June 27, 2007
PATRICE CARLUCCI, PLAINTIFF-APPELLANT,
THE RUGBY SCHOOL, INC., TRADING AS THE RUGBY SCHOOL AT WOODFIELD, DONALD J. DESANTO AND ROSE SNYDER, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2007
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 or under the common law." The judge additionally found that the claim was meritless.
The judge further determined that plaintiff's defamation claims failed as a matter of law. The judge concluded that plaintiff had not shown that the statements in the two memoranda were false. The judge found that, even if plaintiff could prove the statements were false, defendants would nevertheless be entitled to summary judgment because the statements related to matters of public concern, and plaintiff had not established that the statements were made with actual malice. Moreover, the judge determined that the alleged defamatory statements were subject to a qualified privilege.
The judge accordingly entered an order on December 22, 2005, granting defendants' motion for summary judgment. Plaintiff filed a motion for reconsideration on January 13, 2006. The judge heard oral argument on the motion on February 17, 2006, and denied it by order filed on April 7, 2006. This appeal followed.
Plaintiff first argues that the judge erred by granting summary judgment to defendants on her CEPA claim.
A plaintiff alleging that an employer has taken "retaliatory action" in violation of CEPA must show 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 v. McDevitt, 177 N.J. 451, 462 (2003).]
See also Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 38 (App. Div.), certif. denied, 185 N.J. 39 (2005).
CEPA does not require that a plaintiff show a law, rule, regulation, or clear mandate of public policy would be violated "if all the facts he or she alleges are true." Dzwonar, supra, 177 N.J. at 464. Rather, a plaintiff must set forth facts that would support an objectively reasonable belief that a violation has occurred. In other words, when a defendant requests that the trial court determine as a matter of law that a plaintiff's belief was not objectively reasonable, the trial court must 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. If the trial court so finds, the jury then must determine whether the plaintiff actually held such a belief and, if so, whether that belief was objectively reasonable.
Plaintiff maintains the judge erred in finding that she had not presented sufficient evidence to show that she had an objectively reasonable belief that Rugby had violated State regulations for the preparation of IEPs. We disagree.
The DOE's regulations provide in pertinent part that a meeting to develop an IEP must be held within thirty calendar days of a determination that a student is eligible for special education and related services. N.J.A.C. 6A:14-3.7(a). The IEP is developed by the IEP team, which includes the student's parent; a general education teacher; a special education teacher; the case manager; a representative of the responsible school district; other individuals with knowledge or special expertise regarding the student, at the discretion of the parent or school district; and, when appropriate, the student. N.J.A.C. 6A:14-3.7(b); N.J.A.C. 6A:14-2.3(k)2.
The DOE's regulations further provide that the IEP shall include, among other things, statements of: 1) the student's level of academic achievement; 2) "detailed measurable annual academic and functional goals"; 3) "benchmarks or short-term objectives" for meeting the needs resulting from the student's disability; 4) the "special education and related services and supplementary aids and services" that will be provided to the student; and 5) any integrated therapy services to be provided to address "the student's individualized needs." N.J.A.C. 6A:14-3.7(e).
A meeting to discuss the IEP is held "[a]nnually, or more often if necessary," and is attended by the IEP team. N.J.A.C. 6A:14-3.7(i). The IEP team considers: any lack of "expected progress" by the student towards meeting the annual goals; the student's anticipated needs; as well as information about the student including "current classroom-based assessments" and "observations of teachers and related services providers." N.J.A.C. 6A:14-3.7(j)1-5.
Here, the judge correctly found that plaintiff's objections to Rugby's procedure for preparing the IEPs were not based on an objectively reasonable belief that the procedure violated the DOE's regulations. The record shows that Snyder merely required that plaintiff prepare a draft IEP for consideration by the IEP team at the annual review meeting. Plaintiff concedes that any section of the draft IEP that she prepared was subject to review and change by other members of the IEP team. Plaintiff has not shown that Rugby's procedure violates any DOE rule regarding the preparation of IEPs.
