PARKER v. ATLANTIC CITY BOARD OF EDUCATION et al

Filing 94

OPINION. Signed by Judge Joseph H. Rodriguez on 3/19/2018. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DEWANE PARKER,
Plaintiff,
v.
ATLANTIC CITY BOARD OF
EDUCATION, BARRY CALDWELL,
JOHN DEVLIN, DONNA HAYE, AND
PAUL SPAVENTA,
Defendants.

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Honorable Joseph H. Rodriguez
Civil Action No. 15-cv-08712
OPINION

This matter is before the Court on Defendants’ motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56. Oral argument on
the motion was heard December 4, 2017 and the record of that proceeding
is incorporated here. For the reasons placed on the record that day, and
those articulated here, the motion will be granted in part and denied in
part.
Background
Plaintiff DeWane Parker held the position of Atlantic City’s School
District’s Supervisor of Security from May 9, 2001 to June 30, 2015. By all
accounts, Plaintiff was a competent and qualified supervisor with no
performance issues. He alleges he was terminated for refusing to
participate in School Board politics and for repeatedly objecting to
violations of law and policy within the District. Beside the Atlantic City
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Board of Education, Plaintiff named as Defendants his direct supervisor
Barry Caldwell, Assistant Superintendent of the Atlantic City School
District, John Devlin, School Board President, Donna Haye,
Superintendent until May 2015, and Paul Spaventa, 1 Interim
Superintendent beginning July 1, 2015.
Defendants maintain that Plaintiff’s termination was part of a
reduction in force. On February 19, 2015, the State of New Jersey appointed
a Monitor to oversee the District’s operations. (McCartney Dep. 17:2018:12.) He served in this role for a year, until February 2016. (McCartney
Dep. 17:20-18:12.) The Monitor was directed to “[r]educe the budget [for
the District] and make [it] fiscally responsible. Analyze every fiscal decision
that’s made there and don’t approve any event [ ] not in keeping with
responsible actions.” (McCartney Dep. 33:1-10.) The District required $20
million in State assistance to meet its minimum tax levy for the upcoming
school year. (McCartney Dep. 27:13-28:24; 72:1-16.) He did not focus
exclusively on a reduction in force to reduce costs; rather, he looked at the
utility of every operation within the District including, but not limited to,
scrutinizing all of the District’s expenses; reviewing all purchase orders;

Spaventa had no prior experience with the District and did not know any
of the litigants when he was hired. (Spaventa Dep. 34:12-15; 36:8-37:9;
44:21-45:10; 45:15-20; 48:24-49:10.)

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looking at all District buildings to see if consolidation was possible; working
with real estate agents to explore the possibility of selling vacant buildings;
exploring the possibility of moving the Board’s office to a new, less
expensive space; investigating moving the location of the alternative school;
scrutinizing the cost of food services for the students as well as the Board;
examining transportation to determine whether busing could be handled
more efficiently; and exploring whether the deployment of District
personnel could be altered to cut costs. (McCartney Dep. 33:11-34:20.)
However, his analysis of the Board’s operations and fiscal situation led him
to conclude that non-personnel related cuts alone would be insufficient to
stem the Board’s financial crisis. (McCartney Dep. 39:12-18.)
Plaintiff requested a Donaldson Hearing before the Board to discuss
the decision to eliminate his position in the RIF. (Perla Decl., ¶18, Exh. J.)
The Board granted Plaintiff’s request. (Id.) On June 29, 2015, at a Special
Meeting of the Board, seven Donaldson Hearings were conducted for nontenured employees that had previously been non-renewed. (Perla Decl.,
¶18, Exh. J.) Plaintiff attended this hearing. (Perla Decl., ¶18, Exh. J.) The
Board, with then-President Devlin and Board members who Plaintiff claims
Caldwell supported, voted to reinstate Plaintiff along with six other
employees. (Pl. Dep. 273:4-274:18; Perla Decl., ¶18, Exh. J.) Only July 1,

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2015, the State Monitor overruled the Board’s June 29, 2015 decision to
reinstate Plaintiff and the six other employees. (Pl. Dep. 273:4-274:18;
McCartney Dep. 144:10-145:24; Perla Decl., ¶18, Exh. J.) As a result, none
of these employees were reinstated. (Id.)
Spaventa was in the first week of his employment with the District
when Plaintiff took the District’s vehicle from District grounds after he had
been terminated. (Caldwell Dep. 124:2-21; Spaventa Dep. 50:9-51:7; 51:2252:4; 52:10-19; 54:5-10; 64:6-11; 71:4-23; 74:3-75:16; 83:3-7.) According to
Caldwell, he met with Spaventa and the Monitor and, “in a show of
restraint,” they agreed to call the Atlantic City Police Department so an
officer who knew Plaintiff could contact him and ask him to return the
District property still in his possession. (Caldwell Dep. 119:24-120:25;
Spaventa Dep. 53:4-54:10; 54:24-56:24; 59:23-60:7; 61:3-8.)
Only July 9, 2015, Spaventa filed a complaint with the ACPD to insure
Plaintiff returned the District’s property. (Spaventa Dep. 65:7-22; 69:1871:3; 72:25-73:7; 75:10-18; 93:8-23; 99:4-100:19; 167:16-24.) While at the
ACPD, Spaventa informed the police officer taking the information that he
would dismiss the Complaint once Plaintiff returned the items. (Spaventa
Dep. 70:15-71:3.) Deputy Chief Tim Friel left Plaintiff a message on July 9,
2015; told him the District was filing a complaint against him for theft; and

