DEBRA SERGENT v. ST. HELENA SCHOOL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3404-11T2

DEBRA SERGENT,

Plaintiff-Appellant,

v.

ST. HELENA SCHOOL and

DIOCESE OF METUCHEN,

Defendants-Respondents.

____________________________________________

September 18, 2013

Argued December 5, 2012 - Decided

Before Judges Nugent and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5406-10.

Barry E. Levine argued the cause for appellant.

Vincent N. Avallone argued the cause for respondents (K & L Gates, L.L.P., attorneys; Mr. Avallone, of counsel and on the brief; C. Bryan Cantrell, on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

Plaintiff, Debra Sergent, appeals from the Law Division order dismissing on summary judgment her complaint alleging that defendants, St. Helena School and the Diocese of Metuchen, breached the terms of her employment contract with them, and violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, when they terminated her employment. She argues that the evidence she presented in opposition to defendants' summary judgment motion established a triable issue as to whether defendants terminated her employment because her performance was unsatisfactory, as they claim, or because she took a maternity leave, as she claims. Having considered plaintiff's arguments in light of the record and controlling law, we affirm.

I.

St. Helena School (the School), a Roman Catholic elementary school in the Diocese of Metuchen, employed plaintiff as a teacher from 2000 through March 30, 2010. Each school year, the parties signed a one-year employment contract. In June 2009, they signed the "Employment Contract For Tenured Teachers" for the 2009-2010 school year.1 The contract included a termination provision, which provided in pertinent part:

The Employer may immediately discharge, terminate, or otherwise discontinue the Teacher's employment for reasons of "cause," including, but not limited to: unsatisfactory performance, insubordination, neglect of duty . . . or any other failure, neglect, or any other action on the part of the Teacher which the Employer in good faith, determines to impair the Teacher's job performance. In such instances, the Employer will endeavor to present the Teacher with written notice specifying the reason for discharge. Any and all pay or other privileges shall terminate at the effective date of this notice.

From 2001 through 2005, at least once each year, the school's vice-principal observed plaintiff in her classroom for approximately one half-hour to one hour. In her reports following those observations, the vice-principal generally rated plaintiff's performance as excellent, outstanding, above average, or very good.2 In a "2008-2009 Teacher Evaluation Form," the School's Principal rated plaintiff as "mee[ting] expectations" or "satisfactory with commendation" in all categories, with one exception: in the category "Collaboration and Partnership," the Principal rated plaintiff as "satisfactory with reservation." The Principal commented: "You need to be more faithful in attending H.S.A.3 meetings and faculty in-service days. This does add to the building of relationships with parents and peers."

In a "Walkthrough Assessment Form for Teaching Staff" prepared in March 2010, the School's Principal rated plaintiff satisfactory in all categories with two exceptions: classroom management and teaching techniques. In those categories, the Principal suggested that students' desks face the front of the room, not each other, because when the desks faced each other the situation presented an opportunity for students to talk to one another, and also the students had to turn to see plaintiff as she taught.

Over the years, parents had both complimented plaintiff and complained about her. For example, in 2003, a couple wrote to the Principal and asked if their son could be placed not in plaintiff's fourth-grade class, but in the other fourth-grade class. They explained that "the heavy project load" assigned by plaintiff required them to spend an inordinate amount of time helping their child in plaintiff's class, and left insufficient time to devote to their other children's needs.4 Yet, in January 2010, a parent praised plaintiff for her wonderful way of connecting with students generally, and for the help she had given to the writer's child specifically. According to the writer, her child had developed confidence and a skillset that would benefit her throughout her life.

In November 2007, the School's Principal received the first in a series of letters that, according to defendants, were significant to their decision to terminate plaintiff's position. The November 2007 letter was written by a person who had been "a parent at St. Helena School for eight years." She complained about what she considered to be an unusual workload for third-graders, and the assignment of too much homework on nights students were studying for tests. She also complained that her child was not learning in plaintiff's class, and said her child had reported that the classroom was unruly. The writer stated that she had spoken with "many other students['] parents and they express[ed] similar concerns regarding the level of education our children are getting this year." The parent also stated that "these concerns have been mentioned in previous years and in my opinion have not changed."

