VICTOR EISENBERG v. FORT LEE BOARD OF EDUCATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0233-04T30233-04T3

VICTOR EISENBERG,

Plaintiff-Appellant,

v.

FORT LEE BOARD OF EDUCATION,

JOHN C. rICHARDSON, ROBERT

TAGLIERI & JOAN VOSS,

Defendants-Respondents.

________________________________________________________________

 

Submitted October 18, 2005 - Decided

Before Judges Coburn and Lisa.

On Appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-5272-02.

Greenberg Traurig, attorneys for appellant (Brian S. Cousin and Richard I. Scharlat, of counsel and on the brief).

Schenck, Price, Smith & King, attorneys for defendants Fort Lee Board of Education, John Richardson and Joan Voss (Joanne L. Butler, of counsel; Kathryn V. Hatfield and James A. Kassis, on the brief).

Lane J. Biviano, attorney for defendant Robert Taglieri.

PER CURIAM

Plaintiff, Victor Eisenberg, appeals from a summary judgment dismissing his complaint against defendants, Fort Lee Board of Education (Board) and three of its administrative officers. Plaintiff was a non-tenured teacher, and the dispute arose out of the Board's action in declining to renew plaintiff's contract for the 2001-2002 school year. Plaintiff's complaint contained four counts: (1) defamation, (2) breach of contract, (3) breach of covenant of good faith and fair dealing, and (4) discrimination based upon age and religion in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. He sought damages and tenured reemployment.

Although the notice of appeal is from the entire summary judgment order, plaintiff advances no arguments on appeal pertaining to dismissal of the defamation claim. We therefore deem abandoned any appeal issue with respect to that count, and we will not discuss it further. One of the arguments raised by appellant in his brief is that we should summarily reverse the summary judgment order pursuant to Rule 2:8-3. Plaintiff's motion for summary reversal was denied by an order of this court entered on January 13, 2005. Therefore, that issue has already been disposed of and we will not discuss it further.

Plaintiff makes the following arguments on appeal:

POINT I

RESPONDENTS' UNDENIABLE SPOLIATION OF CRITICAL EVIDENCE WARRANTED THE DENIAL OF SUMMARY JUDGMENT.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT AND IGNORING EVIDENCE OF DISCRIMINATION BASED ON RELIGION/ANCESTRY AND AGE [THAT] DEMONSTRATED THAT GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO LAD CLAIMS.

POINT III

APPELLANT'S BREACH OF CONTRACT AND THE IMPLIED CONTRACT OF GOOD FAITH AND FAIR DEALING ("THE CONTRACT CLAIMS") WERE PROPERLY BEFORE THE SUPERIOR COURT.

We reject these arguments, and affirm.

Plaintiff was born on September 19, 1955. He is Jewish. He was employed by the Board first as a substitute teacher from January 1996 to June 1998, and then, pursuant to three one-year contracts, as an English teacher in the Fort Lee High School for the 1998-1999, 1999-2000 and 2000-2001 school years. Plaintiff also entered into separate contracts with the Board by which he was paid additional compensation for serving as the Director of the Drama Department and Advisor to the Thespian Society. On April 2, 2001, the Board adopted a resolution determining that it would not renew for the 2001-2002 school year the contracts of five non-tenured teachers, including plaintiff.

Plaintiff requested a written statement of reasons for the non-renewal of his contract. The Board responded, setting forth deficiencies in plaintiff's job performance in the categories of classroom planning and organization, classroom methodology, student management, and professional responsibilities. Plaintiff requested a meeting before the Board concerning the non-renewal of his contract, which was granted. Plaintiff, along with his attorney, appeared at the meeting on July 2, 2001. The Board did not change its position.

Plaintiff appealed the Board's non-renewal decision to the Commissioner of Education on September 29, 2001. The Commissioner of Education referred the matter to the Office of Administrative Law. We are advised by the parties that the matter remains pending and is being held in abeyance pending the outcome of this appeal.

At the meeting of April 2, 2001, the Board renewed the teaching contracts of three non-tenured English teachers at the Fort Lee High School. At a June 25, 2001 meeting, the Board approved the appointments of two new English teachers at the Fort Lee High School for the 2001-2002 school year, Jason Elliott and Victoria Minardi. Minardi was also appointed as Director of the Drama Department and Advisor to the Thespian Society. Elliott is white, of unknown religious affiliation, and was twenty-seven years old at that time. Minardi is white, not Jewish, and was twenty-nine years old at that time.

Plaintiff was a member of the Fort Lee Teacher's Association, which entered into a collective bargain agreement (CBA) with the Board, covering the terms and conditions of employment for the period of July 1, 1999 through June 30, 2002. The conditions of plaintiff's employment as a non-tenured teacher were covered by the CBA, including its grievance procedure, except that the grievance procedure was not applicable to "[t]he failure or refusal of the Board to renew a contract of a non-tenured teacher." Although plaintiff alleged in his complaint that the Board did not properly follow its own policies and interfered with his work as a teacher, he did not file any grievances under the CBA to address those issues.

In his complaint in this case, he alleged that the Board discriminated against him because he is Jewish and because of his age. He further alleged that the Board breached its contract with him and violated the implied covenant within that contract of good faith and fair dealing. After an extensive discovery period, defendants moved for summary judgment. Oral argument was conducted on July 16, 2004, after which Judge Moses rendered a thorough and well-reasoned oral decision, in which she granted the motion.

