ROTANTE v. FRANKLIN LAKES BOARD OF EDUCATION et al
Filing
65
OPINION fld. Signed by Judge Jose L. Linares on 11/20/14. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DOMlNlCK D. ROTANTE,
Civil Action No. 13-3380 (JLL) (JAD)
P1aintift
OPINION
V.
FRANKIJN LAKES BOARD OF
EDUCATION, et al.,
Defendants.
LINARES, District Judge.
This matter comes before the Court upon the Motions of i) Frank Romano III
(“Romano”) (ECF No. 58); ii) the Franklin Lakes Board of Education (the “Board”) (ECF No.
57); and iii) the Franklin Lakes Education Association (the “FLEA”) and Donna Luciano (ECF
No. 59) to Dismiss the Second Amended Complaint (“Complaint” or “SAC”) (ECF No. 53) 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.
I.
1
BACKGROUND
Plaintiff is the former Principal of the Woodside Avenue Elementary School
The following facts are taken solely from Plaintiff’s Second Amended Complaint and are taken as true solely for
the purpose of this motion.
1
(“Woodside”) located in Franklin Lakes, New Jersey. (SAC at ¶ 2.) Woodside is part of the
Franklin Lakes School District (the “District”). (Id.) Romano has been 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. (Id.
¶
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. (Id.
¶
14.) Plaintiff 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 received confirmation from the Board that it would hold his comments “strictly
confidential.” (ld.
¶
15.) Plaintiff then truthfully answered questions about Romano’ s prior
candidacy for the Curriculum Director position. (Id.
¶
16.) For example, Plaintiff explained that
Romano was evasive when asked why he left his prior position as Assistant Superintendent with
the Town of Milbum, and that members of the interview committee knew that many parents and
officials in Millbum demanded that Romano leave. (Id.
¶ 18.) Plaintiff also 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.) At the beginning of
the 2010-2011 school year, Plaintiff was informed by Business Administrator Michael Solokas
and then Board Secretary Fran Syracuse that during the summer of 2010, while the teachers in
2
the District were on summer leave, Romano used threats and intimidation to cause several staff
members to involuntarily meet with him in his office. (Id.
¶ 21.) Plaintiff states that these
teachers included Dan Hoerner and Linda Leader, and that the purpose of the meeting was to
target Plaintiff and attempt to collect negative statement about him. (Id.) Syracuse then informed
Plaintiff that after Romano collected the statements, he manipulated and enhanced them, and
then broadcasted them to teachers, administrators, and Board Members 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.)
In January 2011, Romano forced the then Middle School Principal, Marco Cera, to
resign. (Id.
¶ 26). 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].” (Id.) Plaintiff claims that Board
Member Christine Christopoul told him to “watch [his] back,” because Romano was going to
come after him. (Id.)
In February 2011, during a public meeting open to Franklin Lakes residents, Romano
gave a presentation that included recommendations for redistricting. (Id.
¶ 27.) Shortly before
Romano’s presentation, certain parents approached Plaintiff with many questions regarding the
redistricting. (Id.
¶ 30.) Thereafter, Plaintiff held a “discussion,” with approximately thirty
individuals in attendance, to discuss Plaintiffs thoughts and opinions regarding the proposed
redistricting plan and its impact. (Id.
¶J 30-38.) Romano, Christopoul, and Board Members
Bennett and Schwartz appeared at his presentation unannounced and chastised Plaintiff in front
of the parents. (Id.
¶ 39.) Thereafter, for the next several months, Romano “doubled his efforts”
towards finding a way to get rid of Plaintiff. (Id. ¶41.)
3
By a memorandum dated June 29, 2012, Marie Warnke, Grievance Chair of the FLEA,
sent Romano a “Level 2” grievance against Plaintiff (the “Grievance”), citing unprofessional
conduct. (Id.
¶ 48.) 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.
¶ 45.) At the end of the email, Luciano wrote that “no one
is coming forward voluntarily,” but is “being forced into this by me.” (Id.
