FRED BROWN v. NEW BRUNSWICK BOARD OF EDUCATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2501-07T22501-07T2

FRED BROWN,

Plaintiff-Appellant,

v.

NEW BRUNSWICK BOARD OF

EDUCATION and RICHARD M.

KAPLAN,

Defendants-Respondents.

________________________________________________________________

 

Argued December 2, 2008 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2310-05.

Steven D. Cahn argued the cause for appellant (Cahn & Parra, attorneys; Mr. Cahn, on the brief).

Elizabeth F. Lorell argued the cause for respondents (Schwartz Simon Edelstein Celso & Kessler, attorneys; Ms. Lorell, of counsel; Ms. Lorell and Joshua L. Weiner, on the brief).

PER CURIAM

Plaintiff Fred Brown appeals from an order entered on December 14, 2007 granting summary judgment in favor of defendants New Brunswick Board of Education (Board) and its superintendent, Richard Kaplan. We affirm.

I

Plaintiff was the principal of the Alternative High School in New Brunswick. At a PTA meeting on February 2, 2005, plaintiff made certain inappropriate statements regarding the treatment of female students by male students. In answers to interrogatories, plaintiff claimed he

told the audience that his greatest challenge was the treatment of his young female students. The young men did not treat them with dignity and respect and commonly referred to them as bitches and whores. Plaintiff reiterated that negative radio and television programs were demeaning to the females in general.

Plaintiff claims that his statements were taken out of context by the superintendent and he was improperly reprimanded for them the next day.

On February 3, 2005, the same day he received the reprimand for his comments at the PTA meeting, plaintiff receive a second reprimand for failing to submit his school budget timely and telling the superintendent "not to blow a gasket" when the superintendent called him about it. The second reprimand stated that plaintiff was in dereliction of his duties and "demonstrated a severe lack of administrative care and due diligence." Plaintiff claimed he submitted the budget by e-mail before the January 19, 2005 due date, but he could not document that claim.

Plaintiff maintained that the two reprimands demonstrated a hostile work environment purposely created by the superintendent to pressure plaintiff and other senior employees to retire. After the superintendent declined to remove the two reprimands from plaintiff's file in response to his request, plaintiff contacted his collective bargaining unit, the New Brunswick Leadership Association, about filing a grievance.

On March 16, 2005, plaintiff filed a Level Three grievance with the Board, claiming that the reprimand for his inappropriate language at the PTA meeting was "without any basis [in] fact." He further claimed that the reprimand for failure to file the budget timely was unfounded because prior to the January 19, 2005 due date, he sent an e-mail to the business administrator in which "he indicated what increases he would need in his 2005-2006 school budget." He did not, however, claim to have e-mailed the budget by the due date, as he had earlier. In the grievance, plaintiff sought to have the Board remove the two letters of reprimand from his file. Plaintiff withdrew the grievance on May 17, 2005.

On March 17, 2005, however, the superintendent had advised plaintiff that he was suspended with pay for "just cause." Plaintiff's suspension was concluded and he returned to work on April 4, 2005.

Plaintiff filed his complaint on March 30, 2005, alleging that (1) he was suspended on March 17 in retaliation for filing the grievance on March 16, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; (2) the retaliatory conduct was "designed to intimidate, harass and otherwise cause injury to the plaintiff and to severely adversely alter conditions of his employment;" and (3) defendants' conduct was "contrary to the clearly established public policy of the State of New Jersey."

In rendering its decision on defendants' summary judgment motion, the trial court noted that "[i]n order to have a violation of CEPA you have to have some whistle-blowing activity." The court found that plaintiff's personal problems with the superintendent did not amount to whistle-blowing under CEPA, noting that

even if the animus between [the superintendent] and [plaintiff] had something to do with the fact that [plaintiff] went to the Board of Education and obviously no superintendent of schools wants to have people, his employees complain about him to the Board of Education, that's obvious, nobody likes that. And - and it may have affected the fact that he - the way he acted by suspending [plaintiff]. That doesn't mean that there is a violation of the Conscientious Employee Protection Act . . . . [T]he facts in this case are very simple. You have the two letters which were . . . dealing . . . with the use of some terminology that apparently his students were using . . . that's not appropriate in describing . . . the females in the school . . . . Then there's an issue with . . . a budget that was due on the 19th, and it wasn't . . . submitted on the 19th on a timely basis and therefore another letter . . . is then filed in [plaintiff's] personnel file.

In this appeal, plaintiff argues that the trial court erred in granting summary judgment because (1) plaintiff established a valid cause of action under CEPA, and (2) there were genuine issues of material fact precluding summary judgment. We have carefully considered plaintiff's arguments in light of the record and the applicable law and we are satisfied that the trial court correctly granted summary judgment dismissing the complaint.

