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Kommendant v. Diocese of Trenton

April 13, 2010


On appeal from the Superior Court of New Jersey, Monmouth County, Law Division, Docket No. L-3226-06.

Per curiam.


Submitted October 27, 2009

Before Judges Skillman and Gilroy.

Plaintiff Aado Edward Kommendant appeals from that part of the Law Division's September 12, 2008 order granting summary judgment to defendants St. John Vianney High School, Joseph Deroba and Kenneth Szyarto.*fn1 We affirm.


St. John Vianney High School (SJVH) is located in Holmdel Township. Plaintiff is a former teacher and varsity girls' softball coach of SJVH. Defendant Joseph Deroba is the school's principal; defendant Kenneth Szyarto is the school's athletic director; and defendant David Tuschmann, a corporal on the Holmdel Township Police Department, is the school's resource officer.

On July 10, 2006, plaintiff filed a four count complaint against the Diocese of Trenton, Bishop John M. Smith, SJVH, Deroba and Szyarto, alleging wrongful discharge in violation of public policy (count one); retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, (count two); breach of the covenant of good faith and fair dealing (count three); and intentional interference with his prospective economic advantage (count four). On August 30, 2007, plaintiff filed a motion seeking leave to file an amended complaint to not only name Tuschmann as a defendant, but also to include additional causes of action alleging a violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, (count five); malicious prosecution (count six); abuse of process (count seven); and a violation of his civil rights, contrary to 42 U.S.C.A. § 1983 (count eight). On September 20, 2007, the court entered an order granting the motion; however, plaintiff consented to the court dismissing the CEPA claim in count five. Plaintiff filed the amended complaint on October 23, 2007.

On February 15, 2008, the trial court granted Tuschmann summary judgment. On September 12, 2008, the court entered an order supported by an oral decision granting summary judgment to the remaining defendants.

Plaintiff began employment with SJVH as a freshman softball coach in 1993, and became the varsity girls' softball coach in 1998. SJVH also employed plaintiff as a substitute teacher until the end of the 2003 spring semester.

During the summers, plaintiff also coached a girls' softball team comprised mainly of SJVH's softball team players. The summer team raised money to pay for uniforms, equipment and a portable field fence. Plaintiff intended to use the fence for both the summer team and the SJVH team.

SJVH permitted sports teams to raise funds for items not included in the school's annual athletic budget; however, all raised funds were to be turned over to the school and reported in the school's accounting system. Coaches could purchase items for their teams via a purchase order initialed by the athletic director and signed by the principal.

On May 20, 2003, plaintiff complained to Szyarto concerning disparity in treatment between boys and girls' athletics programs, specifically, as it affected the girls' softball teams. In early 2004, Deroba asked plaintiff to turn in all funds raised by the softball teams to the school's bookkeeper. After plaintiff turned in only $65, Deroba requested that plaintiff provide an accounting of the funds collected. Plaintiff's accounting showed that he had purchased the portable field fence in February 2004 without a pre-approved school purchase order.

Following the 2004 softball season and after several occurrences of vandalism to SJVH's athletic facilities and equipment, plaintiff removed the fence and stored it at the home of one of his players for safekeeping, without notifying Deroba. Deroba demanded that plaintiff return the fence; however, plaintiff refused.

On June 9, 2004, Deroba instructed the school secretary to prepare a letter for his personal delivery to plaintiff demanding that plaintiff return the fence, and advising that if he failed to comply, "the incident will become a police matter." Deroba delivered the letter to plaintiff in the presence of Tuschmann. On June 24, 2004, Deroba advised Tuschmann that plaintiff had not returned the fence. Tuschmann filed a police report of the incident, indicating that he would file a formal complaint for theft against plaintiff with the Holmdel Township Municipal Court.

On June 21, 2004, plaintiff filed a complaint with the Office of Civil Rights, United States Department of Education, New York, asserting the existence of inequities at SJVH between the male and female athletic programs in violation of Title IX of the Education Amendments of 1972. 20 U.S.C.A. § 1681 to § 1688. Specifically, plaintiff complained of "a great disparity" in the amounts that "coaches of female sports are paid as opposed to their counterparts that coach male sports"; the condition and location of the boys' and girls' athletic fields; and the distribution of school donations to the boys' baseball program and the girls' softball program. On July 20, 2004, the Office for Civil Rights sent plaintiff a letter advising that the agency was closing his complaint against SJVH because "the School does not receive financial assistance from the Department, nor is the School a public school." In the interim, on June 30, 2004, Tuschmann filed a complaint-summons against plaintiff in the Holmdel Township Municipal Court for theft of the fence.

On July 8, 2004, Deroba informed plaintiff that the school did not intend to renew his employment contract for the upcoming school year. As a condition for receiving his last paycheck, Deroba again demanded plaintiff return the fence. Plaintiff complied, and also handed Deroba a check payable to SJVH in the amount of $359.50, representing funds raised by the softball team. At the time Deroba tendered plaintiff his last paycheck, he requested plaintiff return the girls' softball team trophies that were in his possession. However, upon plaintiff's request, ...

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