BRANDT v. WALSH et al

Filing 20

OPINION. Signed by Chief Judge Jose L. Linares on 1/30/18. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRANK BRANDT,
Plaintiff,

Civil Action No.: 17-5251 (JLL)
OPINION

V.

VICKIE WALSH, eta!.,
Defendants.

LINARES, Chief District Judge.

This matter comes before the Court by way of Defendants’ motions to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF Nos. 11, 14). Defendants Vickie
Walsh, the New Jersey Education Association, Peter Nosal, and the Boonton Education
Association, (collectively, the “Association Defendants”), filed their motion to dismiss pursuant
to Rules 12(b)(l) and l2(b)(6). (ECF No. 11). Defendants Robert Presuto and the Boonton Board
of Edtication, (collectively, the Board Defendants), filed a separate motion to dismiss pursuant to
Rules l2(b)(1) and 12(b)(6). (ECF No. 14). Plaintiff filed an opposition to both motions, (ECF
No. 15), and the Association Defendants and Board Defendants submitted separate replies, (ECF
Nos. I 8, 19). The Court decides this matter without oral argument pursuant to Rule 78 of the
Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants the Association
Defendants’ and Board Defendants’ motions to dismiss.

I.

BACKRGOUND’

Plaintiff commenced this action on July 18, 2017. (ECf No. I (“Cornpl.”)). Plaintiff
alleges that the Association Defendants breached their legal duty to Plaintiff by failing to provide
Plaintiff with fair representation.

(Compl.

¶

1).

Plaintiff alleges that the Board Defendants

wrongfully terminated Plaintiff and violated his property rights, right to due process, and right to
progressive discipline. (Cornpl.

¶ 2).

Plaintiff was an employee of the Boonton Public School system for over eight years.
(Compl.

¶ 3).

While employed by Boonton Public Schools, Plaintiff was a member of the Boonton

Education Association. (Compl.

¶ 3).

The Boonton Education Association was, and is, part of the

New Jersey Education Association. (Cornpl.

¶ 4).

The Boonton Education Association signed a

collective bargaining agreement with the Boonton Board of Education on July 1, 2014. (Compi.

¶

4). The collective bargaining agreement expires on June 30, 2018. (Compl.

¶

4). Both the

Boonton Education Association and New Jersey Education Association represented Plaintiff in
proceedings related to his wrongful termination by the Boonton Board of Education. (Cornpl.

¶

11—12). Peter Nosal was the President of the Boonton Education Association during the relevant
time period.

(Cornpl.

¶

5).

Vickie Walsh was the New Jersey Education Association

representative tasked with Plaintiffs case. (Cornpl.

¶ 6).

Robert Presuto was the Superintendent

of Boonton Public Schools during the relevant time period. (ECF No. 16), and the Boonton Board
of Education is the governing body of Boonton Public Schools, (ECF No. 15).
On January 20, 2017, Plaintiff was working at the John Hill School in Boonton. (Cornpl.

¶

19). Plaintiff walked into the school at the same time as the owner of a local business, who was

This background is derived from Plaintiffs Complaint, which the Court must accept as true at this stage of the
proceedings. See Aiston v. Countiyi’ide Fin. Coip., 585 f.3d 753, 758 (3d Cir. 2009).

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making a delivery to the school. (Compi.

¶

19, 21). Plaintiff asked the business owner for

identification, since he was entering from the rear entrance and had not checked in at the
office. (Compi.

¶ 22).

main

The school’s policy was that vendors must enter through the front entrance

and check in at the main office. (Compi.

¶ 22).

The business owner became “irate” and yelled at

Plaintiff after he asked for identification. (Compl.

¶

23). Plaintiff tried to walk away from the

business owner, but the business owner used his elbows to physically obstruct Plaintiffs passage.
(Compi.

¶ 24).

Plaintiff and the business owner exchanged words, though Plaintiff does not recall

yelling or using profanity in that interaction. (Compi.

¶ 25).

Plaintiff informed his supervisor of what transpired shortly after the incident. (Compi.

¶

26). Plaintiffs supervisor told Plaintiff he would write up an incident report when he returned to
work the next coming Monday. (Compl.

The same day of the incident, however, Robert

¶ 26).

Presuto called Plaintiff into his office for a meeting about the incident. (Compi.
accompanied Plaintiff to the meeting. (Compi.

