GOODE et al v. CAMDEN CITY SCHOOL DISTRICT et al
MEMORANDUM OPINION. Signed by Judge Timothy J. Savage (EDPA) on 7/15/2021. (rtm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MARGARET GOODE, NICOLE MANN,
DOLORES EVERETTE, JESSICA
DEQUITO, THERESA ATWATER,
JACQUELINE BALLINGER and
CAMDEN CITY SCHOOL DISTRICT,
KEITH MILES and HYE-WON GEHRING
July 15, 2021
A group of former teachers in the Camden City School District (“District”) brought
this age discrimination and retaliation action against the District and two principals. 1
Following Judge Kugler’s summary judgment ruling, only four of plaintiff Rena Pierce’s
claims against defendant Keith Miles remain: age discrimination under New Jersey’s Law
Against Discrimination (“LAD”), retaliation for whistle-blowing activity under New Jersey’s
Conscientious Employee Protection Act (“CEPA”), and retaliation for speech protected by
the First Amendment under Section 1983 and New Jersey’s Civil Rights Act (“CRA”). 2
Miles has moved in limine to exclude Pierce’s evidence relating to constructive discharge,
economic damages, and non-economic damages. 3
The defendants originally included the District’s superintendent, two other principals, and two lead
educators from Woodrow Wilson High School. Pls.’ Fourth Am. Compl. at ¶¶ 24, 27-30 (ECF No. 61). On
November 7, 2019, the parties agreed to dismiss these defendants with prejudice, leaving only the District,
Miles, and Gehring in the suit. See Partial Stip. of Dism. w. Prejudice at ¶ 10 (ECF No. 108).
2 Judge Kugler granted summary judgment on all remaining plaintiffs’ claims. The case was
reassigned after that ruling.
Miles also moved to exclude evidence of Pierce’s speech that Judge Kugler ruled were not
protected under the First Amendment. Def.’s Mot. in Lim. at 28-30. At oral argument, Pierce’s counsel
withdrew her opposition to precluding this evidence. Oral Arg. Tr. at 34:8-14. Thus, we shall grant the motion
We shall deny the motion to exclude evidence relating to constructive discharge,
economic damages in the form of back pay, and non-economic damages for emotional
distress. We shall grant the motion to exclude evidence relating to economic damages in
the form of front pay and non-economic damages for physical injuries.
Factual Background 4
Plaintiff Rena Pierce was a tenured special education teacher at Woodrow Wilson
High School in the Camden City School District until her retirement in May 2016. 5 She
was also a representative of the teachers’ union. 6 Defendant Keith Miles was the principal
of Woodrow Wilson during the 2014-2015 and 2015-2016 school years. 7
In 2012, the New Jersey Legislature enacted the Teacher Effectiveness and
Accountability for the Children of New Jersey Act, N.J.S.A. 18A:6-117 et seq. 8 Under the
Act, school districts may develop their own evaluation rubrics to measure teacher
effectiveness. 9 District superintendents must bring tenure charges against teachers who
receive evaluation ratings below a certain threshold in consecutive years. 10 If tenure
to exclude this evidence.
This is an abbreviated version of the factual background, reciting only those facts relevant to the
issues before us. A more detailed account of the facts and procedural history can be found in Judge Kugler’s
November 22, 2019 Opinion (ECF No. 109) (“Judge Kugler Opinion”).
J. Kugler Op. at 2, 4, 7.
Id. at 4.
Id. at 2.
Id. at 2-3.
charges are sustained, the teachers are terminated and risk losing their pensions,
benefits, and certifications. 11
Pierce and six other teachers sued the District and several individuals, 12 alleging
the District implemented a policy to use its new evaluation rubric to pressure older
teachers to retire. 13 As part of this effort, the plaintiffs allege, evaluators gave older
teachers unduly low scores and surreptitiously recorded them during the evaluations in
violation of the collective bargaining agreement with the District. 14 They claim Miles was
responsible for implementing the policy at Woodrow Wilson. 15
In the 2013-2014 school year, Pierce taught one or two classes outside her main
classroom, requiring her to move her heavy teaching equipment from classroom to
classroom. 16 She did not complain about her schedule. 17 She received an evaluation
score of “effective” for the year. 18
In 2014, Miles became principal of Woodrow Wilson. 19 Although Pierce and Miles
initially had a good relationship, it soured when Pierce began objecting to some of Miles’s
Id. at 3.
