|TRENTON – Acting Attorney General John J. Hoffman and the Division on Civil Rights announced today that the Burlington City public school district has agreed to pay a former employee $45,000 to resolve allegations that it wrongly terminated her for absences that included 39 days of approved, unpaid leave to care for her husband, who was recovering from open-heart surgery.
In addition to paying former educational assistant Halyna Nikulicz in two installments of $22,500 each, the Burlington City schools also must implement several reforms under the settlement agreement.
The reforms include ensuring that the school district’s family leave policy states plainly that “serious health condition of a family member” is an acceptable reason to take unpaid family leave without fear of termination or other negative employment consequences. The school district also must provide training for all supervisors, managers and human resource personnel with respect to the provisions of both the New Jersey Family Leave Act and the federal Family and Medical Leave Act.
“This is a fair settlement of a case that involved a significant issue – one that impacts on millions of men and women in our society every day,” said Acting Attorney General Hoffman. “Under our laws, employers have a duty to allow their workers leave time for such important family matters as births, adoptions and serious illness. Employers who fail to meet this responsibility under the law will be held accountable.”
“Family leave laws are designed to maintain the integrity of the family unit,” said Division on Civil Rights Director Craig Sashihara. “In New Jersey,an employee cannot be forced to choose between keeping her job and caring for a spouse who’s recovering from open heart surgery.”
Nikulicz began working as an educational assistant at Burlington City High School in September 2005. She was assigned to assist special education teachers, and her duties included working with students one-to-one and in small groups.
Nikulicz’ job was classified as a non-tenured support staff position, and had to be renewed on an annual basis, which the Burlington City school board did each year between 2005 and 2011. During that time period, Nikulicz received 11 performance evaluations from several different supervisors, and was never found to be deficient in any category.
Even during the two years that Nikulicz exceeded the total allowable number of 15 absences for non-tenured support staff – the 2008-09 and 2009-10 school years – her supervisors graded her attendance as “meets expectations.” In addition, there was no indication in the “comments” section of any evaluation of Nikulicz that suggested her attendance was a problem, or that her job performance had suffered in any way.
On January 3, 2011, Nikulicz submitted a written request to the Burlington City Superintendent of Schools seeking unpaid family leave from February 7 through April 4, 2011 to care for her husband, who was scheduled for open-heart surgery. The next day, Nikulicz received an evaluation which, for the first time in her employment, rated her as “below expectations” in a category -- Attendance.
A week later, Nikulicz received a memo from the Superintendent informing her that her request for 39 days of unpaid leave time had been approved by the school board, pending verification from her husband’s treating physician that she was needed to care for him. The memo concluded with the sentence, “The Board joins me in wishing your husband a speedy recovery.”
Nikulicz returned to her job on April 4, 2011 as scheduled, but took another day off on April 26, 2011 to accompany her husband to his post-operative visit with the cardiac surgeon. Two days later she was informed by the high school principal that her employment contract for the following year would not be renewed because of poor attendance. The school board subsequently voted to terminate Nikulicz, which was made effective June 30, 2011.
Nikulicz then requested a written explanation for her dismissal, and the Superintendent responded with a memo that included a notation Nikulicz had requested extended leave under the federal Family and Medical Leave during both the 2007-08 and 2010-11 school years.
The memo included data showing that Nikulicz had been absent a total of 152 days during the course of her six-year employment.
However, the Division on Civil Rights reviewed the records of five other education assistants employed for multiple years by the Burlington City schools and found that all five had attendance records comparable to that of Nikulicz. None of the other five education assistants were terminated.
Nikulicz filed a formal complaint with the Division on Civil Rights in May 2011. The Division issued a Finding of Probable Cause against the school district in May 2014, and the settlement terms were agreed to last month. Division Director Sashihara signed the finalized settlement agreement last week.
Deputy Attorney General Beverly Lapsley and Investigator Marian Bland handled the Nikulicz matter on behalf of the State.