D'AMBOLA v. LAKEWOOD BOARD OF EDUCATION et al

Filing 21

MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 3/31/2017. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THOMAS A. D’AMBOLA,

:
:
:
Plaintiff,
:
:
v.
:
:
LAKEWOOD BOARD OF
:
EDUCATION, et al.
:
:
Defendants.
:
__________________________________ :

CIVIL ACTION NO. 16-2735 (MLC)
MEMORANDUM OPINION

COOPER, District Judge
Plaintiff Thomas D’Ambola brought this suit alleging federal and state causes of
action arising from his employment as Business Administrator for the Lakewood Board of
Education, the non-renewal of his contract for that position, and his ultimate termination.
(Dkt. 1.)1 Plaintiff alleges claims against the Lakewood Board of Education, Michael Azzara,
and David Shafter.
Defendants Azzara and Shafter filed a motion to dismiss. (Dkt. 11.) Defendant Board
of Education filed a partial motion to dismiss. (Dkt. 13.) Plaintiff filed a brief opposing both
motions. (Dkt. 16.) Defendant Board of Education (dkt. 19) and defendants Azzara and
Shafter (dkt. 20) filed reply briefs.

1

The Court will cite to the documents filed on the Electronic Case Filing System (“ECF”) by referring
to the docket entry numbers as “dkt.” Pincites reference ECF pagination.

We have considered all these filings, and will resolve the matter without oral
argument. See L.Civ.R. 78.1(b).
For the following reasons, we will deny both the partial motion to dismiss and the
motion to dismiss.
BACKGROUND
Plaintiff, Thomas A. D’Ambola, a New Jersey resident, previously worked for
Defendant Lakewood Board of Education (“Board,” “School Board,” or “Board of
Education”). (Dkt. 1 at 2.) Defendant Board is a public entity under New Jersey law. (Id.)
Defendant Michael Azzara served as the State Monitor for the Board of Education. (Id.)
Defendant David Shafter served as a fiscal consultant and adviser to Defendant Azzara, and
currently serves as the Lead State Monitor for the Board of Education. (Id.)
Plaintiff makes the following allegations and representations in his Complaint, which
we accept as true for the purposes of resolving these motions to dismiss. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff has worked as a school business administrator for approximately twenty
years. (Dkt. 1 at 5.) Defendant Board of Education hired Plaintiff as the Board of
Education’s School Business Administrator/Board Secretary on December 21, 2012, for a
term through June 30, 2013. (Id. at 4.) Subsequently, Plaintiff, upon the recommendation of
the Board Superintendent, Laura Winters, was reappointed twice more. (Id.) Each term
involved a one-year contract. (Id.) For the 2013–14 school year the contract covered the
period between July 1, 2013 and June 30, 2014, and for the 2014–15 school year, the contract

2

covered the period between July 1, 2014 and June 30, 2015. (Id. at 5.) Plaintiff did not have
employee disciplinary problems while working for the Board. (Id.)
Plaintiff’s job responsibilities included serving as Secretary to the Board of Education.
(Id. at 6.) As Board Secretary, Plaintiff had to attend all Board meetings to take minutes and
record roll call and votes. (Id. at 6.) Prior to each Board meeting, Plaintiff would assist the
Superintendent’s Office in preparing the agenda. (Id. at 7.) In this capacity, Plaintiff also
attended Finance, Transportation, and Buildings and Ground Committee Meetings, as well as
the annual Public Budget Hearing. (Id.)
Plaintiff objected to practices by the Defendant Board regarding fiscal management
that he believed violated various New Jersey laws. (Id. at 7.) Because of the deficit in the
Board’s 2013–14 school-year budget, the Commissioner of the New Jersey Department of
Education on April 25, 2014 appointed Defendant Azzara to serve as the State Monitor in
charge of overseeing the Lakewood School District. (Id. at 11.)
At the time of Plaintiff’s employment, Defendant School Board provided a service
known as courtesy busing. (Id. at 9.) New Jersey school districts are not required to provide
transportation, such as school buses, to elementary school children who live within two miles
of their school or to high school students who live within two and one-half miles from their
school. (Id.) Courtesy busing is the practice of providing a transportation service to these
children when the school district is otherwise not obligated to. (Id.) The service is provided
to private school students. (Id.) Because courtesy busing is not required, it receives less
budgetary priority than other education items and programs. (Id.)

