KNOX v. UNION TOWNSHIP BOARD OF EDUCATION et al

Filing 21

OPINION. Signed by Judge Kevin McNulty on 2/23/2015. (dmr)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:13-5875

Jenyé Viki KNOX,

(KM)(MAH)

Plaintiff,
V.

OPINION

UNION TOWNSHIP BOARD OF
EDUCATION et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Jenyë Viki Knox, a public school teacher, was suspended
after making comments on Facebook expressing her religious-based
disapproval of a school billboard that contained homosexual content, and
of homosexuality in general. The school board brought tenure charges
against her before the Commissioner of Education, aimed at obtaining
her dismissal. Knox entered into a settlement agreement with the board,
under which she voluntarily resigned and refunded the salary paid to her
during her suspension. The settlement agreement did not include any
more general release of federal or state law claims. Knox has now
brought this action, claiming that the school board and its employees
discriminated against her on the basis of her race and religion, violated
her rights under the First, Fifth, and Fourteenth Amendments to the
United States Constitution, and violated her rights under the Free
Exercise and Enjoyment of Religion Clauses of the New Jersey
Constitution. She seeks monetary damages and injunctive relief,
including reinstatement to her teaching position.

1

Now before the court is Defendants’ motion (ECF No. 6) to dismiss
the complaint. As grounds for dismissal, they cite Younger abstention,
the primary jurisdiction doctrine, and failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 1). For the reasons set
forth below, the motion to dismiss is granted in part and denied in part.
I.

BACKGROUND
A.

Allegations of the complaint
1

The plaintiff, Jenyé Viki Knox, is a New Jersey resident who was
employed as a special education teacher at the Union Township High
School. (Compl.

¶J7, 14). Knox is African-American, a fact relevant to her

claims of discrimination. (Id. ¶18).
Defendant Union Township Board of Education (the “Board”) is a
public entity established, organized, and authorized under the laws of
New Jersey, with the authority to sue and be sued. (Id. ¶8). District-wide,
the Board develops, adopts, implements, and enforces school policies. As
most relevant here, the Board administers, operates Union Township
High School (the “School”), and supervises the School’s employees. (Id.
¶9).
Defendant Dr. Patrick Martin is the Superintendent of the Union
Township High School District (“District”). (Id.

¶ 11). Martin administers

the Board’s policies regarding teacher activities on and off campus. (Id.).
Defendant James Damato is the attorney for the Board. (Id.
Defendant Edward Gibbons is the principal of the School. (Id.

¶ 13).

¶ 12).

Damato and Gibbons have administrative duties in the School, where
they oversee the activities of teachers and student clubs. (Id. ¶J12_13).2

The facts that follow are taken from the complaint (ECF No. 1). Solely for
purposes of the Rule 12(b)(6) motion to dismiss, they are assumed to be true.
2

I will refer to the Defendants collectively as the “School Defendants.”

2

Knox was first employed as a special education teacher on January
1, 2000. (Id. ¶14). She was granted tenure on January 2, 2003. (Id. ¶15).
Throughout her employment, Knox has remained in good standing and
has received good evaluations. (Id. ¶ 16).
At the School, Knox held two ancillary positions of a religious
nature. She was the academic advisor for The Seekers Club, which is a
Christian Bible study group, and she was the advisor for the School’s
Gospel Choir. (Id. ¶19). Knox was also an ordained minister. (Id.). The
School Defendants knew she held these positions. (Id.).
In September 2011, Knox posted a public message on Facebook
stating that a school billboard that promoted alternative lifestyles did not
accord with her religious beliefs. (Id.

¶ 17).

Knox’s Facebook posts,

discussed herein, were not done using school equipment or during
school hours. (Id.). Facebook users commented on Knox’s post, and Knox
responded. (Id. ¶ 18). Her responses included an explanation of her
religious objections to the billboard; statements about the Bible and
homosexuality; characterizations of homosexuality as a sin and
disobedience to God; and descriptions of salvation through Jesus Christ.
(Id.). Knox’s comments prompted racist posts from other users, who are
not identified. (Id.).
On or about October 11, 2011, the School Defendants became
aware of Knox’s Facebook posts. (Id. ¶20). Without prior notice, Knox
was removed from her classroom. The removal took place during school
hours, in front of her students and other teachers. (Id.). Knox was taken
to a small room; present there were Defendant Damato, Assistant
Superintendent Greg Tatum, and Vice President of Union Township
Education Association (“UTEA”) Jim Gross. (Id.).
3

UTEA represents the teachers in the district.

3

Knox was asked about the Facebook posts. (Id. ¶21). She alleges
that she “was then pressured by these individuals to say that her
religious beliefs were wrong, and felt extremely intimidated by them.”
(Id.). She alleges that the individuals spoke critically about her religious
beliefs and her expression of them. (Id.). Those individuals did not

discuss or express “dismay” about any of the racist third-party
comments to her Facebook posts. (Id.). That silence, says Knox,
amounted to “tacit[] approv[al] of the racism she was subject to.” (Id. 22).
Apparently Knox returned to the classroom. On October 13, 2011,
however, she was again removed from her classroom. (Id. ¶23). UTEA
President Ann Margaret Shannon took Knox aside and “told [Knox]
privately to do whatever she was told without questioning it.” (Id. ¶24).
Knox was then questioned, this time by Superintendent Martin, Principal
Gibbons, and Shannon. (Id.) Martin told Knox that she would be
suspended with pay because of her Facebook posts. (Id.).
Knox alleges that no one at this second meeting mentioned the
racist comments to her Facebook posts. Instead, they “did precisely what
the racists had advocated for on the Facebook posts and removed [Knox]
from her position.” (Id. ¶25). Knox alleges that her suspension was not
accompanied by due process. (Id.). The suspension, she says, was “part
of the ongoing pattern of intimidation the Board leveled against [her] as a
result of her religious beliefs and/or race,” and it “represented the
Board’s attempt to undermine [her] reputation and humiliate her.” (Id.)
Following her suspension, Knox was taken back to her classroom.
She was told to take her personal belongings and leave the School. (Id.
¶26). This, too, occurred in front of her students and other teachers,
causing her “further humiliation and embarrassment.” (Id.).
On October 18, 2011, the Board held a public meeting. The
purpose of this meeting, Knox alleges, was to continue the Board’s