Plaintiff asserts that the statements she was asked to include in the draft IEP were "meaninglessly vague" but if greater specificity was required, other IEP team members were free to modify the IEP. Plaintiff further asserts that the IEPs routinely included recommendations for additional schooling at Rugby; however, the IEP team members had the authority to reject any such recommendation.
We are satisfied that, in the circumstances, plaintiff's apparent belief that Rugby's procedures for preparing IEPs violated the DOE's regulations was not objectively reasonable. We therefore conclude that the judge correctly determined that plaintiff's CEPA claim failed as a matter of law and defendants were entitled to summary judgment on that claim.
We next consider plaintiff's contention that the judge erred in granting summary judgment to defendants on her common law wrongful discharge claim. The judge found that plaintiff's claim was barred by N.J.S.A. 34:19-8 and, even if not barred by that statute, plaintiff had not presented sufficient evidence to support the claim. We agree with the trial judge that plaintiff's wrongful discharge claim fails on the merits.
Here, plaintiff alleges that DeSanto had conditioned her re-employment at Rugby on the hiring of Loretta to act as her real estate broker. In a certification filed in opposition to defendants' motion for summary judgment, plaintiff states that DeSanto "strongly suggested" that she retain Loretta. However, plaintiff testified at her deposition that she first met with DeSanto in April 2002, to discuss returning to the school. Plaintiff conceded that DeSanto was happy to have her back "without any quid pro quo" but plaintiff claimed that this changed later when DeSanto found out that she was selling her house.
Thus, the only evidence supporting this allegation is plaintiff's assertion that DeSanto "strongly suggested" that she hire Loretta to act as her broker. Evidence that DeSanto "suggested" that plaintiff use Loretta as her broker is not sufficient to establish that DeSanto required plaintiff to employ Loretta as a condition of his offer of employment. Moreover, plaintiff did not execute the listing agreement with ERA until September 2002, which was several months after she was offered employment at Rugby.
Plaintiff additionally claims that she was discharged by Rugby in retaliation for discharging Loretta. Defendants deny that this is the case; however, even if plaintiff could establish a causal connection between her termination and the decision to discharge Loretta, plaintiff has not cited any clear mandate of public policy implicated by this action. A clear mandate of public policy may be shown in legislation, administrative rules, regulations, and judicial decisions. Pierce v. Ortho Pharmaceutical Corp., 84, N.J. 58, 72 (1980).
Here, plaintiff makes only vague references to 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." However, plaintiff's termination had nothing to do with "truth in selling real estate." Furthermore, as we have pointed out, the "improper linkage" complained of by plaintiff is not supported by sufficient credible evidence.
Accordingly, we conclude that plaintiff's common law wrongful discharge claim is meritless and defendants were entitled to judgment on that claim. In light of our determination, we need not address plaintiff's contention that the judge erred in finding that her claims were barred by N.J.S.A. 34:19-8.
We turn to plaintiff's contention that the judge erred in granting summary judgment to Snyder and DeSanto on plaintiff's defamation claims.
Plaintiff asserts that, in addition to criticizing her for having a student type a portion of an IEP for another student, Snyder falsely accused her of being late with the IEP for J.P.; not attending a staff meeting; failing to meet the school's standards; assisting a student in violating a school rule regarding cell phones; undermining Snyder's authority; and being unethical. Plaintiff further alleges that Snyder and DeSanto acted maliciously and therefore are not entitled to a qualified privilege with regard to the allegedly false and defamatory statements.
To prevail on a defamation claim, a plaintiff must show: "(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher." DeAngelis v. Hill, 180 N.J. 1, 12-13 (2004) (citing Restatement (Second) of Torts, § 558 (1977)). In addition, a plaintiff in a defamation action may have to show that the defamatory statements were made with "actual malice" if the statements pertain to matters of public concern. Sisler v. Gannett Co., 104 N.J. 256, 275 (1986). To meet that burden, a plaintiff must establish "that the publisher knew the statement to be false or acted in reckless disregard of its truth or falsity." Id. at 276 (quoting Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 131 (1986)). See Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149, 156-57 (2000) (holding that statements concerning a teacher's "professionalism and behavior during a school-sponsored event" were matters of public concern).
