ROTANTE v. FRANKLIN LAKES BOARD OF EDUCATION et al

Filing 51

OPINION fld. Signed by Judge Jose L. Linares on 7/31/14. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DOMINICK D ROTANTE,

Civil Action No 13-3380 (JLL) (JAD)

Plaintiff,
OPINION
v.
FRANKLiN LAKES BOARD OF
EDUCATION, et a!.,
Defendants.

LINARES, District Judge.
This matter comes before the Court upon the Motions of i) Frank Romano III
(“Romano”) (ECF No. 36); ii) the Franklin Lakes Board of Education (the “Board”) (ECF No.
39); and iii) the Franklin Lakes Education Association (the “FLEA”) and Donna Luciano (ECF
No. 42) to Dismiss the Complaint of Plaintiff Dominick D. Rotante (“Plaintiff’) pursuant to
Federal Rule of Civil Procedure 12(b)(6). The Court has considered the submissions made in
support of and in opposition to Defendants’ Motions, and decides this matter without oral
argument pursuant to Fed. R. Civ. P. 78. Based on the following and for the reasons expressed
herein, Romano’s Motion to Dismiss is granted, the Board’s Motion to dismiss is granted, and
the FLEA and Luciano’s Motion is granted in part and denied in part.
I

BACKGROUND
Plaintiff is the former Principal of the Woodside Avenue Elementary School

(“Woodside”) located in Franklin Lakes, New Jersey. (“Am. Compl.” ECF No. 30, 2.)
¶
Woodside is part of the Franklin Lakes School District (the “District”). (Id.) Romano has been
1

the Superintendent of the schools in the District since April 2010. (Id.

¶ 10.)

Immediately after Romano was hired, during a Board meeting, Plaintiff informed Board
Members that Romano was denied for a position as Curriculum Director of the District about
two years earlier. (RI.

¶ 12.) After making this disclosure, Plaintiff was asked to attend another

meeting with the Board, this time with Dr. John Caliso, Special Education Director, and Helen
Attenello, another Principal within the District in attendance. (kj

¶ 14.) Plaintiff states that he

understood that the purpose of this meeting was to discuss the reasons Romano was rejected for
the Curriculum Director position, as Plaintiff was on the committee that interviewed Romano for
the job. (Id.) Plaintiff claims that he received confirmation from the Board that it would hold his
comments “strictly confidential.” (Id. ¶ 15.) Plaintiff states that he then truthfully answered
questions about Romano’s prior candidacy for the Curriculum Director position.

( ¶ 16.) For

example. Plaintiff asserts that he explained that Romano was evasive when asked why he left his
prior position as Assistant Superintendent with the Town of Milburn, and that members of the
interview committee knew that many parents and officials in Millbum demanded that Romano
leave. (id.

¶

18.) Plaintiff also states that he shared comments that he heard from others in the

education community who opined that Romano was “vindictive,” “difficult to work with,” “not
to be trusted,” “a climber,” and someone who would “stab you in the back.” (Id.

¶ 19.)

Plaintiff states that contrary to the Board’s assurances, his comments were leaked to
Romano by various Board Members, including Margaret Bennett. (Id.

¶ 20.) Plaintiff asserts that

at the beginning of the 2010-2011 school year, he was informed by Business Administrator
Michael Solokas and then Board Secretary Fran Syracuse that during the summer of 2010, while
the teachers in the District were on summer leave, Romano used threats and intimidation to
cause
several staff members to involuntarily meet with him in his office.

2

( ¶ 21.) Plaintiff states that

these teachers included Dan Hoemer and Linda Leader, and that the purpose of the
meeting was
to target Plaintiff and attempt to collect negative statement about him.

() Plaintiff claims that

Syracuse informed him that after Romano collected the statements, he manipulated
and enhanced
them, and then broadcasted them to teachers, administrators, and Board Memb
ers of the District.
(Id.

¶ 22.) Plaintiff also alleges that Syracuse told him that many staff members cooperated with

Romano because they felt “bullied” and feared retaliation. (Id.

¶ 23.)

Plaintiff claims that in January 2011, Romano forced the then Middle School
Principal,
Marco Cera, to resign. (Id.

¶ 26). Plaintiff states that Barbara Capozzi, a former Board Trustee,

informed Plaintiff that immediately after Cera’s resignation, during a closed
session meeting of
the Board, Romano stated, in substance, that “he also was going to get rid
of [Plaintiff].”

(¶

26.) Plaintiff also claims that Board Member Christine Christopoul told him
to “watch [his]
back,” because Romano was going to come after him. (RL)
Plaintiff states that in February 2011, during a public meeting open to Frankl
in Lakes
residents, Romano gave a presentation that included recommendations for
redistricting. (Id.

