SMITH v. ROONEY et al

Filing 21

OPINION. Signed by Judge John Michael Vazquez on 2/13/18. (sr, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HOWARD SMITH,

Plaintiff
Civil Action No. 17-1730
V.

OPINION
DANIEL ROONEY, et al,
Defendants.

John Michael Vazguezg U.S.D.J.

This case arises from the Wayne Board of Education’s termination of Plaintiff as a
physical education and health teacher for the Wayne School District. Plaintiff primarily alleges
that his termination was the result of a religious discrimination and retaliation conspiracy. The
present matter comes before the Court on Defendants Daniel Rooney, Daniel Rooney on behalf
of his minor son D.R., the Wayne Board of Education, Mark Toback, and Jack Leonard’s
(collectively “Defendants”) motion to dismiss Plaintiff Howard Smith’s Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. D.E. 14.
Plaintiff submitted a brief in opposition, D.E. 19, to which Defendants replied. D.E. 20.1 The

Court reviewed the submissions in support and in opposition, and considered the motion without
oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(5). for the reasons stated
below, Defendants’ motion is GRANTED in part and DENIED in part.

In this Opinion, Defendants’ motion to dismiss (D.E. 14) will be referred to as “Def. Brf.”
Plaintiffs brief in opposition (D.E. 19) will be referred to as “P1. Opp.” Defendants’ reply brief
(D.E. 20) will be referred to as “Def. Rep.”

I.

BACKGROUND
A. Factual Background

Plaintiff Howard Smith was a tenured physical education and health teacher for the
Wayne School District. Amended Complaint (“Am. Compl.”) ¶J 34-35; D.E. 11. Plaintiff
worked for the district from 1997 until September 8. 2016, when Defendant Wayne Board of
Education (“Wayne BCE”) terminated his employment. Id.

¶J 33, 115. Defendant Mark

Toback is the Superintendent for the Wayne School District. Id.
is the principal of a Wayne middle school. Id.

¶ 25. Defendant Jack Leonard

¶ 26. Defendant Daniel Rooney is the guardian of

his minor son Defendant D.R., one of Plaintiffs former students at a Wayne middle school. Id.
¶J9-l0, 12,40.
This matter arises from an incident in Plaintiffs physical education class involving
Plaintiff and D.R. Cn January 27, 2016, Plaintiff informed the principal, Leonard, that during
class that day, D.R. had referred to Plaintiff and a Jewish classmate with the threat of “killing
two Jews with one stone.”2 Id.

¶J 43-44. Plaintiff is Jewish. Leonard spoke with D.R., who

admitted both to making the comment and that he was aware Plaintiff was Jewish. Id.

¶J 56-57.

As a result, Leonard concluded that D.R.’s statement was religious discrimination and
immediately suspended D.R. for two days. Id.

¶ 60-61.

At this stage, the Court accepts the factual allegation in the Amended Complaint as true.
Defendants indicate that on the day of the incident, D.R. threw a paper object that landed near
Plaintiff and the Jewish student. At that point, D.R. made a statement to the effect that he had
almost killed two Jews with one stone. Yet, the Court points out this distinction because it
undercuts Plaintiffs claim, if true. Plaintiffs Amended Complaint indicates that D.R. threatened
to kill Plaintiff and the Jewish student, as though it were indicative of some future action that
D.R. planned to take. However, if Defendants’ version is accurate, D.R.’s inappropriate
comment came after the activity (the throwing of the object) and was not reflective of D.R.’s
intent to take future action.

2

2

Leonard then informed Rooney, D.R.’s father, of the suspension and the reasons therefor.
Id.

¶ 69. Later that same day, January 27, 2016, Rooney called Leonard and accused Plaintiff of

having previously engaged in appropriate behavior in the classroom. Id.

¶ 70. Prior to Rooney’s

allegations, no other student from the physical education class Plaintiff taught D.R. in had
complained of Plaintiffs behavior. Id.

¶ 91. Following Rooney’s allegations, the Wayne BOE

conducted an investigation into the allegations and then suspended Plaintiff and filed tenure
charges against him. Id.

¶ 93. In the Statement of Tenure Charges, Superintendent Toback

referred to Rooney’s allegations but did not mention D.R.’s “religious threat” against Plaintiff
Id.

¶ 105.
Several students testified at Plaintiffs tenure hearing. Id.

¶ 94. The students admitted

that they knew prior to being interviewed, during the investigation stage, that they were to be
interviewed about matters concerning Plaintiff Id. At the hearing, Leonard acknowledged that
it was problematic that the students knew ahead of time that the purpose of the hearing was to
investigate Plaintiffs behavior.3 Id.

¶ 97. Leonard further admitted that during his investigation

of Rooney’ s allegations, a student admitted that he (the student) and his classmates made
derogatory comments about Muslims and Italians “all the time.” Id.