Defendant Hye-Won Gehring was co-principal at R.T. Cream Family School. Id. at 2. All claims
against Gehring have been dismissed. Id. at 40.
Id. at 3.
Id. at 4-5.
Id. at 5.
proposals as violating the collective bargaining agreement, state, or federal law. 20 She
also objected when Miles attempted to record a staff meeting. 21
Pierce’s schedule and classroom assignments changed during the 2014-2015
school year. 22 She was forced to walk between classrooms more frequently and tote her
heavy equipment up and down stairs. 23 Her special education class was moved to a
classroom without visual aids. 24 These changes were at Miles’s direction. 25
That same year, Pierce noticed that other older teachers were forced to move
between classrooms and denied classrooms with visual aids. 26 In her capacity as union
representative, she raised these issues with Miles at staff meetings. 27 On several
occasions, Miles made comments that Pierce believed showed a discriminatory animus.
He made statements like “he knew he would have a problem with the older teachers
transitioning to the Woodrow Wilson way,” she reminded him of his mother, and “you can’t
teach an old dog new tricks.” 28
Pierce received “partially effective” or “ineffective” scores on several evaluations
from Cameron Baynes and Genevieve Byrd-Robinson, the two lead educators at
Id. at 6; Oral Arg. Tr. at 6:13-21.
J. Kugler Op. at 6.
Woodrow Wilson, for the 2014-2015 school year. 29 She requested in-class coaching or
modeling, but never received such instruction. 30 Other older teachers complained to her
that they did not receive coaching. 31 Pierce continued to complain to Miles and other
school officials about the schedule changes, evaluation process, and other issues. 32 She
received an overall score of “partially effective” for the 2014-2015 school year and was
placed on a “corrective action plan” for the next school year. 33
Pierce’s schedule and class assignments became more onerous in the 2015-2016
school year. She had to travel farther between classrooms and buildings, and was
assigned to teach general education and honors classes rather than the special education
classes for which she was qualified. 34 According to Pierce, Miles was responsible for
these changes. 35 At the end of the year, Pierce received an overall evaluation score of
“partially effective.”36 Because she received scores of “partially effective” in two
consecutive years, Pierce faced possible tenure charges, which could have resulted in
her losing her pension, benefits, and certifications. 37 She retired on May 1, 2016. 38
Id. at 5-6.
Id. at 6.
Id. at 5-6.
Id. at 6.
Id. at 7.
Id. at 2-3.
Id. at 7.
Pierce and six other teachers in the school district asserted claims against the
District for age discrimination and hostile work environment under ADEA and LAD, and
retaliation against whistle-blowing activity under CEPA. 39 They also asserted claims
against Miles and a principal at another school for age discrimination and hostile work
environment under LAD, retaliation against First Amendment-protected activity under
Section 1983 and CRA, retaliation under CEPA, and violations of New Jersey’s doctrine
of fundamental fairness. 40 Only Pierce’s claims against Miles under LAD, CEPA, Section
1983, and CRA survived summary judgment. 41
Evidence of Retaliatory Action
Miles contends Pierce cannot present evidence that she suffered a constructive
discharge. He argues that Judge Kugler’s ruling that she did not establish a prima facie
case for hostile work environment precludes constructive discharge because it requires
significantly more egregious conduct. 42 Pierce counters that although she is not asserting
a claim for constructive discharge, evidence supporting a constructive discharge claim is
relevant to prove she suffered an adverse employment action for her CEPA claim. 43
One of the elements Pierce must prove to establish a prima facie case of retaliation
for whistle-blowing activity under CEPA and a claim of age discrimination under LAD is
Id. at 10.
Id. at 40.
Def.’s Mot. in Lim. at 9-13 (ECF No. 136).
