A New Jersey state appeals court has affirmed the ruling of a lower court dismissing the wrongful discharge claim of a girls’ softball coach, finding that the plaintiff failed to demonstrate a lack of probable cause for his firing.
Plaintiff Aado Edward Kommendant began his employment at St. John Vianney High School (SJVH) as the freshman softball coach in 1993. He became the varsity girls’ softball coach in 1998.
During the summers, the plaintiff also coached a girls’ softball team comprised mainly of SJVH’s softball team players. The summer team raised money to pay for uniforms, equipment and a portable field fence. The plaintiff intended to use the fence for both the summer team and the SJVH team.
SJVH permitted sports teams to raise funds for items not included in the school’s annual athletic budget. However, all raised funds were to be turned over to the school and reported in the school’s accounting system. Coaches could purchase items for their teams via a purchase order initialed by the athletic director and signed by the principal.
On May 20, 2003, the plaintiff complained to Athletic Director Kenneth Szyarto concerning disparity in treatment between boys’ and girls’ athletics programs, specifically, as it affected the girls’ softball teams. In early 2004, Principal Joseph Deroba asked the plaintiff to turn in all funds raised by the softball teams to the school’s bookkeeper. After the plaintiff turned in only $65, Deroba requested that the plaintiff provide an accounting of the funds collected. The plaintiff’s accounting showed that he had purchased the portable field fence in February 2004 without a pre-approved school purchase order.
Following the 2004 softball season and after several occurrences of vandalism to SJVH’s athletic facilities and equipment, the plaintiff removed the fence and stored it at the home of one of his players for safekeeping, without notifying Deroba. Deroba demanded that the plaintiff return the fence. The plaintiff refused.
On June 9, 2004, Deroba instructed the school secretary to prepare a letter for his personal delivery to the plaintiff demanding that the plaintiff return the fence, and advising that if he failed to comply, “the incident will become a police matter.” Deroba delivered the letter to the plaintiff in the presence of David Tuschmann. On June 24, 2004, Deroba advised Tuschmann that the plaintiff had not returned the fence. Tuschmann filed a police report of the incident, indicating that he would file a formal complaint for theft against the plaintiff with the Holmdel Township Municipal Court.
On June 21, 2004, the plaintiff filed a complaint with the Office of Civil Rights, United States Department of Education, New York, asserting the existence of inequities at SJVH between the male and female athletic programs in violation of Title IX of the Education Amendments of 1972. 20 U.S.C.A. § 1681 to § 1688. Specifically, the plaintiff complained of “a great disparity” in the amounts that “coaches of female sports are paid as opposed to their counterparts that coach male sports;” the condition and location of the boys’ and girls’ athletic fields; and the distribution of school donations to the boys’ baseball program and the girls’ softball program. On July 20, 2004, the Office for Civil Rights sent the plaintiff a letter advising him that the agency was closing his complaint against SJVH because “the School does not receive financial assistance from the Department, nor is the School a public school.”
On July 8, 2004, Deroba informed the plaintiff that the school did not intend to renew his employment contract for the upcoming school year. As a condition for receiving his last paycheck, Deroba again demanded the plaintiff return the fence. The plaintiff complied, and also handed Deroba a check payable to SJVH in the amount of $359.50, representing funds raised by the softball team. At the time Deroba tendered the plaintiff his last paycheck, he requested the plaintiff return the girls’ softball team trophies that were in his possession. However, upon the plaintiff’s request, Deroba allowed him to retain possession of the trophies until after the softball team banquet, which was scheduled to occur in the near future.
In January 2005, Deroba reported to Tuschmann that he had received an anonymous voicemail message stating that the plaintiff maintained an account at a local bank under the name of “Vianney Softball.” The caller further alleged that this account contained funds raised by the SJVH softball team while the plaintiff was the coach, and that the plaintiff had misused these funds. Tuschmann prepared a police report based on this information and turned the matter over to Holmdel Township Detective Sergeant James Smyth.
On April 12, 2005, the plaintiff turned over one of the softball team trophies to the Holmdel Township Police Department. According to the plaintiff, that was the only trophy then in his possession, with team members’ parents having possession of five other trophies. On April 19, 2005, Tuschmann filed a second complaint-summons against the plaintiff, alleging theft of five trophies. The plaintiff attempted to have the parents return the trophies to Assistant School Principal Steven DiMezza, but DiMezza refused to accept them, directing that the parents return the trophies to the police department. The parents returned the trophies as directed.
On June 13, 2005, the municipal court convicted the plaintiff on the two counts of theft, determining that the fence belonged to the school, regardless of who had raised the money and purchased the fence. It concluded that, although the plaintiff had legally possessed the fence and trophies initially, he committed theft when he failed to return the items upon the school’s request.
The plaintiff was ultimately absolved of criminal charges, thanks to a mistrial.
As for the plaintiff’s claim for “wrongful discharge and improper retaliation for complaining inside and outside the school about a clear violation of public policy in the State,” the trial court sided with the defendants.
On appeal, the plaintiff argued that the trial court erred: “1) in dismissing his claim for wrongful termination in violation of public policy, contending that material questions of fact existed precluding summary judgment; 2) in dismissing his claim for malicious prosecution ‘as the factual issues and state of mind determinations raised by [that claim] should have been determined by a jury;’ and 3) in dismissing his claim for abuse of process because he was not required to prove probable cause.”
The appeals court was unmoved, noting that the plaintiff “failed to prove a prima facie claim for wrongful discharge. Although the plaintiff alleges that SJVH retaliated against him by not renewing his upcoming employment contract because he had filed a complaint with the Office for Civil Rights, the plaintiff failed to present evidence establishing a causal connection between his filing of the complaint and SJVH’s failure to renew his employment contract. The record is devoid of evidence showing that Deroba or any other school official knew of the plaintiff having filed the complaint prior to Deroba informing the plaintiff that SJVH did not intend to renew his employment contract the upcoming year. What is more, the plaintiff failed to prove that SJVH’s disparate treatment between the boys’ and girls’ athletic programs, if true, a fact we need not decide, was contrary to Title IX.”
Aado Edward Kommendant v. Diocese Trenton, et al.; Super. Ct. N.J., Appp. Div.; DOCKET NO. A-1062-08T3, 2010 N.J. Super. Unpub. LEXIS 799; 4/13/10
Attorneys of Record: (for appellant) Schibell, Mennie & Kentos, LLC, (Richard D. Schibell, of counsel; John F. McLaughlin, on the brief). (for respondents) Backes & Hill, LLP, (Brenda F. Engel, of counsel and on the brief).
