DALILA CZUKERBERG VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ETC. (L-8847-15, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4955-18
DALILA CZUKERBERG,
a/k/a DALILA
ROSENSTRAUCH,
Plaintiff-Appellant/
Cross-Respondent,
v.
STATE-OPERATED
SCHOOL DISTRICT OF THE
CITY OF NEWARK, a/k/a
NEWARK PUBLIC SCHOOLS,
Defendant-Respondent/
Cross-Appellant,
and
CITY OF NEWARK, STATE OF
NEW JERSEY, REGINA V.
SHARPE, individually, HENRI
FREDERIQUE, individually, and
CYNTHIA GUINN, individually,
Defendants.
_____________________________
Argued February 10, 2021 – Decided March 26, 2021
Before Judges Whipple, Rose and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-8847-15.
Keith N. Biebelberg argued the cause for
appellant/cross-respondent (Biebelberg & Martin,
attorneys; Keith N. Biebelberg, Avrin Slatkin, and Jay
M. Nimaroff, on the briefs).
Brenda C. Liss and Marc D'Angiolillo argued the cause
for respondent/cross-appellant (Riker Danzig Scherer
Hyland & Perretti, LLP, and Brenda C. Liss, General
Counsel, attorneys; Brenda C. Liss and Marc
D'Angiolillo, of counsel and on the briefs; Stephanie D.
Edelson, on the briefs).
PER CURIAM
Plaintiff Dalila Czukerberg appeals from the Law Division's June 27, 2019
order of judgment entered in favor of defendant State-Operated School District
of the City of Newark, now known as the Newark Board of Education, following
a jury trial. Defendant cross-appeals the denial of summary judgment that
preceded the jury trial resulting in the verdict in its favor. We affirm. 1
1
Defendants Regina V. Sharpe, Henri Frederique, and Cynthia Guinn were
voluntarily dismissed from the matter and are not participating in the appeal or
cross-appeal.
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I.
We derive the facts from the record, including the evidence presented at
trial. Plaintiff was hired by defendant in 2012 and assigned to Barringer High
School for one year and then hired to teach at Dr. William Horton Elementary
School (Horton) for the 2013-2014 school year, where she taught fifth grade.
For the 2014-2015 school year, plaintiff was hired as a chemistry teacher at
University High School (UHS) and was hired by defendant Regina V. Sharpe,
the school's principal.
Plaintiff came to UHS on a "corrective action plan" because she was
evaluated as a "partially effective" teacher at Horton. According to plaintiff, her
partial effectiveness rating at Horton resulted from an evaluation by a non -
Spanish speaking evaluator upon observing plaintiff teach a bilingual class for
non-English speaking students.
A "corrective action plan" is a State-mandated "remedial action plan for a
teacher that has been rated ineffective or partially ineffective on their annual
evaluation the prior year." Each teacher is evaluated every year on an "evidence-
based" approach based on what occurred in the classroom.
On plaintiff's first day of work at UHS, a few of her students turned in a
summer assignment their prior teacher, Dr. John Loreno, gave them in June, at
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the end of the preceding academic year. The summer assignment involved
coloring in a printout of the periodic table of the elements using colored pencils.
Because several students complained they did not understand Loreno's
assignment, plaintiff copied and reissued the assignment to the students and gave
them two weeks to complete it. Following the two-week period, more students
turned in their assignment, but others did not.
Thereafter, several students and parents complained to defendant Henri
Frederique, Vice Principal at UHS, about the summer assignment, plaintiff's
teaching methods, and the "punitive nature of . . . her grading system."
Frederique testified he regularly took contemporaneous notes of his telephone
and in-person conversations with parents and, at trial, some of his notes
documenting complaints were introduced into evidence.
Defendant Cynthia Guinn, another Vice Principal at UHS, was responsible
for professional development of the teachers, and accompanied Frederique on
several classroom observations of plaintiff. Consistent with plaintiff's
corrective action plan, on September 10, 2014, Frederique and Guinn conducted
a formal observation of plaintiff's teaching. They noted "a lot of arguing
between the student[s] and teacher" and that plaintiff was confrontational an d
disrespectful to the students, with little to no learning taking place.
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Beginning on September 22, 2014, when plaintiff gained access to her
online gradebook, she began inputting grades. Because Frederique was still
receiving complaints from parents about plaintiff, he audited her gradebook and
noticed that, with respect to the summer assignment, "the grades varied from
[0], 50s, 70s, 100," therefore he questioned plaintiff on what rubric she used to
assign those scores. Plaintiff did not provide one and told Frederique it was just
a "simple assignment." Frederique informed plaintiff that Loreno had graded
the summer assignment as extra credit, and she should not penalize anyone who
did not complete it.
Sharpe testified that based on the nature of the parents' complaints, she
thought plaintiff's scoring method violated the uniform grading policy because
the summer assignment was about coloring and not mastery of any curriculum.
Sharpe and Frederique testified that plaintiff agreed to a "compromise" whereby
students that received passing grades would get the benefit of those grades, but
grades for the students who failed would be omitted from the gradebook.
Upon later auditing plaintiff's gradebook, Frederique learned that plaintiff
did not abide by her agreement and did not remove the failing summer
assignment grades. Plaintiff testified she found this directive to be "very highly
irregular" as she had never been asked to remove grades from her gradebook
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before. Soon thereafter, Frederique sent plaintiff an email, which she construed
as "threatening" disciplinary consequences if she did not remove the failing
grades. When she did not comply with Frederique's directive, he issued a letter
of reprimand.
On October 2, 2014, Sharpe and Frederique observed plaintiff teach and
rated her as partially effective. Sharpe expressed that plaintiff's "growth areas"
as outlined in her corrective action plan included the differentiation of
instruction and the need to integrate technology into her lessons. Plaintiff also
needed to focus on ensuring that "learning is specific, clear, aligned to
curriculum, and contains high process skills." At trial, plaintiff testified these
were "good recommendations" on how she should improve.
On October 3, 2014, Frederique audited plaintiff's gradebook, which
revealed the summer assignment grades had not been removed as directed.
Further, he noticed plaintiff had given students zeroes for being disruptive in
class, which he testified was inappropriate because a zero grade denies a student
the opportunity to have a passing grade by the end of the year. That day,
Frederique issued plaintiff a "Letter of Reprimand for Insubordination" for not
removing the failing summer assignment grades as per his directive. In addition,
Frederique advised that disciplinary consequences would follow if she refused
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to remove the subject grades, along with an "ineffective" rating if similar
behavior persisted.
Also, in October 2014, plaintiff complained to Sharpe about misbehavior
by some of her students, in particular an incident in which classroom equipment
was destroyed. Sharpe suggested that another adult be in the classroom, an
invitation plaintiff "welcomed." In response, Sharpe placed Ramel Watson, a
substitute teacher and basketball coach, in plaintiff's classroom for all five of
her chemistry classes, to assist her with "classroom management."
Watson testified that during his time assisting in plaintiff's classroom, he
witnessed students physically threaten her. And, Watson also saw plaintiff
provoke or be rude to the students. The same students who had behavioral issues
in plaintiff's classes behaved better in other classes according to Wat son. By
the end of October 2014, Sharpe contemplated terminating plaintiff and
replacing her with another teacher. In an October 28, 2014 email to Brad
Haggerty, the Superintendent, and the Human Resources Department,
Frederique recommended that plaintiff be placed on a thirty-day performance
improvement plan. Haggerty testified that a thirty-day plan is "like a final
warning" to a teacher. The plan was implemented a month later.
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On November 13, 2014, Frederique and Guinn observed plaintiff's
classroom again. Plaintiff was evaluated as ineffective; not meeting the
requirements of her corrective action plan; and not making progress on
improving student learning evidenced by the sixty-seven percent failure rate
amongst her students. Frederique found this percentage to be "extremely
high"—some students who were failing plaintiff's class were getting As and Bs
in other classes.
On November 14, 2014, plaintiff submitted electronic copies of her end-
of-marking-period grades to Sharpe and Frederique. Plaintiff derived these
grades utilizing defendant's uniform grading policy manual, which included an
appeal process for parents seeking to challenge their child's grade.
On November 20, 2014, plaintiff was summoned to Sharpe's office for a
meeting at which she and Frederique were present. Sharpe testified that she
heard plaintiff refused to administer tests to students who were late and locked
them out of the classroom. When Sharpe confronted plaintiff about this,
plaintiff responded that she should have the authority to refuse to allow students
entry into her classroom. Sharpe also informed plaintiff that the grades she
submitted for the marking period violated defendant's uniform grading policy.