¶

27.) A week prior to Romano’s presentation, Plaintiff states that he conduc
ted an informational

meeting for Woodside parents and explained to them through a Power
Point presentation the
negative consequences that would result from redistricting, such as
students having to walk
across busy streets to attend their new schools. (Id.

¶J 27, 30.) Plaintiff claims that Romano,

Christopoul, Bennett, and Board Member Schwartz appeared at his
presentation unannounced
and chastised him in front of the parents. (Id.

¶ 31.) Plaintiff alleges that thereafter, for the next

several months, Romano “doubled his efforts” towards finding a way
to get rid of Plaintiff. (Id.
34.)
By a memorandum dated June 29, 2012, Marie Wamke, Grievance
Chair of the FLEA,

3

¶

sent Romano a “Level 2” grievance against Plaintiff (the “Grievance”), citing unprof
essional
conduct. (Id.

¶ 40.) After the Grievance was filed, Luciano, President of the FLEA, notified the

Staff of the Grievance by email that they would be required to meet and speak with
Romano
about the claims against Plaintiff. (Id.

¶ 37.) At the end of the email, Luciano wrote that she

“wanted [Plaintiff] to know that no one is coming forward voluntarily, but is being
forced into
this by me.” (ECF No, 30, Ex. B.) Plaintiff states that he has since been inform
ed by former
members of the teaching staff that Romano was out to get him and that Romano
and Luciano
generated complaints and poor comments about him when necessary. (Am.
Cornpl.

¶ 39.)

Further, Plaintiff claims that although the Grievance was allegedly created on behalf
of all
Woodside staff members, numerous members subsequently made statements to
the contrary.
(ECF No. 30, Ex. D-E.) For example, on July 9, 2012, Noelle Saizano, a membe
r of the
Woodside staff, wrote an email to Luciano expressing anger that the Grievance
stated that it was
on behalf of all staff. (Id., Ex. D.) Additionally, on August 10, 2012, numer
ous Woodside staff
members wrote a letter to Romano expressing their desire to retain Plaintiff as
Principal. (j, Ex.
E.)
Plaintiff asserts that each Defendant allowed him to act to his detriment upon
the belief
that the Grievance was real, when in reality, it was fraudulent. (Am. Compi
.

¶ 51-52.) Plaintiff

further states that Defendants used the Grievance as pretext to threaten him
with legal actions
that would harm his career. (Id.

¶ 58.) For example, in a letter dated August 8, 2012, the Board,

through its counsel, informed Plaintiff that if he did not accept the Board’
s settlement offer,
tenure charges would likely be filed against him. (ECF No. 30, Ex. F.)
Plaintiff also states that
during summer 2012, Romano told him that the charges “weren’t going
away,” and that if
Plaintiff did not take action he would lose his job. (Am. Compl.

4

¶ 61). Plaintiff asserts that in

September and October of 2012, after he submitted his resignation, Saizano inform
ed him that
the Grievance was never presented to the Grievance Committee and was never voted
upon. (Id.

J

53.)
Plaintiff further claims that each Defendant allowed him to sign a separation agreem
ent, a
resignation letter, and a release of claims (collectively the “Separation Agreem
ent”), which
relinquished his tenure, even though they knew the Grievance was invalid.
(Id. ¶J 66, 74.)
Plaintiff contends that Kathie Schwartz, Board President, “literally cried to [him]
that he should
not have to go but Romano could not be stopped.” (Id.

¶ 67.) Plaintiff also asserts that Schwartz

told him that she could not help him fights the charges in public because “Roma
no and the
Board’s counsel were too strong.” (Id.

¶ 68).

Plaintiff states that his counsel at the time failed to inform him that the Grieva
nce had not
been properly voted upon and that if he chose to challenge the Grievance,
any suspension
without pay would only last 120 days, at which point his pay would be reinsta
ted until an
investigation was completed. (Id.

¶ 78.) Plaintiff further contends that his counsel failed to notice

that the Grievance itself was invalid in that many of the alleged complaints
against Plaintiff were
greater than thirty days old, and were therefore deemed waived pursuant to
Article VI, Section E
of the contract addressing the procedure for Grievances. (Id.

¶ 79.)

Plaintiff claims that he had

no practical choice but to sign the Separation Agreement, and that he would
not have done so
without the misrepresentations made by Defendants. (RI.

¶J 81-82.)

The Separation Agreement contains a confidentiality and non-interfere
nce provision,
which states that the parties are not to discuss or communicate with anyone
its terms. (ECF No.
30, Ex H ¶ 7.) The Separation Agreement also states that it will be render
ed void if the Board
does not fulfill its terms. (ECF No. 30, Ex. H 12.) Plaintiff claims
that following the execution
¶

5

of the Separation Agreement, the Board publicly released infonnation that Plaintiff would
no
longer be Principal of Woodside. (Am. Compl.