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Plaintiff met with Superintendent Winters on multiple occasions in 2013 and 2014 to
plan the 2014–15 budget. (Id. at 8.) Both agreed that the courtesy busing program, if
continued, would lead to a deficit in the budget. (Id.) State law places a cap on budgets, and
Plaintiff believed that including the courtesy busing would unlawfully cause the Board of
Education to propose a budget that exceeded that cap. (Id. at 10.)
In March 2014, Plaintiff and Superintendent Winters proposed removing the courtesy
busing from the budget, and submitting a question on the next general election ballot for the
Lakewood voters to either approve or reject continuing the courtesy busing service. (Id. at
10.) Plaintiff believed this would have allowed the Defendant Board to present a balanced
budget, as required by law, and then permit the voters of Lakewood to determine whether
they wanted to finance the courtesy busing via an increase in municipal taxes. (Id.)
For the 2014–15 school-year budget, Defendant Azzara declared that he “found” five
million dollars to use in the budget, and the budget would thus be able to include courtesy
busing. (Id. at 11.) Plaintiff alleges that this was unlawful and was done by Defendant
Azzara to “provide a ‘gift’ to a powerful political group in the form of courtesy busing for the
non-public students in Lakewood.” (Id. at 12.)
The following year, Plaintiff expressed concern to Defendant Azzara and
Superintendent Winters to his certifying of the 2015–16 school-year budget, which was also
projected to include a deficit. (Id. at 13.) Superintendent Winters shared Plaintiff’s budget
concerns with the Defendant Board of Education. (Id.) Defendant Azzara told Plaintiff that
pending revenues would stabilize the budget and instructed Plaintiff to certify the budget.
(Id.) Plaintiff objected to this, believing it would be a “fraud on the system and on the
4

taxpayers.” (Id.) Defendant Azzara suggested removing textbook purchases from the budget
so that courtesy busing could be included. (Id. at 14.) Plaintiff objected, but Defendant
Azzara told Plaintiff that “If I don’t do it, they will replace me with someone who will do it.”
(Id.)
During the finalization of the 2015–16 school-year budget, Defendant Azzara did not
meet to discuss details of the budget with Plaintiff even though Plaintiff served as the business
administrator. (Id. at 13) According to Plaintiff, Defendants Azzara and Shafter excluded
him from dialogue on the budget and finances. (Id. at 14.) The preliminary budget was more
than eight million dollars over the budget cap. (Id.)
Within two months of objecting to Defendant Azzara’s proposal to remove textbook
purchases from the school budget, Plaintiff’s employment was terminated and he was not
reappointed as Business Administrator despite having the recommendation of Superintendent
Winters. (Id. at 15, 18–19.) Plaintiff’s last day was June 30, 2015. (Id. at 19.)
Plaintiff alleges that Defendants retaliated against him because he objected to the
courtesy busing program, which he found to be unethical, unlawful, and not in the interest of
the Lakewood public school students, and that ultimately Plaintiff was terminated and his
contract was not reviewed, notwithstanding Superintendent Winter’s recommendation. (Id. at
17.)
Plaintiff filed this federal suit alleging: that Defendants School Board, Azzara, and
Shafter2 violated the New Jersey Conscientious Employee Act (“CEPA”) by terminating

2

Plaintiff sued Defendants Azzara and Shafter in their official and personal capacities. (Dkt. 1 at 3–
4.)

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Plaintiff for voicing objection to the courtesy busing policy (Count One); and Defendants
School Board, Azzara, and Shafter deprived Plaintiff of his First Amendment rights, in
violation of 42 U.S.C. § 1983, by retaliating against Plaintiff (Count Two).3 (Dkt. 1 at 19–
22.)
DISCUSSION
Defendant Board of Education filed a partial motion to dismiss.4 (Dkt. 13.)
Defendants Azzara and Shafter moved to dismiss both Count One and Count Two. (Dkt. 11.)
We address both motions in this opinion. For the following reasons, we will deny both
motions.
I.

CEPA
A.

