Phillip Eisenstein v. Atlantic City Board of Education ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3368-22
PHILLIP EISENSTEIN,
Plaintiff-Appellant,
v.
ATLANTIC CITY BOARD OF
EDUCATION, JAMES KNOX,
JR., PAUL SPAVENTA, and
ATIBA ROSE,1
Defendants-Respondents.
___________________________
Submitted September 24, 2024 – Decided October 22, 2024
Before Judges Gilson and Augostini.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1200-17.
Swift Law Firm, LLC, attorneys for appellant (John
Swift, on the brief).
Law Offices of Riley and Riley, attorneys for
respondents (Tracy L. Riley, on the brief)
1
Improperly pled as Ativa.
PER CURIAM
In this employment matter, plaintiff Phillip Eisenstein, a non-tenured
teacher, appeals from an April 27, 2023 order dismissing his complaint for
wrongful termination under the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14, against defendants Atlantic City Board of
Education, James Knox, Jr., Paul Spaventa, and Atiba Rose with prejudice on a
directed verdict. We reverse and remand for a new trial.
I.
We summarize the material facts from the trial testimony on April 26 and
April 27, 2023, viewing them in the light most favorable to plaintiff, the non-
moving party.
In 2015, plaintiff began working as a physical education teacher at the
New York Avenue School in Atlantic City. He taught students in pre-
kindergarten through eighth grade.
Over the course of less than two months at the school, plaintiff submitted
over forty student complaint referrals. When an incident with a student
occurred, plaintiff was required to complete a referral form to document the
incident and to advise the administration. Afterwards, the administration
detailed on this form the steps taken to address the issue and returned a copy to
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the teacher. In addition to completing multiple referral forms, plaintiff, on a few
occasions, sent emails to the administration advising of classes he was having
difficulty controlling.
On October 14, 2015, plaintiff, while on lunch duty, observed an
altercation between two students on the playground. According to plaintiff, one
of the students, K.D., was being bullied by other students. A confrontation
ensued between K.D. and one of the other students. Plaintiff stepped in between
the students to prevent a fight. Afterwards, K.D. stated, "I'm going to go get my
uncle's gun and I'm going to come and shoot you tomorrow."
Plaintiff took K.D. into the school and had a brief conversation with him.
Plaintiff told K.D. that based upon his statement he had to go to the principal's
office "for the safety [of] everybody involved." Plaintiff then walked K.D. to
the principal's office and advised the principal of the situation. The principal
responded, "I'll handle it." Plaintiff completed the referral form and gave it to
the principal. Plaintiff did not see K.D. again that day.
At the beginning of the next school day, October 15, 2015, plaintiff saw
K.D. lined up to enter his health classroom. Plaintiff was concerned given the
threat K.D. made the prior day. Plaintiff sent an email to the principal "asking
what actions were taken with K.D." because he was "shocked" to see him in
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school the next day given the severity of his threat. Plaintiff explained his
concern: "[i]f I hear somebody is threatening to bring a gun, I think, it would
take more than the end of the day to – to determine if that was actually the case
or not."
Plaintiff received no response to his email; nor did he receive the return
copy of the referral form detailing the administration's response to this incident.
Plaintiff explained he only learned months later of the disciplinary action taken
in an email from the union president. Plaintiff testified that his union president
advised him that K.D. had received a two day in-school suspension. The record
does not reveal, however, when the suspension took effect.
On cross-examination, plaintiff acknowledged learning from the vice
principal of a meeting the administration had with K.D. Plaintiff believed the
administration's response to this threat was inadequate.
On October 27, 2015, another incident occurred involving K.D. and
another student, J.H., during plaintiff's gym class. As the students were lining
up for lunch, plaintiff saw J.H. confronting K.D. According to plaintiff, J.H.
was the aggressor and wanted to fight K.D. Plaintiff stepped in between the
students to prevent an altercation. Plaintiff spoke separately with J.H. and told
him to return to the class. J.H. then immediately confronted K.D. again.
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The situation between J.H. and K.D. escalated. J.H. pushed K.D. and
began "throwing punches" at K.D. Plaintiff grabbed J.H. by the arm or sleeve;
however, J.H. broke away and again began attacking K.D.
Plaintiff explained that at this point, he pushed the gym door open,
screamed out into the hallway for help, and screamed for security approximately
three times. No one came. Another nearby health teacher, who testified on
plaintiff's behalf, heard the commotion and responded. After hearing plaintiff
yelling for help, the health teacher left her classroom and ran down the hall
trying to find security or someone from the administration. According to the
health teacher, no security personnel were in the building.
