BOBO v. WILDWOOD PUBLIC SCHOOLS BOARD OF EDUCATION et al
Filing
20
OPINION. Signed by Judge Robert B. Kugler on 12/23/2014. (dmr)
NOT FOR PUBLICATION
(Doc. Nos. 8, 11)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
LANCE BOBO,
:
:
Plaintiff,
:
:
v.
:
:
:
WILDWOOD PUBLIC SCHOOLS
:
BOARD OF EDUCATION, et al.
:
:
Defendants. :
___________________________________ :
Civil No. 13-5007 (RBK/KMW)
OPINION
KUGLER, United States District Judge:
In this case, Plaintiff Lance Bobo (“Plaintiff”) asserts violations of his constitutionally
protected rights, actionable under 42 U.S.C. §§ 1983 and 1985, a Pierce common law wrongful
discharge claim, a claim under the Conscientious Employee Protection Act (“CEPA”), N.J. Stat.
Ann. §§ 34:19-1 et seq., and a claim of disability discrimination under the New Jersey Law
Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-1 et seq., against the Wildwood
Public Schools Board of Education (“Defendant Board”), Patrick Quinlan (“Defendant
Quinlan”), Gregory Rohrman (“Defendant Rohrman”), and Dennis Anderson (“Defendant
Anderson”) (collectively “Defendants”).
Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint
pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. No. 8). For the reasons stated herein, Defendants’
Motion will be granted in part and denied in part.
1
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
Plaintiff was employed by the Board as a custodian beginning in August 2005.
(Amended Complaint (“Compl.”) ¶ 1.) In November of that year, Plaintiff complained to his
supervisor, Defendant Quinlan, that “certain records regarding the boilers in the school were
being falsified.” (Id. ¶ 2.) Plaintiff specifically complained that he had been listed “as having
trained another employee on the procedures for checking boilers when in fact he had not . . . .”
(Id.) After Plaintiff complained, Defendant Quinlan “became upset.” (Id. ¶ 5.) Not only did
Defendant Quinlan start complaining about Plaintiff’s work performance, but he also assigned
Plaintiff to perform “additional tasks that his co-workers were not made to perform.” (Id.)
It is Plaintiff’s belief that Defendant Quinlan prepared, had knowledge of, or acquiesced
to the false information being included on the forms. (Id. ¶ 3.) Further, Plaintiff believes that the
forms were utilized in order that an employee could provide proof of the requisite training to
qualify for a Black Seal Boiler License. (Id. ¶ 4.) After Defendant Quinlan failed to address
Plaintiff’s complaint, Plaintiff reported the falsification of the boiler training documents to
Defendant Rohrman, the Business Administrator/Board Secretary. (Id. ¶ 6.) Subsequently,
Plaintiff reported the falsification of the documents to Defendant Anderson, Superintendent of
the Wildwood Public Schools. (Id. ¶ 8.) Plaintiff believes the falsification of these training
documents continued for years thereafter, up to the time of Plaintiff’s termination. (Id. ¶ 7.) He
also alleges that over the next few years, Defendant Quinlan “constantly harassed Plaintiff about
his work, threatening his job.” (Id. ¶ 9.) Although Plaintiff sought “whistleblower protection”
On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must “accept all factual allegations as true and
construe the complaint in the light most favorable to the Plaintiff.” Accordingly, the following facts are taken from
Plaintiff’s Amended Complaint. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
1
2
from the Human Resources Department in 2010, to protect Plaintiff against the retaliation of
Defendant Quinlan, he was “denied any protection.” (Id. ¶ 15.)
Plaintiff first complained about the alleged “mismanagement of funds” by Defendant
Quinlan in a union meeting, particularly that Defendant Quinlan was failing to “set the schedule
of maintenance workers in such a way that would reduce the need to continually pay certain
workers overtime.” (Id. ¶ 10.) He also complained that certain work was being performed by
individuals who did not hold a “Black Seal license,” which was required, and that Defendant
Quinlan was “dumping waste illegally.” (Id. ¶¶ 11-12.) In fact, Plaintiff had refused Defendant
Quinlan’s direction to dump cleaning chemicals and other waster into the sewer system. (Id. ¶
12.) In 2010 Plaintiff complained about the actions of Defendant Quinlan, including the
falsification of boiler training documents, the mismanagement of funds, and “illegal waste
issues” to Defendant Anderson and Director of Human Resources, Russ Heaton. (Id. ¶ 14.)
During 2010 Plaintiff also reported the actions of a co-worker who allegedly acted in an
inappropriate manner toward students. (Id. ¶¶ 13, 16.) That co-worker allegedly sniffed the
body of one student and massaged the shoulders of two other students. (Id. ¶ 13.) Plaintiff
apparently reported the actions of this co-worker to Defendants Anderson and Rohrman. (Id. ¶
16.) After reporting the co-worker’s activity, Plaintiff was accused of harassing the co-worker
whom he reported. (Id. ¶ 17.) Plaintiff claims Defendant Anderson instructed him to stop
making allegations against his co-worker in August 2010. (Id.) Because no action was being
taken by Defendants with respect to the actions of Plaintiff’s co-worker, Plaintiff reported the coworker to the Cape May County Prosecutor’s Office, believing his co-worker’s actions posed a
risk to the safety of the children in the school district. (Id. ¶ 18.) Then, in December 2010 and
3
January 2011, Defendant Rohrman warned Plaintiff not to speak to anyone concerning his
accusations against his co-worker, or Plaintiff would be subject to discipline. (Id. ¶ 20.)
Additionally, because none of the matters reported to officials working for the Wildwood
School District were apparently being resolved, including the falsification of boiler training
documents, the mismanagement of funds, and the illegal dumping of waste, Plaintiff reported
these issues to the Cape May County Superintendent’s Office and the New Jersey Office of
Fiscal Accountability and Compliance. (Id. ¶ 19.) Plaintiff also claims he reported the
falsification of training documents and the illegal dumping issues to “the Prosecutor’s Office,” at
some point. (Id. ¶ 21.)
Sometime around December 2010 Defendant Quinlan began “issuing Disciplinary
Notices to Plaintiff for allegedly not completing tasks required of him,” despite the fact that
Plaintiff had been “performing his job duties thoroughly.” (Id. ¶ 22.) In retaliation for his
numerous complaints, Plaintiff alleges that he was transferred to different schools, and
Defendant Quinlan continued to harass him. (Id. ¶¶ 23.)2
Plaintiff avers that due to the retaliatory and harassing behavior of Defendant Quinlan, he
suffered emotional distress and elevated blood pressure, which led to a “sudden change in
Plaintiff’s physical appearance.” (Id. ¶ 24.) Meanwhile, Defendant Quinlan allegedly “bragged
to other workers that he had elevated Plaintiff’s blood pressure and made him turn red in the
face.” (Id. ¶ 25.)
In December 2011 Plaintiff left work after the school nurse confirmed that his blood
pressure was highly elevated. (Id. ¶ 26.) Plaintiff sought medical treatment and was out of work
2
The Amended Complaint does not identify who ordered Plaintiff’s transfer to different schools.
4
for five days. (Id.) That same month, Plaintiff advised “Defendants3 that he was unable to report
to work due to ‘stress induced headaches.’” (Id. ¶ 27.) In response, Defendant Rohrman sent
Plaintiff a notice dated December 9, 2011, advising Plaintiff that he was “suspended with pay …
pending the results of a fitness for duty evaluation.” (Id. ¶ 28.) Plaintiff was then directed to
undergo a psychiatric evaluation by Defendant Rohrman, which he claims was retaliation for
requesting a brief medical leave of absence, and in further retaliation for Plaintiff’s prior
complaints regarding the falsification of boiler training documents, illegal waste dumping, and
inappropriate behavior toward students. (Id. ¶ 29.)
Upon Plaintiff’s return to work, Defendant Quinlan allegedly continued to harass Plaintiff
and issue him “bogus” disciplinary actions. (Id. ¶ 30.) Plaintiff again complained to Defendant
Rohrman in December 2011 that Defendant Quinlan had been harassing him for his prior
reporting activities. (Id. ¶ 31.) Subsequently, Defendants Quinlan and Rohrman recommended
Plaintiff’s termination to Defendant Anderson. (Id. ¶ 32.) Defendant Anderson then
recommended Plaintiff’s termination to Defendant Board. (Id. ¶ 33.) On February 21, 2012,
“[Defendant] Rohrman notified Plaintiff [by letter] that he was terminated effective in thirty (30)
days.” (Id.)
