MARY STEINHAUER-KULA VS. MILLVILLE BOARD OF EDUCATION (L-0348-17, CUMBERLAND COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0389-19
MARY STEINHAUER-KULA,
Plaintiff-Appellant,
v.
MILLVILLE BOARD OF
EDUCATION,1
Defendant-Respondent.
__________________________
Submitted October 19, 2020 – Decided February 23, 2021
Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0348-17.
Grace, Marmero & Associates, attorneys for appellant
(Douglas M. Long, 2 on the brief).
1
Improperly pled as Millville Public Schools.
2
On May 29, 2020, Douglas M. Long was suspended from the practice of law
after he entered a guilty plea in federal court to tax evasion, 26 U.S.C.A. § 7201.
In re Long, 242 N.J. 140 (2020). James K. Grace, of Grace, Marmero &
Associates, subsequently entered an appearance as appellant's counsel.
Methfessel & Werbel, attorneys for respondent (Steven
K. Parness, of counsel and on the brief).
PER CURIAM
Plaintiff Mary Steinhauer-Kula appeals from the August 16, 2019 order
of the Law Division granting summary judgment in favor of defendant Millville
Board of Education (BOE) on her whistleblower claims. We affirm.
I.
The following facts are derived from the record. Kula was a longtime
employee of the BOE, having held a number of positions. In 2016, she was the
District Supervisor of Assessment and Social Studies and District Test
Coordinator. She was responsible for overseeing the administration of the
PARCC standardized exam3 to take place on April 20, 2016.
In her role as District Test Coordinator, Kula designed a Power Point
presentation for employees who would be administering the PARCC exam. The
presentation detailed the materials PARCC permitted students to use during the
exam. Kula's presentation stated that PARCC protocols permit students entitled
to an accommodation to "receive two calculators – their grade/course specified
3
PARCC is an acronym for the Partnership for Assessment of Readiness for
College and Careers, which administers an examination to measure student
achievement. N.J.A.C. 6A:8-1.3.
A-0389-19
2
calculator as well as a 'lower level' version" to use during the exam. Kula's
presentation was given to Joseph Baruffi, the K through Grade 9 Guidance
Supervisor for the district, and Beth Benfer, a teacher. Baruffi and Benfer were
the school testing coordinators responsible for administering the PARCC exam
at one of the district's middle schools.
After viewing Kula's presentation, Baruffi and Benfer were unsure of the
type of calculators special education students who were entitled to an
accommodation could use during the PARCC exam. During a conversation on
an unrelated subject, Baruffi asked Ramon Jacobs, the District Supervisor of
Math and Science, what type of calculators special education students were
permitted to use for the exam. As a result of that conversation, Baruffi and
Benfer permitted those students to use a TI-15 calculator, along with the
standard calculator permitted for use by the other students. The TI-15 calculator
was approved by the BOE for special education students at the middle school,
but, unbeknownst to Baruffi and Benfer, was not permitted by PARCC
protocols.
During a visit to the middle school on the day of the PARCC test, Kula
noticed students were using the TI-15 calculator. Kula verbally contacted the
State Department of Education (DOE) to report a breach of the PARCC testing
A-0389-19
3
protocols. In response, a DOE representative contacted David Gentile, the
Superintendent of the school district, who was Kula's supervisor. The DOE
representative instructed Gentile to investigate and remedy the breach.
Gentile immediately called a meeting with Kula, Baruffi, Benfer, Dr.
Pamela Moore, the Assistant Superintendent of Curriculum and Instruction, and
Jacobs.4 Although he was not directly in the PARCC testing hierarchy, Jacobs
was invited to the meeting because Baruffi and Benfer had contacted him prior
to the exam and acted on his advice. Jacobs described his belief as to why there
was confusion about which calculators were permitted under PARCC protocols:
in my opinion it was a communication issue where
those two individuals, Mr. Baruffi and Ms. Benfer[,]
read a directive that said use grade level calculators and
the TI-15 was the grade level calculator in our building;
it, however, was not the PARCC-approved-grade-level
calculator.
Benfer told Moore that she thought there was a lack of clarity in Kula's
presentation regarding which calculators were permitted for students entitled to
an accommodation.
4
Jacobs had twice previously filed hostile work environment complaints against
Kula. In 2012, the BOE issued a written reprimand to Kula pertaining to a
hostile encounter she had with Jacobs concerning union matters. Kula's
subsequent claim that the reprimand was retaliation for "challenging the
process" was determined to be unfounded.
