SKOORKA v. KEAN UNIVERSITY et al

Filing 137

OPINION. Signed by Judge Kevin McNulty on 2/25/2016. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BRUCE M. SKOORKA,

To be filed in

Plaintiff,

Civ. Nos. 09-3428

v.

and 14-4561

KEAN UNIVERSITY, et al.,
MEMORANDUM OPINION
Defendants.

Introduction
Dr. Bruce M. Skoorka is a tenured associate professor of Economics and
Finance at Kean University. Over the course of his employment, he has
frequently complained of discrimination and alleged other illegal or wrongful
conduct by Kean. He filed an action against Kean in New Jersey state court in
2001 (a suit he ultimately lost at trial). In 2007 (amended and refiled in 2009),
he filed a second action (the “First DNJ Action”) in this Court (Civ No. 09-3428)
against Kean and the union representing professors, as well as persons
affiliated with those entitities. In 2014, he filed this, a third action, against the
same defendants in the U.S. District Court for the Southern District of New
York, but venue was immediately transferred back to this district, and it was
assigned Civ. No. 14-456 1.
Now before the Court are two motions to dismiss the Complaint. (“Cplt.”,
ECF No. 1) One is brought on behalf of what are designated the “Kean
defendants”: Kean University, its Board of Trustees, its president, and the
former chair of Skoorka’s department, William Kempey. (ECF No. 10) The
second is brought on behalf of what are designated the “Union defendants”: the

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Kean Federation of Teachers, the Council of New Jersey State College Locals,
and Maria Rodriguez. (ECF No. 31)
For the reasons set forth herein, and also in my summary judgment
opinion in the First DNJ Action (the “SJ Opinion,” Civ. No. 09-3428, ECF Nos.
130, 131), I will administratively terminate all motions and consolidate the two
cases. Plaintiff if granted leave to file an amended and supplemental pleading,
but only to the extent described at pp. 5—6 of this opinion and in the
accompanying order.
Because I write for the parties, familiarity with the record, both of this
case and of the First DNJ Action, is assumed.

Analysis
Defendants assert that the complaint fails to state sufficient facts to
make out a plausible legal claim for relief.
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Animal Science Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 469
n. 9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in
the complaint are accepted as true and all reasonable inferences are drawn in
favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman
Constr. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Housing Assocs., LLC v. Huntington Nat’l Bank,

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712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
While “[t]he plausibility standard is not akin to a ‘probability requirement’.
it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
Where the movant has answered, a Rule 12(b)(6) motion may be deemed
a Rule 12(c) motion for judgment on the pleadings. E.g., Turbe v. Gov’t of Virgin
Islands, 938 F.2d 427, 428 (3d Cir. 1991). As relevant here, the governing
standards are the same. Id.
The complaint in this action consists of a check-box form that also
requires, in keeping with the Federal Rules, that the plaintiff briefly state the
facts, including dates, places, and persons involved, giving rise to a claim.
Skoorka’s form complaint states briefly and in conclusory fashion that the
defendants violated his rights in connection with his employment. (Cplt.

¶

II.E)

It incorporates by reference, however, an attached charge of discrimination
filed with the EEOC in New York on January 24, 2014. (Cplt. at pp. 5—9) Also
attached is the EEOC’s Dismissal and Notice of Suit Rights. (Id. pp. 10-15)
The EEOC Charge contains some 40 numbered paragraphs. Were we
writing on a clean slate, I might indulge a questionable pro se complaint, but
we are not. As explained below, the complaint not only fails to give any
specifics; it fails to state how the claims therein differ in any way from those
already asserted (and for the most part disposed of on summary judgment) in
the First DNJ Action.
The 40 numbered paragraphs of the EEOC Charge closely track the
allegations that Skoorka has asserted in the First DNJ Action. Defendants
exaggerate somewhat, but not much, in characterizing it as a “cut and paste.”
Here is Skoorka’s own summary of the allegations in his brief in response
to the motions to dismiss:

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(a)

Defendants denied Plaintiff a promotion, while promoting less

qualified persons outside his protected classes (including without limitation
persons that did not engage in protected activities);
(b)

Defendants denied Plaintiff his designated courses and

intentionally cancelled and/or changed courses he selected, while allowing his
peers outside his protected classes to teach the courses they wanted to teach;
(c)

