In June of 2018, the New Jersey Supreme Court issued a decision in the matter of Kean Federation of Teachers v. Morrell, where the court held that a public employer must issue advance notice to an employee whose rights could be adversely affected during a public meeting. The decision overturned an Appellate Division decision holding that a public entity must issue advance notice to all employees who were to be discussed, regardless whether their employments rights would be adversely affected.

However, in reversing the Appellate Division, the state Supreme Court decision relied upon, but did not identify, the employment rights that could be adversely affected in a public meeting context. While it is generally acknowledged that terminations, demotions, and increment withholdings qualify as adverse, these are not the only employment actions considered as such.

In Donovan v. Pittston Area Sch. Dist., a tenured principal was appointed as the principal in charge of curriculum grades kindergarten through 12. Subsequently, the board transferred her to a different principal position, one with lesser responsibilities, albeit at the same salary. Donovan argued the transfer was a demotion and therefore violated her 14th Amendment right to due process. The Third Circuit’s analysis of the claim acknowledged Donovan’s tenure right to continued employment as a protected property interest; however, the court found no such interest in a particular position. The court held that a public employee is not deprived of a constitutionally-protected interest when the employee is not terminated but is instead transferred or assigned different, even less desirable, job responsibilities. Accordingly, Donovan’s transfer was not an adverse employment action in the due process context.

Unlike general due process claims, employee claims of retaliation are analyzed under a different standard. Accordingly, the Donovan decision should be contrasted against Yuli v. Lakewood Bd. of Educ. where the District Court of New Jersey examined a principal’s transfer following her reports that the Lakewood Board and administrators allegedly diverted state and federal funding to private religious institutions. Yuli claimed that because of her allegations, she was subjected to retaliatory and discriminatory conduct so severe, she was forced to resign. Specifically, Yuli claimed that the board and administration repeatedly refused her requests for a guidance director and additional security; intentionally refused to conduct a performance evaluation; voted to transfer her to an elementary school; and refused to interview her for a vacant principal position.

In rejecting the board’s motion to dismiss, the court noted that federal antidiscrimination legislation may determine whether an employer’s conduct constitutes an adverse employment action in New Jersey. According to the court, acts that cause “loss of status, a clouding of job responsibilities, diminution in authority, disadvantageous transfers or assignments, and toleration of harassment by other employees” are adverse employment actions. Moreover, assigning an employee to “different or less desirable tasks can be sufficient to constitute an adverse employment action” in actions alleging retaliation, according to the court.

By way of example, the Third Circuit Court of Appeals determined in Lapinski v. Bd. of Educ. of Brandywine Sch. Dist., that a former principal was non-renewed in retaliation for asserted whistle-blowing activities. In this case, Lapinski, a non-tenured building principal, resigned after learning that the board sought to non-renew his principal appointment. Prior to his non-renewal, Lapinski complained of a lack of custodians at the high school, the board’s dissolution of an administrative salary schedule, and the allocation of technology funds to the high school. Subsequent to these complaints, Lapinski was subjected to an unscheduled “special evaluation,” which was followed by the non-renewal. Although Lapinski retained tenure rights as a teacher in the district, he resigned shortly before his contract terminated.

The court determined that the board’s non-renewal was an adverse employment action related to his reporting activities. Even though Lapinski had the right to remain at the high school as a teacher, the non-renewal resulted in a demotion in title and salary. The court concluded by noting that public employees cannot be demoted in retaliation for exercising a First Amendment right.

In summary, in the due process context, New Jersey courts have determined that a simple transfer within one’s teaching certification is not an adverse employment action. However, where the employment action is related to whistle-blowing activities, courts have deemed such actions as adverse employment actions.

For more information on adverse employment actions, board members should speak with their board attorney or the NJSBA Legal and Labor Relations Department at (609) 695-7600.

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