¶ 100. Leonard said that he

did not further investigate or take action afier hearing this comment. Id. He also said that it
would not have been in his “best interest” to interview Plaintiffs former students to determine

The Amended Complaint does not indicate what precisely the students were told before they
were interviewed during the investigation. For example, the Amended Complaint does not state
whether the students were merely told that they were to be interviewed about matters concerning
Plaintiff or if the students were provided information beforehand in an attempt to sway their
statements.
3

whether they had similar allegations against Plaintiff. Id. at 101. Following the tenure hearing,
the Wayne BOE, on September, 8, 2016, terminated Plaintiffs employment.4 Id.
In addition to objecting to his termination, Plaintiff alleges that Defendants
inappropriately disclosed confidential information on multiple occasions. Plaintiff states that he
and the Wayne BOE entered into an agreement in May 2015, which included a confidentiality
provision limiting disclosure. Id.

¶ 109.

Plaintiff states that Toback first violated that agreement

when he disclosed confidential information to the arbitrator presiding over the tenure charges.
Id.

¶ 111.

Plaintiff alleges that the Wayne BOE then disclosed confidential information to the

Department of Labor. This disclosure resulted in Plaintiff experiencing a delay in receiving
unemployment benefits. Id.

¶ 117.

Plaintiff states that on March 29, 2017, the Wayne BOE

further disclosed confidential information to the Equal Employment Opportunity Commission
(“EEOC”). Id.

¶ 121.

Plaintiff adds that the Wayne BOE disclosed confidential information on

Thus, Plaintiffs substantive factual allegations boil down to the following. D.R., who was a
student in Plaintiffs class, made a remark that can reasonably be interpreted as anti-Semitic.
Thereafter, the principal, Leonard, took immediate action: Leonard interviewed D.R., who
admitted that he had made the remark, and then Leonard suspended D.R. Rooney then called
Leonard and indicated that Plaintiff himself had engaged in inappropriate conduct, which (as is
discussed below) Leonard was duty-bound by statute to investigate. Although students were told
beforehand that they were to be interviewed about matters concerning Plaintiff, Plaintiff fails to
allege that the students were subject to any improper influence before being interviewed.
Following the school’s investigation, Plaintiff was suspended and brought up on tenure charges.
The tenure proceeding was before an independent arbitrator, who took testimony and evidence
over several days. There is absolutely no allegation in the Amended Complaint that any person
engaged in anti-Semitic conduct or made anti-Semitic remarks either during the investigation or
during the tenure hearing.
‘

On January 13, 2017, the Department of Labor’s Appeal Tribunal issued a decision finding that
Plaintiffs testimony was “specific and consistent on the important facts” and that the Wayne
BOE had not met its burden of showing that Plaintiff had engaged in misconduct. Am. Compi. ¶
119.
4

May 22, 2017, to the Court and general public, when it filed its first motion to dismiss Plaintiffs
Complaint. Id.

¶ 122.

B. Procedural Background

On March 15, 2017, Plaintiff filed a Complaint against Defendants. D.E. 1. In response,
Defendants filed a motion to dismiss. D.E. 7. Plaintiff then filed an Amended Complaint on June
2, 2017. D.E. 11. In his Amended Complaint, Plaintiffbringsforty-five counts against Defendants:
42 U.S.C.

§ 1983 violations of his Fourteenth Amendment rights based on religion (Counts One

through Five); 42 U.S.C.
and Seven); 42 U.S.C.

§ 1985 conspiracy violations to interfere with his civil rights (Counts Six

§ 1986 violation for neglecting to prevent the civil rights conspiracy (Counts

Eight through Eleven); New Jersey Law Against Discrimination violations (Counts Twelve
through Nineteen and Counts Twenty-Six through Thirty-Three); breach of contract (Counts
Twenty, Twenty-Two, Thirty-Five, and Thirty-Seven); breach of duty of good faith and fair
dealing (Counts Twenty-One, Twenty-Three, Thirty-Six, and Thirty-Eight); tortious interference
(Counts Twenty-Four and Twenty-Five); property damage (Count Thirty-Four); and 42 U.S.C.

§

2000e et seq. (Title VII) violations (Counts Thirty-Nine through Forty-Five). Plaintiff seeks both
back and front pay; punitive, liquidated, and compensatory damages; reinstatement; and attorney’s
fees and costs.
On June 16, 2017, Defendants filed the current motion to dismiss. D.E. 13-14. Plaintiff
filed a brief in opposition to this motion, D.E. 19, to which Defendants replied. D.E. 20.
II.

LEGAL STANDARD

federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for “failure to state a
claim upon which relief can be granted.” For a complaint to survive dismissal under the rule, it
must contain sufficient factual matter to state a claim that is plausible on its face. Ashcrofl v. Iqbal,

5

556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp. v. Twomblv, 550 U.S. 544, 570 (2007)). A claim
is facially plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although the

plausibility standard “does not impose a probability requirement, it does require a pleading to show
more than a sheer possibility that a defendant has acted unlawfully.” Connelly v. Lane Const.
Corp., $09 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a
result, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will
uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. fowter v. UFliCShadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Restaternents
of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of
truth. Burtch v. Mitberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,
“must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 f.3d at 210. In

deciding a motion to dismiss the Court may also consider any “document integral to or explicitly
relied upon in the complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (citing In re

Burlington Coat factoiy Sec. Litig., 114 f.3d 1410, 1426 (3d Cir. 1997) (quotation & emphasis
omitted)). Even if plausibly pled, however, a complaint will not withstand a motion to dismiss if
the facts alleged do not state “a legally cognizable cause of action.” Turner e. IF. Morgan Chase
& Co., No. 14-7148, 2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).

