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London v. Pleasantville Board of Education


June 16, 2010


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2288-08.

Per curiam.


Submitted December 8, 2009

Before Judges Grall, Messano and LeWinn.

Plaintiff appeals from the dismissal of her complaint against the Pleasantville Board of Education (Board) and others, which sought damages for alleged violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. We affirm.


Plaintiff was hired by the Board in 1977 as an English teacher and Reading Specialist. In 2000 she was promoted to the position of Supervisor of Language Arts Literacy at the Pleasantville Middle School. Beginning in or about July 2007, plaintiff engaged in a series of disputes with the Superintendent, Dr. Clarence Alston, Assistant Superintendent, Gregory Allen, and the Interim Human Resources Director, Joan Robinson, concerning two personnel decisions.

Specifically, plaintiff criticized the Board's decision to change the title of a particular teacher, Monica Foti, to "Language Arts Literacy Facilitator[,]" a position plaintiff claimed Foti was not qualified to hold, adding that the Board's decision was "a clear example of an unfair and discriminatory hiring practice . . . ." Plaintiff also complained that the manner in which the Board appointed Robinson as Interim Human Resources Director violated established policy and procedures. In the course of these disputes, plaintiff sent copies of her allegations and criticisms to John Deserable, the state-appointed fiscal monitor for the Pleasantville School District.

In August 2007, plaintiff received a letter from Alston, with copies to Allen, Robinson and Deserable, entitled "Dysfunctional Behavior," referencing her communications with Deserable. Plaintiff met with Alston, Allen and Robinson on August 22, 2007, at which time she was questioned about her motives for communicating her complaints to Deserable.

Following that meeting, the Board voted to change plaintiff's assignment from Supervisor of Language Arts Literacy to Supervisor of Social Studies, a decision which plaintiff claimed harmed her by "removing [her] from frequent, if any, contacts with State officials [because] Social Studies, unlike Language Arts Literacy, is not a [s]tate tested content area."

The Board also voted to suspend plaintiff without pay; during that period of suspension, plaintiff's office was moved to another location which, she claimed, caused her "much humiliation . . . ." Her pay was docked three times. The Board also gave her a negative mid-year evaluation and implemented a Staff Assistance Plan, which she claimed was in retaliation for her complaints. The Board also posted its decision to withhold plaintiff's incremental salary increase on its public agenda and on its website, an action which plaintiff considered "public humiliation."

On July 9, 2008, plaintiff filed her CEPA complaint against the Board, all individual Board members, Alston, Allen and Robinson; she also named Deserable, Lucille E. Davy, Commissioner of the Department of Education (DOE), and the State of New Jersey as defendants. Plaintiff attempted to serve her original complaint upon Davy on July 23, 2008, at the Office of the Atlantic County Superintendent of Schools in Mays Landing.

Plaintiff's only allegation against Deserable was that "throughout the 2007-2008 school year, Mr. Allen, Dr. Alston, Joan Robinson, and on one occasion, Mr. Deserable, cluttered the plaintiff's personnel file with a proliferation of negative memos and other information that have effectively damaged the plaintiff's excellent academic record . . . ." Her complaint did not state any cause of action against Davy.

On September 15, 2008, having received no responsive pleadings from Deserable or Davy, plaintiff sought entry of default against them. On September 17, 2008, plaintiff filed a request for entry of judgment of default against Deserable and Davy seeking damages of $5,805,098.

On that same date, Davy and the State of New Jersey filed a motion to dismiss the complaint for failure to state a cause of action pursuant to Rule 4:6-2(e). On or about September 24, 2008, Davy filed a motion to set aside the entry of default against her.

Following oral argument on October 10, 2008, the court granted both motions. The court found that Davy was not in default for failure to answer, both because she was "never properly served with the summons and complaint, as required by [Rule] 1:5-2, and because the court never signed the order ostensibly entering default against her."

In dismissing plaintiff's complaint against the State of New Jersey and Davy pursuant to Rule 4:6-2(e), the court noted:

[A] prima facie CEPA claim must arise from an employer-employee relationship. Accordingly, plaintiff must demonstrate that defendants Davy and the State were her employers at the time of the alleged CEPA violation.

Under a plain reading of [N.J.S.A.] 18A:10-1, 18A:11-1 and the settled case law, school district workers are employed by the school district, not the State of New Jersey or the Commissioner of Education. Plaintiff concedes that she was an employee of the Pleasantville School District at all times relevant to this action. Plaintiff cannot therefore establish an employer-employee relationship between herself and the [S]tate defendants.