4

“program of intimidation and humiliation against her.” (Id. ¶27).
On December 23, 2011, the Board’s attorney, Damato, informed
Knox that she would be suspended without pay and that Tenure Charges
would be filed against her. (Id. ¶29).
4
Following these events, Knox’s health allegedly deteriorated. On
June 30, 2012, she resigned from her teaching position as a result of
“the stress of the intimidation, harassment, and emotional distress that
resulted from the investigation and the Defendants’ actions.” (Id. ¶30—31
and Ex. A).
B.

Other facts from the moving papers

The parties’ moving papers fill in some of the details of the events
related in the complaint. Although a Rule 12(b)(6) motion is generally
confined to the complaint, these facts provide useful background
information; are referred to in both sides’ moving papers; do not seem to
be seriously in dispute except as noted; and in any event consist largely
of public documents appropriate for judicial notice.
On December 21, 2011, the School District filed Tenure Charges of
insubordination and “conduct unbecoming” against Knox. (Cohen Cert.
Ex. B see also P1. Opp. 10, ECF No. 10). Knox filed an Answer to the
;
5
Tenure Charges, asserting six affirmative defenses, four of which were
based on the First Amendment. (Cohen Cert. Ex. C).
On October 26, 2012, some four months after Knox’s resignation,
the parties settled the Tenure Charges. (Cohen Cert. Ex. D). Pursuant to
As noted below, administrative proceedings were filed against Knox on
December 21, 2011, and later settled. The Complaint, while claiming
deprivation of due process, says little or nothing about the procedures that were
followed.
Certification of Jonathan F. Cohen, Esq., with exhibits, dated November
20, 2013, submitted in support of the School Defendants’ motion to dismiss,
ECF No. 6-2, cited as “Cohen Cert.”.
5

5

a Settlement Agreement, Knox agreed to resign and refund the $5,854.29
she received as pay during her period of suspension. The parties agreed
to forgo a formal hearing. (Id. at 2; P1. Opp. 10). On November 13, 2012,
the Board approved the settlement. (Cohen Cert. Ex. D, attachment).
On November 29, 2012, Administrative Law Judge JoAnn LaSala
Candido (the “AU”) approved and so-ordered the Settlement. (Cohen
Cert. Ex. D at 3). On December 14, 2012, the Commissioner of Education
filed a final decision that approved the settlement and dismissed the
Tenure Charge matter, subject to the parties’ compliance with the terms
of the Settlement. (Cohen Cert. Ex. E).
As a teacher, Knox was represented by the Union Township
Education Association (“UTEA”). (Cohen Cert. ¶2)). Her employment was
subject to the terms of a Collective Bargaining Agreement (“CBA”)
between the UTEA and the Board. (A copy of the CBA is at Cohen Cert.
Ex. A)). The CBA provides for resolution of disputes through a grievance
procedure that culminates in binding arbitration. (Id. (citing CBA, Cohen
Cert. Ex. A, Art. 3)).
C.

This Action

On October 2, 2013, Knox filed the complaint in this action. The
complaint alleges ten causes of action: (1) constructive discharge; (2)
violation of Due Process; (3) violation of the Free Speech Clause; (4)
violation of the Free Exercise Clause; (5) violation of the Establishment
Clause; (6) violation of the Equal Protection Clause; (7) breach of
contract; (8) violation of 42 U.S.C.

§ 1981; (9) intentional infliction of

emotional distress against the School Defendants in their official and
individual capacities; and (10) violation of the Free Exercise and
Enjoyment of Religion Clauses of the New Jersey Constitution. Knox
seeks declaratory and injunctive relief as well as compensatory and
punitive damages. Specifically, Knox seeks “back pay, front pay,

6

reinstatement of tenure, compensation for emotional pain and suffering,
reimbursement of costs, attorney fees,” and any other equitable relief this
Court may award. (Compi. ¶2).
The complaint asserts that the Court has federal-question
jurisdiction over the claims involving the First and Fourteenth
Amendments, 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. See 28 U.S.C. § 1331. Knox invokes the
Court’s supplemental jurisdiction over the state law claims, which are
related to the federal claims and arise from the same facts. See 28 U.S.C.
§ 1367.
The School Defendants move to dismiss based on Younger
abstention, the primary jurisdiction doctrine, failure to exhaust
contractual remedies, failure to timely file a Tort Claims Act notice, and
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
II.

DISCUSSION
A. Rule 12(b)(6) standard

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 Products, 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. N.J.
Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J., 760
F.3d 297, 302 (3d Cir. 2014).6
Federal Rule of Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintifi’s obligation
See n. 7 & 8, infra, regarding motions to dismiss on grounds of
abstention and primary jurisdiction.

6

7

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 Atl. 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 Umland v. PLANCO Fin.
Sew., Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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
it asks for more than a sheer
to a ‘probability requirement’.
.