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Plaintiff testified that Sharpe told her "something had to be done with the
grades" and ninety-eight percent of her students were failing, a number plaintiff
claimed was inaccurate. In her own testimony, Sharpe stated plaintiff's failure
rate in the class was sixty-eight percent, a number Sharpe had never encountered
before.
Sharpe determined that plaintiff was not meeting the requirements of her
corrective action plan. After consulting with Haggerty, Sharpe put a hold on the
grades for plaintiff's students pending an investigation and considered the hiring
a replacement for plaintiff at that time.
On November 2, 2014, following a meeting between plaintiff, Frederique,
and a parent of one of plaintiff's students, Frederique admonished plaintiff by
email for her reprehensible conduct towards the parent, describing it as "rude
and unprofessional." He warned plaintiff of "disciplinary action" if "further
unprofessional conduct occurred."
On December 2, 2014, Sharpe delivered to plaintiff the thirty-day plan
previously proposed in October. Haggerty authorized the plan and knew
plaintiff might have to be terminated and replaced. The plan included strategies
for plaintiff's improvement, which Sharpe devised in consultation with
Frederique and Guinn. The plan stated that plaintiff's performance was
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"unsatisfactory in several respects," including the amount of failures in the
gradebook. Sharpe added plaintiff's "grading practices do not reflect sound
pedagogy as evidenced by the high failure rate" and listed other problems. The
plan set forth performance improvement goals, one of which was to "devise a
fair and equitable grading policy." Plaintiff was warned that failure to improve
would result in her termination within thirty days.
Three days later on December 5, 2014, plaintiff received the report cards
for her homeroom students. On each report card, there was a blank space for
chemistry where the grade would ordinarily be. Plaintiff was not informed that
UHS would be issuing report cards with blank grades.
On December 9, 2014, plaintiff emailed a memo to Haggerty, Sharpe, and
Frederique challenging the claims about her failure rate and arguing that her
grades were accurate and precise. Plaintiff believed a twenty-percent failure
rate was "acceptable" and that by the end of the year, a similar rate would hold
for her students. Plaintiff also queried in her memo what message eliminating
her grades from report cards would send to the students, adding that she
understood "the administration has the right to do so, but that does not make it
right," because she had "worked so hard" and wanted the students to view her as
"credible."
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On December 12, 2014, Sharpe and Frederique conducted another
observation of plaintiff. In the evaluation form submitted thereafter, they gave
plaintiff "ineffective" ratings in fourteen out of fifteen metrics. At trial, Sharpe
testified "[t]he lesson was awful," the "students weren't learning," and "[t]here
was arguing back-and-forth pretty much for the entire class period between
[plaintiff] and the students." Frederique testified in a similar vein and opined
that plaintiff's teaching skills had worsened since her October evaluation. He
recommended to Sharpe that plaintiff be terminated because she had shown no
improvement despite multiple opportunities. After Sharpe explained the reasons
for her "ineffective" rating, plaintiff was "defensive" and "argumentative."
Sharpe and Frederique recommended to Haggerty that plaintiff be
terminated because "the students were not learning chemistry," the classroom
was a "combative environment," and parents were complaining. On December
15, 2014, UHS issued report cards for plaintiff's chemistry students.
Immediately, plaintiff saw the grades had been changed from those she
submitted. She was "in shock" and told her students when handing out the report
cards that the grades were not what they "earned." Plaintiff testified she felt
"violated" and believed the administration transgressed the law by "tampering
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with official documents." She also believed that "fake grades" were a disservice
to parents and against public policy since colleges review high school grades.
Frederique testified that the administration was under no obligation "to
inform" plaintiff about the grade adjustment, and a curve was placed on the
grades due to the "sheer number of failures in the classroom." Sharpe
determined that the fairest way to curve the grades would be to elevate each
grade by one-half grade. At Sharpe's direction, Frederique changed each
student's grade by hand. The grade adjustment was not made to make the school
"look better" to the State, Frederique testified, but only as a response to
plaintiff's ineffective teaching and punitive grading. He acknowledged that
some students' grades were elevated by more than one-half a grade.
After seeing the report cards, plaintiff sent several emails complaining
about the situation to the administration and requested a meeting with Haggerty.
He testified that he viewed plaintiff's emails to him as an attempt to go above
administrators at UHS and get someone to intervene on her behalf. No meeting
ever took place. On December 17, 2014, plaintiff emailed Haggerty, Sharpe,
Frederique, and Guinn with the subject line, "Tampering with My Records," and
documented her timeline of events.
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On December 29, 2014, plaintiff received a letter from defendant
terminating her employment. The decision was ultimately made by Haggerty,
on advice from Frederique and Sharpe. Haggerty claimed the decision was
"relatively straightforward" and that he made it prior to receiving plaint iff's
emails to him complaining about the grades. He testified, "there was no
conspiracy to elevate the grades to get Newark out from under State control."
Frederique confirmed his recommendation to terminate plaintiff was not because
she had complained, but because "she simply was not a good teacher," and he
"had to salvage the rest of the year" for the students.
In December 2015, plaintiff filed an eight-count complaint against
defendants Newark Public Schools, City of Newark, State of New Jersey,
Sharpe, Frederique, and Guinn alleging violations of the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-3, (count one); wrongful
termination (count two); intentional infliction of emotional distress (count
three); negligent infliction of emotional distress (count four); breach of the
implied covenant of good faith and fair dealing (count five); defamation (count
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six); slander (count seven); and a violation of her First Amendment rights under
the United States and New Jersey Constitutions (count eight).2
Following a period of discovery, on January 10, 2017, defendants, the
District, Sharpe, Frederique, and Guinn moved for summary judgment. Plaintiff
opposed the motion.
On March 17, 2017, the prior judge granted defendants' motion for
summary judgment on five of the eight counts of the complaint but denied
summary judgment on three counts: the first count, alleging a CEPA violation;
the second, alleging wrongful termination; and the fifth, claiming violations of
the implied covenant of good faith and fair dealing. 3
On January 5, 2018, defendants moved a second time for summary
judgment, which was opposed by plaintiff. Oral argument was conducted on
February 21, 2018. On March 1, 2018, plaintiff filed an amended complaint,
identical to the original, except that "State-Operated School District of Newark"
(the District) was substituted as the party name for the defendant previously
2
Defendants City of Newark and the State of New Jersey were dismissed early
on in the litigation.
3
The record does not indicate whether oral argument was held on defendants'
motion, and the judge's opinion was not provided.
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designated as "Newark Public Schools." 4 On March 16, 2018, in an oral
decision, the different judge granted defendants' motion for summary judgment
on counts two (wrongful termination) and five (breach of the implied covenant
of good faith and fair dealing) but denied summary judgment on count one—the
CEPA claim, the only remaining count.
The judge found that plaintiff presented evidence of a genuine issue of
material fact as to "whether [she] had a reasonable belief defendant was
violating a law, rule, regulation, or public policy." Defendants moved for
reconsideration on count one, suggesting the judge needed to identify a specific
statute which plaintiff believed had been violated. On March 16, 2018, the
motion judge affirmed her prior decision and highlighted that N.J.S.A. 2C:21 -
45 was the statute at issue.
4
On March 14, 2018, plaintiff and defendants stipulated to the dismissal of the
State of New Jersey as a defendant.
5
N.J.S.A. 2C:21-4 provides for "Falsifying or tampering with records."
Subsection (a) states:
Except as provided in subsection b. of his section, a
person commits a crime of the fourth degree if he
falsifies, destroys, removes, conceals any writing or
record, or utters any writing or record knowing that it
contains a false statement or information, with purpose
to deceive or injure anyone or to conceal any
wrongdoing.
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Prior to trial, defendants moved in limine to exclude the entirety of
plaintiff's proposed expert witnesses: the videotaped de bene esse testimony of
her employability expert, Dr. Albert R. Griffith, and the de bene esse testimony
of her educational expert, Dr. James A. Monk. The trial court judge granted the
motion as to Griffith and granted the motion in part as to Monk, directing that
only portions of his recorded testimony would be played for the jury.
On May 9, 2019, the trial judge denied plaintiff's motion for
reconsideration of the order barring Griffith's testimony and limiting Monk's
testimony. The same day, the trial judge granted defendants' motions to exclude
at trial: notes taken by Watson and articles and statutes from other states that
assess penalties for altering grades.
On June 13, 2019, after both sides rested, the judge, with plaintiff's
consent, dismissed all counts as to the individually named defendants leaving
the District as the sole remaining defendant. The following day, the jury
returned its verdict. The first question on the verdict sheet asked whether
plaintiff had proven by a preponderance of the evidence "that she reasonably
believed that [d]efendant Newark Board of Education had changed her grades
and that this was in violation of a law, rule, or a clear mandate of public policy."