¶ 104.) Plaintiff asserts that due to the public

outrage surrounding the way he was treated, Romano and certain Board members made
public
statements defaming and slandering Plaintiff in an attempt to defend themselves.

( ¶ 106-08.)

For example, Plaintiff states that he was informed by two individuals that at a Frankl
in Lakes
Republican Meeting in Fall 2012, Board Member James Martino publicly stated
that “[p]aying
off [Plaintiffj was the best $150 grand we ever spent” and “I know things you don’t
know.”

(¶

110.) Bennett also purportedly stated at the same meeting that Plaintiff’s office was
“used as a
bedroom.” (Id.) Plaintiff contends that these statements violated the confidentiali
ty and non
interference provision of the Separation Agreement.

(i4 ¶ 109.)

On or about October 26, 2012, Plaintiff filed a lawsuit in the Superior Court of New
Jersey
against the Board and Romano. (Id. ¶ 116.) Plaintiff states the he voluntarily withdr
ew this lawsuit,
without prejudice, in order to file an application of employment for his prior
position as Principal,
which was still open. (Id.

¶ 117.) Plaintiff asserts that the Board did not respond to his application

and that he was not provided an interview. (Id.

¶ 119.) Plaintiff also states that Romano took

affirmative actions to prevent the Board from considering Plaintiff’s application,

and contends that

he was informed that Romano publicly declared to the Board that under “no circum
stances” would
he agree to allow Plaintiff to regain his position.
(j ¶ 124-25.)
Finally, Plaintiff states that Solokas and counsel for the Board participated
in a November
13, 2013 telephone hearing regarding the appeal of the denial of Plaintiff’s unemp
loymen

t benefits.

(Id.

¶ 127.) Plaintiff contends that during the hearing, statements were made regarding the charges

brought against him, and that such statements violated the Separation Agreem
ent. (Id.

¶J 129-3 0.)

Plaintiff filed a five-count complaint in the Superior Court of New Jersey
on March 20,

6

2013. (ECF No. 1, Ex. 1.) Count one asserted a fraudulent inducement claim.
Count two asserted
a breach of contract claim. Count three asserted a tortious interference claim.
Count four asserted
a claim for a violation of the Tenure Employee’s Hearing Law, N.J.S.A
.

§ 18A:6-l0-l, et seq.

(“TEHL”). Count five asserted a claim for retaliation under the First Amend
ment. On May 30,
2013, Romano removed the case to federal court. (ECF No. I.) Roman
o and the Board then filed
motions to dismiss on June 18, 2013 and June 19, 2013, respectively.
(ECF Nos. 5-6.) Plaintiff
filed a cross-motion to amendlcorrect the complaint on December 10,
2013. (ECF No. 17.) On
March 26, 2014, this Court granted in part and denied in part the motion
s to dismiss, and granted
in part and denied in part Plaintiffs cross-motion to amend. (ECF No.
28.) Specifically, this Court:
(i) dismissed Plaintiff’s fraudulent inducement claim without prejudice,
(ii) dismissed Plaintiffs
breach of contract claim without prejudice, (iii) dismissed Plaintiff’s
tortious interference claim
with prejudice, (iv) dismissed Plaintiffs TEHL claim without
prejudice, and (v) dismissed
Plaintiffs First Amendment retaliation claim without prejudice as
to the Board. (Id. at 17.) This
Court also allowed Plaintiff to add the FLEA, Luciano, and Christo
poul to count four,’ and add a
sixth claim for a freedom of speech violation under the New Jersey Civil
Rights Act (“NJCRA”)
against Romano, Christopoul, Luciano, and the FLEA. (Id. at 16.)
Further, this Court allowed
Plaintiff to assert a claim for a freedom of speech violation under
the NJCRA against the Board if
Plaintiff fixed his deficiencies in count five against the Board.
(Id.)
Plaintiff filed an Amended Complaint on May 9, 2014. (ECF
No. 30.) Romano filed a
Motion to Dismiss on June 4, 2014. (ECF No. 36.) The Board filed
a Motion to Dismiss on June
6, 2014. (ECF No. 39.) The FLEA and Luciano filed a Motion to Dismis
s on June 20, 2014. (ECF
No. 42.) Plaintiff filed an Opposition to Romano’s Motion and
the Board’

s Motion on July 7, 2014.

1

Plaintiff ultimately did not add Christopoul to his Amended Compl
aint.