¶ 46) Plaintiff has
since been informed 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. (Id.
¶ 47.) 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. (Id.
¶J 49-50.) For example, on July 9, 2012, Noelle Saizano, a member of the
Woodside staff, wrote an email to Luciano expressing anger that the Grievance stated that it was
on behalf of all staff. (Id.
¶ 52.) Additionally, on August 10, 2012, numerous Woodside staff
members wrote a letter to Romano expressing their desire to retain Plaintiff as Principal. (Id.
¶
53.)
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. (Id.
¶f 54-65.) Plaintiff further
states that Defendants used the Grievance as pretext to threaten him with legal actions that would
harm his career. (id.
¶ 66.) 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. (Id.
¶ 67.) Also, during summer 2012, Romano told Plaintiff
that the charges “weren’t going away,” and that if Plaintiff did not take action he would lose his
job. (Id.
¶ 69). In September and October of 2012, after Plaintiff submitted his resignation,
4
Salzano informed Plaintiff that the Grievance was never presented to the Grievance Committee
and was never voted upon. (Id. ¶61.)
Plaintiff further claims that each Defendant allowed him to sign a separation agreement, a
resignation letter, and a release of claims (collectively the “Separation Agreement” or the
“Agreement”), which relinquished his tenure, even though they knew the Grievance was invalid.
(Id.
¶J 84-96.) Plaintiff contends that Kathie Schwartz, Board President, “literally cried to
that he should not have to go but Romano could not be stopped.” (Id.
[him]
¶ 75.) Plaintiff also asserts
that Schwartz told him that she could not help him fights the charges in public because “Romano
and the Board’s counsel were too strong.” (Id.
¶ 76.)
Plaintiffs counsel at the time failed to inform Plaintiff that the Grievance had not been
properly voted upon and that if Plaintiff chose to challenge the Grievance, any suspension
without pay would only last 120 days, at which point his pay would be reinstated until an
investigation was completed. (Id.
¶ 86.) Plaintiff
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.
¶ 87.)
Plaintiff had no practical choice but to sign
the Separation Agreement, and that Plaintiff would not have done so without the
misrepresentations made by Defendants. (Id.
¶J 89-90.)
The Separation Agreement contains a confidentiality and non-interference provision,
which states that the parties are not to discuss or communicate with anyone its terms. (ECF No.
53, Ex I-I ¶ 7.) The Separation Agreement also states that it will be rendered void if the Board
does not fulfill its terms. (ECF No. 53, Ex. H ¶ 12.) Following the execution of the Separation
Agreement, the Board publicly released information that Plaintiff would no longer be Principal
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of Woodside. (SAC
¶ 112.) Due to the public outrage surrounding the way Plaintiff was treated,
Romano and certain Board members made public statements defaming and slandering Plaintiff in
an attempt to defend themselves. (Id.
¶ 115-116.) For example, Plaintiff was informed by two
individuals that at a Franklin Lakes Republican Meeting in Fall 2012, Board Member James
Martino publicly stated that “[playing off [Plaintiffj was the best $150 grand we ever spent” and
“I know things you don’t know.” (Id.
¶ 118.) Bennett also purportedly stated at the same meeting
that Plaintiffs office was “used as a bedroom.” (Id.) Plaintiff contends that these statements
violated the confidentiality and non-interference provision of the Separation Agreement. (Id.
¶
119.)
On or about October 26, 2012, Plaintiff filed a lawsuit in the Superior Court of New Jersey
against the Board and Romano. (Id.
¶
124.) Plaintiff voluntarily withdrew this lawsuit, without
prejudice, in order to file an application of employment for his prior position as Principal, which
was still open. (Id.
¶
125.) The Board did not respond to his application and Plaintiff was not
provided an interview. (Id.
¶
127.) Romano took affirmative actions to prevent the Board from
considering Plaintiffs application, and Plaintiff was informed that Romano publicly declared to
the Board that under “no circumstances” would he agree to allow Plaintiff to regain his position.