Plaintiff explained that when no one responded, he made the split
decision, "while J.H. was throwing punches at K.D., to apprehend him under his
arms." Plaintiff described taking J.H. "under his arms" and bringing him out
into the hallway, at which time, plaintiff explained that his arms went "either
around his [waist] or around his arms." The other teacher who had come out to
call for help described seeing plaintiff take J.H. in a "bear hug."
Plaintiff proceeded to walk J.H. down the hallway, "guiding him" as he
walked. At the end of the hallway, a counselor took over, advising plaintiff, "I
got him."
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At the end of the day, plaintiff reported to the principal's office where he
was told that he was suspended with pay. Following a Board of Education
meeting on February 22, 2016, plaintiff was terminated for "excessive use of
force."
Plaintiff filed a complaint against his employer, the Atlantic County Board
of Education, and several employees, contending a violation of CEPA, under
N.J.S.A. 34:19-3(c)(1), (3).2 A jury was empaneled on April 26, 2023. Plaintiff
presented his case-in-chief on April 26 and April 27, 2023. Plaintiff testified on
his own behalf and called two additional witnesses: Caroline McCabe, a health
teacher at New York Avenue School and Marcia Genova, the union president of
the teacher's union. The deposition testimony of plaintiff's use of force expert,
Thomas Jordan, Jr., was read to the jury because the expert passed away prior
to trial. Following a Rule 104 hearing 3, the court granted defendant's motion
barring the testimony of an additional witness, Sherry Yahn, as not relevant to
2
After summary judgment, only count five, the CEPA count, remained.
3
N.J.R.E. 104 provides, "[t]he court shall decide any preliminary question about
whether a witness is qualified, a privilege exists, or evidence is admissible ."
N.J.R.E. 104(a)(1). The Rule also provides for the hearing to be conducted
outside of the presence of a jury. N.J.R.E. 104(a)(2).
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the issues before the jury. The court admitted into evidence various
documentary exhibits and a video of the incident from October 27, 2015.
At the conclusion of plaintiff's case, defendants moved for a directed
verdict under Rule 4:37-2(b). After oral argument, the court granted the motion
dismissing plaintiff's case with prejudice. On August 3, 2023, the court
amplified its findings in a submission filed pursuant to Rule 2:5-1(b).4
Accepting as true all evidence supporting plaintiff's position and giving
plaintiff the benefit of every reasonable inference, the court found that plaintiff
failed to provide a "law, rule, regulation or public policy . . . that would have a
basis for [the jury] to answer the first question that's going to be on the verdict
sheet[;]" namely, "did . . . plaintiff have a reasonable belief that his employer's
conduct violated a law, rule, regulation or policy."
The court noted that plaintiff's counsel stated, "it's just public policy that
all gun threats should be taken seriously and in that short time line, there's no
way the school could have . . . followed that policy in such a short amount of
time." The court next queried whether plaintiff had a reasonable belief that the
4
In its amplification dated August 3, 2023, the court noted that in rendering the
directed verdict on April 27, 2023, the court cited Rule 4:40-1, which was in
error. The court intended to cite Rule 4:37-2(b).
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conduct violated this public policy. Ultimately, the court found plaintiff's
failure to identify a specific policy fatal to his CEPA claim.
Plaintiff filed a motion for reconsideration and annexed a copy of the
Atlantic City Board of Education, District Regulations 5600 and 5620: Pupil
Discipline/Code of Conduct, and Expulsion Procedures, respectively. The court
denied the motion for reconsideration. 5 This appeal followed.
II.
Plaintiff contends the trial court erred in granting a directed verdict
because the court's decision was premised on an incorrect legal basis under
N.J.S.A. 34:19-3(c)(3); namely, that plaintiff need not identify the complained-
of rule, regulation, or policy, notwithstanding Supreme Court precedent.
We review a motion for a directed verdict de novo by applying the same
standard governing trial judges. Smith v. Millville Rescue Squad, 225 N.J. 373,
397 (2016). A motion for a directed verdict made pursuant to Rule 4:40-1 or
Rule 4:37-2(b) shall be granted "only if, accepting as true all evidence
supporting the party opposing the motion and according that party the benefit of
5
Plaintiff appeals solely from the order of April 27, 2023, granting a directed
verdict. He does not challenge the order dated June 12, 2023, denying
reconsideration. Therefore, we do not address plaintiff's contentions regarding
the court's order denying reconsideration.
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all favorable inferences, reasonable minds could not differ." Edwards v. Walsh,
397 N.J. Super. 567, 571 (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)); see
R. 4:37-2(b). Dismissal is appropriate when plaintiff has failed to provide evidence
of an essential element of his or her claim. See Pitts v. Newark Bd. of Educ., 337
N.J. Super. 331, 340 (App. Div. 2001). See generally Holm v. Purdy, 252 N.J.