In December of that year, the Principal received a letter from another parent complaining about the workload of the students in plaintiff's class, and that the students did not appear to be learning their lessons. A month later, in January 2008, the parent who had written the November letter wrote a second letter complaining about the workload in plaintiff's class. According to the parent, when her child returned from a winter break the child had to take six tests in one week. The parent complained that in addition to the unusual number of tests given in one week, "classroom learning is not optimal and some of the teaching is being done at home during the studying." The parent referred to "so many issues with this classroom over the years" and requested that the Principal have someone observe it for a few months, rather than one day, to determine whether it presented a good learning environment.

In November 2008 and April 2009, another parent wrote to plaintiff about similar issues and the adverse effect the workload and testing were having on her daughter. According to defendants' interrogatory answers, at least two families who had complained about plaintiff removed their children from the school.

Meanwhile, in the spring of 2009, before her contract was renewed, plaintiff informed the School's Principal that she was pregnant. Although the School renewed plaintiff's employment contract for the following school year, plaintiff claimed that the Principal's attitude toward her changed after she became pregnant. Plaintiff cites four specific examples. The Principal denied plaintiff's request to use the school elevator during the latter stages of her pregnancy; continually asked plaintiff if she would return from maternity leave, and, on one occasion, asked another teacher if plaintiff intended to return from maternity leave; told plaintiff, "after you have the baby, it will be tougher to leave him"; and, told plaintiff "if the baby needs to go to the doctor you can't always take off to go, your mother will have to take him."

Shortly after returning for the 2009-2010 school year, plaintiff was hospitalized for high blood pressure. On October 5, 2009, she began her maternity leave. She returned to work on February 8, 2010.

On the morning that she returned to work, plaintiff met with the Principal, the Pastor of St. Helena Church, and the Director of Human Resources for the Diocese of Metuchen. In a letter written to plaintiff after the meeting, the Principal summarized what had occurred:

As we discussed, a number of parents contacted me during your leave to express how pleased they have been with their children's academic progress and improved outlook toward school since October, which they attribute directly to [the substitute]. They further expressed serious concern that their children would revert back to the previous unacceptable levels that they had observed at the beginning of the school year on your return to the classroom, and several parents indicated they would remove their children from the school if their concerns were not addressed.

Prior to your leave, I discussed with you on several occasions the concerns of parents with respect to the amount of homework you assigned, your classroom management skills and the need for you to communicate more clearly your expectations to both students and parents. While I recognize you had been working to address these deficiencies prior to your leave, I nonetheless must consider the ongoing concerns recently expressed by so many parents.

For this reason, I propose a team teaching strategy for the balance of the school year that would restore you to your position as 3rd Grade Teacher, but allow [the substitute] to remain in the classroom as well. While we have given appropriate consideration to this decision, we recognize that for a team teaching strategy to be successful both [she] and you will need to work cooperatively with one another, and we will closely monitor the situation and make whatever adjustments are necessary.

Debra, please know that we look forward to your anticipated cooperation on this as we work to provide the best learning environment for our students. However, if you do not feel you can work under such an arrangement, at your request we will endeavor on a best-efforts basis to identify other possible roles for you at the school. Thank you for your consideration on this matter and please know I am always available to address any questions or concerns you might have.

On February 18, 2010, a student's parents became upset with plaintiff and sent her a handwritten note. The parents also sent a typewritten letter to the Principal and the parish pastor. According to the parents, they had spoken with plaintiff at the beginning of the school year, and in their view nothing had changed. They believed their child had improved considerably while attending class with the substitute teacher, and they did not want the situation to regress. The Principal discussed the parents' complaint with plaintiff.

On February 23, 2010, plaintiff received another letter from a parent about the way plaintiff graded a child's homework assignment. Finally, on March 21, 2010, the Principal received yet another letter, this time complaining about plaintiff and about the writer's child now having to adapt to two different teaching styles.

The Principal and the parish pastor decided to terminate plaintiff's employment. They met with her on March 30, 2010. Following the meeting, the Principal wrote a letter to plaintiff which stated, in part:

I am sorry to inform you that your employment with St. Helena school is being terminated, effective today, because of unsatisfactory job performance. While we regret this action, we have continued to receive numerous complaints from parents about your teaching abilities and while we have provided you with ongoing notice regarding your work deficiencies, your work performance has not improved to an acceptable level.

