MILANO v. BOARD OF EDUCATION OF FRANKLIN TOWNSHIP et al
Filing
26
MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 11/13/2012. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PATRICIA MILANO,
CIVIL ACTION NO. 11-6803 (MLC)
MEMORANDUM OPINION
Plaintiff,
v.
BOARD OF EDUCATION OF FRANKLIN
TOWNSHIP, SOMERSET COUNTY,
Defendant.
COOPER, District Judge
The plaintiff, school teacher Patricia Milano, brings this
action against her employer, the defendant, Board of Education of
Franklin Township, Somerset County (“the Board”), under 42 U.S.C. §
1983 (“Section 1983”).
(See generally Compl., Count II.)
Milano
alleges that the Board violated her rights under the Petition
Clause of the First Amendment to the United States Constitution
(“Petition Clause”).
(See generally id.)
Specifically, she
alleges that the Board retaliated against her for filing a petition
of appeal before the New Jersey Commissioner of Education (“NJCOE”)
from the Board’s determination that she was not entitled to tenure
(“the Appeal”).
(See generally id.)
The Board now moves to dismiss Count II of the Complaint
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6).
(See dkt. entry no. 20, Mot. to Dismiss; see also dkt. entry no.
20-1, Br. in Supp.)1
It argues that the Appeal did not address
matters of public concern, and that Milano has thus failed to state
a claim upon which relief may be granted.
5-9.)
(See Br. in Supp. at
Milano opposes the Motion, arguing that issues relating to
tenure are always matters of public concern.
(See generally dkt.
entry no. 23, Opp’n Br.)
The Court will resolve the Motion without oral argument.
L.Civ.R. 78.1(b).
See
For the reasons that follow, the Court will
grant the Motion, dismiss Count II of the Complaint, and direct the
Clerk of the Court to designate the action as closed.
I.
BACKGROUND
As alleged in the Complaint, the Board hired Milano in 2001 to
serve as a pre-school teacher in the “Kingston School”.
Compl. at Count I, ¶¶ 5, 7.)
(See
Milano worked in that capacity for “a
number of months” before a Board representative informed her that
“there was no longer a job for her at the Kingston School
location.”
(Id. at Count I, ¶ 7.)
However, the Board assured
Milano that she could effectively retain her position -- and thus
work in the same location, and enjoy the same salary and benefits
-- by resigning from her employment with the Board and accepting a
1
The Court earlier dismissed Count I of the Complaint. (See
dkt. entry no. 16, 5-23-12 J. at 1.) Only Count II of the
Complaint remains at issue.
2
It appears that the NJCOE reviewed the ALJ’s judgment and
2
position with the Hunterdon County Educational Service Commission
(“HCESC”).
(See id. at Count I, ¶¶ 7-8.)
Milano alleges that she thereafter resigned from the Board’s
employ, accepted a position with the HCESC, and worked as an HCESC
employee for four years.
(See id. at Count I, ¶ 9.)
During that
period, the Board continued to oversee Milano’s work, continued to
fund her position, and required that she attend continuing
education seminars.
(See id. at Count I, ¶¶ 9-11.)
Milano alleges
in the Complaint that the HCESC was merely a conduit for her
employment with the Board, as the Board “effectively controlled
[her] salary, benefits, and professional growth.”
(Id. at Count I,
¶ 12.)
The Board reinstated Milano as a Board employee shortly before
the start of the 2005-2006 academic year.
13.)
(See id. at Count I, ¶
Following her reinstatement, Milano inquired about her tenure
status.
(See id. at Count I, ¶ 14.)
The Board informed Milano
that she was not entitled to tenure because, during the period
beginning in 2001 and ending in 2005, she had worked for HCESC
rather than the Board.
(See id.)
Milano filed the Appeal before the NJCOE on August 14, 2006,
challenging the Board’s determination that she was not entitled to
tenure.
(See dkt. entry no. 20-4, Appeal.)