Pl.’s Resp. at 1-2 (ECF No. 137); Oral Arg. Tr. at 22:9-11.
that she suffered an “adverse employment action.” Lippman v. Ethicon, Inc., 119 A.3d
215, 226 (N.J. 2015) (citations omitted); Monaco v. Am. Gen. Assur. Co., 359 F.3d 296,
300 (3d Cir. 2004) (citing Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir.
2001)). Similarly, to establish First Amendment retaliation claims under Section 1983 and
CRA, a public employee must show she suffered a “retaliatory action.” Munroe v. Cent.
Bucks Sch. Dist., 805 F.3d 454, 466 (3d Cir. 2015), as amended (Oct. 25, 2019) (quoting
Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 986 (3d Cir. 2014)); Lapolla v. Cty. of
Union, 157 A.3d 458, 464 (N.J. App. Div. 2017) (citations omitted). Unlike adverse
employment actions in discrimination cases, the threshold for a retaliatory action is much
lower. It does not require a significant change in the terms and conditions of employment.
Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 758 (3d Cir. 2019) (internal citations
omitted) (“[T]he nature of the retaliatory acts committed by the public employer [for
Section 1983 actions] must ‘be more than de minimis,’” meaning “more than ‘criticism,
false accusations, or verbal reprimands.’”).
In denying summary judgment on her CEPA claim, Judge Kugler found that
Pierce’s evidence of the detrimental scheduling changes and negative performance
reviews established a “pattern of retaliatory activity . . . virtually equivalent to a
discharge.” 44 Judge Kugler also found these scheduling changes satisfied the adverse
employment element of her LAD claim, and that “retaliatory changes to an employee’s
work schedule may violate her First Amendment rights” in the context of Pierce’s Section
1983 and CRA claims. 45
J. Kugler Op. at 30.
Id. at 33, 26 (citing Shrum v. City of Coweta, Okla., 449 F.3d 1132 (10th Cir. 2006)).
Pierce seeks to present evidence of the negative treatment Miles inflicted on her
during the two years leading up to her retirement, including the negative performance
evaluations and scheduling changes that required her to move between classrooms more
frequently while carrying heavy equipment, teach in classrooms without visual aids, and
teach general education and honors classes in addition to special education classes. This
evidence is not offered to prove constructive discharge. It is offered to establish that she
suffered an “adverse employment action” for purposes of her CEPA and LAD claims, and
a “retaliatory action” for purposes of her Section 1983 and CRA claims. Therefore, we
shall deny Miles’s motion in limine to the extent it seeks to preclude evidence that is
relevant to show Pierce suffered adverse employment and retaliatory actions. 46
Miles seeks to preclude Pierce from introducing evidence of economic losses
under LAD or CEPA. 47 Relying on Donelson v. DuPont Chambers Works, Miles contends
that Pierce cannot recover economic damages absent a showing that she was either
constructively discharged or suffered a mental injury rendering her unfit for continued
employment. 48 According to Miles, Pierce cannot show she was constructively discharged
because she voluntarily retired and later tried to rescind her retirement. 49 Though she
was threatened with tenure charges, none were filed. 50 Miles argues that because she
An appropriate limiting jury instruction, if requested, will avoid any misunderstanding about the
purpose of the evidence. FED. R. EVID. 105.
Def.’s Mot. in Lim. at 13-14.
Id.; Oral Arg. Tr. at 10:7-16, 12:1-8, 14:10-15.
Def.’s Mot. in Lim. at 17.
Id. at 17-19.
retired without utilizing the available procedural protections to challenge the tenure
charges in the event the District decided to bring them, Pierce cannot claim her retirement
was involuntary or coerced. 51 Furthermore, he argues, Pierce cannot show she was
unable to work, thereby disqualifying her from recovering economic damages under
Donelson. 52 In support of this argument, Miles seeks to exclude six of Pierce’s trial
exhibits and evidence relating to her years of public service, salary, benefits, and
calculations of economic losses. 53
Focusing on her CEPA claim, 54 Pierce contends that constructive discharge and
mental injury are only two possible grounds for recovery of economic damages,
specifically lost wages. 55 According to Pierce, a plaintiff may recover lost wages under
CEPA if the losses were proximately caused by the retaliation, which is a jury question. 56
She argues that neither CEPA nor Donelson imposes a threshold requirement of a mental
injury or constructive discharge to recover lost wages. 57
Id. at 16-17. Although she vaguely testified about psychological damage, she did not seek any
mental health treatment, nor did she present any other documentary or medical evidence of a mental injury.