Furthermore, a qualified privilege has been recognized for the protection of the publisher's interest "'if the circumstances induce a correct or reasonable belief that (a) there is information that affects a sufficiently important interest of the publisher, and (b) the recipient's knowledge of the defamatory matter will be of service in the lawful protection of the interest.'" Gallo v. Princeton Univ., 281 N.J. Super. 134, 143 (App. Div.), certif. denied, 142 N.J. 453 (1995) (quoting Restatement, supra, § 594). The privilege may be lost if "(1) the publisher knows the statement is false or the publisher acts in reckless disregard of its truth or falsity; (2) the publication serves a purpose contrary to the interests of the qualified privilege; or (3) the statement is excessively published." Feggans v. Billington, 291 N.J. Super. 382, 394 (App. Div. 1996) (citing Williams v. Bell Tel. Labs., Inc., 132 N.J. 109, 121 (1993)).
Here, the judge found that Snyder's alleged defamatory statements were not false. The record fully supports that finding. However, if there is any doubt on that point, dismissal of the claims was nevertheless warranted. Snyder's statements touched upon matters of public concern. Rocci, supra, 165 N.J. at 156-57. Plaintiff therefore was required to show that the statements were made with "actual malice" but she did not present sufficient evidence to show that Snyder made her comments with knowledge that they were false, or with utter disregard as to whether the comments were true or false.
Moreover, Snyder's assertions regarding plaintiff were subject to a qualified privilege because they were made in furtherance of her interest in the proper performance of a teacher under her supervision. Snyder's memos were sent to other supervisory personnel who shared with her a common interest in the professionalism and competence of the teachers at the school. Plaintiff also failed to establish that Snyder or DeSanto abused the qualified privilege.
Therefore, we are convinced that the judge correctly found that plaintiff's defamation claims were without merit.
Plaintiff additionally argues that the judge erred in denying her motion to compel defendants to provide so-called Stempler authorizations to its employees. Again, we disagree.
In Stempler v. Speidell, 100 N.J. 368, 370 (1985), the plaintiff brought an action against a physician for medical malpractice and wrongful death. The defendant learned in discovery that the decedent had received medical care from other doctors and health care providers. The defendant asked the plaintiff to sign authorizations allowing the physicians and health care providers to release information to the defendant's counsel. The plaintiff agreed to authorize the release of the decedent's medical records but refused to allow any discussion of the records or the plaintiff's claim. Id. at 371. The Law Division ordered the plaintiff to execute unrestricted authorizations. Id. at 372.
The Supreme Court affirmed, noting that since the interviews by the defendant's counsel would take place in a non-testimonial context, they were not precluded by any statute or court rule. Id. at 373. The Court stated that "the formality of depositions" was not required "in every case," and noted that personal interviews "are an accepted, informal method of assembling facts and documents in preparation for trial." Id. at 382. The Court observed that the use of such interviews should be encouraged as "should other informal means of discovery that reduce the cost and time of trial preparation." Ibid.
In this matter, the judge did not abuse her discretion by denying plaintiff's application to compel defendants to issue Stempler authorizations to Rugby's employees. As the judge pointed out in her decision on the record on January 21, 2005, this matter does not involve a privilege, unlike the physician- patient privilege at issue in Stempler. In addition, there was no reason to assume that Rugby's employees would not be authorized to participate in interviews with plaintiff's attorney. The judge properly observed:
The Rugby School employees are free to make their own determination[s] [of] whether they wish to voluntarily participate in the interview[s] with plaintiff's counsel. If they choose not to do so, then the plaintiff, like any other plaintiff, . . . is required to conduct discovery as they deem appropriate.
We have considered plaintiff's other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
For the foregoing reasons, we affirm the order filed on December 22, 2005, granting summary judgment to defendants; the order entered on April 7, 2006, denying plaintiff's motion for reconsideration; and the order dated January 21, 2005, which denied plaintiff's motion to compel defendants to provide Stempler authorizations.