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Abbamont v. Piscataway Township Board of Education

Decided: November 29, 1993.

JOSEPH P. ABBAMONT, JR., PLAINTIFF-APPELLANT,
v.
PISCATAWAY TOWNSHIP BOARD OF EDUCATION, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Petrella, Conley and Villanueva. The opinion of the court was delivered by Villanueva, J.A.D. Petrella, P.J.A.D., Concurring and Dissenting.

VILLANUEVA

Plaintiff, a non-tenured public school teacher, brought this action against his former employer, defendant Piscataway Township Board of Education, under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Plaintiff alleged that he was not rehired in retaliation for his complaints about the inadequate ventilation in his shop, which created a hazardous condition that he "reasonably believe[d] . . . [was] incompatible with a clear mandate of public policy concerning the public health, safety or welfare." N.J.S.A. 34:19-3c(3). Plaintiff demanded reinstatement and back pay with benefits, attorneys' fees, punitive damages and costs. At trial, the Judge reserved decision on defendant's motion to dismiss, but, after a jury verdict in favor of plaintiff for $60,000, granted the motion and dismissed the complaint. Plaintiff's motion for a new trial was denied. Plaintiff appeals. We reverse and remand for a trial solely on punitive damages.

Plaintiff, a certified industrial arts teacher, began teaching metal shop in the Quibbletown Middle School in September 1985. During the prior month, he worked without pay cleaning up his facility because "it was in shambles." Edward McGarigle, the school principal, told plaintiff that he was to teach small engines and metals. However, plaintiff believed that he did not have the equipment he needed to teach those courses so he made a list of needed materials for McGarigle. When McGarigle received the list, he was extremely angry.

Although Carl Schweitzer, another employee, corroborated plaintiff's description of the metal shop and its lack of ventilation, McGarigle and one of his maintenance staff, Michael Chach, stated that there was ventilation in the metal shop.

In December 1985, the district industrial arts supervisor, Jerry Papariello, gave plaintiff a booklet entitled "New Jersey Industrial Arts Education Safety Guide" together with Title 6 of the 1977 New Jersey Administrative Code, "Vocational Education Safety Standards," the 1982 amendment to Tile 6, and the "National Standard School Shop Safety Inspection Check List." Papariello advised plaintiff that defendant was about to adopt these materials "as our official safety guide," and considered them authoritative. The Safety Guide referred to and reproduced N.J.A.C. 6:22-5.2,*fn1 dealing with mechanical ventilation requirements.

Plaintiff continued to talk to McGarigle about the needs of the shop but without success. In early January 1986, when Papariello asked plaintiff to fill out a state monitoring safety evaluation, he marked many items as unsatisfactory. Although both Papariello and McGarigle received copies, no action was taken. In January 1986, Dr. John Coogan, from the State Department of Education, inspected plaintiff's shop as part of the State monitoring team; plaintiff advised him of the problems but nothing was done.

Plaintiff was evaluated three times a year by either McGarigle or the vice principal, Ernie Farino. McGarigle stated in his March 1986 summary evaluation that they were "happy" and "impressed" by plaintiff's performance.

In June 1986, plaintiff was required to submit the needs of his facility for the following year. Papariello was in charge of major capital expenditures, such as machinery, while McGarigle was in charge of smaller items. Plaintiff's list to McGarigle reiterated items in need of repair, including windows, lights, the sink and ventilation. McGarigle again said he would take care of it but never did. When plaintiff returned to school in September 1986, no repairs or improvements had been made in his shop.

Plaintiff's evaluations in the 1986 to 1987 school year were again excellent. In the spring of 1987, Papariello offered plaintiff a position at the high school auto shop; plaintiff was very interested but was concerned with the equipment, mess and safety problems. The next morning when Papariello pressed plaintiff for an answer, plaintiff explained that he wrote a letter to the Board asking that "certain things" be done and if the Board agreed to do them, he would accept the position. Papariello became very annoyed and upset. According to Papariello, however, plaintiff made unreasonable demands for the auto shop.

In June 1987, plaintiff submitted the same list of things that needed to be done in the shop over the summer. When plaintiff returned to Quibbletown in September 1987, nothing was changed in the shop. He again complained to McGarigle and Papariello and also to Burt Edelchick, the Superintendent of Schools.

At the beginning of the 1987-88 school year, plaintiff and Schweitzer wrote to Edelchick, requesting a meeting. Edelchick requested more information, which plaintiff and Schweitzer provided, expressing concerns about safety; they sent copies to McGarigle and Papariello. Three days later, McGarigle evaluated plaintiff and noted no strengths. Finally, Edelchick advised plaintiff that he had met with Papariello and McGarigle who had assured him that "most of the things were taken care of."

Meanwhile, in the fall of 1987, plaintiff began coughing, having difficulty breathing and getting headaches, nausea and redness in his eyes. Plaintiff was diagnosed as having a pulmonary condition. Later in December 1987, after a student was "overcome

with fumes" and became "nauseated, dizzy, [with] wobbly legs, [and] went down to his knees," plaintiff decided to shut down the machines that were emitting fumes.

In December 1987, Ernest Farino, the vice principal, evaluated plaintiff as competent in every area. Over Christmas vacation, plaintiff sent a letter to Edelchick expressing his frustration "with all the normal channels" and his concern about the safety of himself and his students and requested that "O[SH]A [Occupational Safety and Health Act] (sic) be called in immediately to do an air quality check." Plaintiff sent a copy to McGarigle and advised him that he would no longer use the plastic heating machines and glues "due to [the] improper facility at present." Three days later, McGarigle evaluated plaintiff and found him competent in every area, but without any strengths.