Defendants denied Plaintiff a two-day teaching schedule while

allowing his peers outside his protected classes to maintain such a schedule;
(d)

Defendants interfered with Plaintiffs employment and teaching

schedule at NYU;
(e)

Defendants denied Plaintiff office supplies and access to facilities

and equipment, while providing such items to his peers outside his protected
classes;
(f)

Defendants denied Plaintiff a safe and secure parking space on

campus, while providing such accommodations to his peers outside his
protected classes;
(g)

Defendants (or their agents) made death threats to Plaintiff; and

(h)

Other recent incidents of discrimination and retaliation.

(ECFN0. 11,at6—7)
These are precisely the allegations that Skoorka asserted in the First
DNJ Action, which I treated extensively in my Opinion on the summary
judgment motions there. For the most part, he failed to produce any evidence
of them, or even any specific statement of them.
In response to the defendants’ motions, Skoorka states that the claims in
this action are “new and fresh”—in effect, an update of the New Jersey claims.
He states that the Title VII claims in this action “cover the period of about April
6, 2013 forward”; that the LAD claims “cover the period of about June 27, 2012
forward”; and that his CEPA claims “cover the period of about June 27, 2013
forward.” (ECF No. 33, at 18-19)
The trouble is that these claims appear to assert, not approximately, but
almost precisely what Skoorka asserted in the First DNJ Action. (I note that, in
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the summary judgment opinion, I did not confine this pro se plaintiff to the
facts as they existed in 2009, when the complaint was filed, but discussed all
of his allegations, including the more recent and ongoing ones.)
The origin of the New York complaint is clear: Skoorka acknowledges that
he went to New York because “to date, it has not been possible for Plaintiff to
obtain a fair hearing of his claims against Defendants in New Jersey.” (ECF no.
11 at 21). To all appearances, he simply refiled his New Jersey claims in New
York, but declared them to be “recent” and “new” in response to the motions to
dismiss. Nevertheless, the SDNY transferred venue back to New Jersey, and all
of those claims are now in this Court. The motions are concerned with the
effect that the claims in the First DNJ action should have upon this action. But
the distribution of these claims across two separate actions is a procedural
artifact. This is in fact a single, ongoing controversy between the same parties.
The claims, if not identical (which remains to be seen) are at the very least
closely interrelated. I intend to resolve all claims against all parties, and will
use my discretion to ensure that this occurs.
I therefore opt for a practical solution under Rule 42(a), Fed. R. Civ. P.’
See, e.g., Reckitt BenckiserLLC v. Amneal Pharmaceuticals LLC, 2016 WL
208295, at *2 (D.N.J. Jan. 15, 2016) (“IT IS FURTHER ORDERED that this
Court sua sponte finds that the above-captioned matters involve common
questions of law and fact and, therefore, the above-captioned matters shall be
consolidated pursuant to Federal Rule of Civil procedure 42(a)”); Taylor v.
Essex Cnty. Con-. Fac., 2011 WL 3298516, at *1 (D.N.J. July 25, 2011).
All motions in this action are administratively terminated. The action
under this civil number, 14-4561, will be consolidated with the earlier-filed

(a) Consolidation. If actions before the court involve a common question of law or fact,
the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
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First DNJ action against the same defendants, Civ. No. 09-3428, and further
filings will take place in that action.
The problem remains that the complaint filed in this action, 14-4561,
does not clearly state whether, let alone how, its claims are distinct from those
already alleged in the First DNJ and discussed in my summary judgment
opinion. Mr. Skoorka is therefore granted leave to file a proposed supplemental
and amended complaint. That supplemental and amended complaint shall
state clearly, with dates, places, and names of participants, the acts that he
alleges post-date those encompassed by the First DNJ action thus far. It shall
not rehash the history of events already the subject of the First DNJ action
complaint and summary judgment motions. Particular facts must be alleged in
support of the contention that the claims are new. That supplemental and
amended complaint shall be filed within 30 days of this opinion and order. The
defendants shall answer or otherwise respond to that supplemental and
amended complaint within 30 days of filing.
An appropriate order follows.
Dated: Newark, New Jersey
February 25, 2016

KEVIN MCNUL
United States District Judge

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