On February 20, 2013, Plaintiff filed an action against the Defendants in the Superior
Court of New Jersey, Law Division, Cape May County, Docket No. CPM-L-87-13. (Doc. No.
1.) On August 21, 2013, Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1441(a)
and (b), invoking this Court’s jurisdiction under 28 U.S.C. § 1331. (Id.) On September 20,
2013, Defendants filed their first Motion to Dismiss Plaintiff’s claims pursuant to Fed. R. Civ. P.
3
Plaintiff does not identify any one individual.
5
12(b)(6). (Doc. No. 2.) This Court granted Defendants’ Motion to Dismiss on May 28, 2014,
and gave Plaintiff fourteen days to file an Amended Complaint. (Doc. No. 6.)
Plaintiff filed an Amended Complaint on June 10, 2014. (Doc. No. 7.)4 In his Amended
Complaint, Plaintiff alleged the following claims against all Defendants: claims pursuant to 42
U.S.C. §§ 1983 and 1985 for violations of his “First Amendment rights to Free Speech and the
Right to Petition guaranteed by the New Jersey and United States Constitutions,” (Count I); a
common law claim for wrongful discharge pursuant to Pierce v. Ortho Pharmaceutical Corp., 84
N.J. 58 (1980) (Count II); a claim under the Conscientious Employee Protection Act (“CEPA”),
N.J. Stat. Ann. §§ 34:19-1 et seq. (Count III); and a claim of disability discrimination under the
New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-1 et seq. (Count IV).
Defendants filed this present Motion to Dismiss the Amended Complaint on July 15,
2014.5 As this motion has been briefed, the Court now turns to the parties’ arguments.
4
While Plaintiff did not file a motion for leave to amend, but only filed an Amended Complaint on June 10, 2014,
the Court considers that by the terms of its Order of May 28, 2014, Plaintiff was already granted leave to amend his
Complaint. Accordingly, the Court considers Plaintiff’s Amended Complaint operative and will address
Defendants’ Motion to Dismiss as a matter of course.
Plaintiff has argued that Defendants’ Motion to Dismiss the Amended Complaint was untimely, and asks this
Court to deny Defendants’ present Motion with prejudice. (Doc. No. 9.) Defendants argued, mistakenly, that
Plaintiff’s Amended Complaint should have been treated as an initial complaint where service was already accepted,
giving them 60 days to file responsive papers pursuant to Fed. R. Civ. P. 12(a)(1)(A)(ii). (Doc. No. 10.) However,
Defendants also requested an extension of time to answer or otherwise move pursuant to Fed. R. Civ. P. 6(b)(1)(B).
(Doc. No. 11.)
5
The Court has discretion to allow Defendants to file an answer or response out-of-time “upon a showing of good
cause.” Catanzaro v. Fischer, 570 Fed. App’x 162, 166 (3d Cir. 2014) (citing Fed. R. Civ. P. 6(b)(1)). After the
time to file a motion for an extension of time has expired, the Court must make a finding that the party’s failure to
file a timely response was due to “excusable neglect.” Id. at 6(b)(1)(B); Drippe v. Tobelinski, 604 F.3d 778, 785 (3d
Cir. 2010). In making such a finding the court accounts for “all relevant circumstances surrounding the party's
omission,” including the danger of prejudice to the opposing party, the length of the delay in responding and its
potential impact on judicial proceedings, “the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.” Pioneer Inv. Serv. Co. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380, 395 (1993). Based on the circumstances in this case, the Court finds that there was
“excusable neglect.”
First, it does not appear that Plaintiff would suffer any prejudice by granting Defendants’ Motion for an Extension of
Time. Plaintiff has failed to put forth such an argument in his opposition to Defendants’ Motion for an Extension of
Time, (see Doc. No. 12), and the Court notes that both parties have subsequently requested extensions of time to file
6
II.
LEGAL STANDARD
Rule 12(b)(6) allows a court to dismiss an action for failure to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). When evaluating a motion to dismiss, “courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a
complaint is sufficient if it contains enough factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is not for courts to decide at this point whether
the moving party will succeed on the merits, but “whether they should be afforded an
opportunity to offer evidence in support of their claims.” In re Rockefeller Ctr. Prop., Inc., 311
briefs, both requests have been granted, and this matter has been fully briefed by each party. (See Doc. Nos. 13-15,
18-19.) Nor does Defendants’ delay weigh heavily against them. While they filed twenty one days after their
responsive papers were due, they only filed thirty five days after Plaintiff filed the Amended Complaint, which was
nearly ten months after Defendants removed this case to Federal Court, and nearly fourteen months after Plaintiff
filed his original Complaint in state court. With no evidence that relevant materials or witnesses were lost, that a
trial date was significantly postponed, that Plaintiff had to expend considerably more time or effort responding to the
present motion, or that either party gained an advantage through Defendants’ late filing, it cannot be said that there
would be a significant impact on these judicial proceedings.
Finally, the Court finds that Defendants’ purported reason for the late filing, misunderstanding the nature of
Plaintiff’s Amended Complaint, was reasonable under the circumstances. The record indicates that this case was
“Closed” by the Clerk after this Court’s May 28 Order. While the Order explicitly granted Plaintiff fourteen days to
file an “Amended Complaint,” Defendants could be excused for misunderstanding the docket notation and
presuming that Plaintiff was in fact filing an initial complaint, particularly because Plaintiff did not first file a
motion for leave to amend his Amended Complaint. It does not appear that Defendants were acting in bad faith,
only that they were mistaken regarding which Federal Rule of Civil Procedure governed their time to file responsive
papers, which they continued to argue in their Motion for an Extension. (See Doc. No. 11, Michael A. Pattanite
Certification ¶¶ 11, 16; see also Doc. No. 10.) Instead, Defendants filed within what they believed was their
allotted sixty day window, and as soon as Plaintiff brought the timeliness issue to Defendants’ attention they
responded the next day with a letter explaining their position and a Motion for an Extension of Time in the
alternative. Based on the lack of prejudice to Plaintiff, the lack of impact on these proceedings, and Defendants
apparent good faith, albeit mistaken, view of the Federal Rules, this Court finds that Defendants have shown
“excusable neglect,” and will grant Defendants’ Motion for an Extension of Time.
7
F.3d 198, 215 (3d Cir. 2002). Yet, while “detailed factual allegations” are not necessary, a
“plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do[.]” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678-79.
To determine whether a complaint is plausible on its face, courts conduct a three-part
analysis. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must
“tak[e] note of the elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S.
at 675). Second, the court should identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 131 (quoting Iqbal, 556 U.S. at
680). Finally, “where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.
(quoting Iqbal, 556 U.S. at 680). This plausibility determination is a “context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 679. A complaint cannot survive where a court can only infer that a claim is merely
possible rather than plausible. Id.
In considering a Rule 12(b)(6) motion to dismiss, a court may consider only the
allegations of the complaint, documents attached or specifically referenced in the complaint if
the claims are based on those documents, and matters of public record. In re Bayside Prison
Litig., 190 F. Supp. 2d 755, 760 (D.N.J. 2002). See also Winer Family Trust v. Queen, 503 F.3d
319, 327 (3d Cir. 2007). If “matters outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ.
P. 12(d). The court has discretion to either convert a motion to dismiss into a motion for
summary judgment, or to ignore the matters presented outside the pleadings and continue to treat
8
the filing as a motion to dismiss. Kurdyla v. Pinkerton Sec., 197 F.R.D. 128, 131 (D.N.J. 2000).
The court should not convert a motion to dismiss into a motion for summary judgment when
little discovery has taken place. Id. at 131, 131 n.8. As a preliminary matter, this Court notes
that Defendants improperly attached an exhibit of “investigative documents” in an apparent
attempt to dispute some of Plaintiff’s contentions in his Amended Complaint, (see Ex. A to
Def.’s Br.), and Plaintiff attached a certification in an apparent further attempt to dispute the
arguments asserted by Defendants based on their exhibit. (See Pl.’s Opp’n, Cert. of Patrick
Rudden.) The Court declines to treat this motion as a motion for summary judgment, and will
disregard Defendants’ exhibit and Plaintiff’s certification in deciding this Motion to Dismiss.