The court determined that Deserable "must be considered an employee of the Pleasantville School District[,]" citing N.J.S.A. 18A:7A-55(d), which provides that "[f]or purposes of the 'New Jersey Tort Claims Act,' N.J.S.[A.] 59:1-1 et seq., the State monitor shall be considered a state officer, but for all other purposes the State monitor shall be considered an employee of the district." Because plaintiff had "brought a CEPA claim, not a claim falling under the Tort Claims Act," the court concluded that "neither Davy nor the State of New Jersey can be held vicariously liable for the acts or omissions of Deserable as they relate to plaintiff in this matter."

On or about October 8, 2008, the Pleasantville defendants filed a motion to dismiss the complaint and/or for summary judgment. Defendants contended that any adverse employment acts against plaintiff were due to her insubordination toward the Superintendent, Assistant Superintendent and the Board.

In response, plaintiff filed a motion and order to show cause to stay proceedings pending disposition of her motion to this court for leave to appeal the orders dismissing her complaint against Davy and the State of New Jersey. The trial court denied plaintiff's request, as this court denied her motion for leave to appeal. Plaintiff did not otherwise oppose the motion filed by the Pleasantville defendants.

After hearing oral argument on November 7, 2008, the court granted summary judgment to defendants and issued a written decision. The court noted that the conduct which triggered defendants' actions consisted of plaintiff's complaints that

(1) an allegedly unqualified teacher was promoted to the title of Language Arts Literacy Facilitator; and (2) Joan Robinson was awarded the position of Interim Director of Human Resources "'without regard or adherence to any employment process.'"

The court analyzed the statutory standards for establishing impermissible retaliatory action under CEPA, and concluded that while plaintiff may have believed that the Board's actions . . . were against the law and/or public policy, the record as a whole fails to demonstrate the reasonableness of such a belief. Nor can plaintiff "articulate a clear mandate of public policy which the employer's conduct has violated . . . ." At oral argument, [p]laintiff could not cite an education statute or administrative regulation which she believes was violated by the [d]efendant[s]. Accepting everything she posits as true, there simply are no facts to support a CEPA claim.

Specifically with regard to the change in Foti's job title, the court noted that the "Board acted in full compliance with the broad powers granted it by" N.J.S.A. 18A:27-4, which entitles the Board to promulgate rules "governing the employment, terms and tenure of employment, promotion and dismissal, and salaries and time and mode of payment thereof of teaching staff members for the district . . . ." Regarding Robinson's appointment as Interim Director of Human Resources, the court cited Bd. of Educ. of N. Bergen Twp. v. N. Bergen Fed'n of Teachers, 141 N.J. Super. 97, 103 (App. Div. 1976), for the proposition that the Board's decision whether "to select candidates from either within or without the system involves major educational policy and as such must be considered a managerial prerogative."

Concerning plaintiff's claims related to her suspension, docked pay and withheld salary increment, the court noted that she had "failed to exhaust the administrative remedies provided her under the district's collective bargaining agreements[,]" which "clearly spell[] out . . . the four-step grievance procedure . . . ." Rather, the court noted, plaintiff "opted to file the present lawsuit . . . ."

Deserable thereafter filed a motion to vacate default against him and to file an answer, and a second motion to dismiss the complaint and/or for summary judgment. In two orders entered on January 9, 2009, the court granted both motions. The court first determined that "the Board was not aware of its obligation to defend Mr. Deserable until after the court's decision of October 10 . . . ." The court noted that it had "previously determined as a matter of law that plaintiff's claims against the Board . . . defendants fail to articulate a prima facie CEPA claim[,]" and concluded that "[b]ecause defendant Deserable must be considered a Board employee for the purposes of plaintiff's complaint, plaintiff's claims against him are equally deficient."


On appeal, plaintiff raises fourteen claims of error, which can be distilled into the following issues: (1) whether the trial court properly granted Davy's motion to set aside the entry of default; (2) whether the trial court properly dismissed plaintiff's complaint against the State of New Jersey, Davy and Deserable for failure to state a claim upon which relief can be granted; and (3) whether the trial court correctly granted the Pleasantville defendants' motion for summary judgment dismissing her complaint. Having reviewed these contentions in light of the record and controlling legal principles, we conclude they are without merit. We affirm substantially for the reasons stated by Judge Nelson C. Johnson in his written decisions supporting each of his orders. R. 2:11-3(e)(1)(A). We add the following comments.

An entry of default may be set aside "[f]or good cause shown . . . ." R. 4:43-3. Our standard of review of an order vacating the entry of default is whether the trial court properly exercised its discretion. O'Connor v. Altus, 67 N.J. 106, 129 (1975). Here, the trial court addressed the merits of the default issue before dismissing the complaint against Davy and the State. As discussed below, we are satisfied that the court properly dismissed the complaint against these defendants under Rule 4:6-2(e). Accordingly, we need not address the default issue.

Rule 4:6-2(e) provides for dismissal of a claim "where the factual allegations are palpably insufficient to support a claim upon which relief can be granted." Rieder v. State Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). See Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739 746 (1989) ("In reviewing a complaint dismissed under Rule 4:6-2(e) our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint.").

For CEPA purposes, an employee is defined as "any individual who performs services for and under the control and direction of an employer for wages or other remuneration." N.J.S.A. 34:19-2(b). Thus, neither Davy nor the State of New Jersey stands in an employer-employee relationship with plaintiff.

The statute pertinent to defining that relationship here is N.J.S.A. 18A:10-1, which provides that "[t]he schools of each school district shall be conducted, by and under the supervision of a board of education, which shall be a body corporate . . . ." We have recognized that "[i]n New Jersey[,] school districts . . . are . . . local governmental units, governed by a board of education." Botkin v. Mayor and Borough Council of Westwood, 52 N.J. Super. 416, 425 (App. Div.), appeal dismissed, 28 N.J. 218 (1958). Plaintiff's employer is the Pleasantville School District, not the State of New Jersey or the Commissioner of Education. Thus her CEPA complaint against these defendants was legally deficient and warranted dismissal pursuant to Rule 4:6-2(e).

We next consider plaintiff's challenge to the grant of summary judgment dismissing her complaint against the Pleasantville defendants. When reviewing an order granting summary judgment, we apply the same standards that are applied by the trial court when ruling on a motion seeking that relief. Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Stoffels v. Harmony Hill Farm, 389 N.J. Super. 207, 209 (App. Div. 2006). Summary judgment may be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

With that standard in mind, we consider the statutory requirements for maintaining a CEPA action and the trial court's application of those requirements in this case.

CEPA prohibits an employer from taking "any retaliatory action against an employee" for engaging in the following conduct:

(a) Disclos[ing], or threaten[ing] to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any . . . employee . . . of the employer . . . ; or

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any . . . employee . . . of the employer . . . .

(c) Object[ing] to . . . any . . . policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . .;

(2) is fraudulent or criminal . . . . ; or

(3) is incompatible with a clear mandate of public policy concerning public health, safety or welfare . . . . [N.J.S.A. 34:19-3(a), (c).]

As the trial court concluded, plaintiff failed to identify "a law, or a rule or regulation promulgated pursuant to law, . . . or . . . a clear mandate of public policy" that she "reasonably believe[d]" the Pleasantville defendants had violated in their personnel decisions affecting Foti and Robinson. N.J.S.A. 34:19-3(c).

[T]he sensible meaning of CEPA is that the objecting employee must have an objectively reasonable belief, at the time of objection . . . , that such activity is either illegal, fraudulent or harmful to the public health, safety or welfare, and that there is a substantial likelihood that the questioned activity is incompatible with a constitutional, statutory or regulatory provision, code of ethics, or other recognized source of public policy. [Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193 (1998).]

Such a showing is essential to establish a prima facie CEPA claim. See Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). Therefore, the grant of summary judgment to the Pleasantville defendants was proper.

With respect to Deserable, as the trial court noted, he "must be considered a Board employee for the purposes of plaintiff's complaint . . . ." Thus, plaintiff's claim against Deserable was "equally deficient[]" in failing to articulate a CEPA violation, and was properly dismissed under Rule 4:6-2(e).

Finally, we reject plaintiff's assertion that the trial court demonstrated "unequal treatment" of the litigants because she was interrupted throughout the hearing on October 10, 2008. Our review of that transcript convinces us that the court was simply trying to have plaintiff answer the pertinent questions put to her regarding the merits of her allegations. Plaintiff's failure to do so, and her constant diversions into irrelevant arguments, compelled direction from the court.



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