SOUTHWARD et al v. ELIZABETH BOARD OF EDUCATION et al
OPINION. Signed by Judge Kevin McNulty on 1/11/2017. (JB, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CARMEN SOUTHWARD and KRISTIN
ELIZABETH BOARD OF EDUCATION,
OLGA HUGELMEYER, individually
and in her official capacity as
Superintendent, PABLO MUNOZ,
individually and in his official
capacity as former Superintendent,
HAROLD KENNEDY, JR., individually
and in his official capacity as Board
of Secretary, DONALD GONCALVES,
individually and in his official
capacity as Assistant Board
Secretary, RAFAEL FAJARDO,
individually and in his official
capacity as board member,
FRANCISCO GONZALES, individually
and in his as capacity board member,
PAUL PEREIRA, individually and in
his capacity as board member,
CARLOS TRUJILLO, individually and
in his capacity as board member,
individually and in her capacity as
board member, TONY MONTEIRO,
individually and in his capacity as
board member, OSCAR OCASIO,
individually and in his official
capacity as Director of Process
Improvement, and JOHN DOES 1-10,
Civil Action No. 15-3699 (KM)
MCNULTY, District Judge
This matter comes before the Court upon Defendants’ motion (ECF No.
29) to dismiss the Amended Complaint under Federal Rule of Civil Procedure
12(b)(6). For the reasons stated below, the motion is GRANTED in part without
prejudice, and DENIED in part.
This Opinion is organized as follows:
Legal Standards On Motion to Dismiss
Claims Asserted by Southward
CEPA (Count 1)
Legal standards under CEPA
Discussion of Southward’s Count 1 CEPA Claim
Statute of limitations
Liability of individual defendants
First Amendment and NJCRA (Counts 4, 5)
Statute of limitations
Claims Asserted by Kulick
CEPA (Count 2)
First Amendment and NJCRA (Counts 3, 5)
Liability of individual defendants
Joined together in this Complaint are claims brought by two employees
of the public school system who were dismissed in June 2014. Although the
claims are similar, the supporting facts are distinct, and I summarize them
As I must, I take the factual allegations of the complaint as true for purposes of
resolving a motion to dismiss. See Section II, infra, and cases cited.
A. Southward’s Factual Allegations
Plaintiff Carmen Southward was first employed by defendant Elizabeth
Board of Education (the “Board”) in 2006 as a teacher. (ECF No. 26, Amended
Complaint (cited as “AC”)
20). In July 2009, she became Interim Supervisor
for Recruitment and Hiring in the Human Resources Department. (Id.
Southward claims that in 2010 and 2011 (during her time as a
Supervisor in the Human Resources Department) she reported misconduct by
Director of Education Daphne Marchetti. Southward’s alleged whistleblowing
consisted of complaints about (i) personnel actions and violations of Board
policy regarding teacher credentials (after learning that Marchetti did not
possess the required state certifications to work as either a teacher or an
administrator for the Board) (AC
28—30); (ii) misuse of vacation time (after
learning that Marchetti had a secretary in the Human Resources Department
reload all of her vacation days back into the system) (id. ¶j 34—35); and (iii)
improper taking of maternity leave (after learning that Marchetti provided a
forged medical certificate to obtain extended leave) (id.
43—46). In the same
2010—11 period, Southward (i) objected to the request of defendant Rafael
Fajardo to hand out “political pins at HR interviews of new candidates” (icL ¶j
26—27, 166); (ii) refused to approve the hiring of a Board—backed, non—tenured
candidate because there were other tenured candidates on the hire list (id.
42, 164); and (iii) refused to alter employment paperwork for Fajardo (id.
Southward alleges that her whistleblowing, defined to include refusal to
cooperate with improper conduct, led to retaliation. In 2010 and 2011, (i)
defendant Pablo Munoz, who was then the Superintendent, told her to stop
reporting about teacher—credential issues and undermined her job functions by
limiting her ability to recommend personnel actions related to transfers, new
hires, and non—renewals (AC
31, 36—38); (ii) defendant Francisco Gonzales
contacted her at home to warn her that things would get “ugly” because she
had reported Marchetti’s violations (id.
56); (iii) Munoz, at a cabinet meeting,
asked if anyone wanted to address the serious concerns with Southward’s
handling of the vacancies in Elizabeth’s schools (i.e., Southward’s refusal to
hire the Board members’ preferred candidates) (id.
5 1—52); (iv) she received a
letter of reprimand related to the vacancy issues raised at the meeting (id.
54—55); (v) she received a negative performance evaluation by her supervisor for
the first time (id. ¶j 64—65); (vi) in February 2011 she was demoted from her
position as Supervisor of Human Resources and transferred from the main
office to School 28 (id.
57—59); and (vii) in June 2011 she was transferred
out of Human Resources to the Food Services Department (id.
In her new position as Interim Supervisor of Food Services, Southward
learned that “some board members, teachers and administrators were receiving
free lunches, when same should have been reserved for the students whose
economic status qualified them to receive free meals through the school.” (AC
76). In the summer of 2011, Southward reported the abuse of the federal
school lunch program to the Union County Prosecutor, the New Jersey
Attorney General’s Office, and the Federal Bureau of Investigation (“FBI”). (Id.
76—78). She met with law enforcement officials through the rest of 2011,
2012, and 2013, and reported additional violations of the Board’s personnel
policies and the use of paid time for political activities. (Id.
In July 2013, Southward heard secondhand that the defendants were
aware she had been speaking to the FBI. (AC
90). In April 2014, she was
informed that Fajardo had obtained a copy of her interview notes with the FBI.
91). On June 13, 2014, Southward was notified that she would be
terminated effective June 30, 2014. (Id.
93). For the two weeks preceding her
termination, Southward was sent to what was colloquially known as the
“rubber room,” where she remained in “solitary confinement” without a phone
or computer. (Id.
B. Kulick’s Factual Allegations
Plaintiff Kristin Kulick was the Board’s Director of Special Projects
beginning in August 2009. (AC
104). She, too, alleges that she blew the
whistle on improper conduct in the school system.
In the spring of 2010, Kulick raised concerns that her co—worker Amy
Gomes, who was the fiancée of defendant Tony Monteiro, was arriving to work
late and sometimes visibly intoxicated. (Id.
109). Kulick informed Karen
Murray, then the Director of Human Resources (who happens to be Kulick’s
sister), about Gomes’s conduct. (Id.
111). Murray raised concerns about
promoting Gomes, after which Murray was placed on administrative leave and
ultimately terminated. (Id.
112). Afterwards, defendant Goncalves warned
Kulick that her sister’s termination “doesn’t have to affect you, unless you want
it to,” a remark Kulick perceived as a threat. (Id.
Four years later, in the spring of 2014, Kulick resumed her
whistleblowing. At a Director’s Association union meeting, she raised concerns
that she and other Directors had not received the merit pay to which they were
entitled under a 2012 Memorandum of Agreement. (AC
Ocasio told Kulick that “he was privy to information regarding certain
individuals who were going to be ‘let go’ and told Ms. Kulick that she should
not be asking questions like that at that time.” (Id.
117). Nevertheless, Kulick
submitted a written request to defendant Munoz that Directors receive their
merit pay. (Id.
120). Kulick asserts that the termination of her employment in
June 2014 was in retaliation for these activities. (Id. ¶j 115—21).
