JEWEL E. ELIAS v. RIVER VALE BOARD OF EDUCATION, FRANK R. ALVAREZ, BETTY ANNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1206-03T21206-03T2

JEWEL E. ELIAS,

Plaintiff-Appellant,

v.

RIVER VALE BOARD OF EDUCATION,

FRANK R. ALVAREZ, BETTY ANNE

MCGUIRE, and MICHAEL RATNER,

Defendants-Respondents.

_________________________________

 

Argued October 17, 2005 - Decided

Before Judges Cuff, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

BER-L-4588-01.

Silvana D. Raso argued the cause for appellant (Schepisi & McLaughlin, attorneys; Ms. Raso, of counsel; Asteris J. Fanikos and Anna T. Patounakis,

on the brief).

Philip E. Stern argued the cause for respondents (Sills, Cummis, Epstein & Gross, attorneys; Mr.

Stern, of counsel and on the brief).

PER CURIAM

Plaintiff, Jewel E. Elias, appeals from summary judgment dismissal of all her claims save for that raised under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and from judgment following a jury verdict of no cause of action on her CEPA claim. Plaintiff's lawsuit relates to her termination by defendant, River Vale Board of Education, as principal of a district elementary school, less than one year after hire in accordance with a one-year contract providing for mutual termination only subject to sixty days notice by either party. For the following reasons, we affirm the judgments below.

Some background is in order. Plaintiff was discharged on February 13, 2001. Four months later, on June 1, 2001, she filed a complaint against defendants, asserting statutory claims under CEPA and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, as well as multiple common law claims, including defamation, tortious interference with prospective economic advantage, intentional infliction of emotional distress, and breach of the implied duty of good faith and fair dealing. These claims are based, in large measure, on her allegation that she was fired in retaliation for her discovery, disclosure, and investigation of reports that a popular teacher had tampered with students' records, and that thereafter defendants defamed her and interfered with her attempts to obtain other employment. Defendants, on the other hand, deny plaintiff's discharge was retaliatory, but was instead necessitated by her rash, indelicate handling of the situation, which alienated many teachers, disrupted daily school activities, and was reflective of a divisive personality that had already caused discontent among many of the school's teachers.

Following discovery, defendants moved for summary judgment. After hearing arguments, the motion judge dismissed plaintiff's OPMA claim, finding that plaintiff had not provided any justification for filing beyond the statute's forty-five day limitations period, N.J.S.A. 10:4-15(a), and therefore, declined to relax the time requirement. The judge also dismissed the tortious interference, intentional infliction of emotional distress, and contract claims because the proofs for each were "intrinsically interwoven with the CEPA claims[]", and therefore, waived under N.J.S.A. 34:19-8. Although the judge reserved judgment on plaintiff's defamation claim, she eventually dismissed that count as well following an unrecorded telephone conference among the parties, their counsel, and the court. Finally, the judge denied summary judgment on plaintiff's CEPA cause of action, which proceeded to jury trial and ultimately resulted in a verdict of no cause.

On appeal, plaintiff raises the following issues for our consideration:

I. THE MOTION JUDGE ERRED IN HER RULING ON JULY 25, 2003, BY GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF.

A. The Motion Judge's Failure to Provide a Statement of Reasons for her Disposition, in Derogation of R. 1:6-2(f), R. 1:7-4, and R. 4:46-2(c) Constitutes an Abuse of Discretion.

B. The Motion Judge Erred in [her] Ruling that the Filing of a CEPA claim Waived Plaintiff's Common Law Claims.

C. The Motion Judge Erred in Granting Summary Judgment as to the Individual Claims when Genuine Issues of Material Fact Existed for a Jury's Determination.

D. Qualified Immunity is not Available as an Affirmative Defense by Defendants.

II. THE TRIAL COURT ERRED BY REFUSING TO ALLOW ANY TESTIMONY PERTAINING TO PLAINTIFF'S OFFER OF RESIGNATION AND THE BOARD'S WRONGFUL FAILURE TO ACT UPON SAME.

A. Plaintiff's offer of resignation and the Board's wrongful failure to act upon same is relevant and probative and should have been permitted.

B. N.J.R.E. 408 does not bar the admission of Plaintiff's offer of resignation and the Board's wrongful failure to act upon same

III. THE TRIAL COURT ERRED BY REFUSING TO ALLOW THE INTRODUCTION OF ANY TESTIMONY PERTAINING TO PHILLIP STERN'S LETTER OF NOVEMBER 27, 2000 AND ANY COMMUNICATIONS RELATED THERETO.

IV. THE TRIAL COURT ERRED BY REFUSING TO ALLOW INTRODUCTION OF ANY TESTIMONY PERTAINING TO THE BERGEN COUNTY PROSECUTOR'S INVESTIGATION.

A. Trial Court's refusal to permit introduction of any testimony relating to the Bergen County Prosecutor's investigation was erroneous as same was relevant.