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told him to return “keys” and “anything” to the State Monitor. (Pl. Dep.
285:15-286:4; 352:18-25.) Spaventa was not aware at the time he filed the
Complaint that one of the items listed (an iPad) had been returned by
Plaintiff two days earlier. (Spaventa Dep. 73:20-74:2; Perla Decl., ¶27, Exh.
S.) The complaint was dismissed two weeks after Plaintiff returned all of
the items. (Id.)
The State Monitor relied on the District’s administrators, such as the
Superintendent and Assistant Superintendents, to determine how the
District would solve any issues raised by the decreased level of personnel.
(McCartney Dep. 69:6-70:4; 119:24-120:16; 121:7-122:19.) He left it to the
District to determine how it would supervise ground-level security
personnel in the absence of the Supervisor of Security and Truancy
position. (Id.)
Shortly after Plaintiff was terminated, Defendants advertised for a
new position, Coordinator of Public Safety (“Coordinator”) to oversee
security in the District. (Pl. Dep. 296:12-23; Caldwell Dep. 147:25-148:22.)
Plaintiff felt that the Coordinator position was essentially the same job as
the Supervisor of Security position he formerly held. Accordingly, Plaintiff
argues that the reinstatement of this supervisory position supports his
claim that he was “lumped in” with an otherwise valid RIF to cover his

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allegedly unlawful termination. Plaintiff applied to the Coordinator of
Public Safety position, listing the RIF as the reason he left his prior
position. (Pl. Dep. 296:24-297:2; Perla Decl., ¶29, Exh. U.) Caldwell was
solely responsible for screening all applicants for the Coordinator of Public
Safety position and made the decision not to interview Plaintiff for the job.
(Caldwell Dep. 161:22-162:12.) Plaintiff filed this lawsuit on December 17,
2015, alleging he was terminated and not re-hired because of
discrimination and retaliation.
Summary Judgment Standard
“Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law.” Pearson
v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56
(a). Thus, the Court will enter summary judgment in favor of a movant who
shows that it is entitled to judgment as a matter of law, and supports the
showing that there is no genuine dispute as to any material fact by “citing to
particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,

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stipulations . . . admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56 (c)(1)(A).
An issue is “genuine” if supported by evidence such that a reasonable
jury could return a verdict in the nonmoving party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under
the governing substantive law, a dispute about the fact might affect the
outcome of the suit. Id. In determining whether a genuine issue of material
fact exists, the court must view the facts and all reasonable inferences
drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s
Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand
a properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that contradict those
offered by the moving party. Andersen, 477 U.S. at 256-57. “A nonmoving
party may not ‘rest upon mere allegations, general denials or . . . vague

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statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of
Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v.
Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that
a fact cannot be genuinely disputed by showing that “an adverse party
cannot produce admissible evidence to support the [alleged dispute of]
fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the
court’s role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility
determinations are the province of the factfinder. Big Apple BMW, Inc. v.
BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Discussion
Although the Amended Complaint alleged racial discrimination,
Plaintiff has elected not to pursue those claims. Summary judgment will
therefore be granted on all claims of racial discrimination.
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CEPA
Count Two of the Amended Complaint alleges that Defendants
terminated Plaintiff’s employment as District Supervisor of Security and
Truancy in retaliation for his whistleblowing actions in violation of the New
Jersey Conscientious Employee Protection Act (“CEPA”), N.J. Stat. Ann. §
34:19-1. To establish a prima facie case under CEPA, a plaintiff must
demonstrate that (1) the aggrieved employee reasonably believed that the
employer’s conduct was violating either a law, rule, or regulation
promulgated pursuant to law, or a clear mandate of public policy; (2) he or
she performed a “whistle-blowing” activity; (3) an adverse employment
action was taken against him; and (4) a causal connection exists between
the whistle-blowing activity and the adverse employment action. Dzwonar
v. McDevitt, 177 N.J. 451, 462 (2007). The complained-of activity “must
have public ramifications, and . . . the dispute between the employer and
employee must be more than a private disagreement.” Maw v. Advanced
Clinical Commc’ns, Inc., 179 N.J. 439, 445 (2004).
Plaintiff argues that there were nine whistleblowing incidents over
the course of his employment. (1) Plaintiff was pressured into helping
Caldwell run election campaigns for Board members in July of 2014 and in
2009 was told he should become “more political” in violation of his right to

