Opinion
DOCKET NO. A-0038-13T3
12-22-2014
JEREMY RASMUSSEN, Plaintiff-Appellant, v. VINELAND BOARD OF EDUCATION and MARY ANN BANKS, Defendants-Respondents.
Jeremy Rasmussen, appellant pro se. Methfessel & Werbel, attorneys for respondents (Eric L. Harrison, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-948-11. Jeremy Rasmussen, appellant pro se. Methfessel & Werbel, attorneys for respondents (Eric L. Harrison, of counsel and on the brief). PER CURIAM
Plaintiff Jeremy Rasmussen appeals from the trial court's July 19, 2013, order granting summary judgment dismissal of his one count complaint alleging retaliatory discharge under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Having reviewed plaintiff's arguments in light of the facts and applicable principles of law, we affirm substantially for the reasons set forth in Judge Richard J. Geiger's comprehensive written opinion.
I.
We discern the following facts from the record, extending to plaintiff all favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff was a non-tenured English teacher in the Vineland school system. Plaintiff's relationship with various supervisory personnel was marked by contention. Prior to his discharge, school administrators twice attempted to terminate plaintiff's employment for what plaintiff claimed were retaliatory motives. In both cases, the board of education ultimately reversed the decisions. The second reversal was embodied in an August 2010 settlement agreement with plaintiff that preserved his employment. However, plaintiff was arrested for possession of marijuana less than a month later. The superintendent then recommended plaintiff's discharge, and the board approved.
When plaintiff started work in the Vineland schools in October 2008, he did not have a teaching certificate. He participated in the so-called alternate route program. See N.J.A.C. 6A:9-2.1; N.J.A.C. 6A:9B-14.1 to -14.3. During his first school year, he complained the school district failed to provide him with adequate mentoring and timely evaluations of his performance, as required by the alternate route program. In April 2009, the principal in his assigned school allegedly retaliated against him by seeking to terminate his employment at the end of the school year. The superintendent at the time asserted that his non-renewal was based on poor performance. Yet, his evaluations demonstrated proficiency or better in various performance categories. Plaintiff obtained a Donaldson hearing before the board of education. The board reversed the administration's recommendation and renewed plaintiff's contract for the 2009-2010 school year.
Donaldson v. N. Wildwood Bd. of Educ., 65 N.J. 236 (1974).
During plaintiff's second year, he complained fellow teachers improperly colluded over the grading of final exams. Defendant Mary Ann Banks, who became superintendent of schools in the middle of the school year, implemented a change in the administration of final exams in May 2010. The change was apparently designed to achieve uniformity and consistency in the measurement of student performance. Banks required teachers to administer a standardized final exam. She also required at least two teachers — the student's classroom teacher and another teacher — to grade each exam independently.
Plaintiff alleged he observed teachers colluding over grades, in violation of Banks' directives. He claimed he was asked to participate in what he characterized as "organized impropriety," but he refused. He also asserted fellow teachers inappropriately prepared students for the final exams. He raised questions about grading procedures with school supervisors, and ultimately presented his allegations in an extensive letter to Banks on June 8, 2010.
Around the time of plaintiff's complaints, a group of administrators including Banks determined that plaintiff would not be rehired. The parties dispute whether the decision was made before or after plaintiff lodged his complaints about the exams. Banks asserted the non-renewal was the result of a reduction in force. She denied it was based on dissatisfaction with plaintiff's performance. The district had previously sent non-renewal notices to all 157 non-tenured teachers in response to a prospective reduction in State funding. However, the district ultimately retained 151 of the 157 teachers. Moreover, after plaintiff was non-renewed, the district advertised for the hiring of three new English teachers.
The board initially declined to hold a Donaldson hearing on the grounds that plaintiff's separation was based on a reduction in force. However, the board held the hearing after plaintiff obtained emergent relief from the Commissioner of Education. The Commissioner adopted an administrative law judge's decision that plaintiff was entitled to the hearing as a non-renewed, non-tenured teacher, regardless of the district's characterization of its action. At the August 4, 2010, Donaldson hearing, plaintiff asserted that he was non-renewed in retaliation for his whistle-blowing about the exam grading.