B. N.J.R.E. 803(c)(6) does not bar the admission of testimony and documents pertaining to the Bergen County Prosecutor's investigation and as a result, such exclusion by the trial court was erroneous.

C. N.J.R.E. 803(c)(8) does not bar the admission of testimony and documents pertaining to the Bergen County Prosecutor's investigation and as a result, such exclusion by the trial court was erroneous.

V. THE TRIAL COURT ERRED AS TO THE INSTRUCTIONS IT GAVE TO THE JURY AS WELL AS ITS RESPONSES TO A QUESTION ASKED BY THE JURY DURING DELIBERATION.

A. The Trial Court erred in its charges to the jury.

B. The Trial Court erred in its response to jury's second question during deliberations.

I.

We first address plaintiff's challenges to the summary judgment dismissal. In this regard, we view the facts on the summary judgment record, and all reasonable inferences, in the light most favorable to the party against whom summary judgment was entered. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff was hired in August 2000, to be the principal of Roberge Elementary School pursuant to a one-year contract with a provision for mutual termination subject to only sixty-days notice by either party. Within the first two weeks of the school term, plaintiff became aware of parental complaints over administration of the school's gifted program (GOAL), admission into which was based on a number of subjective and objective criteria, including teacher assessments, parent evaluations, peer assessments, academic proficiency, and a student's performance on certain objective tests. The GOAL program was directed by a teacher named Carol Montano. In mid-September, one parent, who was upset that her daughter had not been selected for the program, met with plaintiff and demanded to see her daughter's records, explaining that she had first tried to obtain them from Montano, but the teacher refused to provide them, claiming confidentiality. Plaintiff advised Montano that State law required her to produce the records and set up another meeting with Montano, the parents, and herself, during which Montano provided a rating sheet but no other information.

Shortly thereafter, plaintiff received requests from other parents who also wanted to see their children's GOAL records. Upon further investigation, plaintiff learned that Montano had been keeping the records at her home and ordered her to return them to school grounds immediately. On September 28, 2000, plaintiff also informed defendant, school superintendent Alvarez, of the situation.

On October 23, 2000, another parent informed plaintiff that she had received her daughter's records, but they had been falsified. The parent explained that she had spoken with two of the teachers whose evaluations were in her daughter's file, and each had advised her that they had not prepared the records with their names on them. The two teachers confirmed that the handwriting on the evaluations was not theirs, and that they would have evaluated the student differently. Further investigation revealed that similar discrepancies existed in another student's files. More parents began requesting their children's records, and on October 31, 2000, Alvarez eventually took over the GOAL investigation so that plaintiff could concentrate on the rest of her responsibilities.

Around this same time, plaintiff began to feel as if she were being targeted by the teachers' union for having initiated investigation of the GOAL program, and she reported this fact to Alvarez. Indeed, several teachers had filed grievances with the union against plaintiff for her handling of various other unrelated situations. Meanwhile, investigation into the GOAL program continued. Despite Alvarez's direction to concentrate her attention on other matters, and despite his independent investigation, plaintiff continued to interview teachers as late as December 2000. A closed session Board meeting was scheduled for January 31, 2001, to discuss both the results of Alvarez's investigation of the GOAL program and plaintiff's own handling of the matter.

Shortly before the January Board meeting, one member suggested that the Board forward the GOAL matter to the Bergen County Prosecutor's Office. Although the Board did not follow this recommendation, several parents did bring the matter to the Prosecutor's attention. After investigating the matter itself, the Prosecutor's Office determined that there was insufficient evidence to pursue a criminal indictment against Montano.

In the interim, on January 29, 2001, Alvarez completed an evaluation of plaintiff as he was legally required to do three times each year. The evaluation indicated that plaintiff had "accepted [her] . . . duties and responsibilities at Roberge School with a sense of mission and serious responsibility[,]" but her "beginnings at [the school had] not been without [their] problems." In particular, Alvarez noted that plaintiff could have handled several situations more delicately, such as her alterations to the master schedule and the GOAL issue. While agreeing that these issues "warrant attention," he explained that "the timing and the manner" in which plaintiff handled the situation "resulted in new problems which sometimes superseded the original concern." For example, Alvarez pointed out that "teachers [were] terribly unhappy" and felt that they had "been asked to 'testify' against each other, that their input [was] sought but not valued, and that there [was] an air of tension and stress which permeate[d] the essence of their work on a daily basis." In fact, he pointed out that four staff members had requested letters of recommendation so that they could seek other employment, three grievances had been filed, and more school issues had "risen to the Superintendents level thus far this year than at any other time." In conclusion, Alvarez warned plaintiff about her "inflammatory" style and her inability to "build trust and a professional relationship" with her staff, but stated that she "may still be able to do that" so that she could "move forward with [her] personal vision."