6

III.

LEGAL ANALYSIS

Defendants argue that Plaintiffs Amended Complaint should be dismissed on several
grounds under Rule 1 2(b)(6).6 first, Defendants argue that the doctrine of collateral estoppel
bars all of Plaintiffs claims. P1.

Opp. at 17-23.

Second, Defendants assert that Plaintiff has

failed to sufficiently allege that Rooney and D.R. are state actors under Section 1983. Id. at 2730. Third, Defendants argue that Plaintiff has failed to plausibly state a claim of religious
discrimination under the New Jersey Law Against Discrimination, Id. at 23-27, a claim of civil
rights conspiracy, Id. at 29-30, and claims for breach of contract and breach of duty of good faith
and fair dealing, Id. at 30-36. fourth, and finally, Defendants assert that Toback and Leonard are
entitled to qualified

immunity.

Id.

at

36-40.

A. Collateral Estoppel
Defendants first argue that the doctrine of collateral estoppel bars Plaintiffs Amended
Complaint. Defendants assert that collateral estoppel applies because the exact issues raised in
the Amended Complaint were previously raised and litigated in an earlier proceeding. Def. Brf.
at 17. Specifically, Defendants allege that the issue of whether the Wayne BOE had a valid,
rather than religious discriminatory, reason to terminate Plaintiff was fully litigated before
Arbitrator Joel Weisblatt in the tenure hearing. Id. at 19. Defendants state that during the tenure
hearing, Plaintiff “alleged that the testimony of D.R. was fabricated in response to the suspension
he received for the comment regarding Plaintiffs religious faith.” Id. at 20. Finally, Defendants
point out that the Superior Court of New Jersey upheld Arbitrator Weisblatt’s decision. Id. at 22.

In their motion to dismiss, Defendants originally argued that the Younger abstention doctrine
barred Plaintiffs Amended Complaint. P1. Opp. at 9-17. However, in their reply brief,
Defendants admitted that there was no longer any pending state court matter in this case and,
therefore, that Younger abstention did not apply. P1. Rep. at 3.
6

7

Plaintiff responds that the doctrine of collateral estoppel is inapplicable here for several
reasons. To begin, Plaintiff asserts that the parties to the current lawsuit differ from the parties at
arbitration. Plaintiff further claims that the issues alleged in the Amended Complaint differ from
the legal issues at arbitration and that he could not raise his current legal claims before the
arbitrator. P1.

Opp. at 16-17.

Plaintiff indicates that N.J.S.A. Section 18A:6-9 statutorily limited

the arbitrator to only hearing and deteniiining issues “under school laws.” Id. at 17-18.
The Court agrees with Plaintiff that the doctrine of collateral estoppel does not apply
here. Collateral estoppel bars a party from relitigating a legal issue when four elements are
present: “(1) the identical issue was previously adjudicated; (2) the issue was actually litigated;
(3) the previous determination was necessary to the decision; and (4) the party being precluded
from relitigating the issue was fully represented in the prior action.” Raytech Corp. v. White, 54
F.3d 187, 190 (3d Cir. 1995) (citing United Industrial Workers v. Government of the Virgin
Islands, 987 F.2d 162, 169 (3d Cir. 1993)). The first three elements are not present here.
Plaintiff relies on Ga/braith v. Lenape Reg’l High Sch. Dist., 964 F. Supp. 889, 892
(D.N.J. 1997). Plaintiffs reliance is misplaced, however. Galbraith discussed the “arises under
school laws” requirement in N.J.S.A. Section 18A:6-9 in the context of deciding whether New
Jersey’s entire controversy doctrine applied, not collateral estoppel. 964 F. Supp. at 895.
Nevertheless, the Ga/brait/i court’s subsequent discussion on collateral estoppel is
applicable. The Gaibraith court observed the following:
[L]liability under Title VII and the NJLAD requires more than a
finding that the Board violated Plaintiffs tenure rights. In order to
prevail on these claims, a plaintiff must show that: (1) she is a
member of a protected class; (2) she was qualified for the position
which she sought; and (3) the employer continued to seek to fill the
Moreover, the remedies
position after rejecting the plaintiff
available to the Plaintiff in her Title VII and NJLAD claims are more
comprehensive than those already awarded by the Commissioner. In
.

$

.

.

addition to reinstatement and back pay, a successful plaintiff may
receive compensatory and punitive damages, and attorneys’ fees,
under both Title VII and the NJLAD.
Gal braith, 964 F. Supp. at 897 (internal citations omitted). Thus, the Gal bra ith court recognized

that the legal elements and remedies present in the plaintiffs Title VII and NJLAD claims
differed from those at the tenure hearing. As a result, the court in Ga/bra ith concluded that
collateral estoppel did not apply to bar these claims. The same is true here.
The Galbraith court did find that collateral estoppel barred the plaintiffs contract claim.
Id. at 896. However, the breach of contract issue in Gaibraith differs significantly from

