On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2605-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 22, 2010
Before Judges Cuff, Sapp-Peterson, and Simonelli.
Plaintiff Terry Hester, the former Director of Facilities/Operations for defendant Winslow Township Board of Education (Board), appeals from an order granting the Board's motion for summary judgment and dismissing his complaint in which he alleged his termination violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.*fn1
Plaintiff also appeals from the order denying his motion for reconsideration. Finding that the various complaints filed by plaintiff, including the civil complaint alleging various causes of action founded on plaintiff's claim that he was a victim of reverse discrimination, could be considered whistle-blowing events, we reverse.
A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, we must apply the standard articulated in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995):
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Therefore, we must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Brill, supra, 142 N.J. at 536. However, a court "may pick and choose inferences from the evidence to the extent that 'a miscarriage of justice under the law' is not created." Ibid.; R. 4:49-1(a). To prevail on a summary judgment motion, defendants must show that plaintiff's claim was so deficient as to warrant dismissal of his action. Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J. Super. 550, 557 (App. Div. 1997). Applying this standard, the following facts inform the disposition of this appeal.
The Board hired plaintiff on August 4, 2003, as the Director of Facilities/Operations for the Winslow Township Public School District (District). His duties included overseeing the Building, Grounds, and Custodial Department, which is in charge of cleaning and maintaining all equipment and grounds within the District. Plaintiff had substantial experience in this field, having worked for several school districts in the state. Plaintiff is Caucasian.
Plaintiff reported directly to the Business Administrator and also to the Superintendent. In December 2004, John C. Oberg, the first of several District Business Administrators, gave plaintiff a generally positive evaluation during his employment in the District.
Defendant Patricia Parker, an African-American, was elected to the Board in April 2004. Parker has a long history of working in the field of education. She is known in the community as a proponent of affirmative action. In April 2005, Parker was elected President of the Board. She ended her tenure as President in April 2006. She did not stand for re-election, and her term on the school board ended in April 2007. Plaintiff asserted his problems with Parker began as soon as she was elected to the Board.
During several Board meetings, Parker expressed views that some people felt were racist and/or discriminatory. Plaintiff described one such meeting where Parker stated she did not want to hire "regulars," and she wanted to hire people who look like her so the students could relate better to them. Nancy Hester, plaintiff's wife, believed the term "regular" referred to Caucasians. Dr. Daniel Swirsky, who worked in several capacities for the District between 2000 and August 2008, felt Parker made inappropriate comments in public, but did not interpret the comments as racist or discriminatory. Plaintiff's wife also believed Parker demonstrated racist and discriminatory behavior when she "nitpick[ed]" or "zero[ed] in" on certain administrators' actions, particularly because personnel management was not one of her responsibilities as a Board member.
Plaintiff alleged that Parker exerted pressure on his superiors to issue him bad evaluations and cited as evidence Parker's discriminatory animus towards him. Oberg certified that during the 2004-2005 school year, Parker directed him to "negatively evaluate Terry Hester's performance . . . ." He, however, evaluated plaintiff's performance as generally positive, the second of such evaluations. Similarly, plaintiff asserts that in February or March 2005, Dr. Swirsky and Rita Hanna, the interim Business Administrator, advised him that Parker tried to pressure them to give him a bad evaluation, specifically with respect to School 3 in Sicklerville. In addition, Hanna told him that Parker complained to her about plaintiff's ...