Kulick also asserts that she was punished for refusing to participate in
political activities. In support, she alleges that shortly after she was hired in
2009, Annie Rooney, defendant Munoz’s secretary, informed her that she was
expected to purchase tickets to the Board members’ political fundraisers and
events. (AC ¶J 128—3 1). Out of fear, Kulick did purchase tickets. (Id. ¶J 128—
Kulick alleges that she was harassed and forced to contribute time and
money to political campaigns, and that for a time she acquiesced. (AC ¶j 131—
35). Specifically, Kulick alleges that she was harassed and threatened by
defendant Fajardo, who (although not a Board member at the time) controlled
new hires and ran many of the Board members’ political campaigns from his
private business office. (Id. ¶J 136—37). In 2012 and 2013, Fajardo called
Kulick and left threatening voice messages to induce her to contribute more to
the campaigns of Board members. (Id. ¶J 138—46). After Kulick refused to
purchase expensive tickets for a fundraiser, defendant Goncalves told her
during a June 2013 performance evaluation that “none of us are safe.” She
perceived this statement as a threat to her job. (Id. ¶J 147—49).
In September 2013, a Board—backed campaign led to the creation of a
non—profit charity, to which Kulick refused to contribute. (AC ¶} 150—51). In
January 2014, Goncalves sent Ocasio to monitor Kulick’s meetings, with the
intent of intimidating her into changing her stance on fundraising issues.
152). Finally, in May 2014, Kulick was told to pressure two school princip
encourage their students to attend the Elizabeth Cuban Day parade. (fri. ¶
153). After a low turnout at the parade, Kulick was reprimanded and harasse
154). Thereafter, Kulick altogether stopped contributing her time and
money to Board—backed campaigns. (Id. ¶J 155—56). In June 2014, Kulick
terminated from her position and replaced by Ocasio, who was politically
connected but had qualifications inferior to those of Kulick. (Id. ¶J 157—
C. Procedural History
Plaintiffs initiated this action on June 2, 2015. (ECF No. 1). On August
14, 2015, Defendants moved to dismiss Plaintiff’s original Complaint under
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 6). The Hon. Esther Salas,
U.S.D.J., held oral argument on March 22, 2016, and stated reasons on the
record for her decision to dismiss the original complaint. (ECF No. 23). The
following day, Judge Salas entered an order granting Defendants’ motion to
dismiss the complaint, without prejudice to the filing of an amended complaint
within 30 days. (ECF No. 24).
Accordingly, on April 21, 2016, the plaintiffs filed the Amended
Complaint (ECF No. 26). Jurisdiction is premised on 28 U.S.C. § 1331 (federal
question), 1343(3) (federal civil rights claims), and 1367 (ancillary jurisdiction
over state law claims). The causes of action pled in the Amended Complaint
Count 1: New Jersey Conscientious Employee Protection Act (“CEPA”)
Count 2: CEPA (Kulick)
Count 3: 42 U.S.C.
§ 1983/First Amendment retaliation (Kulick)
Count 4: 42 U.S.C.
§ 1983/First Amendment retaliation (Southward)
Count 5: New Jersey Civil Rights Act (“NJCRA”) (both plaintiffs)
Count 6: New Jersey Racketeer Influenced and Corrupt Organization
Statute (“NJRICO”) (both plaintiffs).
That Amended Complaint is the currently operative pleading.
On May 20, 2016, Defendants filed this motion to dismiss the Amended
Complaint under Federal Rule of Civil Procedure 12(b)(6) (See ECF No. 29-1,
Brief in Support of the Board Defendants’ Motion to Dismiss the Amended
Complaint (“Def. Br.”)). On June 20, 2016, Plaintiffs filed a brief in opposition
(ECF No. 35, Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss
Plaintiffs’ Amended Complaint (“P1. Br.”)). On June 28, 2016, Defendants filed a
reply (ECF No. 37, Reply Brief in Support of Defendants’ Motion to Dismiss the
Amended Complaint (“Def. Reply Br.”)).
After the motion to dismiss was fully briefed, it was administratively
terminated pending reassignment. (ECF no. 42) On January 5, 2017, the case
was formally reassigned from Judge Salas to me. (ECF no. 45) I have reinstated
the motion to dismiss and reviewed the matter afresh, and I decide the
defendants’ motion to dismiss as follows.
LEGAL STANDARDS ON MOTION TO DISMISS
Fed. R. Civ. P. 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
moving party bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion
to dismiss under Rule 12(b)(6), a court must take all allegations in the
complaint as true and view them in the light most favorable to the plaintiff. See
Warth v. Seldin, 422 U.S. 490, 501, 95 5. Ct. 2197 (1975); Trump Hotels &
Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998);
see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
Fed. R. Civ. P. 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007).
Thus, the factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, such that it is “plausible on its face.” See id. at
570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
A claim has “facial plausibility 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, 129 S.Ct.
1937 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility
standard is not akin to a ‘probability requirement’
it asks for more than a
sheer possibility.” Iqbal, 556 U.S. at 678.
The United States Court of Appeals for the Third Circuit has explicated
the Twombly/Iqbal standard on several occasions. See, e.g., Argueta v. U.S.
Immigration & Customs Enforcement, 643 F.3d 60, 70—73 (3d Cir. 2011);
Santiago v. Warininster Twp., 629 F.3d 121, 129—30 (3d Cir. 2010). In doing so,
it has provided a three-step process for analyzing a Rule 12(b)(6) motion:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
U.S. at 675; Argueta, 643 F.3d at 73. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556 U.S. at 679;
Argueta, 643 F.3d at 73. Finally, we look for well-pled factual
allegations, assume their veracity, and then “determine whether
they plausibly give rise to an entitlement to relief.” Iqbczl, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
“In deciding a Rule 12(b)(6) motion, a court must consider only the
complaint, exhibits attached to the complaint, matters of the public record, as
well as undisputedly authentic documents if the complainant’s claims are
based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010); see also In re Asbestos Products Liability Litigation (No. Vi), 822 F.3d
125, 134 & n.7 (3d Cir. 2016); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256,
260 (3d Cir. 2006) (“In evaluating a motion to dismiss, we may consider
documents that are attached to or submitted with the complaint, and any
matters incorporated by reference or integral to the claim, items subject to
judicial notice, matters of public record, orders, and items appearing in the
record of the case.”).
CLAIMS ASSERTED BY SOUTHWARD
A. CEPA (Count 1)
Count 1, asserted by plaintiff Southward, brings a claim of retaliation
under the New Jersey CEPA statute. Southward’s allegations of retaliatory acts
in Count 1 fall into two distinct categories: (i) in 2010 and 2011, during her
time as Supervisor of Human Resources, she was subjected to harassment and
unwanted transfers (in retaliation for raising complaints related to personnel
policies and hiring preferences); and (ii) from June 13—30, 2014, she was exiled
to the “rubber room” and ultimately discharged (in retaliation for providing
information to law enforcement).
Legal standards under CEPA
Under CEPA, an “employer shall not take any retaliatory action against
an employee because the employee . . . [o]bjects to, or refuses to participate in
any activity, policy, or practice which the employee believes (1) is in violation of
a law, or a rule or regulation promulgated pursuant to law. . . .; (2) is
fraudulent or criminal; or (3) is incompatible with a clear mandate of public
policy concerning the public health, safety, or welfare or protection of the
environment.” N.J. Stat. Ann.
§ 34: 19-3c.
To plead a CEPA claim, a plaintiff must demonstrate that “(1) he or she
reasonably believed that his or her employer’s conduct was violating either a
law, rule, or regulation promulgated pursuant to law, or a clear mandate of
public policy; (2) he or she performed a ‘whistle-blowing’ activity.
. ; (3) an
adverse employment action was taken against him or her; and (4) a causal
connection exists between the whistle-blowing activity and the adverse
employment action.” Clayton v. City of Ati. City, 722 F. Supp. 2d 581, 588-89
(D.N.J. 2010) (citing Dzwonar v. McDevitt, 828 A.2d 893, 900 (N.J. 2003)); see
also Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 404 (3d Cir. 2007).