Id. at 16-17. See also Def.’s Mot. in Lim. Ex. C; Oral Arg. Tr. at 20:16-20.
Def.’s Mot. in Lim. at 22-23; Joint Final Pretrial Order at 8-9, ¶¶ 10-27 (ECF No. 131). Miles also
argues we should preclude any evidence supporting recovery for future wage loss or loss of earning
capacity for lack of expert testimony. Def.’s Mot. in Lim. at 19-21. Pierce concedes her claim for front pay
is barred. Pl.’s Resp. at 9-10; Oral Arg. Tr. at 6:24-7:1.
Although Pierce requests economic damages on her LAD claim in the Fourth Amended
Complaint, see Pls.’ Fourth Am. Compl. at 57, she appears to concede that economic damages are not
available under LAD in the absence of a constructive discharge. Pl.’s Resp. at 3-5.
Id. at 3-6.
Id. at 3-4, 7-8.
Id. at 4-7.
In Donelson, the New Jersey Supreme Court held that the plaintiff could recover
economic damages under CEPA even though he was not constructively discharged
because his employer’s retaliation proximately caused a mental injury rendering him unfit
for future employment. 20 A.3d 384, 392-93 (N.J. 2011). Miles narrowly interprets
Donelson to mean that recovery of economic damages under CEPA is limited to cases
where a plaintiff was either constructively discharged or mentally incapacitated as a result
of the employer’s retaliation.
Donelson did not hold that constructive discharge and mental impairment are the
only grounds for recovery of economic damages in a CEPA retaliation case. It held that
mental disability is one, not the only, basis for recovery of lost wages.
The Court in Donelson focused on mental disability and unfitness because that is
what the plaintiff had claimed. The plaintiff in Donelson demonstrated that the retaliation
for his whistle-blowing activity caused a mental impairment that rendered him incapable
of continuing to work. Id. at 395. Significantly, he sought economic damages in the form
of both front and back pay. Id. The Court stated “a person injured by the tortious conduct
of another ‘has the right to recover damages for diminished-earning capacity,’ provided
there is sufficient proof both to establish that the injury will impair his future income and
to quantify the lost income.” Id. at 392-392 (quoting Frugis v. Bracigliano, 827 A.2d 1040,
1060 (N.J. 2003)). Because the plaintiff in Donelson sought to recover for loss of future
income, he necessarily had to prove that his mental injury incapacitated him from
continuing to work.
The text of CEPA does not limit the bases for economic damages to constructive
discharge and mental unfitness. On the contrary, it clearly states: “All remedies available
in common law tort actions shall be available to prevailing plaintiffs,” including “[t]he
compensation for all lost wages, benefits and other remuneration.” N.J.S.A. 34:19-5. The
Donelson court, citing the statute, announced that “[t]he remedy provision of CEPA . . .
does not intimate that a constructive discharge is the only basis for a lost-wage claim in
the circumstances before us.” 20 A.3d at 394. Noting that “[c]onstructive discharge is but
one ground for recovery of lost wages under CEPA,” the Court explained that “[i]f an
employer engages in unlawful retaliation, then it is accountable for the damages
proximately caused to the employee” according to “the common-law principles of
damages.” Id. at 386. “Under the common law, ‘a defendant who negligently injures a
plaintiff or his property may be liable for all proximately caused harm, including economic
losses.’” Id. at 392 (quoting People Express Airlines, Inc. v. Consol. Rail Corp., 495 A.2d
107, 109 (N.J. 1985)).
Following Donelson, New Jersey appellate courts have awarded economic
damages on CEPA retaliation claims absent constructive discharge or mental unfitness.
See, e.g., Chiofalo v. State, No. 2349-16, 2020 WL 4748097, at *11 (N.J. App. Div. Aug.
