SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4003-15T2

JOSE COTTO,

Plaintiff-Respondent,

v.

NEWARK PUBLIC SCHOOLS,

Defendant-Appellant.

____________________________

Argued October 25, 2018 – Decided March 7, 2019

Before Judges Simonelli, O'Connor and Whipple. 

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-3932-10.

Sandro Polledri argued the cause for appellant (Adams 

Gutierrez & Lattiboudere, attorneys; Sandro Polledri, 

of counsel and on the briefs).

Silvia G. Gerges argued the cause for respondent 

(Lawrence & Gerges LLC, attorneys; Mark C.G. 

Lawrence, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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A-4003-15T2

In this employment matter, plaintiff Jose Cotto, a non-tenured teacher

whose contract was not renewed, filed a complaint against defendant Newark 

Public Schools for wrongful termination under the Conscientious Employee 

Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. A jury rendered a verdict in 

plaintiff's favor and awarded him damages. Defendant appeals from the April 

4, 2012 order denying its motion for summary judgment, and challenges an 

evidentiary ruling.

1 We affirm.

 

1

 Defendant also appeals from the May 11, 2012 order denying its motion for 

reconsideration of the denial of summary judgment. However, defendant does 

not explain how the trial court's decision was palpably incorrect, irrational, or 

how the court failed to consider probative evidence. See Palombi v. Palombi, 

414 N.J. Super. 274, 288 (App. Div. 2010). Thus, we decline to consider this 

issue. In addition, although the notice of appeal indicates defendant appeals 

from the July 27, 2012 order denying its motion for remittitur, the January 15, 

2016 order awarding plaintiff additional back and front pay, and the April 4, 

2016 order awarding plaintiff attorney's fees and costs, defendant did not 

address these issues in its merits brief. Thus, the issues are deemed waived. See

Heyert v. Taddese, 431 N.J. Super. 388, 437 (App. Div. 2013); Pressler & 

Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019). Lastly, defendant 

appeals from the June 5, 2012 order denying it motion for involuntary dismissal, 

and the July 27, 2012 order denying its motion for judgment notwithstanding 

the verdict (JNOV). However, defendant does not specifically explain how the 

court erred in denying these motions and appears to rely on the arguments made 

in support of summary judgment. Thus, these issues are deemed waived as well.
3

A-4003-15T2

I.

We derive the following facts from the evidence submitted by the parties 

in support of, and in opposition to, the summary judgment motion, viewed in the 

light most favorable to plaintiff, who opposed entry of summary judgment. 

Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135 (2017). 

Defendant employed plaintiff as a world language teacher for the 2008-

2009 school year under a one-year contract. Plaintiff taught Spanish to thirdthrough eighth-grade students at the Newton Street School. 

The issues raised on appeal involve two distinct sets of facts. The first, 

which forms the basis of plaintiff's CEPA claims, concerns defendant's conduct 

relating to a threat by an eighth-grade special education student, J.O., to kill 

plaintiff. The second, which forms the basis for defendant's defense to plaintiff's 

CEPA claim, involves plaintiff's alleged struggle to meet requisite performance 

expectations for first-year novice teachers. 

The J.O. Incident

Plaintiff believed J.O. was gang-involved and that the school principal, 

James Carlo, had taken a special interest in J.O., since Carlo drove him to school 

and let him "hang out" in his office. Because J.O. had behavioral problems, an 

aide accompanied him to classes. 
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A-4003-15T2

On the morning of March 19, 2009, J.O. entered plaintiff's classroom and 

did not sit in his assigned seat. When plaintiff asked J.O. to move, J.O. replied,

"Shut the fuck up before I pop you." Plaintiff asked J.O. what he meant, and 

J.O. replied, "Shut the fuck up before I kill you." While making this threat, J.O., 

who was approximately six feet tall, stood up and pointed a hairbrush at plaintiff 

"like a gun while miming pulling the trigger." At that point, either J.O. or

another student, T.R., took out a cell phone, and J.O. said, "I'm calling my home 

boys right now so they can come and kick your ass." Plaintiff became "really 

scared" and told J.O.'s aide, Hannah Edwards, to escort J.O. and T.R. out of the 

classroom. Edwards took J.O. and T.R. to the office of the vice principal, Toni 

Bauknight. Carlo was at an off-campus meeting that day. 

About five minutes later, Bauknight returned J.O. and T.R. to plaintiff's 

classroom. Plaintiff was shocked and exclaimed, "Why are you bringing them 

back to my class after they threatened my life?" With Bauknight still present, 

plaintiff left the classroom briefly to find his mentor, Ernest Whitaker, because 

he was afraid. Whitaker accompanied plaintiff back to his classroom, and 

plaintiff began teaching his lesson. 
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A-4003-15T2

Singletary,2an aide not associated with J.O., arrived shortly thereafter to 

speak with plaintiff. At that point, plaintiff left the classroom and "broke down 

in tears." Singletary told plaintiff to call school security and the police because 

J.O.'s threat was very serious, and she gave plaintiff both phone numbers. 

Singletary's mother, a clerk who worked in the school office, ultimately called 

the police for plaintiff because plaintiff was too upset to make the call. 

Newark Police Officer Day responded to the school and met with plaintiff 

and Bauknight. Plaintiff told Day about J.O.'s threat, but Day said he could not 

make any arrests until he received a report from the school administration. After 

Day left, plaintiff spoke with Bauknight about the incident for fifteen or twenty 

minutes. Bauknight gave plaintiff a book entitled, "What Every Middle School 

Teacher Should Know" and released him for the day. Plaintiff claimed 

Bauknight acknowledged to him that J.O. admitted having threatened to kill him.

Bauknight wrote in an incident report that J.O. and plaintiff had 

exchanged words that escalated to a verbal exchange after J.O. refused to change 

seats. However, Bauknight did not describe exactly what J.O. said to plaintiff. 

She wrote that J.O. made a call on his cell phone, but provided no details about 

the nature of the call. 

 

2

 The record does not reveal Singletary's first name.
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A-4003-15T2

Bauknight also wrote that when she returned J.O. to plaintiff's classroom, 

she overheard plaintiff say "he can't take it and . . . he can't teach like this and 

that he felt threatened and he was going to call the police." Bauknight wrote 

that she took J.O. to her office after plaintiff's class ended and allowed him to 

call his mother. During that phone call, Bauknight and J.O.'s mother agreed that 

J.O. would stay at school and not go home. However, Bauknight also wrote that 

J.O. was suspended for two days, but the record does not reveal when the 

suspension took effect. Finally, although the report confirmed that Bauknight 

spoke at length with plaintiff after Day left, it did not recount plaintiff's version 

of events. 

At approximately 3:00 p.m. the next day, Carlo called plaintiff to his 

office, with Bauknight present. Plaintiff claimed that Carlo screamed at him, 

scolded him for calling the police, and told him he had put the children's life in 

jeopardy and acted very unprofessionally.3 Plaintiff also claimed that Carlo 

never asked him about the incident with J.O. Instead, both Carlo and Bauknight 

gave plaintiff a disciplinary memo reprimanding him for conduct unbecoming a 

professional.

 

3

 The record does not reveal why Carlo accused plaintiff of endangering the 

children's lives. 
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A-4003-15T2

Carlo's disciplinary memo indirectly acknowledged the J.O. incident and 

focused upon events that allegedly occurred thereafter. The memo stated that 

on March 19, 2009, plaintiff: (1) yelled at the responding security guard, Pryor,

after J.O. and T.R. had been escorted out of his classroom and slammed the door 

in her face; (2) threw J.O.'s book bag out of the classroom door, almost hitting 

the aide; (3) walked out of his classroom in the middle of the class period leaving 

Bauknight in the classroom; (4) called the director of security for the school 

district, Willie Freeman, to complain about Pryor, thus bypassing the school 

administrator; and (5) repeatedly used inappropriate language in front of his 

students. Notably, Bauknight's incident report did not state that plaintiff threw

a book bag or used inappropriate language. However, the incident report stated

that Bauknight spoke to Pryor about her interactions with plaintiff. 

At any rate, Carlo's disciplinary memo concluded that plaintiff's conduct 

led to a complete loss of instructional time and compromised the safety of the

students and the adults who responded to his classroom. The memo advised 

plaintiff it was his responsibility to maintain a safe and orderly learning 

environment in his classroom and security personnel are to be utilized for

emergencies only. While the memo did not reference J.O. or T.R. specifically, 
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A-4003-15T2

it stated, "the problematic students were out of the room on their own accord 

accompanied by the teacher['s] aide before security arrived." 

