L.M.P. VS. HIGH POINT REGIONAL HIGH SCHOOL BOARD OF EDUCATION (L-0108-16, SUSSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1111-17T1
L.M.P.,1
Plaintiff- Appellant,
v.
HIGH POINT REGIONAL HIGH
SCHOOL BOARD OF EDUCATION,
SUPERINTENDENT SCOTT RIPLEY,
and JONATHAN TALLAMY,
Defendants-Respondents.
______________________________
Submitted March 27, 2019 – Decided May 6, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Sussex County, Docket No. L-0108-16.
George T. Daggett, attorney for appellant.
Methfessel & Werbel, attorneys for respondents
(Eric L. Harrison, of counsel and on the brief;
Ashley E. Malandre, on the brief).
1
We use initials to preserve plaintiff's confidentiality.
PER CURIAM
Plaintiff appeals from the October 17, 2017 order granting defendants'
motion for summary judgment regarding her complaint brought under The New
Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA).
Because plaintiff did not establish a prima facie adverse employment cause of
action, we affirm.
Plaintiff filed a complaint on February 23, 2016 alleging a hostile work
environment, constructive discharge and violation of CEPA. She began working
as a special education teacher at High Point Regional High School (High Point)
around 1991. She transferred to the multiple disabilities (MD) program in 2011,
a lateral move with no change in contract or salary.
Plaintiff's deposition revealed the following. In 2012, she began
complaining on behalf of her students about perceived violations of the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213, and the
New Jersey Special Education Code, N.J.A.C. 6A:14-1 to -10, including a lack
of preparation for life beyond high school or home instruction, and no choice of
school hours. Plaintiff reported to Superintendent Scott Ripley, Principal
Jonathan Tallamy (defendants), the Director of Special Education and the case
manager closely associated with the MD program, "several times" that the
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school was "violating the law." In summer 2013, plaintiff was removed from
teaching the extended school year (ESY) program, where she was previously
assigned for the entire summer. She did not file a formal grievance regarding
the ESY program because it was not contractually guaranteed. Only two
teachers were assigned to the program for ten days each that summer.
During the 2013 to 2014 school year, plaintiff again complained about a
lack of transition services for her students, pointing to a program that formerly
allowed students to visit Sussex County Association of Retarded Citizens
(SCARC) to prepare for transitioning out of high school. After successfully
advocating on behalf of her students, she enrolled three students in a transition
program. Later, plaintiff received notice that another student seeking transition
services was not eligible because she used a feeding tube. After plaintiff spoke
out, the student was enrolled in the SCARC transition program.
In summer 2014, plaintiff was assigned to only ten days of the ESY
program. She alleges she was deprived of a $2500 stipend as a result. Other
teachers were similarly assigned to either ten or fewer days of the ESY program.
During the 2014 to 2015 school year, as occurred with other teachers,
plaintiff's sixth period class transitioned into a "supervisory" period, and
plaintiff's stipend for teaching during this period was eliminated. She did not
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file a formal grievance regarding the sixth period class because it was not
contractually guaranteed.
In January 2015, plaintiff sought a residency waiver to continue teaching
at the high school, required because she planned to move to Pennsylvania. She
needed a "critical need letter" from a superintendent, principal or board member.
When she asked Ripley to write such a letter on her behalf, he said he was
uncomfortable doing so because it was his understanding that such letters were
to be reserved for "extreme and acute concerns."
Plaintiff contacted a board member, who then contacted Ripley on her
behalf. The following day, Ripley called plaintiff to his office for a meeting.
Plaintiff brought a union representative with her to the meeting. At the meeting,
Ripley began to yell at her, which caused plaintiff great consternation. Plaintiff
testified that after Ripley left the room, she was "visibly shaken" and "thought
[she] was having a panic attack." Plaintiff was told to go home and her doctor
prescribed Xanax.
Plaintiff received a letter of apology from the union president, and then
an email from Ripley stating he would write the critical need letter. In February
2015, Ripley wrote the letter and plaintiff received a residency waiver.
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Shortly thereafter, one of plaintiff's students died, and Ripley "[gave]
[plaintiff] a hard time about" attending the funeral because she had used up her
personal days. She was the only one of her colleagues to receive delayed
approval to attend.
