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Sadio Diallo v. East Orange Board of Education


August 28, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6508-09.

Per curiam.


Argued May 2, 2012

Before Judges Cuff, Lihotz and Waugh.

Plaintiff Sadio Diallo appeals from an April 18, 2011 summary dismissal of his discrimination complaint, filed against defendants East Orange Board of Education (the Board), Dr. Clarence Hoover, III, Dr. Kenneth King, David Johnson, Arthur Wright, Everett Jennings, CCE, Theresa Combs, Belinda Jackson, Carmen Jones, and Vernon Pullins (individual defendants). We affirm.


The following facts are taken from the record submitted in support of and in opposition to summary judgment, viewed in a light most favorable to plaintiff, the non-moving party. Livsey v. Mercury Ins. Group, 197 N.J. 522, 525 n.1 (2009); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

In 1996, plaintiff, an African national, commenced employment with the Board as a French teacher and was assigned to the Ecole Toussaint Louverture Elementary School (Ecole). Plaintiff held a "Non-Citizen Teaching Certificate issued by the New Jersey Department of Education." Additionally, plaintiff's status as a non-citizen made him ineligible for an award of tenure. N.J.S.A. 18A:28-3 ("No teaching staff member shall acquire tenure unless he is, or until he shall become, a citizen of the United States."). Over the ensuing years, plaintiff considered his performance evaluations satisfactory.

In 2007, Principal David Johnson, an African-American male, began serving as plaintiff's direct supervisor, evaluating him three times during the 2008-2009 school year. Plaintiff considered the evaluations as an unduly negative reflection of his performance. Further, Principal Johnson sent memoranda to plaintiff during the 2008-2009 school year, seeking correction of plaintiff's "failure to adhere to the schedule and being late to assigned posts."

In January 2009, plaintiff met with Principal Johnson regarding the areas of his performance requiring improvement. Plaintiff admitted he was late at times because "he could not leave a class without supervision and the relieving teachers were late which caused him to be late." Plaintiff also acknowledged certain identified classroom management problems, but generally felt he was being "micro-managed" by Principal Johnson.

On February 23, 2009, plaintiff submitted a transfer request, which was denied by Assistant Superintendent Dr. Kenneth D. King because plaintiff's "performance [wa]s not consistently satisfactory." Plaintiff's second letter on April 1, 2009, requested a transfer, which also was denied.

On June 2, 2009, plaintiff received Dr. King's letter stating "a recommendation has been made that you will be re-appointed for the 2009-2010 School year without employment increment and/or adjustment increase and you will be placed on employment probation due to an unsatisfactory rating of your attendance and/or punctuality and/or performance." After plaintiff received the letter, he attended a June 8, 2009, closed Board of Education meeting. Dr. King attended the meeting and advised plaintiff that he could defend himself at a public Board meeting but he needed to know "we're going to talk about your private life, that you're not a citizen and things like that and that [you are] not tenured, can't be tenured because [you are] not a citizen." On June 26, 2009, plaintiff received a letter by the Board officially placing him on probation. Plaintiff accepted the terms of employment and was reappointed for the 2009-2010 school year without an increase in pay.

During the 2009-2010 school year, plaintiff was assigned hallway monitor responsibilities. Further, he generally asserted he suffered ridicule by his peers for this assignment.

On August 10, 2009, plaintiff filed a complaint claiming defendants violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, based on his national origin, alleging a hostile work environment, violation of his New Jersey constitutional and civil rights, and breach of the covenant of good faith and fair dealing.

On September 3, 2009, plaintiff met with psychotherapist Sandra Choplain regarding his work related problems. Choplain opined plaintiff was suffering from "severe depression, panic attacks with difficulty breathing, resulting in fears of death." Plaintiff requested sick leave from September 18, 2009 until April 2010. During this period, plaintiff was never hospitalized for treatment of depression, did not utilize medications to ameliorate anxiety or depression, and otherwise had no other medical problems. Plaintiff requested an extension of his sick leave, which was denied; however, he requested and was granted unpaid family leave.

At all times, plaintiff participated as a member of the East Orange Education Association (EOEA), the negotiation unit for the district employees. Consequently, the terms of his employment were subject to the provisions of the collective negotiation agreement (CNA) between the Board and the EOEA.*fn1 The CNA specifically included grievance procedures and policies guiding an employee who sought to challenge any Board employment action. Also of note, the Board maintained a Non- discrimination/Affirmative Action plan, which contained specific procedures for handling discrimination grievances.

Title IX of the grievance procedure set forth the steps to be followed when an employee files a formal complaint with the Board regarding a discrimination claim based on national origin. The grievance procedure requires: 1) a grievant to "present in written form the complaint to the responsible person designated as the Grievance Officer" 2) the Grievance Officer investigates and responds to the grievant within five working days; 3) the grievant may appeal that result within ten working days to the district superintendent; 4) the superintendent must respond within five working days; 5) the grievant may appeal the superintendent's determination to the Board within ten working days; 6) the Board must conduct a public hearing and respond to grievant within thirty calendar days; and 7) grievant may then file a complaint with the Director of the Office for Civil Rights, Washington, D.C. The grievance procedure also allows for any grievant to bypass steps one through six and submit "the complaint directly to the [New Jersey] Office for Civil Rights." Plaintiff never filed a grievance in accordance with the CNA or initiated a complaint with the Grievance Officer or the EOEA in compliance with the Board's anti-discrimination policy.