Bauknight's disciplinary memo focused more on the J.O. incident. It 

stated that plaintiff failed to take the appropriate steps to deescalate the 

confrontation with the students, which resulted in the other students witnessing 

their teacher not displaying the appropriate standard of professional behavior, 

seeing their classmates disrespected, and hearing language inappropriate for a 

school setting. The memo further stated that plaintiff was directed to continue 

reading the book Bauknight gave him and meet with her to discuss the specific 

strategies he would implement in the classroom.

Plaintiff responded in writing to both disciplinary memos. He explained 

that J.O. had used extensive profanity and inappropriate language, called 

someone on his cell phone to arrange for plaintiff's assault, and plaintiff believed 

he was in grave danger of physical harm. Plaintiff stated he was in fear once 

Bauknight returned J.O. to his classroom because J.O.'s family was connected 

to a local street gang and could easily arrange his assault. He maintained that 

Bauknight's return of J.O. to his classroom placed both him and his students at 

risk of harm, and asserted that J.O.'s actions compromised the students' 

instructional time.
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A-4003-15T2

As to Pryor, plaintiff stated that he had not recognized her and slammed 

the classroom door only because it was "falling off the frame and require[d] 

excessive energy to close it." Plaintiff claimed that J.O. and T.R. kicked and 

broke the door before school began on March 16, 2009, three days prior to the 

J.O. incident, and Carlo failed to discipline them even though plaintiff reported 

their actions. Finally, plaintiff admitted calling Freeman, not to complain about 

Pryor, but because J.O.'s threats made him fear for his well-being. 

Defendant's Discipline Policy

Plaintiff asserted that Bauknight's return of J.O. to his classroom after J.O.

threatened him, and her failure to report the threat to the Newark Police 

Department (NPD), violated defendant's student discipline policy.4 

The discipline policy outlines four levels of disciplinary infractions, 

ranging from Level I "misbehavior . . . which impedes orderly classroom 

procedures" to Level IV "acts which result in violence to another person or 

property or which pose a direct threat to the safety of others in the school." 

 

4

 The record on appeal contains two versions of the district's discipline policy. 

One version was in effect prior to February 2009. The second version was 

approved by the district in February 2009, and revised on October 30, 2009. 

Plaintiff relied upon the latter version in his opposition to defendant's summary 

judgment motion; however, both versions were admitted into evidence at trial. 

The parties agree that the documents are substantially similar. To avoid

confusion, we refer only to the latter version. 
10 A-4003-15T2

Within that framework, each level has its own procedures and disciplinary 

options or responses. 

Threats can be Level III or Level IV infractions. For example, acts 

directed against persons or property, such as vandalism, graffiti, fighting, or 

threats to others, are considered Level III infractions. In response to a Level III 

infraction, administrators must "initiate[] disciplinary action by investigating 

. . . and conferring with staff on the extent of the consequences," which may 

include counseling and/or suspension. 

Level IV infractions, the most serious, are "often criminal and are so 

serious that they may require . . . immediate removal of the student from school, 

the intervention of law enforcement authorities and action by central office 

administrators." For example, terroristic threats and the use of a cell phone to 

facilitate the commission of a crime or to inflict injury or harm to persons or 

property, are considered Level IV infractions.

The discipline policy requires administrators to verify the Level IV 

offense, confer with the staff involved, and meet with the student. Thereafter,

the administrators must immediately remove the student from the school 

environment and notify the student's parents. If the infraction is a criminal 

offense, school officials must "contact [a] law enforcement agency and assist in 
11 A-4003-15T2

prosecuting [the] offender." Disciplinary options and responses to Level IV 

offenses include suspension and expulsion. With respect to threats in general, 

the discipline policy specifically requires the school principal, "in accordance 

with established procedures, [to] respond immediately to student, teacher and/or 

staff complaints of physical or verbal threats and/or incidents committed by 

other students, teachers, district[] employees or outside persons[.]" 

The discipline policy also contains specific rules pertaining to the assault 

of teachers. Citing N.J.S.A. 2C:12-1, the discipline policy defines simple 

assault as conduct which: "(1) [a]ttempts to cause or purposely, knowingly, or 

recklessly causes bodily injury to another; or (2) [n]egligently causes bodily 

injury to another with a deadly weapon; or (3) [a]ttempts by physical menace to 

put another in fear of imminent serious bodily injury." Citing the statute, the 

discipline policy states that a person who commits a simple assault upon a 

teacher "clearly identifiable as being engaged in the performance of his duties" 

is guilty of a fourth-degree crime even if the teacher was uninjured. 

The discipline policy characterizes "assault and battery" as a Level IV 

infraction. It further states that "any pupil who commits an assault (as defined 

by N.J.S.A. 2C:12-1) upon a board member, teacher, administrator or other 

employee of the Newark School District shall be immediately suspended from 
12 A-4003-15T2

school consistent with procedural due process. . . ." The discipline policy 

requires the principal to remove the student from class and keep the student 

under supervision until the end of the school day, or until the arrival of the 

student's parent or guardian. 

Notably, and of significance here because J.O. was a special education 

student, the discipline policy states that students "with educational disabilities 

are subject to the same district disciplinary policies and procedures as nondisabled pupils, unless the pupil's Individualized Education Program [IEP] 

includes exemptions to those policies or procedures." J.O.'s IEP is not in the 

record.

In addition, defendant developed the "Uniform State Memorandum of 

Agreement Between Education and Law Enforcement Officials" (USM), revised 

in 2007, addressing the district's relationship with the NPD, as required by 

N.J.A.C. 6A:16-6.2(b)(13). The USM requires school officials to report genuine 

threats to the NPD:

[S]chool official[s] shall immediately notify NPD 

whenever any school employee in the course of his or 

her employment develops reason to believe that anyone 

has threatened, is planning, or otherwise intends to 

cause death, serious bodily injury, or significant bodily 

injury to another person under circumstances in which 

a reasonable person would believe that the person 

genuinely intends at some time in the future to commit 
13 A-4003-15T2

the violent act or to carry out the threat, pursuant to 

N.J.A.C. 6A:16-6.3(c) through (e). 

The Alternate Route Teacher Program

We now address the second relevant set of facts, which concerns plaintiff's 

teaching performance during the 2008-2009 school year. Plaintiff was 

employed with defendant through the alternate route, or provisional, teacher 

program. The one-year alternate route program allowed plaintiff to teach while 

holding a provisional certificate, with the option to obtain a standard certificate 

from the New Jersey Department of Education upon fulfilling all program 

requirements. Plaintiff had a Bachelor of Arts degree with a major in 

communications and a minor in education, but had not met the necessary 

requirements for a standard certificate. As a result, defendant was required to 

provide him with on-the-job training, support, and mentoring.

Carlo assigned Cora Noel to mentor plaintiff in September 2008, but soon 

after, plaintiff requested a new mentor because Noel's feedback was not helpful.

Iraida Ramos began mentoring plaintiff in October 2008. During Ramos' threemonth tenure as his mentor, plaintiff struggled with completing lesson plans. 

When Ramos stepped down as plaintiff's mentor, plaintiff asked Carlo to assign

Whitaker as his mentor and plaintiff and Whitaker met weekly beginning in 

January 2009. Plaintiff praised Whitaker as a "great mentor" who taught him 
14 A-4003-15T2

how to do lesson plans in less than two weeks by showing him step by step what 

was required. 

Plaintiff received additional support from Pilar Veru, the bilingual 

resource teacher coordinator. Although she was not assigned as plaintiff's

mentor, Veru met with him once or twice a month, observed his teaching, and 

instructed him on classroom organization and management, and lesson planning. 

Veru also took plaintiff to observe an exemplary world languages class in 

another school. Veru provided plaintiff with much more support than the other 

world language teachers generally received, yet he continued to struggle with 

lesson presentation and classroom management. 