7

(ECF No. 45.) Romano and the Board filed Replies on July 14, 2014. (ECF
Nos. 46-47.) That
same day, the FLEA and Luciano curiously submitted a letter stating that it joined
in Romano’s
and the Board’s replies, even though Plaintiffs July 7, 2014 Opposition
did not pertain to the
FLEA and Luciano. (ECF No. 48.) Plaintiff filed an Opposition against the
FLEA and Luciano on
July 21, 2014. (ECF No. 50.)
Ii

STANDARD OF REVIEW

For a complaint to survive dismissal, it “must contain sufficient factual matter
, accepted as
true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v.
Igbal, 556 U.S. 662, 678
(2009) (citing Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threa
dbare recitals of the
elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id.
In determining the sufficiency of a complaint, the Court must accept
all well-pleaded
factual allegations in the complaint as true and draw all reasonable inferen
ces in favor of the nonmoving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234
(3d Cir. 2008). But, “the
tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable
to legal conclusions.” Igbal, 556 U.S. at 678. Thus, legal conclusions draped
in the guise of factual
allegations may not benefit from the presumption of truthfulness.
ILL

DISCUSSION
A. Count One

Count one alleges that Defendants fraudulently induced Plaintiff to
execute the
Separation Agreement and resign from his position as Principal.
To state a claim for fraudulent misrepresentation or omission under
New Jersey law, a
plaintiff must establish: “(1) a material misrepresentation [or omissi
on] of a presently existing or
past fact; (2) knowledge or belief by the defendant of its falsity;
(3) an intention that the other

8

person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damag
es.”
Gennari v. Weichert Co. Realtors, 691 A.2d 350, 367 (N.J. 1997). In addition, Federal Rule of
Civil Procedure 9(b) requires that “in all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity.” The purpose of the heightened
pleading standard is to require the plaintiff to “state the circumstances of the alleged fraud with
sufficient particularity to place the defendant on notice of the precise misconduct with which
it is
charged.” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007); see also Seville Indus.
Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). “To satisfy this
heightened standard, the plaintiff must plead or allege the date, time and place of the alleged
fraud or otherwise inject precision or some measure of substantiation into a fraud allegation.”
Frederico, 507 F.3d at 200. Plaintiff must also allege who made the purported misrepresenta
tions
and what specific misrepresentations were made. $çç, çg, Frederico v. Home Dep, No. 05—
5579, 2006 WL 624901, at *2 (D.N.J. Mar. 10, 2006).
i. The FLEA and Luciano

In their Motion, the FLEA and Luciano rely solely on the arguments made in the Board’
s
Motion, even though the Amended Complaint contains a number of allegations that are unique
to
the FLEA and Luciano. This Court finds that these allegations state a claim for fraudu
lent
misrepresentation.
The Grievance sent to Plaintiff stated the following: “This is a grievance filed by the
[FLEA] on behalf of members at [Woodside]

.

.

.

.

The [FLEA] is citing unprofessional conduct

by [Plaintiff] toward all FLEA members who are employed at [Woodside].” (ECF No.
30, Ex. C.
(emphasis added)). However, while the Grievance indicates that it was flIed on behalf
of all
Woodside teachers, Plaintiff subsequently found out that a number of teachers
were unaware of

9

the Grievance’s existence. (Am. Compi.

¶ 4 1-42.) For example, Plaintiff has attached to his

Amended Complaint an email that Noelle Salzano, a member of the Woodside staff, wrote
to
Luciano after the Grievance was filed. (ECF No. 30, Ex. D.) The email states, among other
things:
I am completely disgusted with what is going on with [Plaintiff] and beyond
offended that you would sent out a grievance document, which by the way you
never sent to ALL [Woodside] staff but it was brought to my attention. that the
grievance is on behalf of ALL [Woodside staff]. how can this be so. I am one
of the many who do not agree with this grievance but it is listed that it is by ALL
[Woodside] staff. I feel doing this grievance over the summer when most staff
aren’t around is very shady. I DO NOT AGREE with the grievance and I DO NOT
AGREE with pushing [Plaintiff] out.
.

.

.

.

.

.

(RI.) Additionally, Plaintiff has attached a letter that thirty members of the Woods
ide staff
sent to Romano on August 10, 2012, expressing their desire to keep Plaintiff as
their
Principal. (ECF No. 30, Ex. E.) Thus, Plaintiff has shown that the FLEA and Lucian
o did
not in fact confer with all staff members before filing the Grievance, and therefo
re must
have known that the statement in the Grievance indicating that it was on behalf of

all FLEA

members was false. Further, Plaintiff alleges that he reasonably relied
2
on this
misrepresentation when he chose not to fight the Grievance and instead enter
into the
Separation Agreement with the Board. Finally, Plaintiff has alleged damages,
as he claims
that the misrepresentation and his subsequent reliance thereon led to the loss
of his job.
Accordingly, count one may proceed against the FLEA and Luciano.
ii. Romano

Plaintiff’s Amended Complaint contains numerous allegations of misconduct
against
Romano. However, none of these allegations state a claim for fraudulent misrep
resentation.
2
While the Grievance was actually sent by Marie Warnke, Luciano is the
president of the FLEA and was copied on
the Grievance. Additionally, in the responsive email sent from Lucian
o to Saizano, Luciano indicated that she was
responsible for the filing of the Grievance. ($çç ECF No. 30, Ex. D.)

