Eisenstein v. Bd. of Educ.

1

PHILLIP EISENSTEIN, Plaintiff-Appellant, v. ATLANTIC CITY BOARD OF EDUCATION, JAMES KNOX, JR., PAUL SPAVENTA, and ATIBA ROSE, ^[1] Defendants-Respondents.

No. A-3368-22

Superior Court of New Jersey, Appellate Division

October 22, 2024

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.

Submitted September 24, 2024

On appeal from the Superior Court of New Jersey, Law Division Atlantic County, Docket No. L-1200-17.

Swift Law Firm, LLC, attorneys for appellant (John Swift, on the brief).

Law Offices of Riley and Riley, attorneys for respondents (Tracy L. Riley, on the brief)

Before Judges Gilson and Augostini.

PER CURIAM

In this employment matter, plaintiff Phillip Eisenstein, a non-tenured teacher, appeals from an April 27, 2023 order dismissing his complaint for wrongful termination under the Conscientious Employee Protection Act (CEPA), N.J.S.A 34:19-1 to -14, against defendants Atlantic City Board of Education, James Knox, Jr., Paul Spaventa, and Atiba Rose with prejudice on a directed verdict. We reverse and remand for a new trial.

I.

We summarize the material facts from the trial testimony on April 26 and April 27, 2023, viewing them in the light most favorable to plaintiff, the nonmoving party.

In 2015, plaintiff began working as a physical education teacher at the New York Avenue School in Atlantic City. He taught students in prekindergarten through eighth grade.

Over the course of less than two months at the school, plaintiff submitted over forty student complaint referrals. When an incident with a student occurred, plaintiff was required to complete a referral form to document the incident and to advise the administration. Afterwards, the administration detailed on this form the steps taken to address the issue and returned a copy to the teacher. In addition to completing multiple referral forms, plaintiff, on a few occasions, sent emails to the administration advising of classes he was having difficulty controlling.

On October 14, 2015, plaintiff, while on lunch duty, observed an altercation between two students on the playground. According to plaintiff, one of the students, K.D., was being bullied by other students. A confrontation ensued between K.D. and one of the other students. Plaintiff stepped in between the students to prevent a fight. Afterwards, K.D. stated, "I'm going to go get my uncle's gun and I'm going to come and shoot you tomorrow."

Plaintiff took K.D. into the school and had a brief conversation with him. Plaintiff told K.D. that based upon his statement he had to go to the principal's office "for the safety [of] everybody involved." Plaintiff then walked K.D. to the principal's office and advised the principal of the situation. The principal responded, "I'll handle it." Plaintiff completed the referral form and gave it to the principal. Plaintiff did not see K.D. again that day.

At the beginning of the next school day, October 15, 2015, plaintiff saw K.D. lined up to enter his health classroom. Plaintiff was concerned given the threat K.D. made the prior day. Plaintiff sent an email to the principal "asking what actions were taken with K.D." because he was "shocked" to see him in school the next day given the severity of his threat. Plaintiff explained his concern: "[i]f I hear somebody is threatening to bring a gun, I think, it would take more than the end of the day to - to determine if that was actually the case or not."

Plaintiff received no response to his email; nor did he receive the return copy of the referral form detailing the administration's response to this incident. Plaintiff explained he only learned months later of the disciplinary action taken in an email from the union president. Plaintiff testified that his union president advised him that K.D. had received a two day in-school suspension. The record does not reveal, however, when the suspension took effect.

On cross-examination, plaintiff acknowledged learning from the vice principal of a meeting the administration had with K.D. Plaintiff believed the administration's response to this threat was inadequate.

On October 27, 2015, another incident occurred involving K.D. and another student, J.H., during plaintiff's gym class. As the students were lining up for lunch, plaintiff saw J.H. confronting K.D. According to plaintiff, J.H. was the aggressor and wanted to fight K.D. Plaintiff stepped in between the students to prevent an altercation. Plaintiff spoke separately with J.H. and told him to return to the class. J.H. then immediately confronted K.D. again.

The situation between J.H. and K.D. escalated. J.H. pushed K.D. and began "throwing punches" at K.D. Plaintiff grabbed J.H. by the arm or sleeve; however, J.H. broke away and again began attacking K.D.

