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Martucci v. Board of Education of Freehold Regional High School Dist.

January 10, 2008

JOHN A. MARTUCCI, PLAINTIFF-APPELLANT,
v.
BOARD OF EDUCATION OF FREEHOLD REGIONAL HIGH SCHOOL DISTRICT, HAROLD J. WASSER AND PATRICIA EMMERMAN, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-1315-03. Stuart J. Moskovitz argued the cause for appellant.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 27, 2007

Before Judges Coburn, Fuentes and Chambers.

Plaintiff, John A. Martucci, appeals from the summary judgments entered on July 10, 2006, dismissing the complaint in its entirety. We affirm.

Plaintiff, a former tenured Administrative Supervisor in the defendant Freehold High School District ("School District"), brought this lawsuit asserting claims against defendants for defamation and violations of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -8. Defendant Harold Wasser is the Superintendent of the School District. Defendant Patricia Emmerman is the Assistant Superintendent of the School District. At the close of discovery, defendants moved for summary judgment and their motions were granted by orders dated July 10, 2006. In this appeal, plaintiff addresses the dismissal of the CEPA claims only.

Plaintiff contends that he was harassed and improperly treated by the defendants because he had provided information to the Attorney General's Office in 2000, in conjunction with that Office's investigation of Wasser for theft of services in the School District. Plaintiff also contends that the harassment and retaliation increased after he signed a letter dated March 8, 2000, along with nine other employees, complaining to the Attorney General's Office that Wasser was engaging in harassment and retaliation. In response to the letter, the Board retained special counsel to conduct an investigation, but plaintiff declined to provide a written statement as requested by special counsel. In August 2001, the Attorney General's investigation of Wasser was closed without any charges being brought.

Specifically, plaintiff complains that in retaliation for his whistleblower activities, defendants assigned him to work in the Manalapan High School for half of the day, thereby inhibiting his ability to complete his other work; gave him demeaning and menial duties, to wit, extensive cafeteria duty and on one occasion directing him to count the number of empty classrooms and examine the condition of the stage lighting panels; required him to support his sick day requests with doctors' notes; assigned him to a department to observe sixteen of nineteen teachers when there was already a supervisor for the department; relieved him of his duty to manage the "No Child Left Behind" grant; provided him with negative reviews; and gave him raises that were less than those he received in the past and less than others received. He also alleges that Wasser demanded that another employee file sexual harassment charges against plaintiff, although the employee refused to do so, and that Emmerman fabricated a complaint against him, namely that he left school early one day. He contends that the defendants made unwarranted criticisms of his work, and asked him to undertake tasks in circumstances that he was sure to fail. Defendant voluntarily resigned from his position with the district on June 27, 2003, and accepted a position as a high school vice-principal with another district. No claim of constructive discharge has been asserted.

Defendants have come forward with non-discriminatory explanations for the steps taken. For example, all of the work plaintiff was asked to complete fell within his job title. Administrators have cafeteria duty; indeed, plaintiff has some cafeteria duty in his current job. While plaintiff acknowledges that he continued to receive raises, he complains that the size of his raises fell and that others received larger raises. However, the record indicates that plaintiff was the highest paid of the district's four Administrative Supervisors despite the fact he had less seniority than others; in the 2002-2003 school year he earned $112,000, which was $19,000 more than one colleague and $23,000 more than two other colleagues; in 2003, he earned $113,000, which was $17,000 more than his three peers. Further, the raises plaintiff received were consistent with the salary guide applied to other departments as well and designed to help assure that people in comparable positions would be paid commensurate with their experience. The request for a doctor's note occurred on one occasion due to six absences that extended weekends, and this was consistent with district practice. Plaintiff was relieved of his responsibility for the "No Child Left Behind" grant because he had failed to file the grant application by the required deadline and as a result, the District lost $60,000 in funding. Further, a number of the actions plaintiff claims were retaliatory were decisions made by plaintiff's immediate supervisor, Dr. Suzanne Koegler, with no input from defendants.

Plaintiff raises the following issues on appeal:

POINT I

THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACT PRECLUDE THE GRANTING OF SUMMARY JUDGMENT AGAINST PLAINTIFF.

POINT II

DEFENDANTS HAVE VIOLATED THE CONSCIENTIOUS EMPLOYEE PROTECTION ACT BY RETALIATING AGAINST PLAINTIFF FOR WHISTLEBLOWING WITH RESPECT TO MATTERS HE LEGITIMATELY BELIEVED ...


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