Parties’ Arguments

Defendants Azzara and Shafter argue that they took no action, and therefore, they
cannot be held liable for the actions of the Defendant School Board. (Dkt. 11-3 at 10–11.)
Specifically, Defendants contend that they cannot be held liable under CEPA for decisions
made by Defendant School Board that they did not participate in nor approve. (Id. at 11.)
Defendant Shafter also argues that Plaintiff has failed to specifically make any allegation

3

Plaintiff also alleged breach of good faith and fair dealing (Count Three), tortious interference with a
contractual relationship and prospective economic advantage against Defendants Azzara and Shafter
(Count Four), and termination in violation of public policy (Count Five). (Dkt. 1 at 23–25.) After
Defendants Azzara and Shafter (dkt. 11-3 at 11–16) and Defendant School Board (dkt. 13-1 at 1)
moved to dismiss these three counts, Plaintiff agreed to withdraw the counts without prejudice. (Dkt.
16 at 4.)

4

Defendant School Board also referred to its motion as a motion for summary judgment to the extent
it sought to terminate Counts Three and Five. (Dkt. 13.) As discussed, Plaintiff has dropped those
claims, and we only address Defendant School Board’s partial motion to dismiss.

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against him that meets the pleading standards of Iqbal. (Id. at 9.) Defendant School Board
did not move to dismiss the CEPA claim against it.
Plaintiff argues that he has sufficiently stated a claim against both Defendant Azzara
and Defendant Shafter. Plaintiff refutes Defendants’ assertion that he merely raised failure to
act claims. (Dkt. 16 at 23.) He notes that both Defendants “engaged in actual participation of
the retaliatory treatment of and wrongful termination of [him].” (Id.) In support, Plaintiff
cites specific factual allegations made in the Complaint that he claims are sufficient to survive
a motion to dismiss for failure to state a claim. (Id. at 24–25.) He also points to specific
allegations he made against Defendant Shafter. (Id. at 21– 22.)5
B.

Analysis

We conclude that Plaintiff has sufficiently pleaded a claim under the New Jersey
Conscientious Employee Protection Act against both Defendant Azzara and Defendant
Shafter. Therefore, the motion to dismiss (dkt. 11) is denied as to Count One.
The New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq.,
provides employees who act in the public interest by “blowing the whistle” on employers
engaged in illegal or harmful activity with broad protections from employer retaliation.
Spence-Parker v. Del. River & Bay Auth., 656 F. Supp. 2d 488, 503 (D.N.J. 2009); Feldman
5

We note that in Plaintiff’s brief, he has appended two emails between Defendant Azzara to another
individual to further his argument that we should deny the motion to dismiss. (Dkt. 16 at 24–25; dkt.
16-1 at 4–6.) Plaintiff asserts that he did not obtain these emails until June 2016, after he had filed the
Complaint. (Id. at 1–2.) Plaintiff, however, did not file an Amended Complaint, Fed. R. Civ. P. 15(a),
to include these allegations. Because they were not included in the Complaint or in an Amended
Complaint, and the pending motions seek dismissal rather than summary judgment, we have not
considered these emails in evaluating the motions to dismiss. See Bruni v. City of Pittsburgh, 824
F.3d 353, 360 (3d Cir. 2016). We conclude that Plaintiff has stated a plausible claim of relief without
these emails.

7

v. Hunterdon Radiological Associates, 901 A.2d 322, 329 (N.J. 2006). The social goal of the
whistle-blowing statute is to encourage employees to come forth to report employer conduct
and discourage employers from engaging in such conduct. Zappasodi v. State, Dept. of
Corrections, Riverfront State Prison, 761 A.2d 96, 100 (N.J. Super. Ct. App. Div. 2000). We
construe CEPA liberally. Boyle v. Quest Diagnostics, Inc., 441 F. Supp. 2d 665, 670 (D.N.J.
2006).
To establish a claim under CEPA, a plaintiff must demonstrate “(1) his reasonable
belief that his employer’s conduct violated a law, rule, or regulation; (2) a whistle-blowing
activity; (3) an adverse employment action; and (4) a causal connection between her whistleblowing activity and the adverse employment action.” Figueroa v. City of Camden, 580 F.
Supp. 2d 390, 407 (D.N.J. 2008). The first two elements relate to the employee and the
second two focus on the employer’s conduct.
Defendants Azzara and Shafter do not identify which element or elements of a CEPA
claim that Plaintiff has failed to properly plead. Without any legal support, Defendants
Azzara and Shafter merely argue that “a defendant cannot be liable under CEPA for a
decision he or she neither participated in nor approved.” (Dkt. 11-3 at 16.) Nonetheless, we
conclude that Plaintiff has sufficiently stated a claim under CEPA upon which relief can be
granted and has alleged specific conduct by Defendants Azzara and Shafter.
An employee is protected by CEPA if the employee “[o]bjects to, or refuses to
participate in any activity, policy or practice” provided the employee reasonably believes that
the objected-to practice or policy