Plaintiffs breach of contract claim. In Gaibraith, the tenure hearing centered on whether the
school district violated the plaintiffs tenure rights when it appointed a non-tenured supervisor to
the position of Supervisor of Humanities. Id. Thus, the very contract at issue was the plaintiffs
tenure agreement. Here, by comparison, Plaintiff claims that the contract breached was a May
2015 agreement with the Wayne School District that contained a confidentiality clause. Unlike
in Galbraith, the arbitrator here did not make factual or legal findings concerning the alleged
breach of the prior confidentiality provision.
B. Section 1983 State Actors

Defendants next argue that Plaintiff has failed to sufficiently allege that Rooney and D.R.
are state actors under Section 1983. Def. Brf. at 27. Defendants claim that Plaintiff has not
plausibly pled that D.R. and Rooney’s actions have the requisite “close nexus” to qualify as state
action. Id. To that end, Defendants point to case law holding that a private party’s filing of a
complaint or invocation of a state procedure does not establish that private individual as a state
actor for Section 1983 purposes. Van Tassel v. Lawrence Ctv. Domestic Relations Section, 659

9

F. Supp. 2d 672, 699 (W.D.Pa. 2009), aff’d sub

norn.

Van Tassel v. Lawrence Civ. Domestic

Relations Sections, 390 F. Appx 201 (3d Cir. 2010).
Plaintiff counters that the Amended Complaint sufficiently alleges that Leonard and
Toback are state actors. The Amended Complaint states that “the state actors Leonard and
Toback adopted the unlawful retaliatory allegation by Rooney and D.R. in place of their own
judgment.” P1.

Opp. at 33.

Plaintiff claims that Leonard and Toback’s substitution of their own

judgment for that of D.R. and Rooney’s suffices to create state action. In support of this claim,
Plaintiff quotes several cases suggesting that state action may occur where a state actor
substitutes his or her own judgment for that of a private party’s. See Cahill cx rd. L. C. v. Live
Nation, 512 F. App’x 227, 230 (3d Cir. 2013); Mammaro v. Omega Lab., Inc., 2014 WL
4854602, at *2 (D.N.J. Sept. 30, 2014).
The Court finds that the Amended Complaint does not sufficiently allege that Rooney or
D.R. are state actors under Section 1983. Courts may determine whether a private party qualifies
as a state actor under various tests. Cahill, 512 F. App’x at 230. Here, both Plaintiff and
Defendants rely on the joint action test. That test requires a court to engage in a two-prong
inquiry to determine whether: “(1) the private entity has a ‘prearranged plan’ with the [state
actors], and (2) under the plan, the [state actors] will ‘substitute their [own] judgment’ with that
of the private entity’s.” Id. (citing Cruz v. Donnelly, 727 F.2d 79 (3d Cir.1984)). If both prongs
are met, then the private actor’s actions will be deemed state action. See Cahill, 512 F. Appx at
231 (finding that a contract for the Hanover Township Police Department to provide security for
a corporation’s live entertainment venue satisfied the first prong of a “prearranged plan,” but
finding that the second prong was not met because there was “no evidence” that the police
“blindly obeyed” a directive to use force or issue citations “without any thought that this would

10

be an appropriate course of action”); Crttz, 727 F.2d at 79 (holding that police officers’ decision
to follow the order of a shopkeeper to strip search plaintiff failed the joint action test because
“[n]owhere does [plaintiff] assert that the police would not strip search him as part of a routine
shoplifting investigation, with or without [the shopkeeper’s] ‘order and command”) (emphasis
in original).
Here, Plaintiff has not alleged sufficient facts to meet the two prongs of the joint action
test. The Amended Complaint alleges that D.R. made a derogatory religious comment in class,
which Plaintiff reported to Leonard. Leonard then suspended D.R. Later that day, Rooney
called Leonard alleging that Plaintiff had also engaged in prior inappropriate behavior while
teaching. The school investigated Rooney’s allegations, which led to a tenure hearing where
Plaintiff was terminated from his teaching position. Accepting all of these facts as true, they fail
to show either that Defendants engaged in a prearranged plan or that Leonard and Toback
substituted their judgment for that of D.R and Rooney’s. Leonard and Toback did not accept
Rooney’s allegations at face value and decide to immediately fire Plaintiff. Instead, they
investigated the claims and determined that the evidence sufficiently demonstrated impropriety
by Plaintiff. Moreover, neither Toback nor Leonard actually fired Plaintiff; the decision was
made by the neutral arbitrator after a full, multi-day hearing.
Plaintiff adds that Leonard’s admission that he did not interview former students of
Plaintiff shows that “Leonard readily wanted to, and did, adopt the Rooney allegations about the
Plaintiff to the exclusion of all exculpatory facts.” P1.

Opp. at 33.