Observations, Summative Evaluation, 

and Non-Renewal of Plaintiff's Contract

During the 2008-2009 school year, N.J.S.A. 18A:27-3.1 required 

defendant to observe and evaluate the performance of non-tenured teachers, like 

plaintiff, "at least three times during each school year but not less than once 

during each semester" before April 30, 2009. Defendant's guidebook concerning 

the observation and evaluation process the statute mandated necessitated three 

formal observations at ten-week, twenty-week, and thirty-week intervals, to 

gather data about a teacher's practice, plus one annual written performance 
15 A-4003-15T2

evaluation, or summative statement incorporating the data gathered throughout 

the year. 

The guidebook set target dates for those intervals of November 30, 

January 31, and March 16 for the observations, with the summative evaluation 

to be completed no later than April 16. The guidebook required the ten- and 

twenty-week observations be announced to the teacher and scheduled in advance 

by the observer. Although the thirty-week observation could be unannounced, 

the guidebook recommended that it be announced for the teacher's benefit. 

Observations were conducted during one fifty-minute class period. 

The forms to memorialize each observation and summative evaluation are 

divided into four sections: (I) Curriculum, Instruction and Assessment; (II) 

Student Learning and Development; (III) Responsive Learning Environment; 

and (IV) School and Community. Those four sections are further sub-divided 

into twenty-eight component areas. Following each observation, the observer 

rated a provisional teacher's performance in each component area as beginning 

(B), emerging (E), or applying (A), with (B) being the least proficient and (A) 

being the most proficient. 

For the annual summative evaluation, provisional teachers were given a 

designation of approved, insufficient, or disapproved for each section, along 
16 A-4003-15T2

with an overall evaluation. The summative ratings incorporated all the data 

collected during that year's observations. An overall "approved" designation 

guaranteed a recommendation for a standard teaching certificate. Although a 

provisional teacher rated as "insufficient" did not earn such a recommendation, 

he or she was not foreclosed from seeking "entry on one more occasion into a 

State-approved district training program" to try to obtain the recommendation. 

However, provisional teachers rated as "disapproved" were not given another 

chance.

Plaintiff's ten-week and twenty-week observations were announced and 

took place before the J.O. incident, while his thirty-week observation, which 

was unannounced, and his annual summative evaluation occurred shortly after 

the J.O. incident. The following chart summarizes the ratings plaintiff received 

in the aforementioned twenty-eight component areas, which we discuss in more 

detail below:

Ten-week 

observation

(by Carlo, 11/25/08)

Twenty-week 

observation

(by Bauknight, 

2/10/09)

Thirty-week 

observation

(by Carlo, 3/27/09)

Beginning (B) 13 19 24

Emerging (E) 13 9 2

Applying (A) 1 0 0

N/A 1 0 2
17 A-4003-15T2

Carlo conducted plaintiff's ten-week observation on November 25, 2008. 

He gave plaintiff thirteen Bs, thirteen Es, and one A. Plaintiff received most of 

the Bs under Section I, Curriculum, Instruction and Assessment, and received 

the A under Section III, Responsive Learning Environment, for "[c]reating a 

positive classroom climate that is socially, emotionally and physically safe." 

Carlo commended plaintiff for demonstrating high expectations for his 

students and their academic achievement, and for striving to develop positive 

relationships with all of the students in the school. He recommended that 

plaintiff develop a thorough understanding of core curriculum standards and 

instructional strategies to deliver effective instruction and create detailed lesson 

plans appropriate for the various grades he taught. 

Bauknight conducted plaintiff's twenty-week observation on February 10, 

2009. She gave plaintiff nineteen Bs, nine Es, and no As. Plaintiff received 

most of the Bs under Section I, Curriculum, Instruction and Assessment, and 

Section II, Student Learning and Development, and received the Es under 

Section III, Responsive Learning Environment, and Section IV, School and 

Community. 

Bauknight's comments were positive overall, and largely consistent with 

Carlo's ten-week observation feedback. She commended plaintiff for 
18 A-4003-15T2

establishing a learning community that demonstrated "respect and rapport 

between teacher and student and student-to-student" and for his consistent and 

open communication with students' families. She recommended that plaintiff

continue working closely with his mentor and supervisors on lesson planning. 

She further recommended that plaintiff create a classroom environment for his 

students that reflected academic rigor, a recommendation that Carlo had not 

made at the ten-week mark. 

Plaintiff's thirty-week observation, conducted unannounced by Carlo, 

occurred on March 27, 2009, eight days after the J.O. incident. This time, 

plaintiff received his lowest ratings yet, with twenty-four Bs, two Es, and no As. 

Plaintiff received one E under Section I, Curriculum, Instruction and 

Assessment, and one E under Section IV, School and Community. 

Despite the low scores, Carlo commended plaintiff for improvement with 

formatting his lesson plans and increasing communication with parents and 

guardians. Carlo's recommendations primarily concerned plaintiff's lesson 

presentation to students and his instructional strategies, a concern that Carlo had 

also highlighted during plaintiff's ten-week observation. Carlo emphasized that 

lessons must be rigorous, grade-appropriate, and include a variety of activities 

to meet the needs of students. Carlo remarked that student engagement was low
19 A-4003-15T2

during the thirty-week observation, but could be improved by careful lesson

planning and implementation. Notably, Bauknight's twenty-week observation 

comments did not criticize the level of student engagement she observed in 

February 2009, just one month earlier. 

Three days later, on March 30, 2009, Carlo recommended the non-renewal 

of plaintiff's contract for the 2009-2010 school year. Among other things, Carlo 

claimed the observations of plaintiff established the following deficiencies: (1) 

plaintiff's lessons were not aligned to curriculum standards; (2) he did not 

differentiate activities for different grade levels; (3) his interactions with 

students were inconsistent; (4) his classroom lacked the required instructional 

artifacts (visual aids) and overall appropriate rigor; and (5) his very basic 

understanding of strategies to create an appropriate environment had resulted in 

incidents of unprofessional behavior. While points one through four had been 

raised in some fashion following plaintiff's observations, point five had not. On 

the contrary, Bauknight had praised plaintiff's classroom environment and his 

positive interactions with students following his twenty-week observation only 

a month earlier and before the J.O. incident. 

Plaintiff's summative evaluation, conducted by Carlo, took place on 

March 31, 2009. Plaintiff received an overall insufficient rating, with 
20 A-4003-15T2

insufficient proficiency under all four sections. Carlo remarked that plaintiff's 

planning and understanding of the curriculum was at the beginning level of 

development; his ability to differentiate the instruction and activities to meet the 

needs of his students was not evident in his lessons; he remained at a basic level 

of understanding of the principles and strategies of effective classroom 

management; and he had not demonstrated the ability or understanding of 

consistent communication with students' families to prevent and/or stop 

academic problems or behavioral issues. Carlo's first three points echoed prior 

concerns. But, as to fourth point, Bauknight had commended plaintiff for his 

consistent and open communication with students' families following the 

twenty-week observation just a month earlier, and even Carlo had credited 

plaintiff for increasing communication with parents and guardians following the 

thirty-week observation, which occurred just four days before plaintiff's 

summative evaluation. 

Plaintiff continued teaching through April 2009 and part of May 2009. He 

reported that J.O. continued to treat him with a total lack of respect. On May 

11, 2009, defendant informed plaintiff that his contract would not be renewed 

for the 2009-2010 school year. Plaintiff promptly appealed to the Newark Board 

of Education, but the appeal was unsuccessful. 
21 A-4003-15T2

On May 20, 2009, plaintiff called defendant's main office and asked that 

J.O. be removed from his classroom because his attitude was becoming even 

more intimidating and disruptive. Office staff advised plaintiff that Carlo 

refused his request stating, "if [plaintiff] does not know what to do, tell him to 

go home." On May 22, 2009, plaintiff was suspended with pay. 

On May 26, 2009, plaintiff went to the NPD to get a copy of the police 

report about the J.O. incident. When plaintiff learned there was no report, he

filed a police report detailing the incident and the threat J.O. made to him. 

Plaintiff reported that he feared for his safety and his life after the incident and

took J.O.'s threats very seriously. 

II.

Defendant contends that the court should have dismissed the complaint 

summarily because plaintiff did not establish a prima facie claim under CEPA. 

We disagree.

Our review of a ruling on summary judgment is de novo, applying the 

same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 

(2017). Thus, we consider, as the trial court did, "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 
22 A-4003-15T2

alleged disputed issue in favor of the non-moving party." Davis v. Brickman 

Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill. v. Guardian Life 

Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Summary judgment must be granted 

"if 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." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. 

Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). 

"To defeat a motion for summary judgment, the opponent must 'come 

forward with evidence that creates a genuine issue of material fact.'" Cortez v. 

Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue 

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). 

"[C]onclusory and self-serving assertions by one of the parties are insufficient 

to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41 (2005). 

"If there is no genuine issue of material fact, we must then 'decide whether 

the trial court correctly interpreted the law.'" DepoLink Court Reporting & 

Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) 

(quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 

2007)). We review issues of law de novo and accord no deference to the trial 
23 A-4003-15T2

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). 

Applying the above standards, we discern no reason to reverse.

"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)). As a remedial statute, CEPA "promotes a 

strong public policy of the State" and "should be construed liberally to effectuate 

its important social goal." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 

555 (2013) (quoting Abbamont, 138 N.J. at 431). When enacted, CEPA was 

described "as the most far reaching 'whistleblower statute' in the nation." 

Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1998). 

CEPA provides as follows, in pertinent part:

An employer shall not take any retaliatory action 

against an employee because the employee does any of 

the following:

. . . . 

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 . . .;
24 A-4003-15T2

. . . . 

(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.]

CEPA defines "retaliatory action" as "the discharge, suspension or 

demotion of an employee, or other adverse employment action taken against an 

employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). In 

order to establish a prima facie case of retaliation under N.J.S.A. 34:19-3(c), a 

plaintiff must demonstrate:

(1) a reasonable belief that the employer's conduct was 

violating either a law, rule, regulation or public policy; 

(2) he or she performed a "whistle blowing" activity as 

described in N.J.S.A. 34:19-3(a) or (c); (3) an adverse 

employment action was taken against him or her;[5]and 

(4) a causal connection existed between his whistleblowing activity and the adverse employment action.

[Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. 

Super. 28, 38 (App. Div. 2005).]

"The evidentiary burden at the prima facie stage is 'rather modest[.]'" Zive 

v. Stanley Roberts, Inc., 182 N.J. 436, 447-48 (2005) (quoting Marzano v. 

Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)). Moreover, "[t]hese 

 

5

 Defendant does not dispute that plaintiff suffered an adverse employment 

action.
25 A-4003-15T2

requirements must be liberally construed to effectuate CEPA's important social 

goals." Maimone v. City of Atl. City, 188 N.J. 221, 230 (2006). 

If the plaintiff establishes a prima facie case of retaliation, "then the 

defendant [] must come forward and advance a legitimate, nondiscriminatory 

reason for the adverse conduct against the employee." Klein, 377 N.J. Super. at 

38. Assuming the defendant makes that proffer, the "plaintiff must then raise a 

genuine issue of material fact that the employer's proffered explanation is 

pretextual" and that the true motive was retaliation. Id. at 39; see Kolb v. Burns, 

320 N.J. Super. 467, 477-78 (App. Div. 1999) (applying "pretext" three-step 

analysis, as first described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802 (1973), to a CEPA case). 

Defendant argues that plaintiff did not identify a statute, regulation or 

public policy defendant violated even if the alleged facts were true. Citing 

numerous special education regulations, defendant also argues it did not violate 

any law or public policy, as it was not required to suspend or discipline J.O. 

because he was a special education student, and its disciplinary decisions cannot 

be overturned unless arbitrary, capricious, or unreasonable. However, defendant 

misstates the relevant legal standard under CEPA, and this argument bears no 

relevance to the proper legal inquiry. More importantly, the discipline policy 
26 A-4003-15T2

applies to special education students unless the student's IEP includes an 

exemption. J.O.'s IEP is not in the record. Thus, there was no evidence he was 

exempt from the discipline policy. 

Defendant also argues that the violation of an employer's internal policies 

cannot form the basis of a CEPA claim; plaintiff cannot establish a CEPA claim 

by reporting the unlawful activity of a third party; plaintiff did not show a causal 

connection between his whistle-blowing activity and the non-renewal of his 

contract; and plaintiff did not show that the non-renewal of his contract was a 

pretext for retaliation. 

Whether Plaintiff Demonstrated a Reasonable Belief That Defendant's 

Conduct Was Violating Either a Law, Rule, Regulation or Public Policy

"The goal of CEPA . . . is 'not to make lawyers out of conscientious 

employees but rather to prevent retaliation against those employees who object 

to employer conduct that they reasonably believe to be unlawful or indisputably 

dangerous to the public health, safety or welfare.'" Dzwonar, 177 N.J. at 464

(emphasis added) (quoting Mehlman, 153 N.J. at 193-94). Notably, "CEPA does 

not require any magic words in communicating an employee's reasonable belief 

of illegal activity." Beasley v. Passaic Cty., 377 N.J. Super. 585, 605 (App. Div. 

2005).
27 A-4003-15T2

As we have held:

In order for a plaintiff to . . . withstand summary 

judgment under N.J.S.A. 34:19-3(c), he or she must 

"furnish the trial court with enough by way of proof and 

legal basis to enable the court to determine as a matter 

of law" that the plaintiff has identified "the asserted 

violation with adequate particularity" for a jury's 

consideration. 

[Klein, 377 N.J. Super. at 40 (quoting McLelland v. 

Moore, 343 N.J. Super. 589, 601 (App. Div. 2001)).]

To withstand summary judgment under N.J.S.A. 34:19-3(c)(1),"a plaintiff must 

set forth facts that would support an objectively reasonable belief that a violation 

has occurred." Dzwonar, 177 N.J. at 464. A plaintiff need not prove that the 

defendant actually violated the law, as defendant incorrectly contends here. Id.

at 462. 

To withstand summary judgment under N.J.S.A. 34:19-3(c)(3), a plaintiff 

must set forth facts sufficient to demonstrate he "reasonably believed the 

employer's conduct was 'incompatible' with a clear mandate of public policy 

expressed in a law, rule or regulation" that "concern[s] the public health, safety 

or welfare or protection of the environment." Maimone, 188 N.J. at 231-32

(alteration in original) (quoting N.J.S.A. 34:19-3(c)(3)). Significantly, a 

plaintiff need not establish that the employer actually "violated" the public 

policy at issue, as defendant also suggests. Id. at 231. 
28 A-4003-15T2

Next, "the trial court must make a threshold determination that there is a 

substantial nexus between the complained-of conduct and a law or public policy 

identified by the court or the plaintiff." Dzwonar, 177 N.J. at 464. "[A] pivotal 

component of a CEPA claim is the plaintiff's identification of authority in one 

or more of the categories enumerated in the statute that bears a substantial nexus 

to his or her claim." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 32 (2014). If the 

trial court finds such a substantial nexus, "the jury then must determine whether 

the plaintiff actually held such a belief and, if so, whether that belief was 

objectively reasonable." Dzwonar, 177 N.J. at 464. 

Plaintiff relied on the discipline policy and USM to establish a prima facie 

case of retaliation under N.J.S.A. 34:19-3(c)(1) and (c)(3). "[A] plaintiff who 

pursues a CEPA claim under [(c)(3)] may rely upon the same laws, rules and 

regulations that may be the subject of a claim under (c)(1)." Maimone, 188 N.J. 

at 231. Plaintiff also relied on the New Jersey Public Employees' Occupational 

Safety and Health Act (PEOSHA), N.J.S.A. 34:6A-25 to -50, to establish a prima 

facie case of retaliation under his (c)(3).

Relying on Dzwonar, Hitesman, and Klein, defendant argues that the 

violation of an employer's internal policies cannot form the basis for a CEPA 

claim. However, those cases are distinguishable.
29 A-4003-15T2

In Dzwonar, the plaintiff, a paid arbitration officer for a hotel and 

restaurant employees' union, alleged her employer wrongfully discharged her 

after she repeatedly voiced concerns regarding the executive board's failure to 

read its minutes at general membership meetings. 177 N.J. at 456. The plaintiff 

believed that the board's behavior violated federal labor law and the union's 

internal bylaws. Ibid. The Court rejected the plaintiff's CEPA claim for two 

reasons. First, it held that the plaintiff's belief was not objectively reasonable

because there was not a substantial nexus between the complained-of conduct 

and the federal statute. Id. at 465-68. Second, it held that the union bylaws 

were merely a contract between the union and its members, not a law, rule or 

regulation as is required to support a (c)(1) CEPA claim. Id. at 469.

In Hitesman, the plaintiff, a registered nurse, claimed his employer 

unlawfully terminated him after he complained about the rate of infectious 

diseases among patients. 218 N.J. at 14. The plaintiff's CEPA claim, brought 

pursuant to CEPA's improper quality of patient care provision codified at 

N.J.S.A. 34:19-3(a)(1) and (c)(1), was based upon standards set forth in a 

professional code of ethics, an employee handbook, and the employer's 

statement of patient rights. Id. at 14-15. The Court held that claims brought 

under the "improper quality of patient care" provision must be supported by 
30 A-4003-15T2

authority "that governs the employer and differentiates between acceptable and 

unacceptable conduct in the employer's delivery of patient care." Id. at 15. The 

Court rejected the plaintiff's CEPA claim because the code of ethics "provided 

no standard for his employer's control of infectious disease" and the employee 

handbook and statement of resident rights "neither defined acceptable patient 

care nor stated a clear mandate of public policy[.]" Id. at 15-16. 

Klein involved another CEPA claim brought under the improper quality 

of patient care provision. 377 N.J. Super. at 38. The plaintiff, a doctor, alleged 

his employer-hospital retaliated against him "after he refused to be assigned to 

the Radiology Department based upon his 'reasonable belief that such anesthesia 

assignments were a threat to patients' safety.'" Id. at 33. This court rejected the 

plaintiff's claim, finding he had not sufficiently identified any illegal or

unethical activity, or public policy violation and that he merely disagreed with 

the internal procedures and priorities of the hospital. Id. at 44-45. Though the 

plaintiff cited several state regulations pertaining to anesthesia, the court did not 

find a substantial nexus between those regulations and the complained-of 

conduct. Id. at 43-44. 

Defendant's reliance on these cases is unavailing. This case does not 

concern a union's internal bylaws, as discussed in Dzwonar, or CEPA's 
31 A-4003-15T2

"improper quality of patient care" provision, as discussed in Hitesman and 

Klein. More important, unlike the sources in those cases, the discipline policy 

and USM specifically incorporate, and were promulgated pursuant to, state 

statutes and regulations.

Generally, N.J.S.A. 18A:11-1(c) requires district boards of education to 

"[m]ake . . . rules . . . for its own government . . . and management of the public 

schools and public school property of the district" that are consistent with state 

law and regulations. See G.D.M. v. Bd. of Educ. of Ramapo Indian Hills Reg'l 

High Sch. Dist., 427 N.J. Super. 246, 258 (App. Div. 2012) (discussing local 

board's authority to regulate student conduct in accordance with state 

regulations). 

Regarding discipline in particular, N.J.A.C. 6A:16-7.1(a) requires district 

boards of education to develop and implement "a code of student conduct that 

establishes standards, policies, and procedures for positive student development 

and student behavioral expectations on school grounds." The policy must 

include "[a] description of behaviors that result in suspension or expulsion, 

pursuant to N.J.S.A. 18A:37-2" and "[a] description of school responses to 

violations of behavioral expectations . . . that, at a minimum, are graded 

according to the severity of the offenses[.]" N.J.A.C. 6A:16-7.1(c)(2); N.J.A.C. 
32 A-4003-15T2

6A:16-7.1(c)(5). The discipline policy must also contain "a continuum of 

actions designed to remediate [violations] and, where necessary or required by 

law, to impose sanctions[.]" N.J.A.C. 6A:16-7.1(c)(5)(i). 

The discipline policy here illustrates it was adopted pursuant to the statute 

and regulations cited above. The introduction refers to the discipline policy as 

a "Code of Conduct" and "provides a clear delineation of infractions categorized 

by levels of severity." Further, the discipline policy repeatedly cites the 

governing statutes and regulations, including N.J.S.A. 18A:11-1 and N.J.A.C. 

6A:16-7.1, among many others. Thus, by its plain language, the discipline 

policy constitutes "a rule or regulation promulgated pursuant to law" under 

CEPA. N.J.S.A. 34:19-3(c)(1). 

As for the USM, N.J.A.C. 6A:16-6.1(a) requires district boards of 

education to "adopt and implement policies and procedures to ensure 

cooperation between school staff and law enforcement authorities" in matters 

concerning "[t]he planning and conduct of law enforcement activities and 

operations on school grounds, including arrest procedures. . . ." N.J.A.C. 6A:16-

6.2(b)(13) specifically requires district boards of education to develop and 

implement "[a] memorandum of agreement with appropriate law enforcement 

authorities." 
33 A-4003-15T2

The plain language of the USM illustrates it was adopted to comply with 

these regulations. Indeed, the first page of the USM states its adoption is 

"required" pursuant to N.J.A.C. 6A:16-6.2(b)(13) through (15). In addition, the 

USM cites to and incorporates pertinent state statutes and regulations on nearly 

every page. Therefore, the USM also constitutes "a rule or regulation 

promulgated pursuant to law" under CEPA. N.J.S.A. 34:19-3(c)(1).

Abbamont v. Piscataway Township Board of Education, 269 N.J. Super. 

11, 24 (App. Div. 1993), aff'd, 138 N.J. 405, 424 (1994), also supports the 

conclusion that the discipline policy and USM constitute "a rule or regulation

promulgated pursuant to law" under CEPA. There, the plaintiff, a non-tenured 

industrial arts teacher, alleged "he was not rehired in retaliation for his 

complaints about the inadequate ventilation in his shop[.]" Id. at 15. The 

plaintiff based his claim on the New Jersey Industrial Arts Education Safety 

Guide, which referred to and reproduced State safety regulations from the New 

Jersey Administrative Code. Id. at 16. The trial court rejected the plaintiff's 

CEPA claim, concluding he failed to cite any specific law, rule or regulation 

that defendant had violated. Id. at 23. However, both our Supreme Court and 

this court disagreed. Id. at 25; Abbamont, 138 N.J. at 425.
34 A-4003-15T2

We concluded that the Safety Guide, which reproduced the provisions of 

relevant State regulations regarding outdoor air supply and exhaust 

requirements, was sufficiently specific and binding and constituted a regulation 

promulgated pursuant to law under N.J.S.A. 34:19-3(c)(1). Abbamont, 269 N.J. 

Super. at 23-24. The same is true here. See also Hernandez v. Montville Twp. 

Bd. of Educ., 354 N.J. Super. 467, 474 (App. Div. 2002) (accepting CEPA 

claimant's reliance on OSHA laws and a staff safety handbook as sufficient 

authority under N.J.S.A. 34:19-3(c)(1) to sustain his retaliation claim against his 

employer). 

Contrary to defendant's argument, plaintiff clearly identified a rule or 

regulation promulgated pursuant to law (the discipline policy and USM), and set 

forth facts that would support his objectively reasonable belief that a violation 

had occurred. See N.J.S.A. 34:19-3(c)(1); Dzwonar, 177 N.J. at 464.

The discipline policy and USM also support plaintiff's (c)(3) claim 

because they contain clear mandates of public policy concerning public school 

safety. See Maimone, 188 N.J. at 231-32. "For purposes of CEPA, 'public 

policy has been defined as that principle of law which holds that no person can 

lawfully do that which has a tendency to be injurious to the public or against the 

public good.'" Hitesman, 218 N.J. at 28 (quoting Mehlman, 153 N.J. at 187). 
35 A-4003-15T2

Courts "look generally to the federal and state constitutions, statutes, 

administrative rules and decisions . . . to inform [their] determination [of] 

whether specific corrupt, illegal, fraudulent or harmful activity violates a clear 

mandate of public policy[.]" Mehlman, 153 N.J. at 188. That said, "a 'clear 

mandate' of public policy need not be enacted in a constitution, statute or rule, 

but must nonetheless provide a definite standard by which the employer's 

conduct may be gauged[.]" Hitesman, 218 N.J. at 33. "A vague, controversial, 

unsettled, and otherwise problematic public policy does not constitute a clear 

mandate." MacDougall v. Weichert, 144 N.J. 380, 392 (1996). 

Both the Legislature and our courts have long recognized public school 

safety and security as important public policy concerns. See, e.g., N.J.S.A. 

18A:17-42 ("The legislature finds that the safety and welfare of the public 

school students of this state while attending sessions of the public schools is a 

matter of prime concern to the citizens of this state"); State v. Best, 201 N.J. 

100, 113 (2010) ("[T]he need for school officials to maintain safety, order, and 

discipline is necessary whether school officials are addressing concerns inside 

the school building or outside on the school parking lot."); Frugis v. Bracigliano, 

177 N.J. 250, 268 (2003) ("No greater obligation is placed on school officials 

than to protect the children in their charge from foreseeable dangers, whether 
36 A-4003-15T2

those dangers arise from the careless acts or intentional transgressions of 

others."); Abbott v. Burke, 153 N.J. 480, 514 (1998) ("Security is a critically 

important factor in the provision of a thorough and efficient education."); Kibler 

v. Roxbury Bd. of Educ., 392 N.J. Super. 45, 56 (App. Div. 2007) ("We surely 

are not indifferent to the safety of the dedicated professionals who work, day in 

and day out, to educate our children."); Abbamont, 269 N.J. Super. at 24-25 

("What is more important to a school environment than safety and a healthy 

environment?").

The discipline policy and USM are replete with clear mandates of public 

policy concerning school safety and security "that set[] a governing standard for 

the defendant employer's conduct." Hitesman, 218 N.J. at 33. For instance, the 

discipline policy states defendant is "committed to a discipline policy that 

creates a safe and orderly school environment" and defendant "expect[s] [its] 

schools and classroom environments to be emotionally safe[.]" The discipline 

policy also states "it is necessary that the school environment be free of 

disruptions which interfere with teaching and learning activities." To that end, 

the discipline policy outlines the four levels of disciplinary infractions along 

with specific procedures for handling those infractions. With respect to Level 

IV infractions, the policy requires administrators to verify the offense occurred, 
37 A-4003-15T2

confer with the parties involved, immediately remove the disruptive student 

from school, and contact law enforcement if the infraction constitutes a criminal 

offense, as it did here. 

In addition, the USM acknowledges that offenses directing "actual or 

threatened infliction of bodily injury" toward students or school employees "not 

only undermine[] the educational environment, but can directly endanger the 

safety and well-being of members of the school community." The USM further 

states that students and school employees are entitled to an environment "free 

of the disruptive influence of crime, violence, intimidation and fear." To that 

end, the USM requires school employees to report to the NPD genuine threats 

"to cause death, serious bodily injury, or significant bodily injury to another 

person." 

PEOSHA, contains a more general clear mandate of public policy 

concerning the public health, safety or welfare under N.J.S.A. 34:19-3(c)(3), as 

discussed in Abbamont, 269 N.J. Super. at 24-25. PEOSHA specifically 

includes any school district within its definition of "Employer" and requires 

those employers to provide employees "a place of employment . . . free from 

recognized hazards which may cause serious injury or death to . . . employees." 

Id. at 25 (quoting N.J.S.A. 34:6A-33(a)). 
38 A-4003-15T2

Here, plaintiff clearly identified a clear mandate of public policy (public 

school safety) expressed in a law (PEOSHA), and a rule or regulation 

promulgated pursuant to law (the discipline policy and USM), and set forth facts 

sufficient to demonstrate he reasonably believed defendant's conduct was 

incompatible therewith. N.J.S.A. 34:19-3(c)(3).

Because defendant misstated the legal standard under the first element of 

a CEPA claim, it failed to address the next part of the inquiry ̶whether plaintiff 

demonstrated a substantial nexus between the complained-of conduct and a law 

or public policy identified by him. See Dzwonar, 177 N.J. at 464. For the sake 

of completeness, we address this issue.

Plaintiff demonstrated a substantial nexus between the complained-of 

conduct (returning J.O. to plaintiff's classroom and failing to report J.O.'s threat 

to the police) and the discipline policy, as the policy governs J.O.'s disciplinary

infraction and defendant's response to that infraction. The discipline policy cites 

the definition of simple assault in N.J.S.A. 2C:12-1, which includes "[a]ttempts 

by physical menace to put another in fear of imminent serious bodily injury." 

Plaintiff's description of the J.O. incident, which must be viewed in the light 

most favorable to him, fits that definition. Simple assault is a Level IV 

infraction under the discipline policy. The discipline policy also cites terroristic 
39 A-4003-15T2

threats and use of a cell phone to facilitate the commission of a crime or to inflict 

injury or harm to persons or property as Level IV infractions. Plaintiff's 

description of the J.O. incident also falls within those categories of offenses. 

The discipline policy states that assaults on teachers are considered fourthdegree crimes, not disorderly persons offenses, when the victim teachers are 

uninjured, as is the case here. The making of a terroristic threat constitutes a 

third-degree crime. N.J.S.A. 2C:12-3. In either case, for a Level IV infraction, 

the discipline policy required school officials to remove the student from the 

classroom, contact law enforcement, and assist in prosecuting the offending 

student. Thus, the plain language of the discipline policy bears a substantial 

nexus to the complained-of conduct.

Plaintiff also demonstrated a substantial nexus between the complainedof conduct and the USM. The USM requires school officials to notify the NPD 

of any genuine threats "to cause death, serious bodily injury, or significant 

bodily injury to another person." The USM further states that this requirement 

"shall be liberally construed with a view toward preventing future acts of 

violence."

All told, the discipline policy and USM bear a substantial nexus to the 

complained-of conduct for purposes of plaintiff's (c)(1) and (c)(3) claims, and 
40 A-4003-15T2

provide a standard against which defendant's conduct may be measured. 

Hitesman, 218 N.J. at 32-33. 

We are less convinced there is a substantial nexus between the 

complained-of conduct and PEOSHA. PEOSHA has no specific provisions 

regarding school discipline or the reporting of threats to law enforcement, and 

does not provide "a definite standard by which the employer's conduct may be 

gauged" under the circumstances complained of here. Id. at 33; cf. Abbamont, 

269 N.J. Super. at 24-25 (holding that plaintiff's "adequate ventilation" concern

bore a substantial nexus to PEOSHA's clear mandate of public policy). 

However, this is not fatal to plaintiff's prima facie case. Because the discipline 

policy and USM strongly support plaintiff's (c)(3) claim, his reliance on 

PEOSHA is superfluous. 

 Whether Plaintiff Demonstrated He Performed a "Whistle-Blowing" Activity

In order to establish a prima facie claim under either section (c)(1) or 

(c)(3), plaintiff had to demonstrate he performed a whistle-blowing activity. 

Turner v. Associated Humane Soc'ys, Inc., 396 N.J. Super. 582, 595 (App. Div. 

2007). A whistle-blowing activity consists of "objecting to or refusing to 

participate in an activity that violates the law, N.J.S.A. 34:19-3(c)(1), or 

objecting or refusing to participate in an activity deemed incompatible with a 
41 A-4003-15T2

clear mandate of public policy, N.J.S.A. 34:19-3(c)(3)." Ibid. "[T]he 

complained of activity must have public ramifications, and . . . the dispute 

between employer and employee must be more than a private disagreement." 

Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J. 439, 445 (2004). "Vague 

and conclusory complaints, complaints about trivial or minor matters, or 

generalized workplace unhappiness are not the sort of things that the Legislature 

intended to be protected by CEPA." Battaglia, 214 N.J. at 559. 

Defendant contends that plaintiff had not engaged in whistle-blowing 

activity because reporting the unlawful activity of a third party, J.O., is not 

protected conduct under CEPA. Defendant relies on three unpublished opinions, 

which bear no relevance to the present matter and do not constitute precedent or 

bind us. See Trinity Cemetery Ass'n, Inc. v. Twp. of Wall, 170 N.J. 39, 48 

(2001); R. 1:36-3. In those cases, various courts determined that reporting the 

unlawful conduct of a third party did not constitute whistleblowing under CEPA. 

Here, in contrast, plaintiff never contended the protected conduct involved 

only his reporting of J.O.'s threat. He contended his objection to defendant's 

violation of the discipline policy was the protected conduct at issue under CEPA. 
42 A-4003-15T2

This implicates Bauknight's conduct in returning J.O. to the classroom and not 

reporting the threat to the police, not simply the fact that J.O. threatened 

plaintiff. 

Moreover, the summary judgment record establishes that when Bauknight 

returned J.O. to plaintiff's classroom, plaintiff verbally objected and, ultimately, 

left due to his fear and distress over the situation. With the assistance of other 

school personnel, plaintiff contacted Freeman, the director of security, and the 

police following the incident. Plaintiff's dispute with defendant over 

Bauknight's response to J.O.'s threat constituted more than a private 

disagreement, because it implicated not only plaintiff's safety, but the safety of 

other students and staff in the building. Had J.O.'s "home boys" arrived at the 

school to carry out the threat and assault plaintiff, that disruption could have 

placed many others at risk of harm. To be sure, it would have resulted in an 

environment that was not conducive to student learning. 

Based upon those facts, a reasonable jury could conclude that plaintiff 

objected to Bauknight's conduct and "blew the whistle" on how she handled the

matter by contacting the authorities himself. Therefore, plaintiff met his prima 

facie burden to show he performed a whistle-blowing activity.
43 A-4003-15T2

Whether Plaintiff Demonstrated a Causal Connection Existed Between 

 His Whistle-Blowing Activity and the Adverse Employment Action

In order to sustain a prima facie CEPA claim under either (c)(1) or (c)(3), 

plaintiff must demonstrate a causal connection between his whistle-blowing 

activity and defendant's failure to renew his employment contract. Defendant 

contends that plaintiff cannot meet this burden because his performance as a 

teacher, which led to the non-renewal of his contract, predated the J.O. incident. 

Courts "have not required that there be proof of a direct causal link 

between the complaint by the employee and the retaliatory action of the 

employer." Battaglia, 214 N.J. at 558. Indeed, "jurors are permitted to draw an 

inference from all of the circumstances relating to the decision." Ibid. Here, 

the circumstantial evidence may include, but is not limited to, the "temporal 

proximity" of plaintiff's whistle-blowing activity and the non-renewal of his 

contract. See Maimone, 188 N.J. at 237. It may also include the response of 

plaintiff's superiors, Bauknight and Carlo, to his whistle-blowing activity. 

Battaglia, 214 N.J. at 559 (recognizing that "a supervisor who did not have the 

authority to subject the complaining employee to a retaliatory employment 

action but who prepared a biased evaluation because of the employee's CEPAprotected complaints might have sufficiently tainted the view of the actual

decision maker to support relief").
44 A-4003-15T2

Defendant's contention that plaintiff's teaching performance problems

predated the J.O. incident does not negate plaintiff's ability to demonstrate a 

causal connection between his whistle-blowing activity and the non-renewal of

his contract. Indeed, plaintiff presented facts sufficient to support an inference 

that the J.O. incident led defendant to retaliate against him by not renewing his 

contract. 

First, plaintiff alleged that Carlo, who made the non-renewal decision, had 

a close relationship with J.O., which involved driving J.O. to school daily and 

allowing J.O. to spend time in his office. Plaintiff further said that Carlo was 

very angry at him following the J.O. incident, and the record shows both Carlo 

and Bauknight disciplined plaintiff one day after the incident while refusing to 

acknowledge that J.O. had actually threatened his life. Finally, Carlo's decision 

not to renew plaintiff's contract was made less than two weeks after the J.O. 

incident. See Turner, 396 N.J. Super. at 597 (holding that "the temporal 

proximity of plaintiff's objections and his discharge [less than a month later] 

allow an inference of a causal connection"). 

Having determined that plaintiff satisfied each element of his (c)(1) and 

(c)(3) claims, we conclude he established a prima facie case of retaliation 

sufficient to withstand summary judgment.
45 A-4003-15T2

Whether Plaintiff Raised a Genuine Issue of Material Fact as to Pretext

The next question is whether defendant "advance[d] a legitimate, nondiscriminatory reason" for its decision not to renew plaintiff's contract, and, if 

so, whether plaintiff "raise[d] a genuine issue of material fact that [defendant's] 

proffered explanation is pretextual." Klein, 377 N.J. Super. at 38-39. While 

defendant offered a legitimate reason for not renewing plaintiff's contract, it is 

clear that plaintiff met his burden to identify facts that tended to show 

defendant's explanation was pretextual.

Initially, the record supports defendant's contention that it had a 

legitimate, non-discriminatory reason for failing to renew plaintiff's contract: 

his poor teaching performance. Plaintiff's observation scores declined 

throughout the 2008-2009 school year, and defendant cumulatively rated his 

performance as insufficient in his annual summative evaluation. According to 

Bauknight and Carlo, plaintiff struggled with lesson planning and presentation 

despite having received training and support from his mentors and other 

administrators. Thus, defendant met its initial evidentiary burden under the 

pretext analysis. 

At this point, however, the burden shifts back to plaintiff to establish that 

defendant's explanation is pretextual, i.e., that "retaliatory discrimination was 
46 A-4003-15T2

more likely than not a determinative factor in the decision." Kolb, 320 N.J. 

Super. at 479 (quoting Bowles v. City of Camden, 993 F. Supp. 255, 262 (D.N.J. 

1998)). Significantly, "[p]laintiff need not prove that his whistleblowing 

activity was the only factor in the decision to fire him," just "that it made a 

difference." Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 296 (App. Div. 

2001). To meet this burden, plaintiff "must demonstrate . . . weaknesses, 

implausibilities, inconsistencies, incoherencies, or contradictions in the 

employer's proffered legitimate reasons for its action." Kolb, 320 N.J. Super. at 

478 (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). Plaintiff may 

rely upon direct or circumstantial evidence, "or a combination of the two." 

Donofry, 350 N.J. Super. at 292. 

Defendant contends plaintiff failed to show its reasons for not renewing 

his contract ̶plaintiff's poor teaching performance ̶were a pretext for unlawful 

retaliation. The record shows otherwise. For one thing, the written ratings 

plaintiff received from Carlo and Bauknight following plaintiff's observations 

and summative evaluation contain contradictory statements that raise a genuine 

issue of fact as to defendant's motive for not renewing plaintiff's contract. See

Fleming v. Corr. Healthcare Sols., Inc., 164 N.J. 90, 102 (2000) (concluding that 

in a CEPA case, "a jury could infer that [the defendant's] negative evaluation of 
47 A-4003-15T2

[the plaintiff] was a pretext designed to cover up [the defendant's] retaliation 

against [the plaintiff] for blowing the whistle on its sloppy and illegal 

practices"). 

Following plaintiff's ten-week observation in November 2008, Carlo gave 

plaintiff an A, the highest rating possible, for "[c]reating a positive classroom 

climate that is socially, emotionally and physically safe," and commended him 

for striving to develop positive relationships with all students. After plaintiff's

twenty-week observation, his rating in that category decreased from an A to an 

E, though Bauknight commended him for establishing "a learning community 

that demonstrates respect and rapport between teacher and student and studentto-student." Plaintiff maintained that although that observation occurred in 

February 2009, before the J.O. incident, Bauknight did not provide him with the 

written ratings until after the J.O. incident in late March, after the J.O. incident. 

The jury could reasonably infer that this lapse in time could have given 

Bauknight an opportunity to reconsider the rating she issued. 

Subsequent to plaintiff's thirty-week observation, which took place 

unannounced just days after the J.O. incident, Carlo decreased that same rating 

again, from an E to a B, the lowest possible, but failed to identify any specific 

concerns about safety or the classroom climate that led to the rating reduction. 
48 A-4003-15T2

Notably, defendant's guidebook encouraged, but did not require, Carlo to 

announce the upcoming thirty-week evaluation to plaintiff for his benefit. 

Nonetheless, the jury could reasonably infer that Carlo did not give plaintiff 

prior notice of the observation for retaliatory reasons. 

Finally, in plaintiff's summative evaluation, Carlo concluded that plaintiff 

remained at a basic level of understanding of the principles and strategies of

effective classroom management, without providing further explanation. That 

conclusion arguably contradicts the ten- and twenty-week observation scores 

referenced above and suggests that plaintiff's whistle-blowing activity "was 

more likely than not a determinative factor in the decision" not to renew his 

contract. Kolb, 320 N.J. Super. at 479 (quoting Bowles, 993 F. Supp. at 262). 

Thus, a reasonable jury could infer Bauknight and Carlo decreased 

plaintiff's performance ratings after the J.O. incident in retaliation for the fact 

that plaintiff contacted school security and the police, and Carlo used those 

biased ratings to support the decision not to renew plaintiff's contract. See

Fleming, 164 N.J. at 102. 

Apart from the observations and evaluations, there was other 

circumstantial evidence that raised a genuine issue of material fact about 

defendant's reason for the non-renewal of plaintiff's contract. Plaintiff described 
49 A-4003-15T2

how Carlo had taken a special interest in J.O. and had a relationship with him 

off school grounds. Plaintiff also noted how Carlo and Bauknight, who had been 

supportive of him before the J.O. incident, treated him differently thereafter. 