A-0389-19
4
The Superintendent determined that the error was understandable in light
of the perceived lack of clarity in Kula's instructions regarding PARCC-
approved calculators for students entitled to an accommodation. He decided the
breach would be remedied by having the students re-tested using calculators
allowed by the PARCC protocols. Kula completed a corrective action plan
explaining how the breach was to be rectified.
Although the Superintendent considered the matter resolved, Kula
attempted to conduct an investigation. She demanded an apology and written
statements from Baruffi and Benfer indicating they had not followed protocol
when they contacted Jacobs instead of her about the calculator ambiguity before
administering the test. Kula dictated large portions of the statements, which
tended to cast blame on Jacobs, the man whose previous hostile encounter with
Kula resulted in her being disciplined. Initially, neither agreed to Kula's
demands. When Benfer refused to sign the statement, Kula became "unhinged
and cruel," and screamed at Benfer loudly enough to be heard outside of the
classroom in which they were situated. A security guard came to the classroom
to investigate. Ultimately, Benfer wrote a statement largely dictated by Kula.
Benfer felt pressure to comply with Kula's demands because Kula was her
supervisor. Kula's interaction with Baruffi caused him to seek medical treatment
A-0389-19
5
because of a spike in his blood pressure. He stated that the encounter left him
depressed and humiliated. Baruffi never again returned to the school.
After receiving complaints about Kula's conduct, an Assistant
Superintendent issued a written citation to her personnel file for conduct
unbecoming a professional for "the manner in which [she] addressed" Baruffi
and Benfer and her failure "to deliver respectful communications to [her]
coworkers at all times." Kula's title, rank, salary, and benefits were not affected
by the citation. Her grievance of the disciplinary measure was unsuccessful.
A few weeks after the breach of the PARCC protocols, Kula emailed
Gentile "to inform [him] of new, unsolicited information . . . of great concern"
to her as District Test Coordinator. She reported that
I was approached by a staff member who reported to me
that Mr. Baruffi entered a small group testing site
during testing of unit 2 and 3 and told the Test
Administrator[,] "We're just going to (hand gesture
interpreted as not saying/doing anything)." This would
have been April 12th or 13th, which is 7 or 8 days prior
to me discovering the calculator issue.
In a responding email, Gentile thanked Kula for bringing the new information
to his attention and stated that he would "have it investigated."
Kula responded by stating that she had learned that Gentile had tasked
Moore with concluding the investigation into the breach of PARCC protocols.
A-0389-19
6
Kula objected to not being permitted to participate in the investigation, as she
believed doing so was her responsibility as District Test Coordinator . Gentile
responded as follows:
You have done your job. You reported the mis-use of
calculators during the PARCC exam. With regards to
any further role you need to play in the investigation of
an allegation which is only "hear-say" at this point is
limited. You reported what you were told, we will
investigate to determine if it can be proven. If you feel
you need to update the DOE on second[-]hand
information that accuses a long[-]time educator of
official misconduct that is up to you. From what you
reported in this email, a teacher told you about "hand
gestures" [of which] she interpreted the meaning. That
is hardly concrete evidence. That is why I will have it
investigated to determine if there is any other evidence
to substantiate her claim.
As I have stated on multiple occasions, a mistake was
made. The students will retake the sections where they
were given the wrong calculators.
Kula remained in the position of District Test Coordinator. In 2017, she
developed a protocol for PARCC testing to address potential problems with
communications, as had occurred with the 2016 PARCC test. Kula later applied
for the position of District Supervisor for Math and Science, a lateral move. She
made it to the second round of interviews but did not obtain the position. The
record does not contain the name or qualifications of the person w ho was hired.
A-0389-19
7
In 2017, Kula left her employment at BOE when she was hired as
Superintendent for another school district. During the interview process, Kula
received a recommendation from BOE.
In 2017, Kula filed a complaint in the Law Division against BOE, alleging
a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A.
34:19-1 to -14. She alleged that the breach of the PARCC testing protocols
concerning student use of calculators was a violation of a law, rule or regulation
promulgated pursuant to law, or a clear mandate of public policy, and her report
of the breach to the DOE constituted whistleblowing under CEPA. Kula alleged
BOE retaliated against her for whistleblowing, including by issuing what she
alleged was an unwarranted written reprimand, and the failure to appoint her to
the lateral position of District Supervisor for Math and Science. Kula later
argued that her report to the Superintendent of the hearsay account of Baruffi's
hand gesture constituted whistleblowing because she revealed a coverup of a
conspiracy to allow special education students to use calculators not approved
by PARCC.5
Following discovery, BOE moved for summary judgment. After hearing
oral argument, the trial court issued an oral opinion granting BOE's motion. The
5
The complaint contains a number of other claims later withdrawn by Kula.