7, 2020) (“[C]ontrary to defendants’ contentions on appeal, back and front pay can be
awarded under CEPA, even in the absence of an actual or constructive discharge where
plaintiff is claiming that he or she was retaliated against by not being promoted.”).
Miles contends that because Judge Kugler found that she did not establish a
hostile work environment claim, she cannot make out one for constructive discharge
which requires a higher standard.
Contrary to Miles’s contention, Judge Kugler did not find that the evidence did not
amount to a constructive discharge. In ruling that the fact that “Pierce voluntarily resigned
her position is not fatal to her CEPA claim,” Judge Kugler found that “the cumulative effect
of the low evaluations raised the specter of tenure charges for Pierce, impacting her job
security.” 58 He concluded that this “pattern of retaliatory activity Pierce testified to was
virtually equivalent to discharge.”59
Judge Kugler’s rulings are the law of the case. 60 We are bound by those rulings.
Evidence that may support a constructive discharge claim may also be relevant to
show the effect of an employer’s retaliatory actions. Pierce need not bring a constructive
discharge claim to present the evidence in support of her CEPA retaliation claim. If the
jury finds that the retaliatory actions making out Pierce’s CEPA claim impelled her to retire
early to avoid possible tenure charges, she may recover economic damages. 61 Therefore,
we shall permit her to introduce evidence of her years of service, her retirement goals,
her gross income at the time of her retirement, and the monthly deductions from her
pension for Medicare and other benefits. 62
J. Kugler Op. at 29-30.
Id. at 30.
Oral Arg. Tr. at 2:16-22.
What happened next after she voluntarily retired is problematic for Pierce in determining the
extent of her economic loss and the severity of the conditions she complained of in her testimony. She
unsuccessfully sought to rescind her retirement and return to her job a few weeks later. Def.’s Mot. in Lim.
Ex. B. At that point, Miles could argue, she no longer felt threatened or she never felt threatened.
62 In light of our ruling, trial exhibits P0024, P0025, P0026, P0027, and P0028, and evidence relating
to paragraphs 14, 15, 18, 19, and 24 through 26 of Pierce’s contested facts concerning damages identified
in the Joint Final Pretrial Order are admissible. We shall grant the motion in limine as to paragraphs 13, 16,
17, 20 through 23, and 27 of the contested facts concerning damages as they relate to claims for front pay.
Pierce contends she can show she suffered emotional distress as a result of her
treatment. 63 Miles seeks to preclude evidence of emotional damages. 64 Although he
acknowledges that expert testimony is not required to prove non-economic losses in
employment and civil rights cases, he contends that Pierce must still present “competent
evidence” of actual injury. 65 According to Miles, the only evidence Pierce offers in support
of her emotional injuries is her own contradictory testimony. 66 He also argues that
evidence relating to emotional distress damages should be precluded because Pierce did
not receive psychological treatment for her mental injuries. 67
Pierce counters that she testified to the emotional effects of the discrimination and
retaliation she suffered. 68 She argues it is for the jury to decide if her testimony is
Recovering emotional distress damages in discrimination cases under New Jersey
law requires “a far less stringent standard of proof than that required for a tort-based
emotional distress cause of action.” Tarr v. Ciasulli, 853 A.2d 921, 928 (N.J. 2004). Under
Pl.’s Resp. at 13-15. Pierce claimed in her deposition that she also suffered physical injuries,
including aggravation of an injury to her lower back, aggravation of her asthma, and aggravation of her
hypertension. Def.’s Mot. in Lim. Ex. F at 11:21-24 (“Pierce Deposition Transcript Volume 1”). In her
response to Miles’s motion in limine, Pierce focused solely on emotional distress. Her counsel stated at oral
argument that she is not seeking damages related to physical injury. Oral Arg. Tr. at 31:23-25. Hence, we
shall preclude all evidence relating to non-economic damages for physical injury.
Def.’s Mot. in Lim. at 28.
Id. at 24.
Id. at 24-25.
Id. at 25, 27.
Pl.’s Resp. at 13-15.
Id. at 15-16.