In March 2015, Ripley announced he would be recommending to the board
that the MD program "should be eliminated as it was no longer sustainable." 2
Many members of the public attended an April 2015 board meeting to speak out
against elimination of the program. In May 2015, the district "began exploring
other options including the outsourcing of the program," which Ripley believed
"could be a sustainable option."
Plaintiff was assigned as a special education teacher for the 2015 to 2016
school year, and given a schedule of classes she had not taught "for a number of
years." Plaintiff did not file a formal grievance regarding the change. Within a
few hours of receiving the schedule, she attempted suicide by overdosing on her
medication3 and drinking two glasses of wine. Plaintiff was diagnosed with
2
Ripley alleged an analysis of the MD program showed it cost about $100,000
per student and only three students were enrolled.
3
Plaintiff testified she was on multiple medications, which cause memory loss.
She stated she has trouble "processing" and "us[ing] the right words."
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post-traumatic stress disorder, manic depression disorder, anxiety, fibromyalgia,
neuropathy, and a stroke. A few days later, on June 16, 2015, plaintiff filed a
disability retirement application, indicating she could no longer work due to the
death of her student. 4
After negotiations for outsourcing the MD program fell through, the
district "pursued an alternative plan, which ultimately included keeping the
program within the [d]istrict." Ripley certified he was never made aware of
plaintiff's complaints and that "as a tenured employee, [plaintiff] would have
continued to be employed with no reduction in salary regardless of the destiny
of the MD program."
On November 13, 2015, plaintiff's disability retirement application was
denied. On February 23, 2016, plaintiff filed a complaint alleging a hostile work
environment, constructive discharge and violation of CEPA. She alleged she
4
Plaintiff's application states: "The death of my student changed my life
forever. I was admitted to an outpatient psychiatric hospital for suicidal
thoughts and intentions to hurt school administrators who did not care that I just
lost a daughter. . . . I have recurring nightmares about killing the administrators
who failed to give me time to grieve; for example, not giving me time off for
her funeral. Within hours of her death, the administration notified me that next
year's program was being disbanded. . . . I am on heavy psychotropic
medication. I cannot concentrate, my memory is a blur, I can't complete simple
tasks, nor can I be left alone. I pray that with months or even years of mental
health treatment that I can become useful."
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suffered a loss of $8000 due to the elimination of her sixth period class , and
$2500 due to the reduction of her ESY assignment.
The court initially granted defendants' motion for summary judgment in
part only, explaining:
The cause of [p]laintiff's retirement is unclear. It could
mostly be related to the tragedy of losing her student, it
could be related to the alleged rude way her superiors
treated her, it c[ould] be related to the threatened loss
of the MD program, and it could be mostly related to
something else. [This] is an issue of material fact with
respect to the cause of [p]laintiff's departure, so
summary judgment is not appropriate.
The motion court nonetheless granted summary judgment regarding
plaintiff's claims relating to her sixth period class and reduction of days in the
ESY program, because they were time-barred by the one-year statute of
limitations. See N.J.S.A. 34:19-5. The court concluded the doctrine of
continuing violation did not apply. See Wilson v. Wal-Mart Stores, 158 N.J.
263, 271-74 (1999) (where a plaintiff establishes a continual pattern of adverse
action, a trial court may toll the statute of limitations until the adverse action
ceases); see also Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 21
(2002) (distinguishing between "a pattern or series of acts, any one of which
may not be actionable as a discrete act, but when viewed cumulatively constitute
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a hostile work environment," which will trigger the doctrine, and "discrete acts
of discriminatory conduct," which will not). The court stated:
Plaintiff translates each claim into a dollar amount and
aggregates the dollar amounts to contribute to her total
demand for damages, but each alleged discriminatory
action would be discrete because [p]laintiff ties an
identifiable amount of money to each action and each
action could stand alone without the need to establish a
pattern. Plaintiff's loss of pay, loss of her sixth-period
class, and loss of days to work in the [ESY] program
are each discrete actions and are time-barred from the
instant litigation.
