CZAPLINSKI v. BOARD OF EDUCATION OF THE CITY OF VINELAND
OPINION FILED. Signed by Judge Joseph E. Irenas on 3/26/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 15-2045
BOARD OF EDUCATION OF THE CITY
BARRY, CORRADO, GRASSI & GIBSON, PC
By: Frank L. Corrado, Esq.
2700 Pacific Avenue
Wildwood, New Jersey 08260
Counsel for Plaintiff
METHFESSEL & WERBEL, PC
By: Jennifer M. Herrmann, Esq.
2025 Lincoln Highway
P.O. Box 3012
Edison, New Jersey 08818-3012
Counsel for Defendant
IRENAS, Senior District Judge:
Plaintiff Mary Czaplinski (“Plaintiff”) has brought suit
against Defendant Board of Education of the City of Vineland
(“Defendant”) pursuant to 42 U.S.C. § 1983, asserting that
Defendant’s termination of her employment violates her
constitutional rights to free speech.
Plaintiff now seeks a
preliminary injunction against that termination.
Having held a hearing on March 26, 2015, and having
reviewed the submissions of the parties, including Plaintiff’s
Complaint (Dkt. No. 1), Declaration (Dkt. No. 1-2), proposed
Order to Show Cause (Dkt. No. 1-3), and supporting legal brief
(Dkt. No. 1-4), as well as Defendant’s letter-brief (Dkt. No.
4), the Court finds that Plaintiff has failed to show a
likelihood of success on the merits or irreparable harm, and
Plaintiff’s request for injunctive relief will therefore be
Plaintiff Mary Czaplinski has worked as a security guard
for the Vineland School District for 12 years.
Decl., Dkt. No. 1-2 ¶ 2)
On March 5, 2015, having learned on
the news that black assailants had shot and killed a black
Philadelphia police officer, Plaintiff posted the following
comment on her private Facebook page: “Praying hard for the
Philly cop shot today by another black thug … may[be]2 all white
people should start riots and protests and scare the hell out of
(Id. ¶¶ 5-6)
In denying Plaintiff’s request for a preliminary injunction, the Court also
denies Plaintiff’s request for a temporary restraining order.
2 There does not seem to be a dispute that the word “may” in this posting was
a typographical error intended to say “maybe.” (Id. ¶ 8)
The following day, March 6, 2015, Plaintiff made two more
posts: a photograph of the slain officer with the caption “This
is what a hero looks like” at 3:57 p.m. and a comment at 6:38
p.m. stating the following:
I made a comment last night about the black thugs that
killed a philly cop . . . there are thugs of every race
. . . im just tired of race cards being played all over
the place . . . whether black, white, Mexican, Spanish,
Puerto rican, Cuban, polish, Italian, irish . . . we are
people . . . . Maybe if we all just accepted the fact
things could change.
(Id. ¶ 9)
That same evening, March 6, 2015, at 7:28 p.m., someone
using e-mail address firstname.lastname@example.org and the name
“Save VBOE” anonymously forwarded Plaintiff’s post to the
district’s superintendent Mary Gruccio and executive director of
personnel Joseph Rossi.
(Id. ¶ 10)
The e-mail included the
comment “What type of employes (sic) do you have posting ‘black
Employing racist security guards is trouble.
Diversity matters regardless of race.
The next day, March 7, 2015, an unnamed colleague and
supervisor notified Plaintiff that Mr. Rossi had placed her on
administrative leave due to “something to do with social media”
and that she should not report to work until further notice.
(Id. ¶ 11)
In response to Plaintiff’s request for details, Mr.
Rossi advised Plaintiff by e-mail that she could schedule a
hearing for March 12; that the charges against her were “Conduct
Unbecoming a Public Employee” and “Other Sufficient Causes”; and
that the matter involved a social media posting.