The jury unanimously answered "yes" to that question.
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The second question asked whether plaintiff had proven by a
preponderance of the evidence "that she performed a 'whistleblowing activity'
as a result of her objection to the grade alterations." By a six-to-one vote, the
jury answered "no." On June 27, 2019, the judge entered judgment for the
District and dismissed the amended complaint with prejudice. On July 12, 2019,
the judge denied plaintiff's motion for a new trial on the grounds that the jury
verdict was against the weight of the evidence. This appeal and cross-appeal
ensued.
On appeal, plaintiff raises fifteen points:
(1) the trial judge erred by instructing the jury that
plaintiff's complaints about the summer assignment and
the subsequent letter of reprimand were not part of her
CEPA claim;
(2) the motion and trial judges erred by excluding the
de bene esse trial testimony of plaintiff's employability
expert by incorrectly concluding that his report was a
net opinion;
(3) the motion and trial judges erred by excluding a
portion of the de bene esse testimony of plaintiff's
educational expert;
(4) the trial judge erred by barring plaintiff from
countering the District's pretextual claim that "there
was no learning going on in her classroom" and not
allowing her to introduce students' letters to Al Roker
comparing the British system to the metric system;
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(5) the trial judge erred by permitting the District's
employability expert to testify;
(6) the trial judge erred by excluding the handwritten
notes taken by Watson, the substitute teacher;
(7) the trial judge erred by allowing the District to
introduce into evidence the written evaluations of
plaintiff prepared by Sharpe, Guinn, and Frederique;
(8) the trial judge erred by admitting hearsay statements
made by several of plaintiff's students and their parents;
(9) the trial judge erred by disallowing evidence that
plaintiff was previously rated an effective teacher at
Barringer High School;
(10) the trial judge erred by excluding evidence that
plaintiff had been rated an effective teacher at various
school districts throughout her career;
(11) the trial judge erred by excluding and preventing
plaintiff's counsel from quoting from a series of emails
concerning the summer assignment;
(12) the trial judge erred by excluding evidence of
grading scandals in other school districts and record-
keeping statutes from other states;
(13) the trial judge erred by dismissing her punitive
damages claim;
(14) the cumulative effect of errors prejudiced plaintiff
and deprived her of a fair trial; and
(15) if a new trial is granted, the jury's answer to
question one on the verdict sheet should be given
preclusive effect at the next trial.
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In its cross-appeal, the District argues the motion judge erred by denying
its motion for summary judgment on plaintiff's CEPA claim.
II.
CEPA—via the various terms of N.J.S.A. 34:19-3—prohibits an employer
from taking "any retaliatory action" against an employee in certain
circumstances. One of those is when the employee "[d]iscloses or threatens to
disclose to a supervisor or a public body" an employer's "activity, policy or
practice" that the employee "reasonably believes":
(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law . . .; or
(2) is fraudulent or criminal, including any activity,
policy or practice of deception or
misrepresentation . . . .
[N.J.S.A. 34:19-3(a).]
CEPA also permits recovery for retaliation when, as described in
subsection (c) of N.J.S.A. 34:19-3, an employee "[o]bjects to, or refuses to
participate in any activity, policy or practice which the employee reasonably
believes" fits any one of three circumstances. The first two, which appear in
subparts (1) and (2) of N.J.S.A. 34:19-3(c), are identical to subsection (a)'s first
two subparts; the third is when the employee objects or refuses to participate i n
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an activity, policy or practice that the employee reasonably believes "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)(3).
In determining what constitutes a prima facie case, our Court has
recognized not only the employee's "reasonabl[e] belie[f]" about the employer's
violation of law, rule, regulation or clear policy, but also that there must be
shown "an adverse employment action" and a "causal connection" between the
whistleblowing and the adverse employment action. Yurick v. State, 184 N.J.
70, 78 (2005).
CEPA is a remedial statute and should be liberally construed to effectuate
its social goal of protecting employees from retaliation when they report
workplace misconduct. Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 380
(App. Div. 2013). Our Court has emphasized that the CEPA plaintiff need not
show the employer actually violated the law, only that the plaintiff reasonably
believed the employer was violating a law or a clear mandate of public policy.
Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). In interpreting the "reasonable
belief" element, we recognize that CEPA was not intended to "make lawyers out
of conscientious employees." FOP v. City of Camden, 842 F.3d 231, 240 (3d
Cir. 2016).
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To sustain a claim pursuant to N.J.S.A. 34:19-3(c)(3)—CEPA'S
protection from retaliation for objecting to a practice that is incompatible with
a "clear mandate of public policy"—a plaintiff must prove: a reasonable belief
of actions incompatible with a clear mandate of public policy; an act of
whistleblowing; adverse employment action was taken against the employee;
and a causal connection between the whistleblowing activity and the adverse
employment action. Hitesman v. Bridgeway, Inc., 218 N.J. 8, 29 (2014). To
establish a practice is incompatible with a clear mandate of public policy, the
plaintiff must identify an "authority that provides a standard against which the
conduct of the defendant may be measured." Id. at 33. In Hitesman, the Court
declared, as it had ten years earlier in Maw v. Advanced Clinical Commc'ns.
Inc., 179 N.J. 439, 444 (2004), that a "clear mandate of public policy" conveys
a legislative preference for a readily discernible course
of action that is recognized to be in the public interest.
A "clear mandate" of public policy suggests an analog
to a constitutional provision, statute, and rule or
regulation promulgated pursuant to law such that, under
[CEPA], there should be a high degree of public
certitude in respect of acceptable vers[u]s unacceptable
conduct.
[218 N.J. at 34 (citing Maw, 179 N.J. at 144).]
When a plaintiff asserts a subsection (c)(3) claim, the trial judge must
determine—before sending the matter to the jury—whether there is a substantial
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nexus between the complained-of conduct and a clear mandate of public policy.
Id. at 31. By complying with the requirement to establish each element of a
CEPA claim, courts distinguish an employee's objection to or reporting of an
employer's illegal or unethical conduct from a routine dispute in the workplace
regarding the relative merits of internal policies and procedures. Ibid.
In her first point, plaintiff argues that the trial judge improperly charged
the jury not to consider her complaints about the summer assignment and the
subsequent letter of reprimand she received as part of her CEPA claim. "An
essential ingredient of a fair trial is that a jury receive adequate and
understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997). Accord
State v. McKinney, 223 N.J. 475, 495 (2015). Instructions provide "a road map
to guide the jury [and] without an appropriate charge a jury can take a wrong
turn in its deliberations." Ibid. (quoting State v. Martin, 119 N.J. 2, 15 (1990)).
"The trial court has clear directives with regard to what must be included in the
charge." McKinney, 223 N.J. at 495 (quoting State v. Martin, 119 N.J. 2, 15
(1990)). The court "should explain to the jury in an understandable fashion its
function in relation to the legal issues involved," and should also explain what
"the jury must determine." Ibid. (quoting State v. Green, 86 N.J. 281, 287
(1981)). "So critical is the need for accuracy that erroneous instructions on
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material points are presumed to be reversible error." Martin, 119 N.J. at 15.
Accord McKinney, 223 N.J. at 495-96.
In the matter under review, plaintiff's challenge to the jury instructions
pertains to her burden of proof under CEPA, which establishes as a violation the
taking of "any retaliatory action against an employee because the employee
does" any of several things, including: "[o]bjects 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 . . . (2) is fraudulent or criminal . . .
or (3) is incompatible with a clear mandate of public policy." N.J.S.A. 34:19 -
3(c).
A plaintiff who brings a cause of action pursuant
to N.J.S.A. 34:19-3(c) must demonstrate that: (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.]
Before a CEPA claim reaches a jury, however, a trial court must first
"identify a statute, regulation, rule, or public policy that closely relates to the
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complained-of conduct," and find "a substantial nexus between the complained-
of conduct and a law or public policy identified." Id. at 463-64. When a "clear
mandate of public policy" has allegedly been violated, as opposed to a law or
regulation, the mandate must relate to "the public health, safety or welfare or
protection of the environment." Id. at 469. "[T]he mandate of public policy
must be 'clearly identified and firmly grounded' and cannot be 'vague,
controversial, unsettled [or] otherwise problematic.'" Hitesman, 218 N.J. at 34
(second alteration in original) (quoting Mehlman v. Mobile Oil Corp., 153 N.J.
163, 181 (1998)).
If a plaintiff does not make a prima facie showing on which a court could
make such findings, the court "should enter judgment for a defendant."
Dzwonar, 177 N.J. at 463. If a court does determine the existence of a
substantial nexus between a defendant's conduct and an identified law or public
policy, "the jury then must determine whether the plaintiff actually held such a
belief and, if so, whether that belief was objectively reasonable." Id. at 464.