At the Board meeting on January 30, 2001, the teachers' union submitted a letter of "no-confidence" in plaintiff. Although the meeting was scheduled as a closed session, the Board briefly opened the session in order to determine why a crowd full of teachers was gathered. According to the union president who presented the letter, the teachers did not intend to make the letter known to the public, and it was presented without mention of its content. The Board accepted the letter and then went into a closed session meeting to discuss the matter, but no further action was taken. Among those concerns cited in the letter were plaintiff's "[c]ontinued disruption of classroom instruction . . . [b]ehavior unbecoming an administrator . . . [c]reating and fostering a stressful education environment . . . [and] [u]nsatisfactory administration of Roberge School." Plaintiff had no notice of the fact that the letter was going to be presented that evening and was not in attendance at the meeting.

Upon learning of the letter, plaintiff began drafting a letter of resignation, in which she demanded, in exchange for a revised version of the January 29 evaluation, a letter of recommendation, and positive comments to inquiring districts. While Alvarez may have been willing to allow plaintiff to remain at Roberge until the end of the year if he had a suitable letter of resignation "in hand," he not only felt that there was not a lot of time for negotiation, but also apparently unbeknownst to plaintiff, insisted he would "not ever rewrite an evaluation" and was not comfortable preparing a letter of recommendation. Alvarez never received another letter from plaintiff regarding her resignation.

Around the same time, a closed Board meeting was scheduled for February 13, 2001, to discuss plaintiff's employment status. Although she received notice of the meeting and its purpose, plaintiff did not attend because she believed Alvarez was going to submit her letter of resignation on her behalf. However, Alvarez did not present the letter on February 13, and instead he recommended that plaintiff's employment be terminated. In accordance with the termination provision in the contract, the Board voted to immediately dismiss plaintiff and pay her for an additional sixty days.

Plaintiff did not learn she had been fired until she arrived for school the next day. When she asked Alvarez why her employment had been terminated, he replied that "it [was] in [her] observation." A letter from the Board's attorney issued more than a month later reiterates this reasoning and also cites additional reasons for the Board's decision, such as plaintiff's failure to timely perform teacher evaluations or submit her annual budget, although, according to one Board member, these reasons were not critical to the termination decision.

Following plaintiff's termination and the filing of her lawsuit, Alvarez informed a superintendent in another school district that plaintiff left Roberge under "less than desirable conditions." Another Board member admitted that he had spoken to other administrators in the area about what happened at Roberge and informed them about plaintiff's legal action against the Board. Still, another Board member, defendant Ratner, wrote letters to the local newspaper defending the Board's actions and indicating that he would publicize the reasons for plaintiff's termination, but he never followed up with any specific details.

Since her discharge, plaintiff has been unable to obtain permanent employment in any teaching or administrative role despite sending out over 150 resumes. She suffered a recurrence of depression in 2001 and will likely remain on anti-depressants for the rest of her life.

(A)

We consider plaintiff's various challenges to the summary judgment dismissals in the light of this background. First, we reject her claim of error in the summary dismissal of her OPMA cause of action. That count of the complaint is grounded on plaintiff's allegation that the Board violated OPMA not only by discussing the letter of "no-confidence" at its January 30, 2001 meeting without noticing plaintiff that her employment status would be discussed, but also when Alvarez recommended her immediate termination after purportedly telling her she did not have to attend the February 13 Board meeting because he would present her letter of resignation for her. However, despite her awareness of both incidents no later than February 14, when she learned of her discharge, plaintiff did not raise the issue until she filed her complaint on June 1, 2001, well beyond the statutory forty-five day limitations period.

On this score, OPMA expressly requires that any complaint brought pursuant to its provisions be brought "within 45 days after the action sought to be voided has been made public." N.J.S.A. 10:4-15(a); Jersey City v. Dep't of Envtl. Prot., 227 N.J. Super. 5, 22 (App. Div.), certif. denied, 111 N.J. 640 (1988). Here, as noted, plaintiff's OPMA complaint was filed well beyond the statutory expiration period. Moreover, she failed to provide any justification for the late filing and, instead, simply asked the court to "relax" the time requirements. We conclude that the motion judge did not err in refusing to do so. "[V]alid or not," plaintiff's claim was "tardy and not cognizable." Jersey City, supra, 227 N.J. Super. at 22.

(B)

We next consider the summary dismissal of the defamation count. As a threshold matter, we note that the motion judge failed to provide a statement of reasons for her decision, in derogation of Rules 1:6-2(f), 1:7-4, and 4:46-2(c). As we have explained in the past, "neither the parties nor we are well-served by an opinion devoid of analysis or citation to even a single case." Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 498 (App. Div. 2000).

The obligation to make specific findings on summary judgment motions in accordance with R. 1:7-4 has been explicitly stated in R. 4:46-2 since 1972. A trial judge is obliged to set forth factual findings and correlate them to legal conclusions. Those findings and conclusions must then be measured against the standards set forth in Brill.

[Ibid.]

