NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2675-23
MICHAEL COE,
Plaintiff-Appellant,
v.
TRENTON BOARD OF EDUCATION, TRENTON PUBLIC SCHOOL DISTRICT, MONIQUE HARVEY, individually and in her official capacity, JAYNE HOWARD, individually and in her official capacity, and LISSA JOHNSON, individually and in her official capacity,
Defendants-Respondents. ___________________________
Argued March 11, 2025 – Decided May 20, 2025
Before Judges Gilson, Firko, and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0227-19. Linda J. Niedweske argued the cause for appellant (Niedweske Law Firm, LLC, attorneys; Linda J. Niedweske and Jessica L. Mariconda, on the briefs).
Nicholas J. Repici argued the cause for respondents (Lenox, Socey, Formidoni, Giordano, Lang, Carrigg & Casey, LLC, attorneys; Nicholas J. Repici, on the brief).
PER CURIAM
Plaintiff Michael Coe sued his employer, defendants the Trenton Board of
Education and Trenton Public School District (collectively, the Board), as well
as three school administrators, defendants Monique Harvey, Jayne Howard, and
Lissa Johnson. Plaintiff alleged that defendants had retaliated against him in
violation of the New Jersey Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14. He appeals from orders granting summary judgment to
defendants and denying his motion for reconsideration. Because most of
plaintiff's claims were time-barred by CEPA's one-year statute of limitations,
and because he failed to establish any adverse employment retaliation during the
statutory period, we affirm.
I.
We discern the facts from the summary judgment record, viewing them in
the light most favorable to plaintiff, who was the non-moving party. See
Memudu v. Gonzalez, 475 N.J. Super. 15, 18-19 (App. Div. 2023).
A-2675-23 2 Plaintiff is employed by the Board as a teacher for students with special
needs. In addition to his teaching responsibilities, plaintiff previously
performed extra duty assignments, including AM/PM duty supervision and
home instruction. He also served as lead teacher for the extended school year
and summer enrichment programs, as well as bus coordinator.
Plaintiff has worked for the Board for over twenty years. In 2004, he
received tenure. He has a master's degree in education and a post-master's
principal certification. He has also received certificates as a teacher of the
handicapped and as a supervisor.
In 2015 and 2016, plaintiff sent a series of emails concerning what he
believed were violations of State special education laws. In that regard, plaintiff
pointed out that certain classrooms did not have the required paraprofessional s
or one-to-one aides, certain students were not receiving proper bus services, and
certain students were not receiving the support or services in their individual
education programs (IEPs).
Many of those emails were sent to Harvey, who was the Supervisor of
Special Education. As Supervisor of Special Education, Harvey was responsible
for making sure that students' IEPs were implemented. Harvey testified that the
Board had a policy requiring teachers to notify their supervisors if
A-2675-23 3 paraprofessionals or one-to-one aides were missing from their classrooms, so
those positions could be filled. However, it sometimes took the Board time to
hire the support needed.
In 2015, the Board's Human Resources Department was placed under state
monitoring. In February 2016, plaintiff applied for the position of Supervisor
of Special Education. Lucy Feria, a Board superintendent, asked plaintiff to
apply for that position. According to plaintiff, Howard, the School Business
Administrator (SBA), thereafter told him that he would not get the position.
Plaintiff was denied an interview and told that he did not meet the
minimum qualifications for the Supervisor of Special Education position.
Specifically, Johnson, who held the position of Assistant Superintendent of
Talent Acquisition and Development, sent plaintiff an email on February 22,
2016, explaining why he did not get the position. That email stated that
plaintiff's resume did not list five years of administrative or supervisory
experience, which was a requirement for the position of Supervisor of Special
Education. Ultimately, the position was filled by an individual selected by the
state monitor.
In September, October, and November 2016, plaintiff sent emails to
Harvey complaining that he was not being paid for his work as a home instructor
A-2675-23 4 in a timely manner. Harvey was responsible for overseeing the payment of home
instructors by submitting their timesheets to the Board's Payroll Department.
Plaintiff also sent emails to Feria and others concerning his delayed payments.