Plaintiff explained that Carlo got angry with him and disciplined him after the 

J.O. incident for leaving his classroom to find Whitaker; yelling at Pryor; tossing 

J.O.'s book bag into the hallway; calling Freeman and bypassing Bauknight; and 

using inappropriate language in front of his students. As a result, a reasonable 

jury could infer that Carlo was particularly angry at plaintiff for contacting 

Freeman and the police because of his special relationship with J.O., and that 

these factors contributed to his non-renewal decision. Ultimately, the jury here 

did find the evidence supported plaintiff's CEPA claim, and "the jury's verdict 

is entitled to great deference." Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 

(2000). 

In conclusion, we are satisfied that the court properly denied defendant's 

motion for summary judgment.
50 A-4003-15T2

III.

Lastly, defendant contends the court erred in barring testimony from 

plaintiff's mentors, Ramos and Whitaker, and Veru about his performance.6 

Defendant argues that assuming the evidence was privileged under N.J.A.C. 

6A:9-8.6(c), plaintiff waived the privilege by suing defendant and challenging 

his termination. 

Plaintiff was a provisional teacher under the alternate route program. 

N.J.A.C. 6A:9-8.6(c), recodified at N.J.A.C. 6A:9B-8.6(e), provides as follows:

Mentor teachers shall not assess or evaluate the 

performance of provisional teachers. Interactions 

between provisional teachers and experienced mentor 

teachers are formative in nature and considered a matter 

of professional privilege. Mentor teachers shall not be 

compelled to offer testimony on the performance of 

provisional teachers.

The court barred the mentor testimony about plaintiff's teaching 

performance based on the regulation, finding plaintiff did not waive the 

regulatory privilege just because he put his job performance in issue.7 The court 

 

6

 The court permitted Whitaker and Veru to testify about the training and 

support they provided to plaintiff, but not their opinions about his job 

performance.

7

 The court also excluded handwritten notes from plaintiff's mentors, but 

defendant does not challenge that determination on appeal. Indeed, defendant 
51 A-4003-15T2

also found the mentor testimony was not relevant to any ultimate issue in the 

case since Carlo testified at his deposition that he did not consider the mentors' 

assessment of plaintiff's performance when deciding whether to renew plaintiff's 

contract. 

"When a trial court admits or excludes evidence, its determination is 

'entitled to deference absent a showing of an abuse of discretion, i.e., [that] there 

has been a clear error of judgment.'" Griffin v. City of E. Orange, 225 N.J. 400, 

413 (2016) (alteration in original) (quoting State v. Brown, 170 N.J. 138, 147 

(2001)). We will reverse an evidentiary ruling only where "there has been a 

clear error of judgment" which resulted in "a manifest denial of justice." State 

v. J.A.C., 210 N.J. 281, 295 (2012) (quoting Brown, 170 N.J. at 147). 

Additionally, "a judgment will be affirmed on appeal if it is correct, even though 

'it was predicated upon an incorrect basis.'" Serrano v. Serrano, 367 N.J. Super. 

450, 461 (App. Div. 2004) (quoting Isko v. Planning Bd. of Livingston, 51 N.J. 

162, 175 (1968)), rev'd on other grounds, 183 N.J. 508 (2005).

Courts interpret regulations in the same manner as statutes. U.S. Bank, 

N.A. v. Hough, 210 N.J. 187, 199 (2012). "Whether construing a statute or a 

 

conceded during argument that Carlo had neither received nor considered those 

notes when deciding not to renew plaintiff's contract.
52 A-4003-15T2

regulation, it is not our function to 'rewrite a plainly-written enactment,' or to 

presume that the drafter intended a meaning other than the one 'expressed by 

way of the plain language.'" Ibid. (quoting DiProspero v. Penn, 183 N.J. 477, 

492 (2005)). Courts "must construe the regulation as written." Ibid. 

"[A]ll relevant evidence is admissible unless excluded by another 

evidential rule or statute." State v. Castagna, 400 N.J. Super. 164, 174 (App. 

Div. 2008); see also N.J.R.E. 401 ("'Relevant evidence' means evidence having 

a tendency in reason to prove or disprove any fact of consequence to the 

determination of the action"). "As a general rule, we construe testimonial 

privileges narrowly because they prevent the trier of fact from hearing relevant 

evidence and thereby 'undermine the search for truth in the administration of 

justice.'" State v. J.G., 201 N.J. 369, 383 (2010) (quoting State v. Williams, 184 

N.J. 432, 444 (2005)); see State v. Mauti, 208 N.J. 519, 531 (2012) ("[P]rivileges 

stand in what we have declared to be a 'disfavored status' because they have an 

effect on the truth-seeking function." (quoting Payton v. N.J. Prk. Auth., 148 

N.J. 524, 539 (1997))). 

Defendant does not address the relevance issue. However, the regulatory 

language is clear: a mentor is not tasked with "assess[ing] or evaluat[ing]" a 

provisional teacher's performance. N.J.A.C. 6A:9B-8.6(e). Setting the privilege 
53 A-4003-15T2

issue aside for the moment, this regulatory language supports the court's 

conclusion that the excluded testimony was not relevant. Moreover, Carlo's 

deposition testimony confirmed that while he considered the fact that plaintiff 

had received support from mentors, he did not consider their opinion of 

plaintiff's teaching performance when deciding not to renew plaintiff's contract. 

Because Whitaker was not responsible for assessing or evaluating plaintiff's

performance, and Carlo acknowledged he did not consider plaintiff's mentors' 

opinions regarding his teaching performance, the excluded testimony bore no 

relevance to any of the ultimate issues in the case.

For the sake of completeness, we address whether the court's apparent 

application of the "mentor privilege" discussed in the regulation was proper. 

See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) ("[A]ppeals are 

taken from orders and judgments and not from . . . reasons given for the ultimate 

conclusion"). The court's reliance on the privilege is arguably problematic, but 

not for the reasons defendant contends.

Defendant asserts on appeal, as it did before the trial court, that plaintiff 

waived the regulatory privilege by filing the CEPA lawsuit and placing the 

quality of his job performance squarely at issue. In support of this contention, 

defendant cites Olds v. Donnelly, 150 N.J. 424, 441 (1997) (explaining that 
54 A-4003-15T2

"[w]hen clients sue their attorneys, attorney-client communications may become 

discoverable" through the attorney's assertion of a defense) and Carchidi v. 

Iavicoli, 412 N.J. Super. 374, 381 (App. Div. 2010) (explaining that "a patient 

who brings an action in which his or her condition is an element or factor, waives 

the [physician-patient] privilege"). These cases do not concern the mentor 

privilege discussed in the regulation, and defendant's reliance upon these cases 

is inapposite. 

The more salient question, which defendant has not raised, is whether the 

mentor privilege described in N.J.A.C. 6A:9B-8.6(e) is applicable at all in the 

context of Superior Court proceedings. N.J.S.A. 18A:4-15 authorizes the State 

Board of Education to "make and enforce . . . rules for its own government and 

for implementing and carrying out the school laws of this state under which it 

has jurisdiction." (Emphasis added). The regulations in chapter nine, before 

recodification, governed the preparation, licensure, and professional 

development of educators required to hold certificates, along with related 

proceedings before the State Board of Examiners (SBE). N.J.A.C. 6A:9-1.1; 

N.J.A.C. 6A:9-1.2. 

The SBE is responsible for the issuance of teaching certificates, along 

with the revocation of those certificates when circumstances warrant such 
55 A-4003-15T2

action. N.J.S.A. 18A:6-38; N.J.A.C. 6A:9B-3.2. Revocation proceedings take 

place either before the SBE or at the Office of Administrative Law (OAL). 

N.J.A.C. 6A:9B-4.6. The enabling statute, when read together with the scope 

and purpose of the chapter nine regulations, supports the conclusion that the 

mentor privilege is only applicable in matters before the SBE or the OAL. 

Defendant cites no authority in which the mentor privilege was invoked or 

applied. See Mauti, 208 N.J. at 531-32 (explaining that privileges are disfavored 

and should be construed narrowly). In any event, we conclude the court properly 

barred the mentor testimony on relevance grounds. 

Affirmed.