Plaintiff commenced the subject action by filing a two-count complaint on July 22, 2010, alleging defendants had terminated her position in violation of the LAD and in breach of her employment contract. Defendants filed an answer and discovery proceeded uneventfully. Following the exchange of interrogatories and depositions of the parties, defendants moved for summary judgment. The court granted the motion. In an oral opinion delivered from the bench, the court found that plaintiff offered nothing more than conjecture, speculation, and innuendo to support her LAD claim, and did not produce evidence to establish a prima facie case.

The court also determined that the School had not breached plaintiff's employment contract. The court noted that the employment contract permitted the School to discharge plaintiff for cause, including unsatisfactory performance, based upon a subjective standard; and, the School's determination had to be made in good faith. The court found that plaintiff had established no evidence of bad faith on the part of the School. The court entered an order dismissing plaintiff's complaint. Plaintiff appealed.

II.

A trial court must grant a summary judgment motion if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If the evidence submitted on the motion "'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

When a party appeals from a trial court order granting or denying a summary judgment motion, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Thus, we must determine whether there was a genuine issue of material fact, and if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review legal conclusions de novo. Henry, supra, 204 N.J. at 330.

Plaintiff first claims that she established a prima facie case of discrimination under the LAD. She argues that her positive performance evaluations over the years, the Principal's refusal to permit her to use the school elevator, the Principal's questions about whether she would return from maternity leave, and the Principal's remarks concerning the demands of being both a mother and teacher, created a triable issue as to defendants' motive for terminating her employment.

Defendants argue that plaintiff failed to sustain her burden of proving that she was discharged either because she became pregnant or that she went on maternity leave. They also argue that even if plaintiff could establish a prima facie case, she cannot establish that the reason defendants gave for terminating her was a pretext for discrimination.

The LAD provides that it shall be an unlawful employment practice, or an unlawful discrimination,

[f]or an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, . . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment[.]

[N.J.S.A. 10:5-12(a).]

The LAD prohibits "an employer from discriminating against an employee based on her pregnancy." Gerety v. Hilton Casino Resort, 184 N.J. 391, 406 (2005).

In an employment discrimination lawsuit alleging a violation of the LAD, an employee-plaintiff must "'show that the prohibited consideration . . . played a role in the decision making process and that it had a determinative influence on the outcome of that process.'" Bergen Commer. Bank v. Sisler, 157 N.J. 188, 207 (1999) (quoting Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 344 (App. Div.), certif. denied, 152 N.J. 189 (1997)). The plaintiff may prove such employment discrimination under either a mixed-motive or pretext theory. Here, plaintiff advanced a pretext theory. We review pretext cases under the construct developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973).

That framework requires the plaintiff to demonstrate a prima facie case of discrimination, following which the burden shifts to the defendant to demonstrate a legitimate business reason for the employment decision. If the employer does so, the burden shifts again and the plaintiff is required to demonstrate that the reason proffered is a mere pretext for discrimination.

[Victor v. State, 203 N.J. 383, 408 n.9 (2010).]

To establish a prima facie case of discriminatory discharge, a plaintiff must demonstrate: "(1) that plaintiff is in a protected class; (2) that plaintiff was otherwise qualified and performing the essential functions of the job; (3) that plaintiff was terminated; and (4) that the employer thereafter sought similarly qualified individuals for that job." Id. at 409. The parties do not dispute that plaintiff established a prima facie case.

We are not persuaded that plaintiff has proved a prima facie case of discrimination based upon pregnancy. Although plaintiff alleges the Principal "began to make remarks and take actions to discourage her from returning" after she announced that she was pregnant, the School renewed plaintiff's contract for the following year knowing that she would be taking maternity leave. And though plaintiff claims that she was discriminated against based upon her pregnancy, she was not pregnant when she was terminated. Moreover, nothing in the record suggests that, after returning from maternity leave, she had any issues with the School that related in any way to either her pregnancy or her status as the mother of an infant.