Upon reconsideration, the motion court ultimately granted summary
judgment to defendants as to the entire complaint, concluding plaintiff failed to
establish the third requirement under Dzwonar v. McDevitt, 177 N.J. 451, 462
(2003), which requires a showing that an adverse employment action was taken:
Plaintiff fails to prove a prima facie case under CEPA
because she fails to prove the third prong of the test.
See N.J.S.A. 34:19-3. Although [p]laintiff's
motivations for retiring are unclear, none of the
motivations are sufficient to make her departure
actionable under CEPA. Neither the alleged rude way
her superiors treated her nor the threatened loss of the
MD program are formal disciplinary actions having
[an] effect on either compensation or job rank, or
actions "virtually equivalent to discharge." See
[Hancock v. Borough of Oaklyn, 347 N.J. Super. 350,
360 (App. Div. 2002) (quoting Zamboni v. Stamler, 847
F.2d 73, 82 (3d Cir. 1988))]. Even though . . . Ripley
. . . incorrectly said that [p]laintiff would not be able to
work in the MD [p]rogram, [p]laintiff still had a job, in
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a position as a teacher, the same title she previously
held at the same salary. The threatened loss of the MD
program is not a completed action. See [Klein v.
University of Medicine and Dentistry of N.J., 377 N.J.
Super. 28, 46 (App. Div. 2005)]. There is no dispute
that no [b]oard resolution was ever passed to either
outsource or eliminate the program. Additionally, the
claim that Ripley initially refused to sign a critical
needs letter for [p]laintiff is not a completed act, as
Ripley eventually signed the letter, and even shows that
Ripley eventually remedied the situation. See [Beasley
v. Passaic County, 377 N.J. Super. 585, 607 (App. Div.
2005)]. Similarly, although Ripley initially did not
provide leave for [p]laintiff to attend the funeral of a
student, he eventually remedied the situation by
allowing her to use leave time. See [ibid.] Therefore,
there was no completed action which could be deemed
an adverse employment action.
The motion court also rejected plaintiff's argument that she was
constructively discharged, reasoning that Ripley advising plaintiff the MD
program was eliminated does not rise to the level of "knowingly permit[ting]
conditions of discrimination in employment so intolerable that a reasonable
person subject to them would resign." See Shepherd, 174 N.J. at 27-28 (quoting
Muench v. Township of Haddon, 255 N.J. Super. 288, 302 (App. Div. 1992)).
"The only completed act that is not time barred, is the time Ripley allegedly
yelled at [p]laintiff, and called her 'unprofessional.' This act by itself is not
sufficient to show a pattern of retaliatory acts. See [Beasley, 377 N.J. Super. at
609]."
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We review a trial court's summary judgment disposition de novo based
upon an independent review of the motion record, and applying the same
standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). A court
should grant summary judgment if the record establishes there is "no genuine
issue as to any material fact challenged and that the moving party is entitled to
a judgment or order as a matter of law." R. 4:46–2(c). We "review the facts in
the light most favorable to" the non-moving party. DiProspero v. Penn, 183 N.J.
477, 482 (2005) (citing R. 4:46-2(c)).
Plaintiff argues she was tricked into retirement when defendants changed
the terms of her employment by assigning her to teach classes she had not taught
recently. Plaintiff argues the language of N.J.S.A. 34:19-2(e), "other adverse
employment action taken against an employee," is inclusive of plaintiff's class
reassignment.
Pursuant to CEPA:
An employer shall not take any retaliatory action
against an employee because the employee does any of
the following:
a. Discloses, or threatens to disclose to a supervisor or
to a public body an activity, policy or practice of the
employer, or another employer, with whom there is a
business relationship, that the employee reasonably
believes:
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(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law . . . or
(2) is fraudulent or criminal . . . ;
b. Provides information to, or testifies before, any
public body conducting an investigation, hearing or
inquiry into any violation of law, or a rule or regulation
promulgated pursuant to law by the employer . . . or
c. Objects to, or refuses to participate in any activity,
policy or practice which the employee reasonably
believes:
(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law . . . ;
(2) is fraudulent or criminal . . . or
(3) is incompatible with a clear mandate of public
policy concerning the public health, safety or welfare
or protection of the environment.
[N.J.S.A. 34:19-3.]
