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Brown v. New Brunswick Board of Education

March 20, 2009


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2310-05.

Per curiam.


Argued December 2, 2008

Before Judges Wefing, Parker and LeWinn.

Plaintiff Fred Brown appeals from an order entered on December 14, 2007 granting summary judgment in favor of defendants New Brunswick Board of Education (Board) and its superintendent, Richard Kaplan. We affirm.


Plaintiff was the principal of the Alternative High School in New Brunswick. At a PTA meeting on February 2, 2005, plaintiff made certain inappropriate statements regarding the treatment of female students by male students. In answers to interrogatories, plaintiff claimed he told the audience that his greatest challenge was the treatment of his young female students. The young men did not treat them with dignity and respect and commonly referred to them as bitches and whores. Plaintiff reiterated that negative radio and television programs were demeaning to the females in general.

Plaintiff claims that his statements were taken out of context by the superintendent and he was improperly reprimanded for them the next day.

On February 3, 2005, the same day he received the reprimand for his comments at the PTA meeting, plaintiff receive a second reprimand for failing to submit his school budget timely and telling the superintendent "not to blow a gasket" when the superintendent called him about it. The second reprimand stated that plaintiff was in dereliction of his duties and "demonstrated a severe lack of administrative care and due diligence." Plaintiff claimed he submitted the budget by e-mail before the January 19, 2005 due date, but he could not document that claim.

Plaintiff maintained that the two reprimands demonstrated a hostile work environment purposely created by the superintendent to pressure plaintiff and other senior employees to retire. After the superintendent declined to remove the two reprimands from plaintiff's file in response to his request, plaintiff contacted his collective bargaining unit, the New Brunswick Leadership Association, about filing a grievance.

On March 16, 2005, plaintiff filed a Level Three grievance with the Board, claiming that the reprimand for his inappropriate language at the PTA meeting was "without any basis [in] fact." He further claimed that the reprimand for failure to file the budget timely was unfounded because prior to the January 19, 2005 due date, he sent an e-mail to the business administrator in which "he indicated what increases he would need in his 2005-2006 school budget." He did not, however, claim to have e-mailed the budget by the due date, as he had earlier. In the grievance, plaintiff sought to have the Board remove the two letters of reprimand from his file. Plaintiff withdrew the grievance on May 17, 2005.

On March 17, 2005, however, the superintendent had advised plaintiff that he was suspended with pay for "just cause." Plaintiff's suspension was concluded and he returned to work on April 4, 2005.

Plaintiff filed his complaint on March 30, 2005, alleging that (1) he was suspended on March 17 in retaliation for filing the grievance on March 16, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; (2) the retaliatory conduct was "designed to intimidate, harass and otherwise cause injury to the plaintiff and to severely adversely alter conditions of his employment;" and (3) defendants' conduct was "contrary to the clearly established public policy of the State of New Jersey."

In rendering its decision on defendants' summary judgment motion, the trial court noted that "[i]n order to have a violation of CEPA you have to have some whistle-blowing activity." The court found that plaintiff's personal problems with the superintendent did not amount to whistle-blowing under CEPA, noting that even if the animus between [the superintendent] and [plaintiff] had something to do with the fact that [plaintiff] went to the Board of Education and obviously no superintendent of schools wants to have people, his employees complain about him to the Board of Education, that's obvious, nobody likes that. And -- and it may have affected the fact that he -- the way he acted by suspending [plaintiff]. That doesn't mean that there is a violation of the Conscientious Employee Protection Act . . . . [T]he facts in this case are very simple. You have the two letters which were . . . dealing . . . with the use of some terminology that apparently his students were using . . . that's not appropriate in ...

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