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(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law, including any violation involving
deception of, or misrepresentation to, any shareholder, investor,
client, patient, customer, employee, former employee, retiree or
pensioner of the employer or any governmental entity, or, if the
employee is a licensed or certified health care professional,
constitutes improper quality of patient care;
(2) is fraudulent or criminal, including any activity,
policy or practice of deception or misrepresentation which the
employee reasonably believes may defraud any shareholder,
investor, client, patient, customer, employee, former employee,
retiree or pensioner of the employer or any governmental entity;
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.S.A. 34:19-3(c).]
We are satisfied that Plaintiff has met his burden under both employee-related CEPA
elements. First, we conclude that he has sufficiently pleaded his reasonable belief that the
Board of Education’s continued funding of courtesy busing while facing a budget deficit
violated state education laws and regulations and was incompatible with the policies behind
the public education system in New Jersey. Plaintiff alleges that he believed that various New
Jersey education laws and regulations were being violated, and he informed Defendants of his
concerns. (Dkt. 1 at 7–8, 9, 10, 15, 19.) Specifically, Plaintiff claims that he explained to
Defendants that courtesy busing could not be included in the school budget because the
budget would exceed a 2% cap imposed by law. (Id. at 10.) Second, we find that Plaintiff has
sufficiently pleaded that he engaged in protected whistle-blowing activities by refusing to
certify a school budget as a Business Administrator that he believed would leave the budget in

