Kevin Noah v. Sparta Township Board of Education

• Court: New Jersey Superior Court Appellate Division
• Decided: December 26, 2024
• Docket: A-1565-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1565-23

KEVIN NOAH,

Plaintiff-Appellant,

v.

SPARTA TOWNSHIP BOARD OF EDUCATION and MICHAEL GREGORY,

Defendants-Respondents. ____________________________

Argued October 9, 2024 – Decided December 26, 2024

Before Judges Currier and Torregrossa-O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0058-22.

George T. Daggett argued the cause for appellant.

James M. McCreedy argued the cause for respondents (Wiley Malehorn Sirota & Raynes, attorneys; James M. McCreedy, of counsel and on the brief; Gregory S. Dahl on the brief).

PER CURIAM This matter arises out of plaintiff's filing of a Conscientious Employee

Protection Act (CEPA) action, N.J.S.A. 34:19-3 to -14, after he resigned from

his part-time employment with defendant Sparta Township Board of Education.

Plaintiff appeals from the trial court's orders granting defendants summary

judgment and denying his motion for reconsideration. Because plaintiff did not

establish a prima facie CEPA claim, we affirm.

I.

Plaintiff was employed by Sparta as a part-time substitute armed security

guard for two years, working approximately ten to fifteen hours a week.

According to plaintiff, sometime in late fall of 2020, he and a full-time security

guard, Chris Olivo, were discussing the retirement of another full-time security

guard in the high school security office when principal Ron Spring stated Sparta

intended to hire a female to replace the retiring guard.

Sparta interviewed four candidates for the position, including plaintiff,

and hired a female substitute security guard for the full-time position. In

February 2021, plaintiff filed a complaint with the Equal Employment

Opportunity Commission (EEOC) regarding the hiring because "the previous

comments from the administration (. . . Spring[]) and others to . . . Olivo

indicated that they wanted to hire a female officer."

A-1565-23 2 Around this same time, plaintiff informed Olivo in a text message that he

"want[ed] to represent the subs[titute security guards] for the union" because

they "need[ed] a raise." On February 15, 2021, plaintiff texted Olivo, stating "I

may resign next week." Plaintiff described his working relationship with Olivo

as "sometimes pleasant and sometimes acrimonious."

On March 1, an EEOC investigator informed plaintiff that the EEOC

would not pursue his complaint because Sparta was "within their right to hire a

female security officer." Thereafter, plaintiff told Olivo about the complaint.

During this timeframe, plaintiff formed a committee to negotiate a salary

increase for the part-time security guards, seeking to make their hourly pay equal

to that of full-time security guards. Plaintiff contends this action was "well-

known to the administration" because he asked Olivo to speak with defendant

Michael Gregory, Director of Operations, about a raise. Olivo sent Gregory the

following email:

Mike, good afternoon. I was just advised by one of the security substitutes that some of them [are] not happy with the substitute hourly pay and would like to be brought up to the full-time security officers pay when they are working. I advised them that all I could do was pass this information to you and that I had nothing to do with their pay. A letter [regarding the] same may be being generated in which they will be trying to have all the security substitutes sign. At this time there is no letter just a verbal conversation with me and I'm just

A-1565-23 3 trying to keep you in the loop so maybe we can get out in front of this.

Plaintiff paid for an application—Jobulator Alert—which is connected to

Sparta's absence management system and provides immediate notifications of

any listed absences of full-time security guards so a substitute can quickly accept

the assignment.

Plaintiff received a notification from Jobulator Alert on March 5 that the

middle school needed a substitute security guard on March 8. On March 10,

plaintiff met with two other part-time security guards to discuss negotiating a

pay raise. One of the guards informed plaintiff that there were two days listed

in the absence management system requesting substitutes for March 10 and

March 12. Plaintiff had not received notifications from Jobulator Alert

regarding those days.