A plaintiff alleging a CEPA violation need not prove that law or public
policy was actually contravened—rather, the plaintiff “must show that he or
she ‘reasonably believes’ that to be the case.” Dzwonar, 828 A.2d at 900. Thus
the complaint need not establish such a violation factually. See id. at 901
(citing Blackburn v. United Parcel Serv., Inc., 3 F.Supp.2d 504, 514 n. 5 (D.N.J.
1998) (Barry, J.), affd on other grounds, 179 F.3d 81 (3d Cir. 1999)).
Nevertheless—and this is an issue of law for the court—there must be an
identifiable “law, or a rule or regulation promulgated pursuant to law” N.J.
§ 34: 19-3c(1), or else “a clear mandate of public policy concerning
the public health, safety or welfare,” N.J. Stat. Ann. § 34: 19-3c(3). Mehiman,
707 A.2d at 1012—13; Dzwonar, 828 A.2d at 900—01.
The requirement of a law, rule, or regulation under section 3c( 1) is clear
enough. A “clear mandate of public policy” under section 3c(3) is a broader
category, but is not unconfined. Such a mandate must at least “convey[j a
legislative preference for a readily discernible course of action that is recognized
to be in the public interest.” Massarano v. New Jersey Transit, 948 A.2d 653,
662 (N.J. Super. Ct. App. Div. 2008). “‘Clear mandate’.. suggests an analog
to a constitutional provision, statute, and rule or regulation promulgated
pursuant to law such that, under Section 3c(3), there should be a high degree
of public certitude in respect of acceptable versus unacceptable conduct.” Maw
v. Advanced Clinical Comms., Inc., 846 A.2d 604, 607 (N.J. 2004) (emphasis in
original). “A vague, controversial, unsettled, or otherwise problematic public
policy does not constitute a clear mandate.’” Smith-Bozarth v. Coal. Against
Rape & Abuse, Inc., 747 A.2d 322, 325 (N.J. Super. Ct. App. Div. 2000),
abrogated on other grounds by Dzwonar, supra (quoting MacDougall v. Weichert,
677 A.2d 162, 167 (1996)). “Sources of public policy include the United States
and New Jersey Constitutions; federal and state laws and administrative rules,
regulations and decisions; the common law and specific judicial decisions; and
in certain cases, professional codes of ethics.” MacDougall, 677 A.2d at 167.
A “retaliatory action,” for purposes of CEPA, “means the discharge,
suspension, or demotion of an employee, or other adverse employment action
taken against an employee in terms and conditions of employment.” N.J. Stat.
34:19-2(e). Interpreting that language, some courts have held that the
employer’s action must affect the employee’s compensation or rank, or “be
virtually equivalent to discharge.” Klein v. Univ. of Med. & Dentistry of New
Jersey, 871 A.2d 681, 691 (N.J. Super. Ct. App. Div. 2005); see also Caver v.
City of Trenton, 420 F.3d 243, 249 (3d Cir. 2005). Other decisions, with which I
agree, have taken a somewhat broader view. Examples of actionable retaliatory
acts have included suspensions, demotions, changes to the length of the
workday, changes in salary, hours, fringe benefits, or “physical arrangements
and facilities,” and altered “promotional procedures.” Beasley v. Passaic
County, 873 A.2d 673, 685-86 (N.J. Super. Ct. App. Div. 2005); see also Smith
v. Twp. Of E. Greenwich, 519 F. Supp. 2d 493, 511 (D.N.J. 2007) affd,
App’x 740 (3d Cir. 2009), as amended Nov. 3, 2009 (quoting same
Alternatively.—i.e., short of discharge, suspension, or demotion
adverse employment action may be established by “many sepa
relatively minor instances of behavior directed against an emplo
yee that may
not be actionable individually but that combine to make up a
retaliatory conduct.” Green u. Jersey City Bd. of Ed., 828 A.2d
883, 891 (N.J.
2003); Maimone v. City of Ati. City, 903 A.2d 1055, 1063—64 (N.J.
Nardello v. Twp. of Voorhees, 873 A.2d 577, 580 (N.J. Supe Ct.
2005). By analogy to a Title VII hostile work environment, we
might call this a
Discussion of Southward’s Count 1 CEPA Claim
For dismissal of Southward’s Count 1 CEPA claim, Defendan
three grounds, which I discuss in turn.
1. Statute of Limitations
Defendants first assert that Southward’s CEPA claims are
barred by the
statute of limitations. The statute of limitations, although
defense, may be raised on a Rule 1 2(b)(6) motion if “the
time alleged in the
statement of a claim shows that the cause of action has not
within the statute of limitations.” Bethel v. Jendoco Const.
Corp., 570 F.2d
1168, 1174 (3d Cir. 1978) (quoting Hanna v. U.S. Vetera
ns’ Admin. Hosp., 514
F.2d 1092, 1094 (3d Cir. 1975)); Cito v. Bridgewater Twp.
Police Dep’t, 892 F.2d
23, 25 (3d Cir. 1989). “If the bar is not apparent on the face
of the complaint,
then it may not afford the basis for a dismissal of the com
plaint under Rule
12(b)(6).” Bethel, 570 F.2d at 1174.
For a CEPA claim, the statute of limitations is one year. N.J.
Stat. Ann. §
34:19-5. In general, an act of retaliation is what perfects
a CEPA claim. A CEPA
claim therefore accrues, and the one-year limitations perio
d begins to run, on
the date of the retaliatory employment action that is the
basis for the claim.
Ivan v. Cty. of Middlesex, 595 F. Supp. 2d 425, 46667 (D.N.J. 2009).
Because this action was filed on June 2, 2015, any CEPA cause
alleges acts of
that accrued after June 2, 2014 would be timely. Southward
retaliation in connection with her termination, dating from June
June 2014 events
Defendants concede that Southward’s claims based on those
are timely. (See generally Def. Br.; see also Mar. 22, 2015
Transcript (“Tr.”) at 15-16.)
On the other hand, any CEPA cause of action that accrued
alleges that the
2, 2014, would not be timely. As outlined above, Southward
defendants subjected her to various acts of retaliation in 2010—
Defendants urge that CEPA claims based on those acts are time-b
but part of a
Southward responds that the 2010—11 acts were not discrete,
a whole series
“continuing violation.” Her CEPA claim, she says, encompasses
e that series
of retaliatory events from 2010 through June 2014, and becaus
extends into the limitations period, the claim is timely. (P1.
The “continuing violation” doctrine is “an equitable exception
statute of limitations”; it provides that, where “an individual
ions period may
continual, cumulative pattern of tortious conduct,” the limitat
be tolled “until the wrongful action ceases.” Roa v. Roa, 985 A.2d
plaintiff to pursue
(N.J. 2010). Thus the continuing violation doctrine “allows a
a claim for discriminatory conduct if he or she can demonstrate
of those acts
asserted act by a defendant is part of a pattern and at least one
art Stores E.,
occurred within the statutory limitations period.” Samo v. Wal-M
*4 (D.N.J. Nov. 20,
L.P., No. CIV.A. 12-002075 JAP, 2012 WL 5880361, at
2012) (quoting Smith v. Twp. of E. Greenwich, 519 F. Supp. 2d 493,
2007) (quotations and citations omitted)). It is well settled that
violation theory, which is common to antidiscrimination statutes,
2 (N.J. 2003).
CEPA. Green v. Jersey City Bd. of Educ., 828 A.2d 883, 891—9
The scope of the continuing violation theory, however, has been
985 A.2d at
by case law; it is not a catchall for time-barred claims. See Roa,
1233. In applying the continuing violation theory to CEPA, the
Supreme Court in Green, supra, adopted the restrictive analytical framework
defined in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S. Ct.