III.
A.
DISCUSSION
Plaintiff’s Claims Under 42 U.S.C. §§ 1983 and 1985 (Count I)
Plaintiff alleges that Defendants deprived him of his constitutionally protected rights to
Free Speech and the Right to Petition guaranteed by the United States and New Jersey
Constitutions while acting under color of state law, and in violation of 42 U.S.C. §§1983 and
1985.
With respect to Plaintiff’s section 1983 claim, a plaintiff may have a cause of action
under 42 U.S.C. § 1983 for certain violations of his or her constitutional rights. Section 1983
provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . . subjects,
or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
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Thus, to establish a violation of section 1983, a plaintiff must demonstrate that the
challenged conduct was committed by (1) a person acting under color of state law, and (2) that
the conduct deprived him of rights, privileges, or immunities secured by the Constitution or laws
of the United States. See Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
While Plaintiff claims that all Defendants violated his constitutional rights, the Court will
address his § 1983 claims against the Board and the individual Defendants separately.
Finally, the Court notes that Plaintiff’s section 1985 claims are predicated on the
existence of a conspiracy. See United Bhd. of Carpenters and Joiners v. Scott, 463 U.S. 825,
828-29 (1983) (“to make out a violation of § 1985(3), the plaintiff must allege and prove four
elements,” which include “a conspiracy”); Heffernan v. Hunter, 189 F.3d 405, 411 (3d Cir. 1999)
(“section 1985(1) and 1985(2) claims require a conspiracy”). To survive a motion to dismiss, a
plaintiff must assert: “(1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4)
whereby a person is injured in his person or property or deprived of any right or privilege of a
citizen of the United States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2005) (citing
United Bhd. of Carpenters, 463 U.S. at 828-29).
Plaintiff has offered no information to support his contention that Defendants were part
of a conspiracy. “[A]llegations of a conspiracy must provide some factual basis to support the
existence of the elements of a conspiracy: agreement and concerted action.” Capogrosso v. The
Supreme Court of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009) (citing Crabtree v. Muchmore,
904 F.2d 1475, 1481 (10th Cir. 1990)). Plaintiff’s Amended Complaint is devoid of any mention
of an agreement, any facts suggesting concerted action, or any other allegations of a conspiracy
10
other than his bare assertion that “[Defendants] acted in concert and collusion for the unlawful
purpose of depriving Plaintiff of his Constitutional rights.” (Compl. ¶ 38.) Accordingly, the
Court will grant Defendants’ Motion to Dismiss Plaintiff’s claim for conspiracy to violate
Plaintiff’s civil rights under § 1985, and that portion of Count I will be dismissed from the
Amended Complaint.
1.
Plaintiff’s § 1983 Claim against Defendant Board
In contrast to the concept of individual liability, a local government entity, including a
school board, may be held liable under § 1983 for a constitutional violation if the violation
occurred as a result of a policy or custom established or approved by that entity. C.H. v. Oliva,
226 F.3d 198, 202 (3d Cir. 2000) (citing Monell v. Dep’t of Soc. Servs. of City of New York,
436 U.S. 658 (1978)). The policy or custom must also have been the proximate cause of the
constitutional violation. Beck v. City of Pittsburgh, 89 F.3d 966, 972 (3d Cir. 1996). “If the
policy or custom does not facially violate federal law, causation can be established only by
demonstrating that the municipal action was taken with deliberate indifference as to its known or
obvious consequences . . . . A showing of simple or even heightened negligence will not
suffice.” Chambers v. Sch. Dist. of Philadelphia, 587 F.3d 176, 193 (3d Cir. 2009).
In the context of municipal liability under § 1983, a policy is an “official proclamation,
policy, or edict” made by “a decisionmaker with final authority” to do so. Beck, 89 F.3d at 971
(internal quotations and citations omitted). In contrast, a custom is “a course of conduct . . .
though not authorized by law . . . [that] is so permanent and well-settled as to virtually constitute
law.” Id. A custom “may also be established by evidence of knowledge and acquiescence.” Id.
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The Third Circuit has held that there are three situations where acts of a government
employee may be deemed to be the result of a policy or custom of the governmental entity for
whom the employee works, thereby rendering the entity liable under § 1983:
The first is where the appropriate officer or entity promulgates a
generally applicable statement of policy and the subsequent act
complained of is simply an implementation of that policy. The
second occurs where no rule has been announced as policy but
federal law has been violated by an act of the policymaker itself.
Finally, a policy or custom may also exist where the policymaker
has failed to act affirmatively at all, [though] the need to take some
action to control the agents of the government is so obvious, and
the inadequacy of existing practice so likely to result in the
violation of constitutional rights, that the policymaker can
reasonably be said to have been deliberately indifferent to the
need.
Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007) (quoting Natale v.
Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003)).
As with a policymaker’s failure to act under circumstances that exhibit a deliberate
indifference to constitutional rights, municipal entities may be similarly liable under § 1983 if
they fail to train their employees or personnel, and such failure exhibits a “deliberate indifference
to the rights of persons” with whom they come into contact. Simmons v. City of Philadelphia,
947 F.2d 1042, 1060 (3d Cir. 1991) (citing City of Canton v. Harris, 489 U.S. 378 (1989)); see
also id. at 387 (noting “there are limited circumstances in which an allegation of a ‘failure to
train’ can be the basis for liability under § 1983.”) “Municipal liability for failure to train may
be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of
constitutional violations.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397,
407 (1997) (quotation omitted). “In addition, the existence of a pattern of tortious conduct by
inadequately trained employees may tend to show that the lack of proper training . . . is the
moving force behind the plaintiff's injury.” Id. at 407-08.
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Here, Plaintiff has not identified any policy or custom that caused his injuries, nor has he
set forth any factual allegations that would support a § 1983 claim premised on a failure to train.
As with his § 1985 claims, Plaintiff has only offered the bare assertion that “Defendant [Board]
failed to properly train its Administration and employees concerning the proper procedure for
taking, investigating, and resolving complaints of employees concerning serious issues.”
(Compl. ¶ 36.) None of the facts in Plaintiff’s Amended Complaint support this contention.
Plaintiff has alleged nothing to suggest that a deficient training program existed, that the Board
was on notice that a new training program was necessary, or that the Board continued adhering
to an approach to training which they knew, or should have known, had failed to prevent tortious
conduct by employees in the past. See Bd. of Cnty. Comm’rs, 520 U.S. at 407. In light of
Plaintiff’s mere conclusory allegation that Defendant Board failed to train its employees,
Defendants’ Motion to Dismiss Plaintiff’s § 1983 claim against Defendant Board will be granted,
and that portion of Count I will be dismissed from the Amended Complaint.
2.
Plaintiff’s § 1983 Claim against the Individual Defendants
Plaintiff also seeks to hold Defendants Anderson, Rohrman, and Quinlan liable under §
1983, alleging their actions in terminating Plaintiff in retaliation for his complaints were in
violation of his First Amendment rights. See U.S. Const. amend. I.6 “A public employee has a
6
Plaintiff claims Defendants violated his right to Free Speech and his Right to Petition. (Compl. ¶ 35.) While this
claim potentially encompasses two distinct rights under the First Amendment, that Plaintiff has only alleged that
Defendants retaliated against him for engaging in protected speech. (See id. ¶ 37.) To the extent that Plaintiff states
a claim under the First Amendment, the Court construes it as encompassing a First Amendment retaliation claim.
See McKee v. Hart, 436 F.3d 165, 169 (3d Cir. 2006) (“[I]n certain circumstances, a public employee may bring a
cause of action alleging that his or her First Amendment rights were violated by retaliatory harassment for the
employee's speech about a matter of public concern even if he or she cannot prove that the alleged retaliation
adversely affected the terms of his or her employment.”) (citing Suppan v. Dadonna, 203 F.3d 228, 234–35 (3d Cir.
2000)). To state a claim under the Petition Clause of the First Amendment, Plaintiff would need to assert that
Defendants retaliated against Plaintiff for filing an actual lawsuit, which he has not done. See Brennan v. Norton,
350 F.3d 399, 417 (3d Cir. 2003) (citing San Filippo v. Bongiovanni, 30 F.3d 424, 434-35 (3d Cir. 1994)).
13
constitutional right to speak on matters of public concern without fear of retaliation.” Baldassare
v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001) (citations omitted).