"[A] plaintiff's claim may survive when that plaintiff is mistaken as to whether
the activity complained of actually occurred, but will not survive when that
alleged activity does not violate the law or public policy." Ibid.A-4955-18
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When a CEPA claim is submitted to a jury, "it is incumbent upon the court
to identify the protected activity precisely, that is, to articulate the complaint
that plaintiff made that constitutes whistle[]blowing." Battaglia v. United Parcel
Serv., Inc., 214 N.J. 518, 561 (2013). "[T]rial courts must be vigilant in
identifying the essential complaint made by the employee in order that the jury
will be able to test it against the standards that the law imposes as a prerequisite
to recovery." Id. at 559-60. "Vague and conclusory complaints, complaints
about trivial or minor matters, or generalized workplace unhappiness are not the
sort of things that the Legislature intended to be protected by CEPA." Id. at
559. "[T]he parties and the court need to have a common understanding of the
legal principle that the CEPA plaintiff reasonably believed was being violated,"
which then "enables a true joinder of issues on the CEPA claim." Chiofalo v.
State, 238 N.J. 527, 544 (2019).
The claim should be "tested against what plaintiff knew and reasonably
believed, not upon what actually was or was not happening." Battaglia, 214 N.J.
at 562. The preferred practice is "the statutory or other basis for claiming
objected-to behavior is criminal or fraudulent" must "[o]rdinarily . . . be
identified" by the court "with enough specificity to allow the court to connect
the facts to the reasonableness of the perception." Chiofalo, 238 N.J. at 544.
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25
Employees are not expected "to be lawyers on the spot," but they should, "with
the assistance of counsel or careful examination by the court," be able to identify
"the legal underpinnings for claimed behavior that is perceived as criminal or
fraudulent." Id. at 544-45.
Here, the trial judge properly instructed the jury on the four elements
plaintiff must prove to prevail on a CEPA claim, as outlined above, charging the
jury that plaintiff's allegation was "that she was terminated from her
employment by the [d]efendant contrary to law for objecting to the change by
[d]efendant of grades . . . in December of 2014 as retaliation after she
complained to the assistant superintendent that her end-of-the-marking-period
grades had been changed by the administration."
Before trial, defendants had moved in limine to preclude plaintiff from
addressing the issue of the summer assignment grades and the subsequent letter
of reprimand as part of her CEPA claim. The trial judge granted the motion,
ruling that while there was "absolutely no doubt . . . that the letter of reprimand
was an adverse employment action," plaintiff had not shown she had performed
any act of whistleblowing prior to Frederique's dissemination of the letter. The
judge reasoned that "[m]erely complaining" when "your employer does
something that affects you" was not "whistleblowing conduct." Indeed, the
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26
judge ordered plaintiff not to suggest to the jury in her opening statement that
defendant's order for plaintiff to remove summer assignment grades from her
gradebook and subsequent letter of reprimand were components of her CEPA
claim.
This issue reemerged at least three more times during the trial. First,
during a sidebar colloquy that followed opening arguments, the judge revisited
the subject of "the relevance of admissibility of any testimony with regard to the
summer assignment." To be sure, the judge noted that he had already decided
that the summer assignment and letter of reprimand sequence of events were not
part of any continuous act of whistleblowing. Defendant's counsel asked the
judge to consider instructing the jury that while "the claim under the
whistleblower law pertains to the events of December and the termination," the
purpose of the evidence about "the summer assignment issue" was so the jury
could "hear about the background" or "context of the matter." The judge
declined to give that instruction but ruled that plaintiff would be able to adduce
testimony concerning the request to remove the summer assignment grades and
the letter of reprimand because these events were "relevant to the plaintiff's
reasonable belief or lack thereof that there was a violation of public policy."
The evidence went to plaintiff's "state of mind" and "reasonable belief that
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27
the act that occurred in December . . . show[ed] a pattern" and was relevant to
show "a continuing act of a violation of public policy." The judge added it could
also be relevant to why the District terminated plaintiff or "when [it] had reached
that conclusion . . . before the events that allegedly constitute[d] the CEPA
violation."
Next, in response to a cross-examination question to Dr. Yolanda Mendez,
the Executive Director of Human Resource Services for the Newark School
District, about the summer assignment, to which the District objected, the judge
noted at sidebar that he was only allowing "limited testimony surrounding the
summer assignment" and advised plaintiff "you can't make this case about the
summer assignment." Later that afternoon, at the charge conference, the judge
determined that plaintiff could not argue in her closing argument "that the
whistleblowing occurred at the time of the summer assignment controversy,"
relying on the reasoning of his earlier decision as to the lack of any
whistleblowing activity prior to the issuance of the letter of reprimand.
In the final jury charges, when considering the second element of a CEPA
claim under Dzwonar, 177 N.J. at 462, the judge instructed:
You've heard some testimony about a summer
assignment and a letter of reprimand. I'm instructing
you that the summer assignment and any letter of
reprimand received as a result of the circumstances
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28
surrounding the summer assignment are not part of the
[p]laintiff's CEPA claim. Merely complaining about an
adverse employment action or merely complaining
every time an employer does something that affects the
employee or that the employee does not like . . . is not
whistleblowing conduct. The summer assignment and
letter of reprimand are not whistleblowing conduct.
From there, the judge went on to describe the third element, pertaining to
retaliatory action, and the fourth, pertaining to plaintiff's burden of establishing
"the existence of a causal connection between her alleged protected activity and
the alleged retaliation . . . through her midyear termination." "In other words,"
the judge explained, "it's the [p]laintiff's burden to prove that it was more likely
than not that the [d]efendant engaged in intentional retaliation against her
because [p]laintiff objected to the grade change." The judge added that plaintiff
was allowed to satisfy this burden with circumstantial evidence, including the
timing of her termination and "whether [d]efendant's behavior towards the
[p]laintiff changed for the worse after [d]efendant became aware of plaintiff's
alleged objection."
The judge continued:
If the [d]efendant did in fact end the [p]laintiff's
employment . . . because she objected to what she
believed was an illegal act or violation of public policy
by the [d]efendant in changing student grades from
those she issued and attributed them to her, and the
[p]laintiff reasonably believed the grade change was
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29
not reasonable and was contrary to the best interests of
the students as a whole and/or was otherwise illegal
for—or a violation of public policy the adverse
employment action, the termination, would be unlawful
and in violation of [CEPA].
Plaintiff argues that the judge erred by instructing the jury not to consider
whether the letter of reprimand was part of her CEPA claim. She contends that
by giving that instruction, the judge misapplied N.J.S.A. 34:19-3(c), which
protects her as an employee who "object[ed] to, or refuse[d] to participate in any
activity policy or practice," which she reasonably believed to be either "in
violation of a law, or a rule or regulation," or "fraudulent . . . criminal . . . or
. . . incompatible with a clear mandate of public policy." In plaintiff's view, she
"objected to or refused to participate in" changing her grades as early as
September 2014 in the course of her email exchange with Frederique about t he
summer assignment that culminated in the letter of reprimand, an adverse
employment action. Plaintiff had objected, she claims, to a continuous pattern
of conduct she reasonably believed violated the law or public policy. According
to plaintiff, it "contaminated the timeline," to exclude the summer assignment
issue from the jury's consideration.
Plaintiff testified that she objected to and refused to adhere to Frederique's
directive to remove the summer assignment grades from her gradebook, which
A-4955-18
30
satisfies the second element of a CEPA claim on its face. Dzwonar, 177 N.J. at
462. The letter was an adverse employment action that was causally connected
to her objection, which satisfies the third and fourth elements. But the record
lacks support for the first CEPA element, that plaintiff held an objectively
reasonable belief that removing the summer assignment grades was illegal or
contrary to public policy. Plaintiff testified that she found Frederique's directive
"very highly irregular," but failed to testify she considered the request to remove
the summer assignment grades in and of itself to be illegal, criminal, or contrary
to the public health, safety, welfare, or the environment, nor do the surrounding
circumstances imply that she believed that at the time.
Here, plaintiff has not identified any law that Frederique's directing her to
remove the summer assignment grades violated. And, the trial judge correctly
found plaintiff did not identify any "clear mandate of public policy" concerning
"public health, safety or welfare or protection of the environment," Dzwonar,
177 N.J. at 469, that Frederique violated by asking plaintiff to omit grades from
one assignment originally given by another teacher as extra credit. Moreover,
plaintiff did not proffer any evidence that contradicted Frederique's testimony
that she did not provide him with a rubric for the grading method implemented.
