Kolb v. Burns

• Citation: 320 N.J. Super. 467,727 A.2d 525
• Parties: Louise KOLB, Plaintiff-Appellant, v. Dr. Carol A. BURNS, James Brocious, Lynn Ganz, Terry Johnson, Margaret Matlosz, Thomas Mazzola, James Momary, Sandra Pietraszkiewicz, William Read, Barbara Rogers and the Mansfield Township Board of Education, Defendants-Respondents.
• Decision Date: 27 April 1999
• Court: Superior Court of New Jersey

727 A.2d 525

320 N.J. Super. 467

Louise KOLB, Plaintiff-Appellant, v. Dr. Carol A. BURNS, James Brocious, Lynn Ganz, Terry Johnson, Margaret Matlosz, Thomas Mazzola, James Momary, Sandra Pietraszkiewicz, William Read, Barbara Rogers and the Mansfield Township Board of Education, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued March 8, 1999.

Decided April 27, 1999.

Nancy Oxfeld, Newark, for plaintiff-appellant (Balk, Oxfeld, Mandell & Cohen, attorneys; Ms. Oxfeld, of counsel and on the brief).

Sharon H. Moore, Clinton, for defendants-respondents (Gebhardt & Kiefer, attorneys for respondents; Ms. Moore and Deborah B. Rosenthal, on the brief).

Before Judges HAVEY, SKILLMAN and LESEMANN. The opinion of the court was delivered by HAVEY, P.J.A.D

Plaintiff appeals from a summary judgment dismissing her complaint filed under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. In the complaint she alleges that defendants Mansfield Board of Education, the individual Board members, and Superintendent Dr. Carol A. Burns, retaliated against her by withholding her salary increment after she testified before the Office of Administrative Law (OAL). The OAL matter was initiated by petitions to the New Jersey Division of Special Education filed by W.B., the mother of E.J., a neurologically impaired child, for changes in E.J.'s Individualized Education Plan (IEP) and for his placement in a private school.

In granting summary judgment to defendants, the trial court held that the Board was justified in withholding the increment because plaintiff had violated a "directive" given by Dr. Burns prohibiting plaintiff from communicating with W.B. without the presence of another district employee. Viewing that violation as dispositive, the court concluded that plaintiff had no cause of action under CEPA as a matter of law. We reverse. Genuine issues of material fact exist concerning whether defendants' proffered reasons for withholding plaintiff's salary increment were legitimate and nondiscriminatory, rather than pretextual as retaliation against plaintiff for her testifying on W.B.'s behalf.

We view the evidentiary material presented on defendants' summary judgment motion, as we must, in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 666 A.2d 146 (1995). Plaintiff is a tenured teacher employed by the district and is certified in both elementary and special education. During the 1993-94 school year, E.J. was a student in plaintiff's third grade class. Catherine Brennan, the Director of the Mansfield Township Child Study Team, worked with plaintiff during the 1993-94 school year to implement E.J.'s IEP.

W.B., E.J.'s mother, had disputed E.J.'s classification and placement since July 1992. The dispute has spawned four contested cases before the OAL and a suit filed in the Federal District Court alleging civil rights violations against the Board and various district employees. On October 11, 1993, plaintiff prepared a written summary of E.J.'s progress in the third grade, and gave it to W.B. She described the myriad of difficulties E.J. had experienced, including problems with organization and interacting with other children, bathroom difficulties, and his inability to focus on assignments. She concluded that "[i]n my professional opinion I believe [E.J.] is only going to deteriorate in a regular classroom. I believe he needs a small, special class that will deal with his problems."

On October 27, 1993, Dr. Burns advised plaintiff that when she had conferences with W.B., someone else from the district should be present in order to witness the discussion. Dr. Burns testified in her deposition that she thought this step was necessary to "protect the district" and to prevent "any further employees being involved in litigation."