On January 15, 1988, plaintiff wrote to Dr. Virginia Brinson, the Middlesex County Superintendent of Schools, "telling her who I was and what my problems were and how much trouble I was having," and asking to "be advised in advance of the date of a visitation by Dr. Coogan."

Responding to a memo from McGarigle, plaintiff wrote to McGarigle that hazardous activities in the metal shop should cease, stressing the inadequate ventilation and the resulting safety and health concerns he had. Plaintiff said that he was waiting for the results of an air quality test regarding the safety of his shop. At the end of January 1988, when plaintiff had another dispute with Papariello about air quality, Papariello said "this is your tenure year and I'm going to tell you something, you'll never see it . . . I'm done with you. You can forget about tenure."

Shortly thereafter, Guy Vander Vliet, the Assistant Superintendent, asked plaintiff: "what's the problem?" Vander Vliet ultimately said "I don't think there's any use talking any more. I'll be truthful with you, I think that maybe you should go your way and Piscataway will go the other way." The following morning, McGarigle called plaintiff into his office, was "extremely mad" and said, "I don't care what you do, you ain't coming back. There's no

tenure. You're not going to get it." Unable to contact Edelchick or Vander Vliet again, plaintiff called Gordon Moore, the Personnel Director, to ask for advice but this brought no satisfaction.

On February 22, 1988, plaintiff's doctor sent a letter to defendant explaining that "continued exposure to wood dust, smoke and fumes is detrimental and may result in an irreversible pulmonary disease." Plaintiff had "hyperactive airways disease and probable occupational asthma." Plaintiff intended to return to work immediately but on Edelchick's advice stayed home pending the air quality check. On March 2, 1988, after plaintiff had been out of work about a month, he wrote to Edelchick asking for a copy of the air quality report but received no response.

Plaintiff next heard from defendant on April 18, 1988, when he received a letter from McGarigle including his summary evaluation for the school year and explaining that he could not recommend rehiring or tenure because plaintiff was unable to perform his teaching duties. However, plaintiff asserted that he was always available to teach either without using the machines that emitted fumes or with adequate ventilation during use.

According to McGarigle, the only reason he did not recommend plaintiff for tenure was his unavailability to teach and the letter from plaintiff's doctor. McGarigle felt that he and plaintiff had a good, positive relationship during plaintiff's first two years. McGarigle denied ever mentioning tenure to plaintiff before March 1988 when he decided not to recommend plaintiff when he prepared plaintiff's annual summary evaluation. However, in his deposition, McGarigle had stated that he had another reason for not recommending him for rehiring: plaintiff complained that the shop was filthy when, according to McGarigle, he should have cleaned it up.

Plaintiff received a letter from the Board dated April 15, 1988, advising him that it had decided not to rehire him. Plaintiff appealed that decision to the Board but it rejected his appeal.

Some time after plaintiff stopped teaching, an air quality test was done in the Quibbletown metal shop. However, no machines 0 were running that day nor had been running for "a long time" before that day. According to Mark Goldberg, an industrial hygienist, an air quality test should be done "during the course of the usual activities." Goldberg also explained that a test done when the classroom is not in use is invalid. Finally, Goldberg opined that "a local exhaust ventilation system," which surrounds a machine with a hood that sucks up fumes, is essential for the injection molders and many other machines used in a metals course because these machines emit gases, fumes and dust, which, under OSHA and other professional standards, require ventilation for safety.

At the Conclusion of all the evidence before a jury, the Judge reserved decision on defendant's motion to dismiss the complaint. After a jury verdict in favor of plaintiff for compensatory damages of $60,000, the court granted the motion and dismissed the complaint.

On June 26, 1992, the Judge entered a final judgment in favor of defendant dismissing the complaint, notwithstanding the verdict.*fn2 Plaintiff's motion for a new trial was denied. No order denying plaintiff's motion for a new trial is in the record nor has the Judge ever stated any reasons 1 for the denial.

I.

Plaintiff contends that the trial Judge erred in determining that he failed to prove violations of CEPA. At the time when plaintiff was not rehired, N.J.S.A. 34:19-3*fn3 provided:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law;

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law;

(2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate of 2 public policy concerning the public health, safety or welfare or protection of the environment.

With regard to subsection a., plaintiff argues that School Principal McGarigle and Superintendent Edelchick were both supervisors to whom he made a disclosure. He cited a specific regulation, N.J.A.C. 6:22-5.2, contained in the "New Jersey Industrial Arts Education Safety Guide," and contended that under subsection a. he need not "go beyond" a supervisor with his disclosure, but must go only "to a supervisor."

As to subsection c., plaintiff contends that he proved that: (1) he refused to participate in an activity, i.e., running machines that emitted noxious fumes; and, (2) he reasonably believed that this activity was in violation of a State regulation and incompatible with a clear mandate of public policy affecting the health and safety of public school children.

Regarding plaintiff's cause of 3 action under N.J.S.A. 34:19-3a, the Judge first determined that Principal McGarigle was not a supervisor under CEPA. "Supervisor" is defined in N.J.S.A. 34:19-2d (footnote added):

[A]ny individual with an employer's organization who has the authority to direct and control the work performance of the affected employee, who has authority to take corrective action regarding the ...


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