In order to properly state a First Amendment retaliation claim, and survive a motion to
dismiss, “a plaintiff must allege two things: (1) that the activity in question is protected by the
First Amendment, and (2) that the protected activity was a substantial factor in the alleged
retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citing
Phyllis Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)). “The first factor is a question
of law; the second factor is a question of fact.” Borough of Kutztown, 455 F.3d at 241 (citing
Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.2004)).
Plaintiff can prove that his speech was protected activity by showing that: (1) in making
it, Plaintiff spoke as a citizen, (2) the statement involved a matter of public concern, and (3)
Plaintiff’s employer did not have “an adequate justification for treating the employee differently
from any other member of the general public” as a result of the statement he made. Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006). Plaintiff did not speak “as a citizen” if he made a statement
“pursuant to [his] official duties.” Id. at 421. Additionally, “[w]hether an employee's speech
addresses a matter of public concern must be determined by the content, form, and context of a
given statement, as revealed by the whole record.” Rankin v. McPherson, 483 U.S. 378, 384
(1987) (quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983)).
Plaintiff’s Amended Complaint does not indicate whether his various reports and
complaints were part of his official duties, so the Court will read the Amended Complaint to
allege that he was speaking as a citizen. See Borough of Kutztown, 455 F.3d at 242 (noting the
deferential standard applied on a Rule 12(b)(6) motion). Nor can the Court determine, without
further development of the record, whether the putative “protected speech”—allegations of
14
falsification of training documents, mismanagement of funds, illegal waste dumping and the
improper touching of a student by a school employee—involved a matter of public concern. See
Brennan, 350 F.3d at 412 (“A public employee's speech involves a matter of public concern if it
can be fairly considered as relating to any matter of political, social or other concern to the
community. … [S]peech may involve a matter of public concern if it attempts to bring to light
actual or potential wrongdoing or breach of public trust on the part of government officials.”)
(internal quotation marks and citations omitted) (citing Baldassare, 350 F.3d at 195; Connick,
461 U.S. at 148).7 Based only on the allegations in the Amended Complaint, the Court finds that
these issues could all properly be considered matters of public concern.8 Similarly, the Court
cannot resolve at this time whether any of the individual Defendants “had an adequate
justification for treating the employee differently from any other member of the general public”
by restricting Plaintiff’s speech. Garcetti, 547 U.S. at 418. For these reasons, the Court finds
that Plaintiff has adequately pleaded his speech was protected by the First Amendment. See
Borough of Kutztown, 455 F.3d at 241.9
However, to the extent that Plaintiff wishes to rely on his allegations concerning seeking “whistleblower
protection” against Defendant Quinlan, (see Compl. ¶ 15), advising Defendants that he could not report to work due
to “stress-induced headaches” in December 2011, (see id. ¶ 27), and complaining to Defendant Rohrman about
Defendant Quinlan’s alleged harassment in December 2011, (see id. ¶ 30), the Court finds that these are not
evidently matters of public concern. Rather, these issues appear to involve Plaintiff’s private concerns, as they
solely relate to Plaintiff’s personal grievances and issues in the workplace. See Brennan, 350 F.3d at 412 (“If the
speech in question is purely personal, it does not fall under the protective umbrella of the First Amendment and
public employers are therefore not limited by that guarantee in responding to disruption caused by the expression.”)
(citing Connick, 461 U.S. 138). There is no indication that these issues relate to “any matter of political, social or
other concern in the community,” and thus the Court will not consider them for purpose of this claim. Baldassare,
250 F.3d at 195.
7
8
See also infra at Part III.B for discussion of violations of public policy under the Pierce framework, which include
similar considerations.
Defendants assert that the defense of qualified immunity necessitates the dismissal of Plaintiff’s § 1983 and § 1985
claims, which may be considered on a motion to dismiss. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)
(“Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the commencement of discovery.”) “The doctrine of qualified
immunity protects government officials from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have known.” Ray v. Twp.
9
15
Next, the Court addresses whether Plaintiff has sufficiently alleged that his protected
conduct was a substantial factor in the supposed retaliatory action. See id.; see also Brennan,
350 F.3d at 414. The essence of Plaintiff’s constitutional claim is that Defendants Quinlan,
Rohrman, and Anderson engaged in various forms of conduct in retaliation for his filing
complaints concerning the falsification of boiler training documents, the mismanagement of
funds, the illegal dumping of waste, and the inappropriate actions of Plaintiff’s co-worker with
respect to three female students.
a.
Plaintiff’s § 1983 Claim against Defendant Anderson
The primary factual contention in the Amended Complaint ostensibly connecting
Defendant Anderson to Plaintiff’s alleged constitutional violations relates to Defendant
Anderson’s recommendation to Defendant Board that Plaintiff be terminated in early 2012. (See
Compl. ¶ 33.) Though he alleges that Defendant Anderson also warned Plaintiff in 2010 to stop
making allegations against his co-worker, (see id. ¶ 17),10 there is no apparent connection
between this warning and Defendant Anderson’s decision to recommend Plaintiff’s termination.
Nearly one and one-half years had passed since this alleged warning, and Plaintiff specifically
of Warren, 626 F.3d 170, 173 (3d Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223 (2009)). If a reasonable
state actor is not on notice that his or her conduct under the circumstances is clearly unlawful, then application of
qualified immunity is appropriate. Id. “Qualified immunity protects all but the plainly incompetent or those who
knowingly violate the law.” Id.
The Supreme Court has established a two-part analysis to determine if qualified immunity is appropriate: (1)
whether the official’s conduct violated a constitutional or federal right; and (2) whether the right at issue was
“clearly established” at the time of defendant’s alleged misconduct. Pearson, 555 U.S. at 232. Because it appears
that the federal right Plaintiff contends was violated was clearly established, the Court declines to conclude at this
time that the Defendants are entitled to qualified immunity as a matter of law. See Baldassare, 250 F.3d at 201
(citing cases).
10
As the only such warning coming from Defendant Anderson alleged by Plaintiff, the Court finds that this alone
was at most a de minimis retaliatory act, if it were even considered such an act, akin to a verbal reprimand or
criticism. See Brennan, 350 F.3d at 419 (Noting that “courts have declined to find that an employer's actions have
adversely affected an employee's exercise of his First Amendment rights where the employer's alleged retaliatory
acts were criticism, false accusations, or verbal reprimands.”)
16
contends that his reporting of Defendant Quinlan’s retaliatory conduct for Plaintiff’s complaints
regarding the falsification of training documents and illegal waste dumping to Defendant
Rohrman precipitated the decision to terminate him. (See id. ¶¶ 31-32; see also Brennan, 350
F.3d at 420 (noting that where a significant delay exists between the expressive activity and the
retaliation, Plaintiff must demonstrate continuing hostility to connect otherwise seemingly
unrelated events).) Plaintiff offers no other facts connecting Defendant Anderson’s decision to
recommend Plaintiff’s termination and Plaintiff’s protected conduct. See id. (“Although the nine
month gap here between expression and alleged retaliation is not, by itself, sufficient to preclude
an inference of causation, there is nothing other than [Plaintiff’s] claim of causation to connect
the two.”) In fact, Plaintiff presents no information suggesting Defendant Anderson was aware
of any ill motive behind Defendants Quinlan’s and Rohrman’s decision to recommend his
termination to Defendant Anderson in the first place. (See id. ¶¶ 31-33.)
Notably, Plaintiff also alleges that he had been repeatedly reported the falsification of
training documents, mismanagement of funds, illegal waste disposal, and co-worker behavior
issues from as early as November 2005. (See id. ¶¶ 3, 8, 14, 16.) Despite his numerous reports
during the nearly six and one-half years covered in Plaintiff’s Amended Complaint, Plaintiff has
failed to allege facts suggesting that Defendant Anderson engaged in any retaliatory conduct as a
result of Plaintiff’s protected activities. Even drawing all possible inferences in Plaintiff’s favor,
the Court does not find that he adequately pleaded a § 1983 claim against Defendant Anderson.
As such, Defendants’ Motion to Dismiss Plaintiff’s § 1983 claim as it relates to Defendant
Anderson will be granted, and that claim against Defendant Anderson in Count I will be
dismissed from the Amended Complaint.
17
b.
