MILANO v. BOARD OF EDUCATION OF FRANKLIN TOWNSHIP et al

Filing 15

OPINION. Signed by Judge Mary L. Cooper on 5/23/2012. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PATRICIA MILANO,

CIVIL ACTION NO. 11-6803 (MLC)
O P I N I O N

Plaintiff,
v.
BOARD OF EDUCATION OF FRANKLIN
TOWNSHIP, SOMERSET COUNTY,
Defendant.

THE PLAINTIFF, Patricia Milano, brings this action against the
defendant, Board of Education of Franklin Township, Somerset County
(“the Board”).

(Dkt. entry no. 1, Compl.)

Milano seeks both legal

and equitable relief for the Board’s alleged violations of 42
U.S.C. § 1981 (“Section 1981”) and the Petition Clause of the First
Amendment of the United States Constitution (“Petition Clause”).
(See id.)
THE BOARD now moves to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), arguing that Milano has
failed to state claims upon which the Court may grant relief.
(Dkt. entry no. 10, Mot.)

Milano does not oppose the Motion

insofar as it concerns her Section 1981 claim.
Opp’n Br. at 3.)

(Dkt. entry no. 13,

She only opposes the Motion insofar as it

concerns her Petition Clause claim.

(Id. at 3-5.)

THE COURT resolves the Motion without oral argument pursuant
to Local Civil Rule 78.1(b).
MILANO alleges that: (1) she was hired by the Board in October
of 2001 as a preschool teacher; (2) the Board thereafter instructed
Milano to resign and accept a position from the Hunterdon County
Education Services Commission (“HCESC”); and (3) the Board assured
her that, by taking the HCESC position, she would continue to
discharge the same responsibilities at the same location, and would
continue to enjoy the same salary and benefits.
Count, ¶¶ 5, 7-8.)
the fall of 2005.

(Compl. at First

The Board reinstated Milano as an employee in
(Id. at First Count, ¶ 13.)

THE BOARD, following Milano’s reinstatement, refused to
recognize Milano’s status as a tenured employee because Milano,
between 2001 and 2005, had been technically employed by HCESC.
(Id. at First Count, ¶¶ 14-15.)

Milano thus filed a petition with

the New Jersey Department of Education (“NJDOE”), seeking:
(1) a declaration of her status as a tenured employee, and
(2) reimbursement of health care costs that Milano incurred as a
non-tenured employee that, as a properly-classified tenured
employee, she would not have incurred, which amounted to $200 per
month for three years.

(See id. at First Count, ¶¶ 16-19, 21.)

THE NEW JERSEY OFFICE OF ADMINISTRATIVE LAW (“NJOAL”)
adjudicated Milano’s petition both for ripeness and on its merits.

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(Id.; see also dkt. entry no. 13-2, Administrative Decisions &
Orders.)

NJOAL ultimately found that Milano’s petition was ripe

for review, formally recognized Milano’s status as a tenured
employee, and ordered the Board to compensate Milano for her
out-of-pocket health care costs.

(See Compl. at First Count,

¶¶ 20-22.)
MILANO now alleges that the Board has retaliated against her
for filing a petition before the NJDOE and seeking relief from the
NJOAL.

She asserts that the Board has retaliated by: (1) issuing

negative observations and evaluations; (2) improperly withholding
taxes from its payment of Milano’s out-of-pocket health insurance
expenses; and (3) twice withholding salary increments and
adjustments.
9, 13.)

(Id. at First Count, ¶¶ 23-25, 29, Second Count, ¶¶

This action followed.

THE BOARD now argues that the Court should dismiss Milano’s
Section 1981 claim because Milano failed to state a claim upon
which the Court may grant relief.
5-6).

(Dkt. entry no. 10-4, Br. at

The Board notes that plaintiffs seeking relief under Section

1981 must allege, inter alia, that they belong to a racial minority
and that the defendant discriminated against the plaintiffs on the
basis of race.

(Id. at 5 (citing Pryor v. Nat’l Collegiate

Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002)).)

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Milano raised

no such allegations in the Complaint and thus agrees that her
Section 1981 claim should be dismissed.

(Opp’n Br. at 3.)

THE BOARD also argues that Milano improperly seeks relief in
this Court by raising her retaliation claim under the Petition
Clause.

It argues that other, more appropriate fora are available

to Milano, asserting that Milano should petition the NJDOE:
(1) to recover any improper deductions from her reimbursement for
out-of-pocket health care expenses, because the NJDOE originally
adjudicated Milano’s claim for and ordered the Board to remit such
reimbursement; and (2) to appeal from the Board’s withholding of
salary adjustments and increments pursuant to N.J.S.A. § 18A:29-14.
(Dkt. entry no. 14, Reply Br. at 5-6.)

The Board also asserts that

its decision to withhold Milano’s salary adjustments and increments
is alternatively subject to binding arbitration before the New
Jersey Public Relations Employment Commission.

(Id. at 5 (citing

N.J.S.A. § 34:13A-27).)
THE COURT would like the parties to further brief and make
clear their respective positions on this issue.

The Court will

thus, for good cause appearing, enter an appropriate Order and
Judgment, granting the Motion with respect to Milano’s Section 1981
claim, denying the motion without prejudice with respect to
Milano’s Petition Clause Claim, and ordering the parties to show
cause why the Court should not stay and administratively terminate

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or otherwise dismiss The Petition Clause claim while Milano seeks
relief in the fora discussed above.1
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:

May 23, 2012

1

Milano, in her opposition brief, asks the Court for
permission “to file an amended complaint to blend the facts in
Count I and Count II” of the Complaint. (Opp’n Br. at 3.) Milano
failed to file notice of or a brief relating to this request, and
the Court thus will not entertain her request for relief. See
L.Civ.R. 7.1(d)(1), (h). Milano may, however, later move for such
relief before the Magistrate Judge.
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