MICHELLE STEMPKOWSKI v. BRIAN J. DOHERTY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4802-05T14802-05T1

MICHELLE STEMPKOWSKI,

Plaintiff-Appellant,

v.

BRIAN J. DOHERTY, the Principal

of the High School, ROBERT K.

GRATZ, the Superintendent of

Schools, individually and as

agents, servants and employees

of defendants, NEWTON PUBLIC

SCHOOLS/NEWTON BOARD OF EDUCATION,

Defendants-Respondents.

_____________________________________________________________

 

Argued February 27, 2007 - Decided April 26, 2007

Before Judges Axelrad, R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-383-03.

Robert A. Scirocco argued the cause for appellant (Robert A. Scirocco, attorneys; Mr. Scirocco and Christian T. Merlino, on the brief).

David M. Hawkins argued the cause for respondent (Purcell Ries Shannon Mulcahy & O'Neill, attorneys; Mr. Hawkins, of counsel; Michael F. O'Neill, on the brief).

PER CURIAM

Plaintiff Michelle Stempkowski appeals from the April 13, 2006 order of the Superior Court of New Jersey, Law Division, Sussex County, granting summary judgment in favor of defendants, the Newton Board of Education, Newton Public Schools, Brian J. Doherty, the Principal of the High School, and Robert K. Gratz, the Superintendent of Schools (collectively defendants) and dismissing all claims against them. We affirm.

Plaintiff was hired as a non-tenured English teacher at Newton High School for the school year commencing September 1, 2002 and ending June 30, 2003. Plaintiff asked for, and received, unpaid medical leave commencing on January 7, 2003, to undergo back surgery. As a result of this surgery and plaintiff's need for an extended absence, she missed sixty school days. She returned to work on April 6, 2003.

Prior to her return, on March 24, 2003, plaintiff received a letter from the Principal, defendant Doherty, advising that plaintiff's non-tenured position would not be automatically renewed, that the position would be advertised for the following school year, and that she had a right to reapply for the position. On plaintiff's first day back at work, she did reapply for the position by submitting her resume. An interview was scheduled for May 6, 2003.

On April 30, 2003, plaintiff received a letter from the Superintendent of Schools, defendant Gratz. In that letter, Gratz informed plaintiff that based upon his own review and Doherty's recommendation, he would not be recommending plaintiff for employment for the 2003-2004 school year. Gratz contends that such a letter is statutorily required and customary for the district, but plaintiff's expert disputes this claim.

After receiving Gratz's letter, plaintiff withdrew her application for employment for the following school year on May 5, 2003. Then on May 7, 2003, plaintiff submitted her letter of resignation, effective immediately, despite the requirement of thirty days notice in her contract, which was scheduled to end on June 30.

On July 3, 2003, plaintiff filed a two-count complaint against defendants alleging in count one that they had terminated her employment and had wrongfully refused to hire her, due to her disability leave, in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-4 to -49, and in count two that they owed her one week's pay for breach of contract. After defendants filed their motions for summary judgment, the motion judge granted that relief and dismissed all claims against defendants in an April 13, 2006 order. Plaintiff appeals, alleging the existence of a genuine dispute as to material facts.

When reviewing a motion for summary judgment, a trial judge must determine whether "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. On appeal, we use these same standards to determine if there exists a genuine issue of material fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). If no such issue exists, then we determine if the trial court's ruling on the law was correct. Ibid.

The NJLAD provides that "[a]ll persons shall have the opportunity to obtain employment . . . without discrimination because of . . . disability" and prohibits "any unlawful discrimination against any person because such person is or has been at any time disabled." N.J.S.A. 10:5-4; N.J.S.A. 10:5-4.1. Unlawful discrimination occurs when an employer takes one or more of the following actions based on unlawful discriminatory reasons, such as a disability: refusal to hire or employ; discharge from employment; and discrimination against an employee in compensation, terms, conditions or privileges of employment. N.J.S.A. 10:5-12a.

In addressing plaintiff's unlawful discharge claim, the judge found plaintiff's resignation to be dispositive of her claim. We agree.