2061, 2072 (2002), a federal Title VII case. See also Roa, 985 A.2d at 123 1—32
(adopting Morgan analysis for analogous claim under New Jersey Law Against
Discrimination). Within the Morgan framework, the essential question is
whether the acts of retaliation are discrete (and therefore independently
actionable) or nondiscrete (and therefore actionable as part of a series of
In Morgan, the plaintiff alleged both discrete retaliatory/discriminatory
acts and a nondiscrete claim of a racially hostile work environment. For statute
of limitations purposes, the Court drew a key distinction. A hostile environment
claim, it held, could be considered a continuing violation because it is “a series
of separate acts that collectively constitute one ‘unlawful employment practice”’
under the substantive law. 536 U.S. at 117, 122 S. Ct. at 2074. In contrast,
claims based on discrete acts made actionable under the statute in question
would not be analyzed collectively:
[D]iscrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.
Each discrete discriminatory act starts a new clock for filing
charges alleging that act. The charge, therefore, must be filed
within the [statutorily prescribed] time period after the discrete
discriminatory act occurred. The existence of past acts and the
employee’s prior knowledge of their occurrence, however, does not
bar employees from filing charges about related discrete acts so
long as the acts are independently discriminatory and charges
addressing those acts are themselves timely filed. Nor does the
statute bar an employee from using the prior acts as background
evidence in support of a timely claim.
Id. at 113, 122 S. Ct. at 2072 (quoted in Roa, 985 A.2d at 1231—32).
Any competent lawyer could plausibly plead that acts of retaliation
against a single person are linked. That relaxed approach to the continuing
violation doctrine, however, has been foreclosed by case law. As the Third
Circuit has confirmed, Morgan promulgated a “bright-line” rule that
“individually actionable allegations cannot be aggregated” for purposes of the
continuing violation doctrine. O’Connor v. City of Newark, 440 F.3d 125, 127
(3d Cir. 2006). Such independently actionable acts “are not actionable if time
barred, even when they are related to acts alleged in timely filed charges.”
Morgan, 536 U.S. at 113, 122 S. Ct. at 2072. In short, a plaintiff does not
retain the option to aggregate acts that are discrete and actionable.
What acts, then, are regarded as discrete under CEPA? Roughly, actions
such as dismissal, suspension, or demotion, or other actions affecting basic
conditions of employment, upon which an independent CEPA claim can be
based. See N.J. Stat. Ann.
§ 34:19-2(e). Nondiscrete actions would encompass
a series of less serious acts that nevertheless, in the aggregate, add up to a
unitary, actionable pattern of retaliation. See Green, 828 A.2d at 891.
Judge Joel Pisano of this District (now retired) summarized the range of
“discrete” CEPA claims thus:
Plaintiffs claims cannot be saved under the continuing violation
theory because an employers failure to promote is quintessentially
a discrete employment action. [citing Morgan, 536 U.S. at 1 13—i 15]
(“Each discrete discriminatory act starts a new clock for filing
charges alleging that act. Discrete acts such as
are easy to identify. Each incident of discrimination
and each retaliatory adverse employment decision constitutes a
separate actionable Lunlawful employment practice.’ “); see also
Rush v. Scott Specialty Gases, 113 F.3d 476, 483—84 (3d Cir. 1997)
(holding that plaintiffs failure to promote claim and train claims
are “discrete instances of alleged discrimination that are not
susceptible to a continuing violation analysis.”). Likewise,
retaliatory discipline actions are considered discrete employment
actions. [citing O’Connor, 440 F.3d at 127] (following Morgan and
discussing types of discrete acts that are not susceptible to the
continuing violations doctrine, including “wrongful discipline” and
“failure to promote”); see also Gadson v. City of Wilmington Fire
Dep’t, 478 F. Supp. 2d 635 (D.Del.2007) (holding that plaintiffs
claims of “disparate treatment in defendant’s imposition of
discipline, as well as ‘hiring and promotional policies and practices
which have a disparate impact” are discrete acts that “cannot be
aggregated under a continuing violations theory”).
Sw-no, 2012 WL 5880361, at *4 J take Judge Pisano’s summary as a guide in
analyzing Southward’s claims.
Southward claims, inter alia, that in 2010—lithe defendants retaliated
against her by reassigning her and downgrading her job duties. Such acts, I
find, fall on the “discrete” side of the line drawn by Morgan, because they would
individually give rise to actionable CEPA claims.
Southward claims, for example, that “beginning in the summer of 2010,
Defendant Munoz vastly limited her ability to perform the job responsibilities
consistent with her position as Supervisor of Human Resources.” (AC ¶11 2838). Munoz’s defacto demotion of Southward was a discrete, actionable
adverse employment action that was completed in the summer of 2010.
Assuming (as I must) that it occurred, it would have been actionable at that
time. It therefore immediately triggered the running of the one-year CEPA
statute of limitations. See O’Connor, 440 F.3d at 127 (defining completed acts
of discipline or adverse employment actions as discrete acts).
Southward also claims that in late February 2011, she was demoted from
her position as Supervisor of Human Resources and transferred from the main
office to School 28. That reassignment in February 2011 (assuming, as I must,
that it was retaliatory) was discrete and actionable, and it triggered the oneyear limitations period. See Sgro v. Bloomberg L.P., No. 05-73 1, 2008 WL
918491, at *56 (D.N.J. Mar. 31, 2008), aff’d in part, rev’d in part, 331 F. App’x
932 (3d Cir. 2009) (holding that changing plaintiff’s office assignment to an
undesirable location is a discrete act and not subject to the continuing
violation doctrine). The same analysis applies to Southward’s final transfer on
June 10, 2011, from Human Resources to the Food Services Department. See
Shepherd v. Hunterdon Developmental Ctr., 803 A.2d 611, 627 (N.J. 2002)
(holding that an unwelcome transfer is a discrete act).
Accordingly, the Court finds that each retaliatory transfer or reduction in
job functions alleged in Count 1 was a discrete act that was actionable at the
time it occurred in 2010 or 2011. Those acts therefore do not carry forward
into the limitations period (which began on June 2, 2014) under the continuing
violation doctrine. Southward’s claims based on those actions in 2010—11 are
untimely under CEPA’s one year statute of limitations, and are dismissed.
Southward has also alleged other, miscellaneous acts of harassment in
2010—11. She alleges that she was (i) ostracized by her new co-workers when
she began working in Food Services in June 2011 (AC
by her Supervisor at a meeting in September 2011
to pick up food for Board meetings (id.
¶ 75); (ii) embarrassed
(id. ¶( 8 1-85); and (iii) asked
87-88). These did not involve
changes to her job duties or status, and are not independently actionable.
Such acts might nevertheless, in the aggregate and over time, add up to a
pattern of retaliation. See Section III.A.i, supra. I will assume arguendo that
these acts formed a continuous series in 2010—11, and that accrual of a CEPA
claim might have been delayed until the occurrence of the last one in
Nevertheless, I find inadequate the allegations that these acts were part
of a continuing violation that extended into June 2014. The Complaint clearly
lays out a series of acts by Southward in 2010—11, which she characterizes as
a “hostile work environment” and might better be described as a retaliatory
environment. The fact that these retaliatory acts (apparently) petered out in
2011 was not mere happenstance; as of June 2011, Southward was no longer
in the Human Resources Department and no longer in a position to interfere
with the Board’s desired appointments and other actions.