10

First, Plaintiff claims that Romano bullied other teachers into making negative statem
ents
about him. Plaintiff also states that Romano “manipulated and enhanced” these statements
and
broadcasted them to other Woodside teachers and administrators in order to gather further
negative comments. (Am. Compi.

¶ 2 1-23.) However, while these allegations suggest that

Romano may have made false misrepresentations to a number of teachers and administrato
rs,
they do not show that he made any false misrepresentations to Plaintiff. Additionally
, Plaintiff
does not inform this Court of the content of the statements that Romano allegedly “manip
ulated
and enhanced.” This lack of detail fails to comply with the heightened pleading standa
rd set forth
in Rule 9(b), and the Court previously dismissed Plaintiff’s fraudulent misrepresenta
tion claim
for this reason. (See ECF No. 30 at 8.) Finally, even if these allegations did set forth
a
misrepresentation made by Romano to Plaintiff, Plaintiff contends he was alerted of
Romano’s
wrongdoings in the beginning of the 2010-2011 school year by Fran Syracuse, the
Board
Secretary at the time. Plaintiff’s admission that he was told that Romano was bullyin
g others in
order to collect negative statements against him weighs against his assertion that
he later
reasonably relied on the veracity of such statements. See Golden v. Nw. Mut. Life
Ins. Co., 551
A.2d 1009, 1014 (N.J. Super. Ct. App. Div. 1988) (“A false representation made
to a person who
knows it to be false is not in legal estimation a fraud.”).
Second, Plaintiff asserts that Romano knew that the Grievance was “invalid”
because
Romano was informed by letter of the Woodside members who objected to
the Grievance and
because he had orchestrated many of the complaints within the Grievance. Howev
er, Plaintiff
again does not point to a single statement allegedly orchestrated by Romano,
and he does not
contend that Romano ever informed him that the Grievance had been proper
ly voted upon.
Finally, the Amended Complaint states that Romano communicated the follow
ing to

11

Plaintiff: (i) that the charges “[weren’t] going away,” (ii) that “there [was] a vote of no
confidence” coming for Plaintiff, and (iii) that if Plaintiff attempted to fight the Grieva
nce, the
Board would take legal action to have him fired for cause. (Am. Compl.

¶J 76,

139.) However,

Plaintiff’s own allegations that these threats were untrue does not plausibly demon
strate that they
were in fact false and that Romano knew they were false.
Accordingly, count one is dismissed with prejudice as to Romano.
iii. The Board

For similar reasons as with Romano, Plaintiffs fraudulent inducement claim agains
t the
Board must be dismissed. Plaintiff asserts that the Board knew that the Grieva
nce was invalid
and cooperated and conspired with Romano to intimidate Woodside staff membe
rs into making
statements about Plaintiff. However, as with Romano, Plaintiff does not state
that the Board
informed him that the Grievance had been properly voted upon. Further, Plainti
ff does not
provide any detail as to how the Board allegedly cooperated and conspired with
Romano, and
does not explain which statements were purportedly fabricated or obtained
through coercion.
Plaintiff also asserts that the Board “led [him] to believe that he faced discipl
ine stricter
tha[nj that even sought in the fraudulent Grievance and, in fact, faced the possib
ility of losing his
employment and tenure.” (Id.

¶

140.) However, as with Romano, Plaintiff does not set forth any

facts to show that these were false threats that the Board did not intend
to act upon.
Accordingly, count one is dismissed with prejudice as to the Board.
B. Count Two

Count two alleges a breach of contract claim against the Board. “A party
alleging a
breach of contract satisfies its pleading requirement if it alleges (1)
a contract; (2) a breach of
that contract; (3) damages flowing therefrom; and (4) that the party
performed its own

12

contractual duties.” Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 210 F.
Supp. 2d 552,
561 (D.N.J. 2002).
Here, Plaintiff identifies the confidentiality and non-interference provision of the
Separation Agreement as the basis of this claim, which provides:
The parties agree that neither will malign, disturb or interfere with the other in any
manner whatsoever. Each shall be free from interference, direct or indirect, by the other
and neither shall discuss with, disclose to or communicate with anyone, the terms
of this
Separation Agreement, except their attorneys or accountants who shall hold such
communication as confidential, or as may be required by law.
(ECF No. 30, Ex H ¶ 7.) Plaintiff also alleges that Board Member James Martin
o breached this
provision when he publicly stated at a meeting that “[p]aying off [Plaintiff] was
the best $150
grand we ever spent.” (Am. Compi.