This a conclusory allegation

and, as such, does not warrant a presumption of truth. Moreover, Plaintiff does not allege that
those students had exculpatory information or that he was precluded from calling those students
at the arbitration if Plaintiff believed that it would have helped his case. Thus, the Amended

11

Complaint fails to plausibly allege that Rooney or D.R. are state actors. Counts Four and Five
are dismissed without prejudice.
C. The New Jersey Law Against Discrimination

Defendants next argue that the Amended Complaint fails to state a claim for religious
discrimination under the New Jersey Law Against Discrimination (“NJLAD”). Def. Brf. at 23.
Specifically, Defendants allege that the Amended Complaint fails to state aprimafacie case of
religious discrimination. In support, Defendants assert that the Amended Complaint does not
allege sufficient facts to show that Plaintiff is qualified for the position sought. Id. at 23-25.
Defendants, instead, claim that the qualification issue “has already been determined” because the
arbitrator found that Plaintiff was unqualified to teach. Id. at 25.
Plaintiff responds that the Amended Complaint plausibly pleads that Plaintiff was
sufficiently qualified for his teaching position. He points to the Amended Complaint’s factual
allegations that “he worked for the School District from 1997 to 2017 and that he obtained
tenure.” P1.

Opp. at 26.

Further, because Arbitrator Weisblatt did not rule on Plaintiff’s NJLAD

claims, Plaintiff asserts that the arbitrator’s findings are not relevant. Id. at 27. In the
alternative, Plaintiff asserts that the Department of Labor determined that the Wayne School
District failed to meet its burden of proving that Plaintiff engaged in misconduct. Id.
The New Jersey Supreme Court has ruled that the United States Supreme Court’s test in
McDonnell Douglas Coip. v. Green, 411 U.S. 792 (1973) is the starting point for analyzing a

Defendants also argue that the Amended Complaint fails to plausibly plead a claim of hostile
work environment under the NJLAD. Plaintiff, however, points out that the Amended
Complaint does not state a claim of a hostile work environment under NJLAD. P1. Opp.at 2$, fn.
9. The Amended Complaint does plead claims of a hostile work environment under Section
1983 in Counts One through Five. Defendants do not challenge those counts. Thus, the Court
does not address Defendants’ hostile work environment arguments because the Amended
Complaint does not assert any such cause of action under NJLAD.
12

claim under the NJLAD. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210 (1999). The
McDonell Douglas test is a three-stage process: (1) the plaintiff must present sufficient evidence

to establish aprimafacie case of discrimination; (2) the defendant must then provide a legitimate
non-discriminatory reason for its decision; and (3) the plaintiff must then have an opportunity to
argue that defendants’ stated reason was pretextual or discriminatory in its application. Dixon
Rutgers, The State Univ. ofNew Jersey, 110 N.J. 432, 442 (1988).

The first stage, where the plaintiff must make out aprimafacie case of discrimination, “is
met when the plaintiff shows that ‘it is more likely than not’ that the employer’s actions were
based on unlawful considerations.” Dixon, 110 N.J. at 443 (quoting furnco Constr. Coip. v.
Waters, 438 U.S. 567, 577 (1978)). To do so, a plaintiff must allege the following: (1) plaintiff
is a member of a protected class; (2) plaintiff was qualified for the rank or position sought; (3)
plaintiff was denied promotion, reappointment, or tenure; and (4) others with similar or lesser
qualifications achieved the rank or position. Dixon, 110 N.J. at 443 (citations omitted).
Defendants argue that Plaintiff has not sufficiently pled the element of qualification to
make out a prima fade case of discrimination in light of the arbitrator’s decision. Yet,
Defendants’ argument fails because it assumes the very fact that is at issue: the propriety of
bringing the tenure proceedings. At this stage, Plaintiff has plausibly pled that he was qualified
for his teaching position. The Amended Complaint states that Plaintiff worked for the Wayne
School District from 1997 to 2017, during which time he received tenure. Count Thirty-Three,
therefore, remains.8

8

Plaintiff argues that Defendants only moved to dismiss the thirty-third claim of the Amended
Complaint, which is the underlying claim of religious discrimination pursuant to the NJLAD. P1.
Opp. at 26, fn. 7. In the heading for Point III, Defendants merely state that they are moving to
dismiss a claim for religious discrimination under the NJLAD, N.J.S.A. 10:5-1 et seq. Def. Brf.
at 23. Defendants do not expressly argue that the other NJLAD counts should be dismissed nor
13

D. Section 1985 Civil Rights Conspiracy

Defendants next argue that Plaintiff has not plausibly pled a claim of civil conspiracy
under Section 1985. Def. Brf. at 29-30. Defendants assert that the only factual allegation in the
Amended Complaint that supports Plaintiffs civil conspiracy theory is Rooney’s accusations
about Plaintiff to Leonard. Id. at 30. In a footnote, Plaintiff counters that Defendants mistakenly
seek dismissal of the civil conspiracy claims in a section of their brief addressing the Section
1983 liability of D.R. and Rooney, even though Plaintiff only alleges Section 1985 claims
against Leonard and Toback. P1.

Opp. at 34.

The Court agrees that Defendants could have more

clearly asserted their position. However, Defendants’ motion to dismiss clearly argues that
Plaintiff failed to plausibly plead a civil conspiracy claim under Section 1985(3). Therefore, the
Court will address that argument.
The Court finds that the Amended Complaint does not plausibly plead a claim of civil
conspiracy under Section 1985(3). A plaintiff may bring a Section 1985(3) claim if he has been
harmed by a “conspiracy formed ‘for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws.” Farber v. City ofPaterson, 440 f.3d 131, 134 (3d Cir. 2006)
(quoting 42 U.S.C.

