On appeal from Superior Court of New Jersey, Law Division, Union County, Docket Number L-1972-00.
Before Judges Petrella, Lintner *fn1 and Parker.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Patrick Cosgrove appeals from a summary judgment order that dismissed his whistle blower claim under the Conscientious Employee Protection Act (CEPA). His complaint had originally challenged several employment actions taken by the Cranford Board of Education (Board) and supervisory employees and alleged age discrimination in violation of the New Jersey Law Against Discrimination (LAD) as well as several common law claims. *fn2
On appeal Cosgrove argues that the judge erred in concluding that he failed to provide a specific law or regulation which the Board violated in connection with his CEPA claim. He argues that summary judgment was erroneously granted because there were disputed issues of fact and because he was retaliated against for utilizing a union grievance process when he complained about distribution of overtime.
Cosgrove was appointed by the Board as a substitute custodian effective March 26, 1996, at an hourly rate of $10.50. *fn3 His employment was converted to full-time as of June 10, 1997, for the balance of the 1996-1997 school year, at an annualized salary of $23,904, corresponding to Scale C-2, Step 2 of the custodial salary guide in the operative collective negotiations agreement between the Board and the Cranford Education Association.
On July 9, 1997, Cosgrove was subsequently issued another contract of employment for the 1997-1998 school year at an annualized salary of $24,490. The contract provided in pertinent part:
Employment of non-tenured personnel may be terminated without cause by either party upon a one month written notice of intent to terminate. One month's written notice of intent to terminate may be waived and/or modified by mutual consent.
In November of 1997, Cosgrove complained to his supervisor, Stokes, that he was never given the opportunity for premium overtime, i.e., Sunday overtime, for which double time is paid. Cosgrove also claimed that most of the overtime opportunities were distributed between three other custodians. Cosgrove asserts that the supervisor became angry with him for making these complaints.
Cosgrove said he was told in December 1997, by Charles Kiami, the president of his union, that he had been labeled as a "trouble maker" by Stokes. Cosgrove also stated that a supervisor custodian told him that "he would be history" if he filed a grievance. Despite these statements, Cosgrove and another custodian filed a complaint with the union. A settlement was reached requiring overtime to be distributed on a rotating basis.
After the grievance, Cosgrove claims that he was held to a higher standard than anyone else in the school district and was frequently on the receiving end of unwanted criticism, particularly from Stokes.
On April 30, 1998, a written performance evaluation covering the first ten months of the 1997-1998 school year by Stokes rated Cosgrove as "Satisfactory" in seven areas, but as "Needs Improvement" in nine areas. Nonetheless, Stokes recommended that Cosgrove be re-employed for the following school year, and that he receive a salary increment. On May 19, 1998, Cosgrove signed another contract of employment for the 1998-1999 school year, at an annualized salary of $25,531, containing the same termination clause as the previous one. On April 29, 1999, Stokes submitted a performance evaluation for Cosgrove for the first ten months of the 1998-1999 school year indicating that Cosgrove only showed improvement in one of the nine categories rated "Needs Improvement" from the prior year's evaluation, and one of the categories that had been rated "Satisfactory" in the prior evaluation was now rated "Needs Improvement". As a result, Stokes did not recommend him for re-employment for the 1999- 2000 school year.
After Cosgrove's employment ended at the conclusion of the 1998-1999 school year, he successfully found new employment with the Westfield School District as of ...