In October 2016, Harvey forwarded an email chain concerning plaintiff's
complaints about the delayed payments to Howard. As SBA, Howard acted as
the Board's Chief Financial Officer and oversaw payroll. Howard testified that
she investigated plaintiff's complaints and, as part of that process, had the
Payroll Department pull all of plaintiff's timesheets. A review of those
timesheets revealed discrepancies. In that regard, there were forty-four
instances where plaintiff had sought to be paid for performing two different
functions at the same time.
In late 2016, plaintiff was advised of the discrepancies in his timesheets.
In January 2017, plaintiff met with Johnson and Howard to discuss his
timesheets. During that meeting, Johnson reviewed each timesheet with plaintiff
and questioned him about the discrepancies, primarily why the timesheets listed
plaintiff as being in two places at the same time. Plaintiff informed Johnson and
Howard that he was not going to answer their questions on the advice of his
legal counsel.
A-2675-23 5 On February 8, 2017, the Board certified tenure charges against plaintiff
based on his alleged submission of false timesheets. Thereafter, on February
28, 2017, plaintiff was suspended without pay pending the adjudication of the
tenure charges.
The tenure charges were submitted to arbitration. Following a hearing, an
arbitrator found that there were errors and inconsistencies in plaintiff's
timesheets, some of which plaintiff admitted. The arbitrator, however,
concluded that plaintiff had not deliberately falsified his timesheets and that the
discrepancies did not warrant dismissal from his tenured-teaching position.
Consequently, the tenure charges against plaintiff were dismissed on November
10, 2017. Ten days later, on November 20, 2017, plaintiff was reinstated to his
teaching position. Plaintiff's extra duty assignments did not resume following
his return to work.
In February, March, and April 2018, plaintiff sent emails concerning a
disruptive student and a classroom that did not have a paraprofessional as
required by law. The first email was sent on February 22, 2018, to Paula Bethea,
the Principal of Joyce Kilmer School, and George Benton, the Vice Principal,
and complained about a disruptive student, N.W., being placed in plaintiff's
classroom in violation of the student's IEP.
A-2675-23 6 Plaintiff sent a second email on March 13, 2018, addressed to Bethea,
Benton, and Marella Holmes, a school social worker, voicing concerns about his
classroom not having a paraprofessional to assist in supplementary instruction,
which was legally required given the class size. Then, in an email dated April
9, 2018, plaintiff wrote to Bethea and Holmes complaining again about N.W.'s
conduct and stating that his classroom was missing a legally required aide. At
his deposition, plaintiff testified that he was not aware of any retaliation taken
by Bethea, Benton, or Holmes related to the emails he sent in early 2018.
In late June 2018, plaintiff applied for a position as a vice principal. He
was granted a first interview but was then denied a second interview for the
position. Thereafter, four other individuals were hired as vice principals.
On December 11, 2018, plaintiff sued defendants alleging a hostile work
environment, association-based discrimination, and retaliation in violation of
CEPA and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1
to -50. Following the completion of discovery, defendants moved for summary
judgment, contending that plaintiff had failed to establish a prima facie case of
discrimination or retaliation in violation of CEPA or the LAD.
The trial court heard oral argument on the summary judgment motion on
May 26, 2023. That same day, the court entered an order granting summary
A-2675-23 7 judgment to defendants and dismissing plaintiff's complaint with prejudice. The
court explained its reasons on the record.
The court considered the applicable statute of limitations and determined
that the continuing violation doctrine did not apply and, therefore, that many of
plaintiff's claims were time-barred. In reaching that conclusion, the trial court
stated: "The [c]ourt . . . finds that the other allegations . . . of prior alleged
whistleblowing activity . . . were [discrete] acts that were separate and apart
from the alleged activity here, which really focuses on . . . the time period . . .
after December 11th of 2017."
The trial court then focused on plaintiff's whistleblowing activity within
the statutory period, namely his emails from February and March of 2018, and
determined that he had not established a causal connection between that activity
and any alleged retaliation. The court noted that plaintiff had admitted he did
not feel retaliated against because of the emails he sent in February and March
of 2018. In addition, the trial court concluded that the denial of a second
interview for the vice principal position in June 2018 was not an adverse
employment action related to any whistleblowing activity that occurred within
the statutory limitations period.
