MAUREEN ROBINSON v. STATE OPERATED NEWARK PUBLIC SCHOOL DISTRICT

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NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2345-08T2

MAUREEN ROBINSON,

     Plaintiff-Appellant,

v.

STATE OPERATED NEWARK
PUBLIC SCHOOL DISTRICT;
STATE OPERATED NEWARK
PUBLIC SCHOOL DISTRICT
ADVISORY BOARD; MARION
BOLDEN, individually and
in her capacity as
Superintendent of the State
Operated Newark Public
School District; LEILA
DINKINS, individually and in
her capacity as Principal of
the Malcolm X. Shabazz High
School,

     Defendants-Respondents.

________________________________________________________________

         Submitted February 3, 2010 - Decided August 26, 2010

         Before Judges Fisher and Espinosa.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Docket No.    L-
         10391-06.

         Mescall & Acosta, attorneys for      appellant
         (James C. Mescall, on the brief).

         Adams Stern Gutierrez & Lattiboudere, LLC,
         attorneys for respondents (Cherie L. Adams,

           of   counsel;   Ms.   Adams                    and     Erin        E.
           McLaughlin, on the brief).

PER CURIAM

    Plaintiff Maureen Robinson, a teacher in the Newark Public

Schools,    filed    a    claim       under       the    New    Jersey    Conscientious

Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, after

she was transferred to another school.                          She appeals an order

that granted summary judgment to defendants and dismissed her

complaint.    We affirm.

    The facts, viewed with legitimate inferences drawn in favor

of plaintiff, can be summarized as follows:

    Plaintiff       is    a     tenured    teacher         employed      by    the     State

Operated Newark Public School District (the District) to teach

special    education      students        and      was    assigned       to    Malcolm      X.

Shabazz    High     School      (Shabazz)         from    September       2001      through

December 2005.        The District had a policy that required all

teachers to report suspected child abuse to the Newark Police

Department and the Division of Youth and Family Services (DYFS)

immediately    and       then    to    inform       the    principal.              Plaintiff

testified that at a staff meeting in September 2005, defendant

Leila Dinkins, the principal at Shabazz, discussed her concern

that reports of abuse could have the negative effect of labeling

the school as "persistently dangerous" under the No Child Left

Behind Act, 20 U.S.C.A. ยงยง 6301 to 6578.                         Plaintiff testified


                                                                                    A-2345-08T2
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that    Dinkins    instructed       the    teachers       that    they   were    not    to

contact     either   DYFS    or    the    Newark       Police    Department     without

contacting her and that such calls were only to be made with her

approval.

       Plaintiff believed that this directive was contrary to the

District's policy, and, during her time at Shabazz, she reported

the vice principal for "kicking a kid [student]" and "punching a

kid in the stomach."              Shortly before her transfer, she again

reported him for "slapp[ing] one of my kids in the face, ninth

grader, special ed."            Around the same time, she reported a male

teacher, Paul Greaves, for sexually touching a female student.

She reported these incidents to Dinkins only after informing

DYFS and the police.              It is undisputed that DYFS investigated

each of plaintiff's allegations.

       On   December      19,     2005,     plaintiff       was     involved     in     an

                          Greaves.1       According       to     plaintiff,     she    was
altercation       with

conversing in the hallway with a security guard when Greaves

walked between them and called in a loud voice to a student down

the hall.         Upset that he had purposely disrespected her, she

followed Greaves into his classroom and confronted him in front

of    his   students.       She    stated       that   Greaves     blocked    her     from

leaving     the    room   with     his    body,    and,    while    he   "held      [her]

1
    Greaves gave a different account of this incident.



                                                                                A-2345-08T2
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hostage," he insulted her.          She forced her way through the door

but was injured when Greaves tried to quickly close the door and

pushed her with his hip.

       Plaintiff    met   with    the   assistant       superintendent        and   her

union      representative    on    December       22,     2005     to   discuss     the

altercation she had with Greaves in front of students.                            Based

upon    her    investigation,       Dinkins       determined       that     plaintiff

"instigated the fight with Greaves in his classroom and in front

of   his    students."      By    letter       dated    December    23,    2005,    the

assistant     superintendent      notified       plaintiff       that   she   was    to

report to the offices of the School Leadership Team II (SLT 2)

until further notice.

       On January 20, 2006, plaintiff was reassigned to West Side

High School.       It is undisputed that plaintiff was not demoted as

a result of her transfer to West Side High School.                        She did not

suffer any loss of salary or health insurance during the 2005-06

school year while she was assigned to the SLT 2 offices and West

Side High School.         She admitted that she did not suffer any

financial loss in the 2005-06 school year other than a payroll

error that was remedied within a reasonable time.