Shortly after the hearing, the board of education and plaintiff reached a settlement. The district agreed to renew plaintiff's contract for the 2010-2011 school year. Plaintiff released any claims based on events prior to the date of the agreement, including those under CEPA. Plaintiff signed the settlement agreement on August 16, 2010, and the board of education approved it on September 8, 2010.
On September 3, 2010, Atlantic City police arrested plaintiff outside a club and charged him with possession of less than fifty grams of marijuana, a disorderly persons offense. N.J.S.A. 2C:35-10(a)(4). The arresting officer, Detective-Sergeant James A. Sarkos, notified the district of the arrest in a letter dated September 15, 2010. However, Banks had already learned of the arrest on September 5, 2010, when it was reported in a local newspaper. Plaintiff was suspended with pay on September 7, 2010.
He did so in compliance with a 2007 policy memorandum between the Attorney General and the Commissioner of Education.
Banks also received a notice of plaintiff's arrest from the State Education Department. The department directed Banks to "take appropriate action," and confer with the board attorney. The department reminded Banks that if the charge resulted in a conviction, plaintiff would be permanently disqualified from school employment. Banks was asked to advise the department of any action taken pending final court action.
Assistant Superintendent Dina Elliott met with Sarkos on September 15, 2010, to learn the circumstances of the arrest. According to her letter addressed to the director of personnel, Sarkos told Elliott that he smelled marijuana as he approached plaintiff, who was in the process of rolling an item to smoke. When plaintiff was placed under arrest, he stated that he was a teacher and asked if the officer could "'cut him a break.'" Plaintiff later denied to Sarkos that the marijuana was his.
Banks sent several certified letters to plaintiff in September and October 2010 asking to meet to discuss the arrest. In an email response, plaintiff declined because his lawyer was unavailable. Plaintiff's counsel later reportedly advised him not to discuss the matter while the charges were pending. A meeting with Banks never occurred.
On October 13, 2010, on Banks's recommendation, the board of education terminated plaintiff's employment, effective December 12, 2010. The municipal court dismissed the complaint against plaintiff on November 22, 2010, because the State had not yet produced the State Police laboratory report. The dismissal on procedural grounds did not prompt Banks to reconsider her position. A week after the dismissal, the State Police produced its lab report, which confirmed that the material seized was marijuana. Sarkos issued a new complaint on December 1, 2010. At a hearing on January 13, 2011, the municipal court rejected the State's effort to revive the prosecution and dismissed the new complaint.
Plaintiff obtained a hearing before the board of education on February 9, 2011, pursuant to the grievance procedure of the collective negotiation agreement between the board and the Vineland Education Association. Plaintiff did not speak, and his counsel did not directly address whether plaintiff in fact possessed marijuana. Counsel argued the dismissal provided grounds for the board to reverse plaintiff's termination. He also stated plaintiff's termination "might be viewed as retaliation . . . based on his previous case against the board." The board did not alter its decision.
Plaintiff then sought grievance arbitration. After a four-day testimonial hearing, the arbitrator issued a thirty-two-page written decision in October 2011, finding that there was just cause for plaintiff's termination. Witnesses included plaintiff's brother; Sarkos; another Atlantic City police officer; and Banks. Plaintiff did not testify. The arbitrator received documentary evidence regarding the board's actions in the cases of other school district employees charged with criminal or quasi-criminal offenses. Plaintiff has not provided the court with the full record of the arbitration.
The arbitrator was appointed by the Public Employment Relations Commission pursuant to N.J.A.C. 19:12-5.3.
The arbitrator was persuaded that plaintiff possessed marijuana as he sat on the curb near a club in Atlantic City. The arbitrator credited Sarkos's testimony, and the positive field and laboratory tests. She rejected a contrary version of events presented by plaintiff's brother.
Addressing plaintiff's argument that the board acted prematurely, the arbitrator noted that even after the complaint against plaintiff was dismissed, he declined to address the substance of the charges before the board, although he was given the opportunity to do so. The arbitrator also determined that the board was justified in acting before the judicial process was complete, based on the evidence before it. Although plaintiff's termination was not compelled by law, and the complaint was dismissed, the termination was justified because plaintiff "acted in a manner unbecoming a teacher."