Plaintiff’s § 1983 Claim against Defendants Rohrman and Quinlan
Plaintiff sets forth several allegations pertaining to Defendant Quinlan’s alleged
retaliatory conduct. He contends that Defendant Quinlan began retaliating against Plaintiff for
his complaints about the falsification of boiler training documents soon after Plaintiff first
reported the issue to Quinlan in November 2005, (see id. ¶ 5), and Defendant Quinlan’s
harassment continued for years. (Id. ¶¶ 9, 15.) In December 2010 Defendant Quinlan also
allegedly began issuing disciplinary notices to Plaintiff for failing to perform tasks, despite the
fact Plaintiff “had performed his job thoroughly,” (id. ¶ 22), and continued to retaliate against
Plaintiff for his various complaints via “harassment.” (Id. ¶ 23.) Plaintiff also claims that when
he returned to work from his brief medical absence in December 2011, Defendant Quinlan
continued to harass Plaintiff, and issued him “bogus disciplinary actions.” (Id. ¶ 30). Finally,
Plaintiff states that Defendants Quinlan and Rohrman recommended Plaintiff’s termination after
Plaintiff once more reported Defendant Quinlan’s retaliatory conduct. (See id. ¶¶ 31-32.) The
Court finds one could reasonably infer that the alleged harassment of Plaintiff, the issuance of
unfounded disciplinary notices, and the recommendation to terminate Plaintiff from his job, all
made at the hand of Defendant Quinlan, were motivated by Plaintiff’s protected conduct.
Therefore, the Court concludes that Plaintiff has sufficiently pleaded a § 1983 claim for First
Amendment retaliation against Defendant Quinlan, and Defendants’ Motion to Dismiss that
portion of Count I of Plaintiff’s Amended Complaint will be denied.
Plaintiff has far fewer allegations pertaining to Defendant Rohrman, but the Court
considers them sufficient to state a claim for retaliation. In his Amended Complaint Plaintiff
alleges that in December 2010 and January 2011 Defendant Rohrman “warned Plaintiff not to
speak to anyone of [Plaintiff’s] accusations against his co-worker again or he would be subject to
18
discipline.” (Id. ¶ 20.) Later, in December 2011, Plaintiff alleges Defendant Rohrman directed
Plaintiff to undergo a psychiatric evaluation after Plaintiff advised Defendants he was unable to
report to work due to “stress-induced headaches.” (Id. ¶¶ 27-29.) Plaintiff claims Defendant
Rohrman “forwarded a notice dated December 9, 2011 advising Plaintiff that he was ‘suspended
without pay … pending the results of a fitness for duty evaluation.’” (Id. ¶ 28.) He also claims
that Defendant Rohrman’s requirement that Plaintiff undergo a psychiatric evaluation was in
retaliation for not only “requesting a brief medical leave of absence,” but also “in further
retaliation for making the complaints regarding the falsification of boiler training documents,
illegal waste dumping and inappropriate behavior toward students.” (Id. ¶ 29.) While more
thread-bare than Plaintiff’s claim against Defendant Quinlan, the Court finds Plaintiff’s
allegation concerning the initial threat by Defendant Rohrman sufficient to support the later
inference that Defendant’s Rohrman’s decision to order a psychiatric evaluation was retaliatory
in motive. Plaintiff also asserts that he complained to Defendant Rohrman in December 2011
about Defendant Quinlan’s alleged harassment, and that “[Defendant] Quinlan and [Defendant]
Rohrman subsequently recommended Plaintiff’s termination to [Defendant] Anderson.”) (Id. ¶¶
31-32.) Initially, the Court notes that Plaintiff’s complaint to Defendant Rohrman regarding
Defendant Quinlan’s alleged harassment was not protected conduct, and cannot be the basis for
Plaintiff’s retaliation claim.11 However, taken in conjunction with Defendant Rohrman’s prior
alleged threat to subject Plaintiff to discipline if he continued to make certain complaints, the
Court considers this series of events further, if not tenuous, support for Plaintiff’s claim.
11
See supra note 7.
19
Because Plaintiff has alleged sufficient factual matter to state a § 1983 claim for First
Amendment retaliation against Defendant Rohrman, the Court will deny Defendants’ Motion to
Dismiss that portion of Count I against him in the Amended Complaint.
B.
Plaintiff’s Pierce Claim (Count II)
Plaintiff alleges that Defendants unlawfully retaliated against him for lodging various
work-related complaints, ultimately resulting in his termination, in violation of Pierce v. Ortho
Pharmaceutical Corp., 84 N.J. 58 (1980). (Compl. ¶ 45.) As an initial matter, because Plaintiff
is only able to maintain a Pierce cause of action against his employer and not against individual
employees, the Court will dismiss this claim as to Defendants Quinlan, Rohrman, and Anderson
with prejudice. See O’Lone v. New Jersey Dep’t of Corr., 313 N.J. Super. 249, 256 (App. Div.
1998).
As for Plaintiff’s claim against Defendant Board, a Pierce common law wrongful
discharge claim allows an at-will employee to sue under a wrongful termination claim when his
or her discharge was contrary to a clear mandate of public policy. To establish a case for
common law wrongful discharge, the employee must identify the clear mandate of public policy
and that the discharge itself was in violation of that public policy. Tartaglia v. UBS
PaineWebber Inc., 197 N.J. 81, 109 (2008); MacDougall v. Weichert, 144 N.J. 380, 391 (1996).
With respect the first requirement, that the employee must identify the clear mandate of
public policy, the Court’s analysis is similar to that of the first prong of a CEPA claim, discussed
infra in Part III.C. See Mehlman v. Mobil Oil Corp., 153 N.J. 163, 180 (N.J. 1998). Public
policy sources can include “legislation[,] administrative rules, regulations or decisions[,] . . .
judicial decisions[, and] [i]n certain instances, a professional code of ethics.” Pierce, 84 N.J. at
20
72. Absent legislation, the courts are to define the cause of action in “case-by-case
determinations.” Id.
Despite his highly generalized allegations, the Court finds that Plaintiff pled sufficient
facts such that it can identify “clear mandates of public policy” that Plaintiff reasonably believed
were being violated by certain conduct. See Mehlman, 153 N.J. at 187, 193 (noting that “the
determination whether the plaintiff adequately has established the existence of a clear mandate of
public policy is an issue of law” and stating that individual need not have “[s]pecific knowledge
of the precise source of public policy”). For example, Plaintiff complained about the
falsification of training records regarding boilers in the school and the illegal dumping of waste,
as well as the alleged inappropriate actions of an adult co-worker towards a student. The Court
finds that these allegations implicate public safety and health concerns addressed by federal and
state statutes. See, e.g., the Occupational Health and Safety Act of 1970, 29 U.S.C. §§ 651 et
seq., the New Jersey Worker Health and Safety Act, N.J. Stat. Ann. §§ 34:6A-1 et seq., the New
Jersey Public Employees’ Occupational Safety and Health Act, N.J. Stat. Ann. §§ 34:6A-25 et
seq., and the New Jersey Code of Criminal Justice §§ 2C-14-1 et seq.12 Additionally, Plaintiff’s
allegations concerning the illegal dumping of waste and the improper conduct towards a student
may also implicate state criminal statutes. See, e.g., the New Jersey Code of Criminal Justice §§
2C-14-1 et seq. And, his complaint that certain employees were performing work without the
requisite Black Seal license implicates New Jersey’s statutory and regulatory scheme regarding
individuals working with boilers. See N.J. Stat. Ann. §§ 34:7-1 et seq.; N.J. Admin. Code §§
The Court notes, however, that Plaintiff’s allegation concerning Defendant Quinlan’s mismanagement of funds is
still too vague for the Court to determine the relevant mandate of public policy or applicable criminal law. The
Court is unable to conclude, without greater specificity, whether “failing to set the schedule of maintenance workers
in such a way that reduced the need to continually pay certain workers overtime,” rises to the level of fraudulent or
criminal activity, or whether it implicates a clear mandate of public policy. Accordingly, the Court will not inquire
into this specific complaint any further.
12
21
12:90 et seq.13 Thus, Plaintiff has adequately pleaded the first element of his Pierce claim
against Defendant Board.