A-0389-19
8
court concluded that, even when the evidence is viewed in a light most favorable
to Kula, she could not establish that she engaged in whistleblowing activity. The
court found that the PARCC protocols were not a law, rule or regulation
promulgated pursuant to law, or a clear mandate of public policy. Thus, a report
that the PARCC protocols had been breached does not constitute whistleblowing
activity under CEPA.
In addition, the court concluded that, even if Kula's report of the breach
of PARCC protocols constituted whistleblowing, pursuant to N.J.S.A. 34:19-4,
she could not allege a CEPA cause of action because BOE cured the breach after
receiving notice from Kula. That provision is applicable when a whistleblower
makes a report of wrongdoing to a public body, such as the DOE. The court
found it was undisputed that BOE immediately cured the breach when it had the
students re-tested.
Finally, the court concluded that Kula's claim that BOE retaliated against
her by preventing her from completing an investigation of the breach was
meritless because nothing in the PARCC testing protocols required her to do
anything more as District Test Coordinator than complete a form explaining the
breach and the steps taken in remediation, which she did. An August 16, 2019
order memorializes the court's decision.
A-0389-19
9
This appeal followed. Kula raises the following arguments for our
consideration.
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR FAILING [SIC] TO DIFFERENTIATE
BETWEEN PLAINTIFF'[S] DUTIES AS DISTRICT
TEST COORDINATOR IN REPORTING A BREACH
AND PLAINTIFF'S SEPARATE ACTIONS OF
WHISTLEBLOWING THE "COVER UP" LEADING
TO THE BREACH.
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY FAILING TO ACKNOWLEDGE THE
VARIOUS DISPUTES OF MATERIAL FACTS
RELEVANT TO PLAINTIFF['S] CEPA CLAIM.
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY FAILING TO ACKNOWLEDGE
PLAINTIFF'S WRITTEN NOTICE OF
WHISTLEBLOWING ACTIVITY AS PER THE
CONSCIENTIOUS EMPLOYEE PROTECTION ACT
AND DEFENDANT'S FAILURE TO INVESTIGATE
OR ACKNOWLEDGE SAME.
II.
"We review a grant of summary judgment de novo, applying the same
standard as the trial court." Woytas v. Greenwood Tree Experts, Inc., 237 N.J.
Super. 501, 511 (App. Div. 2019). Rule 4:46-2(c) provides that a court should
A-0389-19
10
grant summary judgment when "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
that 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." "Thus, the
movant must show that there does not exist a 'genuine issue' as to a material fact
and not simply one 'of an insubstantial nature'; a non-movant will be
unsuccessful 'merely by pointing to any fact in dispute.'" Prudential Prop. &
Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998) (quotations
omitted).
Self-serving assertions that are unsupported by evidence are insufficient
to create a genuine issue of material fact. Miller v. Bank of Am. Home Loan
Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent
opposition requires 'competent evidential material' beyond mere 'speculation'
and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.
415, 426 (App. Div. 2009) (citations omitted). We review the record " based on
our consideration of the evidence in the light most favorable to the parties
opposing summary judgment." Brill v. Guardian Life Ins. Co., 142 N.J. 520,
523-24 (1995).
In pertinent part, CEPA provides:
A-0389-19
11
[a]n 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 . . . that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law, including any violation
involving deception of, or misrepresentation to . . . any
governmental entity . . . .; 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, including any violation
involving deception of, or misrepresentation to . . . any
governmental entity . . . .; 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(c)(1) to (2).]
In addition, where the employee's disclosure is made to a public body, the
ability to bring a CEPA claim is conditioned on giving the employer an
opportunity to remedy the alleged violation. The Legislature provided that
A-0389-19
12
[t]he protection against retaliatory action provided by
this act pertaining to disclosure to a public body shall
not apply to an employee who makes a disclosure to a
public body unless the employee has brought the
activity, policy or practice in violation of a law, or a
rule or regulation promulgated pursuant to law to the
attention of a supervisor of the employee by written
notice and has afforded the employer a reasonable
opportunity to correct the activity, policy or practice.
[N.J.S.A. 34:19-4.]
"CEPA defines 'retaliatory action' as the 'discharge, suspension or
demotion of an employee, or other adverse employment action taken against an
employee in the terms and conditions of employment.'" Beasley v. Passaic Cty.,
377 N.J. Super. 585, 606 (App. Div. 2005) (quoting N.J.S.A. 34:19-2(e)).
Retaliatory action under CEPA is confined to completed personnel actions that
have an effect on either compensation or job rank. Ibid. (citing Borawski v.
Henderson, 265 F. Supp. 2d 475, 486 (D.N.J. 2003)); accord Hancock v.