A-2675-23 8 Plaintiff moved for reconsideration, and the trial court heard oral
argument on that motion on February 14, 2024. Thereafter, on April 2, 2024,
the court issued an order and written statement of reasons denying plaintiff's
motion for reconsideration.
Plaintiff now appeals from the May 26, 2023 order granting summary
judgment to defendants and the April 2, 2024 order denying his motion for
reconsideration.
II.
On appeal, plaintiff argues that the trial court erred in dismissing his
CEPA claims, contending that he established a prima facie case of retaliation in
violation of CEPA and that there were material issues of disputed facts that
precluded summary judgment. In making that argument, plaintiff asserts that
the Board's alleged retaliatory actions against him prior to December 11, 2017,
constituted continuing violations of CEPA and that the trial court erred in not
considering those actions. Plaintiff also asserts that there was a causal
connection between his whistleblowing activity and the adverse employment
action of him not being appointed vice principal in June 2018. 1
1 Plaintiff is not appealing the dismissal of his claims under the LAD, which were based on a theory of associational discrimination. A-2675-23 9 We review a grant of summary judgment de novo, applying the same
standard as the trial court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That
standard requires us to "determine whether '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.'" Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).
"Summary judgment should be granted . . . 'against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal
analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
A. CEPA's Statute of Limitations.
The statute of limitations for claims arising under CEPA is one year. See
N.J.S.A. 34:19-5. Accordingly, if a plaintiff alleges retaliatory actions outside
the one-year limitation period, those claims are barred. See N.J.S.A. 34:19-5
(setting a one-year statute of limitations); N.J.S.A. 34:19-3 (making it unlawful
A-2675-23 10 for an employer to retaliate against an employee for whistleblowing). See also
Beck v. Tribert, 312 N.J. Super. 335, 346 (App. Div. 1998) (finding that a former
employee's claim for retaliatory discharge which was brought twenty-two
months after he was terminated was time-barred by CEPA's one-year statute of
limitations). The New Jersey Supreme Court has explained that when analyzing
whether a plaintiff's CEPA claims are time-barred, the focus should be on the
date of the alleged retaliation rather than the date of the whistleblowing activity.
See Green v. Jersey City Bd. of Educ., 177 N.J. 434, 437-38 (2003) (explaining
that "the CEPA one-year statute of limitations, N.J.S.A. 34:19-5, begins to run
from the . . . act of retaliation").
There is, however, an exception for conduct that is part of a pattern of
continuing discriminatory conduct. Roa v. Roa, 200 N.J. 555, 566 (2010). "[A]
judicially created doctrine known as the continuing violation theory has
developed as an equitable exception to the statute of limitations." Ibid. (quoting
Bolinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div. 2000)) (internal
quotation marks omitted). This doctrine applies to claims arising under CEPA.
See Green, 177 N.J. at 447-48; Beasley v. Passaic Cnty., 377 N.J. Super. 585,
609-10 (App. Div. 2005).
A-2675-23 11 Under the continuing violation doctrine, "a plaintiff may pursue a claim
for discriminatory conduct if he or she can demonstrate that each asserted act by
a defendant is part of a pattern and at least one of those acts occurred within the
statutory limitations period." Shepard v. Hunterdon Developmental Ctr., 174
N.J. 1, 6-7 (2002) (citing West v. Phila. Elec. Co., 45 F.3d 744, 754-55 (3d Cir.
1995)). The Supreme Court has recognized that:
"Retaliation," as defined by CEPA, need not be a single discrete action. Indeed, "adverse employment action taken against an employee in the terms and conditions of employment," N.J.S.A. 34:19-2e, can include . . . many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.
[Green, 177 N.J. at 448.]
The Court has also instructed:
[T]he continuing violation theory was developed to allow for the aggregation of acts, each of which, in itself, might not have alerted the employee of the existence of a claim, but which together show a pattern of discrimination. In those circumstances, the last act is said to sweep in otherwise untimely prior non- discrete acts.