LAD and CEPA, expert testimony is not required to prove past emotional distress.
Battaglia v. United Parcel Serv., Inc., 70 A.3d 602, 622 (N.J. 2013) (citations omitted). 70
Similarly, lay testimony alone is sufficient to support recovery of emotional distress
damages in Section 1983 cases. Bolden v. Se. Pa. Transp. Auth., 21 F.3d 29, 36 (3d Cir.
1994). 71 See also Carey v. Piphus, 435 U.S. 247, 263-64 (1978) (“Distress is a personal
injury familiar to the law, customarily proved by showing the nature and circumstances of
the wrong and its effect on the plaintiff. . . . Although essentially subjective, genuine injury
in this respect may be evidenced by one’s conduct and observed by others.”).
Emotional distress damages may be awarded in employment and civil rights cases
where a plaintiff testifies to the effects the discrimination, retaliation, or other violations of
constitutional rights had on her mental health, including feelings of hurt, frustration and
betrayal, stress, difficulty sleeping, depression, and other issues. See, e.g., Rendine v.
Pantzer, 648 A.2d 223, 245 (N.J. App. Div. 1994), aff’d as modified, 661 A.2d 1202 (N.J.
1995) (affirming award of emotional distress damages on plaintiffs’ LAD discrimination
claims where plaintiffs did not submit expert testimony or objective corroboration, but
testified “in detail their inconvenience and economic loss, physical and emotional stress,
anxiety in searching for reemployment, uncertainty, career and family disruption and other
adjustment problems”); Bolden, 21 F.3d at 33-34 (finding lay testimony from plaintiff and
The New Jersey Supreme Court has held that expert testimony is required to support an award
for future emotional distress. Battaglia, 70 A.3d at 623-24. See also Cuevas v. Wentworth Grp., 144 A.3d
890, 908 (N.J. 2016) (citations omitted). Here, Pierce is seeking damages only for past emotional distress.
Pl.’s Resp. at 13-15.
71 This principle holds true for CRA claims as well. See Tumpson v. Farina, 95 A.3d 210, 223 (N.J.
2014) (explaining that the CRA is “modeled” off of Section 1983); Cruz v. Camden Cty. Police Dep’t, 245
A.3d 254, 259 (N.J. App. Div. 2021) (“[I]n interpreting the CRA, New Jersey courts often look to federal
cases analyzing § 1983.”) (citations omitted).
plaintiff’s friends and family sufficient to support jury award of emotional distress damages
under Section 1983); Gagliardo v. Connaught Lab’ys, Inc., 311 F.3d 565, 573 (3d Cir.
2002) (finding lay testimony from plaintiff’s co-workers and family sufficient to support jury
award of emotional distress damages under the Americans with Disabilities Act).
Pierce testified she experienced emotional distress as a result of Miles’s alleged
discriminatory and retaliatory treatment. The effects included feeling intimidated,
stressed, frightened, worn out, hopeless, humiliated, and hurt. 72 She testified that she
had difficulty sleeping and woke up with headaches or nosebleeds. 73 There may be
inconsistencies in her testimony regarding her emotional distress, 74 but her credibility is
for the jury to decide. Thus, we shall deny Miles’s motion to the extent it seeks to preclude
evidence relating to non-economic damages for emotional distress. 75
Pierce Dep. Tr. Vol. 1 at 20:4-5, 25:11-26:7, 38:10-11, 39:25-40:12, 52:13-24, 53:20-25, 60:2-5,
60:19-21, 65:16-17, 68:21-69:13; Def.’s Mot. in Lim. Ex. D at 184:10-13, 186:12-20.
Pierce Dep. Tr. Vol. 1 at 51:10-17, 51:18-52:25.
For example, at one point she stated that her stress was caused by this lawsuit. Id. at 26:17-19,
Trial exhibits P0023, P0024, P0026, and P0027 and evidence relating to paragraphs 10, 11, 12,
18, 19, and 24 through 26 of Pierce’s contested facts concerning damages outlined in the Joint Final Pretrial
Order are admissible for proving emotional distress damages. Joint Final Pretrial Order at 8-9, 25-27.
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