SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1111-17T1

L.M.P.,

1

 

Plaintiff- Appellant,

v. 

HIGH POINT REGIONAL HIGH

SCHOOL BOARD OF EDUCATION,

SUPERINTENDENT SCOTT RIPLEY,

and JONATHAN TALLAMY, 

Defendants-Respondents. 

______________________________

Submitted March 27, 2019 – Decided May 6, 2019

Before Judges Koblitz, Currier and Mayer.

On appeal from Superior Court of New Jersey, Law 

Division, Sussex County, Docket No. L-0108-16.

George T. Daggett, attorney for appellant.

Methfessel & Werbel, attorneys for respondents

(Eric L. Harrison, of counsel and on the brief; 

Ashley E. Malandre, on the brief).

 

1

 We use initials to preserve plaintiff's confidentiality.

NOT FOR PUBLICATION WITHOUT THE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-1111-17T1

PER CURIAM 

Plaintiff appeals from the October 17, 2017 order granting defendants' 

motion for summary judgment regarding her complaint brought under The New 

Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA).

Because plaintiff did not establish a prima facie adverse employment cause of

action, we affirm.

Plaintiff filed a complaint on February 23, 2016 alleging a hostile work 

environment, constructive discharge and violation of CEPA. She began working 

as a special education teacher at High Point Regional High School (High Point) 

around 1991. She transferred to the multiple disabilities (MD) program in 2011, 

a lateral move with no change in contract or salary. 

Plaintiff's deposition revealed the following. In 2012, she began 

complaining on behalf of her students about perceived violations of the 

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213, and the 

New Jersey Special Education Code, N.J.A.C. 6A:14-1 to -10, including a lack 

of preparation for life beyond high school or home instruction, and no choice of

school hours. Plaintiff reported to Superintendent Scott Ripley, Principal 

Jonathan Tallamy (defendants), the Director of Special Education and the case 

manager closely associated with the MD program, "several times" that the 
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school was "violating the law." In summer 2013, plaintiff was removed from 

teaching the extended school year (ESY) program, where she was previously 

assigned for the entire summer. She did not file a formal grievance regarding 

the ESY program because it was not contractually guaranteed. Only two 

teachers were assigned to the program for ten days each that summer. 

During the 2013 to 2014 school year, plaintiff again complained about a 

lack of transition services for her students, pointing to a program that formerly 

allowed students to visit Sussex County Association of Retarded Citizens 

(SCARC) to prepare for transitioning out of high school. After successfully 

advocating on behalf of her students, she enrolled three students in a transition 

program. Later, plaintiff received notice that another student seeking transition 

services was not eligible because she used a feeding tube. After plaintiff spoke 

out, the student was enrolled in the SCARC transition program. 

In summer 2014, plaintiff was assigned to only ten days of the ESY 

program. She alleges she was deprived of a $2500 stipend as a result. Other 

teachers were similarly assigned to either ten or fewer days of the ESY program. 

During the 2014 to 2015 school year, as occurred with other teachers, 

plaintiff's sixth period class transitioned into a "supervisory" period, and 

plaintiff's stipend for teaching during this period was eliminated. She did not 
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file a formal grievance regarding the sixth period class because it was not 

contractually guaranteed. 

In January 2015, plaintiff sought a residency waiver to continue teaching 

at the high school, required because she planned to move to Pennsylvania. She 

needed a "critical need letter" from a superintendent, principal or board member. 

When she asked Ripley to write such a letter on her behalf, he said he was 

uncomfortable doing so because it was his understanding that such letters were

to be reserved for "extreme and acute concerns." 

Plaintiff contacted a board member, who then contacted Ripley on her 

behalf. The following day, Ripley called plaintiff to his office for a meeting. 

Plaintiff brought a union representative with her to the meeting. At the meeting, 

Ripley began to yell at her, which caused plaintiff great consternation. Plaintiff 

testified that after Ripley left the room, she was "visibly shaken" and "thought 

[she] was having a panic attack." Plaintiff was told to go home and her doctor 

prescribed Xanax. 

Plaintiff received a letter of apology from the union president, and then 

an email from Ripley stating he would write the critical need letter. In February 

2015, Ripley wrote the letter and plaintiff received a residency waiver.
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Shortly thereafter, one of plaintiff's students died, and Ripley "[gave]

[plaintiff] a hard time about" attending the funeral because she had used up her 

personal days. She was the only one of her colleagues to receive delayed 

approval to attend. 

In March 2015, Ripley announced he would be recommending to the board 

that the MD program "should be eliminated as it was no longer sustainable." 2 

Many members of the public attended an April 2015 board meeting to speak out

against elimination of the program. In May 2015, the district "began exploring 

other options including the outsourcing of the program," which Ripley believed 

"could be a sustainable option." 

Plaintiff was assigned as a special education teacher for the 2015 to 2016 

school year, and given a schedule of classes she had not taught "for a number of 

years." Plaintiff did not file a formal grievance regarding the change. Within a 

few hours of receiving the schedule, she attempted suicide by overdosing on her 

medication3and drinking two glasses of wine. Plaintiff was diagnosed with 

 

2

 Ripley alleged an analysis of the MD program showed it cost about $100,000 

per student and only three students were enrolled. 

3

 Plaintiff testified she was on multiple medications, which cause memory loss. 

She stated she has trouble "processing" and "us[ing] the right words." 
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post-traumatic stress disorder, manic depression disorder, anxiety, fibromyalgia, 

neuropathy, and a stroke. A few days later, on June 16, 2015, plaintiff filed a 

disability retirement application, indicating she could no longer work due to the 

death of her student.4 

After negotiations for outsourcing the MD program fell through, the 

district "pursued an alternative plan, which ultimately included keeping the 

program within the [d]istrict." Ripley certified he was never made aware of 

plaintiff's complaints and that "as a tenured employee, [plaintiff] would have 

continued to be employed with no reduction in salary regardless of the destiny 

of the MD program." 

On November 13, 2015, plaintiff's disability retirement application was 

denied. On February 23, 2016, plaintiff filed a complaint alleging a hostile work 

environment, constructive discharge and violation of CEPA. She alleged she 

 

4

 Plaintiff's application states: "The death of my student changed my life 

forever. I was admitted to an outpatient psychiatric hospital for suicidal 

thoughts and intentions to hurt school administrators who did not care that I just 

lost a daughter. . . . I have recurring nightmares about killing the administrators 

who failed to give me time to grieve; for example, not giving me time off for 

her funeral. Within hours of her death, the administration notified me that next 

year's program was being disbanded. . . . I am on heavy psychotropic 

medication. I cannot concentrate, my memory is a blur, I can't complete simple 

tasks, nor can I be left alone. I pray that with months or even years of mental 

health treatment that I can become useful." 
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suffered a loss of $8000 due to the elimination of her sixth period class, and 

$2500 due to the reduction of her ESY assignment. 

The court initially granted defendants' motion for summary judgment in 

part only, explaining:

The cause of [p]laintiff's retirement is unclear. It could 

mostly be related to the tragedy of losing her student, it 

could be related to the alleged rude way her superiors 

treated her, it c[ould] be related to the threatened loss 

of the MD program, and it could be mostly related to 

something else. [This] is an issue of material fact with 

respect to the cause of [p]laintiff's departure, so 

summary judgment is not appropriate.

The motion court nonetheless granted summary judgment regarding 

plaintiff's claims relating to her sixth period class and reduction of days in the 

ESY program, because they were time-barred by the one-year statute of 

limitations. See N.J.S.A. 34:19-5. The court concluded the doctrine of 

continuing violation did not apply. See Wilson v. Wal-Mart Stores, 158 N.J. 

263, 271-74 (1999) (where a plaintiff establishes a continual pattern of adverse 

action, a trial court may toll the statute of limitations until the adverse action 

ceases); see also Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 21 

(2002) (distinguishing between "a pattern or series of acts, any one of which 

may not be actionable as a discrete act, but when viewed cumulatively constitute 
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a hostile work environment," which will trigger the doctrine, and "discrete acts 

of discriminatory conduct," which will not). The court stated:

Plaintiff translates each claim into a dollar amount and 

aggregates the dollar amounts to contribute to her total 

demand for damages, but each alleged discriminatory 

action would be discrete because [p]laintiff ties an 

identifiable amount of money to each action and each 

action could stand alone without the need to establish a 

pattern. Plaintiff's loss of pay, loss of her sixth-period 

class, and loss of days to work in the [ESY] program 

are each discrete actions and are time-barred from the 

instant litigation.

Upon reconsideration, the motion court ultimately granted summary 

judgment to defendants as to the entire complaint, concluding plaintiff failed to 

establish the third requirement under Dzwonar v. McDevitt, 177 N.J. 451, 462 

(2003), which requires a showing that an adverse employment action was taken:

Plaintiff fails to prove a prima facie case under CEPA 

because she fails to prove the third prong of the test. 

See N.J.S.A. 34:19-3. Although [p]laintiff's 

motivations for retiring are unclear, none of the 

motivations are sufficient to make her departure 

actionable under CEPA. Neither the alleged rude way 

her superiors treated her nor the threatened loss of the 

MD program are formal disciplinary actions having 

[an] effect on either compensation or job rank, or 

actions "virtually equivalent to discharge." See

[Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 

360 (App. Div. 2002) (quoting Zamboni v. Stamler, 847 

F.2d 73, 82 (3d Cir. 1988))]. Even though . . . Ripley 

. . . incorrectly said that [p]laintiff would not be able to 

work in the MD [p]rogram, [p]laintiff still had a job, in 
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a position as a teacher, the same title she previously 

held at the same salary. The threatened loss of the MD 

program is not a completed action. See [Klein v. 

University of Medicine and Dentistry of N.J., 377 N.J. 

Super. 28, 46 (App. Div. 2005)]. There is no dispute 

that no [b]oard resolution was ever passed to either 

outsource or eliminate the program. Additionally, the 

claim that Ripley initially refused to sign a critical

needs letter for [p]laintiff is not a completed act, as 

Ripley eventually signed the letter, and even shows that 

Ripley eventually remedied the situation. See [Beasley 

v. Passaic County, 377 N.J. Super. 585, 607 (App. Div. 

2005)]. Similarly, although Ripley initially did not 

provide leave for [p]laintiff to attend the funeral of a 

student, he eventually remedied the situation by 

allowing her to use leave time. See [ibid.] Therefore, 

there was no completed action which could be deemed 

an adverse employment action.

The motion court also rejected plaintiff's argument that she was 

constructively discharged, reasoning that Ripley advising plaintiff the MD 

program was eliminated does not rise to the level of "knowingly permit[ting] 

conditions of discrimination in employment so intolerable that a reasonable 

person subject to them would resign." See Shepherd, 174 N.J. at 27-28 (quoting 

Muench v. Township of Haddon, 255 N.J. Super. 288, 302 (App. Div. 1992)). 

"The only completed act that is not time barred, is the time Ripley allegedly 

yelled at [p]laintiff, and called her 'unprofessional.' This act by itself is not 

sufficient to show a pattern of retaliatory acts. See [Beasley, 377 N.J. Super. at 

609]." 
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We review a trial court's summary judgment disposition de novo based 

upon an independent review of the motion record, and applying the same 

standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). A court 

should grant summary judgment if the record establishes 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." R. 4:46–2(c). We "review the facts in 

the light most favorable to" the non-moving party. DiProspero v. Penn, 183 N.J. 

477, 482 (2005) (citing R. 4:46-2(c)).

Plaintiff argues she was tricked into retirement when defendants changed 

the terms of her employment by assigning her to teach classes she had not taught 

recently. Plaintiff argues the language of N.J.S.A. 34:19-2(e), "other adverse 

employment action taken against an employee," is inclusive of plaintiff's class 

reassignment. 

Pursuant to CEPA:

An employer shall not take any retaliatory action 

against an employee because the employee does any of 

the following:

a. Discloses, or threatens to disclose to a supervisor or 

to a public body an activity, policy or practice of the 

employer, or another employer, with whom there is a 

business relationship, that the employee reasonably 

believes:
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(1) is in violation of a law, or a rule or regulation 

promulgated pursuant to law . . . or

(2) is fraudulent or criminal . . . ;

b. Provides information to, or testifies before, any 

public body conducting an investigation, hearing or 

inquiry into any violation of law, or a rule or regulation 

promulgated pursuant to law by the employer . . . or

c. Objects to, or refuses to participate in any activity, 

policy or practice which the employee reasonably 

believes:

(1) is in violation of a law, or a rule or regulation 

promulgated pursuant to law . . . ;

(2) is fraudulent or criminal . . . or

(3) is incompatible with a clear mandate of public 

policy concerning the public health, safety or welfare 

or protection of the environment.