¶

110.) Plaintiff does not, however, set forth facts that

establish the requisite element of damages. Plaintiff states that he “has suffere
d, and continues to
suffer, economic harm and harm to his professional reputation in the education commu
nity” as a
result of the breach. (Id.

¶ 147.) However, “[d]amages claimed in a breach of contract action

must be reasonably certain and not speculative.” Horton v. Ross Univ. Sch. of
Med., No. 045658, 2006 WL 1128705, at *9 (D.N.J. Mar. 30, 2006) (citation omitted). Here,
Plaintiff does not
allege that he was denied ajob opportunity due to the breach, nor does he
provide the Court with
any other specific instance of harm. Therefore, although Plaintiff has establi
shed both a contract
and a breach of that contract, his claim cannot survive, as this Court “shall
not speculate about
what damage might have resulted from the breach.” Id.; see also Khrakovskiy
v. Denise, No. 061033, 2009 WL 3380326, at *10 (D.N.J. Oct. 19, 2009) (finding that the
elements of damages
was not met because the party “fail[ed] to present any evidence of damag
es beyond.

.

.

bald

conclusory statements”).

Neither count two nor Plaintiff’s Opposition mention Plaintiff’s allegat
ions that the Board made statements about
the Grievance during a telephone hearing regarding Plaintiff’s appeal of his
unemployment benefits. However, this

13

This Court also notes that with respect to element four, the Board points to the fact that
Plaintiff alleges that he learned the Grievance was false only after speaking to memb
ers of the
Grievance Committee. Thus, according to the Board, Plaintiff has shown that he disrega
rded the
same provision of the Separation Agreement that he claims the Board violated.
Because Plaintiff
has failed to plead damages, this Court declines to consider this argument at this
time.
Accordingly, count two of the Complaint is dismissed without prejudice. Plainti
ff is
allowed to amend this claim in order to assert damages with the requisite level
of specificity.
C. Count Three

Count three asserts tortious interference with contractual relations and prospe
ctive
economic advantage against all Defendants. In its prior opinion, this Court dismis
sed count three
with prejudice because Plaintiff did not file a timely notice of claim. (Sec ECF
No. 28 at 5-6.)
Accordingly, Plaintiff is barred from asserting count three in his Amended Compl
aint against all
3
Defendants.
0. Count Four

Count four alleges that the Board and the FLEA violated the TEHL by public
ly
discussing the issues surrounding Plaintiff’s performance as Principal. This
statute provides, in
part, that ‘{tjhe consideration and actions of the board as to any charge shall
not take place at a
public meeting.” N.J.S.A. l8A:6-ll. The Board and the FLEA assert that this
statute only applies
to tenure charges. Plaintiff does not dispute this argument in his Opposition.
While the statute
does not expressly state that it only applies to tenure charges, it is clear from
a reading of its

Court notes that even if count two were premised on these allegations,
Plaintiff does not allege that he was damaged
by these statements.
The Court’s dismissal technically only applied to Romano and the Board,
as the FLEA and Luciano were not yet
parties to this case. However, the same reasoning this Court used to dismiss
count three against Romano and the
Board also applies to the FLEA and Luciano.

14

application by New Jersey courts that the Board and the FLEA are correct.

çc

Young, 995 A.2d 826, 829 (N.J. 2010) (“On October 11, 2007, the District filed tenure
charges
against [a teacher] with the Department of Education.

. .

under the [TEHL].”); In re Shinkle, No.

A-2286-04T2, 2006 WL 1041986, at *1 (N.J. Super. Ct. App. Div. Apr. 21,
2006) (“On
November 25, 1997, [the District], filed and served [a teacher] with tenure charge
s alleging
unbecoming conduct and a pattern of conduct unbecoming a teacher
1997, the.

.

.

.

..

.

On December 22,

District certified the charges to the Commissioner pursuant to [the TEHL].

.

.

Williams v. Bd. of Educ. of Atl. City Pub. Sch., 747 A.2d 809, 812 (N.J. Super.
Ct. App. Div.
2000) (“The tenure charges were.. filed with the Board’s secretary as require
d by [the TEHL].
.

