May 2, 2012
LYNNE C. HALLANAN, PLAINTIFF-APPELLANT,
TOWNSHIP OF FAIRFIELD BOARD OF EDUCATION AND SUPERINTENDENT JOHN KLUG, INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 president or members of the affirmative action committee located any evidence of posting.
In early 2007, plaintiff asked defendant Klug's secretary about documentation, including postings of the position related to the search and selection of the new superintendent. Plaintiff received no documents from the superintendent's secretary. Klug's secretary, Susan Muller, confirmed plaintiff began asking her for documents to compile her CEP around January and February of 2007. While she recalled plaintiff asking whether there had been any advertisement regarding Klug's position before he was hired, she was unable to locate one even though she "ke[pt] a file" for those documents. Muller did not "believe" she told Klug about plaintiff's inquiry.
On March 29, 2007, the day before the due date of the CEP, plaintiff asked Klug directly for these documents. She testified during her deposition she did not ask him directly for the documents before this date because she assumed "that by asking his secretary[,] [her request] would automatically go through him and she would be able to locate the documents that way."
The draft CEP presented by plaintiff to Klug on March 29, 2007, stated that the policies regarding hiring and promotion are on file but documentation "could not [be] locate[d] . . . to substantiate some of what [the] policies dictate." The CEP did not specifically mention the superintendent position. Plaintiff testified that defendant Klug was not happy with this section but did not give her the documents she requested. Plaintiff also testified that he wanted her to remove the language that stated the district could not locate the documentation, and that Klug concluded the meeting with this comment: "You're calling a strike on yourself with this."
The following day, plaintiff removed the inability to locate documentation language from the CEP, printed the document, provided copies to Klug, a union representative and another teacher, and submitted the report to the county superintendent. She also explained in a handwritten letter to a union representative and a teacher, both members of her committee, that the superintendent directed her to alter the report.
Throughout the school year, plaintiff had several discussions with Janet Sfaelos, the Affirmative Action Officer in the Office of the County Superintendent. The first conversation occurred early in the school year. Plaintiff mentioned that she felt harassed by Klug. After she submitted the CEP and after Klug informed plaintiff that her position would be eliminated, plaintiff spoke to Mary Conrad, Equity Coordinator for the Department of Education. They met in May 2007. Plaintiff showed Conrad the draft CEP and the filed CEP. Later, plaintiff was contacted by Sfaelos.
Following submission of the CEP, plaintiff had no contact with Klug until April 22 or 23, 2007. At that time, Klug informed plaintiff that her position was to be eliminated. On April 26, 2007, the Board adopted the recommendation of Klug to eliminate plaintiff's position. The Board cited construction of a new school building, which would permit consolidation of two schools and economy of operations.
In support of their stated reason for elimination of plaintiff's position, defendants Board and Klug presented portions of depositions of Thomas Smith, Jr., the preceding superintendent; C. Ann Volk, the district's former business administrator; Thomas Clarkson Lane, IV, the former Board of Education President; Susan Muller, Klug's secretary; and plaintiff.
Smith explained the Fairfield school district operated two schools and was in the process of building a new school. The new school permitted the combination of its two schools into one. Beginning in September 2006, Smith said he and Klug discussed excess personnel, one of whom was plaintiff. Smith explained plaintiff's "duties that were in her job description could be farmed out elsewhere[,]" resulting in "clear . . . economic savings."
Volk confirmed staff reduction discussions involved plaintiff's position because it was not a position that the district was required to have by law. Volk explained she and Klug had this discussion in October 2006 and they made the decision to eliminate plaintiff's position before Volk left the district in December 2006.
Lane confirmed plaintiff's position was one considered for elimination during the consolidation of the schools. He recalled discussing position elimination with Klug before August 31, 2006, but could not recall the reason for the elimination.
On the other hand, Stephanie Kuntz, the district's former business administrator, testified she would usually have undertaken a "cost-savings analysis" when investigating whether to eliminate an administrative position, but such an analysis was not requested or performed. She also explained the budget for the 2007-2008 school year did not reflect the elimination of plaintiff's position, which it would if the decision was made prior to the preparation of the report in April 2007.
Plaintiff referred to the 2007-2008 administrative budget, which specifically appropriated funds for her position and an increased overall budget from the year prior to her termination. The same budget also increased salaries for other administrative personnel, including Klug. In fact, the district went from two part-time business administrators, Kuntz and Volk, to a single full-time administrator, Janecia Smith, who started in April 2008.