II

CEPA, also known as the "whistle-blower statute," was enacted in 1986 "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. Consistent with that purpose, CEPA must be considered 'remedial' legislation and therefore should be construed liberally to effectuate its important social goal." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994). CEPA protects from adverse employment action those employees who, "believing that the public interest overrides the interest of the organization they serve, publicly 'blow the whistle'" and disclose "corrupt, illegal, fraudulent or harmful activity." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187-88 (1998).

To establish a prima facie case under CEPA, a plaintiff must prove the following elements:

(1) that he or she reasonably believed that his or her employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law;

(2) that he or she performed whistle-blowing activity described in N.J.S.A. 34:19-3(a),(c)(1) or (c)(2);

(3) an adverse employment action was taken against him or her; and

(4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

[Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999) (citing Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298, 315, 317 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998)).]

Failure to satisfy any one of these four elements precludes a plaintiff's claim. Here, the trial court found that plaintiff failed to establish a prima facie CEPA claim because he did not meet the first two elements.

N.J.S.A. 34:19-3 describes employee conduct subject to protection under CEPA:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, . . . or

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity;

b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, . . . or

c. Objects to, 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, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or . . .

(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.

The first element of a CEPA claim requires a plaintiff to at least reasonably believe that some law, rule or regulation was being violated by his or her employer's conduct. The plaintiff may be mistaken in this belief, and there may, in fact, be no violation of law, rule or regulation, but he or she may proceed if the belief was "reasonable." Turner v. Assoc'd. Humane Soc'ies, Inc., 396 N.J. Super. 582, 593 (App. Div. 2007). Courts have been generous in interpreting this element by allowing clearly-stated, specific mandates of public policy to suffice, even though N.J.S.A. 34:19-3(a) does not reference public policy. Mehlman, supra, 153 N.J. at 187-88; Falco, supra, 296 N.J. Super. at 313-14.

Plaintiff argues that the superintendent's (1) creation of a hostile work environment meant to pressure older employees into retirement, and (2) disregard of the grievance procedures satisfy the first element. He further argues that his filing the grievance satisfies the definition of a whistle-blowing activity as set forth in N.J.S.A. 34:19-3(a),(c)(1) or (c)(2), because it exposed the superintendent's age discrimination and non-compliance with the grievance process protected by the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -13.

The filing of a grievance is the commencement of an administrative adjudicatory process that allows resolution of a grievant's claim. West Windsor v. Pub. Employment Relations Comm'n, 78 N.J. 98 (1978). Arguing that the filing of a grievance satisfies the second element of a CEPA claim is akin to arguing that the filing of a complaint in Superior Court alleging age discrimination by an employer establishes that element.

While CEPA allows for a variety of means by which the whistle may be blown, initiating an adjudicatory process is not one of them. The very nature of the adjudicatory process - whether administrative by grievance or judicial by complaint - is to provide a neutral forum for airing the complaint, determining whether the complaint has a legitimate basis through adversarial proceedings, and adjudicating an outcome. CEPA aims to protect employees who do not have an adjudicatory process available to air a complaint or who are pressured or intimidated into forgoing their adjudicatory rights. If plaintiff genuinely believed that the superintendent and/or the Board was creating a hostile work environment for senior employees, his remedy was to file a complaint for age discrimination under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, or the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. 621 to 634. Both of those statutes protect employees who file such claims. Plaintiff chose the administrative grievance process as he was permitted to do.

Plaintiff received two reprimands based upon his conduct, neither of which had anything to do with age. He had every right and the opportunity to grieve the reprimands. To contort the grievance process into a purported whistle-blowing trivializes CEPA, its intent and the employees it seeks to protect.

In short, plaintiff has not established a prima facie case for a CEPA claim.

III

Plaintiff further argues that there are disputed facts which "raise questions as to whether [defendants'] actions directed at [plaintiff] were in retaliation for complaints [plaintiff] made regarding the workplace." According to plaintiff, his suspension the day after filing the grievance was the retaliatory conduct by defendants that satisfies the third element of CEPA. As the trial court noted, however, we do not reach the retaliation issue unless plaintiff has established the first two elements of a CEPA claim. The trial court correctly found that plaintiff did not satisfy the first two elements and could not, therefore, maintain a CEPA claim against defendants. We agree with that determination. Disputed facts related to the retaliation element do not, therefore, defeat summary judgment in this case.

Affirmed.

(continued)

(continued)

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A-2501-07T2

March 20, 2009