The NJCOE referred the
Appeal to the New Jersey Office of Administrative Law (“NJOAL”) for
3
adjudication and, on April 8, 2008, a NJOAL Administrative Law
Judge (“ALJ”) entered judgment in Milano’s favor.
dkt. entry no. 20-5, ALJ Decision.)2
(See generally
The ALJ ultimately determined
that Milano acquired tenure, and thus ordered the Board to
reimburse Milano for certain costs that she incurred as a nontenured employee.
(See Compl. at Count I, ¶¶ 18, 21.)
Milano alleges that the Board thereafter retaliated against
her for filing the Appeal.
(See id. at Count I, ¶ 23.)
She
specifically alleges that the Board wrongfully withheld two salary
increments and adjustments, thereby “keeping her one step below
what her salary should be each year for as long as [she] works for
[the Board].”
(Id. at Count I, ¶¶ 24, 29.)
She also alleges that
the Board wrongfully withheld taxes from the ALJ-ordered
reimbursement of costs.
(See id. at Count I, ¶ 25.)
Milano states in the Complaint that the Appeal “directly
related to an issue of public concern, the issue of lifetime
tenure”.
(Id. at Count II, ¶ 6.)
She notes that “[p]arents,
students[,] and the citizenry of a school district in general are
2
It appears that the NJCOE reviewed the ALJ’s judgment and
remanded the matter to the NJOAL for a determination as to whether
the matter was ripe for adjudication. (See Compl. at Count I,
¶ 19.) It also appears that the ALJ thereafter determined that the
matter was ripe for adjudication. (See id. at Count I, ¶ 21.)
These proceedings do not, however, affect the resolution of the
Motion.
4
all concerned about the community’s schools and the quality of
teachers.”
(Id. at Count II, ¶ 8.)
II.
STANDARD OF REVIEW
When reviewing the Motion, the Court must (1) accept all of
the well-pleaded factual allegations in the Complaint as true, and
(2) construe the Complaint in the light most favorable to the
plaintiff.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); Mann v. Brenner, 375 Fed.Appx. 232, 235 (3d Cir. 2010).
The Court may also consider “exhibits attached to the complaint,
matters of public record, and documents that form the basis of a
claim.”
Turner v. Leggett, 421 Fed.Appx. 129, 131 (3d Cir. 2011)
(quotation marks and citation omitted).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’
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.”
662, 678 (2009) (citations omitted).
Ashcroft v. Iqbal, 556 U.S.
Although the Court must
accept as true all of the factual allegations in the Complaint,
the Court need not accept legal conclusions.
Accordingly, a
pleading that offers labels and conclusions, or a formulaic
5
recitation of the elements of a cause of action, will not suffice.
See id.
“[I]f a complaint is vulnerable to 12(b)(6) dismissal, a
district court must permit a curative amendment, unless an
amendment would be inequitable or futile.”
Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 236 (3d Cir. 2008).
III.
DISCUSSION
The Petition Clause, made applicable to the states by the
Fourteenth Amendment, prohibits the government from “abridging
. . . the right of the people to . . . petition the Government for
a redress of grievances.”
U.S. Const. amend. I.
It “protects the
right of individuals to appeal to courts and other forums
established by the government for resolution of legal disputes.”
Bor. of Duryea, Pa. v. Guarnieri, 131 S.Ct. 2488, 2494 (2011).
If
the government unlawfully deprives an American citizen of rights
under the Petition Clause, that citizen may bring a cause of action
against the government pursuant to Section 1983.
See 42 U.S.C.
§ 1983; see also, e.g., D & D Assocs., Inc. v. Bd. of Educ., No.
03-1026, 2012 WL 1079583, at *19 (D.N.J. Mar. 30, 2012).
Milano claims the Board deprived her of rights under the
Petition Clause by retaliating against her for filing the Appeal
before the NJCOE.
To prevail on her claim, Milano must prove,
inter alia, that the Appeal relates to a matter of public concern.