(Id. ¶ 13)
Plaintiff’s hearing took place on March 12, 2015, and the
next day, March 13, 2015, Mr. Rossi terminated Plaintiff’s
employment with a letter stating the following grounds:
Your offensive and inflammatory remark is troubling for
any person but it is especially inappropriate and
disconcerting for a public school security officer.
School personnel are entrusted to use training,
judgment, and commitment to fairness to diffuse, resolve
violations, safety concerns, and other day-to-day events
which might otherwise compromise student learning and
Vineland is a very diverse school district of more than
Your statement calls into question your
effectiveness, going forward, as an unbiased arbiter of
student or staff misbehavior or other incidents which
call upon impartial judgment including respect and
tolerance for diversity.
During our hearing you
remarked, ‘Even the black kids like me,’ as if you felt
the need to characterize students.
A security officer engages in daily corrective action to
help guide young people by justly and fairly evaluating
situations and applying district policies/procedures.
Your pronouncement has greatly jeopardized your ability
to effectively conduct the business of public school
safety and security because it reasonably calls into
question the basis of your decision-making.
(Id. at Ex. J-1)
Plaintiff received Mr. Rossi’s letter, along with a Final
Notice of Discipline terminating her employment, on March 16,
(Id. ¶ 19)
Plaintiff disputes that her comments affect
her ability to do her job and alleges that her termination
violates her constitutional rights to free speech.
(Id. ¶¶ 20-
She now seeks preliminary injunctive relief enjoining
Defendant’s termination of her employment, which takes effect
March 27, 2015.
“A preliminary injunction is an extraordinary remedy never
awarded as of right.”
Groupe SEB USA, Inc. v. Euro-Pro
Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).
“Awarding preliminary relief, therefore, is only appropriate
‘upon a clear showing that the plaintiff is entitled to such
Id. (quoting Winter, 555 U.S. at 22).
seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.”
Id. (quoting Winter, 555 U.S. at 20).
“[I]f the record does not at least support a finding of
both irreparable injury and a likelihood of success on the
merits, then preliminary injunctive relief cannot be granted.”
Heath v. Whipple, No. CIV.A. 13-282 ERIE, 2013 WL 6881764, at *2
(W.D. Pa. Dec. 31, 2013) (citing Marxe v. Jackson, 833 F.2d 1121
(3d Cir. 1987)).
Here, Plaintiff has failed to show that she is entitled to
a preliminary injunction, because she has failed to show either
that she is likely to succeed on the merits of her case or that
she will suffer irreparable harm if an injunction is denied.
a. Success on the Merits
“To state a claim under § 1983, plaintiffs must show that
the defendant, under the color of state law, deprived them of a
federal constitutional or statutory right” and “retaliation for
the exercise of constitutionally protected rights . . . is
itself a violation of rights secured by the Constitution
actionable under section 1983.”
Miller v. Mitchell, 598 F.3d
139, 147 (3d Cir. 2010) (internal citations and quotation marks
To obtain a preliminary injunction in a case alleging
retaliation under § 1983, a plaintiff must prove a “reasonable
probability that [her] retaliation claims will succeed on the
merits” by showing that she engaged in constitutionally
protected activity, that the government responded with
retaliation and that the protected activity caused the
The protections of the First Amendment differ for public
employees than for private citizens.
A government employee
“must accept certain limitations on his or her freedom,” because
“[g]overnment employers, like private employers, need a
significant degree of control over their employees' words and
actions” in order to maintain “the efficient provision of public
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)
(internal citations and quotation marks omitted).
“At the same
time,” however, “a citizen who works for the government is
nonetheless a citizen” and “[s]o long as employees are speaking
as citizens about matters of public concern, they must face only
those speech restrictions that are necessary for their employers
to operate efficiently and effectively.”
In the context of a public employee, the First Amendment
protects speech when (1) the plaintiff was speaking as a citizen
rather than as a public employee discharging her employment
duties; (2) the plaintiff’s statements addressed a matter of
public concern as opposed to a personal interest; and (3) the
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 employee’s statement.