.

possibility.” Iqbal, 556 U.S. at 678.
B. Motion to dismiss based on Younger abstention (Counts
II, III, IV, V, VI, VIII)
The School Defendants’ motion to dismiss rests in part on the
federalism-based abstention doctrine of Younger v. Harris, 401 U.S. 37
(1971).7 Younger, they say, bars Knox’s Free Speech claim, Free Exercise
claim, Establishment claim, and religion-based Equal Protection claim
(Counts III, IV, V, and VI) because they were presented as defenses in the
Tenure Charge proceeding, which was settled. (Def. Mot. 8). Although
Knox did not present her due process claim (Count II), the race-portion of
her Equal Protection claim (Count VI), and her Section 1981 claim
Strictly speaking, Younger abstention is not analyzed under either Rule
12(b)(1) or 12(b)(6). A Younger motion to dismiss is “in the nature of’ a 12(b)(6)
motion in that matters outside of the pleadings are not to be considered.
Gwynedd Properties, Inc. v. Lower Gwynedd Twp, 970 F.2d 1195, 1206 n. 18 (3d
Cir. 1992); see also Dutton v. Court of Common Pleas of Philadelphia Domestic
Relations Div., 215 F. Appx 161, 162 (3d Cir. 2007) (treating Younger
abstention separately from a 12(b)(6) motion)). The complaint does not describe
the administrative proceedings in any detail. Both sides’ papers, however, refer
to them at length, and I have considered the filed pleadings and orders as
matters appropriate for judicial notice. See generally Fed. R. Evid. 201.

8

(Count VIII) as defenses to the Board’s Tenure Charges, she could have
done so. Therefore, say the defendants, these claims, too, should be
dismissed. (Def. Mot. 8).
The Settlement by its terms extended only to the Tenure Charge.
The Board denies Knox’s assertion that they explicitly agreed to her
reservation of rights as to other claims. It is undisputed, however, that
the Board only settled the Tenure Charge, and did not obtain a general
release as part of that Settlement.
The Younger abstention doctrine requires federal courts to abstain
from interfering with certain pending state proceedings. See Gonzalez v.
Waterfront Comm’n of N.Y. Harbor, 755 F.3d 176, 180 (3d Cir. 2014). It
applies rarely, “in only three ‘exceptional’ classes of cases: (1) ‘state
criminal prosecutions,’ (2) ‘civil enforcement proceedings,’ and (3) ‘civil

proceedings involving certain orders that are uniquely in furtherance of
the state courts’ ability to perform their judicial functions.”’ Id. (citing
Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013)).
Sprint marked a partial return to the origins of Younger as a
doctrine prohibiting interference with state criminal or quasi-criminal

proceedings. Id. at 181. Earlier case law, however, remains relevant. In
particular, the court must consider three factors identified in Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982); see
Sprint, 134 S.Ct. at 584. Condensing somewhat, those three factors are
that there be (1) an ongoing or pending state or administrative judicial

proceeding (2) implicating important state interests (3) in which the
plaintiff has an opportunity to raise the issues she seeks to litigate in
federal court.
There is no “ongoing” proceeding with which this action would
interfere. The Tenure Charge was settled long ago, and the Commissioner
adopted the settlement as a final decision.

9

Presumably (although it would have made little sense to do so)
Knox could have appealed to State court the Commissioner’s decision to
adopt the settlement to which she had agreed. To that extent, it might be
said that she failed to exhaust her state appellate remedies. Based on
that non-exhaustion, the School Defendants assert that Knox’s case is
“pending” for purposes of Younger.
Defendants rely primarily on O’Neill v. City of Philadelphia, 32 F.3d
785, 791 (3d Cir. 1994), for the proposition that “where a state
administrative proceeding has become final due to a federal claimant’s
failure to exhaust administrative remedies, [the matter] remains ‘pending’
for Younger purposes.” O’Neill, however, did not involve a fully negotiated
and administratively approved settlement, like the one here. Rather, it
was a case “where a coercive administrative proceeding ha[d] been
initiated by the State in a state forum, where adequate state-court
judicial review of the administrative determination [was] available to the
federal claimants, and where the claimants [had] chosen not to pursue
their state-court judicial remedies, but [had] instead sought to invalidate
the State’s judgment by filing a federal action.” Id.
Here, Knox is not attempting an end-run federal appeal of a state
judgment. The Commissioner’s decision, via settlement, addressed the
issues of tenure and repayment of salary. Knox does not sue to overturn
or invalidate that settlement. Instead, she asserts claims for damages
and other relief based on alleged deprivations of constitutional and other
rights. The Board criticizes Knox for entering into a settlement and
thereby preventing the entry of judgment. But no less than Knox, the
Board agreed to compromise the Tenure Charge in a way that rendered
state-court review moot. When settling the Tenure Charge, the Board
could have attempted to obtain a more general release; it didn’t.
The second Middlesex factor involves the importance of the State’s
interest in the administrative proceeding. Teachers’ conduct and
10