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refrain from supporting a particular candidate for public office. (2) In
August 2014, Caldwell refused to fill open security officer positions until
after the elections so that he could fill them with supporters, but hiring
decisions involving low-level public employees based on party affiliation
and support are unconstitutional. (3) Plaintiff informed Haye in November
2012 that Caldwell padded his overtime hours worked for Sandy relief,
which could be interpreted as theft by Caldwell. (4) Devlin violated
Plaintiff’s right to privacy when he used his position as a police officer to
disclose private information about Plaintiff to Superintendent Fred Nickles
in 2011. (5) Plaintiff objected Brown’s threat to fire him for activating the
fire alarms. (6) In May 2014, Caldwell stripped Plaintiff of his student
attendance officer duties to unlawfully open that position for a political
friend. (7) Plaintiff complained that the Board hired a white male as
supervisor of facilities, but paid him substantially more than Plaintiff, who
is African-American. (8) Plaintiff objected to Caldwell’s effort to cover up
his own inappropriate behavior by urging Plaintiff in October 2014 to
return the money he earned during Hurricane Sandy; doing so would
unjustly enrich the Board. (9) Plaintiff disclosed to Haye that in February
2012, Caldwell threatened to fire Plaintiff if he did not help convince

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Nickles to stay on as superintendent (for Caldwell’s personal benefit);
Nickles did not seek renewal.
Essentially, Plaintiff claims that he was terminated as the result of
Caldwell’s failure to recommend to the Monitor keeping Plaintiff in his
position. Caldwell’s silence/inaction allegedly was in retaliation for Plaintiff
complaining that (1) Caldwell left open four security positions for political
allies, and (2) Caldwell pressured Plaintiff to campaign for school board
members. While the defense argues that Caldwell was not involved in the
decision to terminate Plaintiff and Plaintiff was terminated for reasons
unrelated to those he has presented, the circumstance that the Board
created an almost identical position to the one eliminated when Plaintiff
was terminated creates a genuine issue of material fact as to the legitimacy
of his termination. Summary judgment will be denied as to the CEPA claim.
Constitutional Claims
Count Three presents Federal and State Constitutional Claims,
alleging that Devlin and Caldwell’s improper activities and practices were
matters of public concern and Defendants violated “Plaintiff’s right to
freedom of speech, expression and association.” (Am. Compl. ¶ 84.) Count
Four alleges that by the retaliatory termination, Devlin, Caldwell, and Haye,
as policy makers, violated “Plaintiff’s rights of freedom of speech and

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association in violation of the First Amendment.” (Am. Compl. ¶ 92.) Count
Five implicates the New Jersey Civil Rights Act and alleges violations of
Plaintiff’s substantive due process and equal protection rights and “his right
to freedom of speech and his right to freedom of political association.” (Am.
Compl. ¶ 100.)
“A public employee has a constitutional right to speak [as a citizen]
on matters of public concern without fear of retaliation.” Baldassare v. State
of N.J., 250 F.3d 188, 195 (3d Cir. 2001). A public employee’s retaliation
claim for engaging in protected activity is evaluated under a three-step
process. Green v. Phila. Hous. Auth., 105 F.3d 882, 885 (3d Cir. 1997).
First, the plaintiff must establish the activity in question was
protected. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). To
do so, the employee must demonstrate that (1) he spoke as a citizen, not as
an employee; (2) the speech involved a matter of public concern; and (3)
the government lacked an adequate justification “for treating the employee
differently than the general public based on its needs as an
employer.” Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 987 (3d Cir.
2014). Second, the plaintiff must show the protected activity was a
substantial or motivating factor in the alleged retaliatory action.
Baldassare, 250 F.3d 195. Third, the public employer can rebut the claim by

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demonstrating “the same action would have been taken even if the speech
had not occurred.” Dougherty, 772 F.3d at 986 (citing Gorum v. Sessoms,
561 F.3d 179, 184 (3d Cir. 2009)). The second and third stages of this
analysis present questions for the fact finder.
Plaintiff has alleged that his complaints to Haye regarding
Defendants’ actions, including improper requests to support political
candidates and holding vacant security positions open for persons aligned
with certain elected Board members were protected and of public concern.
He also cites to the activity of objecting and refusing to participate as
inciting retaliation for the exercise of his rights, including in the form of
failing to interview or hire Plaintiff for the new position of Coordinator of
Public Safety.
While the Board argues that Plaintiff was terminated for reasons
unrelated to those Plaintiff has argued, the circumstance that it created an
almost identical position to the one eliminated when Plaintiff was
terminated creates a genuine issue of material fact. Summary judgment will
be denied as to the Constitutional claims alleging retaliation for Plaintiff’s
exercise of free speech, expression, and association.

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Miscellaneous State law claims
Count Six alleges intentional and/or negligent infliction of emotional
distress. Count Seven alleges malicious prosecution by Spaventa in filing a
criminal complaint. Count Eight states that the Board’s Counterclaim to his
State lawsuit regarding overtime pay constituted abuse of process. Plaintiff
has not established a prima facie case on these claims, and summary
judgment will therefore be granted in Defendants’ favor on these claims.
Conclusion
For these reasons, as well as those discussed during oral argument,
Defendants’ motion for summary judgment will be granted in part and
denied in part. An appropriate Order will be filed.

Dated: March 19, 2018

/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.

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