When plaintiff checked the absence management system, there were no

absences listed. He thought he had been "disconnected from the [a]bsence

[m]anagement [s]ystem" even though it was working properly. Plaintiff stated:

"I hadn't worked in [six weeks] and by not being given the opportunity to work

those two days I felt like, what's going on."

On March 10, plaintiff accused Olivo of locking him out of the absence

management system, which Olivo denied. Plaintiff then called Olivo a

A-1565-23 4 "chameleon" and threatened to resign, telling Olivo he would "turn in [his]

clothes, ID and 2 access cards." Olivo told plaintiff he should discuss his

concerns with Gregory and that Olivo would have Gregory call him. Plaintiff

replied that "a few days of careful consideration are in order."

That same day, plaintiff emailed Sparta's substitute coordinator, asking

her to check if he was "inadvertently deleted from any notifications for

availability." The coordinator replied the following day, "your account is set up

as always on our end. Is it possible that you marked yourself as unavailable for

certain days?"

On March 11, plaintiff sent a letter to the interim superintendent of schools

entitled "Salary Increments and Certain Other Requests." The letter stated that

plaintiff was "designated by a group of 7 other [s]ubstitute [s]ecurity [o]fficers"

employed by Sparta "as a liaison and authorized representative" requesting: a

written agreement raising their compensation to equal that of full-time security

officers, that their title be changed "from Substitute to Part Time Security

Officers," new uniforms, and a copy of the insurance binder covering them.

Olivo told plaintiff he couldn't talk to him anymore and that he would have

Gregory call him. Plaintiff spoke with Gregory on March 15, and described the

conversation in his deposition:

A-1565-23 5 Well, . . . Gregory started right out with, the administration feels you are a problem for us. We can't trust you to work with certain individuals and that I didn't want to stay in the school anymore. I wanted to quit. And I said, that's not true. . . . I asked [the coordinator] to please check my [a]bsent [m]anagement system because . . . I thought there was a problem. I said, that's not true. I still want to work . . . for . . . Sparta. And he said you weren't happy that we [hired] a female. And I was quite taken aback because I didn't notify . . . Gregory of my EEOC complaint. The only person I advised of that was . . . Olivo and that was only like a few days before that. . . . And his response. . . was that we feel you can't work with certain people. And my response was, I've been in law enforcement 29 years, I worked security, I can work with anybody. . . . And I told him that I was cognizant of the fact why they hired her and I was, you know, I wasn't happy but that I was over it.

Plaintiff further stated: "[Gregory] did compliment me saying, [Olivo]

said I did a good job and he would hope that I would continue to stay on and do

a good job. . . . I said, okay. Thank you. Have a nice day. That was it."

Following the call with Gregory, plaintiff called Olivo. He testified as to

the conversation:

I told [Olivo], you know, my voice was raised. I was upset. I was very upset with him. Not angry, I don't think I get angry. I get upset. But I told him I was not happy. . . . I called him a piece of S[**]T. . . . I said, I can't work here anymore. I said, administration said that they have a problem with me over nothing. Over what you're telling . . . Gregory.

A-1565-23 6 Plaintiff contends that on March 15 another substitute security guard ,

Glenn Danzo, texted him that Spring told Danzo plaintiff was not allowed at the

high school. Plaintiff stated that no one other than Danzo ever informed him he

was barred from the school.

That same day, plaintiff delivered to Danzo his shirt, jacket, identification

and security cards, and a resignation letter addressed to the interim

superintendent. On March 18, plaintiff emailed the coordinator, informing her

of his resignation and requesting she stop his receipt of job opening

notifications.

II.

Plaintiff filed this instant action against defendants, alleging their actions

violated CEPA. Plaintiff asserted he was constructively terminated after

advocating on behalf of other employees and filing an EEOC complaint.

After the close of discovery, defendants moved for summary judgment.

They asserted that plaintiff did not suffer any adverse employment action

because he was not fired, but rather freely resigned. Furthermore, even if

plaintiff was fired, such action was reasonable given plaintiff's hostile behavior

towards coworkers. In addition, there were no grounds for individual liability

against Gregory.