§ 1985(3)). To allege a Section 1985(3) claim, a plaintiff must plausibly

allege the following:
(1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy; (4) whereby a person is
injured in his person or property or deprived of any right or privilege
of a citizen of the United States.

do they analyze why such dismissal is appropriate. Counts Thirteen through Eighteen and
Twenty- Six through Thirty-Two, therefore, remain.
14

Id. (quoting United Bhd. of Carpenters &Joiners v. Scott, 463 U.S. 825, 828-29 (1983)).

Here, the factual allegations in the Amended Complaint fall far short of sufficiently
alleging a Section 1985(3) claim. To properly allege the first element of a conspiracy, a plaintiff
must show “(1) a combination of two or more persons; (2) a real agreement or confederation
with a common design; (3) the existence of an unlawful purpose, or a lawful purpose to be
achieved by unlawful means; and (4) special damages.” John Wiley & Sons, Inc. v. Rivadeneyra,
179 F. Supp. 3d 407, 412 (D.N.J. 2016) (citing Morganroth & Morganroth v. Norris,
McLaughlin & Marcus, P.C., 331 F.3d 406, 414 (3d Cir. 2003)). Plaintiff asserted his Section
1985(3) conspiracy claims against only Leonard and Toback. There is a dearth of factual

allegations to adequately support a civil rights conspiracy. The Court cannot reasonably infer a
conspiracy merely because Rooney complained to Leonard about Plaintiff after Leonard
suspended D.R. Plaintiff admits that Leonard confronted D.R. and took immediate action after
Plaintiff complained of D.R.’s inappropriate Jewish statement. Such immediate disciplinary
action is inconsistent with any religious-based conspiracy by Leonard. Moreover, the Amended
Complaint fails to indicate that when Rooney complaint to Leonard, Rooney made any religious
reference to Plaintiff at all. Additionally, the Amended Complaint does not allege that Leonard
accepted Rooney’s allegations at face value; instead, Leonard instituted an investigation, as he
was required to do pursuant to New Jersey law. Finally, as to Toback, the Amended Complaint
does not plausibly allege that he joined any conspiracy. Therefore, Counts Six and Seven are
dismissed without prejudice.
Further, “transgressions of s[ection] 1986 by definition depend on a preexisting violation
of s[ection] 1985, if the claimant does not set forth a cause of action under the latter, its claim
under the former necessarily must fail also.” Rogin v. Bensalem Twp., 616 f.2d 680, 696 (3d

15

Cir. 1980). Thus, the Amended Complaint’s Section 1986 claims,9 Counts Eight through Eleven,
are also dismissed without prejudice.
E. Breach of Contract and Breach of Duty of Good Faith and Fair Dealing

Defendants also argue that Plaintiffs Amended Complaint fails to plausibly plead either
a cause of action for breach of contract claim or for breach of duty of good faith and fair dealing.
Def. Brf. at 30-36. Both of these claims stern from the Defendants’ alleged improper disclosure
of the terms of the May 21, 2015 Settlement Agreement (“Agreement”) entered into by the
Wayne BOE and Plaintiff. Plaintiff believes that Defendants improperly disclosed the
Agreement’s terms to (a) Arbitrator Weisblatt, (b) the New Jersey Department of Labor, (c) the
EEOC, and (d) the Court via the electronic filing system (“ECF”).
According to Defendants’ supplemental statement of facts, on February 8, 2015, the
Wayne School District received notice that Plaintiff had engaged in a verbal and physical
altercation with a number of students. Def. Brf. at 3. Thereafter, the District investigated that
matter and determined that Plaintiff had violated a regulation and policy concerning
inappropriate staff conduct. Id. As a result, Plaintiff and the District entered into the May 21,
2015 Settlement Agreement.1° Id. Thtis, the Agreement sterns from a prior incident where
Plaintiff was found to have behaved inappropriately towards students. While the Court is aware

Section 1986 “is a companion to s[ection] 1985(3) and provides the claimant with a cause of
action against any person who, knowing that a violation of s[section] 1985 is about to be
committed and possessing power to prevent its occurrence, fails to take action to frustrate its
execution.” Rogin v. Bensalern TMp.. 616 F.2d 680, 696 (3d Cir. 1980)
10

The Agreement contained the following terms: Plaintiff was placed on unpaid leave from June
through September 2015, transferred to another school building in the District, and forfeited
thirty accumulated sick days. In addition, the District reserved the right to bring tenure charges
against Plaintiff in the 2015-2016 school year or thereafter if Plaintiff engaged in further conduct
that the Wayne BOE believed was inappropriate. Def. Brf. at 3-4.
16