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violation of education law. Plaintiff claims that he expressed his objections to Defendant
Azzara and Superintendent Winters about certifying a budget that projected a deficit. (Id. at
13.) Plaintiff alleges that Defendant Azzara ordered him to certify the budget and include a
caveat that revenues were pending, but Plaintiff did not believe such revenue would be
obtained. (Id.) Plaintiff states that he believed this to be fraudulent conduct and “repeatedly
made his objections to this fraud known to the Defendants, especially Defendant Azzara.”
(Id.) Plaintiff also alleges that he objected to Defendant Azzara’s proposal to cut the purchase
of textbooks from the budget in order to pay for courtesy busing, which Plaintiff claims was
“wrong, not ethical, not legal and completely contrary to the public policies of this State
concerning education.” (Id. at 14.)
Next, to demonstrate a prima facie CEPA claim, a plaintiff must demonstrate that the
employer took an adverse employment action and that this retaliatory action was causally
connected to the whistle-blowing activity. We will address these two elements together, as it
appears that herein rests Defendants’ main argument to dismiss Plaintiff’s CEPA claims.
Defendants argue that they took no action, and that the Board voted to not renew Plaintiff’s
employment without input or participation by Defendants. Thus, according to Defendants,
they cannot be held liable for their inaction.
CEPA defines an adverse employment or retaliatory action as “the discharge,
suspension or demotion of an employee, or other adverse employment action taken against an
employee in the terms and conditions of employment.” N.J.S.A. 34:19-2(e). Contrary to
Defendants’ assertions (dkt. 20 at 10–11), the statute makes plain that discharge, suspension,
or demotion are not required to prove a CEPA violation. “[E]mployer actions that fall short
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of [discharge, suspension, or demotion], may nonetheless be the equivalent of an adverse
action.” Nardello v. Twp. of Voorhees, 873 A.2d 577, 580 (N.J. Super. Ct. App. Div. 2005)
(quotation omitted). An adverse action under CEPA may include “many separate but
relatively minor instances of behavior directed against an employee that may not be
actionable individually but that combine to make up a pattern of retaliatory conduct.” Green
v. Jersey City Bd. of Educ., 828 A.2d 883, 891 (N.J. 2003).
We find that Plaintiff has sufficiently pleaded facts that could form a retaliatory action
within the meaning of the statute. As stated, discharge, suspension, or demotion are not
required to demonstrate a retaliatory action. See Nardello, 873 A.2d at 580. Plaintiff alleges
that Defendants Azzara and Shafter excluded him “from any meaningful meetings or dialogue
concerning the budget and the School District’s finances,” which otherwise would have been
part of Plaintiff’s responsibilities as Business Administrator. (Dkt. 1 at 13–14.) He claims
that he was given the “silent treatment” and was “essentially isolated . . . out of a meaningful
role with the Administrative team.” (Id. at 16.) Although the 2015–16 school budget was
more than eight million dollars over the cap, Plaintiff states that Defendant Azzara did not
take input from him on the budget. (Id. at 14.) Plaintiff alleges that Defendant Shafter
removed Plaintiff entirely from the budget development process. (Id. at 16.)
Plaintiff alleges that the Defendants excluded him from meetings and discussions that
concerned the business administration of the district as a result of his raising concerns with
Defendants. (Id. at 15–16, 19.) He claims that Defendants began to “undermine [his] contract
and render him irrelevant and invisible,” with the goal of forcing him from his job. (Id. at 16.)
Plaintiff alleges that he was in good standing as an employee prior to making these
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objections—that he had no disciplinary problems and no complaints about his work
performance and that the school district discussed the possibility of granting him tenure early.
(Id. at 5, 17, 18.) He states that his contract was renewed twice, upon the recommendation of
Superintendent Winters. (Id. at 4.) According to Plaintiff, his second reappointment initially
failed before the Board of Education but Defendant Azzara overrode the Board’s decision and
renewed his contract. (Id. at 17.)
Plaintiff alleges that Defendant Azzara grew hostile towards him after he objected to
what he believed were unlawful budgetary practices. (Id. at 18.) He claims that his
termination occurred within two months of his raising objections to Defendant Azzara’s plan
to cut textbook purchases from the budget to fund courtesy busing. (Id. at 15.) Plaintiff
alleges that he was terminated and not reappointed to his position for a third time, despite the
recommendation of Superintendent Winters, as a result of his objections. (Id. at 9, 12, 15, 17.)
He claims that Defendant Azzara did not let him complete his term of employment, and that
Defendant Azzara instructed Superintendent Winters to inform Plaintiff to use his remaining
sick leave and “not return to the office except to collect his belongings.” (Id. at 18–19.)
At the pleading stage, we conclude that Plaintiff has stated a plausible claim that
Defendant Azzara and Defendant Shafter took retaliatory actions against Plaintiff, in violation
of CEPA, for his objections to the continued use of courtesy busing, which he believed caused
the budget to violate state law. See Iqbal, 556 U.S. at 678. As a result we reject Defendants
Azzara’s and Shafter’s motion to dismiss Plaintiff’s CEPA claims against them.

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II.

42 U.S.C. § 1983
A.

Parties’ Arguments

Defendants Azzara and Shafter argue that Plaintiff’s First Amendment claim must be
dismissed because he was speaking pursuant to his official duties as an employee, and not as a
citizen. (Dkt. 11-3 at 8.) Defendants compare Plaintiff’s situation to the that of the plaintiff in
Garcetti v. Ceballos, 547 U.S. 410 (2006), whose First Amendment claim was rejected by the
Supreme Court because the speech at issue was part of the execution of his professional
duties. (Dkt. 11-3 at 10–11.) Defendants rely on post-Garcetti cases in the Third Circuit and
in this district, which they contend demonstrate this principle. (Id. at 10–11.) Defendant
School Board joins in these arguments. (Dkt. 13-1 at 1, 6.) Defendant School Board further
relies on responsibilities listed as part of Plaintiff’s job description to illustrate that he was
speaking as part of his official duties. (Id. at 8–9.)
Defendant Shafter also argues that Plaintiff has failed to specifically make any
allegation against him and thus cannot satisfy the Iqbal standard. (Dkt. 11-3 at 14.)
Defendants Azzara and Shafter argue that they took no action, and that they cannot be held
liable under 42 U.S.C. § 1983 for the actions of the Defendant School Board that they neither
participated in nor approved. (Id. at 15–16.)
Plaintiff argues that it would be premature to dismiss his Complaint at this point in the
proceedings, and that he has met the pleading requirements. (Dkt. 16 at 9–10.) Relying on
Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), Plaintiff argues that the First Amendment
protects a refusal to obey an order to make statements that an individual believes are false, and
such speech is not part of an employee’s official duties. (Dkt. 16 at 14.) He also argues that
13

