NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 22-3044 _____________

MARGARET GOODE; NICOLE MANN; DOLORES EVERETTE; JESSICA DEQUITO; THERESA ATWATER; JACQUELINE BALLINGER; RENA PIERCE

v.

CAMDEN CITY SCHOOL DISTRICT; PAYMON ROUHANIFARD; KEITH MILES; HYE-WON GEHRING; GLORIA MARTINEZ-VEGA; LAURA BOYCE; CAMERON BAYNES; GENEVIEVE BYRD-ROBINSON

Margaret Goode; Nicole Mann; Estate of Jessica DeQuito; Theresa Atwater; Jacqueline Ballinger, Appellants ______________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1-16-cv-03936) District Judge: Honorable Robert B. Kugler ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on September 19, 2023

Before: RESTREPO, McKEE, and RENDELL, Circuit Judges

(Opinion filed: January 10, 2024 _____________________

OPINION* ______________________

McKEE, Circuit Judge.

The Plaintiffs are formerly tenured teachers in Camden City School District who

allege that the School District sought to unlawfully terminate their employment on

account of their age. They ultimately resigned after poor performance evaluations and

then filed this suit alleging age-discrimination and unlawful retaliation. They now appeal

the District Court’s grant of partial summary judgment for Defendants.

Because we agree with the District Court, we will affirm.1

I. Summary judgment should be awarded when the moving party demonstrates that

there is no genuine issue of material fact, and the record evidence demonstrates that the

moving party is entitled to judgment as a matter of law.2 A factual issue is genuine if a

reasonable jury could return a verdict for the nonmovant, and it is material if it would

affect the outcome of the lawsuit.3 Given that fact and credibility determinations are the

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 We have jurisdiction under

and exercise plenary review over the District Court’s decision to grant summary judgment. See Burton v. Teleflex Inc.,

, 424–25 (3d Cir. 2013). 2 Celotex Corp. v. Catrett,

, 322–23 (1986). 3 Anderson v. Liberty Lobby, Inc.,

(1986).

2 province of the fact-finder, all evidence at the summary judgment phase is to be

construed in the light most favorable to the non-moving party.4

II.5

A.

New Jersey’s Law Against Discrimination (“LAD”) makes it illegal “to discharge

or require to retire . . . from employment such individual or to discriminate against such

individual in compensation or in terms, conditions or privileges of employment” on the

basis of age.6 A plaintiff may prove her age-discrimination claim by circumstantial

evidence, to which the Supreme Court’s familiar burden shifting McDonnell Douglas test

applies.7 A prima facie case under the LAD for unlawful termination based on age

requires a plaintiff to establish that she: (i) belongs to a protected class, i.e. over the age

of forty (ii) was qualified for the position held, (iii) suffered an adverse employment

action, and (iv) was replaced by someone sufficiently younger to permit an inference of

age discrimination.8 The District Court dismissed Plaintiffs’ LAD age-discrimination

claims against Hye won Gehring for failure to marshal evidence that they suffered

adverse employment actions.

4

. 5 The facts which give rise to this case, and are relevant on appeal, are largely undisputed and familiar to the parties. Accordingly, no factual recitation is necessary for this non- precedential opinion. 6

(a). 7 Bergen Com. Bank v. Sisler,

(1999). 8 Monaco v. Am. Gen. Assur. Co.,

, 300–01 (3d Cir. 2004); but see Sisler,

, 213–16 (explaining that a wrongful discharge case on account of youth is conceptually possible under the LAD).

3 Plaintiffs assert that the District Court committed two errors: not considering the

precedents of other Courts of Appeals and not accounting for the totality of the

circumstances in this case. However, the District Court properly relied upon our decision

in Jones v. Southeastern Pennsylvania Transportation Authority9 in rejecting the

Plaintiffs’ adverse employment action. Further, although New Jersey’s LAD is analogous

to federal employment discrimination laws, it is still a New Jersey statute. Therefore, the

District Court correctly relied upon the New Jersey Supreme Court’s decision in

Shepherd v. Hunterdon Developmental Center10 in rejecting the adverse employment

action claims, and we too find the Plaintiffs’ adverse employment actions unpersuasive.

An adverse employment action is “an action by an employer that is serious and

tangible enough to alter an employee’s compensation, terms, conditions, or privileges of

employment.”11 Paradigmatic examples include “hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits.”12

Plaintiffs argue that once they received two consecutive years of poor performance

evaluations it was only a matter of time before they would have been terminated. But

receiving consecutive poor performance evaluations does not automatically result in

9

(3d Cir. 2015). 10

(N.J. 2002). 11 Jones v. Southeastern Pa. Transp. Auth.,

(3d Cir. 2015) (quoting Storey v. Burns Int’l Sec. Servs.,

(3d Cir. 2004)). 12 Burlington Industries, Inc. v. Ellerth,

(1998).

4 termination under New Jersey law,13 and Plaintiffs have presented no evidence from

which a fact finder could conclude that their termination was nonetheless certain. They

further argue that Goode suffered an adverse employment action because Gehring’s

intervention in her second-year evaluation resulted in her achieving a less than effective

performance evaluation when she otherwise would have been rated as effective.