The arbitrator also rejected plaintiff's claims that he was the victim of disparate treatment. "[T]he Board has treated similarly situated employees evenhandedly and without discrimination. The testimony revealed that there has been no exception to the strong position regarding staff who are in contact with students." The arbitrator distinguished the case of a part-time custodian who was reinstated after a DWI conviction. The arbitrator also found little relevance in the case of a teacher who was charged fifteen or sixteen years earlier, because different administrators and a different board were in place.
The arbitrator also rejected plaintiff's claims of retaliation. She noted that plaintiff received generally favorable evaluations, which she found belied retaliation.
Plaintiff filed his complaint on October 11, 2011, within one year of the board's decision to terminate him.
II.
In granting defendants' summary judgment motion, Judge Geiger concluded that plaintiff had presented insufficient proof that his termination for marijuana possession was pretextual, and that defendants' real motive was retaliatory. Citing Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100-01 (2000), the judge noted that the burden of production shifted to defendants once plaintiff had established a prima facie case under CEPA. A plaintiff establishes a claim under Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003), by presenting evidence that he reasonably believed his employer was violating a law, regulation or clear public policy mandate; he performed whistle-blowing activity; he suffered an adverse employment action, termination; and the whistleblowing and termination were causally connected.
The court found that defendants met their burden of production by establishing that plaintiff engaged in conduct unbecoming a school teacher, which provided just cause for his termination. Citing administrative and unpublished appellate decisions, the judge concluded that possession of marijuana was a serious offense that undermined a person's suitability to serve as a teacher. He reasoned that the fact of possession was dispositive, regardless of whether the teacher was convicted.
Judge Geiger reviewed the arbitrator's decision and concluded it was amply supported by the evidence. He also reasoned that the arbitrator's determination that plaintiff actually possessed marijuana, and that he acted in a manner unbecoming a teacher, "must be given preclusive effect." We quote at length from Judge Geiger's analysis:
The principles of the Restatement [(Second) of Judgments (1982)] support the conclusion that the arbitration award is binding upon Rasmussen in this matter. Arbitration awards have "been given preclusive effect in a subsequent judicial proceeding, so long as the party to be bound had the opportunity to make its case in the arbitration." Habick, supra, 320 N.J. Super. at 257. See also Konieczny v. Micciche, 305 N.J. Super. 375, 384-87 (App. Div. 1997); Chattin v. Cape May Greene, Inc., 216 N.J. Super. 618, 634-38 (App. Div.), certif. denied, 107 N.J. 148 (1987). Indeed, Section 84 of the Restatement specifically provides for the preclusive effect of an arbitration award. None of the exceptions set forth in Section 84 apply to this matter. Section 83(2) of the Restatement addresses the procedural safeguards of due process, such as providing adequate notice to all persons to be bound by the determination and allowing the parties an opportunity to be heard and to present evidence. As detailed below, each of those due process safeguards was afforded during the arbitration. Similarly, none of the five exceptions to the general rule of preclusion set forth in Section 28 of the Restatement apply in this matter. The arbitration reasonably met the standards set forth in the Sections 27, 28, 83 and 84 of the Restatement so as to warrant preclusive effect. Additionally, "[t]he policies behind the doctrine of collateral estoppel — fairness, finality, and judicial economy — are all served by giving preclusive effect to the . . . arbitrator's decision . . . ." Habick, supra, 320 N.J. Super. at 262.
"The guiding principle is that the party to be bound had a 'full and fair opportunity to litigate the issue' in the earlier proceeding." Habick, supra, 320 N.J. Super. at 257. For the reasons set forth below, there can be no question that Rasmussen had a full and fair opportunity to litigate whether he was in possession of marijuana and thereby acted in a manner unbecoming a teacher. Moreover, plaintiff initiated the resolution of those issues through arbitration.