competence are unquestionably important state interests. On the other
hand, however, the Board entered into a settlement that vindicated that
interest to its own satisfaction. The Commissioner found the settlement
to be a responsible one, and approved it. Even now, the School
Defendants state that “the Board had little choice but to accept what
could only be perceived as a favorable settlement.” (Def. Reply Br. at 6)
Finally, addressing the third Middlesex factor, I find abstention
inappropriate because Knox did not have an adequate opportunity to
bring her constitutional claims in the Tenure Charges proceeding. True,
some of her current claims are analogous to defenses that Knox did
assert or could have asserted to the Tenure Charge. But I have nothing
before me to indicate that the administrative proceeding afforded Knox
the opportunity to bring claims at all.
Persuasive here is Frevost v. Twp. of Haziet, 159 F. App’x 396 (3d
Cir. 2005). There, a police officer in Hazlet, New Jersey, was subjected to
disciplinary proceedings and eventually dismissed. He sued the
Township of Haziet and several of its employees under Section 1983.
Even though the administrative disciplinary proceeding remained
pending, and the federal case rested on the same facts, the Third Circuit
found abstention unwarranted. It emphasized three factors: (1) the only
opposing party in the administrative proceeding was the Township, and
not its employees, who were parties to only the federal proceeding; (2) the
only question in the administrative proceeding was whether the officer’s
termination violated state statutes or regulations, not federal law; and (3)
in the administrative proceedings, the officer could not obtain certain
injunctive and monetary relief that he could obtain in federal court. Id. at
398.
Those three factors are present here as well. The only parties to
Knox’s Tenure Charge settlement were Knox and the School District, not
the whole range of parties sued here. The only question before the
11

Commissioner of Education was whether Knox’s conduct was
“unbecoming” under state law. Here, the issues concern the School
Defendants’ potential liability for violating Knox’s federal and state
constitutional rights. In the foregone Tenure Charges proceeding, Knox
could not have obtained anything like the injunctive and monetary relief
that she seeks here.
I observe that much of the School Defendants’ argument seems to
revolve around the possibility of Knox’s obtaining in this action a
particular subcategory of relief: an injunction restoring her to her
teaching position. Whether such relief is barred by the Settlement is an
issue I do not reach here. The larger point is that the claims are not
barred. The facts here do not make out a case for Younger abstention.
C. Motion to dismiss based on primary jurisdiction doctrine
(Counts III, IV, V, VI, X)
The School Defendants next argue that Counts III, IV, V, VI, and X
must be dismissed because the Commissioner of Education had primary
jurisdiction to determine whether Knox’s conduct violated New Jersey
school law. (Def. Mot. 17).8 Their argument is not persuasive. This federal
action does not seek a determination of whether Knox’s conduct was
“unbecoming” within the meaning of New Jersey school law.
The doctrine of primary jurisdiction applies to claims which
contain some issue that lies “within the special competence of an
administrative agency.” Reiter v. Cooper, 507 U.S. 258, 268 (1993). In a
proper case, a court will refer the matter to the relevant agency and stay
the court case pending the completion of administrative proceedings. Id.

“The doctrine of primary jurisdiction, despite its name, does not
implicate the jurisdiction of a federal court.” James v. Global Tel*Link Corp., No.
*5 (D.N.J. Sept. 8, 2014) (quoting
13-4989-WJM-MF, 2014 WL 4425818, at
Puerto Rico Mar. Shipping Auth. v. Valley Freight Sys., Inc., 856 F.2d 546, 549
(3d Cir. 1988)). As in the case of Younger abstention, this motion to dismiss is
seemingly best understood as a quasi-Rule 12(b)(6) motion.
B

12

The doctrine “serves to maintain uniformity and consistency, uphold the
integrity of a regulatory scheme, and establish a ‘workable relationship
between the courts and administrative agencies.’” Coyle v. Hornell
Brewing Co., No. CIV.08-02797 (JBS), 2010 WL 2539386, at *3 (D.N.J.
June 15, 2010) (quoting MCI Telecomms. v. Teleconcepts, Inc., 71 F.3d
1086, 1105 (3d Cir. 1995)).
The case law has developed a four-factor test for determining
whether the primary jurisdiction doctrine applies:
(1) whether the question at issue is within the conventional
experience of judges or whether it involves technical or
policy considerations within the agency’s particular field
of expertise;
(2) whether the question at issue is particularly within the
agency’s discretion;
(3) whether there exists a substantial danger of inconsistent
rulings;
(4) whether a prior application to the agency has been made.
Id.
Taking factors 1 and 2 together, I find that this case does not pose
technical issues committed to an agency’s discretion. True, under
N.J.S.A.

§ 18A:6-9, the Commissioner has jurisdiction over “all

controversies and disputes arising under the school laws.” But “[t]he
statute clearly implies that where the controversy does not arise under
the school laws, it is outside the Commissioner’s jurisdiction even
though it may pertain to school personnel.” Gaibraith v. Lenape Reg’l
High Sch. Dist., 964 F. Supp. 889, 895 (D.N.J. 1997) (internal quotation
and citation omitted). And although constitutional, state law, and
common law claims may “relate to [a plaintiff’s] public school
employment, none of these claims arises under the school laws.” Id.
(internal quotation and citation omitted) (ruling that Title VII, NJLAD,
and breach of contract claims do not arise under school laws); see e.g.,