(Id. ¶1J 132-133.)
Finally, Solokas and counsel for the Board participated in a November 13, 2013 telephone
hearing regarding the appeal of the denial of Plaintiff’s unemployment benefits. (Id.
¶ 135.) During
the hearing, statements were made regarding the charges brought against Plaintiff, and such
statements violated the Separation Agreement. (Id.
¶J
137-38.) Then, in May 2013, Plaintiff was
contacted by the Superintendent of River Edge, who informed Plaintiff that the Town has just
completed an unsuccessful search for candidates for the position of Elementary Principal. (Id.
6
¶
141). The Superintendent then asked Plaintiff if he would like to interview for the position. (Id.)
After interviewing, Plaintiff learned that the interview went well, but River Edge could not offer
Plaintiff the job because members of the Cresskill School Board labeled Plaintiff as a “problem”.
(Id.
¶ 145.) Plaintiff was also denied a position after interviewing with the Riverdale School
system. (Id.
¶J 146, 149.) Finally, in May 2014, Plaintiff interviewed for the position of Assistant
Principle Elementary, in the Mamaroneck School System, but was informed by Paul Arilotta, then
Human Resources Interim, that the Board members told Arilotta that he should not hire Plaintiff.
(Id.
¶J 150-152.)
IL
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. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare 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 inferences in favor of the nonmoving party. See Phillips v. Cntv. ofAllegheny, 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.” Iqbal, 556 U.S. at 678. Thus, legal conclusions draped in the guise of factual
allegations may not benefit from the presumption of truthfulness.
III.
DISCUSSION
A. The Motions Before the Court
1. Franklin Lakes Board of Education
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The Franklin Lakes Board of Education (the “Board”) argue that the Plaintiff’s claims
should be dismissed on the following grounds: (1) The Court previously dismissed Plaintiff’s
fraudulent claim against the Board with prejudice, thus, Plaintiff is barred from asserting this
claim in his Second Amended Complaint; (2) Plaintiff has failed to adequately plead a breach of
contract claim because the damages now asserted are bald and conclusory statements and
Plaintiff has failed to perform his own contractual duties under the separation agreement; (3) The
executed release bars consideration of Count Four, as Plaintiff’s fraudulent inducement claim
against the Board was dismissed with prejudice and the outcome of the fraudulent inducement
claim against the association and Luciano have no effect on the board, or alternatively the
Second Amended Complaint fails to state a claim of first amendment retaliation; and (4) The
executed release bars consideration of Count Five, as Plaintiff’s fraudulent inducement claim
against the Board was dismissed with prejudice and the outcome of the fraudulent inducement
claim against the Association and Luciano have no effect on the Board or alternatively the
Second Amended Complaint fails to state a claim under the New Jersey Civil Rights Act.
2. Frank Romano
Defendant Frank Romano (“Romano”) argues that dismissal is warranted on the
following grounds: (1) Plaintiff’s fraudulent inducement and due process claims against Romano
were previously dismissed with prejudice and therefore barred; (2) Plaintiff’s free speech claims
against Romano are barred by the Separation Agreement which the Board entered into in good
faith and without knowledge of any alleged misrepresentation by FLEA of Luciano; (3)
Plaintiff’s free speech claims against Romano are barred by the separation agreement, which
Plaintiff fails as a matter of law to demonstrate was breached or should be rescinded; and (4)
Plaintiff’s free speech retaliation claims in Counts Four and Five fail as a matter of law because
S
in criticizing the Board’s redistricting plan the Plaintiff spoke out not as a citizen, but as a
Franklin Lakes School Principal.
