On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-3919-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Yannotti and Messano.
Plaintiff Patrice Carlucci brought this action against defendants The Rugby School, Inc. (Rugby), Donald J. DeSanto (DeSanto), and Rose Snyder (Snyder), asserting a claim of discriminatory retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; a common law claim for wrongful termination; and claims for defamation. Plaintiff appeals from an order filed on December 22, 2005, granting summary judgment in favor of defendants, and an order filed on April 7, 2006, denying her motion for reconsideration. Plaintiff also appeals from an order entered on January 21, 2005, which denied her motion to compel defendants to authorize Rugby's employees to participate in informal interviews by plaintiff's counsel. For the reasons that follow, we affirm.
Rugby is a private school for students who require special education and related services. In the time relevant to this action, DeSanto was the executive director of the school, and Snyder was the school's principal.*fn1 Plaintiff was employed by Rugby as a teacher from September 1987 to February 2001, when she took a medical leave. In July 2001, plaintiff gave birth to triplets. She returned to the school in September 2002 to teach grades nine through twelve. Rugby terminated plaintiff's employment effective February 6, 2003.
In her complaint, plaintiff alleges that she was fired for complaining about Rugby's procedures for preparing an individualized education program (IEP) for J.P., one of Rugby's students. Plaintiff claims that under regulations adopted by the New Jersey Department of Education (DOE), each student in a special education program must be reviewed by a Child Study Team (CST), and the members of the team are supposed to participate in writing various sections of the IEP.
Plaintiff asserts that in November 2002, she submitted a partially completed IEP for J.P. Plaintiff states that she had completed her section of the IEP "but it lacked entries by the other members of the" CST. Snyder allegedly told plaintiff that the IEP she had prepared was incomplete and unprofessional, and instructed plaintiff to complete the IEP. Plaintiff says that she objected to filling out the entire report and told Snyder that the law required "several people" to complete the IEP, and requiring a teacher to fill out most of the form was contrary to law and the applicable DOE regulations.
Snyder allegedly rejected plaintiff's assertions and told her that she had to complete most of the IEP. Plaintiff alleges that after she complained about Rugby's procedure for preparing the IEP, Snyder subjected her to retaliation which included: criticizing her for having one student type a portion of an IEP for another student; falsely complaining that an IEP had not been delivered on time; falsely asserting that plaintiff had acted unethically; writing an "unfavorable and unfair" report that stated that plaintiff could not control an unruly student; and writing a "highly critical" and allegedly false memorandum which stated that plaintiff had acted inappropriately and contrary to the school's protocol in her handling of an incident involving a student's cell phone. Plaintiff asserts that she was wrongfully terminated under the pretext that her performance was poor; the IEP "issue" had not been resolved; and the "cellular phone issue" remained.
Plaintiff further alleges that in June 2002, she decided to sell her home and DeSanto "strongly recommended" that she retain his wife Loretta DeSanto (Loretta) to act as her broker. Loretta was licensed as an authorized representative of a realtor, ERA Advantage Realty (ERA). Plaintiff retained Loretta to find a buyer for her home. According to plaintiff, Loretta presented a listing agreement for a one-year period. Plaintiff objected to such a long term and asked for a three-month listing. Loretta said that such a short-term was "unheard of" and plaintiff agreed to the longer term that Loretta had proposed. It appears that plaintiff's home did not sell, and Loretta did not show the house to any prospective buyers.
In October 2002, plaintiff sought to discharge Loretta and ERA, claiming that they had described her house in "an erroneous and ineffective way" in a document sent to other realtors for distribution to potential purchasers. Plaintiff contacted the county Board of Realtors (Board) and complained about the description of her property that Loretta and ERA had disseminated. The Board took no action but Loretta and ERA agreed to release plaintiff from the listing agreement. Plaintiff claims that DeSanto began "to have resentment" towards her after she discharged Loretta.
Plaintiff further claims that DeSanto acted unlawfully in "conditioning" his offer of employment on the hiring of Loretta to act as her broker. Plaintiff contends that DeSanto terminated her employment at Rugby because she discharged Loretta. Plaintiff maintains that DeSanto's retaliation was incompatible with a clear mandate of public policy concerning the proper representation of home sellers by a realtor; the "use of truth in selling real estate"; and "the desirability of correcting an improper linkage of [a] teaching job with the retention of the hirer's spouse to sell a house."
Plaintiff additionally alleges that she was defamed by two memos written by Snyder. In the first memo, dated November 12, 2002, Snyder allegedly stated that plaintiff acted unethically in having a student type portions of an IEP for another student; and failed to adhere to ethical standards of confidentiality. In the second memo, dated January 31, 2003, Snyder allegedly made false statements about an incident in which a student brought a cell phone to school. Plaintiff claims that DeSanto told Snyder to write both memos and ratified them. Plaintiff also claims that Snyder and DeSanto published and distributed the memos, knowing that the statements contained therein were false, and in doing so, acted with malice.
Following discovery, defendants moved for summary judgment. The judge heard oral argument on the motion on December 2, 2005, and decided to grant the motion for reasons placed on the record on December 22, 2005. The judge concluded that plaintiff's CEPA claim failed because she did not have an objectively reasonable belief that Rugby violated the DOE's regulations on preparing IEPs. The judge noted that plaintiff had only been asked to prepare a draft IEP, which was subject to review and change by the IEP team. The judge observed that plaintiff "can point to nothing in the [administrative] code which prohibits preparation of a draft IEP form to be considered at the annual IEP meeting attended by the proper parties."
The judge also concluded that plaintiff's common law wrongful termination claim was barred by N.J.S.A. 34:19-8. The statute provides that institution of an action under CEPA "shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation ...