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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6517-05T36517-05T3
JOHN A. MARTUCCI,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION OF FREEHOLD
REGIONAL HIGH SCHOOL DISTRICT,
HAROLD J. WASSER and PATRICIA
EMMERMAN,
Defendants-Respondents.
Argued November 27, 2007 - Decided
Before Judges Coburn, Fuentes and Chambers.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-1315-
03.
Stuart J. Moskovitz argued the cause for appellant.
Howard M. Nirenberg argued the cause for respondent Board of Education of the
Freehold Regional High School District (Nirenberg & Varano, L.L.P., attorneys; Mr.
Nirenberg and Sandra N. Varano, on the brief).
Francis V. Cook argued the cause for respondents Harold J. Wasser and Patricia
Emmerman (Fox Rothschild, L.L.P., attorneys; Mr. Cook, of counsel and on the brief; Luke
P. Wright, on the brief).
PER CURIAM
Plaintiff, John A. Martucci, appeals from the summary judgments entered on July 10, 2006, dismissing the complaint
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in its entirety. We affirm.
Plaintiff, a former tenured Administrative Supervisor in the defendant Freehold High School District ("School
District"), brought this lawsuit asserting claims against defendants for defamation and violations of the
Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -8. Defendant Harold Wasser is the
Superintendent of the School District. Defendant Patricia Emmerman is the Assistant Superintendent of the School
District. At the close of discovery, defendants moved for summary judgment and their motions were granted by
orders dated July 10, 2006. In this appeal, plaintiff addresses the dismissal of the CEPA claims only.
Plaintiff contends that he was harassed and improperly treated by the defendants because he had provided
information to the Attorney General's Office in 2000, in conjunction with that Office's investigation of Wasser for
theft of services in the School District. Plaintiff also contends that the harassment and retaliation increased after he
signed a letter dated March 8, 2000, along with nine other employees, complaining to the Attorney General's Office
that Wasser was engaging in harassment and retaliation. In response to the letter, the Board retained special
counsel to conduct an investigation, but plaintiff declined to provide a written statement as requested by special
counsel. In August 2001, the Attorney General's investigation of Wasser was closed without any charges being
brought.
Specifically, plaintiff complains that in retaliation for his whistleblower activities, defendants assigned him to work in
the Manalapan High School for half of the day, thereby inhibiting his ability to complete his other work; gave him
demeaning and menial duties, to wit, extensive cafeteria duty and on one occasion directing him to count the
number of empty classrooms and examine the condition of the stage lighting panels; required him to support his
sick day requests with doctors' notes; assigned him to a department to observe sixteen of nineteen teachers when
there was already a supervisor for the department; relieved him of his duty to manage the "No Child Left Behind"
grant; provided him with negative reviews; and gave him raises that were less than those he received in the past
and less than others received. He also alleges that Wasser demanded that another employee file sexual harassment
charges against plaintiff, although the employee refused to do so, and that Emmerman fabricated a complaint
against him, namely that he left school early one day. He contends that the defendants made unwarranted
criticisms of his work, and asked him to undertake tasks in circumstances that he was sure to fail. Defendant
voluntarily resigned from his position with the district on June 27, 2003, and accepted a position as a high school
vice- principal with another district. No claim of constructive discharge has been asserted.
Defendants have come forward with non-discriminatory explanations for the steps taken. For example, all of the
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work plaintiff was asked to complete fell within his job title. Administrators have cafeteria duty; indeed, plaintiff has
some cafeteria duty in his current job. While plaintiff acknowledges that he continued to receive raises, he
complains that the size of his raises fell and that others received larger raises. However, the record indicates that
plaintiff was the highest paid of the district's four Administrative Supervisors despite the fact he had less seniority
than others; in the 2002-2003 school year he earned $112,000, which was $19,000 more than one colleague and
$23,000 more than two other colleagues; in 2003, he earned $113,000, which was $17,000 more than his three
peers. Further, the raises plaintiff received were consistent with the salary guide applied to other departments as
well and designed to help assure that people in comparable positions would be paid commensurate with their
experience. The request for a doctor's note occurred on one occasion due to six absences that extended weekends,
and this was consistent with district practice. Plaintiff was relieved of his responsibility for the "No Child Left Behind"
grant because he had failed to file the grant application by the required deadline and as a result, the District lost
$60,000 in funding. Further, a number of the actions plaintiff claims were retaliatory were decisions made by
plaintiff's immediate supervisor, Dr. Suzanne Koegler, with no input from defendants.
Plaintiff raises the following issues on appeal:
POINT I
THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACT PRECLUDE THE GRANTING OF
SUMMARY JUDGMENT AGAINST PLAINTIFF.
POINT II
DEFENDANTS HAVE VIOLATED THE CONSCIENTIOUS EMPLOYEE PROTECTION ACT BY
RETALIATING AGAINST PLAINTIFF FOR WHISTLEBLOWING WITH RESPECT TO MATTERS
HE LEGITIMATELY BELIEVED WERE VIOLATIONS OF LAW BY THE DEFENDANT WASSER.
A. The New Jersey Legislature intended to
protect employees when they reveal perceived illegal activity by making it unlawful to
retaliate with any adverse activity.
B. Plaintiff established a prima facie case below precluding summary judgment.
C. CEPA must be construed liberally to effectuate the purpose intended by the
Legislature.
D. Retaliatory actions taken in response to whistleblowing are actionable regardless of
whether they amount to discharge, suspension or demotion.
E. CEPA permits actions against not just the School District, but the individual
supervisory personnel as well.
F. That defendants have established an alternate theory for their actions is not sufficient
to deny plaintiff's day in court.
POINT III
THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT WITHOUT REQUIRING
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DEFENDANTS TO PROVIDE DISCOVERY MATERIAL THAT THE COURT ITSELF HAD
PREVIOUSLY ORDERED, AND IN DELAYING THE PLAINTIFF'S DISCOVERY WHILE
REFUSING TO GRANT ADDITIONAL TIME NECESSSARY TO DEPOSE DEFENDANTS.
When reviewing a decision on a motion for summary judgment, this court employs the same standard applied by
the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J.
608 (1998). In order for a motion for summary judgment to be granted, the movant must 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." R. 4:46-2(c). When considering the motion, the court must give the opponent to the motion all of the
favorable inferences that may be drawn from the evidence. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). If, under those circumstances, a rational fact finder could hold for the non-movant, the motion must be
denied. Ibid.
After a careful review of the record, we affirm substantially for the reasons set forth by Judge Perri in the
comprehensive and lengthy decision she placed on the record.
In doing so, we reject plaintiff's contention that defendants' motions for summary judgment were premature
because discovery was incomplete. The complaint had been filed on March 25, 2003, and the motions for summary
judgment were filed on March 30, 2006, and April 12, 2006, over three years later. By the time the motions were
filed, the period for discovery in the case had expired, the case was already on the trial list, and no application for an
extension had been made. The School District had complied with plaintiff's last outstanding discovery request,
namely providing more specific answers to interrogatories, a month before filing its motion for summary judgment.
While Wasser and Emmerman did not provide more specific answers as requested by plaintiff, the trial court found
that the contents of the supplemental discovery would not "materially affect the court's decision in this matter."
Plaintiff contends that he needed salary information to show that other administrative personnel were receiving
raises that were substantially higher than his and inconsistent with prior years. However, defendants concede that
the other Administrative Supervisors received higher raises than plaintiff as noted above. Further, salary information
for plaintiff and the other Administrative Supervisors is part of the record before this court. Plaintiff also contends
that he needed to depose Wasser and Emmermann. However, nothing in the record indicates that he was
precluded from deposing these individuals before the motions for summary judgment were made.
We note that the trial judge also dismissed claims against the individual defendants on the basis that individuals
who are not employers may not be liable under CEPA. In doing so, she rejected this court's holding in Maw v.
Advanced Clinical Communications, Inc., 359 N.J. Super 420, 439-40 (App. Div. 2003), rev'd on other grounds, 179
N.J. 439 (2004). We need not reach this issue since the record does not support a CEPA claim against any defendant.
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Affirmed.
(continued)
(continued)
8
A-6517-05T3
January 10, 2008
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