3. Franklin Lakes Education Association and Donna Luciano
Defendants Franklin Lakes Education Association (“FLEA”) and Donna Luciano
(“Luciano”) argue that dismissal is warranted on the following grounds: (I) Plaintiff’s
conclusory allegation of fraud and inducement against Luciano and FLEA are devoid of merit;
(2) There is no allegation that Defendants Luciano and FLEA did anything to violate Plaintiffs
First Amendment Free Speech Rights or retaliate against him, therefore Count Four of the
Amended Complaint should be dismissed against Luciano and FLEA; (3) Defendants Luciano
and FLEA did not violate any of Plaintiffs rights under the New Jersey Civil Rights Act and
Count Five of the Amended Complaint should be dismissed; and (4) Any claims made against
Luciano individually, are barred by the release of claims given to employees in the settlement.
4. Plaintiff’s Opposition
Plaintiff responds to the Defendants’ motions by arguing: (1) Plaintiff has sufficiently
met the pleading requirements to assert causes of actions against the Defendants; (2) The Court
previously held that Plaintiff has sufficiently pleaded a claim for fraud as to Defendants FLEA
and Luciano; (3) Count Two of Plaintiffs Complaint adequately pleads breach of the Separation
Agreement and damages subsequent thereto; (4) Pursuant to the specific terms of the Separation
Agreement, Plaintiffs resignation are void due to the Board’s breach of the Agreement’s
confidentiality and non-interference clauses; (5) The executed release is a nullity in light of the
Defendants Luciano and FLEA’s fraudulent misrepresentation upon which Plaintiff properly
relied when agreeing to enter into the separation agreement and release; (6) Plaintiffs free
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speech and retaliation claims in Count Four are proper as Plaintiff was acting as a citizen, not an
employee; and (7) For purposes of the NJCRA, the Defendants were each acting under color of
law, as that phrase is interpreted under the act.
B. Count One
To state a claim for fraudulent misrepresentation or omission under New Jersey law, a
plaintiff must establish: “(1) a material misrepresentation [or omission] of a presently existing or
past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other
person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.”
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 misrepresentations
and what specific misrepresentations were made. See, e.g., Frederico v. Home Depot, No. 05—
5579, 2006 WL 624901, at *2 (D.N.J. Mar. 10, 2006).
As expressed in the Court’s previous Opinion (ECF. No. 53), Plaintiffs claims of fraud
and inducement in Count One as to Romano and the Board were dismissed with prejudice.
Moreover, the Court allowed the claims in count one to proceed against FLEA and Luciano.
10
Despite failing to explain why Count One continues to assert claims against Defendants that
were previously dismissed with prejudice, the Court, once again, holds that the Count One, as it
pertains to Romano and the Board is dismissed with prejudice. Count one, as to FLEA and
Luciano, may proceed.
C. Counts Two and Three
Counts two and three allege breach of contract claims against the Board. Plaintiff
amended his Complaint to add a separate count for breach of contract, enforcement of
contractual terms for relief against the Board. In this count, Plaintiff alleges that pursuant to the
terms of the Agreement, the Agreement itself and Plaintiff’s resignation are void due to the
Board’s breach of the Agreement’s confidentiality and non-interference clauses. “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
contractual duties.” Video Pipeline, Inc. v. Buena Vista Home Entm’t Inc., 210 F. Supp. 2d 552,
561 (D.N.J. 2002).
In its previous Opinion, the Court dismissed Count Two of the Complaint without
prejudice. Plaintiff was allowed to amend his claim in order to assert damages with the requisite
level of specificity. Plaintiff has amended his Complaint to include instances where damages
were suffered by him, as evidenced by paragraphs describing the multiple job opportunities he
lost. (See SAC ¶J 141-152.) However, The Board argues that Plaintiff has not met element four,
by failing to allege that Plaintiff, himself, has performed his own contractual duties.