384, 400 (2022); Millville Rescue Squad, 225 N.J. at 397.
"The Legislature enacted CEPA to 'protect and encourage employees to
report illegal or unethical workplace activities and to discourage public and
private sector employers from engaging in such conduct.'" Dzwonar v.
McDevitt, 177 N.J. 451, 461 (2003) (quoting Abbamont v. Piscataway Twp. Bd.
of Educ., 138 N.J. 405, 431 (1994)). As a remedial statute, CEPA "promotes a
strong public policy of the State" and "should be construed liberally to effectuate
its important social goal." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518,
555 (2013) (quoting Abbamont, 138 N.J. at 431).
CEPA provides in relevant part:
An employer shall not take any retaliatory action
against an employee because the employee does any of
the following:
....
c. Objects to, or refuses to participate in any activity,
policy or practice which the employee reasonably
believes:
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(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law. . .;
(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.]
"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. 34:19-3c; (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 (citing Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div.
1999)).
These requirements "should be construed liberally to effectuate [CEPA's]
important social goal." Abbamont, 138 N.J. at 431. At the prima facie stage,
the evidentiary burden is "rather modest". Zive v. Stanley Roberts, Inc., 182
N.J. 436, 447 (2005).
With respect to the first element of a CEPA claim, "a plaintiff must set
forth facts that would support an objectively reasonable belief that a violation
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has occurred." Dzwonar, 177 N.J. at 462 (2003). This requires the court make
"a threshold determination that there is a substantial nexus between the
complained-of conduct and a law or public policy identified by the court or the
plaintiff.” Ibid. If this threshold determination is met, the issue proceeds to the
jury to determine whether the plaintiff believed a violation occurred and if that
belief was objectively reasonable. Id. at 464-65.
A plaintiff need not "allege facts that, if true, actually would violate the
[law]." Id. at 463. At the time of the incident, "whistleblower employees" need
not become "lawyers on the spot" before acting. Chiofalo v. State, 238 N.J. 527,
544 (2019). Importantly, "CEPA does not require any magic words in
communicating an employee's reasonable belief of illegal activity." Beasley v.
Passaic Cty., 377 N.J. Super. 585, 605 (App. Div. 2005).
Here, by permitting the student who made the threat of violence
immediately back into the school population, plaintiff believed defendants
violated a policy as to how such threats were to be handled. Defendants
contended that plaintiff failed to identify a specific statute, regulation or public
policy defendants violated even if those alleged facts were true. Only at the
time of his motion for reconsideration did plaintiff provide the District
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Regulations 5600 and 5620: Pupil Discipline/Code of Conduct, and Expulsion
Procedures, which he asserted defendants violated.
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." Maw v. Advanced Clinical Communs., Inc., 179 N.J. 439, 444 (2002).
This mandate "need not be enacted in a constitution, statute[,] or rule, but must
nonetheless provide a definite standard by which the employer's conduct may be
gauged . . . " Hitesman v. Bridgeway, Inc., 218 N.J. 8, 33 (2014). "[T]he
mandate of public policy must be clearly identified and firmly grounded and
cannot be vague, controversial, unsettled [or] otherwise problematic." Id. at
34 (alteration in original) (internal quotation marks omitted).
In New Jersey, there is a clear public policy that schools must take
appropriate action to protect students from threats of violence, particularly
threats of gun violence. Both our Legislature and courts have long recognized
public-school safety and security as important public policy concerns. See, e.g.,
N.J.S.A. 18A:17-42 ("The legislature finds that the safety and welfare of the
public school students of this state while attending sessions of the public schools
is a matter of prime concern to the citizens of this state"); State v. Best, 201 N.J.
100, 113 (2010) ("[T]he need for school officials to maintain safety, order, and
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discipline is necessary whether school officials are addressing concerns inside
the school building or outside on the school parking lot."); Frugis v. Bracigliano,
177 N.J. 250, 268 (2003) ("No greater obligation is placed on school officials
than to protect the children in their charge from foreseeable dangers, whether
those dangers arise from the careless acts or intentional transgressions of
others."); Abbott v. Burke, 153 N.J. 480, 514 (1998) ("Security is a critically
important factor in the provision of a thorough and efficient education."); Kibler
v. Roxbury Bd. of Educ., 392 N.J. Super. 45, 56 (App. Div. 2007) ("We surely
are not indifferent to the safety of the dedicated professionals who work, day in
and day out, to educate our children."); Abbamont v. Piscataway Twp. Bd. of
Educ., 269 N.J. Super. 11, 24 (App. Div. 1993) ("What is more important to a
school environment than safety and a healthy environment?").