[N]ot every employment action that makes an employee unhappy
constitutes” ‘an actionable adverse action.’ “[citing Cokus v. Bristol Myers
Squibb Co., 827 A.2d 1173, 1180 (N.J. Super. Ct. Law Div. 2002), affd,
827 A.2d 1098 (N.J. Super. Ct. App. Div.), certf denied, 834 A.2d 405
(N.J. 2003)] (quoting Montandon v. Farmland Indus., Inc., 116 F.3d 355,
359 (8th Cir. 1997)); see also Hancock Iv. Borough of Oaklyn, 790 A.2d
186, 192—93 (N.J. Super. Ct. App. Div. 2002), app. dismissed, 827 A.2d
286 (2003)] (allegations of retaliatory conduct that made plaintiffs job
“mildly unpleasant” and did not result in substantial impact on either
plaintiffs working conditions or cause a de facto termination were
insufficient to constitute unlawful retaliation).
Nardello, 873 A.2d at 581.
True, Southward then began speaking to law enforcement and continued
to do so from some time in 2011 through 2013. Defendants did not learn
that, however, until 2013 at the earliest, and did not retaliate until well
that. Three years elapsed between the 2011 “hostile environment” actions
the next alleged act of retaliation, Southward’s termination in June
Amended Complaint strongly implies that Southward’s cooperation
enforcement was the precipitating event. It alleges no facts tending
that the nondiscrete acts of harassment in 2010—11 were continuous
events surrounding the June 2014 termination. Southward’s claims
ongoing CEPA violation, insofar as they arise from nondiscrete
acts in 2010
and 2011, are therefore also dismissed on statute of limitations ground
I do not imply that the events of 2010—11 would not be admissible
evidence to prove some element of a CEPA claim based on the
2014 actions. On
a theory of direct relevance, or perhaps on a Rule 404(b) theory
, they might be.
See Roa, 985 A.2d at 1237 (citing Morgan, 536 U.S. at 113, 122
5. Ct. at 2072).
But as the source of an independent claim, those 20 10—1 1 events
What remains of Count 1, then, is a CEPA claim asserted by Southw
on the basis of the June 2014 acts of retaliation.
2. Notice-exhaustion requirement
Defendants argue that Count 1, to the extent it survives the statute
limitations analysis, should be dismissed because Southward
failed to comply
with CEPA’s notice-exhaustion requirement.
The statute obligates a would-be whistleblower to first bring
complaints to the attention of the employer and afford the employ
opportunity to cure:
The protection against retaliatory action provided by this act
pertaining to disclosure to a public body shall not apply to an
employee who makes a disclosure to a public body unless the
employee has brought the activity, policy or practice in violati
a law, or a rule or regulation promulgated pursuant to law to the
attention of a supervisor of the employee by written notice and
afforded the employer a reasonable opportunity to correct the
activity, policy or practice.
N.J. Stat. Ann.
§ § 34:19-4.
The statute carves out an exception to the notice requirement, however,
where the matters disclosed are reasonably believed to be already known to
persons at the supervisory level:
Disclosure shall not be required where the employee is reasonably
certain that the activity, policy or practice is known to one or more
supervisors of the employer.
Id. Southward invokes this exception, contending that supervisors not only
knew of but perpetrated the acts of which she complained. (See P1. Br. 21; AC
76). Defendants counter that Board members, teachers, and administrators are
not the kind of supervisors who could set policy or remedy the acts of which
Southward complained. (Def. Reply Br. 5).
On their face, these arguments concern matters of defense, as well as
factual issues that are not suited for disposition on a motion to dismiss. The
motion to dismiss Southward’s Count 1 CEPA claim, insofar as it rests on
failure to comply with CEPA’s notice-exhaustion requirement, is therefore
3. Liability of individual defendants
The individual defendants (as opposed to the Board) argue that Count 1
should be dismissed as against them, because it fails to allege specific facts as
to what each individual did to retaliate against Southward. (Def. Br. 15)
Southward replies that such concerns are “premature” and that the individual
defendants’ roles will emerge in discovery. (P1. Br. 21, 24)
CEPA primarily imposes liability for retaliatory acts upon an
“employer”—here, the Board. See N.J. Stat. Ann.
§ 34-19-3. The definition of an
“employer,” however, also includes a “person or group of persons acting directly
or indirectly on behalf of or in the interest of an employer with the employer’s
consent.” N.J. Stat. Ann.
§ 34: 19-2(a); see also Bowen v. Parking Auth. of City
of Camden, No. 00-5765, 2003 WL 22145814, at *22 (D.N.J. Sept. 18, 2003).
Thus CEPA liability may attach to individuals who perform retaliatory acts with
the authorization of their employers. Ivan, 595 F. Supp. 2d at 478. That
liability, however, is not derivative; it requires personal involvement. CEPA “will
not impose liability on any employee, supervisor, commissioner, or attorney
unless the plaintiff proves that the defendant took an adverse employment
action against him because of his whistle blowing.” Bowen, 2003 WL
22145814, at *23 (emphasis in original). When Bowen says “the defendant,” it
means each particular defendant. To some degree, then, the individual
defendants’ CEPA-specific objection merges with the general proscription
against “group pleading” in a complaint. See also Brennan v. Palmieri, No. 074364, 2008 WL 5233782, at *6 (D.N.J. Dec. 12, 2008) (requiring plaintiff “to
aver factual allegations that, if accepted as true, could establish how each
individual defendant was personally liable for a CEPA violation”). Nevertheless,
I am sensitive to the fact that Bowen was a summary judgment case, and that
a plaintiff cannot be expected to be privy to the inner workings of this network
of Board members and their associates.
The central surviving allegation of retaliation in Count 1 surrounds
Southward’s dismissal in June 2014. The original complaint failed to specify
who was responsible for firing Southward, although counsel indicated that
such an allegation could be made. (See Tr. 30—31 .)3 Inexplicably, the Amended
Complaint falls short of making such an explicit allegation.
Only an employer can fire an employee, however, and the Amended
Complaint does allege that Southward was fired and that the Board was her
employer. The Amended Complaint also at least implies that “rubber room”
THE COURT [Judge Salas): Yes. I mean are you claiming the defendants
all met, is that your allegation that they met and that they voted to terminate
her, wouldn’t that be in the complaint?
MR. RAYNES [plaintiffs’ counselj: I believe yes. We could put that in the
complaint, that they met.
THE COURT: It is not in there.
matters are within the discretion of the Board. See, e.g., AC ¶j 99, 96. I am
willing at this stage to indulge the commonsense inference that “the Board”
cannot act except through its members, whether by a formal vote or informal
consensus. A third possibility—the members’ abdication of responsibility and
acquiescence to the desires of behind-the-scenes actors—is raised, but I need
not resolve that issue here.
Plaintiffs now belatedly state, in their opposition to Defendants’ motion,
that “members of the Board took action to remove Plaintiffs from their
positions,” and that the “Board in fact met to discuss the termination of
Plaintiffs (‘C.S.’ and ‘K.K.’) and this is memorialized in the minutes of the June
12, 2014 Board meeting.” (P1. Br. 24). The publicly available portion of the
minutes, available online, does confirm that a resolution of “administrative
leave with pay” was approved unanimously as to “C.S.” and “K.K.” after a
private session. The minutes of the following meeting, on June 19, 2014,
indicate that the Board went into private session for, inter alia, “discussion of
personnel, specifically C.S.” Statements in briefs, of course, do not serve to
amend a deficient complaint. I can, however, draw plausible inferences and
consider matters of public record. See Section II, supra.