Houston v. Twp. of Randolph, 934 F. Supp. 2d 711, 727 (D.N.J.
2013) aff'd, 559 F. App'x 139 (3d Cir. 2014).
As the Supreme Court put it in Pickering v. Bd. of Ed. of
Twp. High Sch. Dist. 205, Will Cnty., Illinois, “[t]he problem
in any case is to arrive at a balance between the interests of
the . . . citizen in commenting upon matters of public concern
and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
391 U.S. 563, 568 (1968).
In Pickering, plaintiff teacher wrote a letter to a local
newspaper regarding how school operation funds should be spent
that was critical of the defendant board of education, and
defendant terminated plaintiff’s employment as a result.
In reversing this termination, the Court found it significant
that the teacher’s statements were “neither shown nor can be
presumed to have in any way either impeded the teacher's proper
performance of his daily duties in the classroom or to have
interfered with the regular operation of the schools generally.”
Id. at 572-73.
Consequently, “the interest of the school
administration in limiting teachers' opportunities to contribute
to public debate [was] not significantly greater than its
interest in limiting a similar contribution by any member of the
Id. at 573.
Here, Plaintiff alleges pursuant to 42 U.S.C. § 1983 that
Defendant violated her rights under the First Amendment of the
U.S. Constitution (and the state constitutional analogue, N.J.
Const. Art. I, paras. 6 and 18) by terminating her employment as
retaliation for her posting her comment on Facebook.
no dispute that Defendant’s termination of Plaintiff’s
employment qualifies as retaliatory action and that Plaintiff’s
post caused Defendant to take that action; the question before
the Court is whether Plaintiff’s comment qualified as
constitutionally protected activity.
Plaintiff, a security guard for the school district, is a
public employee, but the Court accepts for purposes of this
preliminary injunction that Plaintiff made her comment as a
private citizen “on her own time,” outside of her job duties,
and that the matter was one of public concern, as she expressed
her opinion on an item in the local news that related to “the
current national debate over police conduct.”
Decl., Dkt. No. 1-2 ¶¶ 5, 7)
Nonetheless, the Court finds that
Plaintiff is unlikely to succeed in her claim that her comment
was constitutionally protected, because Defendant likely had
adequate justification, based on Plaintiff’s position as a
security guard, for treating her differently from any other
member of the general public.
Unlike in Pickering, Plaintiff’s statements can reasonably
be presumed to impede her proper performance of her daily duties
as a security guard.
Specifically, Defendant issued the
following justifications for her termination:
Your statement calls into question your effectiveness,
going forward, as an unbiased arbiter of student or staff
misbehavior or other incidents which call upon impartial
judgment including respect and tolerance for diversity.
. . . A security officer engages in daily corrective
action to help guide young people by justly and fairly
Your pronouncement has greatly
jeopardized your ability to effectively conduct the
business of public school safety and security because it
reasonably calls into question the basis of your
(Ex. J-1 to Czaplinski Decl., Dkt. No. 1-2)
The Court recognizes that “apprehension of disturbance is
not enough to overcome the right to freedom of expression.”
Flanagan v. Munger, 890 F.2d 1557, 1567 (10th Cir. 1989)
In Flanagan, the Tenth Circuit found that
defendants police chief and city violated plaintiff police
officers’ first amendment rights by disciplining the officers
for selling adult videos where “[t]he record is devoid of
evidence of actual or potential internal disruption caused by
plaintiffs' speech” and “[d]efendants' evidence pointed only to
potential problems which might be caused by the public's
reaction to plaintiffs' speech.”
Id. at 1566-67.
At the same time, however, an employer need not “allow
events to unfold to the extent that the disruption of the office
and the destruction of working relationships is manifest before
Locurto v. Giuliani, 447 F.3d 159, 182 (2d Cir.
2006) (quoting Connick v. Myers, 461 U.S. 138, 152 (1983)).