The second Pierce requirement, that Plaintiff’s discharge was in violation of the public
policy at issue, requires “an expression by the employee of a disagreement with a corporate
policy, directive, or decision based on a clear mandate of public policy derived from one of the
[public policy] sources . . . identified in Pierce.” Tartaglia, 197 N.J. at 109. Also required is a
“sufficient expression” of that disagreement “to support the conclusion that the resulting
discharge violates the mandate of public policy and is wrongful.” Id. An actual or threatened
complaint to an external agency or body is not required, though it would “ordinarily be sufficient
means of expression.” Id. A direct complaint to senior corporate management would also most
likely suffice. Id. On the other hand, a “passing remark to co-workers” will not, nor will a
complaint to an immediate supervisor. Id.
Here too, Plaintiff has pled sufficient facts to satisfy the second Pierce requirement.
Specifically, Plaintiff states that he complained to Defendants Rohrman and Anderson, as well as
Human Resources Director Heaton, concerning the alleged falsification of boiler training
documents and the illegal waste disposal. (Compl. ¶¶ 8, 14.) Thereafter Plaintiff also allegedly
reported the falsification of boiler training documents and the illegal waste disposal issues to
both the Cape May County Superintendent’s Office and the New Jersey Office of Fiscal
Accountability and Compliance, (id. ¶ 19), as well as to the “Prosecutor’s Office.” (Id. ¶ 21.)
Plaintiff claims he also reported the alleged inappropriate actions of his co-worker to Defendants
N.J. Admin. Code § 12:90-3.3 (stating that “[a]ny person operating . . . [a]ny steam boiler, steam generator, hot
water boiler for service over 250 degrees Fahrenheit” “shall have the appropriate license as specified in [§§] 12:903.4 through 3.8.”); id. § 12:90-8.3 (stating that a “black seal” license “shall identify a boiler operator”); id. § 12:908.4 (setting forth the requirements necessary to be eligible for “a boiler operator’s black seal license”).
13
22
Anderson and Rohrman, (id. ¶ 16), as well as to the Cape May County Prosecutor’s Office. (Id.
¶ 18.) While it is unclear from the allegations what the specific hierarchy within the school
district was, based on Plaintiff’s assertions that he complained not only to the Director of Human
Resources and a “Business Administrator/Board Secretary,” but also to the Superintendent of
Wildwood Public Schools, the Court finds that Plaintiff has included allegations sufficient to
infer that he made complaints to “senior corporate management,” Tartaglia, 197 N.J. 109, such
that Plaintiff alleged the “sufficient expression” of disagreement necessary to state a common
law claim for wrongful discharge. Id. Moreover, Plaintiff has alleged that he complained to an
outside prosecutor’s office and the Cape May County Superintendent’s Office concerning
several of the issues he raised, adding further support to his claim that his termination violated a
clear mandate of public policy. Id. at 108.
Because Plaintiff has adequately pled the two requirements for a Pierce claim against
Defendant Board, Defendants’ Motion to Dismiss will be denied as to Count II against
Defendant Board.
C.
Plaintiff’s CEPA Claim (Count III)14
In relevant part, CEPA prohibits an employer from “[r]etaliatory action” against an
employee who “[o]bjects to, or refuses to participate in any activity, policy, or practice which the
employee reasonable believes: (1) is in violation of a law, or a rule or regulation promulgated
14
Although the parties have not raised this issue, the Court notes that CEPA includes a waiver provision which
provides that a plaintiff cannot recover for allegedly retaliatory termination under both CEPA and the common law.
See N.J. Stat. Ann. § 34:19-8. This Court and other district courts have held, however, that a plaintiff does not
waive his common law claim by filing a CEPA claim because the decision between a CEPA and common law
course of action is to be made after the completion of discovery. See Brangan v. Ball Plastic Container Corp., No.
11-5470, 2012 WL 1332663, at *6 (D.N.J. Apr. 17, 2012) (stating that “though Plaintiff cannot ultimately proceed
under both claims, Plaintiff does not have to make that election at this point in the proceedings”); Broad v. Home
Depot U.S.A., Inc., No. 14-771, 2014 WL 1607375, at *3 (D.N.J. Apr. 22, 2014) (“the CEPA waiver does not attach
until after the completion of discovery”). Accordingly, the Court’s consideration of both Plaintiff’s Pierce and
CEPA claims is proper.
23
pursuant to law . . . (2) is fraudulent or criminal . . . or (3) is incompatible with a clear mandate
of public policy . . . .” N.J. Stat. Ann. § 34:19-3(c)(1)-(3).15
To state a prima facie case under CEPA, a plaintiff must allege that: (1) he objected to,
or refused to participate in an activity, policy, or practice which he reasonably believed violated
either a law, rule, or regulation, was fraudulent or criminal, or violated a public policy; (2) he
performed a “whistle-blowing” activity as described in § 34:19-3(c); (3) an adverse employment
action was taken against him; and (4) a causal connection existed between his whistle-blowing
activity and the adverse employment action. Dzwonar v. McDevitt, 177 N.J. 451, 462 (N.J.
2003). Further, when bringing an action under § 34:19-3(c), a plaintiff “must identify a statute,
regulation, rule, or public policy that closely relates to the complained-of conduct.” Id. The
15
CEPA explicitly applies liability to “employers” which is defined as:
any individual, partnership, association, corporation or any person or group of persons acting directly or
indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all
branches of State Government, or the several counties and municipalities thereof, or any other political
subdivision of the State, or a school district, or any special district, or any authority, commission, or board
or any other agency or instrumentality thereof.
N.J. Stat. Ann. § 34:19-2(a). This Court has previously held that defendants can be held individually liable under
CEPA if they are a “person or group of persons acting directly or indirectly on behalf of or in the interest of an
employer with the employer’s consent.” Palladino v. VNA of S. N.J., Inc., 68 F. Supp. 2d 455, 474 (D.N.J. 1999);
see also Espinosa v. Continental Airlines, 80 F. Supp. 2d 297, 306 (D.N.J. 2000). “Supervisors are such individuals
who act on behalf of the employer with the employer’s consent, and are defined by CEPA as:
any individual with an employer’s organization who has the authority to direct and control the work
performance of the affected employee, who has authority to take corrective action regarding the violation
of the law, rule or regulation of which the employee complains, or who has been designated by the
employer on the notice required under section 7 of this act.
Bowen v. Parking Auth. of City of Camden, No. 00-5765, 2003 WL 22145814, at *22 (D.N.J. Sept. 18, 2003)
(citing § 34:19-2(d)). Here, although Plaintiff seeks to hold Defendants Rohrman and Anderson liable under CEPA,
he has not pled that they qualify as supervisors under the Act, nor has he set forth any allegations that make it more
plausible than not that they constitute “person[s] or [a] group of persons acting directly or indirectly on behalf of or
in the interest of [the Board] with the [Board’s] consent.” Palladino, 68 F. Supp. 2d at 474. As for Defendant
Quinlan, although Plaintiff alleges that Defendant Quinlan was his supervisor, and assigned him certain tasks while
issuing him Disciplinary Notices for allegedly not completing those tasks, (Compl. ¶¶ 2, 5, 22), he does not allege
that Defendant Quinlan acted on behalf of Defendant Board or with the Board’s consent. Nor does Plaintiff allege
that Defendants Rohrman, who was the “Business Administrator/Board Secretary,” or Defendant Anderson, the
Superintendent, were acting on behalf of Defendant Board or with its consent with respect to the few allegations
submitted against each of them. (See id. ¶¶ 17, 20, 28-29, 31-33.) Accordingly, Plaintiff’s CEPA claim will be
dismissed as to Defendants Rohrman, Quinlan, and Anderson.
24
recognized sources of public policy within the ambit of subsection (c)(3) “include state laws,
rules and regulations.” Turner v. Associated Humane Societies, Inc., 396 N.J. Super. 582, 593
(App. Div. 2007) (citations omitted). “Therefore, a plaintiff who pursues a CEPA claim under
subsection (c)(3) may rely upon the same laws, rules and regulations that may be the subject of a
claim under subsection (c)(1).” Id. (internal quotation marks, alterations, and citations
omitted).16
CEPA is remedial legislation, intended to “encourage employees to speak up about
unsafe working conditions that violate the law or public policy . . . .” Donelson v. DuPont
Chambers Works, 206 N.J. 243, 255-56 (2011); see also Barratt v. Cushman & Wakefield of
N.J., Inc., 144 N.J. 120, 127 (1996). As such, CEPA should be construed liberally to achieve its
goal. Dzwonar, 177 N.J. at 463.