At the complaint stage, it would be a sufficient allegation of individual
liability under CEPA that the members of the Board met, discussed, and voted
to terminate a plaintiff. See Michel v. Mainland Reg’l Sch. Dist., No. 08-2238,
2009 WL 2391293, at *3 (D.N.J. July 30, 2009). If a Second Amended
http: / /www.epsnj org/ files/2VBVh/ d45 1 a4a5677a3 1 fd3745a490 1 3852ec4/ OFFICI
AL_MINUTES6-12-14.pdf at pp. 17, 18.
http: / /www.epsnj .org/ files/_2VBWy_/ 66b3 1 b933050fd203745a490 1 3852ec4/ OFFICI
AL_MINUTES_6- 19- 14_Special_Bd_Mtg.pdf at p. 5.
See, e.g., Pennsylvania ex. rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181
Cir, 1988) (“It is axiomatic that the complaint may not be amended by the briefs in
opposition to a motion to dismiss.”); Talley v. United States, No. 11-1180, 2014 WL
282680, at *5 (D.N.J. Jan. 24, 2014) (holding that “a complaint cannot be amended
through the brief of a party in opposition to a motion to dismiss”).
Complaint is submitted, it might as well be revised to include such an
allegation. I will not, however, dismiss Count 1 on this basis.
Once discovery has been had, Southward will be held to the requirement
of demonstrating the kind of personal involvement that would render each
individual defendant liable. See Bowen, supra (summary judgment analysis).
The motion to dismiss is denied, however, as to Southward’s Count 1 CEPA
claim against the individual Board members.
B. First Amendment and NJCRA (Counts 4, 5: Southward)
In Count 4, Southward asserts a claim of First Amendment retaliation
under 42 U.S.C. § 1983. In Count 5, Southward asserts a parallel claim under
the analogous provisions of the State Constitution and the NJCRA.
Title 42, United States Code, Section 1983 reads:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983.
The relevant portion of the NJCRA reads:
Any person who has been deprived of any substantive due process or
equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those substantive rights,
privileges or immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by a person acting
under color of law, may bring a civil action for damages and for other
injunctive or other appropriate relief.
N.J. Stat. Ann. § 10:6-2(c).
The NJCRA was modeled on Section 1983, and New Jersey courts have
consistently looked at claims under the NJCRA “through the lens of 1983.” The
are construed in parallel. Ingram v. Twp. of Deptford, 911 F. Supp. 2d 289,
2012); Trafton u. City of Woodbury, 799 F. Supp. 2d 417, 443-44 (D.N.J. 2011);
Chapman u. New Jersey, 2009 WL 2634888, *3 (D.N.J. Aug. 25, 2009) (“Courts
repeatedly construed the NJCRA in terms nearly identical to its federal
simplicity, I refer to Southward’s Section 1983 and NJCRA claims in Counts 4
and 5 as her “First Amendment” claims. Defendants move to dismiss
Southward’s First Amendment claims on statute of limitations and substantive
Southward alleges that she engaged in protected First Amendment
conduct, in the form of her maintaining certain “political views and affiliations”
and “fail[ing] to contribute support and financial assistance to Defendants’
preferred candidates and campaigns.” (AC ¶ 173-79) She alleges that in
response, she was (i) harassed in 2010 through 2011; (ii) transferred in or
around February 2011 from her position as Supervisor of Human Resources to
School 28, and to a Food Services position; and (iii) terminated in June 2014.
(AC ¶j 162-79). Defendants argue that Southward’s First Amendment claims
are untimely under the applicable two-year statute of limitations and that the
Amended Complaint fails to plead causation. (Def. Br. 18-19).
1. Statute of limitations
As to the statute of limitations, the analysis of the First Amendment
claim is parallel to that under CEPA (see Section III.A.ii. 1, supra), except that
the relevant limitations period is two years, rather than one. That distinction
makes no difference; the two year statute of limitations bars claims accruing
before June 2, 2013, but the acts already found to be time-barred date from
well before then, in 2010—il.
Actions brought under
§ 1983 are governed by the personal injury
statute of limitations of the state in which the cause of action accrued.
O’Connor v. City of Newark, 440 F.3d 125, 126 (3d Cir. 2006). For § 1983
actions in New Jersey, “that statute is N.J. Stat. Ann.
§ 2A: 14—2, which
provides that an action for injury to the person caused by a wrongful act,
neglect, or default, must be convened within two years of accrual of the cause
of action.” O’Connor 440 F.3d at 126—27. The statute of limitations for a
parallel claim under the NJCRA is likewise two years. N.J. Stat. Ann. § 2A: 142; Borrello v. Elizabeth BcZ. of Ethic., No. CIV.A. 14-3687 JLL, 2014 WL
5392042, at *4 (D.N.J. Oct. 23, 2014) (citing Brown v. City of Newark, 2010 WL
4 (D.N.J. Apr. 26, 2010)).
For purposes of the continuing violation analysis, both a federal and a
state First Amendment retaliation claim are governed by the “discrete” vs.
“nondiscrete” accrual doctrine of Nat’l R.R. Passenger Corp. v. Morgan, 536 U.s.
101, 113, 122 S. Ct. 2061 (2002). See discussion at Section III.A.ii. 1, supra.
Indeed, a retaliatory act is probably more likely to be held discrete and
actionable under the First Amendment than under CEPA.
BorreUo, supra, for example, was a First Amendment retaliation case
brought against the Elizabeth Board of Education by a secretarial employee.
The plaintiff, “Mary,” alleged a range of adverse actions, ranging from
administrative harassment, to banishment to the “rubber room,” to the
withholding of pay increases. The Court, per Judge Linares, noted the “very
low” threshold for First Amendment retaliation, and held that as a result, even
fairly minor acts would be regarded as discrete and independently actionable:
At issue here is whether Mary’s retaliation claims, which allege
that Defendants retaliated against Mary because she exercised her
constitutional rights to freedom of speech and association, are
based on discrete acts. The Court holds that they are in light of the
Third Circuit’s holding in O’Connor.
In O’Connor the Third Circuit held that a retaliatory act intended
to punish a public employee for exercising her First Amendment
rights is discrete and thus individually actionable “if under the
circumstances it would be sufficient to ‘deter a person of ordinary
firmness’ from exercising
her First Amendment rights.” Id. at
128 (quoting Suppan v. Dadonna, 203 F.3d 228, 234—35 (3d
Cir.2000)). This “deterrence threshold,” according to the Third
Circuit, is “very low” since “a cause of action is supplied by all but
truly de minimis violations.” Id. (citing Suppan, 203 F.3d at 234—
Borrello, 2014 WL 5392042, at *5
As it happened, the withholding of Mary’s pay increase was allegedly
communicated to her via a letter from Kulick’s sister, Karen Murray, then the
Board’s Director of Human Resources.
I therefore hold that the continuing violation theory has, if anything, even
less applicability here. As in the case of CEPA, First Amendment retaliation
claims based on the defendants’ 2010—11 actions are barred by the statute of
limitations. First Amendment retaliation claims based on the actions
surrounding Southward’s June 2014 dismissal, however, are not time-barred.
What remains is a retaliation claim, where the acts of retaliation are
those surrounding Southward’s banishment to the “rubber room” and
termination in June 2014. To plead a retaliation claim 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 u.
Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006).
Count 4 alleges only that Southward did not always support Board
causes or engage in Board-favored political activities. The time frame is 2010—
11, and the act of retaliation alleged is the 2011 transfer/demotion. Those acts,
however, are time-barred, as discussed above. This count does not plead a
causal link flowing from Southward’s political beliefs or affiliations, and in
particular it does not plead any link to the only potentially timely act of
retaliation, the June 2014 dismissal. Indeed, as to that 2014 dismissal,
Southward’s theory seems to be an entirely separate one: that Defendants
dismissed her when they learned she had been speaking to the FBI. (See AC
Although other allegations of the Complaint are incorporated by
reference, I will not attempt to extract or hypothesize a theory on Southward’s
behalf. The motion to dismiss Counts 4 and 5 will therefore be granted, but
without prejudice. Any proposed Second Amended Complaint must state what
First Amendment speech or affiliations are at issue; what non-time-barred
adverse action was allegedly taken in response; and some factual basis to think
there is a causal link between the two. The requirement is not that the
allegations be longer or more numerous, but that they be specifically keyed to
the requirements of a First Amendment cause of action.