Defendants had stripped away many of his official duties, and thus he was closer to a citizen
at that point, rather than an employee. (Id. at 13.)
In reply, Defendant Board of Education contends that there is no legal support for
Plaintiff’s position that removing duties from an employee renders that employee a citizen for
First Amendment purposes. (Dkt. 19 at 2–4.)
B.

Analysis

We conclude that Plaintiff has sufficiently pleaded a claim under 42 U.S.C. § 1983
that Defendants School Board, Azzara, and Shafter deprived him of his First Amendment
rights. Therefore, the motions to dismiss (dkts. 11, 13) are denied as to Count Two.
A plaintiff may have a cause of action under Section 1983 for certain violations of
constitutional rights. Section 1983 provides in relevant part:
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 . . . .
[42 U.S.C. § 1983.]
To state a claim for relief under Section 1983, a plaintiff must allege: (1) the violation
of a right protected by the Constitution or laws of the United States; and (2) that the alleged
deprivation was committed or caused by a person acting under color of state law. See Harvey
v. Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011); see also West v. Atkins, 487
U.S. 42, 48 (1988).

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“To establish a First Amendment retaliation claim, a public employee must show that
(1) his speech is protected by the First Amendment and (2) the speech was a substantial or
motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden
to the employer to prove that (3) the same action would have been taken even if the speech
had not occurred.” Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 986 (3d Cir. 2014).
The Supreme Court has indicated that a public employee’s speech is a balance of
interests between the government as employer and the employee as a citizen. “The First
Amendment limits the ability of a public employer to leverage the employment relationship to
restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as
private citizens. So long as employees are speaking as citizens about matters of public
concern, they must face only those speech restrictions that are necessary for their employers
to operate efficiently and effectively.” Garcetti v. Ceballos, 547 U.S. 410, 419 (2006).
Beyond implicating the individual speaker’s First Amendment rights, the Supreme Court has
also “acknowledged the importance of promoting the public’s interest in receiving the wellinformed views of government employees engaging in civic discussion.” Id. at 419. The
Court’s decisions thus seek “both to promote the individual and societal interests that are
served when employees speak as citizens on matters of public concern and to respect the
needs of government employers attempting to perform their important public functions.” Id.
at 420.
Garcetti outlined three factors to determine whether a public employee’s speech is
protected by the First Amendment: (1) whether the employee spoke as a citizen; (2) whether
the speech involved a matter of public concern; and (3) whether “the relevant government
15

entity had an adequate justification for treating the employee differently from any other
member of the general public.” See id. at 418; Flora v. County of Luzerne, 776 F.3d 169, 175
(3d Cir. 2015). After Garcetti, the Supreme Court looked again at the issue of public
employee speech in Lane v. Franks, 134 S. Ct. 2369 (2014). In Lane, the Court held that the
plaintiff’s speech was as a citizen, and not as an employee, because it was “outside the scope
of his ordinary job duties.” Lane, 134 S. Ct. at 2378–79.6
The core issue in this matter is whether Plaintiff’s speech was protected by the First
Amendment. Specifically, the parties’ dispute centers on whether Plaintiff was speaking in
the scope of his ordinary job responsibilities as an employee of the Board of Education or as a
citizen.
Whether speech is made as part of a plaintiff’s job responsibilities or as a citizen is a
mixed question of law and fact. Flora, 776 F.3d at 175. “Specifically, the scope and content
of a plaintiff’s job responsibilities is a question of fact, but the ultimate constitutional
significance of those facts is a question of law.” Id.
In Garcetti, the parties agreed that the plaintiff spoke pursuant to his employment
duties. Garcetti, 547 U.S. at 424. The Court, however, left open a constitutional framework
for situations where the extent of a public employee’s official duties was in dispute by the
parties, as it is here.