Rasmussen utilized each step of the multi-step grievance procedure established under the terms of the CNA to contest his termination, including the final step of submitting the dispute to binding arbitration.[] The record in this matter demonstrates that the arbitration was conducted in accordance with the terms of the CNA [Collective Negotiation Agreement] and all applicable requirements of the Public Employment Relations Commission (PERC). The rights afforded to Rasmussen during the arbitration hearing make clear that the Opinion and Award is binding, enforceable and must be given preclusive effect under the doctrine of collateral estoppel. In that regard the court notes the following:
• The arbitration hearing lasted four days.
• Rasmussen was represented by an attorney during the arbitration.
• The Union submitted Rasmussen's grievance to PERC for binding arbitration. The Arbitrator was selected in accordance with the terms of the CNA. Rasmussen and the Board agreed to the Arbitrator who was selected.
• Rasmussen was provided adequate notice of the proceedings.
• Through his attorney, Rasmussen presented witnesses, other evidence and legal arguments, and confronted the Board's witnesses through cross-examination.
• The witnesses were sequestered and testified under oath.
• Rasmussen was given the opportunity to testify on his own behalf but elected not to do so.[]
• The arbitration was transcribed.
• The issue whether Rasmussen engaged in conduct unbecoming a teacher was actually litigated in the arbitration.
• The procedures utilized afforded Rasmussen adequate due process.
• The Arbitrator painstakingly analyzed the evidence, made credibility determinations and factual findings, and reached conclusions and a final decision on the merits that were amply supported by the evidence.
• Rasmussen, the party against whom the doctrine is to be applied, is the same party as in the prior arbitration.
• Plaintiff has not contended that the Arbitrator failed to limit [herself] to the issues submitted to [her] or that he deviated from the terms and conditions of the CNA. Nor has plaintiff appealed from the Arbitrator's decision.
Given the record in this matter, the findings and conclusions of the Arbitrator are binding and enforceable and must be given preclusive effect.
Finally, Judge Geiger concluded that plaintiff failed to prove defendants' reasons for termination were pretextual. Citing Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 296 (App. Div. 2002), the court recognized that plaintiff bore the burden to show that retaliatory motives were "a determinative factor" in defendants' decision to terminate. In other words, plaintiff was required to show that retaliatory intent "made a difference" in defendants' decision. Ibid. This, plaintiff failed to do. Judge Geiger reasoned:
[P]laintiff's argument that a retaliatory motive played a determinative role in the adverse decision is implausible. The record demonstrates that the adverse employment action was not caused by purposeful or intentional retaliation and that his prior whistle-blowing decision did not make a difference in the decision to terminate him. This is not a case in which an employee is terminated based on a trumped-up charge or for an insubstantial reason. On the contrary, the evidence overwhelmingly points in the other direction — that the reason for his termination was his unbecoming conduct on September 3, 2010. That single event was a more than sufficient basis to terminate plaintiff even though he was not convicted of the offense due to a pretrial discovery violation. Moreover, the Arbitrator found that the possession of marijuana constituted unbecoming conduct warranting termination. That finding is binding and given preclusive effect.
Plaintiff's conduct brought this result on himself. Had he not engaged in the unbecoming conduct he would have retained his non-tenured position pursuant to the Settlement Agreement. Instead, he engaged in behavior that could not and should not be tolerated by the Board. The Board and the public have a right to expect appropriate conduct by school teachers and to terminate teachers who breach their duty to engage in self-restraint and controlled behavior and thereby fail to conduct themselves as proper
role models. He violated the public trust placed in him.
III.
We review an order granting summary judgment de novo, using the same legal standard employed by the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Likewise, we owe no deference to the trial court's legal conclusions. Ibid. As did the trial court, 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." Brill, supra, 142 N.J. at 540. "[W]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment." Ibid. (internal quotation marks and citation omitted).
Plaintiff argues that the arbitrator's decision should not be given collateral estoppel effect, since the issue of whether defendants acted with a retaliatory motive was "tangential, at best, to the arbitration hearing." He also asserts that he produced sufficient evidence to create a genuine issue of material fact that his whistle-blowing caused his termination.
Plaintiff also argues that his claim pertaining to his October 2010 termination was not barred by the statute of limitations, or the release incorporated in the August 2010 settlement agreement. Judge Geiger rejected defendants' arguments on those points, and they do not renew those arguments on appeal. We therefore do not address them.
