August 26, 2010
MAUREEN ROBINSON, PLAINTIFF-APPELLANT,
STATE OPERATED NEWARK PUBLIC SCHOOL DISTRICT; STATE OPERATED NEWARK PUBLIC SCHOOL DISTRICT ADVISORY BOARD; MARION BOLDEN, INDIVIDUALLY AND IN HER CAPACITY AS SUPERINTENDENT OF THE STATE OPERATED NEWARK PUBLIC SCHOOL DISTRICT; LEILA DINKINS, INDIVIDUALLY AND IN HER CAPACITY AS PRINCIPAL OF THE MALCOLM X. SHABAZZ HIGH SCHOOL, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10391-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Fisher and Espinosa.
Plaintiff Maureen Robinson, a teacher in the Newark Public Schools, filed a claim under the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, after she was transferred to another school. She appeals an order that granted summary judgment to defendants and dismissed her complaint. We affirm.
The facts, viewed with legitimate inferences drawn in favor of plaintiff, can be summarized as follows:
Plaintiff is a tenured teacher employed by the State Operated Newark Public School District (the District) to teach special education students and was assigned to Malcolm X. Shabazz High School (Shabazz) from September 2001 through December 2005. The District had a policy that required all teachers to report suspected child abuse to the Newark Police Department and the Division of Youth and Family Services (DYFS) immediately and then to inform the principal. Plaintiff testified that at a staff meeting in September 2005, defendant Leila Dinkins, the principal at Shabazz, discussed her concern that reports of abuse could have the negative effect of labeling the school as "persistently dangerous" under the No Child Left Behind Act, 20 U.S.C.A. §§ 6301 to 6578. Plaintiff testified that Dinkins instructed the teachers that they were not to contact either DYFS or the Newark Police Department without contacting her and that such calls were only to be made with her approval.
Plaintiff believed that this directive was contrary to the District's policy, and, during her time at Shabazz, she reported the vice principal for "kicking a kid [student]" and "punching a kid in the stomach." Shortly before her transfer, she again reported him for "slapp[ing] one of my kids in the face, ninth grader, special ed." Around the same time, she reported a male teacher, Paul Greaves, for sexually touching a female student. She reported these incidents to Dinkins only after informing DYFS and the police. It is undisputed that DYFS investigated each of plaintiff's allegations.
On December 19, 2005, plaintiff was involved in an altercation with Greaves.*fn1 According to plaintiff, she was conversing in the hallway with a security guard when Greaves walked between them and called in a loud voice to a student down the hall. Upset that he had purposely disrespected her, she followed Greaves into his classroom and confronted him in front of his students. She stated that Greaves blocked her from leaving the room with his body, and, while he "held [her] hostage," he insulted her. She forced her way through the door but was injured when Greaves tried to quickly close the door and pushed her with his hip.
Plaintiff met with the assistant superintendent and her union representative on December 22, 2005 to discuss the altercation she had with Greaves in front of students. Based upon her investigation, Dinkins determined that plaintiff "instigated the fight with Greaves in his classroom and in front of his students." By letter dated December 23, 2005, the assistant superintendent notified plaintiff that she was to report to the offices of the School Leadership Team II (SLT 2) until further notice.
On January 20, 2006, plaintiff was reassigned to West Side High School. It is undisputed that plaintiff was not demoted as a result of her transfer to West Side High School. She did not suffer any loss of salary or health insurance during the 2005-06 school year while she was assigned to the SLT 2 offices and West Side High School. She admitted that she did not suffer any financial loss in the 2005-06 school year other than a payroll error that was remedied within a reasonable time.
Plaintiff also admitted that she did not make any report to any local, state or federal agency about any allegations that Dinkins or defendant Marion Bolden had committed any acts in violation of any law, statute or regulation.
Plaintiff filed this action against the District and two of her former supervisors alleging seven causes of action, but stipulated to a dismissal of everything other than her CEPA claim. Defendants moved for summary judgment on the CEPA claim, which the court granted. The court reasoned that plaintiff could not meet three of the four required prongs of a CEPA claim. Specifically, the court found that: there was no credible evidence that plaintiff had engaged in a whistleblowing activity because the district required her to report instances of abuse; she had not suffered an adverse employment action because she was transferred to an identical position; and she had not rebutted the defendants' non-retaliatory reason for reassigning her. On appeal, plaintiff raises these issues:
PLAINTIFF HAS MADE A PRIMA FACIE SHOWING OF A VIABLE CAUSE OF ACTION UNDER THE NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) N.J.S.A. 34:19-1 ET SEQ.
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED WHERE MATERIAL ISSUES OF FACT EXIST REGARDING THE PLAINTIFF'S CEPA CLAIM.
After carefully reviewing the briefs and record, we are satisfied that neither of these arguments has merit.
When reviewing a grant of summary judgment, we employ the same standards used by the trial court, which grants summary judgment if the record shows that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review issues of law de novo and accord no deference to the motion judge's conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
CEPA bars employers from retaliating against employees who disclose "to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or rule or regulation . . . [or] is fraudulent or criminal." N.J.S.A. 34:19-3(a). The statute was designed to "protect employees who blow the whistle on illegal or unethical activity committed by their employers or co-employees." Estate of Roach v. TRW, Inc., 164 N.J. 598, 609-10 (2000); Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 358 (App. Div.), appeal dismissed, 177 N.J. 217 (2003). Like the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, CEPA is "'remedial' legislation [that] should be construed liberally to effectuate its important social goal." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994).
To support a CEPA claim, an employee must show
(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. 34:19-3; (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 Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999).
N.J.S.A. 34:19-2(e) defines "retaliatory action" as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." Because plaintiff was not discharged, suspended, or demoted, her claim of "retaliatory action" must rest upon proof that she suffered some "other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e).
Such an action need not be the functional equivalent of a demotion or suspension, but it must at least bear upon the essence of the employment relationship. Beasley v. Passaic County, 377 N.J. Super. 585, 608 (App. Div. 2005). The "withdrawal of benefits formerly provided to an employee may be found in some circumstances to constitute an adverse employment action." Maimone v. City of Atl. City, 188 N.J. 221, 236 (2006). The Supreme Court has also opined that "many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct" may constitute an adverse employment action. Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003).
Nonetheless, minor sanctions or personal distresses are insufficient; to qualify as a retaliatory action, the allegedly wrongful conduct must cause "lasting prejudice." Hancock, supra, 347 N.J. Super. at 360 (citing Kadetsky v. Egg Harbor Twp. Bd. of Educ., 82 F. Supp. 2d 327, 340 (D.N.J. 2000)). The "adverse employment action" is limited to "completed . . . personnel actions that have an effect on either compensation or job rank." Klein v. Univ. of Med. & Dentistry, N.J., 377 N.J. Super. 28, 45-46 (App. Div.), certif. denied, 185 N.J. 39 (2005). Further, CEPA was not enacted in order to "assuage egos or settle internal disputes at the workplace." Klein, supra, 377 N.J. Super. at 45. Consequently, actions that "result [only] in a bruised ego or injured pride on the part of the employee," are not covered. Beasley, supra, 377 N.J. Super. at 607.
In Hancock, this court found that neither temporarily assigning police officers to check pole lamps nor sending the officers home to retrieve their required body armor qualified as retaliatory actions, despite the fact that they were not normally assigned such tasks and the body armor requirement was never enforced against other officers. 347 N.J. Super. at 360.
We reasoned that such actions did not affect "their respective compensation or rank" and thus did not go to the essence of the employment relationship. Ibid.; see also El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 170 (App. Div. 2005) (relying on CEPA caselaw to determine that "unfavorable evaluation[s], unaccompanied by a demotion or similar action" or a job reassignment with no corresponding reduction in wages or status are not retaliation covered by the LAD).
Even construing the facts in the light most favorable to plaintiff, defendants' transfer of plaintiff had no effect on the essence of her employment relationship. She admitted that she remained tenured after the transfer, was paid the same salary, kept her health insurance benefits and sick days, and was assigned the same teaching responsibilities. Further, the evidence does not reflect a history of numerous minor incidents that can be construed as a pattern of retaliatory conduct. Thus, plaintiff has failed to present evidence that creates a genuine issue of fact that she suffered an adverse employment action by being transferred.
Although plaintiff's counsel conceded before the trial court that her time at the SLT 2 did not constitute an adverse employment action because of its temporary nature, she now argues that this month-long assignment constituted an adverse employment action. We note that the trial court was entitled to rely on counsel's concession. See Hammer v. Twp. of Livingston, 318 N.J. Super. 298, 303 (1999) (refraining from addressing an issue due to a concession of counsel); Lundgren v. Eustermann, 370 N.W.2d 877, 881 n.1 (Minn. 1985); Reynolds v. White, 128 N.Y.S. 529 (App. Div. 1911). However, this argument lacks merit because plaintiff enjoyed the exact same rights and responsibilities following her transfer as she had at Shabazz. Therefore, affording plaintiff all reasonable inferences, one month at SLT 2 was but a minor sanction that was not related to the essence of her employment. See Hancock, supra, 347 N.J. Super. at 360; El-Sioufi, supra, 382 N.J. Super. at 170. The facts here, as admitted by plaintiff, are therefore plainly distinguishable from Nardello v. Township of Voorhees, 377 N.J. Super. 428 (App. Div. 2005) and Mancini v. Township of Teaneck, 349 N.J. Super. 527, 564-65 (App. Div. 2002), aff'd as modified, 179 N.J. 425 (2004), in which each plaintiff was effectively demoted by the changes in circumstances of employment.
Because we find that plaintiff's claim fails based on the third prong of the CEPA analysis, we need not consider whether she presented sufficient evidence to withstand summary judgment as to the other prongs of her CEPA claim.