In order to make out a prima facie case for an unlawful discharge from employment claim under the NJLAD, a plaintiff must show that: (1) he or she was disabled within the meaning of the statute; (2) he or she was qualified to perform the duties of the position and had been performing the work at a level that met the employer's legitimate expectations; (3) was nevertheless fired; and (4) the employer sought another to perform the same work after plaintiff was fired. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 457-58 (2005), LaResca v. AT&T, 161 F. Supp. 2d 323, 335-36 (D.N.J. 2001).

It is undisputed, and the record shows, that plaintiff resigned from her position as a non-tenured English teacher. There is nothing in the record to show that defendants had any intention of terminating plaintiff's contract for the 2002-2003 school year. There is no material factual dispute in the record from which a jury could rationally reach any conclusion other than that plaintiff resigned. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). As a result of her resignation, plaintiff is unable to make out the requisite showing that she was fired. Consequently, there is no need to discuss whether plaintiff is able to show whether a dispute exists as to the other prongs of the analysis.

In order to establish a prima facie case in a failure to hire claim under the NJLAD, a plaintiff must show by a preponderance of the evidence that he or she: (1) belongs to a protected class; (2) applied and was qualified for a position for which the employer was seeking applicants; (3) was rejected despite adequate qualifications; and (4) after rejection, the position remained open and the employer continued to seek applications for persons of plaintiff's qualifications. Barbera v. Di Martino 305 N.J. Super. 617, 633-34 (App. Div.), certif. denied, 153 N.J. 213 (1998) (citing Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 392 (1982)).

Here, the judge determined that it was undisputed that plaintiff voluntarily canceled her interview and abandoned her efforts to attain the teaching position for the 2003-2004 school term. Accordingly, the judge concluded that plaintiff was unable to show both that she applied for the position and was rejected despite being qualified. We agree.

Plaintiff argues that motives other than those put forth by the defendants may have precipitated their decision not to rehire plaintiff for the following school term. In general, a non-tenured teacher has no enforceable right to be rehired, absent proof of prohibited discrimination. See, e.g., Dore v. Bd. of Educ. of Bedminster, 185 N.J. Super. 447, 456 (App. Div. 1982) (recognizing that "absent constitutional constraints or legislation affecting the tenure rights of teachers, local boards of education have an almost complete right to terminate the services of a teacher who has no tenure and is regarded as undesirable by the local board"). Moreover, the record in this case clearly shows that, on the day before her scheduled interview, plaintiff withdrew her application for rehiring and canceled the appointment. Thus, plaintiff is unable to show, even viewing the evidence in the light most favorable to her, that she was denied the position despite being qualified.

As the trial court observed, defendants were entitled to test the pool of applicants for the teaching position in order to find the most qualified candidate. That view is noted in the Newton Board of Education Policy on Recruitment. Though the Principal and Superintendent of Schools had indicated they did not intend to recommend that plaintiff be rehired, their recommendation was not final nor binding on the Board. Plaintiff had been invited to submit her application and that application had been accepted for consideration.

Further, it is not dispositive that the school did not perform the number of evaluations required by N.J.S.A. 18A:27-3.1. That two evaluations were conducted as opposed to the requisite three does not bar the Board from not rehiring plaintiff. Dore, supra, 185 N.J. Super. at 455. The statute specifically provides that the number of required observations and evaluations may be reduced proportionately when an individual tracking staff member's term of service is less than one academic year. Plaintiff's extended absence triggered that exception.

Finally, defendants were vested with nearly limitless discretion in choosing not to automatically renew plaintiff's contract, Id. at 453, and we do not conclude on the undisputed facts of this case that their discretion was not properly exercised. We are satisfied the court properly granted defendants' summary judgment motion on the grounds that there is no genuine dispute as to the fact that plaintiff was not fired, but instead resigned and she withdrew herself from consideration for rehire. Plaintiff is therefore unable to make out her asserted claims under the NJLAD as a matter of law.

Affirmed.

 

There is no specific reference to count two in the order granting summary judgment and neither party makes reference to it in the point headings of their respective briefs on appeal, in violation of R. 2:6-2(a)(5). Claims not briefed are deemed abandoned. Triffin v. Mellon PSFS, 372 N.J. Super. 221, 226 (App. Div. 2004).

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A-4802-05T1

April 26, 2007