Nevertheless, our independent review of the record reveals that plaintiff's defamation claim lacks any factual or legal support. See Farmingdale Realty Co. v. Borough of Farmingdale, 55 N.J. 103, 106 (1969)(recognizing appellate court's authority to make independent findings of fact when the trial court has failed to do so); Leeds v. Chase Manhattan Bank, N.A., 331 N.J. Super. 416, 420-21 (App. Div. 2000).

In the first place, "summary judgment is particularly appropriate for disposing of non-meritorious defamation suits." Rocci v. Ecole Secondaire MacDonald-Cartier, 165 N.J. 149, 158 (2000). "'By discouraging frivolous defamation actions, motions for summary judgment keep open lines of communication to the public on' matters of public concern." Ibid. (quoting Dairy Stores, Inc. v. Sentinel Publ'g Co., 104 N.J. 125, 157 (1986)).

"[W]hen the evidence is sufficiently one-sided . . . [so that] one party should prevail as a matter of law, summary judgment" should be granted. Checchio, supra, 335 N.J. Super. at 502.

A statement is generally "defamatory if it is false, communicated to a third person, and tends to lower the subject's reputation in the estimation of the community". Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164-65 (1999). "Whether a statement is defamatory depends on its content, verifiability, and context." Id. at 167. "'A plaintiff does not make a prima facie case of defamation if the contested statement is essentially true.'" Govito v. W. Jersey Health Sys., 332 N.J. Super. 293, 305 (App. Div. 2000) (quoting Hill v. Evening News Co., 314 N.J. Super. 545, 552 (App. Div. 1998)). Likewise, because statements of opinion typically "cannot be proved true or false[,] . . . [they] do not trigger liability unless they imply false underlying objective facts." Lynch, supra, 161 N.J. at 167. In other words, "[l]oose, figurative or hyperbolic language" is not likely to be deemed actionable. Id. at 168.

Rather, "[t]o prove defamation, a plaintiff must establish damages and that the defendant '(1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false and (4) which was communicated to a person other than the plaintiff.'" Govito, supra, 332 N.J. Super. at 305 (quoting Feggans v. Billington, 291 N.J. Super. 382, 390-91 (App. Div. 1996)) (emphasis added). Additionally, a plaintiff must prove fault. Id. at 306. On this score, the Court has recognized that there is a strong public interest in the behavior of school officials and that "there must be free discourse, commentary, and criticism regarding a teacher's professionalism." Rocci, supra, 165 N.J. at 157. Thus, allegedly defamatory material involving a school official's performance, such as that considered here, "involves a matter of public concern" and "requires enhanced protection." Id. at 159.

In the present case, plaintiff has not identified any defamatory statements, let alone provided any evidence to meet her heightened burden of proving fault. First, Alvarez's comment to another superintendent that plaintiff left Roberge under "less than desirable circumstances" was neither fact-specific nor obviously false, and instead is precisely the type of opinion protected by the First Amendment. See Rocci, supra, 165 N.J. at 156-58. In fact, it appears undisputed that plaintiff did leave under "less than desirable conditions," as evidenced by her own desire to resign, the list of grievances filed against her, and the union's vote of "no-confidence" in her leadership.

Just as undeniable, none of the comments of the other Board members were either made with reckless disregard for their truth, or specific enough to have caused pecuniary or reputational harm. See Lynch, supra, 161 N.J. at 167-68; Govito, supra, 332 N.J. Super at 306. While Ratner may have written letters to the local newspaper indicating the Board gave plaintiff an opportunity to present her case and stating that he would publicize the reasons for the Board's termination decision, plaintiff fails to identify therein any derogatory comments or false statements regarding her performance as a principal. At most, she argues that these remarks could lead one to infer "the worst" about her conduct as a principal, but, here again, she declines to elaborate or specify. Such broad pleading hardly satisfies plaintiff's prima facie burden, particularly in view of the heightened interest regarding the performance of public school principals and the innocuous nature of the alleged defamatory material. Thus, despite the absence of factual findings below, we conclude the summary dismissal of plaintiff's defamation claim was proper.

(C)

Next, we consider the dismissal of plaintiff's common law claims of intentional infliction of emotional distress and breach of the implied duty of good faith and fair dealing. Unlike the defamation count, the motion judge provided reasons for the dismissal of these counts, namely that the proofs for each were "intrinsically interwoven with the CEPA claims" and thereby waived under N.J.S.A. 34:19-8. We agree.

CEPA's waiver provision states:

Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.

[N.J.S.A. 34:19-8.]

CEPA's waiver provision encompasses not only all claims for retaliatory discharge, but also all parallel claims directly related to the termination inasmuch as they "involve the [same] retaliatory conduct . . . essential to the CEPA claim." Young v. Schering Corp., 141 N.J. 16, 26 (1995); Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298, 318 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998). Because they are duplicative of the statutory claim, such common law causes of action are subsumed therein and deemed waived.

