BURKE v. BOROUGH OF RED BANK et al

Filing 17

OPINION filed. Signed by Judge Brian R. Martinotti on 3/12/2018. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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BOROUGH OF RED BANK, et al.,
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Defendants.
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__________________________________________:

JASON A. BURKE,

Civ. Action No. 17-1800-BRM-DEA
OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court is Defendants Borough of Red Bank (“Red Bank”) and Stanley J.
Sickels’s (“Sickels”) (together with Red Bank, “Borough Defendants”) Motion for Partial
Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). 1 (ECF No. 8.)
Plaintiff Jason A. Burke (“Burke”) opposes the motion. (ECF No. 11.) For the reasons set forth
below, Borough Defendants’ motion (ECF No. 8) is GRANTED.
I.

PROCEDURAL AND FACTUAL BACKGROUND
For the purposes of this motion, the Court accepts the factual allegations in the Complaint

as true. Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008); see Newton v. Greenwich
Twp., 2012 WL 3715947, at *2 (D.N.J. Aug. 27, 2012) (“The difference between a motion to

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Defendants Communications Workers of America Local 1075, AFL-CIO (“CWA Local 1075”)
and CWA Local 1075 President and Business Agent Kevin Tauro (“Tauro”) (together with CWA
Local 1075, “Union Defendants”) did not file papers in connection with this motion but are referred
to herein.
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dismiss pursuant to Rule 12(b)(6) and Rule 12(c) is only a matter of timing and the Court applies
the same standard to a Rule 12(c) motion as it would to a Rule 12(b)(6).”).
This matter arises from Burke’s termination from the Red Bank Department of Public
Works (“DPW”), where he was employed from about May 24, 2001, until his termination on
March 11, 2016. (Compl. (ECF No. 2) ¶¶ 12, 56.) Burke claims to be disabled, was classified as
learning disabled early in his education, and attended a school for children with learning
disabilities. (Id. ¶¶ 8-9.) Among Burke’s disabilities are:
difficulties in reading comprehension, comprehending written
instruction, and doing basic math. His learning disability includes
and involves, among other problems, his reversing numbers and
letters in reading documents . . . . [He] also has delayed auditory
processing, which basically results in the need for instructions to be
repeated to him multiple times. At times he has difficulty in
concentrating for extended periods of time, due to attention deficit
disorder.
(Id. ¶ 10.) Burke worked for the DPW in the position of “Laborer,” which entailed working on the
rear of a garbage truck and loading household trash into the truck, and working as a janitor in
municipal buildings. (Id. ¶ 16.)
A. Burke is Required to Obtain a Commercial Driver’s License
In January 2014, Sickels, who at all relevant times served as Red Bank’s Borough
Administrator, issued a directive (the “Directive”) stating all DPW employees must obtain a
Commercial Driver’s License (CDL) by January 1, 2015, or their employment would be
terminated. (Id. ¶¶ 3, 18.) Sickels issued the Directive without any investigation into whether DPW
employees were mentally or physically capable of obtaining a CDL. (Id. ¶ 19.) Burke alleges the
New Jersey State Motor Vehicle Commission’s (“MVC”) process for issuing a CDL “include[s]
written examinations as to traffic laws and heavy vehicle operations systems, oral testing by MVC
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inspectors on heavy vehicle equipment, parts, and operational characteristics, and a driving test by
MVC inspectors on such vehicles.” (Id. ¶ 20.) Burke claims Borough Defendants implemented the
Directive without negotiating with the CWA Local 1075, which is the union that represented the
DPW’s blue collar employees. (Id. ¶¶ 4, 22.) Further, the Directive was not made part of the DPW’s
job description for the Laborer role, included in the Personnel Manual for DPW employees, or
added to the Collective Bargaining Agreement (“CBA”) between Red Bank and CWA Local 1075
as a term and condition of employment. (Id. ¶ 22.)
Burke alleges the assistance and instruction Borough Defendants offered was minimal
and/or inadequate. (Id. ¶ 24.) Burke informed his manager and supervisor—the Director of the
DPW—it would be difficult or impossible for him to obtain a CDL due to his learning disabilities.
(Id. ¶ 25.) He asked if he could have a reasonable accommodation and/or deferral of the
requirement. (Id.) DPW rules prohibited Burke from communicating directly to Sickels or Red
Bank’s governing body. (Id. ¶ 26.) Similarly, CWA Local 1075 rules prohibited Burke from
speaking to Tauro or any union official other than Burke’s shop steward. (Id. ¶ 27.)
B. Burke’s Initial Termination
Due to his learning disabilities, Burke could not comprehend the study materials and did
not obtain a CDL by the January 2015 deadline. (Id. ¶ 28.) Although Borough Defendants never
responded to Burke’s notifications regarding his learning disabilities and need for accommodation,
Sickels notified Burke he would be terminated effective February 27, 2015. (Id. ¶ 29.) Burke’s
termination was implemented without any grievance and/or due process hearing. (Id.) Around
February 27, 2015, Burke filed a grievance with Red Bank and CWA Local 1075 seeking a

