugliese, 440 N.J. Super. at 503, we found the arbitrator, 

Commissioner, and trial court did not resolve Pugliese's legal 

defenses, and reversed the first arbitration award and remanded 

for a review of the facts anew and a determination of the validity 

of Pugliese's legal defenses. Accordingly, because the issue of 

Pugliese's legal defenses was not resolved in the prior 

proceedings, the doctrine of collateral estoppel and the law-ofthe-case doctrine do not apply in this case. That having being 

said, we address Pugliese's argument.
20 A-2196-16T1

The NCLB

reflects Congress' judgment that the best way 

to raise the level of education nationwide is 

by granting state and local officials 

flexibility to develop and implement 

educational programs that address local needs, 

while holding them accountable for the 

results. NCLB implements this approach by 

requiring States receiving federal funds to 

define performance standards and to make 

regular assessments of progress toward the 

attainment of those standards.

[Horne v. Flores, 557 U.S. 433, 461 (2009) 

(citing 20 U.S.C.A. § 6311(b)(2)).]

See also Pugliese, 440 N.J. Super. at 507. The NCLB requires that 

"each State educational agency receiving assistance . . . shall 

develop a plan to ensure that all teachers teaching in core 

academic subjects . . . are highly qualified not later than the 

end of the 2005-2006 school year." 20 U.S.C.A. § 6319(a)(2). To 

satisfy the NCLB's definition of "highly qualified" a teacher must 

have a Bachelor's degree, a valid state certification, and 

demonstrate content expertise in the core academic subjects 

taught. 20 U.S.C.A. § 7801(23)(c). 

The NCLB defines "core academic subjects" as "[e]nglish, 

reading or language arts, mathematics, science, foreign languages, 

civics and government, economics, arts, history, and geography." 

20 U.S.C.A. § 7801(11) (emphasis added). While social studies is 

not specifically defined as a core academic subject, social studies 
21 A-2196-16T1

includes civics, government, economics, history, and geography, 

see N.J.A.C. 6A:9B-9.3(a)(6)(ii), which are core academic subjects

required to be taught by "highly qualified" teachers under the 

NCLB.

Contrary to the arbitrator's finding, Pugliese did not

satisfy the "highly qualified" definition under the NCLB to teach 

social studies. The record is de void of evidence that she had a 

valid state certification, endorsement, or authorization to teach 

social studies, or content expertise in civics, government, 

economics, history, and geography. Although she majored in

sociology, sociology does not include these "core academic 

subjects." See Merriam-Webster's Collegiate Dictionary, 1115 

(10th ed. 1993) (defining sociology as "the science of society, 

social institutions, and social relationships; specifically: the 

systematic study of the development, structure, interaction, and 

collective behavior of organized groups of human beings"). 

Accordingly, the arbitrator's finding that Pugliese was highly 

qualified to teach social studies based on her major in sociology

was a blatant misapplication of the "highly qualified" standard

not supported by Pugliese's certification or endorsement. Thus,

she was not "highly qualified" under the NCLB to teach social 

studies and the District should not have placed her in that 

assignment. 
22 A-2196-16T1

Pugliese was also not qualified to teach departmentalized 

middle school social studies under New Jersey law. Prior to the 

enactment of TEACHNJ, N.J.A.C. 6A:9B-9.1(a)(3) provided that:

Teachers with elementary school endorsements

that are valid in grades nursery through eight 

issued no later than March 1, 2008, may teach 

in grades nursery through eight in any 

employing school district. These teachers 

must demonstrate to the school district that 

they have content knowledge appropriate to the 

subject(s) taught.

[(Emphasis added).]

Pugliese had an elementary school teacher certificate, which 

did not authorize her to teach social studies to middle school 

students. She had no endorsement or authorization to teach middle 

school social studies.2 See N.J.A.C. 6A:9B-9.3(a)(6) (recodified 

at N.J.A.C. 6A:9-9.2).

Further, in order to teach in this position, she had to 

demonstrate she had "content knowledge" in social studies. To 

demonstrate "content knowledge," she had to meet the criteria 

under HOUSE, by passing the appropriate Praxis II Middle Content 

Test, have an undergraduate major in the content, thirty credits 

in the content, a graduate degree in the content, or a national 

board certification in the content. See Carol Albrition, Rani 

 

2 Pugliese did not even qualify for a social studies or middle 

school social studies endorsement. See N.J.A.C. 6A:9B-9.1(a).
23 A-2196-16T1

Singh & Kerri Long, Teacher Quality And School Improvement: A 

Primer for Certification and Highly Qualified, N.J. Dep't of Educ., 

http://www.state.nj.us/education/title1/archive/hqs/nclb/pp.pdf.

She met none of these requirements. She, thus, was not qualified 

to teach middle school social studies under New Jersey law.

Because Pugliese was not certified, authorized, qualified, 

or "highly qualified" to teach middle school social studies, and 

had no content knowledge in social studies, her assignment to that 

position was contrary to the law. As a matter of law, the District 

could not evaluate and terminate her for inefficiency in this 

position. 

Having reached this conclusion, we need not address 

Pugliese's remaining contentions that the judge applied the wrong 

test in reviewing the arbitration award, and the penalty of 

termination violated the doctrine of progressive discipline.

The January 13, 2017 Chancery Division order is reversed, and 

the June 8, 2016 arbitration award is vacated.