To bring a claim under CEPA, a plaintiff must demonstrate:
(1) he or she reasonably believed that his or her
employer's conduct was violating either a law, rule, or
regulation promulgated pursuant to law, or a clear
mandate of public policy; (2) he or she performed a
"whistle-blowing" activity described in N.J.S.A. 34:19-
3(c); (3) an adverse employment action was taken
against him or her; and (4) a causal connection exists
between the whistle-blowing activity and the adverse
employment action.
[Dzwonar, 177 N.J. at 462.]
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Retaliatory action is defined as "discharge, suspension or demotion of an
employee, or other adverse employment action taken against an employee in the
terms and conditions of employment." N.J.S.A. 34:19-2(e). Adverse action
must be "virtually equivalent to discharge." Hancock, 347 N.J. Super. at 360(quoting Zamboni, 847 F.2d at 82). Additionally, "'[r]etaliatory action' does not
encompass action taken to effectuate the 'discharge, suspension or demotion,'"
but rather "speaks in terms of completed action." Keelan v. Bell Commc'ns
Research, 289 N.J. Super. 531, 539 (App. Div. 1996). Our Supreme Court
explained:
What constitutes an "adverse employment action" must
be viewed in light of the broad remedial purpose of
CEPA, and our charge to liberally construe the statute
to deter workplace reprisals against an employee
speaking out against a company's illicit or unethical
activities. Cast in that light, an "adverse employment
action" is taken against an employee engaged in
protected activity when an employer targets him for
reprisals -- making false accusations of misconduct,
giving negative performance reviews, issuing an
unwarranted suspension, and requiring pretextual
mental-health evaluations -- causing the employee to
suffer a mental breakdown and rendering him unfit for
continued employment.
[Donelson v. DuPont Chambers Works, 206 N.J. 243,
257-58 (2011).]
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The parties agree plaintiff has met the first two requirements of CEPA.
See Dzwonar, 177 N.J. at 462. Plaintiff did not meet the third requirement,
adverse employment action, despite her contention that defendants assigned her
to teach classes she had not taught in a number of years, because such action is
not "virtually equivalent to discharge." See Hancock, 347 N.J. Super. at 360(quoting Zamboni, 847 F.2d at 82). Viewing the facts in a light most favorable
to plaintiff, although plaintiff was treated for mental conditions after Ripley
yelled at her, defendants did not engage in "making false accusations of
misconduct, giving negative performance reviews, issuing an unwarranted
suspension, and requiring pretextual mental-health evaluations." Donelson, 206
N.J. at 258. To the contrary, Ripley ultimately remedied the situation by writing
the critical need letter, vouching for plaintiff as a "valuable employee," which
allowed her to obtain a residency waiver. Moreover, plaintiff did not file a
formal grievance regarding her schedule. See Shepherd, 174 N.J. at 29 (granting
the defendants summary judgment where the plaintiff did not "do all that was
reasonably necessary to remain employed, an additional consideration in this
setting"). Plaintiff's argument that she was constructively discharged because
Ripley led her to believe the MD program was eliminated does not rise to the
level of "knowingly permit[ting] conditions of discrimination in employment so
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intolerable that a reasonable person subject to them would resign." See id. at
27-28 (quoting Muench, 255 N.J. Super. at 302). Plaintiff failed to show that
adverse employment action was taken against her by defendants. See Dzwonar,
177 N.J. at 462.
Plaintiff also argues "even if actions complained of were time-barred, that
does not mean that they are not evidential. N.J.R.E. 404(b) allows evidence of
other 'wrongs' to prove 'motive opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident when such matters are
relevant to a material issue in dispute.'" Plaintiff argues her hostile work
environment and constructive discharge claims require a court to consider the
"entire time period," citing Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447
(2003).
As the motion judge found, the facts here are distinguishable from those
in Green, where the Court found a "continual, cumulative pattern of tortious
conduct" sufficient to trigger the doctrine of continuing violation regarding the
plaintiff's hostile work environment claim. See id. at 446-47. Plaintiff was
successful in her advocacy on behalf of her students, and was treated similarly
to other teachers with regard to her employment assignments.
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After a thorough review of the record, we affirm substantially for the
reasons articulated by the motion judge.
Affirmed.
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