Our review of the intentional infliction of emotional distress and breach of implied covenant counts pled in her complaint persuades us that these causes of action are based essentially on activities occurring during the employment relationship, are reliant upon the same proofs as those necessary to sustain the CEPA claim, and are dependent on the identical retaliatory conduct alleged in the statutory count. In other words, to sustain these common law claims, plaintiff is required to show elements of each with regard to whether those actions were done in retaliation for her discovery and disclosure of Montano's conduct. See Young, supra, 141 N.J. at 32. As such, we deem these claims waived.

We also conclude that both claims are unsupported by any competent evidence to withstand defendant's summary judgment motion.

Generally, to prevail on a claim of intentional infliction of emotional harm, "the plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe." Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (emphasis added). "[T]he defendant must intend both to do the act and to produce emotional distress", or at least act "in deliberate disregard of a high degree of probability that emotional distress will follow." Ibid. "The conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Ibid. (quoting Restatement (Second) of Torts 46, comment d (1965)). Except for aggravated discriminatory conduct, "'it is extremely rare

. . . [to see the type of] conduct in the employment context that will rise to the level of outrageousness necessary to . . . [support a claim for] intentional infliction of emotional distress.'" Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 23-24 (App. Div. 2001) (quoting Cox v. Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)).

'While loss of employment is unfortunate and unquestionably causes hardship, often severe, it is a common event' and cannot provide a basis for recovery . . . . Consequently, an ulterior motive for discharging an employee, such as personal dislike, does not by itself provide a sufficient foundation for finding the level of outrageousness required to support this cause of action.

[Griffin, supra, 337 N.J. Super. at 24 (quoting Cox, supra, 861 F. 2d at 395).]

Here, defendants' conduct does not even approximate the requisite level of outrageous and atrocious behavior. The Board only fired plaintiff after several teachers filed grievances against her, the union issued a vote of "no-confidence", and her supervisor prepared a negative evaluation. Moreover, plaintiff was terminated in accordance with the provisions of her one-year contract. None of this behavior was particularly unusual, let alone "beyond all possible bounds of decency," and it cannot be concluded that by acting in this manner defendants intended or deliberately disregarded the likelihood that plaintiff would suffer from severe emotional distress as a result. Absent any genuine issue of material fact, plaintiff's intentional tort claim cannot prevail.

Nor does the proof support plaintiff's claim that defendants breached the implied duty of good faith and fair dealing by firing her in the middle of the year, rather than giving her "enough time to turn the situation around," or even to resign at the end of the year. To be sure, "every contract in New Jersey . . . [includes] an implied covenant that 'neither party [will] . . . do anything which will . . . destroy[] or injur[e] the [other party's right] to receive the fruits of the contract.'" Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997) (quoting Palisades Prop., Inc. v. Brunetti, 44 N.J. 117, 130 (1965)). "The guiding principle in the application of the implied covenant of good faith and fair dealing emanates from the fundamental notion that a party to a contract may not unreasonably frustrate its purpose." Seidenberg v. Summit Bank, 348 N.J. Super. 243, 259 (App. Div. 2002).

Here, however, plaintiff fails to explain how defendants' decision to fire her mid-year frustrated the contract, which expressly allowed for termination at any time upon sixty days notice. While it is possible that a party could strictly abide its contractual right to terminate an agreement and still violate the implied covenant, id. at 258, such is not the case here. Plaintiff herself acknowledges that the school atmosphere at Roberge was poor by the beginning of 2001. Teachers were offering their resignations, parents were unsatisfied, and school Board meetings were in upheaval. Indeed, prior to her discharge, plaintiff had prepared a letter of resignation effective at the end of the year. Defendants, of course, were under no obligation to accept this offer, and by refusing it, or even ignoring it, they did not alter the course of the contract. Ultimately, their decision to terminate plaintiff's employment in the middle of the year, rather than waiting until the end of the year, accorded with the terms of her contract and was both permissible and reasonable in light of the discord at the school.

(D)

In contrast to her other common law claims, save defamation, we find that plaintiff's cause of action for tortious interference with prospective economic advantage is exempt from CEPA's waiver provision. However, like plaintiff's other common law counts, this one fails as well for want of any competent supporting proof.

CEPA's waiver provision "does not apply to those causes of action that are substantially independent of the CEPA claim." Young, supra, 141 N.J. at 29. In other words, causes of action that do not depend on retaliatory conduct and, therefore, require different proofs than those necessary to a CEPA claim, are not waived simply because a CEPA claim has also been filed. Id. at 32; Mehlman v. Mobil Oil Corp., 291 N.J. Super. 98, 142-43 (App. Div. 1996), aff'd, 153 N.J. 163 (1998). Consequently, the exception does not apply to post-employment actions, such as retaliatory negative references, which cannot form the basis of a CEPA claim because they do not arise within the employment relationship. Beck v. Tribert, 312 N.J. Super. 335, 343 (App. Div.), certif. denied, 156 N.J. 424 (1998).