The Board argues that Plaintiff not only failed to allege that he performed his own
contractual duties, but that Plaintiff also breached the confidentiality, non-interference, and
11
restrictive employment provisions by speaking to others and discovering that the Agreement was
entered into fraudulently. Plaintiff responds by stating that it is illogical to find a breach by
Plaintiff merely learning the truth about the Agreement through communications with members
of the Association and staff members. Moreover, Plaintiff contends that because he alleges that
the Agreement was entered into under a “fraudulent falsehood,” the Agreement is voidable as to
Plaintiff
Section 164 of The Restatement (Second) of Contracts titled, “when a misrepresentation
makes a contract voidable,” states:
If a party’s manifestation of assent is induced by either a fraudulent
or a material misrepresentation by one who is not a party to the transaction
upon which the recipient is justified in relying, the contract is voidable by
the recipient, unless the other party to the transaction in good faith and
without reason to know of the misrepresentation either gives value or relies
materially on the transaction.
Restatement (Second) of Contracts
§ 164 (1981). Despite multiple opportunities for Plaintiff to
amend his breach of contract claim properly, Plaintiff fails to provide any facts which point to
the Plaintiff performing his own contractual duties. Plaintiff has failed to make any allegations as
to how he continued to perform his duties under the Agreement despite the Board’s breach, as
required by element four in a breach of contract action. Moreover, Plaintiff fails to address the
Board’s argument as to why he has not alleged that he performed his contractual duties under the
contract, let alone cite any authority that subscribes to his proposition that he had no duty to
perform after discovering that the Agreement was entered into fraudulently. Although in his brief
Plaintiff argues that the Board breached the separation agreement, Plaintiff does not point to
facts in the Complaint which allege that the Board knew about FLEA and Luciano’s
misrepresentation nor does Plaintiff allege that the Board did not rely on the Agreement in good
faith. Without these facts Plaintiff may not assert that he has the right to void the contract, as
12
explained above by the Restatement. Despite multiple opportunities to plead properly, Plaintiff
has failed to allege that he continued to perform his own contractual duties under the Agreement
or that the Agreement is voidable by Plaintiff. Therefore, counts two and three of Plaintiff’s
Complaint are dismissed with prejudice.
D. Count Four
Count four alleges that Romano, the Board, FLEA, and Luciano violated the First
Amendment by retaliating against Plaintiff for engaging in free speech concerning Romano’s
proposal for school redistricting. The Separation Agreement signed by Plaintiff contains a release
of claims provision which provides:
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 a prior opinion, the Court concluded that this provision 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 “anything which has happened
up to now.” (ECF No. 28 at 9.) Additionally, as the Court stated in its previous Opinion and as
discussed above, Plaintiff has not cured the deficiencies in his fraudulent inducement claim
against the Board. (ECF. No. 51 at 16.) However, Plaintiff has stated a claim for fraudulent
inducement against the FLEA and Luciano that may proceed. Since the implications of this
outcome were unclear, as the parties had not briefed the issue of whether a successful fraudulent
claim against the FLEA and Luciano voids the Separation Agreement as to all Defendants, the
Court reserved ruling on this issue. What is more, the Court dismissed count four as to Romano
without prejudice in order to determine whether Plaintiff could provide facts indicating that his
13
allegedly protected speech was made as a citizen, as opposed to the Principal of Woodside. With
all of the issues being fully addressed by both parties, the Court now addresses these claims.
1. Romano and the Board
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. Independence Twp., 463
F.3d 285, 296 (3d Cir. 2006). Moreover, 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 employer 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. Id. at 420-2 1, 424-25.
In a prior Opinion, this Court found that Plaintiff stated a retaliation claim against
Romano. (See ECF No. 28 at 14.) With respect to element one, Romano had argued that
Plaintiff’s conduct was not constitutionally protected because it fails the test set forth in
Pickering v. Bd. ofEduc., 391 U.S. 563 (1968), which requires courts to “balance the first
amendment interest in protecting the employee’s freedom of expression against the government’s
interest in maintaining discipline and efficiency in the workplace.” McPherson 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 Plaintiffs claim based on the Pickering test. (See ECF
No. 28 at 14.) The Court also rejected Romano’s argument that Plaintiff did not adequately
allege a retaliatory action, finding that being presented with the choice of either signing the
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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 their respective motions, Romano and the Board argue that this claim is barred by the
release of claims provision in the Agreement executed by Plaintiff. Romano and the Board assert
that because the fraudulent inducement claim is dismissed with prejudice as to Romano and the
Board, as well as the fact that Plaintiff has failed to demonstrate that the Board or Romano knew
the Grievance was false or otherwise acted in bad faith when they signed the Separation
Agreement, the claims cannot proceed against either party. Moreover, Romano and the Board
argue that even if the release should not apply to them, the First Amendment claim must still be
dismissed because Plaintiff has failed to present facts sufficient to raise a reasonable inference
that he spoke as a citizen when he conducted a power point presentation for parents about
Romano’s redistricting plan.