Defendants do not contend that the arbitrator's finding regarding retaliatory motive should be accorded preclusive effect. Rather, they argue plaintiff is precluded from relitigating the finding that he in fact possessed marijuana, which presented just cause for his termination. They also argue that plaintiff failed to present proof that defendants' reasons for termination were pretextual sufficient to defeat summary judgment.
We reject plaintiff's challenge to applying collateral estoppel to the issue of just cause to terminate, as this was based on the subsidiary findings that plaintiff in fact possessed marijuana, and was not the victim of disparate treatment. We likewise reject plaintiff's argument that he presented sufficient proof of pretext to reach a jury. We do so substantially for the reasons set forth by Judge Geiger. We add the following comments.
It is well-settled that to apply collateral estoppel, a proponent must meet a five-part test:
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005) (quoting In re Estate of Dawson, 136 N.J. 1, 20-21 (1994)).]
The Restatement sets forth grounds for declining to apply collateral estoppel:
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
(1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action; or
(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or
(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or
(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or
(5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.
[Restatement (Second) of Judgments § 28 (1982).]
Plaintiff essentially relies on exceptions (1) and (3), pertaining to judicial review, and the quality of the proceeding. He argues that the arbitrator's decision should not be given preclusive effect because it was not reviewed. He misunderstands the exception. The issue is whether judicial review was available, not whether it was in fact sought. There is no question that plaintiff could have sought review of the arbitrator's decision. See Pascack Valley Reg'l High School Bd. of Educ. v. Pascack Valley Reg'l Support Staff Ass'n, 192 N.J. 489, 496 (2007) (discussing standard of review of public sector grievance arbitration). The fact that he did not appeal the arbitrator's determinations does not undermine the preclusive effect of the arbitrator's findings.
Plaintiff also misplaces reliance on United States Supreme Court cases, see, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974), that stand for the proposition that an unsuccessful grievance arbitration did not bar subsequent actions under federal anti-discrimination laws. See also Restatement (Second) of Judgments, comment g to § 84 (1982). Following Alexander, our Supreme Court similarly held that the "failure to assert a claim of discrimination in a grievance proceeding will not preclude the presentation of that claim to the State Division on Civil Rights." Thornton v. Potamkin Chevrolet, 94 N.J. 1, 9 (1983). Our Supreme Court held that the entire controversy doctrine should not preclude presentation of a discrimination claim, notwithstanding an earlier arbitration. Id. at 8-9.
For the purposes of our decision, we need not consider the extent to which Alexander has been limited by subsequent United States Supreme Court decisions. See, e.g., 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 260, 129 S. Ct. 1456, 1466, 173 L. Ed. 2d 398, 411 (2009) (holding that if the parties negotiate an arbitration clause requiring arbitration of age discrimination claims, such a bargain constitutes a waiver of judicial review); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 23, 111 S. Ct. 1647, 1650, 114 L. Ed. 2d 26, 35 (1991) (holding that where employees agree to arbitrate discrimination claims, they are bound by that agreement).
The issue is not whether plaintiff should be barred from asserting his CEPA claim. He was not. The issue is what effect should be given the factual determinations of the arbitrator. The Court in Thornton, supra, 94 N.J. at 8, held that an arbitrator's decision shall be given evidential effect in the subsequent proceeding to the extent appropriate under the circumstances, given the nature of the arbitration proceeding.
We need not decide the extent to which Winters v. N. Hudson Reg'l Fire and Rescue, 212 N.J. 67 (2012) may implicate a different analysis. The Court in Winters held that an employee was barred from bringing a CEPA complaint where he previously brought an unsuccessful Civil Service appeal — as opposed to arbitration — of his discipline. 212 N.J. at 88.