What the doctrine does not permit is the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable.
A-2675-23 12 [Roa, 200 N.J. at 569.]
Plaintiff contends that he was subject to numerous adverse employment
actions that constituted continuing violations of CEPA. Accordingly, he argues
that the trial court erred in not considering the Board's actions from before
December 11, 2017. He points to the following alleged retaliatory actions: (1)
being denied an initial interview for the position of Supervisor of Special
Education in February 2016; and (2) the Board's investigation into his timesheets
and the resulting tenure charges against him in February 2017. In addition, he
asserts that "the hostility with which [the defendants] addressed [him]" in emails
from prior to December 11, 2017, constituted continuing violations of CEPA.
An objective review of the alleged adverse employment actions before
December 11, 2017, establishes that those actions were discrete acts that were
not part of a pattern of continuing discrimination. The Board's decision not to
hire plaintiff as the Supervisor of Special Education in February 2016 was a
discrete act. Plaintiff clearly knew he had made prior complaints and in
February 2016 he also clearly knew he was not promoted. See Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (holding that a retaliatory
failure to promote is a discrete act, separately actionable as an "unlawful
employment practice").
A-2675-23 13 Regarding the tenure charges in February 2017, the Board's initial
investigation into plaintiff's timesheets did not constitute actionable retaliation.
See Beasley, 377 N.J. Super. at 606 ("'"Retaliatory action" does not encompass
action taken to effectuate the "discharge, suspension or demotion."' Therefore,
an investigation of an employee is not normally considered retaliation."
(quoting Keelan v. Bell Commc'ns Rsch., 289 N.J. Super. 531, 539 (App. Div.
1996))). Notably, the Board had cause to investigate plaintiff because his
timesheets contained forty-four discrepancies.
Moreover, the Board's decision to file and certify tenure charges against
plaintiff and temporarily suspend him without pay were discrete actionable acts.
Plaintiff either "knew or should have known" of the basis for his claim in
February 2017. Roa, 200 N.J. at 569. See N.J.S.A. 34:19-2(e) (defining
"[r]etaliatory action" to include the "discharge, suspension or demotion of an
employee, or other adverse employment action taken against an employee in the
terms and conditions of employment").
Further, defendants' alleged hostilities towards plaintiff prior to December
11, 2017, even when aggregated, do not rise to the level of continued adverse
employment actions. See Beasley, 377 N.J. Super. at 607 ("Adverse
employment actions do not qualify as retaliation under CEPA 'merely because
A-2675-23 14 they result in a bruised ego or injured pride on the part of the employee.' CEPA's
purpose is to prevent retaliatory action against [whistleblowers], it is not to
'assuage egos or settle internal disputes at the workplace.'" (quoting Klein v.
Univ. of Med. & Dentistry, 377 N.J. Super. 28, 45-46 (App. Div. 2005))).
Consequently, we hold that the continuing violation doctrine did not apply
to plaintiff's claims. Therefore, the court correctly limited its analysis to the
alleged adverse employment actions that occurred after December 11, 2017.
B. Plaintiff's CEPA Claims Within the Statutory Period.
"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)). The statute "shields an employee who
objects to, or reports, employer conduct that the employee reasonably believes
to contravene the legal and ethical standards that govern the employer's
activities." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 27 (2014).
More specifically, CEPA prohibits an employer from taking retaliatory
action against an employee who:
A-2675-23 15 a. Discloses, or threatens 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 . . . .
[N.J.S.A. 34:19-3(a).]
To establish a prima facie CEPA action, a plaintiff must demonstrate that:
(1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy;
(2) he or she performed a "whistle-blowing" activity described in [N.J.S.A. 34:19-3(a)];
(3) an adverse employment action was taken against him or her; 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) (quoting Dzwonar, 177 N.J. at 462).]