6
See Guarnieri, 131 S.Ct. at 2493, 2497, 2500-01; see also Warwas v.
City of Plainfield, No. 11-1736, 2012 WL 3024423, at *3 (3d Cir.
July 25, 2012).
If the Appeal does not relate to a matter of
public concern, then the Court is not the appropriate forum in
which to review the Board’s allegedly retaliatory personnel
decisions.
See Connick v. Meyers, 461 U.S. 138, 147 (1983).
“The
right of a public employee under the Petition Clause is a right to
participate as a citizen, though petition activity, in the
democratic process.
It is not a right to transform everyday
employment disputes into matters for constitutional litigation in
the federal courts.”
Guarnieri, 131 S.Ct. at 2501.
Whether the Appeal relates to a matter of public concern is a
question of law that must be answered based on its content, form,
and context.
See id.
To find that the Appeal relates to a matter
of public concern, the Court must find that it addresses matters
relating to political, social, or other community concerns.
D & D Assocs., 2012 WL 1079583, at *20.
See
If it does not -- and if
it appears that Milano has petitioned not “as a citizen upon
matters of public concern”, but “as an employee upon matters of
only personal interest” -- the Court must find that the Appeal
relates solely to matters of private concern, which do not warrant
protection under the Petition Clause.
United States v. Treasury
Emps., 513 U.S. 454, 466 (1995) (citation omitted).
7
Generally,
employee grievances that neither seek to communicate to the public
nor advance a political or social point of view beyond the
employment context will be deemed matters of private concern.
See
Guarnieri, 131 S.Ct. at 2501.
The distinction between matters of public concern and private
concern “reflects the common-sense realization that government
offices could not function if every employment decision became a
constitutional matter.”
Connick, 461 U.S. at 143; see Bradford v.
Huckabee, 394 F.3d 1012, 1016 (8th Cir. 2005); Luck v. Mazzone, 52
F.3d 475, 476 (2d Cir. 1995); Ballard v. Blount, 581 F.Supp. 160
(N.D. Ga. 1983), aff’d, 734 F.2d 1480 (11th Cir. 1984).
Without
this distinction, every such employment decision would inequitably
“plant the seed of a constitutional case”.
Connick, 461 U.S. at
149; see Ballard, 581 F.Supp. at 163.
At least one other district court has concluded that speech
relating to an individual’s tenure does not relate to matters of
public concern.
See generally Ballard, 581 F.Supp. at 163-65.3
As
recounted by that court, William Lewis Ballard was a tenured
3
We recognize that the Ballard action concerned the Speech
Clause of the First Amendment to the United States Constitution
(“Speech Clause”), whereas this action concerns the Petition
Clause. As applied here, however, this is a distinction without
difference. See Guarnieri, 131 S.Ct. at 2495, 2497-98 (concluding
that retaliation claims by public employees, whether brought under
the Speech Clause or the Petition Clause, are subject to the same
tests and standards). Indeed, “[b]eyond the political sphere, both
speech and petition advance personal expression”. Id. at 2495.
8
professor at George State University (“GSU”), a public institution
of higher learning.
See id. at 161.
He commenced an action
against his immediate supervisor, claiming that GSU retaliated
against him for, inter alia, writing a letter objecting to GSU
denying tenure to another faculty member.
See id. at 162.
Ballard argued that his speech related to matters of public
concern because the subject matter of such speech, which included
the denial of tenure to the other faculty member, could have an
eventual and derivative effect on GSU’s students.
The district
court rejected his argument and instead found that the speech at
issue was “an issue personal to the individual” that bore “no
relationship to matters of public concern”.
Id. at 163-64.
The
court explained:
Taken to its logical conclusion, the plaintiff’s
argument means that any time a person’s speech will have
an effect on the public, regardless of how small or
unlikely that effect may be, that speech relates to a
matter of public concern. . . . [A]bsent unusual
circumstances[,] an administrative decision to grant or
deny tenure to an individual is not a matter of public
concern, and an individual challenging this
administrative decision is without First Amendment
protection.