Plaintiff alleges that he reported practices that “were criminal and/or incompatible with a
clear mandate of public policy concerning the public health, safety, welfare or protection of the
environment.” (Compl. ¶ 49.) This conduct included: falsifying boiler training records, and
indicating that Plaintiff trained another employee on the procedures for checking the boilers
when, in fact, he did not; the mismanagement of funds, vis-à-vis, failing to set the schedule of
maintenance workers in such a way that reduced the need to continually pay certain workers
Based on Plaintiff’s allegation that Defendants violated CEPA by “retaliating against the Plaintiff for reporting
conduct which he reasonably believed were criminal and/or incompatible with a clear mandate of public policy
concerning the public health, safety, welfare or protection of the environment,” the Court construes Plaintiff’s CEPA
claim as falling under subsections (c)(2) and (c)(3). Even if the Court walked through an analysis of each CEPA
subsection, however, the Court’s application of subsection (c), rather than subsections (a) and (b), would still be
proper. Simply, because Plaintiff only alleges misconduct by Defendant Quinlan, his supervisor, and not his
employer, subsections (a) and (b) are inapplicable. See Smith v. TA Operating LLC, No. 10-2563, 2010 WL
3269980, at *4 (D.N.J. Aug. 17, 2010) (citing Higgins v. Pasack Valley Hosp., 158 N.J. 404, 419 (1999) (stating
that “the New Jersey Supreme Court found that employees who object to or report the misconduct of a co-worker do
not come within the purview of subsections (a) and (b) which limit CEPA’s application to policies, practices and
activities “of” or “by” the employer”)).
16
25
overtime; the performance of work by individuals who did not hold Black Seal licenses; the
illegal dumping of waste; and inappropriate conduct toward a student. (Id. ¶¶ 2, 4, 10, 12-13.)
As discussed supra in Part III.B, when viewing the Amended Complaint in the light most
favorable to the Plaintiff, the Court finds that Plaintiff adequately pled sufficient facts such that
the Court was able to identify “clear mandates of public policy” that Plaintiff reasonably
believed was being violated by certain conduct. See Mehlman, 153 N.J. at 187, 193. As such,
the Court finds that Plaintiff sufficiently alleged the first two elements of a CEPA claim—i.e.,
that he objected to a practice that he reasonably believed violated a public policy, and performed
a whistle-blowing activity by reporting this conduct. The Court also finds that Plaintiff
sufficiently alleged the third element of a CEPA claim by alleging that he was suspended and
subsequently terminated from his employment. See § 34:19-2(e) (adverse employment action
includes “suspension” and “termination”); (Compl. ¶¶ 28, 33.) Finally, the Court will turn to the
fourth CEPA element: whether Plaintiff has alleged a causal connection between the whistleblowing activity and the adverse employment action.
In evaluating whether a causal connection exists, “courts look to correlative federal law
to supply the relevant standards for evaluating” a retaliatory discharge claim under New Jersey
law. Morris v. Siemens Components, Inc., 928 F. Supp. 486, 493 (D.N.J. 1996) (citing Abrams
v. Lightolier Inc., 50 F.3d 1204, 1212 (3d Cir.1995)). “Federal courts have held that in order to
establish causation, a plaintiff usually must allege either ‘(1) an unusually suggestive temporal
proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of
antagonism coupled with timing . . . .’” Davis v. Supervalu, Inc., No. 13-414, 2013 WL
1704295, at *5 (D.N.J. Apr. 19, 2013) (stating that although the court was presented with the
plaintiff’s common law wrongful discharge claim on a motion to dismiss, and thus the parties
26
had not yet had “the opportunity to conduct discovery or establish a record,” plaintiff was still
required to allege some factual basis to support her claim that she was discharged in violation of
public policy because she filed a workers’ compensation claim) (citing Lauren W. ex rel. Jean
W. v. DeFlaminis, 480 F.3d 259, 297 (3d Cir. 2007)); see also Calabria v. State Operated Sch.
Dist. for City of Paterson, No. 06-6256, 2008 WL 3925174, at *6 (D.N.J. Aug. 26, 2008) (in
evaluating the causation prong of CEPA, noting that “[t]he Third Circuit has focused on the
timing of the retaliatory action and any evidence of ongoing antagonism”).
Here, Plaintiff alleges that in 2005, after he complained to Defendant Quinlan about
falsification of boiler records, and “in the years following,” Defendant Quinlan constantly
harassed Plaintiff about his work. (Compl. ¶¶ 2-5, 9.) Around that time Plaintiff also claims to
have reported the falsification of records to Defendants Rohrman and Anderson, but no
harassment on their part is alleged. (Id. ¶¶ 6, 8.)17 When Plaintiff made new complaints of
illegal waste dumping in 2010 at a union meeting and later to Defendant Anderson, he apparently
continued to suffer harassment by Defendant Quinlan. (Id. ¶¶ 10-12, 14-15.) Plaintiff also
complained about the inappropriate conduct of a co-worker towards students in 2010. (Id. ¶ 13.)
During late 2010 and January 2011 Defendants Anderson and Rohrman purportedly instructed
Plaintiff to stop making such complaints, and Defendant Rohrman specifically warned Plaintiff
that he would be subject to discipline if he did not cease speaking to others about the allegations
against his co-worker. (Id. ¶¶ 16-17, 20.) Plaintiff also asserts, without any temporal specificity,
that he reported his co-worker to the Cape May County Prosecutor’s Office, (id. ¶ 18), and
reported the falsification of documents and the illegal dumping to the Cape May County
Plaintiff generally asserts that he “continued to report the falsification of training documents to others including
[Defendant] Anderson.” (Compl. ¶ 8.) While the allegation is ambiguous as to timing, the Court construes this
whistle-blowing activity as having occurred around the time or shortly after Plaintiff’s original 2005 complaints to
Defendants Quinlan and Rohrman, but no later than 2010.
17
27
Superintendent’s Office, the New Jersey Office of Fiscal Accountability and Compliance, and a
prosecutor’s office “during this timeframe.” (Id. ¶¶ 19, 21.)
In late 2011, Plaintiff left work for a number of days due to medical issues and in
December of that year “advised Defendants that he was unable to report to work due to ‘stress
induced headaches.’” (Id. ¶¶ 26-27.) In response, Defendant Rohrman “forwarded a notice
dated December 9, 2011, advising Plaintiff that he was ‘suspended with pay . . . pending the
results of a fitness for duty evaluation.’” (Id. ¶ 28.) When Plaintiff returned to work in
December 2011, Defendant Quinlan allegedly continued to harass him, which led Plaintiff to
complain to Defendant Rohrman about Defendant Quinlan’s ongoing harassment in retaliation
for Plaintiff’s activities reporting the falsification of documents and illegal wasted dumping. (Id.
¶¶ 30-31.) Thereafter, Defendants Quinlan and Rohrman apparently recommended Plaintiff’s
termination to Defendant Anderson, who in turn recommended Plaintiff’s termination to
Defendant Board, and Plaintiff was notified by letter dated February 21, 2012, “that he was
terminated effective in thirty (30) days.” (Id. ¶¶ 32-33.)
Although Plaintiff pled that he was subjected to two adverse employment actions, he
failed to connect these actions to his whistle-blowing activity, which he had concluded by
December 2010, one year prior to the first adverse employment action, his December 2011
suspension. (See id. ¶ 16 (alleging Plaintiff’s last whistle-blowing activity associated with a
specified date).) Plaintiff makes general allegations that he was subjected to harassment by
Defendant Quinlan, and a conclusory allegation that Defendant Rohrman’s involvement in
ordering Plaintiff undergo a psychiatric evaluation was in retaliation for certain whistle-blowing
activities. Yet, the absence of temporal proximity between Plaintiff’s whistle-blowing activity
and his suspension and termination suggests otherwise, and fails to establish the requisite causal
28
link required to state a prima facie case under CEPA. Cf. Marracco v. Kuder, No. 08-713, 2008
WL 4192064, at *7 & n.6 (D.N.J. Sept. 9, 2008) (noting that Defendants did not contest that
Plaintiff had met element fourth of her CEPA claim where she alleged “that the adverse
employment occurred a few days after she voiced her objection to defendant”); O’Keefe v. State,
Dept. of Labor, 2007 WL 1975603, at *11 (N.J. Super. Ct. App. Div. July 10, 2007) (finding that
demotion of plaintiff a mere twenty-one days after plaintiff reported discriminatory comments
supported inference of a causal connection). There is a possible pattern of antagonism on the
part of Defendant Quinlan suggested by the Amended Complaint, but considering the nearly six
and one-half year relevant time span, and the generalized nature of Plaintiff’s assertions, the
Court cannot reasonably infer “antagonism coupled with timing” sufficient to establish
causation. See Davis, 2013 WL 1704295, at *5. Plaintiff’s allegation that he reported Defendant
Quinlan’s harassment to Defendant Rohrman in December 2011 also cannot save his claim, as
such a complaint did not directly implicate a protected activity. Despite Plaintiff’s various
amended allegations, he has failed to plead adequate facts consistent with causation to support
his CEPA claim.