6

Lane introduced the word “ordinary” as a modifier to job responsibilities and duties. The Third
Circuit has speculated, without deciding, whether the inclusion of this modifier broadened the scope
of First Amendment protection for employees by narrowing the class of unprotected speech. See
Flora, 776 F.3d at 179 n.11; Dougherty, 772 F.3d at 990. The parties here do not raise any arguments
with respect to whether Lane modified or merely applied Garcetti. We find that Plaintiff has stated a
claim under either standard and we have no need to resolve that unanswered question.

16

We thus have no occasion to articulate a comprehensive
framework for defining the scope of an employee’s duties in
cases where there is room for serious debate. We reject,
however, the suggestion that employers can restrict employees’
rights by creating excessively broad job descriptions. The proper
inquiry is a practical one. Formal job descriptions often bear
little resemblance to the duties an employee actually is expected
to perform, and the listing of a given task in an employee’s
written job description is neither necessary nor sufficient to
demonstrate that conducting the task is within the scope of the
employee’s professional duties for First Amendment purposes.
[Id. at 424–25 (internal citations omitted).]
The Third Circuit also has “forgone any attempt to create a comprehensive framework
for determining whether speech is made pursuant to an employee’s official job duties.” Flora,
776 F.3d at 177. Instead, the Third Circuit attempts to “‘give[] contours to Garcetti’s practical
inquiry.’” Id. (quoting Dougherty, 772 F.3d at 988.)
“[T]he responsibility of a district court in evaluating whether a public employee’s
speech was made as a private citizen is to ask whether the speech at issue was ‘outside the
scope of his ordinary job responsibilities.’” Id. at 179 (quoting Lane, 134 S. Ct. at 2378).
“[T]he ‘controlling factor’ is whether the statements were ‘made pursuant to [the speaking
employee’s] duties,’ that is, whether such utterances were among the things that the employee
‘was employed to do.’” Id. at 177 (quoting Garcetti, 547 U.S. at 421). But “whether an
employee’s speech ‘concern[s] the subject matter of [his] employment’ is ‘nondispositive’
under Garcetti.” Dougherty, 772 F.3d at 989 (quoting Garcetti, 547 U.S. at 421). The
protected speech does not need to be made in public, it can be made within the workplace.
Garcetti, 547 U.S. at 420–21.