.“);

Slaterv. Bd. of Educ. of Ramapo-Indian Hills Reg’l High Sch. Dist., 568 A.2d
109, 110

(N.J. Super. Ct. App. Div. 1989) (stating that tenure charges must be dealt with
in accordance
with the TEHL). It is clear that no tenure charges were filed in the present case,
as Plaintiff states
in his Amended Complaint that “[The Board], through its Counsel, threatened
Plaintiff with loss
of employment and tenure charges if [Plaintiff] did not agree to the [Separation
Agreement].”
(Am. Compi.

¶ 62.)

Accordingly, count four is dismissed with prejudice.
E. Count Five

Count five alleges that Romano and the Board Count violated the First
Amendment by
retaliating against Plaintiff for engaging in free speech concerning Roman
o’s proposal for school
redistricting.
i. Whether the Release of Claims Bars Count Five

The Separation Agreement signed by Plaintiff contains a release of
claims provision
which provides:

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I release and give up any and all claims and rights which I may have against you.
This releases all claims, including those of which I am not aware and those not
mentioned in this Release. This Release applies to claims resulting from anything
which has happened up to now.
(ECF No, 30, Ex. H at 6.) In its prior opinion, the Court concluded that this provis
ion bars
count five against the Board, as count five relates to conduct that occurred prior
to the
execution of the release of claims, and thus falls within the scope of the language “anyth
ing
which has happened up to now.” (ECF No. 28 at 9.) However, the Court dismis
sed count
five without prejudice, finding that it could proceed if Plaintiff were able
to cure the
deficiencies in count one and show that the Board fraudulently induced Plainti
ff into
signing the Separation Agreement. (Id. at 10 n.5) As discussed above, Plainti
ff has not
cured the deficiencies in his fraudulent inducement claim against the Board.
However,
Plaintiff has stated a claim for fraudulent inducement against the FLEA and Lucian
o. The
implications of this outcome are unclear, as the parties have not briefed the issue

of whether

a successful fraudulent claim against the FLEA and Luciano voids
the Separation
Agreement as to all Defendants. Without any input from the parties on
this matter, the
Court reserves ruling on this issue. Additionally, while not argued by Plainti
ff, this Court
acknowledges that Plaintiff has set forth facts showing that the Board breach
ed the terms
of the Separation Agreement, and paragraph 12 of the Agreement states
that it is void if
any of its provisions are breached. While Plaintiff’s breach of contrac
t claim is being
dismissed for failure to plead damages, paragraph 12 does not state that
a showing of
damages is required. Accordingly, this Court will address count five on
the merits.
ii. The Merits of Count Five

In its prior Opinion, this Court addressed the merits of count five as to
Romano because Romano did not argue that
the release of claims applied to him.

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To state a claim for retaliation under the First Amendment, a plaintiff must allege “(1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person
of ordinary
firmness from exercising his constitutional rights, and (3) a causal link between the
constitutionally protected conduct and the retaliatory action.” Thomas v. Indepe
ndence Twp.,
463 F.3d 285, 296 (3d Cir. 2006). In its prior Opinion, this Court found that Plaintiff stated
a
retaliation claim against Romano. (See ECF No. 30 at 14.) With respect to elemen
t one, Romano
had argued that Plaintiff’s conduct was not constitutionally protected because it fails
the test set
forth in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), which requires courts to “balan
ce the
first amendment interest in protecting the employee’s freedom of expression agains
t the
government’s interest in maintaining discipline and efficiency in the workplace.” McPhe
rson v.
Rankin, 786 F.2d 1233, 1236 (5th Cir. 1986) affd, 483 U.S. 378 (1987). The Court
rejected this
argument, finding that it was premature to dismiss Plaintiff’s claim based on the
Pickering test.
(See ECF No. 30 at 14.) The Court also rejected Romano’s argument that Plainti
ff did not
adequately allege a retaliatory action, finding that being presented with the choice
of either
signing the Separation Agreement or facing termination could “deter a person
of ordinary
firmness from exercising his First Amendment rights.” (Id. (quoting McKee
v. Hart, 436 F.3d
165, 170 (3d Cir. 2006)).
In its present Motion, Romano’s only argument as to the merits of count five
is that
Plaintiff’s speech was made pursuant to his duties as a public employee, and
thus is not protected
under the United States Supreme Court’s decision in Garcetti v. Ceballos,
547 U.S. 410 (2006).
The Board also makes this argument, and additionally argues that Plainti
ff has not suffered a
retaliatory action. As this Court already decided that Plaintiff has establi
shed a retaliatory action,
and because the analysis does not change when the argument is made
by the Board rather than

17

Romano, this Court will only address whether Plaintiff’s claim is barred by Garcetti.
In Garcetti, the Supreme Court held that “when public employees make statements
pursuant to their official duties, the employees are not speaking as citizens for First
Amendment
purposes, and the Constitution does not insulate their communications from emplo
yer
discipline.” 547 U.S. at 421. The Supreme Court further stated that “[t]he proper
inquiry is a
factual one,” and cautioned that neither an employee’s job description nor the place
where the
speech was made is dispositive.

at 420-21, 424-25.

