No Retaliation Remedy for Parochial School Teacher

Aado Kommendant was a teacher and girls' softball coach at St. John Vianney High School in New Jersey until the school decided in 2004 not to renew his contract. The school claimed that Kommendant was fired for appropriating school property and misusing funds, but the coach believed he was fired in retaliation for filing a Title IX complaint the Office for Civil Rights about inequitable treatment of the softball team. He sued the Diocese of Trenton, which operates the school, claiming that the school's decision was wrongful discharge under New Jersey common law. An appellate court recently affirmed the lower court's decision to dismiss Kommedant' suit against the school and its officials.

Because St. John Vianney High School is a private school that does not receive federal funds, it is outside the scope of Title IX. Therefore, the court reasoned, Kommendant's complaint to OCR about inequitable treatment of the girls' softball team is not entitled to protection from retaliation under NJ law. This reasoning highlights an important distinction between federal retaliation law, including that of Title IX, and comparable doctrines under state law. Under Title IX, an employee is protected from retaliation if employee reasonably believed that he was complaining about a violation of law. Under state law, at least in New Jersey, the employee only gets protection for complaining about actual violations of law. Whether Kommendant reasonably believed Title IX applied to St. John's or not, he is not protected under state law for complaining about Title IX violations.

I think that protecting employee's reasonable belief, as Title IX does, is superior to the state's more rigid approach. Employees will rarely be certain that their complaint addresses actual violations of law, and will likely be deterred by the threat of retaliation against speaking out against perceived violations of law.

Decision is: Kommendant v. Diocese of Trenton, 2010 WL 1526262 (Apr. 13, 2o1o, N.J. Super. Ct. App. Div.)