Kuntz, then Smith, assumed most of plaintiff's grant writing responsibilities once plaintiff's position was eliminated. The school's vice-principal was also asked to work as a twelve-month employee rather than a ten-month employee to "tak[e] over a function that had once been held by [plaintiff] with regard to summer programs[.]" Additionally, in March 2008, Richard Dawkins, a guidance counselor at the school, was appointed as Supervisor of Pupil Personnel Services, a new administrative position for the 2007-2008 school year, which among other responsibilities, assumed plaintiff's role in managing student testing, observing special education teachers, and working on grants. Finally, Marge Bennett, a former attendance officer and Parent Teacher Association President, testified she overheard Dawkins "bragging" about how "he was going to be promoted to a supervisor of some sort with a higher pay" within a month of plaintiff's termination. Dawkins spoke with Klug on an ongoing basis about his wanting an administrative position, but claimed he was never promised a position.
In his oral decision, the motion judge found that plaintiff could not identify a statute or regulation that defendants violated. He stated:
Here the only thing that Plaintiff indicates is that she believed that there was not proof or documentation or evidence in the form of writings to substantiate compliance with the School District's internal Affirmative Action Guidelines. The Court used that as being different than a violation of a law, rule or regulation, nor has it been shown to be fraudulent or criminal.
The judge also held that plaintiff failed to establish that the proffered justification for elimination of her position was pretextual. In doing so, he found that plaintiff's proofs ignored the elimination of four other positions "for reasons of economy and efficiency."
On appeal, plaintiff argues that the mandate to prepare and submit a CEP is not simply related to internal district affirmative action guidelines. She contends the CEP report is required by a regulation promulgated by the State Board of Education. She also argues that the elimination of her position is causally related to her obligation as the district affirmative action officer and specifically related to the CEP report for 2007. Finally, the legitimate business reason stated by defendants is a pretext for her retaliatory conduct. Defendants contend that plaintiff cannot identify a clear statement of public policy that they violated, that plaintiff did not perform a whistle-blowing activity, and that plaintiff did not show that they retaliated against her for her CEP efforts.
The Legislature enacted CEPA "to 'protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.'" Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003) (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)). Accord Donelson v. DuPont Chambers Works, 206 N.J. 243, 255-56 (2011). Specifically applicable to "school district[s,] . . . board[s] or any other agency or instrumentality thereof[,]" N.J.S.A. 34:19-2a, CEPA provides:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
c. Objects to, [discloses,] or refuses to participate in any activity, 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 the public health, safety or welfare or protection of the environment. [N.J.S.A. 34:19-3a, c.]
Therefore, a valid CEPA claim has four requirements: (1) the employee "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) the employee "performed a 'whistle-blowing' activity" described in N.J.S.A. 34:19-3; (3) the employer took "an adverse employment action" against the employee and (4) "a causal connection exists between the whistle-blowing activity and the adverse employment action." Dzwonar, supra, 177 N.J. at 462. Accord Hernandez v. Montville Twp. Bd. of Educ., 354 N.J. Super. 467, 473 (App. Div. 2002), aff'd 179 N.J. 81 (2004). "These requirements must be liberally construed to effectuate CEPA's important social goals." Maimone, supra, 188 N.J. at 230. Accord Abbamont, supra, 138 N.J. at 431.
A CEPA plaintiff may present her claim under a pretext theory or a mixed-motive theory. The more common pretext theory employs the McDonnell Douglas*fn2 burden shifting analysis. Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100-01 (2000). Under that analysis, once the plaintiff makes a prima facie showing of the four elements outlined above, "the burden of going forward shifts to the employer who must articulate a legitimate, nondiscriminatory reason for the adverse employment decision. If the employer does produce evidence showing a legitimate, nondiscriminatory reason for the discharge, the burden of production shifts back to the employee who must show that the employer's proffered explanation is incredible. At all times the burden of proof or risk of non-persuasion, including the burden of proving 'but for' causation or causation in fact, remains on the employee." [Id. at 100 (quoting Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 n.4 (3d Cir. 1995)).]