Accordingly, Defendants’ Motion to Dismiss Plaintiff’s CEPA claim in the Amended
Complaint will be granted, and Count III will be dismissed against all Defendants.
Plaintiff’s NJLAD Claim (Count IV)
D.
Plaintiff alleges that the Board, as well as the individual Defendants, violated the
NJLAD. The Court will first consider Plaintiff’s claim against Defendant Board.
1.
Plaintiff’s NJLAD Claim against Defendant Board
The NJLAD prohibits an employer from discriminating in the “terms, conditions, or
privileges of employment” on the basis of a person’s disability, N.J. Stat. Ann. § 10:5-12(a),
29
“unless the handicap precludes the performance of employment.” Failla v. City of Passaic, 146
F.3d 149, 153 (3d Cir.1998) (citing § 10:5-4.1). To state a prima facie cause of action for
disability discrimination under the NJLAD, the employee must allege (1) that he was
handicapped, (2) that he was otherwise qualified to perform the essential functions of the job,
with or without the accommodation by the employer, and was performing at a level that met the
employer’s expectations, (3) that he nevertheless was fired, and (4) that the employer sought
someone to perform the same work after he left. Dicino v. Aetna U.S. Healthcare, No. 01-3206,
2003 WL 21501818, at *12 (D.N.J. June 23, 2003) (citing Muller v. Exxon Research & Eng’g
Co., 345 N.J. Super. 595, 602 (App. Div. 2001)).
Plaintiff has added a bare recitation of the NJLAD elements articulated by the Court in its
prior Opinion in an attempt to “cure the problems noted by [this] Court.” (Pl.’s Br. at 26.) He
alleges that he suffered from hypertension, of which Defendants were supposedly aware,
(Compl. ¶ 54), that he was able to perform all the duties required by his job despite his medical
condition, in a manner which would meet the reasonable requirements of any employer, (id. ¶¶
55-56), that he was terminated by Defendants because of his disability, (id. ¶ 58), and the
following his termination, Defendants hired another custodian to replace Plaintiff and perform all
of his same duties. (Id. ¶ 59.)
Despite Plaintiff’s inclusion of the elements missing from his prior Complaint, Plaintiff
has not pled factual matter to support the elements of his NJLAD claim. With respect to his
purported hypertension, Plaintiff claims that his high blood pressure was “visibly apparent from
the sudden change in Plaintiff’s physical appearance” but he has not specified to whom it was
apparent. (Id. ¶ 24.) While Plaintiff did alert Defendants that he was seeking a short medical
leave, according to Plaintiff’s own allegations he actually advised Defendants that he was
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suffering from “stress-induced headaches.” (Id. ¶ 27.) Plaintiff goes on to allege that Defendant
Rohrman’s involvement in directing that Plaintiff undergo a psychiatric evaluation was only,
with relevance to this claim, “in retaliation for requesting a brief medical leave of absence.” (Id.
¶ 29.) It is even less clear from the Amended Complaint that Plaintiff’s termination was in any
way related to his alleged actual or perceived disability. Rather, the paragraphs preceding the
description of his termination notice pay particular attention to the retaliatory motive of
Defendant Quinlan, based on Plaintiff’s prior reports of falsified training documents and illegal
waste disposal issues. (See id. ¶¶ 30-33.) Though the Court must take Plaintiff’s facts as true for
purposes of a motion to dismiss and make reasonable inferences in his favor, the Court is not
required to read facts into Plaintiff’s Amended Complaint that simply do not exist and are
necessary for purposes of stating a claim under the NJLAD. Plaintiff still bears the burden of
stating his claim in a way that makes it more plausible than not that he was discriminated against
on account of his alleged disability. Here there is no factual support, other than Plaintiff’s legal
conclusions, that Defendant Board terminated, or otherwise discriminated or failed to
accommodate Plaintiff, based on his disability.
Moreover, Plaintiff’s mere recital of the remaining elements of his NJLAD claim are
insufficient to survive a motion to dismiss. Plaintiff gives no factual support for the legal
conclusions that he was “treated differently than other custodians and subject to disparate
treatment on the basis of his disability or perceived disability,” (id. ¶ 53), or that he was
performing his work at a level that met his employers expectations, “in an acceptable manner
which would meet the reasonably requirement of any employer.” (Id. ¶ 57.) “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
31
Based on the foregoing, Defendants’ Motion to Dismiss Plaintiff’s NJLAD claim against
Defendant Board will be granted.
2.
Plaintiff’s NJLAD Claim against the Individual Defendants
Because the NJLAD “imposes liability only on ‘employers’ and not on individual
employees . . . the only way for an employee to be found individually liable under the NJLAD is
if he is involved in aiding or abetting an employer’s discriminatory conduct . . . . Accordingly,
while an employee cannot be held individually liable on his own, ‘[e]mployers and individual
supervisors can be held liable under the [NJLAD] for aiding and abetting another’s [ ]
discriminatory conduct.’” Horvath v. Rimtec Corp., 102 F. Supp. 2d 219, 228 (D.N.J. 2000)
(citing Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 126 (3d Cir. 1999)).
Plaintiff must establish three elements for an aiding and abetting claim under the NJLAD:
“(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the
defendant must be generally aware of his role as part of an overall illegal or tortious activity at
the time that he provides the assistance; (3) the defendant must knowingly and substantially
assist the principal violation.” Hurley, 174 F.3d at 127 (citations omitted).
Just as this Court held in its prior Opinion, because Plaintiff has failed to set forth any
allegations in his Amended Complaint that make it more plausible than not that Defendants
Anderson, Rohrman, and Quinlan could be held liable under the NJLAD for aiding and abetting
Defendant Board’s conduct—indeed, the terms “aiding,” “abetting,” and “conspiracy,” are
notably absent from Plaintiff’s Amended Complaint—the Court will also grant Defendants’
Motion to Dismiss Plaintiff’s NJLAD claim as to the individual Defendants. Accordingly, Count
IV of Plaintiff’s Amended Complaint will be dismissed as to all Defendants.
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E. Leave to Amend
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a
curative amendment unless such an amendment would be inequitable or futile.” Phillips, 515
F.3d at 245 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). Indeed, even when “a
plaintiff does not seek leave to amend a deficient complaint after a defendant moves to dismiss
it, the court must inform the plaintiff that he has leave to amend within a set period of time,
unless amendment would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d
103, 108 (3d Cir. 2002).
Because the Court finds that Plaintiff may be able to cure the pleading deficiencies
identified above such that amendment would not be futile, the Court will grant Plaintiff the
opportunity to seek leave to amend his Amended Complaint within fourteen days of the date of
this Opinion and accompanying Order.18, 19 Cf. Hartman v. Twp. of Readington, No. 02-2017,
However, as noted supra at Part III.B, the Court will not grant leave to amend Plaintiff’s Pierce claim against the
individual Defendants.
18
19
If Plaintiff files a Motion for Leave to Amend the Amended Complaint, he shall attach to the Motion a copy of the
proposed Second Amended Complaint, as required by Loc. Civ. R. 7.1(f).
33
2006 WL 3485995, at *3 (D.N.J. Nov. 30, 2006) (“Dismissal of a count in a complaint with
prejudice is appropriate if amendment would be inequitable or futile”).
IV.
CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss will be GRANTED IN
PART and DENIED IN PART. An appropriate Order shall issue today.
Dated: 12/23/2014__
s/ Robert B. Kugler___
ROBERT B. KUGLER
United States District Judge
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