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grievance hearing and adjudication of his termination. (Id. ¶ 30.) The CBA 2 Burke obtained from
Red Bank indicated he had a right to file the grievance. (Id. ¶ 33.) Though the CBA required
Sickels to conduct an informal hearing within five days of receipt of Burke’s grievance and
respond in writing within ten days of the hearing, Burke did not hear from Borough Defendants
until he was invited to attend a meeting on April 15, 2015. (Id. ¶¶ 34, 39.)
While Burke awaited his hearing, he attempted to file a claim for unemployment benefits
from the State of New Jersey, Department of Labor (“Labor Department”). (Id. ¶ 36.) He alleges
Sickels, on behalf of Red Bank, falsely reported to the Labor Department that Burke had
voluntarily left his employment. (Id. ¶ 37.) The Labor Department then denied Burke’s application
for benefits. (Id.) Burke had no income while he awaited his grievance hearing. (Id. ¶ 38.)
C. Burke is Rehired
On April 15, 2015, Burke attended what he believed would be a grievance hearing, but
instead Red Bank representatives presented him with several documents, which were a “Settlement
Agreement,” “General Release and Waiver,” and “Acknowledgement” (collectively, the
“Settlement Agreement”). (Id. ¶¶ 39-40.) Burke did not receive any opportunity to review the
documents, and he did not comprehend them. (Id. ¶ 41.) Red Bank representatives and CWA Local
1075 representatives who were at the meeting told Burke if he did not immediately sign the
documents, his termination would be upheld and he would have no right to challenge his
termination. (Id.) The Settlement Agreement and other documents stated Burke was voluntarily

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In February or March of 2015, Burke filed an OPRA request to obtain an executed copy of the
CBA between Red Bank and CWA Local 1075, but he received only a copy of an expired CBA
for 2005 through 2008. (ECF No. 2 ¶¶ 31-32.) Burke also received several “Memorand[a] of
Agreement” and “Sidebar Agreements” that addressed change and revisions to the 2005-2008
CBA. (Id. ¶ 32.) He alleges he never received a current, readily understandable CBA. (Id.)
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resigning from his position with the DPW, and he was releasing any and all claims and grievances
against Red Bank. (Id. ¶ 42.) The documents further stated Burke was eligible to be rehired to the
position of “Laborer I,” on probationary status, and would forfeit the seniority and advanced pay
rate and benefits he had accrued during his fifteen years with the DPW. (Id.) Finally, the documents
provided if Burke failed to obtain a CDL within the ninety-day probationary period he would be
terminated without right to challenge the termination. (Id.) Burke claims Union Defendants,
despite knowing of his learning disabilities, assured him he would get his job back and signing the
documents was his only option. (Id. ¶ 43.) Burke asserts he was under duress because he had not
received any income since his termination, so signed the documents. (Id. ¶ 44, 46.) Burke claims
despite the fact he was denied the opportunity to contact his attorney during the meeting, the
documents state Burke had twenty-one days to review them. (Id. ¶ 45.)
D. Burke’s Second Termination
Around April 18, 2015, Burke resumed working for the DPW but he was reduced to Step
1 of the Pay/Senior Scale, which represented a substantial reduction of income from his pretermination salary. (Id. ¶ 47.) Red Bank assigned a senior DPW employee with a CDL to
periodically instruct Burke regarding the test and requirements. (Id. ¶ 51.) In July 205, Burke
attended a test with the MVC. (Id. ¶ 52.) Burke asserts the MVC inspector refused to allow him to
take the test, because the heavy vehicle Red Bank supplied for Burke to take the test was in a
defective and unsafe condition. (Id. ¶ 53.) Burke alleges Red Bank required him to pay a $125.00
fee for a second test. (Id. ¶ 54.) Burke claims at the second test date, the MVC inspector told Burke
the study materials Red Bank had given him were outdated. (Id.) Burke did not pass the
examination portion of the test. (Id.)