The Amended Complaint states that the Board and Romano retaliated agains
t Plaintiff
after he “conducted an informational meeting for parents of [Woodside] and,
through a power
point presentation, explained to the parents what [Romano’s redistricting plan] would
involve
and that the proposed changes would require students to cross heavily trafficked
streets and
would be unsafe.” (Am. Compi.

¶ 30.) The Amended Complaint does not, however, state that

Plaintiff conducted this meeting as a citizen rather than pursuant to his officia
l duties as Principal
of Woodside. In his Opposition, Plaintiff simply argues that this issue should
not be decided at
this stage of the litigation. However, even if it were premature for this Court
to determine
Plaintiffs status at the time of his allegedly protected speech, without any
facts supporting the
notion that his speech was made was as a citizen, Plaintiff’s First Amendment
claim cannot
stand. $çç

Creasy v. Slippery Rock Area Sch. Dist., No. 12-00953, 2013 WL 549236, at *4

(W.D. Pa. Feb. 12, 2013) (“A retaliation claim will not survive a Motion
to Dismiss unless the
employee is able to provide facts supporting a plausible inference she that
she spoke as a citizen.

Accordingly, count five is dismissed without prejudice.
F. Count Six

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i. Free Speech

Count six alleges that all Defendants violated Plaintiff’s rights under the NJCRA by
retaliating against him for engaging in free speech concerning Romano’s propos
al for school
redistricting. “[T]he free speech clause of the New Jersey Constitution is generally
interpreted as
coextensive with the First Amendment.” Borden v. Sch. Dist. of Twp. of E. Brunsw
ick, 523 F.3d

153, 168 (3d Cir. 2008) (internal quotations and citation omitted). As discussed
above, this Court
is dismissing Plaintiff’s First Amendment claim in count five without prejudice
as to Romano
and the Board. Accordingly, the free speech claim in count six is also dismissed
as to Romano
and the Board without prejudice.
With respect to Luciano and the FLEA, the only argument that they make
concerning the merits of count six is that because free speech under the
NJCRA is
interpreted in the same manner as free speech under the First Amendment, “the
Amended
Complaint fails to state a free speech retaliation claim under the New Jersey
Constitution
for the same reasons as set forth in response to Count Five.” (ECF No.
42 at 21.) This
argument, which was lifted straight from the Board’s Motion, cannot
succeed when
asserted by the FLEA and Luciano, as count five is not asserted against these
Defendants,
nor is it mentioned in their Motion. Because, the FLEA and Luciano are asking
this Court
to refer to arguments that they have not made, this Court will not dismis
s the free speech
claim in count six against these Defendants.
Accordingly the free speech claim in count six may proceed against the
FLEA and
Luciano.
ii. Substantive and Procedural Due Process
Count six also alleges that all Defendants violated Plaintiff’s substantive
and procedural

19

due process rights under the NJCRA. However, this Court expressly denied Plainti
ff’s request to
add such claims to the Amended Complaint in its prior opinion.
(Sçç ECF No. 30 at 16.)
Accordingly, the substantive and procedural due process claims in count six are
dismissed with prejudice as to all Defendants.
IV.

CONCLUSION

For the foregoing reasons, Romano’s Motion to Dismiss is granted, the
Board’s Motion
to dismiss is granted, and the FLEA and Luciano’s Motion is granted in part
and denied in
part. Count one is dismissed with prejudice as to Romano and the Board.
Count one may
proceed against the FLEA and Luciano. Count two is dismissed withou prej
t
udice. Count three is
dismissed with prejudice. Count four is dismissed with prejudice. Count five
is dismissed
without prejudice. The free speech claim in count six is dismissed without preju
dice as to
Romano and the Board. The free speech claim in count six may procee
d against the FLEA and
Luciano. The substantive and procedural due process claims in count six
are dismissed with
prejudice.
Plaintiff may filed a Second Amended Complaint within 30 days of
the date of the
accompanying Order to cure the pleading deficiencies and to include
those particular
amendments discussed above. Plaintiff’s failure to do so may result in
dismissal of counts two,
five, and the free speech claim in count six (as to Romano and the Board)
with prejudice upon
application by the Defendants.
An appropriate order follows this Opinion.

/

(
Jose L. Linares, U.S.D.J.

Date:
Original:
cc:

Juiyd/_, 2014
Clerk’s Office
Hon. Joseph A. Dickson U.S.M.J.
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All Counsel of Record
File

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