       Plaintiff also admitted that she did not make any report to

any local, state or federal agency about any allegations that




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Dinkins or defendant Marion Bolden had committed any acts in

violation of any law, statute or regulation.

      Plaintiff filed this action against the District and two of

her   former    supervisors    alleging    seven   causes    of   action,   but

stipulated to a dismissal of everything other than her CEPA

claim.      Defendants moved for summary judgment on the CEPA claim,

which the court granted.             The court reasoned that plaintiff

could not meet three of the four required prongs of a CEPA

claim.       Specifically,     the   court   found   that:    there   was    no

credible evidence that plaintiff had engaged in a whistleblowing

activity because the district required her to report instances

of abuse; she had not suffered an adverse employment action

because she was transferred to an identical position; and she

had   not    rebutted    the   defendants'   non-retaliatory      reason    for

reassigning her.        On appeal, plaintiff raises these issues:

             POINT I

             PLAINTIFF HAS MADE A PRIMA FACIE SHOWING OF
             A VIABLE CAUSE OF ACTION UNDER THE NEW
             JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT
             (CEPA) N.J.S.A. 34:19-1 ET SEQ.

             POINT II

             SUMMARY   JUDGMENT  SHOULD   NOT  HAVE BEEN
             GRANTED WHERE MATERIAL ISSUES OF FACT EXIST
             REGARDING THE PLAINTIFF'S CEPA CLAIM.

      After carefully reviewing the briefs and record, we are

satisfied that neither of these arguments has merit.



                                                                      A-2345-08T2
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                                        I

       When reviewing a grant of summary judgment, we employ the

same standards used by the trial court, which grants summary

judgment if the record shows that "there is no genuine issue as

to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-

          Coyne v. N.J. Dep't of Transp., 
182 N.J. 481, 491 (2005);
2(c);

Burnett v. Gloucester County Bd. of Chosen Freeholders, 
409 N.J.

Super. 219, 228 (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 review issues of law de novo

and    accord   no     deference   to   the    motion    judge's   conclusions.

Zabilowicz v. Kelsey, 
200 N.J. 507, 512-13 (2009).                   First, we

determine whether the moving party has demonstrated that there

were    no   genuine    disputes   as   to    material   facts,    and   then   we

decide whether the motion judge's application of the law was

             Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.
correct.

Super. 224, 230-31 (App. Div.), certif. denied, 
189 N.J. 104

(2006).      In so doing, we view the evidence in a light most

favorable to the non-moving party.              Brill v. Guardian Life Ins.

Co. of Am., 
142 N.J. 520, 523 (1995).




                                                                         A-2345-08T2
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                                         II

    CEPA bars employers from retaliating against employees who

disclose    "to   a   supervisor    or   to   a   public    body   an   activity,

policy or practice of the employer . . . that the employee

reasonably    believes    is   in   violation      of   a   law,   or    rule   or

regulation . . . [or] is fraudulent or criminal."                        N.J.S.A.

34:19-3(a).       The statute was designed to "protect employees who

blow the whistle on illegal or unethical activity committed by

their employers or co-employees."             Estate of Roach v. TRW, Inc.,


164 N.J. 598, 609-10 (2000); Hancock v. Borough of Oaklyn, 
347 N.J. Super. 350, 358 (App. Div.), appeal dismissed, 
177 N.J. 217

(2003).     Like the New Jersey Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49, CEPA is "'remedial' legislation [that]

should be construed liberally to effectuate its important social

goal."     Abbamont v. Piscataway Twp. Bd. of Educ., 
138 N.J. 405,

431 (1994).

    To support a CEPA claim, an employee must show

            (1) he or she 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) he or she
            performed   a    "whistle-blowing"   activity
            described in N.J.S.A. 34:19-3[]; (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.




                                                                         A-2345-08T2
                                         7

            [Dzwonar          v.       McDevitt,         177        N.J.    451,       462
            (2003).]

See also Kolb v. Burns, 
320 N.J. Super. 467, 476 (App. Div.

1999).

      N.J.S.A. 34:19-2(e) defines "retaliatory action" as "the

discharge,      suspension         or       demotion           of    an    employee,         or    other

adverse employment action taken against an employee in the terms

and   conditions         of   employment."                    Because       plaintiff         was     not

discharged,      suspended,            or    demoted,          her       claim    of   "retaliatory

action"    must    rest       upon       proof       that       she       suffered      some      "other

adverse employment action taken against an employee in the terms

                                                    N.J.S.A. 34:19-2(e).
and conditions of employment."

