In a recent unpublished opinion, New Jersey’s Appellate Division found a teacher’s objection that his school did not sufficiently discipline a student for threatening to shoot another student could be protected from retaliation by the Conscientious Employee Protection Act (“CEPA”).
Phillip Eisenstein is a physical education teacher for the New York Avenue School in Atlantic City. He witnessed a student, K.D., bullying other students. After Mr. Eisenstein intervened, K.D. threatened to get his uncle’s gun and come back the next day to shoot one of the other students. Mr. Eisenstein reported this to the school’s principal, who said he would handle it.
The next morning, Mr. Eisenstein saw K.D. at school. Accordingly, he emailed the principal and told him he was shocked to see K.D. at school considering the severity of his threat, and asked the principal what actions had been taken. Mr. Eisenstein did not receive any response to his email. He subsequently learned that K.D. received a two day in-school suspension.
A few weeks after the first incidence, Mr. Eisenstein saw another student, J.H., trying to instigate a fight with K.D. After Mr. Eisenstein spoke to J.H., he nonetheless began punching K.D. Mr. Eisenstein attempted to restrain J.H., who got away and again attacked K.D. Although Mr. Eisenstein called for help, nobody came. As a result, he put J.H. in a bear hug to prevent him from further attacking K.D.
At the end of the day, the school suspended Mr. Eisenstein. The Atlantic County Board of Education eventually fired Mr. Eisenstein for “excessive use of force.”
Mr. Eisenstein sued the Board, claiming it fired him in violation of CEPA. However, at the trial the judge granted the Board’s motion for a directed verdict, ruling that Mr. Eisenstein failed to identify a law, rule, regulation or public policy that he reasonably believed the school had violated. Mr. Eisenstein appealed.
On October 22, 2024, in Eisenstein v. Atlantic City Board of Education, the Appellate Division reversed the trial court’s order dismissing the case. It found Mr. Eisenstein reasonably believed the school’s decision to allow a student to return to school immediately after he made a threat of violence violated the School District’s rules regarding student discipline and its Code of Conduct.
The appellate court made it clear that, for an employee to establish a CEPA claim based on a clear mandate of public policy, there has to be a “readily discernible course of action that is recognized to be in the public interest” and a “definite standard” by which that conduct can be judged.
Ultimately, the Appellate Division concluded that Mr. Eisenstein had identified a public policy, school safety, that he believed had been violated. It ruled that a jury can conclude he reasonably believed the school violated a clear mandate of public policy concerning public health, safety, welfare or protection of the school environment by allowing K.D. to return to the school the day after he threatened to shoot another student. Accordingly, it reversed the trial court’s order that had dismissed the case so Mr. Eisenstein can have a new trial. However, the Court made it clear that to win Mr. Eisenstein will need to identify a specific statute, regulation, or clear expression of public policy that would be violated if his version of the facts is true.