A-4955-18
31
In its gatekeeper role, the trial court has the authority to exclude relevant
evidence "if its probative value is substantially outweighed by the risk of,"
among other things, "confusion of issues." N.J.R.E. 403(a). As already noted,
although the trial judge did not exclude testimony about the summer assignment
and letter of reprimand altogether, he providently directed the jury not to
consider the evidence as whistleblowing activity in order to avoid confusion of
the issues. Absent a limiting instruction, there was a risk the jury might have
found plaintiff's refusal to remove the grades from her assignment book was
whistleblowing activity under the second element, even though the underlying
employer activity objected to did not satisfy the first element.
We conclude that by removing the summer assignment issue from the
jury's consideration, the judge properly narrowed the jury's focus, creating a
"true joinder of issues," Chiofalo, 238 N.J. at 544, in respect of plaintiff's
essential CEPA claim—that she was terminated for objecting to the
administration's alteration of her report card grades, which she reasonably
believed to be a violation of law or a clear mandate of public policy.
Accordingly, we see no reason to disturb the trial court's jury instruction
with respect to the second element that "the summer assignment and letter of
reprimand [were] not whistleblowing conduct." The evidence was necessary to
A-4955-18
32
assist the jury as the finders of fact to identify the complained-of conduct that
formed the basis of plaintiff's whistleblowing claim. Therefore, we reject
plaintiff's contention on this issue.
III.
Plaintiff also argues the motion judge abused her discretion by excluding
the entire de bene esse trial testimony of her employability expert, Griffith, prior
to trial. A witness may testify as an expert if "qualified . . . by knowledge, skill,
experience, training, or education" to offer the opinion as long as the expert's
"scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue." N.J.R.E. 702. Under
Rule 703, an expert opinion must be based on "facts or data." N.J.R.E. 703.
"The corollary of that rule is the net opinion rule, which forbids the admission
into evidence of an expert's conclusions that are not supported by factual
evidence or other data." State v. Townsend, 186 N.J. 473, 494 (2006).
"Charged with determining whether to admit expert testimony, the trial
court is responsible for advancing the truth-seeking function of our system of
justice . . . ." In re Accutane Litig., 234 N.J. 340, 389 (2018). To be admissible,
expert testimony must satisfy three requirements: "(1) the intended testimony
must concern a subject matter . . . beyond the ken of the average juror; (2) the
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33
field testified to must be at a state of the art such that an expert's testimony could
be sufficiently reliable; and (3) the witness must have sufficient expertise."
State v. Kelly, 97 N.J. 178, 208 (1984). Accord Accutane, 234 N.J. at 349.
With respect to expertise, the third factor, "an expert witness must possess
the minimal technical training and knowledge essential to the expression of a
meaningful and reliable opinion" in the area to be testified to. State v. Frost,
242 N.J. Super. 601, 615 (App. Div. 1990). The "expert must demonstrate the
validity of his or her reasoning." Accutane, 234 N.J. at 392.
The record shows Griffith, a psychologist with a doctorate in education,
had no firsthand experience or involvement in the field of education. He spoke
to two New York search firms, a New York City principal, two New Jersey
school employees, and interviewed "friends." Based on these interviews,
Griffith opined that if plaintiff had not been terminated, she would have found
a compatible position after leaving UHS and would have gone on to become a
lead science teacher and later a principal.
The motion judge excluded Griffith's testimony, noting his lack of
experience in the field of education. On its face, the report on which Griffith's
testimony was based "provide[d] no explanation for any of his conclusions," and
failed to "mention . . . any reference materials relied upon to assist in making
A-4955-18
34
conclusions or any articulated reason as to how the individuals he chose to
interview were selected [except] for the fact that they were people he knew."
Griffith did not specify "the factual bases or the logical or scientific rationale
that must support expert opinions," and did not establish either the relia bility of
the New York companies he contacted or his qualifications, as a psychologist,
to testify as an expert with respect to plaintiff's teaching capacity.
"Evidentiary rulings made by the trial court are reviewed under an abuse -
of-discretion standard." State v. Scharf, 225 N.J. 547, 572 (2016). "To that end,
trial courts are granted broad discretion in making decisions regarding
evidentiary matters . . . ." Ibid. We "will reverse an evidentiary ruling only if
it 'was so wide of the mark that a manifest denial of justice resulted.'" State v.
Mauti, 448 N.J. Super. 275, 307 (App. Div. 2017) (quoting Griffin v. City of E.
Orange, 225 N.J. 400, 413 (2016)).
Along those same lines, "[t]he qualifications of an expert and the
admissibility of opinion or similar expert testimony are matters left to the
discretion of the trial court." State v. McGuire, 419 N.J. Super. 88, 123 (App.
Div. 2011). Particularly when there has been a full hearing under Rule 104(a),
reviewing courts "must apply an abuse of discretion standard to a trial court's
determination . . . to exclude expert testimony on unreliability grounds."
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35
Accutane, 234 N.J. at 391.
Here, plaintiff contends the motion judge abused her discretion by
excluding Griffith's testimony as an inadmissible net opinion where the
testimony was based on "voluminous materials," including recommendations of
plaintiff, her job search applications, and "multiple evaluations of plaintiff's
teaching" over the course of fifteen years. Based on these materials, Griffith
formed "a working hypothesis" that plaintiff's termination "was almost certainly
the destruction of her teaching career," a hypothesis he tested by contacting the
individuals he consulted for the report, who "confirmed" it.
The District posits that because the excluded testimony concerning
plaintiff's employability relates only to the issue of damages—an issue the jury
never reached—the issue is moot. We agree with the District's argument that
plaintiff's failure to establish that she engaged in whistleblowing activity, by a
preponderance of the evidence, renders the admissibility of Griffith's testimony
moot. The testimony only addressed the issue of damages and could not have
affected the verdict as to the purported CEPA violation itself, a prerequisite to
assessing damages. See Boryszewski v. Burke, 380 N.J. Super. 361, 404 (App.
Div. 2005) (declining to address purported errors that occurred during retrial
where restoration of a verdict from the first trial rendered the issue moot).
A-4955-18
36
Moreover, we discern no abuse of discretion given the substantial
deference we owe to the trial court's gatekeeper role with respect to expert
testimony, State v. Jenewicz, 193 N.J. 440, 455 (2008), contrary to plaintiff's
assertions. Griffith lacked expertise as a psychologist to opine as to plaintiff's
teaching capacity and his methodology was devoid of scientific reliability.
Following our review, we cannot conclude the motion judge abused her
discretion in barring Griffith's testimony.
Further, plaintiff argues the motion judge abused her discretion by
excluding portions of the de bene esse trial testimony of Monk, plaintiff's
employability expert, and that the trial court abused its discretion by denying
plaintiff's motion to reconsider that ruling. Again, we disagree.
In his report, Monk, who has twenty-five years' experience as an
educational consultant and managing director of a school safety and security
firm that served school districts nationwide, gave opinions on four subject areas:
(1) whether defendant's practices regarding students' grades "were lawful and
ethical"; (2) whether defendant's criticism of plaintiff was "valid"; (3) "whether
her termination can be explained by alleged deficiencies in her teaching"; and
(4) "whether proper protocol was followed in the case where plaintiff claims
retaliation in response to her whistleblowing."
A-4955-18
37
The motion judge ruled that Monk's decades of experience as an
educational professional qualified him to testify as to "whether the [l]etter of
[r]eprimand and mid-year termination affected [p]laintiff's chances of obtaining
future teaching positions," which the judge held would be helpful to the trier of
fact under Rule 702. The judge also determined that because Monk was "barred
from offering any testimony as to [a] conclusion of law," the portion of his de
bene esse testimony concerning "whether defendant'[s] practices regarding
students' grades in this matter were lawful and ethical" should be excluded.
Consequently, the judge excluded Monk's opinions concerning the applicability
of New Jersey tenure law, professional standards for teachers, and the criminal
code to this case on the grounds that these were legal issues, which are the
province of the judge, not expert testimony.
Plaintiff concedes the accurate statement of the law falls within the
province of the court. Courts do not generally permit experts to testify as to the
state of the law in the forum. See, e.g., Ptaszynski v. Atl. Health Sys., 440 N.J.
Super. 24, 37 (App. Div. 2015) (noting that "expert opinion testimony on matters
of domestic law is not admissible," because the "judge has the exclusive
responsibility to instruct the jury on the law to be applied"). Nevertheless,
plaintiff contends that the motion judge abused her discretion by excluding
A-4955-18
38
Monk's testimony as to whether defendant's grade alteration practice violated
the law, "not for the conclusion that defendant's conduct was unlawful, but to
show that plaintiff's asserted belief about its unlawfulness was reasonable."