In November and December 1993, W.B. filed petitions with the New Jersey Division of Special Education seeking ten changes in E.J.'s IEP, independent evaluations, and his placement in a private school. The Board opposed W.B.'s request. The matters were consolidated and assigned to an administrative law judge for hearings commencing on December 17, 1993. Plaintiff was subpoenaed by W.B. to appear and give testimony at the OAL hearing. She appeared on four dates in February, March and June 1994.

Plaintiff testified that E.J. had difficulty in focusing on class work, writing sentences and keeping up with the other students. According to plaintiff, she discussed these problems with Brennan at several meetings. Specifically, on October 23, 1993, she explained to Brennan her concerns with E.J.'s bathroom habits, the way he walked in the hall, and his touching and hitting other children. Brennan acknowledged in her deposition that she was present during plaintiff's testimony in order to learn what sort of problems E.J. was experiencing, so, as head of the Child Study Team, she could "address E.J.'s needs as I was best able to do." However, no significant changes were implemented in E.J.'s IEP as a result of plaintiff's testimony.

In her testimony, plaintiff admitted that she had spoken to W.B. on several occasions via telephone, and viewed these discussions as very helpful. She acknowledged that Dr. Burns had directed her not to "conference" with W.B. without the presence of another district employee. However, it was plaintiff's understanding that Dr. Burns' directive did not cover phone calls, and was for plaintiff's own protection. Plaintiff also believed that the presence of another employee might inhibit a meaningful exchange with W.B. about E.J.'s difficulties.

On June 23, 1994, Dr. Burns prepared plaintiff's "Annual Teacher Performance Evaluation," giving plaintiff satisfactory ratings in all applicable areas, and recommending that plaintiff be given the normal salary increment.

On July 14, 1994, David A. Wallace, Esquire, the Board's attorney, reviewed the OAL transcripts and concluded that plaintiff had withheld "information" concerning E.J. from the Child Study Team and the Resource Room teacher, and had violated Dr. Burns' directive that she not communicate with W.B. without another district employee being present. He immediately notified Dr. Burns of his findings and discussed with her the withholding of plaintiff's increment.

On August 17, 1994, plaintiff received a letter from Wallace indicating that on August 25, 1994, Dr. Burns would be presenting "a recommendation that the Board withhold your entire increment for the 1994-95 school year...." The reasons for the recommendation were twofold:

1. Your failure to timely communicate to, and your actions to withhold from, the resource room teacher and/or the child study team your concerns regarding a classified student in your class, contrary to your acknowledged understanding as to your responsibilities in this area, and

2. Your failure to obey, and your actions to evade, an express administrative directive that all communications with a particular parent with whom the district was in ongoing multiple litigation, must take place in the presence of another district employee as witness.

On August 25, 1994, the Board voted to withhold plaintiff's increment based on the above stated reasons. Plaintiff requested another hearing and, on November 29, 1994, the Board again considered the issue, and again elected to withhold her increment¹.

As a result of the Board's action, plaintiff filed the present CEPA complaint against defendants. In granting summary judgment to defendants, the trial court framed the issue as "[b]ased upon the evidence that was presented to the Board, did the Board have the right to make [the] decision [to withhold the increment]? If they didn't, then it was a retaliatory action." The trial court focused on the Board's second proffered reason for withholding plaintiff's increment, her purported disobedience of Dr. Burns' directive, and concluded:

The issue is whether or not the actions of the Board were retaliatory or whether... there was some justification for the Board's actions. And I think it's a matter of law, it does not seem to be—so far today I have not heard any dispute as to what the actual facts were. There's an admission of a direct communication. There's an admission that there was a directive not to communicate.

....

[plaintiff] was circumventing that by making the phone conference. She knew what she was doing as far as I'm concerned. And I don't think I need to take testimony on that issue because I think it's already been established here in the papers that are before me. Therefore, I'm going to grant the motion for summary judgment.

I

N.J.S.A. 34:19-3 defines the class of employee actions protected by CEPA:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law[;] ...

b. Provides information to, or testifies before, any public body conducting an investigation hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer[;]... or

c. Objects to or refuses 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.

CEPA "elaborates on and derives from the common law cause of action for wrongful discharge [the New Jersey Supreme Court] first recognized in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58,...