of the foregoing factual allegations, it does not consider them in deciding the current motion.
Such factual allegations as to the backdrop of the Agreement are not appropriate at the motion to
dismiss stage.
Defendants argue that the terms of the Agreement specifically reserved to the Wayne
BOE the right to bring tenure charges against Plaintiff in the future. They assert that by signing
the Agreement, Plaintiff inherently agreed to the Agreement being introduced at any subsequent
tenure hearing. Id. at 32. Defendants add that the Wayne BOE is a public entity and that, as
such, any settlement agreement it enters into becomes a public governmental record.1’
Defendants continue that the doctrine of collateral estoppel bars Plaintiff from asserting a claim
for damages, a required element of a breach contract claim. Id. at 33. Defendants next argue
that since the New Jersey Department of Labor approved Plaintiff for unemployment benefits,
even after reading the Agreement, Plaintiff suffered no damage from the disclosure. Id. at 34.
finally, Defendants argue that Plaintiffs disclosures of the Agreement’s terms on November 22,
2016, when he filed an Order to Show Cause and Complaint in the Superior Court of New
Jersey, made the tenns public. Id. at 35.
Plaintiff responds that he did not inherently consent to the Agreement’s disclosure at any
future tenure hearing. P1. Opp. at 28-29. Plaintiff also contends that even if the Agreement is a
public governmental record, Defendants would have still been subject to the New Jersey Open
Public Record Act (“OPRA”) so that Defendants would have to first demonstrate that they
produced an OPRA request. Id. at 29-30. Plaintiff further argues that collateral estoppel does

“

To support this assertion, Defendants cite to Burnett v. Cty. of Gloucester, 415 N.J. Super. 506,
508-09 (App. Div. 2010) and Asbuty FarkPress v. Ocean Cty. Prosecutor’s Office, 374 N.J.
Super. 312 (Law. Div. 2004).

17

not apply. Id. at 30. In addition, Plaintiff argues that Defendants’ disclosure of the Agreement
to the New Jersey Depathnent of Labor did cause him damage because it delayed his receipt of
unemployment benefits. Id. Plaintiff concludes that any disclosure on his part of the Agreement
requires the Court to interpret the Agreement and is, therefore, not ripe for dismissal at this stage.
To establish a breach of contract under New Jersey law, a plaintiff must demonstrate that
there is (1) a valid contract; (2) plaintiff performed under the contract; (3) defendant’s breach of
the contract; and (4) resulting damages. Lacroce v. li fortuna Roofing, Inc., 2017 WL 43176$,
at *5 (D.N.J. Jan. 31, 2017); see also Murphy v. Implicito, 392 N.J. Super. 245, 265 (App. Div.
2007). Further, a covenant of good faith and fair dealing is implied in every contract pursuant to
New Jersey law. Wilson v. Arnerada Hess Coip., 168 N.J. 236, 244 (2001). Under such a
covenant, “neither party shall do anything which will have the effect of destroying or injuring the
right of the other party to receive the fruits of the contract.” Wade v. Kessler Inst., 172 N.J. 327,
340 (2002) (internal quotation marks omitted) (quoting Ba/c-A-Lam Corp. ofAm. v. Alcoa Bldg.
Prod., Inc., 69 N.J. 123, 129 (1976)).
Plaintiffs Amended Complaint has alleged plausible breach of contract and breach of
good faith and fair dealing claims as to Defendants’ disclosure of the Agreement’s terms to
Arbitrator Weisblatt and the New Jersey Department of Labor. The parties agree that the
Agreement is a valid contract and that it contained a confidentiality clause limiting any
disclosure of the Agreement’s terms and conditions. Def. Brf. at 31. Therefore, at this stage, it
appears plausible that Defendants breached the Agreement’s terms, to Plaintiffs detriment, when
they disclosed the Agreement’s terms to Arbitrator Weisblatt and the New Jersey Department of
Labor. Moreover, as to damages, Plaintiff claims that disclosure of the Agreement’s terms to the
New Jersey Department of Labor resulted in a delay of his unemployment benefits. Similarly,

18

Defendants’ alleged failure to keep the Agreement confidential could reasonably be said to have
damaged Plaintiffs right to have the Agreement terms be kept confidential. The Court cannot
resolve Defendants’ arguments as to implied assent and the public nature of the document at the
motion to dismiss stage. Therefore, the Amended Complaint plausibly pleads Counts Twenty
through Twenty-Four.
However, the Amended Complaint fails to plausibly plead breach of contract and breach
of good faith and fair dealing claims as to Defendants’ disclosure of the Agreement’s terms to
the EEOC and to the Court. Plaintiff himself published a number of documents referencing the
Agreement’s terms on November 21, 2016, when he filed an Order to Show Cause and
Complaint in the Superior Court of New Jersey. Despite Plaintiffs claim, the Court does not
need to interpret the Agreement to determine whether Plaintiff actually disclosed its terms; the
question is one of Plaintiffs action, not one of contract interpretation. Thus, since Plaintiff made
the Agreement’s terms public on November 21, 2016, he cannot now plausibly claim that
Defendants breached the Agreement when they later disclosed the terms to the EEOC and ECF.
See Red RoofFranchising, LLC v. AA Hospitality Northshore, LLC, 877 F. Supp. 2d 140, 150

(D.N.J. 2012) (applying New Jersey law to find that “a material breach of contract of one party
can excuse performance by the other party”); Nolan by Nolan v. Lee Ho, 120 N.J. 465, 472
(1990) (holding that “[a] settlement agreement between parties to a lawsuit is a contract.
[w]hen there is a breach of a material term of an agreement, the non-breaching party is relieved
of its obligations under the agreement.”). Therefore, Counts Twenty-five through Twenty-Eight
are dismissed without prejudice.