Id. at 164-65.
The Court has carefully reviewed the Appeal, and considered
its content, its form, and the context in which it was filed.
the Appeal, Milano provides factual allegations concerning her
9
In
employment with the Board, her employment with the HCESC, and the
Board’s determination that she was not entitled to tenure.
Appeal at ¶¶ 3-13.)4
(See
It appears that Milano filed the Appeal
before the NJCOE to challenge the Board’s determination.
It does
not appear that Milano either intended to communicate with the
public about the dispute, or to advance a political or social point
of view beyond the context of her employment status.
Milano argues that the Appeal nonetheless relates to an issue
of public concern because issues relating to the acquisition of
tenure “have for years been matters of public concern[,] both
politically and societally.”
(Opp’n Br. at 9.)
She further
states:
The issue before the [NJCOE] can be described as “Does
Milano have tenure?/who is my child’s teacher?”
Plaintiff asserts that WHO TEACHES MY CHILDREN is
one of penultimate [sic] public issues of concern in
many states and local governments, including New Jersey.
Politically, the issue of tenure has been debated in
State Houses, Governor’s offices and on the streets for
a number of years. . . . The issue has led to the
federal government becoming more involved in the issue
of teacher competence and qualification and more federal
regulations.
Milano, although her successful petition compelled
her employer to recognize her statutory grant of tenure,
impacted directly on this public debate.
4
We note that the factual allegations found in the Appeal are
substantially similar to those found in the Complaint. (Compare
Appeal at ¶¶ 3-12, with Compl. at Count I, ¶¶ 5-14.)
10
(Id. at 9-10.)
It appears from this passage that Milano argues
that any petition concerning an individual’s eligibility for tenure
relates to a matter of public concern.
(See id.)
The Court concludes that this argument lacks merit.
We find
the Ballard court’s reasoning and conclusions of law persuasive,
and note that such conclusions apply with even greater force in
this action.
Ballard, an already-tenured faculty member, spoke
about his employer’s decision to deny tenure to a different
professor.
Presumably, as a tenured faculty member, Ballard had
little or no personal stake in that decision.
The Ballard court
nevertheless found that “an administrative decision to grant or
deny tenure to an individual is not a matter of public concern”.
581 F.Supp. at 164-65 (emphasis added).
Milano, unlike Ballard, spoke to protect inherently personal
interests.
The Appeal, which disputes the Board’s determination
that Milano was not entitled to tenure, does not discuss or
otherwise relate to other Board employees’ rights.
When Milano
filed the Appeal before the NJCOE, she thus acted as a government
employee who petitioned upon a matter of purely personal interest.
See Treasury Emps., 513 U.S. at 466; Guarnieri, 131 S.Ct. at 2501
(noting that a petition filed pursuant to established grievance
procedures “in many cases will not seek to communicate to the
public or to advance a political or social point of view beyond the
11
employment context”); cf. Ballard, 581 F.Supp. at 164-65.
The
Court thus concludes that the Appeal does not relate to a matter of
public concern.
The Court notes that Milano also appears to argue that the
Appeal related to matters of public concern because a determination
of her entitlement to tenure could have affected the students and
community served by the Board.
this argument unpersuasive.
(See Opp’n Br. at 9-10.)
We find
The mere fact that resolution of a
petition may have an eventual or derivative effect on public
interests will not convert a matter of solely private concern, such
as an employment grievance, into a matter of public concern
deserving of Petition Clause protections.
Indeed, a contrary
holding would plant the seeds of a constitutional case into matters
otherwise beyond the Court’s purview.
149; Ballard, 581 F.Supp. at 163.
12
See Connick, 461 U.S. at
IV.
CONCLUSION
The Court will issue an Order and Judgment granting the Motion
and dismissing Count II of the Complaint.
Because it appears that
amendment would be futile, the Court will dismiss Count II of the
Complaint with prejudice.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:
November 13, 2012
13
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