ANTHONY DANIELS v. HIGH POINT BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1112-17T1

ANTHONY DANIELS,

          Plaintiff-Appellant,

v.

HIGH POINT BOARD OF
EDUCATION, Superintendent
SCOTT D. RIPLEY, Director of
Safety and Security KEVIN
CRAIG, and PAUL DERIN,

          Defendants-Respondents.


                    Argued October 31, 2018 – Decided January 11, 2019

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Sussex County, Docket No. L-0152-17.

                    George T. Daggett argued the cause for appellant.

                    Eric L. Harrison argued the cause for respondents
                    (Methfessel & Werbel, attorneys; Eric L. Harrison, of
                    counsel; Boris Shapiro and Vivian Lekkas, on the
                    brief).
PER CURIAM

      Plaintiff Anthony Daniels appeals from the dismissal of his initial and

amended complaints for failing to state a cause of action. Plaintiff alleged

defendants1 were involved in corrupt and illegal activity in creating and staffing

the Director of Safety and Security position for the High Point Regional High

School. After reviewing the contentions advanced on appeal in light of the

record and applicable legal principles, we affirm.

      We derive the facts from the complaints and view them in the light most

favorable to plaintiff. Printing Mart-Morristown v. Sharp Elec. Corp.,  116 N.J.
 739, 746 (1989). Plaintiff was employed as a security officer by the BOE when

the BOE posted a job opening for a newly created position, the Director of Safety

and Security.   Plaintiff alleges the requirements for this position were "so

particularized" that only Craig could qualify for the job. At the time, Craig was

Derin's neighbor. Plaintiff asserted that Derin persuaded the BOE to give the

Superintendent a raise so the Superintendent in turn would create the position

for Craig.




1
  Collectively, the defendants are: High Point Board of Education (BOE), BOE
superintendent Scott Ripley (Superintendent), the Director of Safety and
Security Kevin Craig (Craig), and BOE president Paul Derin (Derin).
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      Plaintiff submitted a job application for the position. It is uncontroverted

that plaintiff never informed the school, or the BOE, of his concerns about the

creation of the job.     Plaintiff was not granted an interview and the BOE

ultimately selected Craig for the position. Plaintiff alleged he was subsequently

demoted to a part-time position and his salary was reduced; plaintiff thereafter

resigned from his job.

      In his first complaint, plaintiff alleged a hostile work environment, in

violation of the Conscientious Employee Protection Act (CEPA),  N.J.S.A.

34:19-1 to -8, and tortious interference with economic advantage. Defendants

moved to dismiss the complaint under Rule 4:6-2 for a failure to state a ground

for relief. After hearing argument, the motion judge issued an oral decision

dismissing the complaint.     The motion judge found plaintiff had failed to

demonstrate any facts to support his CEPA claim because plaintiff did "not

disclose, report or object to [the BOE's] hiring practices." The judge determined

that the submission of "an application to a job posting does not meet the statutory

definition of whistle[-]blowing pursuant to N.J.S.A. 34:19-3."

      Thereafter, plaintiff filed an amended complaint, alleging identical facts

as stated in the first complaint, and a common law cause of action under Pierce

v. Ortho Pharmaceutical Corp.,  84 N.J. 58 (1980). A different motion judge


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heard oral argument, and dismissed the amended complaint in an October 2017

order and statement of reasons. Under Pierce, plaintiff bore the burden of 1)

identifying a specific expression of public policy and, 2) establishing he was

fired in contravention of that specific expression of public policy. Id. at 72. The

judge concluded plaintiff had failed to satisfy his burden.

      The motion judge found plaintiff's public policy arguments were merely

"vague allegation[s] of corruption and conclusory allegation[s] of illegality,"

and failed to identify a "specific public policy as required" under Pierce.

Additionally, the motion judge found: "[D]ischarging [plaintiff] was not [a]

violation of public policy, submitting an application was not a right protected

by [a] policy, nor was [plaintiff] discharged for declining to perform an act

protected by [a] policy." Because plaintiff failed to identify a clear expression

of public policy, the amended complaint was dismissed with prejudice.

      On appeal, plaintiff argues 1) filling out the job application constituted a

"whistle-blowing" activity under CEPA, and 2) he sufficiently pleaded a

common law Pierce claim because defendants engaged in illegality and

corruption. We are unpersuaded by these arguments.