[N.J.S.A. 34:19-3.]

To bring a claim under CEPA, a plaintiff must demonstrate:

(1) he or she reasonably believed that his or her 

employer's conduct was violating either a law, rule, or 

regulation promulgated pursuant to law, or a clear 

mandate of public policy; (2) he or she performed a 

"whistle-blowing" activity described in N.J.S.A. 34:19-

3(c); (3) an adverse employment action was taken 

against him or her; and (4) a causal connection exists 

between the whistle-blowing activity and the adverse 

employment action.

[Dzwonar, 177 N.J. at 462.]
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Retaliatory action is defined as "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). Adverse action 

must be "virtually equivalent to discharge." Hancock, 347 N.J. Super. at 360 

(quoting Zamboni, 847 F.2d at 82). Additionally, "'[r]etaliatory action' does not 

encompass action taken to effectuate the 'discharge, suspension or demotion,'" 

but rather "speaks in terms of completed action." Keelan v. Bell Commc'ns

Research, 289 N.J. Super. 531, 539 (App. Div. 1996). Our Supreme Court 

explained:

What constitutes an "adverse employment action" must 

be viewed in light of the broad remedial purpose of 

CEPA, and our charge to liberally construe the statute 

to deter workplace reprisals against an employee 

speaking out against a company's illicit or unethical 

activities. Cast in that light, an "adverse employment 

action" is taken against an employee engaged in 

protected activity when an employer targets him for 

reprisals -- making false accusations of misconduct, 

giving negative performance reviews, issuing an 

unwarranted suspension, and requiring pretextual 

mental-health evaluations -- causing the employee to 

suffer a mental breakdown and rendering him unfit for 

continued employment.

[Donelson v. DuPont Chambers Works, 206 N.J. 243, 

257-58 (2011).]
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The parties agree plaintiff has met the first two requirements of CEPA. 

See Dzwonar, 177 N.J. at 462. Plaintiff did not meet the third requirement, 

adverse employment action, despite her contention that defendants assigned her 

to teach classes she had not taught in a number of years, because such action is 

not "virtually equivalent to discharge." See Hancock, 347 N.J. Super. at 360 

(quoting Zamboni, 847 F.2d at 82). Viewing the facts in a light most favorable 

to plaintiff, although plaintiff was treated for mental conditions after Ripley

yelled at her, defendants did not engage in "making false accusations of 

misconduct, giving negative performance reviews, issuing an unwarranted 

suspension, and requiring pretextual mental-health evaluations." Donelson, 206 

N.J. at 258. To the contrary, Ripley ultimately remedied the situation by writing

the critical need letter, vouching for plaintiff as a "valuable employee," which

allowed her to obtain a residency waiver. Moreover, plaintiff did not file a 

formal grievance regarding her schedule. See Shepherd, 174 N.J. at 29 (granting 

the defendants summary judgment where the plaintiff did not "do all that was 

reasonably necessary to remain employed, an additional consideration in this 

setting"). Plaintiff's argument that she was constructively discharged because 

Ripley led her to believe the MD program was eliminated does not rise to the 

level of "knowingly permit[ting] conditions of discrimination in employment so 
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intolerable that a reasonable person subject to them would resign." See id. at 

27-28 (quoting Muench, 255 N.J. Super. at 302). Plaintiff failed to show that 

adverse employment action was taken against her by defendants. See Dzwonar, 

177 N.J. at 462.

Plaintiff also argues "even if actions complained of were time-barred, that 

does not mean that they are not evidential. N.J.R.E. 404(b) allows evidence of 

other 'wrongs' to prove 'motive opportunity, intent, preparation, plan, 

knowledge, identity or absence of mistake or accident when such matters are 

relevant to a material issue in dispute.'" Plaintiff argues her hostile work 

environment and constructive discharge claims require a court to consider the 

"entire time period," citing Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 

(2003). 

As the motion judge found, the facts here are distinguishable from those 

in Green, where the Court found a "continual, cumulative pattern of tortious 

conduct" sufficient to trigger the doctrine of continuing violation regarding the 

plaintiff's hostile work environment claim. See id. at 446-47. Plaintiff was 

successful in her advocacy on behalf of her students, and was treated similarly 

to other teachers with regard to her employment assignments.
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After a thorough review of the record, we affirm substantially for the 

reasons articulated by the motion judge. 

Affirmed.