¶ 27).

¶ 26).

Peter Nosal

Mr. Nosal did not say anything during the

meeting and failed to counter or provide a defense to the statements made by Mr. Presuto. (Compl.
¶28).
Plaintiff then received a “Rice Notice” pursuant to N.J.S.A. 1O:4-12(b)(8), notifying him
of the possibility that the Boonton Board of Education might take action regarding his
employment. (Compl.

¶ 36).

Ms. Walsh, through the New Jersey Education Association, was in

contact with Plaintiff throughout the grievance process. (Compl.

¶ 37).

Ms. Walsh let Plaintiff

know that a union lawyer would not accompany him to a meeting Plaintiff had scheduled with the
Boonton Board of Education on January 23, 2017. (Compl.

3

¶

3$). At that January 23, 2017

meeting, the Boonton Board of Education terminated Plaintiff and memorialized the termination

in a letter to Plaintiff dated January 24, 2017. (Compl.

¶ 39).

Plaintiff invoked the grievance procedure laid out in the collective bargaining agreement
between the Boonton Board of Education and the Boonton Education Association. (Compi.

¶ 40).

Plaintiff proceeded through level four of the grievance procedure, at which he requested a full
hearing. (Compi.
procedure.

¶ 40).

(Compi.

¶

Plaintiff then sought to pursue his claim at level five of the grievance

41). The Association Defendants failed to take any further action on

Plaintiffs behalf (Compl.

¶1

41). Ms. Walsh told Mr. Nosal and other leaders at the Boonton

Education Association not to pursue Plaintiffs grievance at level five, because she did not believe
Plaintiff would

win

on his claims. (Compl.

¶ 42—43).

The collective bargaining agreement between the Boonton Education Association and the
Boonton Board of Education provides that no employee shall be discharged without just cause.
(Compi.

¶J 29—30).

In a letter, Mr. Presuto claimed that the Boonton Board of Education fired

Plaintiff due to his “poor attitude” and because Plaintiff allegedly used profanity during the
incident with the local business owner. (Cornpl.

¶ 3 1).

Mr. Nosal received that letter, but failed

to take any action so that someone other than Mr. Presuto could hear Plaintiffs side of the story.
(Compl.

¶J 32—33).

Mr. Presuto’s allegations that Plaintiff used profanity are based on the third

party accounts of unidentified witnesses, who Plaintiff has not been able to question. (Compi.
34).

¶

Plaintiff claims that the tnie reason for Plaintiffs termination is Mr. Presuto’s personal

vendetta against Plaintiff, and that the aforementioned incident provided Mr. Presuto with a
“legitimate reason” to fire Plaintiff (Compi.

¶J 35).

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As a result, Plaintiffs tennination violated

the collective bargaining agreement, because it was without just cause and because Plaintiff did
not receive adequate representation. (Compi.

¶ 36).

Plaintiffs Complaint sets forth eight counts: Count I alleges a breach of Defendants’ duty
of fair representation under the collective bargaining agreement and under the Labor Management
Relations Act (“LMRA”)

§ 301; Count II alleges that Defendants breached the terms of the

collective bargaining agreement; Count III alleges a violation of Plaintiffs due process rights
under the fourteenth Amendment of the United States Constitution; Count IV alleges a violation
of Plaintiffs due process rights under Article I of the New Jersey Constitution; Count V alleges
wrongful termination under New Jersey common law; Count VI alleges violations of 42 U.S.C.

§

1983; Count VII alleges ultra vires actions by the Board Defendants; and Count VIII alleges
vicanous liability. (Compi. ¶Jj 46—71). Count I is set forth against the Association Defendants
only and Counts V, VI, and VII are set forth against the Board Defendants only. The remaining
Counts are set forth against all Defendants.
II.

LEGAL STANDARD

Defendants seek to dismiss Plaintiffs Complaint for lack of subject matter jurisdiction
and/or failure to state a claim, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
respectively. There are different standards of review under each. See Cohen v. Kurtzrnan, 45 F.
Supp. 2d 423, 428 (D.N.J. 1999) (collecting cases).
A. Rule 12(b)(1) Subject Matter Jurisdiction
Federal Courts have limited jurisdiction and are permitted to adjudicate cases and
controversies only as permitted under Article III of the Constitution. See U.S. Const. art. III,

§

2;

Lance v. Coffman, 549 U.S. 437, 439 (2007). Unless affinTlatively demonstrated, a federal court

5

is presumed to lack subject matter jurisdiction. Phi/a. fed ‘ii of Teachers v. Ridge, 150 F.3d 319,
323 (3d Cir. 199$) (citing Reiine v. Geaty, 501 U.S. 312, 316 (1991)).