Nevertheless, assuming plaintiff established a prima facie case of pregnancy discrimination under the McDonnell Douglas construct, she did not carry her burden of demonstrating that the School's reason for terminating her position was pretextual. To raise a genuine factual dispute as to whether an employer's facially legitimate employment action is a pretext for discrimination, a plaintiff may "show[] that (1) a discriminatory reason more likely motivated the employer than the employer's proffered legitimate reason, or (2) the defendant's proffered explanation is 'unworthy of credence.'" Maiorino, supra, 302 N.J. Super. at 347 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 217 (1981)). On the other hand, a "plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

Significantly, plaintiff's "evidence" of pretext involves events that occurred before her contract was renewed. Those events are not sufficient to permit a jury to infer that the School's stated reason for terminating plaintiff was pretextual. Plaintiff cites to her complaint, which alleges that after she became pregnant the Principal continually asked her if she would return from maternity leave, kept telling her that after she had the baby, it would be tougher to leave him, and reminded her that if the baby needed to go to the doctor, plaintiff could not always go, and plaintiff's mother would have to take him. The Principal's question about whether plaintiff intended to return from maternity leave, even if repeated, was a legitimate inquiry. Plaintiff does not suggest that she ever answered the question. The Principal made a legitimate inquiry that implicated staff and personnel decisions that had to be made by the School. Nothing about the question suggests that the Principal asked it due to discriminatory animus.

Similarly, the Principal's comments that plaintiff, as a new mother, might find it difficult to leave her newborn, and might not always be available to take the baby to the doctor, have no discriminatory overtones. Significantly, plaintiff does not suggest how the Principal's comments could be construed to suggest discriminatory animus. This omission is particularly glaring in light of the Principal's positive evaluation of plaintiff for the 2008-2009 school year, and the renewal of plaintiff's employment contract for the following year.

Plaintiff also claims that the Principal refused to permit her to use the elevator during the latter stages of her pregnancy. In support of that assertion, plaintiff cites to the allegation in her complaint. Yet, her deposition does not support that allegation. During plaintiff's deposition, defense counsel specifically asked her if she had ever asked for permission to use the School's elevator. Plaintiff responded that she "sent a note down saying [she] couldn't carry anything over a certain weight and that [she] would need help[.]" When asked again whether she ever asked to use the elevator, plaintiff responded, "I don t know if I ever did specifically because then I had children carrying up my books and bags for me." When pressed further, and asked if she had "any recollection at all of ever speaking with the Principal about using the elevator," plaintiff replied, "Off-hand, no." Plaintiff's unsubstantiated allegation in her complaint about the elevator was insufficient to demonstrate that the reason the school gave for terminating plaintiff's employment was pretextual.

More significantly, plaintiff could not dispute that parents had sent letters questioning her teaching ability, or that the Principal and School were concerned about parents withdrawing their students. For all of the foregoing reasons, the trial court properly concluded plaintiff had not demonstrated that the School's reason for terminating her employment was pretextual.

Plaintiff next contends that the School breached her contract by terminating her without cause. The School terminated plaintiff for unsatisfactory job performance. Specifically, the Principal advised plaintiff that the School had continued to receive numerous complaints from parents about her teaching abilities.

Plaintiff's employment contract permitted the School to immediately discharge her for unsatisfactory performance. The standard was subjective. A "subjective test of performance governs the employer's resort to a satisfaction clause in an employment contract unless there is some language in the contract to suggest that the parties intended an objective standard." Silvestri v. Optus Software, 175 N.J. 113, 125 (2003).

Here, affording plaintiff the benefit of all favorable inferences in the motion record, we conclude the trial court properly granted summary judgment to defendants on plaintiff's breach of contract claim. In view of the subjective standard against which we measure the School's decision that plaintiff's performance was unsatisfactory, plaintiff was required to show that the School's decision was not genuine. See Silvestri, supra, 175 N.J. at 126. Plaintiff's only attempt to show that the School's reason for terminating her was disingenuous is the evidence she produced in support of her discrimination claim. But as we have said, that evidence does not withstand scrutiny. The trial court properly concluded plaintiff produced no evidence that the School exercised its subjective discretion in bad faith.

A

1 The contract states that it was entered into on May 8, 2009. The parties signed it the following month.

2 The record does not include observation reports or evaluations for years from 2006 or 2007.

3 The form does not explain what "H.S.A." means.

4 According to the certification plaintiff filed in opposition to defendants' summary judgment motion, the family who wanted a child placed in another class in 2003 permitted plaintiff to teach their hearing-impaired younger child at a later date.