Additionally, district boards of education are required to "[m]ake . . . rules
. . . for its own government . . . and management of the public schools and public
school property of the district" that are consistent with state law and regulations.
N.J.S.A. 18A:11-1(c); see G.D.M. v. Bd. of Educ. of The Ramapo Indian Hills
Reg'l High Sch. Dist., 427 N.J. Super. 246, 258 (App. Div. 2012) (discussing
local board's authority to regulate student conduct in accordance with state
regulations).
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Regarding discipline, N.J.A.C. 6A:16-7.1(a) requires district boards of
education to develop and implement "a code of student conduct that establishes
standards, policies, and procedures for positive student development and student
behavioral expectations on school grounds." The code of conduct must include
"[a] description of behaviors that result in suspension or expulsion, pursuant to
N.J.S.A. 18A:37-2" and "[a] description of school responses to violations of
behavioral expectations . . . that, at a minimum, are graded according to the
severity of the offenses[.]" N.J.A.C. 6A:16-7.1(c)(2); N.J.A.C. 6A:16-7.1(c)(5).
The discipline policy must also contain "a continuum of actions designed to
remediate [violations] and, where necessary or required by law, to impose
sanctions[.]" N.J.A.C. 6A:16-7.1(c)(5)(i).
Concerning school safety, superintendents are required to designate a
"school administrator, or a school employee with expertise in school safety and
security, as a school safety specialist for the [school] district." N.J.S.A. 18A:17-
43.3. The school safety specialist is responsible for "supervision and oversight
for all school safety and security personnel, policies, and procedures . . . ." Ibid.Additionally, school districts are required to establish a "threat assessment
team" at each school. . . "to provide school teachers, administrators, and other
staff with assistance in identifying students of concern, assessing those students'
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risk for engaging in violence or other harmful activities, and delivering
intervention strategies to manage the risk of harm for students who pose a
potential safety risk, to prevent targeted violence in the school, and ensure a safe
and secure school environment that enhances the learning experience for all
members of the school community." N.J.S.A. 18A:17-43.4.
While plaintiff identified a clear public policy (school safety) he believed
had been violated, he did not identify a specific rule or regulation expressing the
policy he believed defendants had violated. In the absence of a rule, law or
regulation identified by a plaintiff, our jurisprudence maintains that "the trial
court must identify a statute, regulation, rule, or public policy that closely relates
to the complained-of conduct." Dzwonar, 177 N.J. at 463. More recently, in
Chiofalo, the Court explained, by having either the court or the plaintiff identify
the first prong, "we expanded on how a plaintiff who pursues CEPA claims
under N.J.S.A. 34:19-3(c)(1) and (3) can satisfy [this] first prong of a prima
facie case." Chiofalo, 238 N.J. at 541.
We are satisfied that plaintiff identified a clear mandate of public policy
(public school safety) that he reasonably believed had been violated. In viewing
the evidence in a light most favorable to him, plaintiff provided sufficient facts,
together with reasonable inferences to be drawn from those facts, that would
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support an objectively reasonable belief that a violation of this policy had
occurred upon seeing the student in the school population after having made the
threat to shoot another student. In light of this clear mandate of public policy,
either plaintiff or the court would need to identify the law, rule, policy or
regulation containing the relevant mandate of public policy concerning school
safety at issue. Therefore, we conclude the trial court erred in finding that, as a
matter of law, plaintiff had not identified public policy "concerning the public
health, safety or welfare or protection of the [school] environment" and
dismissing plaintiff's complaint. N.J.S.A. 34:19-3(c)(3).
In conclusion, we reverse and vacate the trial court's order granting a
directed verdict and dismissing plaintiff's complaint. We remand the matter for
a new trial in light of the legal principals discussed. On remand, plaintiff or the
court shall "find and enunciate the specific terms of a statute or regulation, or
the clear expression of [the] public policy [identified by plaintiff], which would
be violated if the facts as alleged are true." Dzwonar, 177 N.J. at 463 (quoting
Fineman v. N.J. Dept. of Hum. Servs., 272 N.J. Super. 606, 620 (App. Div.
1994), certif. denied, 138 N.J. 267 (1984)). We express no view on whether
plaintiff will be able to convince a jury of the alleged violation of the public
policy or his alleged whistle-blowing activity. Provided plaintiff satisfies a
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prima facie showing of the elements of a CEPA claim, defendants, in their case,
will have the opportunity to challenge plaintiff's alleged whistle-blowing
activity and their response to the threat, as well as offer evidence as to any
legitimate, non-retaliatory reason for plaintiff's termination.
Reversed, vacated and remanded. We do not retain jurisdiction.
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