"[O]nce a prima facie case is established, the burden of persuasion is
shifted to the employer to rebut the presumption of discrimination by
articulating some legitimate nondiscriminatory reason for the adverse
employment action." Allen v. Cape May Cnty., 246 N.J. 275, 290-91 (2021)
(quoting Kolb v. Burns, 320 N.J. Super. 467, 478 (App. Div. 1999)) (internal
A-2675-23 16 quotation marks omitted). "Upon such a showing by the employer, plaintiff has
the ultimate burden of proving that the employer's proffered reasons were a
pretext for the discriminatory action taken by the employer." Id. at 291 (quoting
Kolb, 320 N.J. Super. at 478) (internal quotation marks omitted).
The only actionable retaliation plaintiff alleges within the one-year statute
of limitations period was his failure to get the position of vice principal in June
2018. See Victor v. State, 401 N.J. Super. 596, 615-16 (App. Div. 2008) ("In
the CEPA context, . . . we have held that, in order to be actionable, an allegedly
retaliatory act must be 'sufficiently severe or pervasive to have altered plaintiff's
conditions of employment in an important and material manner.'" (quoting El-
Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 176 (App. Div.2005))).
He claims that the retaliation in June 2018 was in response to whistleblower
emails he sent to the named defendants and other representatives of the Board
over the course of several years.
In 2015 and 2016, plaintiff sent twelve emails to Harvey and other
individuals concerning what he believed were violations of State special
education laws. In those emails, plaintiff pointed out that certain classrooms did
not have the required paraprofessionals or one-to-one aides, certain students
A-2675-23 17 were not receiving proper bus services, and certain students were not receiving
the support or services in their IEPs.
Next, in September through November 2016, plaintiff sent a series of
emails complaining about not being paid for his work as a home instructor in a
timely manner. Those emails were sent to Harvey, Feria, Assistant
Superintendent for Special Services Elizabeth DeJesus, and others.
Then, in February, March, and April of 2018, plaintiff sent emails
concerning a disruptive student placed in his classroom in violation of the
student's IEP and a classroom that did not have a paraprofessional as required
by law. Those emails were sent to Bethea, Benton, and Holmes.
Plaintiff failed to present any evidence that there was a causal connection
between his alleged whistleblowing activities and his failure to be made a vice
principal in June 2018. At his deposition, plaintiff stated that he did not know
who made the decision to deny him a second interview for the position of vice
principal in June 2018. He now argues, however, that because "[n]o one person
worked in isolation, and email(s) addressed to one administrator were invariably
passed along to all those within the chain of command," his whistleblower
emails somehow resulted in him being denied the vice principal position. That
bald assertion is insufficient to establish a prima facie showing of causation
A-2675-23 18 under CEPA. See Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97-
98 (App. Div. 2014) (explaining that "[b]ald assertions are not capable of either
supporting or defeating summary judgment").
Plaintiff also relies on Howard, Harvey, and Johnson's job titles as
evidence of their involvement in the hiring process for the open vice principal
positions. He, however, provided no evidence to link them to the hiring process
or to the decision to deny him a second interview. Notably, none of the named
defendants were on the interview panel for the open vice principal positions.
Moreover, a review of the recommendation sheets and interview notes in the
record reveals that none of the individuals who directly received plaintiff's
whistleblower emails served on the hiring panel. Plaintiff has, therefore,
presented no evidence that any decision maker involved in deciding who would
receive the vice principal positions in June 2018, was aware of the emails he
sent from 2015 to 2018.
Further, we note that the longer the time gap between a whistleblower's
protected activities and the alleged retaliation, the more difficult it is to prove a
causal link between the activities and the retaliation. See Maimone v. City of
Atl. City, 188 N.J. 221, 237 ("The temporal proximity of employee conduct
protected by CEPA and an adverse employment action . . . may support an
A-2675-23 19 inference of a causal connection."). In this matter, plaintiff provided no
evidence that the emails he sent in 2015, 2016, 2017, or early 2018, had any role
in him not being promoted to vice principal in June 2018.
In short, plaintiff did not establish a prima facie showing of a CEPA
violation. Therefore, the trial court appropriately granted defendants' motion
for summary judgment and denied plaintiff's motion for reconsideration.
Affirmed.
A-2675-23 20