In March, the Appellate Division of the New Jersey Superior Court dismissed the Newark school district’s appeal of a jury verdict that awarded a non-tenured teacher damages in a “Conscientious Employee Protection Act” (CEPA), more commonly known as a whistleblower matter, leaving the jury’s award of back pay, front pay, attorney’s fees, and costs in place.

In Cotto v. Newark Public Schools, a first-year Spanish teacher was non-renewed due to an asserted lack of effectiveness as a classroom teacher. The teacher, Jose Cotto, on the other hand, argued that he was subjected to impermissible retaliation because he reported the administration’s failure to address student insubordination as required in board policy.

During the initial jury trial, Cotto testified that J.O., an eighth-grade student with a suspected gang affiliation, had a special relationship with the school principal because the principal drove J.O. to school and let J.O. “hang out” in his office. More importantly, Cotto also testified that J.O. threatened to have Cotto assaulted by fellow gang members.

Fearing for his safety, Cotto asked the student’s aide to escort J.O. to the principal’s office. However, the vice principal returned the student to Cotto’s class because the principal was out of the building that day. Subsequent to the office visit, J.O. was allowed to remain in school, in violation of school policy. Later that day, Cotto called the Newark police and reported the threat. However, the following day, the building principal issued a written reprimand against Cotto for unbecoming conduct because, among other things, he placed children’s lives in danger. Cotto was thereafter non-renewed.

In order to establish a CEPA retaliation claim, an individual must show: 1) that an employer’s conduct violated a law, rule, or public policy; 2) the employee performed a whistleblowing activity; 3) an adverse employment action was imposed by the employer against the reporting employee; and 4) a causal connection between the whistleblowing activity and the adverse employment action.

Once the employee satisfies that burden, the employer has an opportunity to demonstrate a legitimate non-discriminatory basis for the adverse employment action. If made, the employee is then provided an opportunity to prove that the true motive underlying the adverse employment action was retaliation.

The Appellate Division dismissed the school district’s appeal because it determined that a reasonable jury could find that Cotto, by reporting the alleged threat to the local police, was reporting the district’s failure to comply with the New Jersey Administrative Code, which requires the immediate removal of students who commit a criminal offense.

In this case, the criminal offense was alleged to have been terroristic threats and the threatened infliction of bodily injury. The court found that it was also reasonable for a jury to find that Cotto’s non-renewal was an adverse employment action caused by Cotto’s report to the police.

For its part, the district defended the non-renewal based on Cotto’s performance evaluations, which showed a substantial deterioration over the course of the school year. However, while the last evaluation gave Cotto the lowest possible ranking and contradicted the earlier evaluations, it failed to distinguish the positive early evaluations.

Moreover, while the poor observation took place before the incident with J.O., Cotto was not provided with the written evaluation until after the incident, allowing the jury to infer that the building principal reconsidered Cotto’s evaluation because of the incident involving J.O. Finally, according to the court, the summative evaluation conclusion that Cotto remained at a basic level of classroom management failed to explain the contradiction between that conclusion and earlier evaluations, leaving open the possibility that a reasonable jury could determine that Cotto’s “whistleblowing” activity was likely a determinative factor in his nonrenewal.

In ruling on the school district’s motion to dismiss, a proceeding in which all reasonable inferences are granted in favor of the non-moving party, the court determined that a reasonable jury could infer that administrators decreased Cotto’s performance ratings after the J.O. incident in retaliation for Cotto’s actions in reporting J.O.’s alleged threats to the police. Notably, the court held that the jury ultimately supported Cotto’s “whistleblower” claim and, as such, the jury’s award was entitled to great deference.

For more information about this matter, board members may speak to their local board attorney or call the NJSBA Legal and Labor Relations Department at (609) 278-5254.