      Well-established principles guide our review of both of the trial court

rulings. "We review a grant of a motion to dismiss a complaint for failure to


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state a cause of action de novo, applying the same standard under Rule 4:6-2(e)

that governed the motion court." Wreden v. Twp. of Lafayette,  436 N.J. Super.
 117, 124 (App. Div. 2014).

      As our Supreme Court has instructed, a reviewing court must "search[] the

complaint in depth and with liberality to ascertain whether the fundament of a

cause of action may be gleaned even from an obscure statement of claim."

Printing Mart,  116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Mem'l

Park,  43 N.J. Super. 244, 252 (App. Div. 1957)); see also Banco Popular N. Am.

v. Gandi,  184 N.J. 161, 165 (2005). A trial court's role is simply to determine

whether a cause of action is "suggested" by the complaint. Printing Mart,  116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co.,  109 N.J. 189, 192

(1988)).

      Although this standard is generally "a generous one" for plaintiff, a

pleading will "be dismissed if it states no basis for relief and discovery would

not provide one." Green v. Morgan Props.,  215 N.J. 431, 451 (2013); Rezem

Family Assocs. LP v. Borough of Millstone,  423 N.J. Super. 103, 113 (App.

Div. 2011). Mindful of this standard, our review of the complaints fails to reveal

any "suggestion" of a cause of action, therefore requiring the dismissal of the

complaints.


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      Plaintiff argues that filling out a job application constituted a "whistle-

blowing" activity. In pertinent part, CEPA defines whistle-blowing activity, as:

            Disclos[ing], or threaten[ing] to disclose to a supervisor
            or to a public body an activity, policy or practice of the
            employer . . . that the employee reasonably believes:

                  (1) is in violation of a law, or a rule or regulation
                  promulgated pursuant to law . . . or
                  (2) is fraudulent or criminal . . .

                  ....

            Object[ing] to, or refus[ing] to participate in any
            activity, policy or practice which the employee
            reasonably believes:

                  (1) is in violation of a law, or a rule or regulation
                  promulgated pursuant to law . . .
                  (2) is fraudulent or criminal . . . or
                  (3) is incompatible with a clear mandate of public
                  policy concerning the public health, safety or
                  welfare or protection of the environment.

            [ N.J.S.A. 34:19-3(a) and (c)].

The Supreme Court has explained the plain language of the "whistle-blowing"

statute "specifically refers to notification, or threatened notification, to an

outside agency or supervisor . . . and also permits a claim to be supported by

evidence that the employee objected to or refused to participate in the employer's

conduct." Tartaglia v. UBS PaineWebber Inc.,  197 N.J. 81, 106 (2008) (citing

 N.J.S.A. 34:19-3(a) and (c)).

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      Submitting an application for a posted job position does not establish

"whistle-blowing" activity. Plaintiff never informed the school or BOE of his

concerns about the new job. He argues, instead, that his job application for the

posting served as his objection to his perception of the illegal payment of funds

to the Superintendent in return for the particularized creation of a job. Plaintiff

has not demonstrated the job application met the requirements for a CEPA claim

under the applicable statute. See Klein v. Univ. of Med. & Dentistry of N.J.,

 377 N.J. Super. 28, 42 (App. Div. 2005) ("The whistle-blower legislation is not

intended to shield a constant complainer who simply disagrees with the manner

in which the [employer] is operating . . . its . . . [business], provided the operation

is in accordance with lawful and ethical mandates."); see also Young v. Schering

Corp.,  275 N.J. Super. 221, 237 (App. Div. 1994) ("[CEPA] . . . was not intended

to provide a remedy for wrongful discharge for employees who simply disagree

with an employer's decision, where that decision is entirely lawful."). Plaintiff

did not establish the requisite notification necessary to qualify as "whistle-

blowing" activity.

      We are similarly unpersuaded that plaintiff sufficiently pleaded a common

law Pierce claim. As stated, "an employee has a cause of action for wrongful

discharge when the discharge is contrary to a clear mandate of public policy."


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Pierce,  84 N.J. at 72. The mandate of public policy must be clearly identified,

firmly grounded, and cannot be "vague, controversial, unsettled, and otherwise

problematic." MacDougall v. Weichert,  144 N.J. 380, 391-92 (1996). "If an

employee does not point to a clear expression of public policy, the court can

grant a motion to dismiss." Pierce,  84 N.J. at 73.

      Here, the complaint only contains broad allegations of corruption, without

providing the requisite facts to substantiate the allegations.       The amended

complaint failed to rectify the deficiencies noted in the initial complaint. We

are satisfied both trial judges properly dismissed the complaints.

      Affirmed.




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