With respect to the LAD claim, the judge correctly set forth the three-step process under the McDonnell Douglas analytical framework. She acknowledged that there was no dispute between the parties that plaintiff satisfied the first step, namely establishment of a prima facie case for both religious and age discrimination. Defendants met their burden under the second step by proffering legitimate non-discriminatory reasons for discharging plaintiff, namely poor job performance. She then said this:

Now, the burden shifts to the Plaintiff, and this is where the question arises, looking at the evidence in a light most favorable to the Plaintiff. Is there evidence which reveals material issues of fact as to whether or not the reasons set forth by the Defendants are pretextual? That's what this case is all about.

I believe the Plaintiff has not presented sufficient evidence other than his arguments that defendants' reasons are not believable and that his contract was not renewed for some invidious reason.

. . . .

I also believe that Dr. Voss's understanding of the Jewish holidays, while in error, is not sufficient to show that everybody was making it up in regard to this guy.

I conclude that, in regard to religious discrimination, these are entirely self serving arguments, not supported by sufficient facts which would raise material issues of fact in regard to pretext. That's what this is all about, not whether he was a good teacher or a bad teacher.

Because it has been conceded by the Plaintiff's counsel that if they just didn't like him they could paper the record all they wanted with false statements, it would not be religious discrimination.

. . . .

So I conclude that the motion to dismiss in regard to religious discrimination must be granted.

The evidence in regard to age discrimination is the same concerning the prima facie case.

His contract was not renewed, and he was replaced by a person who was 15 years younger.

So, the same argument, with even more emphasis, holds in regard to whether there was pretext.

Plaintiff's counsel has not referred to a scintilla of evidence which show comments made by any of the three individual Defendants concerning the age of this man. There has been nothing brought to the Court's attention.

In regard to religion there were arguments about two comments, one by Voss and one by Taglieri in the depositions.

There's nothing cited in the Counter Statement of Fact concerning age.

So, I conclude, and I incorporate the analysis I just made in regard to religion, that the motion must be granted in regard to age discrimination.

The fact is he made a prima facie[] case clearly. But he has not presented any material issues of fact in regard to age which would give rise to a jury issue on pretext.

Judge Moses correctly applied the Brill standard and considered the evidence in the light most favorable to plaintiff. On appeal, we apply the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Applying that standard, and based upon our independent review of the record, we agree with the analysis and conclusion set forth by Judge Moses.

The judge concluded that plaintiff's claims in the breach of contract and breach of covenant of good faith and fair dealing counts should be dismissed on two bases: (1) failure to exhaust administrative remedies; and (2) primary jurisdiction lies with the Commissioner of Education. Indeed, plaintiff filed an administrative appeal with the Commissioner prior to filing this civil lawsuit. The Commissioner is statutorily vested with jurisdiction to hear and determine "all controversies and disputes arising under the school laws." N.J.S.A. 18A:6-9. Thus, plaintiff has an administrative remedy available, which he is pursuing. Further, under the CBA, plaintiff had remedies available with regard to his allegations of improprieties by the Board and administrative officers with respect to his job performance. We find no error in Judge Moses' dismissal of these counts for the reasons she stated.

Finally, on appeal, plaintiff argues that the trial judge misconstrued his argument regarding spoliation of evidence and, if properly understood, his argument would have defeated summary judgment. We disagree.

This issue pertains to a memorandum dated January 19, 2001 authored by defendant Robert Taglieri, the principal of the high school during the 2000-2001 school year, and related attachments. The fact that such a memorandum had been prepared is not in dispute. It was referred to in other documents exchanged in discovery. However, the Board has been unable to locate a copy of the memorandum. The Board went to the extreme of hiring a forensic electronic retrieval firm, in cooperation with plaintiff, to search the hard drives in all of its computers in an effort to retrieve the document. The effort was unsuccessful. The subject of the missing document was a discussion about a number of non-tenured teachers, including plaintiff, who were under consideration for non-renewal.

Judge Moses concluded that there was no basis upon which to conclude that the Board intentionally destroyed the memorandum or that its contents constituted a "smoking gun" to support plaintiff's claim. Indeed, there is nothing to indicate that the contents were critical to plaintiff's proofs. Judge Moses concluded that if "three pieces of paper are missing from the case that has hundreds, and hundreds and hundreds of pieces of paper, it is of no moment." It was on that basis, that she rejected plaintiff's argument regarding spoliation of evidence in deciding the summary judgment issues.

On appeal, plaintiff argues that the judge misunderstood his argument and commented that plaintiff had not pled spoliation of evidence as an affirmative cause of action for which he was seeking damages. That comment occurred in colloquy between counsel and the judge during argument, and was not part of her decision. The judge was attempting to elicit from counsel a clearer understanding of his argument on the issue. Plaintiff's attorney argued, quite correctly, that he was not asserting a cause of action for spoliation of evidence. Plaintiff argued that "[t]he jury should be able to make an inference from a fact that that document, which is, was specifically described as a recommendation concerning Mr. Eisenberg's employment is gone." Counsel for the Board responded by pointing out the great lengths the Board went to try to find the document and to furnish as much information about the document as possible and argued that "even if the jury could even get some kind of an inference from it, we have a following document that discusses what was in that memo and there's nothing invidious about it."

We are satisfied that the judge, by engaging in this colloquy, fleshed out the gravamen of plaintiff's spoliation argument, which she well understood but rejected as a basis for denying summary judgment. There was no basis for a spoliation inference here, see Rosenblit v. Zimmerman, 166 N.J. 391, 411 (2001); Barbera v. DiMartino, 305 N.J. Super. 617, 641-43 (App. Div. 1997), certif. denied, 153 N.J. 213 (1998); Hirsch v. Gen. Motors Corp., 266 N.J. Super. 222, 259 (Law Div. 1993), and we agree with the trial judge's determination on this issue.

We affirm substantially for the reasons expressed by Judge Moses in her oral decision of July 16, 2004.

 
Affirmed.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

(continued)

(continued)

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A-0233-04T3

November 3, 2005