Locurto, plaintiff police and firefighters were disciplined for
participating in a Labor Day parade in which they wore
‘blackface,’ mocked stereotypes of African–Americans, and
jokingly mimed a recent hate crime.
Id. at 164, 182.
that “effective police and fire service presupposes respect for
members of [African–American and other minority] communities,”
the Locurto Court found that defendants legitimately took into
account the reactions of those communities in disciplining
plaintiffs and also found it permissible that defendants’ motive
for the discipline was the “concern for the potential disruption
the plaintiffs' activities would cause to the NYPD and FDNY, in
particular by engendering and perpetuating a public perception
of those Departments as racially insensitive.”
Id. at 182-83.
Here, Plaintiff’s job as a security guard is to resolve
disputes and maintain peace.
As evidenced by the anonymous e-
mail, at least one person found Plaintiff’s comments racist and
troubling, and to the extent the comments contributed to a
perceived racial bias, they arguably undermined both Plaintiff’s
individual authority in the eyes of the students and staff, as
well as the authority of security guards more generally,
impairing Defendant’s ability to “operate efficiently and
Garcetti, 547 U.S. at 418.
Because Plaintiff has failed to show how her interest in
free speech likely outweighs Defendant’s interest in avoiding a
perception of racial bias and maintaining security, she has
failed at this stage to show a likelihood of success on the
merits of her claim pursuant to § 1983.
Plaintiff’s request for
a preliminary injunction will therefore be denied.
b. Irreparable Harm
Even if Plaintiff had shown a likelihood of success on the
merits, she has failed to show that she faces irreparable harm
without a preliminary injunction or that such an injunction
would prevent or redress the type of harm she alleges.
Monetary harm alone does not constitute irreparable harm
for purposes of injunctive relief, because if a party prevails,
it can be compensated with money damages issued at the close of
See Morton v. Beyer, 822 F.2d 364, 372 (3d Cir.
“The loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury,”
but “[c]onstitutional harm is not necessarily synonymous with
the irreparable harm necessary for issuance of a preliminary
injunction” and “the assertion of First Amendment rights does
not automatically require a finding of irreparable injury, thus
entitling a plaintiff to a preliminary injunction if he shows a
likelihood of success on the merits.”
Hohe v. Casey, 868 F.2d
69, 72-73 (3d Cir. 1989) (internal citation and quotation marks
“Rather the plaintiffs must show a chilling effect on
Id. at 73.
Here, Plaintiff asserts the following injuries:
I have lost my job, which I need. I have been penalized
for exercising my rights as a private citizen to speak out
on a public issue. I now feel as if I must think twice
before I speak out or comment on an issue that matters to
(Czaplinski Decl., Dkt. No. 1-2 ¶ 21)
Plaintiff’s loss of her job can be compensated through
money damages and therefore does not justify injunctive relief.
In addition, based on the limits of First Amendment protection
already discussed with regard to Plaintiff’s likelihood of
success on the merits of her claim, it is not clear that the
speech chilled by Defendant’s termination presents a
To the extent it does, it is also not
clear that a preliminary injunction redresses that harm.
Second Circuit put it in Am. Postal Workers Union, AFL-CIO v.
U.S. Postal Serv., “we fail to understand how a chilling of the
right to speak . . . could logically be thawed by the entry of
an interim injunction, since the theoretical chilling of
protected speech . . . stems not from the interim discharge, but
from the threat of permanent discharge, which is not vitiated by
an interim injunction.”
766 F.2d 715, 722 (2d Cir. 1985)
Consequently, the Court finds that Plaintiff has failed to show
irreparable harm to justify the relief she seeks.
Plaintiff has failed to show that she is entitled to a
preliminary injunction against Defendant’s termination of her
employment, because she has failed to show a likelihood of
success on the merits of her claim and irreparable harm if such
injunction is not granted.
Plaintiff’s request for preliminary
injunctive relief will therefore be DENIED.
Order accompanies this Opinion.
s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.
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