In comparison, the mixed-motive theory employs the Price Waterhouse*fn3 analysis, where the plaintiff "must produce direct evidence of discrimination, i.e., more direct evidence than is required for the [pretext theory] prima facie case. If the employee does produce direct evidence of discriminatory animus, the employer must then produce evidence sufficient to show that it would have made the same decision if illegal bias had played no role in the employment decision. In short, direct proof of discriminatory animus leaves the employer only an affirmative defense on the question of 'but for' cause or cause in fact." [Fleming, supra,, 164 N.J. at 100 (quoting Starceski, supra,, 54 F.3d at 1096 n.4).]
Thus, the distinction "'lies in the directness of proof of discrimination'" as the direct evidence of discriminatory animus required in a mixed-motive case "'leads not only to a ready logical inference of bias, but also to a rational presumption that the person expressing bias acted on it.'" Id. at. at 100-01 (quoting Starceski, supra,, 54 F.3d at 1097). However, circumstantial evidence is sufficient to carry mixed-motive cases if that evidence "'may be viewed as directly reflecting the alleged discriminatory attitude.'" Id. at. at 101 (quoting Jackson v. Georgia-Pacific Corp., 296 N.J. Super. 1, 18-19 (App. Div. 1996), certif. denied,. denied, 149 N.J. 141 (1997)).
Viewing the facts in the light most favorable to plaintiff, we hold that she established a prima facie claim under CEPA. Contrary to the position advanced by defendants, the annual requirement to prepare and submit a CEP is not simply a product of an informal, internal affirmative action guideline. An annual CEP is required by N.J.A.C. 6A:7-1.4(a), (c), which provides that a board of education must "adopt and implement written educational equity policies" and "develop a comprehensive equity plan . . . which shall identify and correct all discriminatory and inequitable educational and hiring policies, patterns, programs and practices affecting its facilities, programs, students and staff." The comprehensive equity plan must address "[e]quality in employment and contract practices pursuant to N.J.A.C. 6A:7-1.8." N.J.A.C. 6A:7-1.4(c)2iii. N.J.A.C. 6A:7-1.8(a) requires a board of education to ensure "all persons regardless of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status shall have equal and bias free access to all categories of employment in the public educational system of New Jersey[.]"
As a rule adopted by the State Board of Education, it has the force of law. Levin-Sagner-Orange v. Rent Leveling Bd. of Orange, 142 N.J. Super. 429, 434 (Law Div. 1976), aff'd, 147 N.J. Super. 303 (App. Div. 1977). The regulation reflects the clear and oft-repeated policy of the State of New Jersey against discrimination of any kind. McDonnell v. Illinois, 163 N.J. 298, 301, cert. denied, 531 U.S. 819, 121 S. Ct. 59, 148 L. Ed. 2d 26 (2000); N.J. Const. art. I, ¶ 1; N.J.S.A. 10:5-1 to -49. This rule is designed to address and support equal employment opportunity efforts, and the CEP is just one of many measures to further this effort.
The record also reflects that plaintiff understood the importance of anti-discrimination efforts, realized that methods used to identify and select professionals, including superintendents of schools, may further or retard equal employment opportunity efforts, and that she had legitimate concerns that the selection of the incumbent superintendent bypassed the recommended methods. The record demonstrates that by the end of March 2007, plaintiff had a reasonable belief that defendant Board had not complied with its own guidelines and State rules in its selection of the incumbent superintendent.
The record also establishes a prima facie case that plaintiff suffered an adverse employment action following her push for the required documentation and her insistence that the CEP accurately reflect the lack of required documentation. Plaintiff cites a statement made by Klug that can be reasonably considered a threat to her continued employment, and she was informed that her position would be eliminated three weeks after submitting the altered document. Moreover, plaintiff spoke with an affirmative action officer in the county superintendent's office about these and other concerns throughout the school year.
To be sure, the record contains evidence that the adverse employment action suffered by plaintiff was entirely unrelated to the difficulties and resistance she encountered in preparation of the CEP. Defendants have submitted evidence that discussions commenced as early as August 2006 about elimination of plaintiff's position and that four other staff persons lost their positions. On the other hand, plaintiff has submitted evidence that her position had been included in the budget. The same budget contained raises for others; one senior staff member became a twelve-month employee to assume some of her responsibilities and another supervisory position was created to address many of her job duties.
In short, this record contains genuine issues of material fact about whether her termination was causally related to the discharge of her obligations as the affirmative action officer, specifically preparation of the CEP report, and precluded entry of summary judgment in favor of defendants.
Reversed and remanded.