The burden of

demonstrating the existence of federal jurisdiction is on the party seeking to invoke it. Common
C’ause ofPa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (citing DaimterClvysler Coip. v.
Cuno, 547 U.S. 332, 342 (2006)). “If the

court

determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
A motion to dismiss under Rule 12(b)(1) “attacks

.

.

.

the right of a plaintiff to be heard in

Federal court.” Kurtzman, 45 F. Supp. 2d at 42$. When ruling on such a motion, a distinction
must be made between a facial and factual attack. Mortensen v. first fed. Say. & Loan Ass ‘n, 549
F.2d $84, $91 (3d Cir. 1977). If the Rule 12(b)(l) motion is a facial attack, “the court looks only
at the allegations in the pleadings and does so in the light most favorable to the plaintiff.” U.S. cx
rd. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) (citing Mortensen, 549
F.2d at $91). On the other hand, when the Rule 1 2(b)( 1) motion is a factual attack, “no presumptive
truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits ofjurisdictional claims.” Mortensen,
549 F.2d at 891.
Here, Defendants’ motions to dismiss under Rule 12(b)(l) are facial attacks, as they
concern an alleged pleading deficiency. See Pa. Shipbuilding Co., 473 F.3d at 514. Accordingly,
“the court looks oniy at the allegations in the pleadings and does so in the light most favorable to
the plaintiff.” Id. (citing !vfortensen, 549 F.2d at $91).
B. Rule 12(b)(6) Failure to State a Claim
To withstand a motion to dismiss for failure to state a claim, a “complaint must contain

6

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Coip. v. Twomblv, 550 U.S. 544,
570 (2007)). “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.”
Id. (citing Twomb!v, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550 U.S. at 556).
To determine the sufficiency of a complaint under Twombh’ and Iqbal in the Third Circuit,
the Court must take three steps. “First, it must ‘tak[e] note of the elements [the] plaintiff must
plead to state a claim.’ Second, it should identify allegations that, ‘because they are no more than
conclusions, are not entitled to the assumption of truth.’ Finally, ‘[w]hen there are well-pleaded

factual allegations, [the] court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Connelly v. Lane Constr. Coip., 809 F.3d 780, 787
(3d Cir. 2016) (quoting Iqba!, 556 U.S. at 675, 679) (citations omitted). “In deciding a Rule
12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint,
matters of public record, as well as undisputedly authentic documents if the complainant’s claims
are based upon these documents.” Mayer v. Beliclzick, 605 F.3d 223, 230 (3d Cir. 2010).
III.

ANALYSIS

A. Count I: Breach of Duty of fair Representation
The Association Defendants argue that this Court lacks subject matter junsdiction over
Count I because the LMRA does
(ECF No. 11-2 at 11). To

state a

not

apply to public employers or public labor organizations.

claim cinder the LMRA, Plaintiff must show

7

that he

is

part of an

employer-employee relationship as defined by the LMRA. Anderson v. Mercer Cty. Sheriif’s
Dept., Civil ActionNo. 11-7620 (JAP)(TJB), 2015 WL404473, at *2 (D.NJ. Jan. 29,2015) (citing
Stinson v. Del. River PortAuth., 935 F. Supp. 531, 537 (D.N.J. 1996), aff’d, 124 F.3d 188 (3d Cir.
1997).
The critical issue here is whether either the Association Defendants or the Board
Defendants constitute an employer under the LMRA because the Plaintiffs unfair representation
allegations arise out of his employment with the Boonton Public School system. The LMRA
defines an employer as “any person acting as an agent of an employer, directly or indirectly, but
shall not include

.

.

.

any State or political subdivision thereof.

.

.

or any labor organization (other

than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor
organization.” 29 U.S.C.

§ 152(2).