      Such an action need not be the functional equivalent of a

demotion   or     suspension,            but    it       must       at    least    bear       upon   the

essence    of    the     employment          relationship.                  Beasley      v.    Passaic

County,    377     N.J.       Super.         585,       608     (App.       Div.       2005).        The

"withdrawal of benefits formerly provided to an employee may be

found in some circumstances to constitute an adverse employment

action."        Maimone       v.   City        of       Atl.    City,       
188 N.J.       221,    236

(2006).    The Supreme Court has also opined that "many separate

but relatively minor instances of behavior directed against an

employee    that       may     not      be     actionable             individually           but     that

combine    to     make    up       a    pattern          of     retaliatory            conduct"      may




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constitute an adverse employment action.                          Green v. Jersey City

Bd. of Educ., 
177 N.J. 434, 448 (2003).

       Nonetheless,       minor      sanctions        or    personal     distresses        are

insufficient; to qualify as a retaliatory action, the allegedly

wrongful       conduct    must     cause    "lasting          prejudice."           Hancock,

supra, 
347 N.J. Super. at 360 (citing Kadetsky v. Egg Harbor

Twp. Bd. of Educ., 
82 F. Supp. 2d 327, 340 (D.N.J. 2000)).                                 The

"adverse      employment       action"     is    limited      to     "completed      .     .   .

personnel actions that have an effect on either compensation or

job rank."        Klein v. Univ. of Med. & Dentistry, N.J., 
377 N.J.

Super.      28,   45-46    (App.     Div.),       certif.         denied,    
185 N.J.       39

(2005).       Further, CEPA was not enacted in order to "assuage egos

or settle internal disputes at the workplace."                              Klein, supra,

377    N.J.    Super.     at   45.       Consequently,            actions    that    "result

[only] in a bruised ego or injured pride on the part of the

                                          Beasley, supra, 377 N.J. Super. at
employee," are not covered.

607.

       In     Hancock,    this     court    found          that    neither      temporarily

assigning police officers to check pole lamps nor sending the

officers home to retrieve their required body armor qualified as

retaliatory       actions,       despite        the    fact       that   they      were    not

normally assigned such tasks and the body armor requirement was

never enforced against other officers.                       
347 N.J. Super. at 360.




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                                            9

We reasoned that such actions did not affect "their respective

compensation or rank" and thus did not go to the essence of the

                                                  see   also    El-Sioufi         v.   St.
employment    relationship.           Ibid.;

Peter's Univ. Hosp., 
382 N.J. Super. 145, 170 (App. Div. 2005)

(relying     on   CEPA    caselaw          to   determine      that    "unfavorable

evaluation[s], unaccompanied by a demotion or similar action" or

a job reassignment with no corresponding reduction in wages or

status are not retaliation covered by the LAD).

       Even construing the facts in the light most favorable to

plaintiff, defendants' transfer of plaintiff had no effect on

the essence of her employment relationship.                     She admitted that

she    remained   tenured     after       the   transfer,      was   paid    the       same

salary, kept her health insurance benefits and sick days, and

was assigned the same teaching responsibilities.                       Further, the

evidence does not reflect a history of numerous minor incidents

that   can   be   construed    as     a    pattern      of   retaliatory     conduct.

Thus, plaintiff has failed to present evidence that creates a

genuine issue of fact that she suffered an adverse employment

action by being transferred.

       Although   plaintiff's       counsel       conceded      before      the    trial

court that her time at the SLT 2 did not constitute an adverse

employment    action     because      of    its   temporary      nature,      she      now

argues that this month-long assignment constituted an adverse




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                                           10

employment action.      We note that the trial court was entitled to

rely on counsel's concession.        See Hammer v. Twp. of Livingston,


318 N.J. Super. 298, 303 (1999) (refraining from addressing an

issue due to a concession of counsel); Lundgren v. Eustermann,


370 N.W.2d 877, 881 n.1 (Minn. 1985); Reynolds v. White, 
128 N.Y.S. 529 (App. Div. 1911).         However, this argument lacks merit

because    plaintiff     enjoyed      the   exact       same   rights      and

responsibilities following her transfer as she had at Shabazz.

Therefore, affording plaintiff all reasonable inferences, one

month at SLT 2 was but a minor sanction that was not related to

                                          See Hancock, supra, 347 N.J.
the essence of her employment.

Super. at 360; El-Sioufi, supra, 
382 N.J. Super. at 170.                   The

facts   here,   as   admitted   by   plaintiff,   are    therefore   plainly

distinguishable from Nardello v. Township of Voorhees, 
377 N.J.

Super. 428 (App. Div. 2005) and Mancini v. Township of Teaneck,


349 N.J. Super. 527, 564-65 (App. Div. 2002), aff'd as modified,


179 N.J. 425 (2004), in which each plaintiff was effectively

demoted by the changes in circumstances of employment.

    Because we find that plaintiff's claim fails based on the

third prong of the CEPA analysis, we need not consider whether

she presented sufficient evidence to withstand summary judgment

as to the other prongs of her CEPA claim.

    Affirmed.




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