We conclude plaintiff's challenge to the limited admissibility of Monk's
testimony is unfounded and unsupported. First, even assuming the judge erred
by failing to admit the excluded portion of Monk's testimony as evidence of
plaintiff's reasonable belief in the unlawfulness of defendant's conduct, the jury
unanimously found that plaintiff reasonably believed defendant's conduct
violated the law or public policy. Since the jury reached this verdict on the first
CEPA element without the benefit of Monk's testimony presents no logical basis
to invalidate the verdict that flowed from that allegedly improper exclusion.
Had the evidence been admitted, it would only have bolstered a verdict the jury
already reached on count one. Moreover, plaintiff has not alleged that the
excluded portion of Monk's testimony had any effect on the jury's finding as to
the second CEPA element—that plaintiff did not "perform[ ] a 'whistleblowing'
activity as a result of her objecting to the grade changing." Therefore, even
assuming the judge erred, the error was harmless. See State v. Lane, 288 N.J.
Super. 1, 7 (App. Div. 1995) ("Any error is harmless unless there is reasonable
doubt that the error contributed to the verdict.").
A-4955-18
39
Second, to the extent that Monk's underlying opinion as to the
reasonableness of plaintiff's beliefs about the law would constitute expert
testimony, such testimony would exceed the permissible bounds of expert
testimony and invade the province of the jury. See Nesmith v. Walsh Trucking
Co., 247 N.J. Super. 360, 372 (App. Div. 1989) (Shebell, J., dissenting) (finding,
in a negligence case, that expert testimony concerning what individuals involved
in accident could have or should have done to avoid it improperly "invaded the
province of the jury"), rev'd on dissent, 123 N.J. 547 (1991). We are not
persuaded reversible error is present.
IV.
In her fourth point, plaintiff argues that the trial judge erred by precluding
her from introducing her students' letters to Al Roker. Because the letters
contained inadmissible hearsay, we reject plaintiff's claim.
Plaintiff attempted to admit photocopies of letters that her students had
purportedly written to Roker, explaining the importance of the United States
changing from the British system of measurement to the metric system. The
exhibits were proffered not for their truth, but "as rebuttal to the claim that there
was no student learning going on" in the classroom. The trial judge excluded
the photocopies, on the grounds they were hearsay. However, plaintiff was
A-4955-18
40
permitted to testify that she forwarded letters from her students to Roker about
the metric system issue and she was proud of their work, some of which she
described as "outstanding."
Plaintiff maintains that the trial judge erred by failing to ascertain that her
exhibits were offered to counter defendant's "pretextual narrative" that "there
was no learning going on" in plaintiff's classroom rather than for the truth of
whether the United States should switch to the metric system. As with other
"decisions regarding evidentiary matters," the trial court has "broad discretion"
when deciding whether a particular exhibit contains inadmissible hearsay,
Scharf, 225 N.J. at 572, with that decision subject to reversal only to correct a
"manifest denial of justice." Griffin, 225 N.J. at 413 (quoting Green v. N.J.
Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
Hearsay is a statement that "the declarant does not make while testifying
at the current trial . . . offer[ed] into evidence to prove the truth of the matter
asserted in the statement." N.J.R.E. 801(c). A statement is "a person's oral
assertion, written assertion, or nonverbal conduct, if the person intended it as an
assertion." N.J.R.E 801(a). Hearsay is inadmissible at trial, pursuant to Rule
802, unless it falls under one of twenty-seven exceptions codified in Rule 803.
It "applies when a declaration is offered to prove the truth of the statement
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41
attributed to the declarant," whereas "if evidence is not offered for the truth of
the matter asserted, the evidence is not hearsay and no exception to the hearsay
rule is necessary to introduce that evidence at trial." State v. Long, 173 N.J.
138, 152 (2002).
The students did not testify; therefore, their "written assertions" or
"statements" were never authenticated. Indeed, plaintiff sought to admit
photocopies of the "statements" to prove what the students "learned" as a result
of her teaching. Plaintiff argues what each student might have "learned" is a
different proffer than using the letters "for the truth of the matter asserted."
Plaintiff points to no authority to support her claim that out-of-court writings by
non-testifying declarants are exempt from the hearsay prohibitor under Rule
801(c).
In several cases, courts have ruled that out-of-court statements may be
offered to show the probable state of mind induced in the listener or reader and
that the listener or reader took certain actions after hearing the statements. See
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E.
801 (2021) (out-of-court statements were admitted "to show that the statement
was in fact made and that the listener took certain actions as a result, or to show
the probable state of mind induced in the listener.").
A-4955-18
42
By contrast, in State v. Marshall, 123 N.J. 1, 111-12 (1991), the
prosecution elicited from a witness that the murder victim had once remarked,
"What is it?" when referring to a life insurance policy that her husband, the
criminal defendant, had asked her to sign. Id. at 111. The Court held that the
statement attributed to the victim—"What is it?"—was inadmissible hearsay
because it had been offered to prove the victim's lack of knowledge of the
contents of the life insurance application she was signing. Id. at 112.
Here, plaintiff wanted the letters admitted as substantive proof of the
existence of facts about the qualities of the metric system in the minds of her
students to prove she had imparted those facts to them, that they had
comprehended and retained them, and then reproduced them in their letters to
Roker. The proffered exhibits could not have served the intended purpose of
rebutting defendant's claim that plaintiff's students were not learning if the
written assertions contained within the letters were false or inaccurate. But the
out-of-court statements go directly to the issue of whether specific knowledge
did or did not exist in the minds of the non-testifying declarants, the students.
Id. at 112. We conclude the trial judge did not abuse his "broad discretion" in
excluding the letters from evidence. Scharf, 225 N.J. at 572.
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43
V.
Next, plaintiff contends that the trial judge abused his discretion by
permitting Mendez, defendant's employability expert, to offer testimony that
should have been excluded as a net opinion. The judge permitted Mendez to
rebut expert testimony plaintiff had elicited from Monk. In denying plaintiff's
motion to exclude Mendez's testimony, the trial judge permitted the testimony
"to the degree to which she gets to the heart of the . . . employability issue" and
to counter any of the admissible opinions testified to by Monk.
Plaintiff asserts Mendez's testimony was not based on any reliable source
or methodology; was purely speculative; went beyond the scope of her report—
the changing of grades was not deceptive; it was appropriate for an evaluator
who only speaks English to evaluate a foreign language teacher who is teaching
in that foreign language; the failure of students to learn is always the fault of the
teacher not the students; and the quality of plaintiff's job search.
We reiterate that expert testimony "must concern a subject matter that is
beyond the ken of the average juror . . . and . . . the witness must have sufficient
expertise." Kelly, 97 N.J. at 208. Mendez's testimony primarily focused on
plaintiff's employability and the appropriateness of defendant's protocols, not
with plaintiff's objection to the grade changes or whistleblowing activity. No
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44
portions of Mendez's testimony had any bearing on whether plaintiff met her
burden of demonstrating she performed a whistleblowing activity, the second
element of her CEPA claim, which the jury found she had not met. Therefore,
the admissibility of Mendez's testimony is moot at this juncture.
However, in addressing the merits of plaintiff's argument, we note that
Mendez, as the Executive Director of Human Resources, oversaw all employee
services and labor relations functions at Newark Public Schools. She holds a
doctorate in educational leadership and management. On the basis of Mendez's
qualifications and experience, the trial judge found she possessed "the minimal
technical training and knowledge essential to the expression of a meaningful and
reliable opinion" in her areas of expertise: "educational administration
supervision, educational human resources practices . . . teacher termination and
improvement, and . . . grading policies and practices in the Newark School
District."
In the face of her extensive experience, the trial judge did not abuse his
discretion in finding that Mendez's testimony fell within the broad ambit of her
expertise. We discern no abuse of discretion. Scharf, 225 N.J. at 572.
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45
VI.
Next, plaintiff asserts the trial judge erred and abused his discretion by
excluding Watson's notes from being admitted into evidence. Watson kept a
"substitute feedback journal" on a series of UHS forms in which he filled out
comments, observations, and concerns for each of plaintiff's classroom periods,
beginning on October 30, 2014, and continuing until at least November 21,
2014. It is unclear from the record what Watson's protocol was in filling out or
filing these notes. Frederique testified at his deposition that he did not receive
Watson's notes regularly and had not seen them until December 2014, when
Watson sent them to Frederique directly.
Prior to trial, defendant moved to exclude the notes and Watson's
testimony primarily for their lack of relevance to plaintiff's CEPA claim. The
trial judge denied the motion as to Watson's testimony, but granted it as to the
notes because they constitute hearsay that did not satisfy any exception.
Plaintiff argued two exceptions applied: statements by a party opponent pursuant
to Rule 803(b)(4); and the "business records" exception under Rule 803(c)(6).