13

Stallone v. Camden Cnty. Technical Sch. Bd. of Educ., No. CIV. 12-7356
RBK/JS, 2013 WL 5178728, at *8 (D.N.J. Sept. 13, 2013) (“Thus, while
the [Office of Administrative Lawj may hear matters such as whether a
school employee’s tenure rights are violated by a compensation decrease,
it does not have jurisdiction to determine whether allegedly retaliatory
employment decisions violate other law.”).
Knox challenges the Board’s treatment of her, as well as its policies
and practices, under the Free Speech Clause, Free Exercise Clause,
Establishment Clause, Equal Protection Clause, and New Jersey’s Free
Exercise and Enjoyment of Religion Clauses. Those are not school law
claims, but rather state and federal constitutional claims. As such, they
are not committed to the Commissioner’s jurisdiction and do not invoke
any specialized administrative expertise. The question at issue is not
whether Knox should be disciplined. Rather, this Court is asked to
determine whether the School Defendants’ conduct violated Knox’s
constitutional rights. The Commissioner’s jurisdiction does not
encompass adjudication of claims at law or equity that the Board’s
actions or policies violate constitutional law. Nor are such determinations
committed to the Commissioner’s discretion.
For similar reasons, there is little danger of inconsistent rulings.
Should a particular form of relief—reinstatement, say—contravene the
parties’ settlement agreement, that may be brought to this court’s
attention. The mere existence of a settlement agreement, however, is not
inconsistent with a potential finding of a constitutional violation.
Nor are these claims the subject of a prior application. In her
Answer to the Tenure Charges, Knox raised her constitutional
contentions as defenses, not as claims. In any event, they were never
adjudicated, so there is no danger of disrupting a past judgment.
The doctrine of primary jurisdiction does not bar this action.

14

D. Rule 12(b)(6) motion to dismiss claim for constructive
discharge (Count I)
The School Defendants next argue that Count I must be dismissed
for failure to state a claim of “constructive discharge.” They assert (1)
that constructive discharge is not an independent cause of action, but
rather part of an employment discrimination claim; and (2) that Knox did
not endeavor to remain employed and so her complaint fails to establish
the elements of constructive discharge. (Def. Mot. 2 1—23).
In response, Knox acknowledges that constructive discharge is not
an independent cause of action. See Knabe v. Boury Corp., 114 F.3d 407,
408 n. 1 (3d Cir. 1997) (“[Plaintiff’s] constructive discharge claim, as
presented here, is not a separate ground for relief.”); Matos v. PNC Fin.
Servs. Gip., No. CIV. 03-5320 (RBK), 2005 WL 2656675, at *8 (D.N.J.
Oct. 17, 2005) (“However, constructive discharge is merely a form of
adverse employment action, and is not an independent claim.”); Gilbert v.
Phila. Media Holdings LLC, 564 F. Supp. 2d 429, 440 (E.D. Pa. 2008)
(“Constructive discharge, however, is not an independent claim—it is a
type of adverse employment action that may comprise part of a racial
harassment claim.”)). The motion to dismiss Count I in its current form
is therefore GRANTED.
Pivoting, Knox contends that her claim, although entitled
“constructive discharge,” is actually one for wrongful discharge and
employment discrimination under Title VII. The Court, she says, should
permit her to so amend the claim. (P1. Opp. 26). But such an
amendment, say the School Defendants, would be futile, because Knox
has failed to comply with Title Vii’s mandatory requirement that she have
exhausted administrative remedies. (Def. Reply 10—11).
“In Title VII actions, failure to exhaust administrative remedies is
an affirmative defense in the nature of statute of limitations.” Williams v.
Runyon, 130 F.3d 568, 573 (3d Cir. 1997) (internal citations omitted).

15

“Because failure to exhaust administrative remedies is an affirmative
defense, the defendant bears the burden of pleading and proving that the
plaintiff has failed to exhaust administrative remedies.” Id. (internal
citations omitted). Under Third Circuit precedent, failure to exhaust
administrative remedies under Title VII “is grounds for dismissal on a
Rule 12(b)(6) motion, provided that the defendant has met the burden of
pleading.

.

.

that the plaintiff has failed to exhaust administrative

remedies,” Slingland v. Donahoe, 542 F. App’x 189, 191 (3d Cir. 2013)
(internal quotations and citations omitted). Alternatively, the Third
Circuit has “recognized that sua sponte dismissal may be appropriate
where the plaintiff concedes that he failed to exhaust [administrative
remedies.” Fernandez v. Rose Trucking, 429 F. App’x 145, 146 (3d Cir.
2011) (internal citation omitted).
Knox has made no assertion that she did exhaust her
administrative remedies for purposes of Title VII. Because of her shift of
theory, the School Defendants were not placed on notice that they would
be required to plead and prove non-exhaustion. Under the
circumstances, I will permit amendment only if presented with a proper
motion under Rule 15. Before permitting an amendment, I will require a
showing that amendment would not be futile—i.e., at least a plausible
allegation that the exhaustion requirement is satisfied or should be
excused.
E. Rule 12(b)(6) motion to dismiss claim of due process
violation (Count II)

In Count II, Knox alleges three varieties of due process violation:
(1) a procedural due process violation in that the School Defendants failed
to provide her with notice and a hearing; (2) a procedural due process
allegation that the School Defendants’ practices and policies, or the
standards under which Knox was prosecuted (presumably, in the Tenure
Charge proceeding) are void for vagueness, on their face and as applied;