A-1565-23 7 On November 3, 2023, the trial judge granted defendants summary

judgment. In a written opinion, the judge found: defendants offered evidence

that showed plaintiff was not locked out of the shift assignment software or

barred from the school campus because of his EEOC complaint; defendants

offered a legitimate reason for restricting plaintiff access to the school campus;

and plaintiff offered only a temporal proximity to prove there was retaliatory

conduct.

Specifically, the trial judge explained in:

viewing all facts in the most favorable light to [p]laintiff, [p]laintiff failed to raise a genuine dispute of material fact that [d]efendant[s'] explanation for the shift assignment software and restricting [p]laintiff's access to the school campus was pretextual. Plaintiff claims that he reasonably believed that the hiring practice of the school was incompatible with the law, rule, regulation or clear mandate of public policy and [p]laintiff reported the practice by filing an EEOC complaint. However, [p]laintiff has failed to show a causal connection between whistleblowing activity and the alleged adverse employment action. . . . Plaintiff has only offered temporal proximity to prove that there was retaliatory conduct. Without more, temporal proximity alone is insufficient to establish retaliatory conduct.

Plaintiff subsequently moved for reconsideration. The court denied the

motion on December 1, 2023. On December 14, 2023, plaintiff filed a motion

to reinstate the matter for purposes of conducting oral argument on the

A-1565-23 8 reconsideration motion. The trial judge granted plaintiff's motion and held oral

arguments.

The trial judge denied the motion for reconsideration on January 22, 2024.

The trial judge explained his reasoning in a written opinion:

Plaintiff does not point to where the court relied upon a palpably incorrect or irrational basis or point to where it is obvious that the court either did not consider, or failed to appreciate the significance of, probative competent evidence. The court has applied liberality to the elements of plaintiff's CEPA claim. However, to give the kind of liberality that plaintiff is asking for to the causal nexus between the whistleblowing activity and the alleged adverse employment action goes far beyond applying CEPA liberally.

III.

On appeal, plaintiff contends the presence of material issues of fact

prevented the court from granting summary judgment and the court did not

understand the specific meaning of the phone call between plaintiff and Gregory.

We review the trial court's grant or denial of a motion for summary

judgment de novo, applying the same standard used by the trial court. Samolyk

v. Berthe, 251 N.J. 73, 78 (2022). We "consider whether the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party, are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party." Friedman v. Martinez,

A-1565-23 9 242 N.J. 449, 472 (2020) (quoting Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995)).

We review a trial judge's decision on whether to grant or deny a motion

for rehearing or reconsideration under Rule 4:49-2 for an abuse of discretion.

Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). "The rule applies

when the court's decision represents a clear abuse of discretion based on plainly

incorrect reasoning or failure to consider evidence or a good reason for the court

to reconsider new information." Pressler & Verniero, Current N.J. Court Rules,

cmt. 2 on R. 4:49-2 (2025).

"The Legislature enacted CEPA to 'protect and encourage employees to

report illegal or unethical workplace activities and to discourage public and

private sector employers from engaging in such conduct.'" Dzwonar v.

McDevitt, 177 N.J. 451, 461 (2003) (quoting Abbamont v. Piscataway Twp. Bd.

of Educ., 138 N.J. 405, 431 (1994)). CEPA's protection is liberally construed,

consistent with its remedial purpose. Abbamont, 138 N.J. at 431. This is

because its primary goal "is to protect society at large." Cedeno v. Montclair

State Univ., 163 N.J. 473, 478 (2000).

To establish a prima facie CEPA claim, plaintiffs must demonstrate:

(1) [they] reasonably believed their employer's conduct was violating either a law, rule, or regulation

A-1565-23 10 promulgated pursuant to law, or a clear mandate of public policy; (2) [they] performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against [them]; and (4) a causal connection exists between the whistle- blowing activity and the adverse employment action.

[Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015).]

We are satisfied that plaintiff met elements one and two for a prima facie

CEPA action. After plaintiff heard Spring say Sparta wanted to hire a female

for the vacant full-time security guard job, and Sparta hired a female, plaintiff

filed an EEOC complaint. Plaintiff believed Sparta had violated the law in

disclosing its intention to hire a female and the EEOC complaint was a

whistleblower activity in response.

We are not as convinced regarding element three, that an adverse

employment action was taken against plaintiff because of his whistleblowing

action. A retaliatory action under CEPA is the "discharge" of an employee for

engaging in a protected activity. Donelson v. DuPont Chambers Works, 206

N.J. 243, 257 (2011); see N.J.S.A. 34:19-2(e). Here, plaintiff was not

discharged, but instead he resigned.

Plaintiff contends his resignation was a constructive discharge in

retaliation for his filing an EEOC complaint. Under CEPA, a discharge

encompasses not only actual termination from employment, but also a

A-1565-23 11 constructive discharge. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1,

28 (2002). A constructive discharge occurs when an employer's conduct "is so

intolerable that a reasonable person would be forced to resign rather than

continue to endure it." Ibid.

Plaintiff was not told by anyone with administrative authority that he was

terminated or removed from the high school. He does not dispute he was never

terminated. He only asserts constructive discharge and supports his contention

with his own statement that Danzo, a substitute security guard without

administrative authority, said he was barred from the high school. Plaintiff also

did not demonstrate he was locked out of the absence management system as he

conceded Olivo had no access to or authority over the system and the coordinator

advised he was still listed in the absence management system.

We also note plaintiff's deposition testimony regarding his belief as to

why he may have been removed from the high school. Plaintiff stated:

Well, at that point after my conversation with . . . Gregory and after my conversation with . . . Olivo I assumed, I shouldn't use that word, I thought that [Olivo] reached out to somebody, either . . . Gregory or . . . Spring[], told him that I threatened him or yelled at him or called him a piece -- he didn't like the conversation. So he reached out to them, said something that must have flipped their switch and [t]hen he told . . . Danzo that I'm not allowed on the school property. . . .

A-1565-23 12 This testimony demonstrates plaintiff believed his alleged removal was a

direct result of his phone call with Olivo, in which he shouted and used an

expletive. This contradicts plaintiff's argument that his removal from the high

school, if that was going to take place, was planned before the call with Olivo.

Even if we accept that plaintiff was effectively barred by the administration from

the high school when Danzo so informed him, such action is not so intolerable

that plaintiff had no other option but to resign.

Additionally, if Gregory was aware of plaintiff's EEOC complaint and

intended to terminate him because of it, it would not make sense for Gregory to

attempt to convince plaintiff to "stay on" as an employee. Plaintiff stated that

during his phone conversation with Gregory, he was told he was doing a good

job and Gregory hoped plaintiff would stay. These are not words uttered by

someone who is terminating an employee. Rather, they were stated in response

to plaintiff's threats of resignation. We discern no evidence to support a

constructive discharge or any other adverse employment action.

Because plaintiff did not establish an adverse employment action, we only

briefly address element four, the causal connection between the whistleblowing

activity and the adverse employment action. Plaintiff relies on the Gregory call

to demonstrate a causal connection but as discussed, plaintiff told Olivo five

A-1565-23 13 days earlier that he was resigning. And Gregory's statement that he hoped

plaintiff would remain with Sparta contradicts any inference that Gregory

intended to terminate plaintiff because of the EEOC complaint. Furthermore, as

the trial court stated, plaintiff had the verbal tirade against Olivo prior to Danzo

telling him he was barred from the high school. Plaintiff has not demonstrated

a causal connection between the EEOC and any adverse employment action.

Because plaintiff did not establish a prima facie CEPA action, the trial

court properly granted defendants summary judgment.

Affirmed.

A-1565-23 14