The judge rejected both arguments, finding that Watson was not a party
opponent, that his notes were not business records, and that they should not
"trump . . . the recollection of the witnesses" who had observed plaintiff's
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46
classroom.
During trial, following Sharpe's testimony about the lack of learning in
plaintiff's classroom, she renewed her motion to offer Watson's notes about his
observations of her classroom in rebuttal to Sharpe's depiction. Again, the judge
ruled that the notes were inadmissible hearsay that did not fall under any
exception and noted that Watson had, at that point in the trial, already testified
as to his observations while in plaintiff's classes.
On appeal, plaintiff has abandoned the argument that the Watson notes
were "statements by a party opponent," but maintains that the "business records"
exception supported the admissibility of the notes and also claims the notes were
admissible under the "present sense impression" exception, pursuant to Rule
803(c)(1).
Rule 803(c)(1) states that when "[a] statement describing or explaining an
event or condition [is] made while or immediately after the declarant perceived
it and without the opportunity to deliberate or fabricate," the statement is
excluded from the hearsay rule. The "immedia[cy]" necessary to trigger the
exception has been interpreted to mean "a very brief time between the
observation and the statement," State ex rel. J.A., 195 N.J. 324, 338 (2008), such
that a ten-minute lapse between a robbery and a witness's statement describing
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the robbery was enough to take that statement out of the "present sense
impression" exception. Id. at 340.
As to the business records exception, when a statement is made in writing
"at or near the time of observation by a person with actual knowledge . . . in the
regular course of business" such a writing is excluded by the hearsay rule unless
"the sources of information or the method, purpose, or circumstances of
preparation indicate that it is not trustworthy." N.J.R.E. 803(c)(6). While
"'records which are properly shown to have been kept as required normally
possess a circumstantial probability of trustworthiness' . . . this general
acceptance of reliability will not attach if 'the trial court . . . entertains serious
doubt as to whether they are dependable or worthy of confidence.'" State v.
Matulewicz, 101 N.J. 27, 29-30 (1985) (quoting Mahoney v. Minsky, 39 N.J.
208, 218 (1963)).
Apart from hearsay, the trial court may also exclude relevant, otherwise
admissible evidence "if its probative value is substantially outweighed by the
risk of: (a) undue prejudice, confusion of issues, or misleading the jury; or (b)
[u]ndue delay, waste of time, or needless presentation of cumulative evidence."
N.J.R.E. 403.
Here, the record is unclear as to several elements necessary for both
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hearsay exceptions that plaintiff argues are applicable. First, the timing of the
notes, a critical component of both exceptions, is ambiguous. At the top of each
substitute feedback journal entry is a space in which a specific date is written or
typed, but it is not certain whether the entries were written on the day listed, or
if they simply described the events from that day. Also, there are no times listed
for when the entries were recorded, all of which are written in the past tense.
Plaintiff made no proffer or representation concerning how much time had
passed between the time when Watson made his observations on which his notes
were based and when he composed the notes, or whether the notes were prepared
in the ordinary course of business under Rule 803(c)(6).
Counsel for plaintiff, in a pretrial colloquy with the judge, represented
that, because Watson was a substitute teacher, he "fills out forms" and "files
them with the principal or the vice-principal" who would purportedly keep the
notes in the ordinary course of business. No testimony or other evidence
supported counsel's assertion that notes, such as Watson's, were regularly kept
by defendant in the ordinary course of its business.
Therefore, the trial judge correctly determined that plaintiff failed to meet
her burden, as the proponent of the evidence, to show that either the present
sense impression exception or the business records exception to the hearsay
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prohibition applied to Watson's notes. See State v. Stubbs, 433 N.J. Super. 273,
285-86 (App. Div. 2013) (stating that proponent of hearsay exception faced
"burden of persuasion that the out-of-court statement satisfied the elements of
an exception to the general rule of inadmissibility").
Moreover, even if the notes were not excludable on hearsay grounds, we
conclude the judge acted well within the scope of his discretion as gatekeeper in
excluding the notes under Rule 403 because they were unnecessarily duplicative
of the observations Watson had already testified to before the jury.
VII.
Plaintiff next argues that the trial judge abused his discretion by allowing
Sharpe's, Guinn's, and Frederique's written evaluations to be admitted into
evidence. During plaintiff's case-in-chief, the District sought to introduce
Frederique's written observation and evaluation notes taken after observing
plaintiff. Because the judge excluded Watson's written notes from being entered
into evidence, plaintiff argues the same ruling should apply to the written
evaluations. Unlike Watson's notes, the judge held the formal written
evaluations by the administrators were admissible under the business record
exception found in Rule 803(c)(6). We conclude the judge was correct in his
analysis.
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Rule 803(c)(6) excludes from the hearsay prohibition a statement made in
a writing "at or near the time of observation by a person with actual knowledge
. . . in the regular course of business" unless "the sources of information or the
method, purpose, or circumstances of preparation indicate that it is not
trustworthy." N.J.R.E. 803(c)(6). "For an improvidently admitted hearsay
statement to warrant reversal . . . the possibility of an unjust verdict must be real
and sufficient to raise a reasonable doubt as to whether the error led the jury to
a result it otherwise might not have reached." Beasley v. Passaic Cnty., 377 N.J.
Super. 585, 604 (App. Div. 2005).
Here, unlike the Watson notes, there was testimony concerning "the
regular course of business" with respect to the written evaluations. Mendez
testified that under the District's framework for effective teaching, teachers are
evaluated according to the common core standards, consistent with State
regulations. Mendez then offered the opinion that the October and November
2014 evaluations of plaintiff were conducted in accord with the standards set
forth in the framework for effective teaching. Sharpe likewise testified that
every teacher evaluation was based on the framework for effective teaching and
was "evidence-based."
Frederique testified that the framework required him, when he was the
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evaluator, to post an initial write-up online, followed by a post-observation
conference with the teacher, after which Frederique would then update the
online summary of the evaluation with any relevant evidence or comments made
by the teacher or the administrators during the conference. Sharpe explained
that plaintiff's ineffectiveness rating from the observation was explained to her
at a post-observation conference.
Because Frederique's, Sharpe's, and Mendez's testimonies described the
regular business practice by which the administration gave and kept written
evaluations of its teachers' effectiveness, and because plaintiff failed to establish
there was anything "untrustworthy" about the process, the trial judge did not
abuse his discretion by invoking Rule 803(c)(6).
VIII.
Plaintiff also asserts the trial judge erred by admitting the hearsay
statements of several of her students as well as Frederique's written notes of his
conversations with parents. Because the jury was not being asked to accept the
truth of the statements, the evidence was properly admitted.
When, during Frederique's direct testimony, the District's counsel began
asking questions about complaints that had been made to Frederique by parents
and students about plaintiff, she objected to the out-of-court comments coming
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in, arguing they were inadmissible hearsay.
In response to plaintiff's objection, the judge gave the jury a lengthy
instruction prior to the introduction of the out-of-court complaints:
Before we resume the direct examination of . . .
Frederique let me give you a little instruction on
something that might cut down on our sidebars. In this
case you've heard from witnesses on the witness stand,
that is, testifying witnesses, comments by other non[-]
testifying witnesses. People may have witnessed
something that maybe relevant to the case, but they're
not here or not coming to testify before you.
That, of course, is hearsay. It's an out-of-court
statement. But it's only hearsay if it's being offered for
the truth of the matter asserted. So, what that means is
it may be relevant for your consideration when coming
from the witness only as a means by which you can
determine whether it properly forms a basis for a
determination that the witness might make, not because
what the non-testifying witness said. It may or may not
be the truth. And because we don't have the person here
to testify there's no way for us to be able to judge
whether what the out-of-court person is [telling] is the
truth.
. . . [N]evertheless, because the words were heard
by a witness on the stand which might have caused him
or her to take certain action or to opine about certain
things or reach certain conclusions doesn't [mean] its
relevant for . . . that purpose, to inform you as to why
the witness is saying what he's saying or does what he
does or did what he did. Not because it is necessarily
true, but the words that were spoken by the out-of-court
witness are actually true, only that they were said.
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Over plaintiff's objection, the judge admitted eleven separate out-of-court
complaints—four were notes from parents and seven were complaints
Frederique received directly from students. Whether proffered statements are
hearsay "depend[s] on the [proponent]'s intended use of them and who will
present that testimony at the trial." Long, 173 N.J. at 152.
Here, the complaints were admitted to support Frederique's testimony that
Sharpe and he placed plaintiff on a thirty-day plan, not as retaliation for her
whistleblowing, but because they had received complaints of "student-teacher
conflict" in plaintiff's class and had taken actions based on those complaints.