However, even if Gehring did so intervene, it is of no consequence because a negative

performance review is not itself an adverse employment action under the LAD.14 Had

Plaintiffs been terminated they would likely be able to show that their negative

performance reviews resulted in financial harm—i.e., an adverse employment action.15

But as the District Court so cogently stated, “no plaintiff was actually dismissed due to

the tenure charges, as they all chose to resign rather than face them. And unfortunately

for Plaintiffs, that choice makes all the difference.”16

13 Under the Teacher Effectiveness and Accountability for the Children of New Jersey (“TEACHNJ”) Act, N.J. Stat Ann. 18A:6-117 et seq., district superintendents are required to forward a tenure charge of inefficiency to the Commissioner of Education if a teacher consecutively receives annual summative ratings that fail to meet certain effectiveness thresholds. See N.J. Stat. Ann. § 18A:6-17.3a.(1)-(2). Unless the board of education “determines that the evaluation process has not been followed” the written charges are forwarded to the Commissioner of Education, id. at § 18A:6-17.3b., who— after allowing the charged teacher a chance to respond and concluding that the evaluation process has been followed—refers or appoints an arbitrator to hear the case, id. at § 18A:6-17.3c. 14 Shepherd,

(explaining that “without more, an employer’s filing of a disciplinary action cannot form the basis of a LAD complaint”). 15 See e.g., Baloch v. Kempthorne,

(D.C. Cir. 2008) (explaining that “performance reviews typically constitute adverse actions only when attached to financial harms”); Smart v. Ball State Univ.,

(7th Cir. 1996). 16 Goode v. Camden City Sch. Dist., No. CV 16-03936 (RBK/JS),

, at *16 (D.N.J. Nov. 22, 2019).

5 B.

To establish a prima facie First Amendment retaliation claim a plaintiff must

demonstrate that she engaged in activity that is protected under the First Amendment.17 A

public employee’s speech is due First Amendment protection if she “speak[s] as a citizen

(and not as an employee),” the speech “‘involve[s] a matter of public concern,’ and ‘the

government . . . lack[s] an adequate justification for treating the employee differently

than the general public based on its needs as an employer under the Pickering balancing

test.”18 To involve a matter of public concern, speech must relate to “a subject of general

interest and of value and concern to the public,” whether it is a “matter of political, social

or other concern to the community” or “a subject of legitimate news interest.”19

The District Court determined that Goode had not commented on a matter of

public concern and therefore had no First Amendment claim. Plaintiffs argue that

Goode’s petition against Gehring—filed with the New Jersey Department of Education—

sufficiently touches on a matter of public concern because she stated that he made

“biased” observations about her, which is tantamount to an allegation of unlawful

discrimination.20 Plaintiffs do not argue, and indeed Goode’s petition did not include, any

17 Dondero v. Lower Milford Twp.,

, 361 (3d Cir. 2021). 18 Munroe v. Central Bucks Sch. Dist.,

(3d Cir. 2015) (quoting Dougherty v. Sch. Dist. of Philadelphia,

(3d Cir. 2014)); see also Pickering v. Board of Education,

(1968) (requiring courts to “balance . . . the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”). 19 Lane v. Franks,

, 241 (2014). 20 Appellant Brief at 20–21.

6 allegation that Gehring was biased against her because of her age or because of any other

protected status. Given that Goode only raised Gehring’s general bias against her, the

petition amounts to no more than a “mundane employment grievance[]”21 that is not

protected by the First Amendment. Consequently, Goode’s First Amendment claim was

properly dismissed.

C.

New Jersey’s Conscientious Employee Protection Act (“CEPA”)22 is intended to

“protect and encourage employees to report illegal or unethical workplace activities[,]”

by “ensur[ing] that employees are ‘protected from retaliation and employers are deterred

from activities that are illegal or fraudulent, or otherwise contrary to a clear mandate of

public policy.’”23 To establish a prima facie CEPA action, a plaintiff must demonstrate

that: (i) she reasonably believed that her employer’s conduct was violating either a law or

a clear mandate of public policy; (ii) she performed a “whistle-blowing” activity

described in

:19–3(c); (iii) an adverse employment action was taken

against her; and (iv) a causal connection exists between the whistle-blowing activity and

the adverse employment action.24

The District Court dismissed Goode’s CEPA claim because it concluded that she

could not satisfy the second element of a prima facie CEPA claim: establishing that she

21 Munroe,

. 22

et seq. 23 Chiofalo v. State,

, 539–40 (2019) (first quoting D’Annunzio v. Prudential Ins. Co. of Am.,

(2007); and then quoting Dzwonar v. McDevitt,

(2003)). 24 Lippman v. Ethicon, Inc.,

(2015).

7 performed a whistleblowing activity. In so concluding, Plaintiffs argue that the District

Court (i) incorrectly reasoned that CEPA does not protect reporting “wholly private

grievances” and requires that the reported activity involve a matter of public concern, and

(ii) improperly identified Goode’s asserted whistle blowing activity. Plaintiffs’ arguments

contain an irreconcilable contradiction. They argue that Goode has a First Amendment

retaliation claim because she reported on a matter of public concern. And on the other

hand, they argue that her CEPA claim survives because that statute does not require that

she reported on a matter of public concern. Goode’s CEPA claim was properly dismissed

because CEPA affords her no relief.

While it is true that CEPA “creates a cause of action for an employee who is

subjected to retaliation for reporting workplace misconduct,”25 protected whistle-blowing

activity does not encompass “[v]ague and conclusory complaints, complaints about trivial

or minor matters, or generalized workplace unhappiness . . . .”26 As previously discussed,

Goode’s petition amounted to no more than an allegation of her supervisor’s general bias

against her.

III.

For the reasons now explained, we will affirm.

25 Battaglia v. United Parcel Serv., Inc.,

(2013) (citing Dzwonar v. McDevitt,

, 461–62 (2003)). 26

; see also Est. of Roach v. TRW, Inc.,

, 613–14 (2000) (“CEPA is intended to protect those employees whose disclosures fall sensibly within the statute; it is not intended to spawn litigation concerning the most trivial or benign employee complaints.”).

8