Here, plaintiff's claim for tortious interference with prospective economic advantage is largely founded on defendants' conduct after her termination and could not have provided the basis for a CEPA claim. Id. at 343-44. Simply put, plaintiff was required to establish the elements of this particular claim without regard to whether defendant's actions were done in retaliation for her discovery and disclosure of Montano's conduct. See Young, supra, 141 N.J. at 32.

Although not waived, the claim was nevertheless properly dismissed because the evidence on the summary judgment record was insufficient as a matter of law to sustain it.

To establish a claim for tortious interference with contractual relations, a plaintiff must prove: (1) actual interference with a contract; (2) that the interference was inflicted intentionally by a defendant who is not a party to the contract; (3) that the interference was without justification; and (4) that the interference caused damage.

[Dello Russo v. Nagel, 358 N.J. Super. 254, 268 (App. Div. 2003).]

Thus, plaintiff was required to show that she had "some protectable right - a prospective economic . . . relationship," and that she was denied that opportunity due to defendants' malice. MacDougall v. Weichert, 144 N.J. 380, 404 (1996). Although the lost opportunity need not have amounted to an enforceable contract, "there must [have been] allegations of fact giving rise to some 'reasonable expectation of economic advantage.'" Ibid. (quoting Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 751 (1989)). Further, when considering whether defendants' purported interference was malicious, or without justification, the trial court is required to consider the nature of their conduct, their motives, the interests they sought to advance, and the social interest in protecting their freedom of action. Id. at 404-05.

In this case, plaintiff bases her tortious interference claim on the fact that she was unable to obtain another permanent job after she was fired, despite her credentials and concerted effort to do so. She relies almost exclusively on the fact that defendants fired her in the middle of the year, rather than allowing her to resign, which reflected poorly upon her, and the allegedly defamatory statements made to the local newspaper and other superintendents, to support her claim. These assertions alone, however, are simply insufficient to warrant submission of the claim to a jury. First, plaintiff merely demonstrated that she sought other employment and was qualified, not that she had any "reasonable expectation of economic advantage." For example, she did not present any evidence indicating that any of the schools she applied to were in contact with defendants, read the newspapers, or failed to provide her employment for any of the reasons alleged in her complaint. See Beck, supra, 312 N.J. Super. at 352-53. Moreover, as noted, none of the statements made by defendants were defamatory since they were either true or not obviously false and were so vague as not to be capable of producing harm. Ibid.; see also Dello Russo, supra, 358 N.J. Super. at 269 (complaint properly dismissed because it failed to identify specific words of defamation which led to tortious interference). In short, plaintiff failed to demonstrate by any proof that she lost an economic opportunity or that any missed chances were caused by intentional, unjustified behavior on defendants' part. Summary judgment was appropriate.

II.

Plaintiff's remaining arguments on appeal involve the trial of the CEPA claim. She alleges error in the exclusion of certain evidence, and in the jury instructions. To put these issues in proper context, we first briefly recite the additional evidence relating to plaintiff's termination that was elicited at trial, beyond the summary judgment record.

When plaintiff early on informed Alvarez of her concerns over the GOAL program, the superintendent directed her to first make an independent determination as to whether or not the enrolled students belonged in the GOAL program in order to keep the school year moving smoothly, and then to deal with Montano and issue her a reprimand if appropriate. Plaintiff filled out an official reprimand and placed it in Montano's file the next day. Acknowledging that the GOAL records were "in disarray", Alvarez advised plaintiff that he would "issue a report to the Board with recommendations regarding Carol Montano. Although this is a serious issue, GOAL is a small part of our school program, let's move on."

According to Alvarez, by this time, plaintiff had become consumed by the GOAL matter, and she was "trying to hold court" rather than perform the rest of her duties as principal. Indeed, several of the school's teachers testified that they felt threatened by plaintiff because she was "always storming into classes, slamming doors, pulling people out of classes to go to meetings with her." Even one of the teachers, who confronted Montano about the students' records, indicated that plaintiff's handling of the situation had created a "very negative situation" because plaintiff's confrontational style had resulted in a "down and depressed" faculty in which everybody was looking over each other's shoulder. As this particular teacher explained, "[i]t was kind of miserable getting up every day already because the atmosphere was not what it was the year before. It was a very pleasant place to work prior to that, very family feeling with our staff, and it didn't feel that way at all that year." Plaintiff's own secretary recounted that plaintiff was frequently pulling teachers out of class and calling them down to her office, where she would "slam" the door and "then they would come out a few minutes later very upset and crying."

Amidst this disarray, Alvarez's investigation into the GOAL program continued. Because parents were beginning to contact school board members about the student records, the Board scheduled a meeting for December 19, 2000, to review the outcome of Alvarez's investigation and determine what further action might be necessary. As a result of this meeting, Alvarez issued Montano a formal letter of reprimand, and a committee, which included teachers and parents, was formed to review the entire GOAL selection criteria. Eventually the GOAL program was overhauled in response to the recommendations made by the committee of parents and teachers.

