On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-379-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 19, 2012 -
Before Judges Cuff, Lihotz and St. John.
Plaintiff Lynne C. Hallanan, a former Supervisor of Curriculum and Instruction for defendant Township of Fairfield Board of Education (Board) filed a complaint against her employer and its superintendent, defendant John Klug, in which plaintiff alleged that her termination violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.*fn1 She appeals from the order granting defendants' motion for summary judgment and dismissing her CEPA claim. We reverse.
We review a summary judgment in accordance with the same standard as the motion judge. Maimone v. City of Atlantic City, 188 N.J. 221, 233 (2006). We 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.
Therefore, we must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Id. 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 her action. See Butkera v. Hudson River Sloop "Clearwater", Inc., 300 N.J. Super. 550, 557 (App. Div. 1997).
Applying this standard, the record reveals that plaintiff commenced her employment as the Supervisor of Curriculum and Instruction with defendant Board on June 27, 2002. This was a twelve-month, year-round position. When defendant Board terminated plaintiff on June 26, 2007, plaintiff received $77,737 per year, plus benefits.
Plaintiff's responsibilities included handling grants and related State reports, "[a]ll aspects of testing for [the] entire district[,]" professional development activities for teachers and staff, general supervision and observation of staff, organization of after school activities, the English as a Second Language Program, and revision of the curriculum. Plaintiff's performance evaluations prior to the 2007-2008 school year reflected she satisfactorily performed her responsibilities.
The prior superintendent, who hired plaintiff, also appointed her "Affirmative Action Officer" for the district.
This position required plaintiff to annually document and record how the district complied with its affirmative action policies. Plaintiff compiled a Comprehensive Equity Plan (CEP) annually. A CEP documents professional development issues, equality in the school and classrooms, and equality in employment and contract practices. N.J.A.C. 6A:7-1.4(c)(2). Each year, plaintiff compiled the document, submitted it to the superintendent who would review and sign it, obtain the Board's approval, and forward it to the county superintendent. In accordance with N.J.A.C. 6A:7-1.4, the county superintendent reviewed the CEPs submitted by school districts within the county and either approved them or sent them back to the boards for revision.
On September 1, 2006, Klug became the superintendent for the district. In September 2006, plaintiff began compiling records for the CEP. In December 2006, plaintiff submitted an internal posting recruiting seven or eight members to serve on the affirmative action committee to assist in compiling the CEP due on March 30, 2007. Plaintiff began to formally compile the report and seek documents in January 2007.
Plaintiff stated she was concerned about Board compliance with posting requirements as soon as the position of superintendent opened but did not investigate or comment at the time. In early September 2006, plaintiff questioned the president of the teacher's union about whether the position had been posted. Neither plaintiff nor the union ...