17

Certainly, Plaintiff’s speech was related to his job as Business Administrator. But
speech related to an employee’s job duties may still be protected. See Flora, 776 F.3d at 176–
79 (rejecting district court’s application of a “related to” standard).
Plaintiff alleges that he was directed to falsely certify a budget that he believed was
illegal. (Dkt. 1 at 13, 18.) He claims that he “did not want to be a part of the fraudulent
misrepresentations of the finances in the District.” (Id. at 18.) An employee’s refusal to make
dishonest or fraudulent statements has been held to be within the scope of First Amendment
protection. See Jackler v. Byrne, 658 F.3d 225, 240 (2d Cir. 2011) (finding the plaintiff “had
a strong First Amendment interest in refusing to make a report that was dishonest”). Further,
having a responsibility to participate in a budget discussion by recommending financial
policies and priorities is distinct from objecting that the budget itself is illegal. See, e.g.,
Bradley v. W. Chester Univ. of the Pa. State Sys. of Higher Educ., No. 15-2681, 2017 U.S.
Dist. LEXIS 30785, at *19 (E.D. Pa. Mar. 3, 2017) (finding that the plaintiff was speaking as
a citizen, and not in her role as a Budget Director for the university, because “[t]here is a
difference between recommending changes to improve or streamline an existing policy and
upending the policy with accusations that it is in itself fraudulent”).
Plaintiff also alleges, which we must accept as true, that he had no meaningful
participation in the formulation of the 2015–16 budget. (Dkt. 1 at 13–16.) He argues that he
was no longer responsible for participating in budget formulation at this time, and as a result,
any discussion of the budget could not be part of his ordinary responsibilities. He claims that
he was “essentially excluded from his job and his position. While he held the title of Business
Administrator, he was actually phased out from the position, rendered irrelevant, and was
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ignored.” (Id. at 16.) Plaintiff alleges that Defendant Azzara “never discussed any details or
particulars of the budget” with him. (Id. at 13.) According to Plaintiff, his job responsibilities
were changed and he was “given the silent treatment” and excluded from meetings regarding
the budget and from providing input into budget formulation. (Id. at 14–16.) Defendants
dispute that Plaintiff’s scope of responsibilities was narrowed, and argue that he was still
acting in accordance with his official duties. (Dkt. 20 at 5–8.)
The scope of Plaintiff’s official responsibilities, and whether he was still allowed and
expected to perform those duties, is clearly contested between the parties. We note that
because of the factual nature of the scope of and content of a plaintiff’s job duties, the Third
Circuit has been cautious of district courts dismissing complaints at the pleading stage based
on this factor. See, e.g., Flora, 776 F.3d at 175-76 (“‘[T]he question whether [a
memorandum] was written as part of [the plaintiff’s] official duties was a disputed issue of
material fact that cannot be decided on a motion to dismiss pursuant to Rule 12(b)(6).’”
(quoting Andrew v. Clark, 561 F.3d 261, 267 (4th Cir. 2009)); Hill v. Borough of Kutztown,
455 F.3d 225, 242–43 (3d Cir. 2006) (partially reinstating plaintiff’s First Amendment claim
because the complaint “should not have been dismissed at this stage of the proceeding”). In
this way, this matter—at the motion to dismiss stage—is distinguishable from cases cited by
Defendants, such as Myers v. County of Somerset, 515 F. Supp. 2d 492 (D.N.J. 2007) and
Battle v. Bd. of Regents, 468 F.3d 755 (11th Cir. 2006), which involved proofs under a
summary judgment standard.
Assuming the alleged facts in the Complaint are true, and construing them in the light
most favorable to Plaintiff, we find that the Complaint pleads sufficient factual allegations that
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can plausibly establish that Plaintiff’s statements objecting to the Board of Education’s
budgetary practices were made as a citizen, and not pursuant to his ordinary job
responsibilities. See Iqbal, 556 U.S. at 678; Flora, 776 F.3d at 179. We find that Plaintiff has
stated a plausible claim that his speech was outside the scope of his official job
responsibilities, in part, because his official duties were restricted. Yet as the Third Circuit
reminds us, “That such a dispute exists at this stage does not mean that one will, after
discovery, remain for trial, and we do not imply that summary judgment will necessarily be
inappropriate.” See Flora, 776 F.3d at 175 n.9.
To the extent that Defendants Azzara and Shafter also argue that they took no action
against Plaintiff and thus cannot be held liable under Section 1983 (dkt. 11-3 at 14–16), we
find that Plaintiff has sufficiently made allegations that, accepted as true, may demonstrate
that Defendants affirmatively engaged in conduct that retaliated against him.7 Plaintiff alleges
that Defendants Azzara and Shafter excluded him “from any meaningful meetings or dialogue
concerning the budget and the School District’s finances,” which would have been part of
Plaintiff’s responsibilities as Business Administrator. (Dkt. 1 at 13–16, 19.) He claims that
he was “essentially isolated . . . out of a meaningful role with the Administrative team” and
given the “silent treatment.” (Id. at 16.) Plaintiff alleges that Defendant Azzara and Shafter
precluded him from providing input into the budget formulation process. (Id. at 16.) Taking

7

Many of these allegations of retaliation for exercising a First Amendment right overlap with those
that we previously discussed, supra I.B, with respect to Defendants’ alleged retaliatory actions in the
context of CEPA.

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these allegations as true, we find that Plaintiff has sufficiently alleged affirmative actions by
Defendants Azzara and Shafter.
Because Plaintiff has met his burden of stating a claim upon which relief may be
granted, we deny Defendants Azzara’s and Shafter’s and Defendant Board of Education’s
motions to dismiss Plaintiff’s Section 1983 claim alleging a deprivation of his First
Amendment rights.
CONCLUSION
For the reasons stated above, we deny Defendant Board of Education’s partial motion
to dismiss and deny Defendants Azzara’s and Shafter’s motion to dismiss. We will enter an
appropriate order.

s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge

Dated: March 31, 2017

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