Borough of Oaklyn, 347 N.J. Super. 350, 359-61 (App. Div. 2002). "Filing a
CEPA or other complaint against an employer also 'does not insulate [a]
complaining employee from discharge or other disciplinary action for reasons
unrelated to the complaint.'" Ibid. (quoting Higgins v. Pascack Valley Hosp.,
158 N.J. 404, 424 (1999)).
To establish a CEPA violation, a plaintiff must demonstrate that:
A-0389-19
13
(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.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015)
(citations omitted).]
A plaintiff who brings a CEPA claim is not required to show that his or
her employer's conduct was actually fraudulent or illegal. See Dzwonar v.
McDevitt, 177 N.J. 451, 462 (2003). Rather, "the plaintiff simply must show
that he or she 'reasonably believes that to be the case.'" Ibid. (quoting Estate of
Roach v. TRW, Inc., 164 N.J. 598, 613 (2000) (internal quotation omitted)).
However, "as a threshold matter" the court "must 'first find and enunciate the
specific terms of a statute or regulation, or the clear expression of public policy,
which would be violated if the facts as alleged are true.'" Dzwonar, 177 N.J. at
463 (quoting Fineman v. N.J. Dep't of Human Servs., 272 N.J. Super. 606, 620
(App. Div. 1994) (emphasis omitted)). A mere disagreement with an employer's
A-0389-19
14
practice, policy, or activity is insufficient to defeat summary judgment. Young
v. Schering Corp., 275 N.J. Super. 221, 236-37 (App. Div. 1995).
If a plaintiff establishes the statutory elements, the burden shifts back to
the employer to "advance a legitimate, nondiscriminatory reason for the
adverse" employment action. Klein v. Univ. of Med. & Dentistry of N.J., 377
N.J. Super. 28, 38 (App. Div. 2005). "If such reasons are proffered, [the]
plaintiff must then raise a genuine issue of material fact that the employer's
proffered explanation is pretextual." Id. at 39.
Having carefully reviewed the record in light of these precedents, we
affirm the trial court's August 16, 2019 order. We agree with the trial court's
conclusion that Kula failed to raise a genuine issue of material fact with respect
to whether she engaged in any protected whistleblowing activity. She identified
no law, rule or regulation promulgated pursuant to law incorporating the PARCC
testing protocols. It appears that the protocols, including those concerning the
students' use of calculators, were produced by the organization that created and
administered the PARCC exam. They do not have the force of a law, rule or
regulation promulgated pursuant to law. 6
6
We note that a written version of the PARCC protocols does not appear in the
record. The protocols are summarized, at least in part, in the Power Point
presentation Kula made to Baruffi and Benfer.
A-0389-19
15
Nor is there any evidence in the record that the PARCC testing protocols
reflect a clear mandate of public policy. The identification of which calculators
may be used during a standardized test by students entitled to an accommodation
is not a matter of public policy. It is an issue determined by the creators and
administrators of the standardized test, presumably to ensure the test accurately
assesses the test takers' mathematical abilities.
Nor has Kula identified any law or rule or regulation promulgated
pursuant to law requiring a District Test Coordinator to undertake an
investigation of any breach of a PARCC testing protocol. The PARCC
protocols, which themselves are not laws, rules or regulations promulgated
pursuant to law, require only the filing of a report of the breach, which was done
here. The record contains no evidence that PARCC required an investigation be
conducted when non-approved calculators were used during a test session.
Although the testing breach had been promptly remedied, Kula appeared intent
on securing statements from Baruffi and Benfer accepting blame for the incident
and suggesting Jacobs had somehow acted inappropriately. There is no law, rule
or regulation promulgated pursuant to law, or clear mandate of public policy
requiring the assignment of fault for a violation of a PARCC testing protocol.
A-0389-19
16
Finally, Kula's argument that her report to the Superintendent that
someone told her they saw and interpreted a hand gesture by Baruffi constitutes
whistleblowing under CEPA lacks sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E). The evidence on which Kula relies for this
argument – that she repeated to the Superintendent a hearsay statement by an
unnamed person about how an unidentified person interpreted Baruffi's hand
gesture to be a sign of his participation in a conspiracy to allow students to use
calculators not approved by PARCC – is essentially meaningless. It does not
create a genuine issue of material fact with respect to whether Kula engaged in
whistleblowing activity.
In light of our agreement with the trial court that Kula cannot establish
that she engaged in whistleblowing activity under CEPA, we need not decide
the questions of whether she suffered an adverse employment action within the
meaning of the statute or whether her claim is barred by N.J.S.A. 34:19-3.
Affirmed.
A-0389-19
17