Section 164 of The Restatement (Second) of Contracts titled, “when a misrepresentation
makes a contract voidable,” states:
If a party’s manifestation of assent is induced by either a fraudulent
or a material misrepresentation by one who is not a party to the transaction
upon which the recipient is justified in relying, the contract is voidable by
the recipient, unless the other party to the transaction in good faith and
without reason to know of the misrepresentation either gives value or relies
materially on the transaction.
Restatement (Second) of Contracts
§ 164 (1981).
As stated above and in its previous Opinion, Plaintiff may not assert a claim that Romano
or the Board fraudulently induced Plaintiff to execute the Separation Agreement. However, a
fraudulent inducement claim against FLEA and Luciano may proceed. In regards to the
15
Separation Agreement, the facts alleged by Plaintiff fail to establish that the Romano or the
Board had reason to know of the fraudulent inducement made by FLEA and Luciano. Plaintiff
does not state that the Board nor Romano informed him that the Grievance had been properly
voted upon. Further, Plaintiff 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. Without alleging facts that indicate Romano or the
Board knew of the misrepresentation, nor facts that indicate Romano did not materially rely on
the Agreement, the Court does not find that the contract is voidable by Plaintiff. Thus, the
Separation Agreement is valid as to Romano and the Board and releases this claim against them.
Count four as to Romano and the Board is dismissed with prejudice.
2. FLEA and Luciano
FLEA and Luciano argue that despite Plaintiff being given the opportunity to amend to
include allegations that he spoke as a citizen, Plaintiff has still failed to include allegations that
indicate the FLEA and Luciano interfered with Plaintiff’s right to speak. Moreover, FLEA and
Luciano argue that Plaintiff has failed to provide any facts indicating how they could or did
retaliate against Plaintiff. Plaintiff curiously does not address these arguments in his brief, but
rather focuses on his alleged speech as a citizen. The Court agrees with FLEA and Luciano,
Nowhere in the now Second Amended Complaint does Plaintiff express any of the above
required elements as they pertain to FLEA and Luciano. Plaintiff does not attempt to argue in his
Opposition Brief how any of facts listed in the Complaint apply to these required elements either.
Most importantly, Plaintiff does not allege that FLEA and Luciano were aware of his comments
about the redistricting, let alone a causal link between his speech and any alleged retaliatory
action taken by FLEA and Luciano. Therefore, despite his multiple chances to amend, as well as
16
____________________
argue against dismissal, the Court finds that Count Four as to FLEA and Luciano is dismissed
with prejudice.
E. Count Five
Count five alleges that all Defendants violated Plaintiff’s rights under the NJCRA by
retaliating against him for engaging in free speech concerning Romano’s proposal 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. Brunswick 523 F.3d
153, 168 (3d Cir. 2008) (internal quotations and citation omitted). As discussed above, this Court
is dismissing Plaintiffs First Amendment claim in count five with prejudice as to Romano, the
Board, FLEA, and Luciano. Accordingly, the free speech claim in count five is also dismissed as
to Romano, the Board, FLEA, and Luciano with prejudice.
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. 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 with prejudice as to the Board. Count three is dismissed with
prejudice as to the Board. Count four is dismissed with prejudice as to all Defendants. Count five
is dismissed with prejudice as to all Defendants.
An appropriate Order follows this Opinion.
DATE November
,
7/
2014
Jose L. Linares
United States District Judge
/
/
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