Prior to admitting the notes, the judge had apprised the jury as to the
limited and appropriate use of the parents' and students' complaints contained
within them as potentially "relevant . . . only as a means by which you can
determine whether it properly forms a basis for a determination that the witness
might make," or to consider whether "the words were heard by a witness on the
stand which might have caused him or her to take certain action or to opine about
certain things or reach certain conclusions."
"The authority is abundant that courts presume juries follow instructions."
State v. Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019). Contrary to
plaintiff's assertion, the probative value of the complaints was substantial with
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respect to the fourth element of her CEPA claim under a Rule 403 analysis. If
the jury found Frederique's testimony credible that the complaints he received
formed his recommendation to take steps toward terminating plaintiff, it would
then be less likely that her purported whistleblowing "caused" him to make that
recommendation.
The notes were potentially prejudicial to plaintiff, but "[a]ll damaging
evidence is prejudicial." State v. Scherzer, 301 N.J. Super. 363, 469 (App. Div.
1997). "[I]t is only when the probative value is substantially outweighed by the
potential prejudice that the evidence should be excluded." Ibid. Given the
judge's clear instruction on the limited non-hearsay use of these notes, we
discern no abuse of discretion in admitting the notes into evidence.
IX.
In her next point, plaintiff contends the trial judge abused his discretion
by excluding evidence that she was rated an effective teacher at Barringer for
the 2013-2013 school year while allowing evidence plaintiff was rated partially
effective at Horton for the 2013-2014 school year. The judge ruled the prior
evaluation at Barringer was hearsay, was only marginally relevant, and could
confuse the jury.
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Plaintiff attempted to introduce her Barringer evaluations through her own
testimony and did not intend to call anyone from Barringer to authenticate the
records or to testify about her skills as a teacher. To the contrary, the judge
admitted evidence of plaintiff's partial effectiveness rating at Horton, which as
the District clarified, was relevant to the actions UHS administration took with
respects to the corrective action plan.
Plaintiff claims the Barringer evaluation results, which were issued in
2012 within the same district that rated her partially effective in 2013 and
ineffective in 2014 were, "critical to demonstrating that the defense of
'ineffective' teaching was a pretext" used to retaliate against plaintiff in violation
of CEPA.
The evidential ruling was not an abuse of discretion. Plaintiff does not
specify any hearsay exception to justify admitting the writings of non-testifying
declarants. Moreover, she has not established any relevant connection between
the 2012 evaluation of one group of evaluators and the 2014 evalu ations
prepared by a different administration at another school. The trial judge
correctly determined the 2012 evaluation records were inadmissible hearsay
under Rule 802 and were not relevant to any fact of consequence under Rule
401.
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X.
In her next point, plaintiff argues the trial judge abused his discretion by
excluding evidence that she had been rated effective in various school districts
throughout her career. For the reasons expressed, we conclude the judge did not
err by excluding these irrelevant hearsay documents.
Next, plaintiff challenges the trial judge's ruling excluding from the record
and preventing her counsel from extensively quoting a series of emails. The
emails were between plaintiff and Frederique concerning the summer
assignment and the letter of reprimand. During her direct testimony, plaintiff
testified that on September 24, 2014, in a series of emails, Frederique directed
her to remove the summer assignments from her gradebook.
In the first email at issue, Frederique informed plaintiff she was "being
directed not to grade" the summer assignment, in part because the directions for
completing the assignment were not explicit and because the assignment was
having a "detrimental" effect on her students' grades. Plaintiff responded by
telling Frederique that many of the students simply "refuse to follow directions"
and others "have no shame in lying" and, based on their failure to comply with
instructions, the low grades were "what they have to live with." Plaintiff
"implore[d]" Frederique to "allow them to learn from the experience" and not to
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let them "get away with this by coming and complaining to you." Frederique
repeated that he was directing plaintiff "the summer assignment grades should
not be incorporated in the student grade" and that the "failure to adhere to this
directive will be perceived as insubordination."
We are not persuaded that any portion of the email thread was
prejudicially kept from the jury. The judge gave plaintiff broad latitude to
testify as to the circumstances surrounding the summer assignment, the requests
to remove the summer grades made by Frederique in the email exchange, and
the letter of reprimand.
Plaintiff points to nothing in the emails outside of this basic factual
summary she had already testified to that would have added any material fact
relevant to the jury's understanding of the issues. See N.J.R.E. 403 ("relevant
evidence may be excluded if its probative value is substantially outweighed by
the risk of . . . needless presentation of cumulative evidence."); L & L Oil Serv.,
Inc. v. Dir., Div. of Tax'n, 340 N.J. Super. 173, 183 (App. Div. 2001) (holding
testimony repeating contents of written correspondence already in record to be
unnecessarily duplicative).
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XI.
Plaintiff also asserts that the trial judge abused his discretion by excluding
evidence of grading scandals in other school districts and record-keeping
statutes from other states. We are unpersuaded by plaintiff's argument.
During the May 9, 2019 pretrial hearing, the judge ruled the evidence
pertaining to other districts and states was "not probative in the least" under Rule
403 and would confuse the jury into speculating whether standards in other
states apply here. There was no proffer that plaintiff read the articles or was
familiar with laws of other states at the time of her alleged whistleblowing;
indeed, her counsel asked the judge to "assume she did not read them before her
termination."
On appeal, plaintiff reiterates her argument before the trial judge that the
evidence pertaining to the laws and alleged grade alteration scandals in other
jurisdictions is relevant to show the objective reasonableness of her belief that
the District's actions violated the law or a clear mandate of public policy.
Relying on Turner v. Associated Humane Societies, Inc., 396 N.J. Super. 582,
596 (App. Div. 2007), plaintiff contends it is irrelevant whether she was aware
of the articles prior to her alleged whistleblowing.
In Turner, where an employee for an animal welfare organization was
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terminated after objecting to the adoption of a dog the group had been paid to
euthanize, the trial judge "based his decision granting defendants a directed
verdict on the ground that plaintiff did not subjectively believe the dog was
actually vicious." Ibid. We reversed, holding that the "objectively reasonable
belief" at issue was "not necessarily whether the dog was 'vicious,'" but whether
the decision to place for adoption "a dog that had bitten its previous owner and
was supposed to be euthanized was inherently 'incompatible' with New Jersey's
public policy of protecting its citizens from these animals." Ibid.The crucial point in Turner was that the trial judge held the wrong
subjective belief to the objective reasonableness test under CEPA, not that the
judge improperly probed whether plaintiff possessed such a belief. Although
the reasonableness of a plaintiff's belief in a CEPA case is an objective standard,
the underlying belief itself is one that the plaintiff must have subjectively held.
This interpretation is consistent with the language of the statute, which
describes whistleblowing activity as an "object[ion], or refus[al] to participate
in any activity, policy, or practice which the employee reasonably believes . . .
is incompatible with a clear mandate of public policy," N.J.S.A. 34:19-3(c)
(emphasis added). Notably, the standard is not an objection or refusal to a policy
or practice that "a reasonable person would believe" is incompatible with a clear
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mandate of public policy.
Here, because plaintiff asked the trial judge to assume that, at the time of
the alleged whistleblowing, she was unaware of this evidence, the evidence was
necessarily irrelevant to whether she actually believed, at the time she objected
to or refused to participate in the alteration of her grades, that the District's
conduct was incompatible with public policy. Moreover, it could confuse issues
for the jury. See N.J.R.E. 403 (providing that relevant evidence may be
excluded "if its probative value is substantially outweighed by the risk of . . .
confusion of issues").
The jury, without the benefit of the evidence at issue, found that plaintiff
possessed such a reasonable belief in question one of the verdict sheet.
Therefore, the abuse of discretion in excluding it, if any, was harmless beyond
a reasonable doubt. See State v. Prall, 231 N.J. 567, 581 (2018) ("Our review
of the evidentiary determinations cannot end our analysis when we find an abuse
of discretion; rather, we must then determine whether any error found is
harmless or requires reversal.").
XII.
Plaintiff also argues the trial judge erred in dismissing her punitive
damages claim. Since the jury did not reach the issue of damages, this iss ue is
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moot. We also reject plaintiff's contention that the "cumulative effect of small
errors" has prejudiced her, warranting "reversal" of the verdict. In a cumulative
error analysis, we "consider the aggregate effect of the trial court's errors on the
fairness of the trial." Torres v. Pabon, 225 N.J. 167, 191 (2016). We discern no
error, let alone cumulative error, based upon our careful review of the record.
To the extent plaintiff may have posed other arguments in her appeal that
we have not specifically addressed, we find those arguments to be of insufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). In light of
our opinion on plaintiff's appeal, the cross-appeal filed by the District is
dismissed.
Affirmed.
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