Plaintiff asserts that the nature of the arbitration proceeding in this case — for example, the inapplicability of the Rules of Court and the admissibility of hearsay — render it inappropriate to apply collateral estoppel. However, the same could be said of proceedings before the Office of Administrative Law, yet agency decisions may be accorded collateral estoppel effect, City of Hackensack v. Winner, 82 N.J. 1, 31-33 (1980); Ensslin v. Twp. Of N. Bergen, 275 N.J. Super. 352, 369 (App. Div. 1994) (applying issue preclusion of adverse administrative decision of Merit System Board), certif. denied, 142 N.J. 446 (1995), unless the nature of the proceedings do not merit it. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006) (denying collateral estoppel effect of findings of unemployment compensation hearing examiner where, among other factors, the proceedings were not recorded, witnesses were not subject to cross-examination and one witness appeared by telephone).
Judge Geiger reviewed the arbitrator's conclusions, reached after four days of hearings, and determined the application of collateral estoppel was warranted. Particularly given plaintiff's failure to provide us with a complete transcript of the hearing, we discern no basis to disturb Judge Geiger's determination. See R. 2:6-1(a) (stating that the appendix "shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues"); see also Cmty Hosp. Grp., Inc. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor are we obliged to attempt review of an issue when the relevant portions of the record are not included."); Johnson v. Schragger, Nagy & Krasny, 34 0 N.J. Super. 84, 87 n.3 (App. Div. 2001) (noting that failure to supply documents "essential to the proper consideration of the issues hinders . . . appellate review").
We also reject plaintiff's argument that he presented sufficient evidence to create a jury trial issue on his claim that a retaliatory motive was a determinative factor in defendants' decision to terminate. Extending plaintiff all favorable inferences, one may assume that some animosity may have existed as a result of plaintiff's allegations, which led to the August 2010 settlement and the renewal of his employment. But, plaintiff's claim that the two prior attempts not to renew his employment were retaliatory did not forever immunize him from the consequences of misconduct or behavior unbecoming a teacher.
In support of his claim that his termination was pretextual, plaintiff relies on the alleged temporal proximity of his whistle-blowing conduct and his termination; an alleged pattern of antagonism by defendants; and differential treatment. We are unpersuaded.
"Temporal proximity, standing alone, is insufficient to establish causation" under CEPA. Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div.), certif. denied, 174 N.J. 191 (2002). Moreover, the board's action in October 2010 occurred roughly four months after plaintiff's alleged whistle-blowing about the final exams. Importantly, plaintiff's possession of marijuana occurred in the interim. This was, as Judge Geiger appropriately found, a significant event. Had plaintiff been convicted, his termination would have been compelled. N.J.S.A. 18A:6-7.1. The charges were dismissed based only on a delay in the production of a lab report, which ultimately concluded that the item seized from plaintiff was indeed marijuana. Also, the alleged acts of antagonism against plaintiff all preceded the settlement agreement.
Finally, plaintiff's proofs of disparate treatment fall short of creating a jury trial issue. The issue of disparate treatment was resolved against plaintiff in arbitration, and is entitled to preclusive effect. In addition, our independent review of the record compels the same conclusion.
We discern no merit to plaintiff's claim that similarly situated teachers were treated differently. Plaintiff must do more than cite slight or insubstantial differences in treatment. See Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 307 (App. Div. 2000) (rejecting claim of differential discipline). Under the circumstances, we find no infirmity in the board's decision to terminate plaintiff absent a judicial finding of guilt. The dismissal on procedural grounds prevented a judicial finding on the merits. Also, the standard of proof at a trial is more demanding than the standard the board was entitled to apply to its determination that plaintiff engaged in conduct unbecoming a teacher.
As the arbitrator found, there was sufficient proof that plaintiff possessed marijuana. Plaintiff refused to provide information to counter the charges, even after the dismissal of his charges in November, weeks before his termination was to take effect. Instead, Sarkos's unrefuted evidence was ultimately bolstered by the State Lab report.
We also note that plaintiff was not the first employee who was terminated without a judicial finding of guilt. The record reflects the termination of a school security guard charged but never tried for various drug offenses. Rather, in that case, the employee was admitted to pre-trial intervention. Nonetheless, apparently persuaded that the employee did in fact possess drugs, the board terminated her employment.
It is of no moment that an Administrative Law Judge decided that effective five years after her arrest she could reapply for employment; by that time, she completed her period of supervision, demonstrated her rehabilitation, and the charges were dismissed.
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To the extent not addressed, plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION