ALLAN S. FRANKEL v. FAIR LAWN 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NOT FOR PUBLICATION WITHOUT THE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-4420-04T54420-04T5

ALLAN S. FRANKEL,

Plaintiff-Appellant,

v.

FAIR LAWN BOARD OF

EDUCATION, ELIZABETH PANELLA,

CHRISTOPHER D. BOLTON, and

CLAUDIA DARGENTO,

Defendants-Respondents.

________________________________________________________________

 

Submitted November 1, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen

County, Docket No. L-4034-01.

Appellant, Alan S. Frankel, submitted

a pro se brief.

Schwartz, Simon, Edelstein, Celso &

Kessler, attorneys for respondents

(Stefani C. Schwartz, of counsel; Ms.

Schwartz, Christopher R. Welgos and

Danielle Disporto, on the brief).

PER CURIAM

Plaintiff, Alan Frankel, was a non-tenured teacher in the Fair Lawn High School business department who was terminated less than four months after beginning employment allegedly for poor performance, refusal to accept constructive criticism, and repeated verbal attacks against another teacher. Plaintiff sued the Fair Lawn Board of Education and several individual defendants claiming an adverse impact upon his "business, trade or profession"; defamation, slander, and libel; breach of contract; and violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. On appeal from Judge Russello's summary judgment in favor of defendants, plaintiff argues only that the trial court improperly dismissed his CEPA claim.

Judge Russello found, in part, that plaintiff failed "to identify a clear mandate of public policy and how that mandate was violated." The judge further noted that plaintiff "never performed whistle blowing activity" and there was "no causal connection between the whistle blowing and the adverse employment action."

Plaintiff asserts Judge Russello erred because he "blew the whistle" on a "scandal" that was occurring at the high school by complaining that another teacher had improperly prepared her Accounting I students for plaintiff's class on Accounting II, and that a cover-up ensued in which plaintiff refused to participate.

Under CEPA, in pertinent part, an employer may "not take any retaliatory action against an employee because the employee . . . [o]bjects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes" violates the law, rule or regulation, is criminal or "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. 34:19-3.

Here, plaintiff has pointed to no constitutional provision, federal or state law, administrative rule or decision, common law or judicial decision, or code of ethics that he believed the district was violating by covering-up the teacher's ineffectiveness. See MacDougall v. Weichert, 144 N.J. 380, 391 (1996). Instead, plaintiff claims the alleged cover-up to protect an ineffective accounting teacher was incompatible with a "clear mandate of public policy concerning the public health, safety or welfare."

To survive summary judgment, a plaintiff must demonstrate that "he or she reasonably believed that his or her employer's conduct was violating . . . a clear mandate of public policy." Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). Whether plaintiff has established the existence of a clear mandate of public policy is an issue of law to be decided by the court. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187 (1988). When plaintiff fails to identify the clear mandate of public policy upon which the CEPA claim is based, summary judgment is appropriate. See Dzwonar, supra, 177 N.J. at 463; Smith-Bozarth v. Coal. Against Rape & Abuse, Inc., 329 N.J. Super. 238, 245 (App. Div. 2000).

We agree with Judge Russello that plaintiff has not identified a clear mandate of public policy that plaintiff could reasonably believe the district was violating. Educational competence is often a matter of opinion. Indeed, one's teaching disaster can be another's star. In the absence of any valid objective measurement of teaching effectiveness, a district's opinion that a particular teacher was effective or ineffective therefore would be just that, a matter of opinion. Likewise, plaintiff's conviction of his own teaching abilities is also merely a matter of opinion. Even recognizing the importance to the public of competent, effective public school teachers, we decline to conclude that it would be sufficient to sustain a CEPA cause of action for plaintiff to reasonably believe that this State's public policy was violated by the district's support of one teacher who plaintiff claims was incompetent. We doubt the legislature intended such a construction of CEPA.

 
Affirmed.

Plaintiff's Title VII claim, "violation of civil liberties, anti-Semitism, civil rights and employment rights to a positive working atmosphere," was dismissed by Judge Hayden in Federal Court.

Plaintiff's pro se statement of facts violated R. 2:6-2(a)(4) by failing to utilize a narrative form and to provide even a basic description of what the case was about. The brief as a whole was disjointed and replete with sarcasm rendering the arguments difficult to follow and largely incoherent.

Because only the CEPA issue was briefed before us, plaintiff has abandoned any objection to dismissal of the other counts in his complaint. Liebling v. Garden State Indem., 337 N.J. Super. 447, 445-46 (App. Div.), certif. denied, 169 N.J. 606 (2001). There is also a serious question whether plaintiff properly raised the CEPA claim as it was not pled in his complaint. We decline to dismiss the appeal on this basis, however, because it is clear to us that the claim lacks merit.

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A-4420-04T5

November 15, 2005