During the litigation, defendants moved for dismissal of all claims against the individual Board members, arguing qualified immunity precluded suit for acts performed in their official capacity. See Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 361 (App. Div. 1993) ("Qualified immunity shields government officials from liability for civil damages when they perform discretionary functions, unless their acts violate clearly established constitutional rights of which a reasonable person would have known."), certif. denied, 135 N.J. 468 (1994). On March 5, 2010, the trial court dismissed all claims against the individual defendants, and, because plaintiff failed to exhaust administrative remedies available under the CNA and the Board's antidiscrimination policy, the claims of wrongfully withheld tenure and an annual increment.

On May 13, 2010, plaintiff received a letter terminating his employment as part of a reduction in force in which the Board, as a result of fiscal constraints, terminated all non-tenured teachers. Plaintiff was informed his termination was effective June 30, 2010. In August 2010, plaintiff was rehired by the Board as a teacher at the Ecole school and was subsequently transferred to Tyson Middle/High School as a full- time French teacher. Plaintiff was happy to assume this desired position, which he continues to hold.

Plaintiff filed an amended complaint to include these new facts. He also added claimed violations of the Open Public Meetings Act, wrongful discharge, and reckless and intentional infliction of emotional distress.

At the close of discovery, the remaining defendants, the Board and Principal Johnson, moved for summary judgment of the remaining causes of action for violating the LAD by creating a hostile work environment, violation of civil rights statutes, and the intentional infliction of emotional distress. In a seventeen-page letter opinion, Judge Thomas R. Vena reviewed each of plaintiff's asserted claims and found he failed to establish a factual basis to support any of his contentions. Specifically, the judge considered the conduct attributed to Principal Johnson as the foundation of the LAD claim, determining these actions were "facially unrelated to [plaintiff's] national origin, and [he] cannot rely upon the bare allegations of his pleadings" to survive summary judgment. Judge Vena granted defendants' motion and ordered the dismissal of plaintiff's amended complaint. This appeal ensued.

In our de novo review of a trial court's grant or denial of summary judgment, we apply the same standard as the trial court under Rule 4:46. Chance v. McCann, 405 N.J. Super. 547, 563 (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 determine whether the moving party has demonstrated there are 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). We accord no deference to the motion judge's conclusions on issues of law. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, plaintiff suggests the evidence demonstrated he was denied due process and equal protection because "he was disparately treated, falsely evaluated, . . . denied increment, charged falsely to allow [d]efendants to put him on probation and micro manage him, terminated[,] and had his right to privacy invaded[.]" These generalized allegations are unaccompanied by factual support. On the other hand, as discussed by Judge Vena, the record contains plaintiff's admissions of tardiness, failure to control his classroom, and failure to adhere to school policy. Further, the documentation supporting plaintiff's termination resulted from a lawful reduction in force and his ineligibility for a grant of tenure was uncontroverted.

Plaintiff's disagreement with his performance reviews or duty assignments does not reflect he was subjected to a hostile work environment. See Cutler v. Dorn, 196 N.J. 419, 430 (2008) (stating to establish a prima facie case of hostile work environment under the LAD, a plaintiff must demonstrate "'the complained-of conduct (1) would not have occurred but for the employee's [national origin]; and it was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.'") (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)). Also, plaintiff's claims of distress are unsupported by documentation or proof of damages. Finally, plaintiff was rehired by the Board when a position became available.

Following our review, we discern no genuine issues of disputed fact, and conclude Judge Vena correctly analyzed and applied the law, dismissing plaintiff's complaint. We affirm substantially for the reasons set forth in Judge Vena's written opinion granting summary judgment. R. 2:11-3(e)(1)(A).

Plaintiff separately attacks the application of qualified immunity, dismissing the individual defendants from the suit.

We conclude the arguments are meritless as no violation of the LAD violation has been shown. R. 2:11-3(e)(1)(E).

Plaintiff's false light and invasion of privacy claims were not raised before the trial court and are therefore, not subject to appellate review. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (stating "appellate courts [generally] will decline to consider questions or issues not properly presented to the trial court").

Plaintiff offers no factual basis to substantiate a breach of the implied covenant of good faith and fair dealing of his employment contract. No evidence shows the Board treated him as a tenured employee. Moreover, plaintiff failed to initiate the grievance procedures set forth in the CNA. See Fregara v. Jet Aviation Business Jets, 764 F. Supp. 940, 951 (D.N.J. 1991) (stating in New Jersey an aggrieved employee "must exhaust the remedies provided by the [CNA] before resorting to the court for redress").

Finally, in the event plaintiff's appeal raises issues not specifically addressed, we have reviewed them and conclude they lack substantial merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).


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