The Association Defendants are correct that public labor unions and public employers fall
outside the scope of the LMRA. See Jackson v. Temple Univ. of the Commonwealth Svs. ofHigher
Ethic., 721 f.2d 931, 933—934 (3d Cir. 1983) (finding that the district court erred in failing to
dismiss public employee’s National Labor Relations Act (“NLRA”) claims against a public
employer and union for a lack of subject matter jurisdiction); Crillv v. Se. Pa. Transp. Auth., 529
f.2d 1355, 1358—63 (3d Cir. 1976) (finding that a public employer, public employee and his union
were excluded from coverage under the LMRA).2

Plaintiffs Complaint asserts that the

Association Defendants are public employee unions and officials and that the Board Defendants
are public employers, (Compl.

2

¶ 10—16), and as such are not covered by the LMRA. In fact,

“Title I [of the LMRA] reenacted the [the NLRA] with extensive revisions. The definition of employer in Title 1,
insofar as it excluded states and their political subdivisions from coverage, was not changed. Title I of the
Cr1/h, 529 F.2d at 1358.
[LMRA] is still commonly referred to as the [NLRAI

8

Plaintiff concedes that he erroneously pled Count I under the LMRA, precisely because the statute
does not apply to pubic employers or public labor organizations. (ECF No. 15 at 36). The Court
thus lacks subject matter jurisdiction over Count I under the LMRA and must dismiss Count I of
the Complaint.3
B. Count II: Breach of Contract

Plaintiff also alleges a breach of the collective bargaining agreement by the Association
Defendants and the Board Defendants. (Compl.

¶J 52—57).

In their moving briefs, the Association

Defendants and the Board Defendants argue that, to the extent the breach of contract allegations
laid out in Count II are an extension of Plaintiffs allegations in Count I, the two comprise a
“hybrid” claim under the LMRA, and the Court lacks subject matter jurisdiction over Count II as
well. (ECF No. 11-2 at 13—15; ECf No. 14-1 at 16—17). “A ‘hybrid’ section 301 action is one in
which a union member sues his or her employer for breaching its contractual obligations under the
collective bargaining agreement and the union for breaching its duty of fair representation.”
Beid/eman v. Stroh Brei’en; Co., 182 F.3d 225, 236 (3d Cir. 1999) (citing Dc/Costello v. Int’l Bhd.
of Teamsters, 462 U.S. 151, 164—65 (1983)). To the extent that Plaintiffs breach of contract claim
is a hybrid claim under the LMRA, the Court lacks subject matter jurisdiction over Count II for
the same reasons the Court lacks subject matter jurisdiction over Count I. In “hybrid” cases where,
as here, the unfair representation claim is “based on the union’s failure to pursue a grievance on
behalf of the plaintiff employee against the [public] employer.., the absence of federal jurisdiction
over the claim against the employer necessarily means there is no basis for federal jurisdiction

Plaintiff requests that the Court allow him to amend his Complaint to plead Count I under New Jersey Law. (ECF
No 15 at 36). As explained in more detail below, the Court no longer has subject matter jurisdiction over the
remaining claims, and the Court denies to exercise supplemental jurisdiction over the remaining State law claims
pursuant to 28 U.S.C. 1367(c)(3).

9

over the employee’s unfair representation claim.” Felice v. Sever, 985 F.2d 1221, 1227 (3d Cir.
1993).
Plaintiff argues, in the alternative, that the Board Defendants’ actions, in terniinating
Plaintiff without just cause, violated New Jersey common law and the terms of the collective
bargaining agreement between the Boonton Board of Education and the Boonton Education
Association. (ECf No. 15 at 23). Plaintiff and Defendants are all citizens of New Jersey, (Cornpl.

¶ 10—18), so the Court does not possess diversity jurisdiction over the parties, and the Court does
not have federal question jurisdiction over state law contract claims. See Grable & Sons Metal
Prods., Inc. v. Dante Eng’g & Mfg. 545 U.S. 308, 314 (2005) (noting that for federal jurisdiction
to attach to a state law claim, there must be a substantial, disputed question of federal law as a
necessary element of the well-pleaded state law claim). Furthermore, as explained below, there
are no remaining claims over which this Court has federal question jurisdiction. As such, the Court
declines to exercise supplemental jurisdiction over the remaining state law breach of contract
claims. See 28 U.S.C.

§ 1367(c)(3) (“The district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if.
which it has original jurisdiction

.

.

.

.

the district court has dismissed all claims over

.