Plaintiff explained that at this point, he pushed the gym door open, screamed out into the hallway for help, and screamed for security approximately three times. No one came. Another nearby health teacher, who testified on plaintiff's behalf, heard the commotion and responded. After hearing plaintiff yelling for help, the health teacher left her classroom and ran down the hall trying to find security or someone from the administration. According to the health teacher, no security personnel were in the building.

Plaintiff explained that when no one responded, he made the split decision, "while J.H. was throwing punches at K.D., to apprehend him under his arms." Plaintiff described taking J.H. "under his arms" and bringing him out into the hallway, at which time, plaintiff explained that his arms went "either around his [waist] or around his arms." The other teacher who had come out to call for help described seeing plaintiff take J.H. in a "bear hug."

Plaintiff proceeded to walk J.H. down the hallway, "guiding him" as he walked. At the end of the hallway, a counselor took over, advising plaintiff, "I got him."

At the end of the day, plaintiff reported to the principal's office where he was told that he was suspended with pay. Following a Board of Education meeting on February 22, 2016, plaintiff was terminated for "excessive use of force."

Plaintiff filed a complaint against his employer, the Atlantic County Board of Education, and several employees, contending a violation of CEPA, under N.J.S.A. 34:19-3(c)(1), (3).^[2] A jury was empaneled on April 26, 2023. Plaintiff presented his case-in-chief on April 26 and April 27, 2023. Plaintiff testified on his own behalf and called two additional witnesses: Caroline McCabe, a health teacher at New York Avenue School and Marcia Genova, the union president of the teacher's union. The deposition testimony of plaintiff's use of force expert, Thomas Jordan, Jr., was read to the jury because the expert passed away prior to trial. Following a Rule 104 hearing^[3], the court granted defendant's motion barring the testimony of an additional witness, Sherry Yahn, as not relevant to the issues before the jury. The court admitted into evidence various documentary exhibits and a video of the incident from October 27, 2015.

At the conclusion of plaintiff's case, defendants moved for a directed verdict under Rule 4:37-2(b). After oral argument, the court granted the motion dismissing plaintiff's case with prejudice. On August 3, 2023, the court amplified its findings in a submission filed pursuant to Rule 2:5-1(b).^[4]

Accepting as true all evidence supporting plaintiff's position and giving plaintiff the benefit of every reasonable inference, the court found that plaintiff failed to provide a "law, rule, regulation or public policy . . . that would have a basis for [the jury] to answer the first question that's going to be on the verdict sheet[;]" namely, "did . . . plaintiff have a reasonable belief that his employer's conduct violated a law, rule, regulation or policy."

The court noted that plaintiff's counsel stated, "it's just public policy that all gun threats should be taken seriously and in that short time line, there's no way the school could have . . . followed that policy in such a short amount of time." The court next queried whether plaintiff had a reasonable belief that the conduct violated this public policy. Ultimately, the court found plaintiff's failure to identify a specific policy fatal to his CEPA claim.

Plaintiff filed a motion for reconsideration and annexed a copy of the Atlantic City Board of Education, District Regulations 5600 and 5620: Pupil Discipline/Code of Conduct, and Expulsion Procedures, respectively. The court denied the motion for reconsideration.^[5] This appeal followed.

II.

Plaintiff contends the trial court erred in granting a directed verdict because the court's decision was premised on an incorrect legal basis under N.J.S.A. 34:19-3(c)(3); namely, that plaintiff need not identify the complained-of rule, regulation, or policy, notwithstanding Supreme Court precedent.

We review a motion for a directed verdict de novo by applying the same standard governing trial judges. Smith v Millville Rescue Squad, 225 N.J. 373, 397 (2016). A motion for a directed verdict made pursuant to Rule 4:40-1 or Rule 4:37-2(b) shall be granted "only if, accepting as true all evidence supporting the party opposing the motion and according that party the benefit of all favorable inferences, reasonable minds could not differ." Edwards v. Walsh, 397 N.J.Super. 567, 571 (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)); see R. 4:37-2(b). Dismissal is appropriate when plaintiff has failed to provide evidence of an essential element of his or her claim. See Pitts v. Newark Bd. of Educ., 337 N.J.Super....