16

and (3) a substantive due process claim in that that the standards under
which the District prosecuted Knox were overbroad. (P1. Opp. 27—28).
Because at least the first claim is legally viable, I will deny the
motion to dismiss Count II.
Knox alleges that she “was entitled to due process of law before
being suspended and before being constructively discharged from her
employment with the Board.” (Compi. ¶56). Although her allegations
regarding a due process violation are scant, they are sufficient to survive
a Rule 12(b)(6) motion to dismiss.
“The essential requirements of any due process claim are notice
and the opportunity to be heard.” Zappan v. Pa. Bd. of Prob. & Parole,
152 F. App’x 211, 220 (3d Cir. 2005). The notice and hearing must be “at
a meaningful time and in a meaningful manner that is appropriate to the
nature of the case.” Emri v. Evesham Twp. Bd. of Educ., 327 F. Supp. 2d
463, 472 (D.N.J. 2004) (citing Armstrong v. Manzo, 380 U.S. 545, 552
(1965); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950)) (internal quotations omitted). As the Third Circuit has instructed:
[Ijt is by now well established that due process, unlike some
legal rules, is not a technical conception with a fixed content
unrelated to time, place and circumstances. Due process is
flexible and calls for such procedural protections as the
particular situation demands. For instance, the Supreme
Court has rejected the proposition that due process always
requires the State to provide a hearing prior to the initial
deprivation of property. Accordingly, resolution of the issue
whether the administrative procedures provided [j are
constitutionally sufficient requires analysis of the
governmental and private interests that are affected.
Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 220 (3d
Cir. 2009) (internal quotations and citations omitted).
The Supreme Court has laid out three factors courts must use in
determining what process is constitutionally due prior to a deprivation of

17

rights:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest.
Gilbert v. Homar, 520 U.S. 924, 93 1—32 (1997) (quoting Mathews v.

Eldridge, 424 U.S. 319, 335 (1976)) (called the “Mathews analysis”).
A tenured public employee may have the right to certain
procedures prior to suspension and termination. Among these are “oral
or written notice of the charges against [her], an explanation of the
employer’s evidence, and an opportunity to present [her] side of the
story.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)

(internal citations omitted). The Third Circuit has held that a tenured
public teacher could not be suspended without some sort of hearing—
either pre- or post-suspension. See Bradley v. Pittsburgh Bd. of Educ.,

913 F.2d 1064, 1078 (3d Cir. 1990) (“We need not decide in this case
whether [the teacher] was entitled to a pre-suspension hearing, as he
contends, or whether a post-suspension hearing sufficed.

..

.

[The

teacher] received no hearing, either before or after the suspension, and
hence if he was suspended, as the record suggests, he was deprived of
due process.”).
The exact level of process to which a tenured public employee is
entitled, however, is context-specific. For example, the Third Circuit has
held that a teacher’s “due process rights were not violated when he was
placed on paid suspension without a prior hearing after allegations of
serious misconduct and criminal activity in his classroom arose from
credible sources.” Jerrytone v. Musto, 167 F. App’x 295, 30 1—02 (3d Cir.
2006) (not precedential). In that context, a post-suspension hearing
would have satisfied due process requirements.

18

What process is required, and when it is required, are questions
better addressed on a motion for summary judgment. At that stage, the
parties will have presented this Court with sufficient information to
conduct a Mathews analysis.
For now, Knox’s allegations are sufficient to surmount the
threshold of a motion to dismiss. Knox alleges that, prior to her
suspension, some or all of the School Defendants “interrogated” her
(Compl. ¶21) and pressured her to abandon her religious beliefs (Id. ¶2 1).
Thereafter, without further process, she was suspended with pay. (Id.
¶j24—25). Following a Board meeting, she was suspended without pay.
(Id. ¶J27, 29). Knox generally alleges that she was not given the due

process to which she was entitled under the School Defendants’ “charter,
policies, procedures and rules.” (Id. ¶57). She also alleges that the School
Defendants did not provide her “a copy of all materials relied on by
Defendants in determining to effectively terminate [her] employment.” (Id.
¶57).
If Knox was not given meaningful notice, or an opportunity to
respond to the accusations against her, either before or after her
suspension, that might amount to a violation of due process. As to the
administrative proceedings that followed Knox’s suspension, the
Complaint is virtually silent—possibly a major omission, but one that
can be explored in discovery. Whether, as the School Defendants argue,
due process requirements were satisfied by the meetings they had with
Knox, the public Board meeting, and the Tenure Charge process itself, is
a question better answered at the summary judgment stage. (Def. Mot.
23—24). At that point, the Court will have before it the facts necessary for
the context-specific Mathews analysis.
Because the first theory asserted under Count II is going forward, I
do not reach the second and third alternative theories. The discovery will
not vary substantially depending on whether they are in or out of the
19

case, and they may, like the first theory, be addressed on summary
judgment.
The motion to dismiss Count II is DENIED.
F. Failure to exhaust remedies under Collective Bargaining
Agreement (Count VII)
The School Defendants argue that Count VII of Knox’s complaint,
alleging breach of contract, should be dismissed because Knox failed to
exhaust administrative remedies available to her in a Collective
Bargaining Agreement (“CBA”) between the Union representing her and
the Board. (Def. Mot. 25; see Cohen Aff. Ex. A (CBA)). Defendants’
contentions, irrespective of their legal merits, require development in
discovery. They raise potential issues of fact better addressed at the
summary judgment stage.
The motion to dismiss Count VII is therefore DENIED.
G. Failure to file a timely Tort Claims Act Notice for
intentional infliction of emotional distress (Count IX)
Because Knox has failed to comply with the notice requirements of
the New Jersey Tort Claims Act, her claim for intentional infliction of
emotional distress (“lIED”) will be dismissed.
The NJ TCA section concerning the time for the presentation of
claims provides:
A claim relating to a cause of action for death or for injury or
damage to person or to property shall be presented as
provided in this chapter not later than the 90th day after
accrual of the cause of action. After the expiration of six
months from the date notice of claim is received, the
claimant may file suit in an appropriate court of law. The
claimant shall be forever barred from recovering against a
public entity or public employee if:
a. The claimant failed to file the claim with the public entity
within 90 days of accrual of the claim except as otherwise
provided in N.J.S.59:8-9; or
b. Two years have elapsed since the accrual of the claim; or
20

c. The claimant or the claimant’s authorized representative
entered into a settlement agreement with respect to the
claim.
N.J.S.A.