For the aforementioned reasons, Count II is dismissed.
C. Counts III and VI: Violations of the Fourteenth Amendment and 42 U.S.C.
1983.

§

To prevail on his constitutional claims, Plaintiff must show that Defendants acted under
color of state law in depriving him of his rights granted under the Constitution or federal law.
Sameric Corp. ofDel. v. City of PIiila., 142 F.3d 582, 590 (3d Cir. 1998) (citing West v. Atkins,

10

487 U.S. 42,48(1988) and Markv. Borough ofHathoro, 51 F.3d 1137, 1141 (3d Cir. 1995)).
Plaintiff asserts that he has a “protected property interest in his employment, accrual of
pension benefits, and continued pension,” and that his termination without just cause deprived him
of those property rights without due process under the fourteenth Amendment. (Compl.

¶ 58—

61). Plaintiff further alleges that the Board Defendants, acting under color of state law, deprived
Plaintiff of his constitutional rights when they terminated him, thus violating 42 U.S.C.
(Compi.

§ 1983.

¶I 66—67).

Plaintiffs property interest in his public employment is determined by New Jersey law.
Bishop v. Wood, 426 U.S. 341, 344 (1976). Under New Jersey law, at-will, nontenured, public
school employees have no property interest in their job sufficient to trigger constitutional
protections.

filgtteiras v. Newark Pttb. Sc/i., 426 N.J. Super. 449, 470 (App. Div. 2012).

Plaintiffs employment contract states that “[t]his Agreement may at any time be terminated by
either party giving to the other thirty (30) days notice, in writing, of intention to terminate the
Employment Agreement.” (ECf No. 14-2 at 5). Thus, Plaintiff is an at-will employee without a
constitutionally protected property interest in his continued employment, and Counts III and VI
348 F. App’x 790, 794 (3d Cir. 2009) (finding

must be dismissed. See El-Hewie v. Bergen

that a nontenured teacher whose contract could be terminated by either party with 60 days notice
in writing did not have a constitutionally protected property interest in his position and that his
1983 claim failed as a matter of law).
D. Counts IV, V, and VII: Violation of the New Jersey Constitution, Wrongful
Termination under New Jersey Law, and Ultra Vires Actions by Defendants
in Violation of New Jersey Law.
Counts IV, V, and VII of Plaintiffs Complaint are all grounded in New Jersey law.

11

§

Count IV alleges a violation of Plaintiffs due process rights under Article I, Paragraph I of the
New
New Jersey Constitution, (Compi. ¶I 62—63), Count V alleges wrongful termination under
Jersey common law, (Compi.

¶J 64—65),

and Count VII alleges ultra vires actions in violation of

i.
New Jersey law “governing the employment and termination of public employees,” (Comp

¶J

l.
68—69). Plaintiff filed his case in federal court based on federal question jurisdiction. (Cornp

¶

state
8). Plaintiff also requested that this Court exercise supplemental jurisdiction over Plaintiffs
law claims pursuant to 28 U.S.C.

§

1367(a). (Compi.

¶

9).

However, where a district court

to
dismisses all claims over which it has original jurisdiction, it may, in its discretion, decline
exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C.

§

1367(c)(3);

flkadranyv. Vanguard Gip., Inc., 584 F.3d 169, 174 (3d Cir. 2009). Because this Court has
mental
dismissed all claims over which it has original jurisdiction, it declines to exercise supple
VII
jurisdiction over Counts IV, V, and VII. As a result, this Court dismisses Counts IV, V, and
for lack of subject matter jurisdiction.
E. Count VIII: Vicarious Liability
Lastly, Plaintiff sets forth a claim for vicarious liability, arguing that Defendants are
uent
vicariously liable for the acts of the individuals involved in Plaintiffs termination and subseq
representation in the grievance proceedings.

(Compi.

¶

70—71).

Because the Court has

I,
determined that Counts III, and VI are not viable, and because the Court has dismissed Counts
fails
II, IV, V, and VII for lack of subject matter jurisdiction, Plaintiffs vicarious liability claim
as a matter of law.

CONCLUSION

For the aforementioned reasons, the Court dismisses Counts III and VI with prejudice
and Counts 1, II, IV, V, VII, and VIII without prejudice. An appropriate Order accompanies this
Opinion.

DATED: Januaryç 201$
dSE If LINARE’
%hief Judge, United States District Court

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