19

F. Section 1983 Qualified Immunity

finally, Defendants argue that Leonard and Toback are entitled to a dismissal of all
claims asserted against them because of the doctrine of qualified immunity. Defendants assert
that the Amended Complaint fails to allege that either Leonard or Toback committed a
constitutional violation when they suspended, investigated, and ultimately terminated Plaintiff.
Defendants add that the Arbitrator ordered Plaintiffs firing, not Leonard or Toback. Defendants
also claim that, pursuant to the New Jersey Anti-Bullying Bill of Rights Act (“Anti-Bullying
Act”), N.J.S.A. l$A:37-13.2, the Wayne BOE had adopted a required policy of prohibiting
harassment, intimidation, or bullying on school property. Def. Brf. at 3$. Defendants state that
pursuant to that Act, Leonard was required to investigate Rooney’s allegations against Plaintiff
within one day of hearing the allegations and then report the findings of that investigation to the
Wayne BOE. Id. Defendants argue that if Leonard and Toback had not conducted a prompt
investigation of Rooney’s allegations, they would have been in violation of the Act and could
have faced possible sanctions. Id. at 39.
Plaintiff, however, argues that the Amended Complaint sufficiently alleges that Leonard
and Toback violated several clearly defined constittitional rights. P1.

Opp. at 34.

Plaintiff further

argues that the Anti-Bullying Act did not require Leonard or Toback to start an investigation.
for support, Plaintiff cites to the Act’s language defining harassment, intimidation, or bullying as
an act “that substantially disrupts or interferes with the orderly operation of the school or the
rights of other students

.

.

.

.“

Id. at 36 (emphasis in original) (quoting N.J.S.A. Section 1 $A:37-

14). Plaintiff claims that this language gave Leonard and Toback the ability to assess the biased
nature of Rooney’s allegations and find that, since there was no substantial disruption, no
investigation was necessary. Id. at 37.

20

The Court recognizes that both the Third Circuit and United States Supreme Court have
found that questions of immunity should be resolved at the earliest possible litigation stage.
Miller v. Clinton Cty., 544 F.3d 542, 547 (3d Cir. 2008). At this stage, however, the Court

cannot conclude that Leonard and Toback are entitled to such immunity. 42 U.S.C.

§ 1983, in

relevant part, provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory. 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[.]
.

.

Section 1983 does not provide substantive rights. Rather, it provides a vehicle for
vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
In order to state a valid claim for relief under Section 1983, a plaintiff must first allege a
violation of a right secured by the Constitution or laws of the United States and, second, a
plaintiff must contend that the violation was caused or committed by a person acting under color
of state law. West v. Atkins, 487 U.S. 42, 4$ (198$).
When a state official’s actions give rise to a Section 1983 claim, qualified immunity can
shield the officer from liability. Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir.
2005). “The defendant has the burden of establishing qualified immunity.” Ihlenfeld v. Darby
Borough Police Dep ‘t, No. 16-01990, 2017 WL 132169, at *6 (E.D.Pa. Jan. 13, 2017). The
United State Supreme Court has found that the issue of qualified immunity turns on two
questions: (1) whether plaintiffs alleged facts make out a violation of a constitutional right; and
(2) if so, whether the right at issue was clearly established at the time of defendant’s alleged
violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Thus, qualified immunity “can be

21

overcome when state officials violate ‘clearly established statutory or constitutional rights of
which a reasonable person would have known.” Id. (quoting Harlow v. fitzgerald, 457 U.s.
800, 806 (1982)). As to whether a right is clearly established, the Supreme Court has ruled that
the “contours of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
At this stage, Plaintiff has asserted a violation of clearly established constitutional rights.
Defendants’ arguments concerning Leonard and Toback’s obligations to investigate pursuant to
the New Jersey Anti-Bullying statute are more akin to an affirmative defense rather than a
curtailment of constitutional rights. However, assuming that Defendants are correct and the state
statute goes directly to whether a constitutional right is clearly established (or even a right at all),
additional legal analysis is required. First, the interplay between state statutory obligations and
constitutional rights must be reviewed (and Defendants, who bring the motion, have not done
so). Second, a construction of the state statute, including the “substantially” requirement is also
necessary. Moreover, greater factual development of the record, beyond the Amended
Complaint’s allegations, is required. One example is determining the substance of Rooney’s
allegations against Plaintiff. For these reasons, the Court is unable to conclude that qualified
immunity is applicable at this stage.
IV.

CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss (D.E. 14) is GRANTED
in part and DENIED in part. The Court grants Defendants’ motion to dismiss the Amended

Complaint’s Section 1983 claims against Rooney and D.R. (Counts F our and Five), Section 1985
claims against Toback and Leonard (Counts Six and Seven), and Section 1986 claims against
Toback, Leonard, Rooney, and D.R. (Counts Eight through Eleven). Counts Four through

22

Eleven are dismissed without prejudice. The Court otherwise denies Defendants’ motion to
dismiss. Plaintiff has thirty (30) days to file a Second Amended Complaint, if he so chooses,
consistent with this Opinion. If Plaintiff does not do so, Counts Four through Eleven will be
dismissed with prejudice. An appropriate Order accompanies this Opinion.
Dated: March 13, 2018

John Michael Vazque4)U..D.J.