Count 4 (and Count 5, insofar as it is asserted on behalf of Southward),
are therefore dismissed. That dismissal is without prejudice to the submission,
within 30 days, of a Second Amended Complaint that remedies the deficiencies
3. Other grounds
Because I have dismissed Southward’s First Amendment claims, I do not
reach certain other grounds asserted by the defendants. These include
vicarious liability of the Board, the liability of the individual defendants, and
the legislative immunity of the individual defendants. For the guidance of
counsel in drafting an amended pleading as to Southward, I refer them to my
discussion of those issues in relation to Kulick. See Section IV.B.2, infra.
CLAIMS ASSERTED BY KULICK
A. CEPA (Count 2)
Count 2 of the Amended Complaint alleges CEPA violations on behalf of
plaintiff Kulick. Although the legal basis of the claim parallels that asserted by
Southward, the facts are distinct. Kulick essentially alleges that she was
dismissed because she complained (a) of a coworker’s tardiness and
intoxication, and (b) of failure to make merit payments to Directors (including
herself) that were required by a memorandum agreement with the union.
A CEPA claim, recall, has four essential elements: (1) that Kulick
reasonably believed the complained-of conduct was violating either a law, rule,
or regulation promulgated pursuant to law, or a clear mandate of public policy;
(2) that she performed a whistleblowing activity; (3) an adverse employment
action; and (4) that the adverse employment action occurred because of her
whistleblowing activity. See Section III.A.i, supra. Defendants assert that Count
2 should be dismissed because Kulick’s allegations do not satisfy elements (1)
and (4)—i.e., they do not involve violations of law or public policy, and they are
not causally linked to Kulick’s dismissal. In response, Kulick chiefly argues
that discovery will reveal a basis for the claims.
I first consider Kulick’s report of Gomes’s tardiness and (sometimes)
intoxication. CEPA protects employees who complain to employers about
certain misconduct of co-workers. Higgins v. Pascack Valley Hosp., 158 N.J.
404, 419 (1999); N.J. Stat. Ann.
§ 34:19-3c. But CEPA does not cover all work-
related misconduct. A single co-worker’s tardiness and occasional intoxication,
without more, does not violate any criminal statute,’° and Kulick identifies no
statute or regulation that closely relates to the complained-of conduct. Nor has
Kulick specified a clear mandate of public policy that “concern[sj the public
health, safety or welfare or protection of the environment.” N.J. Stat. Ann.
34: 19-3c(3). I will assume arguenclo that it exists, but there is another problem.
Count 2 also fails to plead facts suggesting that CEPA element 4
(causation) is satisfied. That, to be sure, is ordinarily a factual issue. Here,
however, Kulick alleges no facts suggesting that Kulick’s 2014 termination was
caused by her report of her co-worker Gomes’s conduct in 2010. Kulick’s
sister, Karen Murray, allegedly was terminated at around that time for
objecting to Gomes’s promotion. Kulick detected a menacing undertone in the
statement of defendant Goncalves that Murray’s dismissal did not need to
affect Kulick. But Kulick does not allege that she herself was then subjected to
any adverse action at all. Of course circumstances, such as temporal
proximity, may permit a fact finder to infer causation. Here, however, nearly
four years went by before Kulick was terminated in 2014. That is not enough to
plausibly suggest an inference of causation. For these reasons, I dismiss
Kulick’s CEPA claim arising from her disclosure of Gomes’s conduct. The
For what it is worth, New Jersey explicitly prohibits counties, municipalities, or
other political subdivisions of the State from “adopt[ing] any law, ordinance, bylaw,
resolution or regulation having the force of law  rendering public intoxication or being
found in any place in an intoxicated condition an offense, a violation or the subject of
criminal or civil penalties or sanctions of any kind.” N.J. Stat. Ann. § 26:2B-26.
dismissal is without prejudice, however, to an amended complaint that states
facts in support of an inference of causation.
I move to the second component of Kulick’s CEPA claim: her allegation
that she was fired because she complained that Board insiders received agreedto merit raises, but that the Directors did not. Once again, Kulick’s complaint
fails to identify the claimed “law, rule or regulation” or contravention of public
policy. Certainly in the context of private employment, adjustment of rights as
between employer and employee is not a public matter covered by CEPA.” The
context here is public employment, which is different. Nevertheless, the
complaint “that the Directors had never received their Merit Pay” (AC
its face is a salary dispute between a small class of employees and their
employer. It does not self-evidently implicate a public harm; at any rate, the
complaint does not identify the particular rule or public policy involved, and I
will not guess. For these reasons, I also dismiss this second component of
Count 2, arising from Kulick’s complaint regarding lack of merit pay.
I do not say that a CEPA claim could not be pled. Any amended
complaint, however, must factually set forth the elements of a claim, and
idenfity the specific statute, regulation, or public policy allegedly contravened
by these alleged acts, under the principles discussed at pp. 10—li, supra.
In sum, Count 2, asserted by Kulick, is dismissed in its entirety. It does
not appear, however, that amendment would necessarily be futile. This
dismissal is therefore without prejudice to the submission within 30 days of a
Second Amended Complaint that remedies the deficiencies identified above.
Cf Smith v. TA Operating LLC, No. 10-2563, 2010 WL 3269980, at *45 (D.N.J.
Aug. 17, 2010) (stating that company policies or contractual agreements “do not
constitute law, rule or regulation as required by the language of CEPA”). Moreover,
CEPA requires that “the offensive activity must pose a threat of public harm, not
merely private harm or harm only to the aggrieved employee.” Mehiman v. Mobil Oil
Corp., 707 A.2d 1000, 1013 (N.J. 1998); see also Competello v. LaBruno, No. 02-664,
2005 WL 1637907, at *8 (D.N.J. July 12, 2005) (requiring that “the complained-of
conduct have ‘public ramifications’ in order to be protected under CEPA”).
First Amendment and NJCRA (Counts 3, 5: Kulick)
1. Liability of individual defendants
Defendants argue that Kulick’s First Amendment claims under
and NJCRA “should be dismissed because Plaintiffs have failed to plead that
any individual defendant personally engaged in retaliatory acts against them.”
(Def. Br. 22-24; see also Def. Reply Br. 10-1 1). Kulick replies essentially that
the individuals’ personal involvement must be developed in discovery. (P1. Br.
A defendant in a civil rights action “must have personal involvement in
the alleged wrongs to be liable,” and “cannot be held responsible for a
constitutional violation which he or she neither participated in nor approved.”
Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). To establish personal
§ 1983, a plaintiff must show that a defendant (i) “participated in
violating” the plaintiff’s rights; (ii) “directed others to violate” the plaintiff’s
rights; or (iii) as a supervisor, “had knowledge of and acquiesced in his
subordinates’ violations.” Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d
My reasoning here is parallel to the discussion of the same issue under
CEPA. See Section III.A.ii.3, supra. It is true that Kulick really singles out only
three individuals, Fajardo, Goncalves, and Ocasio, and omits an explicit
allegation that the Board voted to fire her. As above, however, I note that the
Board, as employer, was directly responsible for firing, and inferably could do
so only by vote or consensus. That inference is supported by matters of public
record, i.e., the minutes of the June 2014 Board meetings.