During the December 19, 2000 meeting, Alvarez also informed the Board of his concerns over plaintiff's handling of the GOAL matter and the problems occurring within the school. A closed session Board meeting was then scheduled for January 30, 2001. At that meeting, the Board accepted a letter of "no-confidence" from the teachers' union and then returned to closed session where it was discussed, but no action was taken. Following Alvarez's January 29, 2001 evaluation of plaintiff, a closed Board meeting was scheduled for February 13, 2001, at which time Alvarez recommended plaintiff's employment be terminated and the Board voted in accordance therewith. Plaintiff was dismissed immediately and paid for an additional sixty days.

(A)

Plaintiff's first claim of trial error concerns the exclusion of various proffers of evidence. She contends the trial judge erred in refusing to allow into evidence: (1) testimony about her offer of resignation, which was not accepted, and that of another teacher who was allowed to resign; (2) a letter from Board counsel advising the Board of the accused teacher's potential criminal liability and the courses of action available to it; and (3) testimony concerning the Bergen County Prosecutor's investigation of the GOAL matter. We discern no error in any of these rulings.

The decision to exclude evidence on relevancy grounds is within the sound discretion of the trial court. State v. Catlow, 206 N.J. Super. 186, 193 (App. Div. 1985), certif. denied, 103 N.J. 465 (1986). In determining whether evidence is relevant, the inquiry should focus upon the "logical connection between the proffered evidence and a fact in issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). Of course, even where there is some logical relevancy, the judge must rely on his or her "own experience, his [or her] general knowledge, and his [or her] understanding of human conduct and motivation[,]" before admitting evidence. State v. Allison, 208 N.J. Super. 9, 17 (App. Div.), certif. denied, 102 N.J. 370 (1985); Catlow, supra, 206 N.J. Super. at 193. Material evidence is not necessarily probative, and it is the trial court's obligation to determine whether the proffered evidence "renders the desired inference

. . . more probable than it would be without the evidence." Allison, supra, 208 N.J. Super. at 17. Moreover, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403.

Here, the trial judge's evidentiary decisions were well within his discretion. The excluded evidence had slight, if any, probative value, but its inclusion had the strong potential to confuse the jury and unduly prejudice defendants.

(i)

For example, the Board's favorable treatment of another school district employee's resignation occurred under markedly different circumstances. That incident involved a different class of employee - a teacher, not an administrator - and one who enjoyed tenure, unlike plaintiff whose one-year contract with a sixty-day notice requirement subjected her to substantially different removal procedures. And, in any event, plaintiff's supporting documentation simply indicated that the teacher resigned "due to family issues," not misconduct or poor performance. As importantly, and contrary to plaintiff's suggestion, the trial court did allow plaintiff to question whether it was unusual to fire a principal mid-year. Counsel simply did not do so. In short, there was no error in excluding evidence surrounding plaintiff's offer of resignation.

(ii)

The letter authored by Board counsel was in response to the client's request for legal advice and accordingly, advised the Board as to any potential liability of the accused teacher and how to proceed thereafter, matters unrelated to plaintiff's employment situation. As such, the letter was privileged attorney-client material, and inadmissible for that reason alone. Hannan v. St. Joseph's Hosp. & Med. Ctr., 318 N.J. Super. 22, 27 (App. Div. 1999); Dontzin v. Myer, 301 N.J. Super. 501, 506 (App. Div. 1997). The letter also had limited probative value since it did not conclude that a crime had been committed and, in any event, the nature of the accused teacher's conduct was never really in issue. Accordingly, its exclusion from evidence was proper.

(iii)

For basically the same reason, evidence pertaining to the criminal investigation was also properly excluded. On this score, defendants never really challenged the fact that plaintiff honestly believed there was wrongdoing in the administration of the GOAL program. Indeed, both plaintiff and Alvarez officially reprimanded Montano. Therefore, evidence of the prosecutor's investigation had minimal, if any, probative value. On the other hand, its tendency to confuse the jury and prejudice defendants was substantial. As the trial judge intimated, the jury might have misconstrued the prosecutor's involvement and concluded that the Board was being investigated as well. In fact, at one point, the judge reminded the jury that no criminal actions were taken against defendants when one of plaintiff's witnesses testified that he believed crimes had occurred without specifying what, or whom, he was talking about. Likewise, later in the trial, the court reiterated its fear that "the jury was somewhat confused over the trial and sort of interwove Montano's actions with those of Alvarez and the Board . . . ." Ultimately, the real potential for confusion or prejudice inherent in this evidence far outweighed its limited relevance, and justified exclusion. N.J.R.E. 403.

(B)

Plaintiff's final claim of error is that the judge erred in instructing the jury that it should only find for plaintiff if it determined that she had been retaliated against due to her discovery and disclosure of the alleged tampering, as opposed to her handling of the situation thereafter. In other words, plaintiff's complaint is that the judge failed to instruct the jury that plaintiff was protected under CEPA for her continuing objection to Montano's alleged tampering. We conclude that the jury charge properly explained the law in light of the facts of the case.