§ 59:8-8. The TCA does provide for leave to file a late notice of

claim under certain circumstances:
A claimant who fails to file notice of his claim within 90 days
as provided in section 59:8-8 of this act, may, in the
discretion of a judge of the Superior Court, be permitted to
file such notice at any time within one year after the accrual
of his claim provided that the public entity or the public
employee has not been substantially prejudiced thereby.
provided that in no event may any suit against a public
entity or a public employee arising under this act be filed
later than two years from the time of the accrual of the
claim.
N.J.S.A.

§ 59:8-9.

Because Knox’s claim of intentional infliction of emotional distress
sounds in state tort law, she was required to file a Notice. See, e.g., Velez
v. City of Jersey City, 850 A.2d 1238, 1244 (N.J. 2004) (TCA’s notice
requirements apply to both negligent and intentional torts); Garlanger v.
Verbeke, 223 F. Supp. 2d 596, 602 (D.N.J. 2002) (state common law tort
claims, including intentional infliction of emotional distress, are subject
to TCA’s notice requirements).
Knox does not deny that she failed to file a TCA Notice. Nor can
she do so now. All of the alleged events occurred between October 11,
2011 (when Knox was first approached by the Board about her Facebook
comments (Compl. ¶20)) and October 26, 2012 (when the parties settled
the Tenure Charges (Def Mot. 2; P1. Qpp. l0)).9 Therefore, at the latest,

This is a generous interpretation of the nature and potential time frame
of the TIED claim. Knox’s complaint does not specifically allege what conduct
she considers “extreme, outrageous and beyond the bounds of moral decency.”
(See Compi. ¶11 133—138.) That lack of specificity does not, however, bear on the
requirement of filing a TCA Notice. And because Knox does not allege that the
9

21

Knox was required to file her Notice within 90 days of October 26, 2012—
a period that expired two years ago. See N.J.S.A.

§ 59:8-8. Likewise

expired is the one-year period to seek leave from the Superior Court of
New Jersey to file a late notice of claim. See N.J.S.A.

§ 59:8-9.

Knox attempts to excuse her failure to file a TCA Notice. She urges
that “where claims are predicated upon the Constitution, the ‘injury’ is
not subjected to the requirements of the Tort Claims Act.” (P1. Opp. 33
(citing Lloyd v. Borough of Stone Harbor, 432 A.2d 572, 580 (N.J. Super.
Ct. Ch. Div. 1981) (finding “that plaintiff’s claim, based on the New
Jersey Constitution, is subject to the notice requirement imposed by the
act.”))). That argument, though true enough, misses the point. The
School Defendants seek to dismiss Knox’s tort claim, not her
constitutional claims, based on her failure to file a TCA Notice.
Because Knox has failed to comply with the TCA’s Notice
requirement, the motion to dismiss Count IX of her complaint, alleging
intentional infliction of emotional distress, is GRANTED.
H. Rule 12(b)(6) motion to dismiss race-based Equal
Protection Claim (Count VI)
The School Defendants argue that Knox has not sufficiently pled a
claim of racial discrimination under the Fourteenth Amendment’s Equal
Protection Clause.’° (Def. Mot. 30). Knox has failed to allege facts tending
School Defendants took any action following the settlement of the Tenure
Charges, that is the latest possible date for Knox’s TIED claim to have arisen.
Both Knox and the School Defendants discuss the “class of one” theory
of recovery for an Equal Protection claim. (Def. Mot. 31; P1. Opp. 35). Under that
theory, a plaintiff who has been subjected to differential treatment may recover
even though the differential treatment was not due to the plaintiff’s membership
in a protected class. See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562
(2000) (employing a rational basis standard for such claims). It has no
application here.
10

First, the Supreme Court has disallowed such a class-of-one claim in the
context of public employment. See Engquist v. Or. Dep’t of Agr., 553 U.S. 591,
605 (2008) (“Thus, the class-of-one theory of equal protection—which
22

to suggest that individuals similarly situated (but for their race) were
treated differently. Her racial discrimination claim will therefore be
dismissed.
Knox’s race-based Equal Protection claim is based on the following
allegations: (1) that the School Defendants allowed other teachers who
are not African American to express religious viewpoints on similar
issues, but did not allow Knox, who is African-American, to do so
(Compl. ¶J98, 102); (2) that the School Defendants did nothing to
address racist comments on Knox’s Facebook page, and therefore “tacitly
approved” the comments (Id. ¶J99—100); and (3) that the School
Defendants suspended Knox, initiated tenure charges against Knox, and
constructively discharged Knox because of her race (Id. ¶103).
To state a claim under the Equal Protection Clause, a plaintiff
must allege that (1) she is a member of a protected class; (2) that she was
treated differently from similarly situated individuals; and (3) that this
disparate treatment was based on her membership in the protected
class. See Kasper v. Cnty. of Bucks, 514 F. App’x 210, 214 (3d Cir. 2013)
(citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.
1990)).
In this case, Knox summarily states in her complaint that
“Defendants have allowed other similarly-situated teachers to express

presupposes that like individuals should be treated alike, and that to treat
them differently is to classify them in a way that must survive at least
rationality review—is simply a poor fit in the public employment context. To
treat employees differently is not to classify them in a way that raises equal
protection concerns.”).
Second, Knox is not even alleging that she is a “class of one.” Hence it is
puzzling that, in her opposition brief, she states that “Defendants concede that
the ‘class of one’ theory applies to Plaintiffs’ [sic] circumstances.” (P1. Opp. 35).
Knox’s Equal Protection claim is based on her allegation that the School
Defendants treated Knox differently because of her membership in a protected
class, i.e., her racial group or religious affiliation.