As in the case of CEPA, I suggest that the complaint, if amended, should
incorporate allegations of Board members’ individual involvement in the
As noted above, this point is asserted against Southward as well, but
Southward’s First Amendment claims were dismissed on other grounds. Should
Southward reassert them in amended form, this discussion may apply to them as well.
Defendants do not, as in the case of Southward, assert the statute of limitations
as to Kulick’s First Amendment claim.
termination. I will not, however, dismiss Kulick’s First Amendment claims in
Counts 3 and 5 on this basis.
2. Other grounds
Regarding the liability of the Board as an entity, Defendants assert
correctly that under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018
(1978), there is no respondeat superior liability under Section 1983. The weight
of authority interprets the NJCRA in the same manner. See Harvey v. Cty. of
Hudson, No. CV 14-3670 (KM), 2015 WL 9687862, at *11 (D.N.J. Nov. 25,
2015); Ingram v. Twp. Of Deptford, 911 F. Supp. 2d 289, 298 (D.N.J. 2012)).
The complaint does allege sufficiently, however, that there was a longstanding
practice of coercing employees into political activities and punishing them for
refusing to cooperate with improper decisions. The practice is alleged to
involve, not just underlings, but members of the Board itself. Such an
allegation remains to be proven, of course, but as an allegation it is sufficient.
I would also rule that the individual Board members’ legislative immunity
involves questions of fact not suitable for resolution on a motion to dismiss.
Among other things, it must be determined whether the Board was truly
legislating for the school district, or whether it was acting in an administrative
capacity, making personnel decisions directed to an individual employee. See
generally In re Montgomery County, 215 F.3d 367, 377 (3d Cir. 2000). The
motion to dismiss on these grounds is denied without prejudice to renewal of
these immunity contentions in connection with summary judgment.
NEW JERSEY CIVIL RICO
In Count 6 of their Amended Complaint, Southward and Kulick jointly
assert a claim under NJRICO, alleging that Defendants conducted the affairs of
the Board through a pattern of racketeering activity. (AC
180-90). I find that
Count 6 does not meet the Twombly/Iqbal standard of factual pleading.’
Pursuant to NJRICO, it is unlawful to be “employed by or associated with
any enterprise engaged in or activities of which affect trade or commerce to
conduct or participate, directly or indirectly, in the conduct of the enterprise’s
affairs through a pattern of racketeering activity or collection of unlawful
debt.” N.J. Stat. Ann.
2C:41—2(c). The elements of a claim under NJRICO are
“(1) the existence of an enterprise; (2) that the enterprise engaged in activities
that affected trade or commerce; (3) that the defendant was employed by or
associated with the enterprise; (4) that the defendant participated in the
conduct of the affairs of the enterprise; (5) that the defendant participated
through a pattern of racketeering activity; and (6) that the plaintiff was injured
as a result of the conspiracy.” Galicki v. New Jersey, No. 14-169, 2015 WL
3970297, at *7 (D.N.J. June 29, 2015).’4
Plaintiffs have voluntarily dismissed their federal RICO claims pursuant to 18
U.S.C. § 1962. (See P1. Br. 40. The reference to federal RICO in the Amended
Complaint’s jurisdictional statement seems to be a vestige.) The NJRICO statute,
however, has been interpreted in conformity with the federal RICO statute, and I cite
federal case law as a guide. See In re Schering—Plough Corp. Intron/Temodar Consumer
Class Action, 678 F.3d 235, 245 (3d Cir. 2012) (“Since the TPP Complaint’s federal and
New Jersey RICO claims parallel each other, and because the two RICO statutes are
intended to be coextensive, we follow the District Court’s approach and analyze the
two claims concurrently.”); State v. Cagno, 211 N.J. 488, 508 (2012) (“[B]ecause our
New Jersey RICO statute is modeled upon its federal counterpart, it is appropriate to
accept guidance from the federal RICO cases.”).
Defendants, citing Galicki, state that a NJRICO claim is subject to the
heightened pleading requirements for fraud claims under Federal Rule of Civil
Procedure 9(b). For that proposition, Galicki cites Lum v. Bank ofAm., 361 F.3d 217,
223 (3d Cir. 2004) (abrogated in part on other grounds by Twombly, supra). Lum,
however, involved a RICO claim that was predicated on fraud offenses. I am not
persuaded that Galicki meant to imply that all NJRICO claims, regardless of their
nature, are subject to Rule 9(b) pleading standards.
The NJRICO allegations of this Amended Complaint are so general and
conclusory that they fail to provide each Defendant with notice of his or her
alleged participation in the racketeering enterprise. See, e.g., id. at *8
(dismissing plaintiffs’ NJRICO claim for “failing to provide each Defendant with
notice of its alleged participation in the racketeering enterprise”). I have
indulged the plaintiffs in regard to specifying each individual defendant’s
involvement in the CEPA and First Amendment claims, supra. As to NJRICO,
however, that indulgence is stretched past the breaking point. Here, each
defendant’s participation cannot be inferred from employer status and is not
just a generic prerequisite for liability; rather, it is woven into the substantive
elements of NJRICO.
Count 6 alleges generally that the Board is an enterprise, of which the
individual defendants are members or affiliates. (AC
names, dates, or particulars, it alleges that the “Defendants” as a group
participated in the affairs of the Board through a “pattern of racketeering
activities, including bribery.” (AC
184) The bribery allegedly consisted of
soliciting political contributions “in exchange for favors and continued
employment over a period of several years,” including the creation of an
“understanding among Board employees that Defendants could influence
employment matters.” (AC
As to this NJRICO claim, the who, what, when, where, and how are
largely absent. This is all simply too vague and conclusory to meet the
Twombly/Iqbal pleading standards. Indeed, even if I comb the allegations of the
other counts, I cannot extract the necessary allegations. The most specific
seem to involve defendant Fajardo (at times acting as a private citizen and at
other times as a Board member). (See AC
136-37) Despite being given one
prior opportunity to amend, the Plaintiffs have not alleged factually that any
other Defendant did anything that would approach the criminal offense of
bribery. The only person other than Fajardo who is alleged to have solicited
political contributions is Annie Rooney, Defendant Munoz’s secretary, who is
not named as a defendant. (Id.
NJRICO is a complex statute which, by its very nature, necessitates a
certain level of specificity in pleading. By dropping their federal RICO claim, the
plaintiffs have avoided the necessity of submitting a federal RICO case
statement setting forth the basis of their claims in detail. See Loc. Civ. R. App’x
N. Should plaintiffs attempt to amend their NJRICO claim, however, Appendix
N may provide a useful guide to the kind of allegations required to set forth a
claim. To be clear, I do not imply that plaintiffs must or should amend their
claim; nor do I mean to convey that Appendix N sets forth a standard for
pleading a NJRICO action that displaces the standards of the Federal Rules.
I will therefore grant Defendants’ motion to dismiss Count 6, the Civil
NJRICO claim, without prejudice.
For the foregoing reasons, the Defendants’ motion to dismiss is granted
in part and denied in part. As to Count 1 (CEPA/Southward) the motion to
dismiss is granted in part, based on the statute of limitations, as to acts of
retaliation occurring before June 2, 2014. As to Counts 4 and 5 (First
Amendment retaliation! Southward) the motion to dismiss is granted. As to
Count 2 (CEPA/ Kulick) the motion to dismiss is granted on both statute of
limitations and substantive grounds. As to Counts 3 and 5 (First Amendment
retaliation/Kulick), the motion to dismiss is denied. As to Count 6 (NJRICO)
the motion to dismiss is granted.
All dismissals, except those under the statute of limitations, are without
prejudice to the submission, within 30 days, of a proposed Second Amended
Complaint that remedies the deficiencies identified above in this Opinion.
Dated: January 11, 2017
K VIN MCNULTY
United States District Ju
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