"Jury charges 'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them.'" Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591 (1966)). If a jury requests a clarification, the trial court "is obligated to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984). When reviewing a claim of error in a jury charge, appellate courts "must consider the charge as a whole to determine whether it 'adequately convey[s] the law to the jury and do[es] not mislead or confuse.'" Domurat v. CIBA Specialty Chem. Corp., 353 N.J. Super. 74, 93 (quoting Zappasodi v. State, 335 N.J. Super. 83, 89 (App. Div. 2000)), certif. denied, 175 N.J. 77 (2002). Our review is limited to whether the "charge, as a whole, was capable of producing an unjust result." Ibid.

We note, at the outset, that plaintiff never objected when the court submitted the first question to the jury:

Do you find that the plaintiff has proved by a preponderance of the evidence that her objection and refusal to participate in the alleged violation of law, rule, or regulation promulgated pursuant to law was a determinative factor in her discharge?

Accordingly, when the jury inquired whether the phrase "'does her objection or refusal to participate' refer only to her discovery and disclosure of the alleged violation or her overall role in relationship to [the] alleged violation," the court reasonably instructed it to only consider whether plaintiff was retaliated against for her "discovery and disclosure" of the wrongdoing. As the court stated to counsel, the "animus on the part of the Board" was its retaliation for plaintiff's "reporting to the superintendent that there [were], first, missing records; second, records that were tampered with."

Indeed, plaintiff never contended at trial that her persistence, as opposed to her discovery and disclosure of wrongdoing, was the source of defendants' alleged retaliation. In fact, it was plaintiff's avowed position throughout trial that she was "squeezed" and "fed to the wolves" from the outset. To be sure, plaintiff's involvement with the GOAL investigation persisted for several months despite the superintendent's direction to the contrary, but the claimed motivation for the retaliation always remained plaintiff's initial discovery and reporting of, and objection to, Montano's conduct, not her continued involvement.

On the contrary, plaintiff's ongoing response to the GOAL controversy and its consequent effect on the quality of her overall management of the school was an entirely separate matter and the very basis for defendants' defense, justifying their discharge decision. And the trial judge carefully explained this distinction to the jury, differentiating between plaintiff's protected conduct, namely, her opposition to "the keeping of the records off of the premises and the alleged tampering of the records," and her behavior thereafter, in defiance of her superior's orders, which formed the basis of defendants' defense. Accordingly, we perceive no error in the court's instructions.

Even if the court's direction to focus only on whether plaintiff's actual discovery and disclosure of wrongdoing precipitated her firing may have been erroneous, we are satisfied it was harmless. R. 2:10-2. The evidence simply did not suggest that plaintiff's persistence could be considered separate and apart from the originating source, namely, plaintiff's discovery and reporting of wrongdoing. Having found no cause of action for retaliatory discharge in the instigation and inception of plaintiff's investigation, what followed thereafter could not possibly have fared any better. We are, therefore, satisfied that read as a whole, the charge clearly conveyed to the jury that it should find for plaintiff if she had proven that she was fired, or retaliated against at any point, because she objected to the tampering.

 
Affirmed.

Other named defendants are Superintendent Dr. Frank Alvarez and two other Board members, Betty Anne McGuire and Michael Ratner.

The court's colloquy with counsel on this point continued:

THE COURT: See, the difficulty I have with saying that its [the] overall role in relationship to her alleged violation is

--- you have singled out as the reason for the retaliation was her reporting -- at least the way we began the CEPA charge -- with her reporting to the superintendent that there was this, first, missing records; second, records that were tampered with. Those are the items relating to the retaliatory conduct, not her overall role in relationship to her alleged violation. I'm not even sure I know what that means, quite frankly. That's why I was going to indicate that what it's referring to is her discovery and disclosure of the alleged violation. I think that's what you're talking about in terms of CEPA, right?

PLAINTIFF'S COUNSEL: Well, certainly the initial objection is part of it, but I think the continuing objection is also relevant.

THE COURT: Well, what's the continuing objection?

PLAINTIFF'S COUNSEL: Just to the whole process of back and forth.

THE COURT: Yeah, but, you see, then you're getting -- then you're slipping into the defendants' position that they felt that her handling -- that her handling is --

PLAINTIFF'S COUNSEL: Your Honor, I'll go just with the initial discovery and discharge [sic] it.

THE COURT: All right. Okay.

In colloquy with counsel, the trial court interpreted the jury's question as follows:

You know what they're looking at, very frankly. The position of Dr. Alvarez was that it wasn't the fact that she blew the whistle on this paper, it was the fact that she didn't handle the entire GOAL issue correctly . . . . But the issue under CEPA is her initial whistle blowing, which is when she reported, first, that the files were missing, and second, that they were tampered with. That is the issue as it relates to CEPA. The other issue relates to the defendants' defense that this was simply mismanagement on her part of one of many things.

(continued)

(continued)

38

A-1206-03T2

November 16, 2005