23

their views on the same issues as [Knoxi.” (Compl. ¶97). Knox also
alleges that “Defendants allow other teachers who are not Christian or
African American to express views that do not express a religious
viewpoint on the same issues as [Knoxj.” (Id. ¶98). These allegations are
conclusory, not factual. Knox has not identified any specific instance of a
similarly situated teacher being treated differently. A blanket statement
that such instances have occurred is not sufficient to state a claim. See,
e.g., Sloan v. City of Pittsburgh, 110 F. App’x 207, 212 (3d Cir. 2004)
(citing Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998))
(“Because [Plaintiff] failed to allege any evidence of a similarly situated
employee treated differently, this claim must fail.”).
By the same token, a bare allegation that the Tenure Charge and
suspension were racially based does not, without more, state a claim.
The complaint does not allege any connection between the school officials
and the anonymous persons who posted on Knox’s personal Facebook
page.” No cognizable claim arises from the allegation that the school
officials failed to express “dismay” about those comments.
Because Knox does not allege specific instances of similarly
situated employees being treated differently, she fails to state a racebased discrimination claim under the Equal Protection Clause. Thus, the
motion to dismiss the racial-discrimination component of Count VI is
GRANTED. Because the parties do not address the religious component
of the Equal Protection claim, I do not address it either; it is not included
within this order of dismissal.

I infer that these posts were the work of posters, known colloquially as
“trolls,” who take advantage of the anonymity of the internet to post malicious
or offensive material. That inference is not strictly necessary, however. When I
say “anonymous” here, I mean that the complaint does not identifr the posters
or draw any connection whatever between the posts and the School Defendants.
11

24

I. Rule 12(b)(6) motion to dismiss claim under 42 U.S.C.
1981 (Count VIII)

§

The School Defendants argue that Knox’s race discrimination claim
under 42 U.S.C § 1981 must be dismissed because Knox fails to plead
any facts to support her allegation that the School Defendants’ actions
were racially motivated. (Def. Mot. 33). Because Knox does not plead
sufficient facts to state a claim for a violation of Section 1981, Count VIII
will be dismissed.
Section 1981 provides that “[a]ll persons.
right.

.

.

to make and enforce contracts,.

.

.

.

.

shall have the same

and to the full and equal

benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens.” 42 U.S.C. 1981. An action for
§
damages under 42 U.S.C. § 1983 “constitutes the exclusive federal
remedy for violation of the rights guaranteed in § 1981 by state
governmental units.” McGovern v. City of Philadelphia, 554 F.3d 114, 121
(3d Cir. 2009).
Section 1981 has “been deemed to be ‘essentially coterminous with
the Equal Protection Clause, in that ‘purposeful discrimination that
violates the Equal Protection Clause of the Fourteenth Amendment will
also violate § 1981.’” Williams v. Rowan Univ., No. CIV 10-6542
RMB/AMD, 2014 WL 7011162, at *12 (D.N.J. Dec. 11, 2014) (quoting
Guan N. v. N.Y. City Dep’t of Educ., 2014 WL 1275487, at *27 (S.D.N.Y.
Mar. 24, 2014) (quoting Gratz v. Bollinger, 539 U.S. 244, 276 n. 23
(2003)))). The elements of a Section 1981 violation are that “(1) [plaintiff]
is a member of a protected class; (2) [plaintiff] satisfactorily performed
[her] required duties; (3) [plaintiff] suffered an adverse employment
action; and (4) the adverse employment action occurred under
circumstances that raise an inference of discriminatory action.” Thomas
v. City of Philadelphia, 573 F. App’x 193, 195—96 (3d Cir. 2014) (internal
quotation and citation omitted).

25

Knox’s only race-based discrimination allegations, contained or
incorporated by reference in Count VIII, consist of the following: (1) the
School Defendants did not explicitly reject racist comments directed
toward Knox by other users of Facebook (Compi. ¶21—22); (2) Knox has
been subject to a hostile work environment because of her race (Id.
¶128); and (3) the Board discriminated against Knox because of her race
by suspending her, bringing tenure charges against her, and
constructively discharging her (Id. ¶103). As stated in Section II.H,
immediately preceding, those allegations are not factual in nature; they
are conclusory. They do not set forth a claim of racial discrimination
under Section 1981, any more than they did under the Equal Protection
clause.
The motion to dismiss Count VIII will therefore be GRANTED.
III.

CONCLUSION
For the foregoing reasons, the motion to dismiss the complaint is

GRANTED in part and DENIED in part.
The motion to dismiss is GRANTED as to Count I (constructive
discharge), the racial discrimination portion of Count VI (Equal
Protection Clause), Count VIII (42 U.S.C.

§ 1981), and Count IX

(intentional infliction of emotional distress). Because this is an initial
dismissal, it is without prejudice to the filing of a properly supported
motion to amend the complaint within 30 days. See Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
The motion to dismiss is DENIED as to Count II (Due Process),
Count III (Free Speech Clause), Count IV (Free Exercise Clause), Count V
(Establishment Clause), the religion portion of VI (Equal Protection
Clause), Count VII (breach of contract), and Count X (New Jersey Free
Exercise and Enjoyment of Religion Clauses).

26

Dated: February 23, 2015

L

Kevin McNulty
United States District Judge

27