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Burke contends Red Bank again required him to pay the $125.00 fee for the third exam.
(Id. ¶ 55.) Burke asserts he also received updated study materials, but despite his best efforts to
prepare, he did not pass. (Id.) On March 11, 2016, the day after the third MVC test, Sickels notified
Burke he was terminated, effective immediately, for failing to obtain a CDL. (Id. ¶ 56.) Burke
maintains he filed a grievance with Borough Defendants and CWA Local 1075, but Borough
Defendants refused to schedule and conduct a grievance hearing. (Id. ¶¶ 57-58.) Burke alleges
neither Borough Defendants nor Union Defendants took steps toward providing him with a
hearing. (Id. ¶¶ 67.)
Burke claims Sickels again falsely reported to the Labor Department that Burke had
voluntarily left his job. (Id. ¶ 59.) On April 13, 2016, Burke was required to file an appeal of the
denial of unemployment benefits. (Id. ¶ 61.) On June 2, 2016, the Labor Department’s Appeal
Tribunal overturned the denial of Burke’s benefits. (Id. ¶ 63.) On June 21, 2016, Borough
Defendants appealed to the next Labor Department administrative level and again falsely claimed
Burke had left the DPW by his own decision. (Id. ¶ 64.) Eventually, Borough Defendants withdrew
their appeal, bur Burke did not receive unemployment benefits for the duration of the appeals
process. (Id. ¶¶ 65-67.)
Months after Burke’s second termination, Borough Defendants scheduled a grievance
hearing for June 21, 2016. (Id. ¶ 70.) Burke alleges Union Defendants did not properly prepare
and investigate his case before the hearing. (Id. ¶ 71.) Burke claims at the hearing, Union
Defendants refused to present evidence of Burke’s learning disabilities and his fitness to obtain a
CDL. (Id. ¶¶ 72.) He asserts Union Defendants also failed to argue a CDL was not essential to the
Laborer position, or that Burke should receive a reasonable accommodation for his condition. (Id.)
Sickels denied Burke’s grievance in a letter dated July 15, 2016. (Id. ¶ 73.)
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Burke sought Union Defendants’ assistance to pursue arbitration. (Id. ¶ 75.) In December
2016, Burke learned from Union Defendants a binding arbitration hearing was scheduled for
January 25, 2017. Burke sought Union Defendants’ assistance to pursue arbitration, but despite
several communications, Union Defendants did not adequately represent Burke’s interests. (Id. ¶
85.) On January 20, 2017, CWA Local 1075 informed Burke the arbitration hearing had been
postponed one month. (Id. ¶ 86.) On January 23, 2017, Burke was informed Union Defendants had
decided not to pursue his grievance to binding arbitration. (Id. ¶ 75.) Burke alleges CWA Local
1075 told him Union Defendants would authorize him to proceed to arbitration on his own and
with his own representation if he: (1) executed a full release of any claims against Union
Defendants and (2) paid all costs associated incurred and to be incurred for his grievance and for
the arbitration. (Id. ¶ 87.) Burke told Union Defendants he would pay for his own representation
but would not execute the release Union Defendants had sent him. (Id. ¶ 88.) Union Defendants
then withdrew from the arbitration, and Burke was left without any contractual or administrative
means to challenge his termination. (Id. ¶¶ 89-90.)
While he was awaiting arbitration, Burke claims he continued to attempt to obtain a CDL
through a private CDL training facility. Burke maintains he sought Union Defendants’ assistance
to pursue arbitration, but despite several communications Union Defendants did not adequately
represent Burke’s interests. (Id. ¶¶ 78-79.) The CDL training facility required Burke to provide
information regarding his disabilities and the prescription medications he takes to treat them. (Id.
¶¶ 79.) Burke alleges the CDL training facility reviewed the information concerning his conditions
and medications, and concluded his disabilities disqualify him from obtaining a CDL unless Burke
obtained a medical clearance letter and/or waiver from the MVC. (Id. ¶ 80.)

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On February 24, 2017, Burke filed the Complaint in the Superior Court of New Jersey,
Law Division, Monmouth County (Civ. A. No. MON-L-661-17) asserting claims 3 for wrongful
termination pursuant to the New Jersey Law Against Discrimination, as amended, N.J.S.A. 10:51, et seq. (“NJLAD”) (Count One); violations of Burke’s rights to procedural due process under
the United States and New Jersey constitutions related to his first termination (Count Two);
wrongful termination in breach of the CBA (Counts Three and Eight); coercion in relation to the
execution of the Settlement Agreement (Count Four); discriminatory treatment under NJLAD
(Count Five); violations of Burke’s rights to procedural due process under the United States and
New Jersey constitutions related to his second termination (Count Six); violation of Burke’s right
to procedural due process under the CBA (Count Seven); breach of the duty of good faith and fair
dealing under the CBA (Count Nine); breach of various terms of the CBA against Union
Defendants (Counts Ten and Eleven); and negligent or intentional infliction of emotional distress
against Union Defendants (Count Twelve). On March 17, 2017, Borough Defendants filed the
Notice of Removal. (ECF No. 1.) On May 4, 2017, Borough Defendants filed the Motion for
Judgment on the Pleadings. (ECF No. 8.)
II.

LEGAL STANDARDS
Federal Rule of Civil Procedure 12(c) provides: “After the pleadings are closed – but early

enough not to delay trial – a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c).
“The difference between a motion to dismiss pursuant to Rule 12(b)(6) and Rule 12(c) is only a
matter of timing and the Court applies the same standard to a Rule 12(c) motion as it would to a
Rule 12(b)(6).” Newton, 2012 WL 3715947, at *2; see also Muhammad v. Sarkos, 2014 WL

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Unless otherwise noted, all claims are pled against both Borough Defendants and Union
Defendants.
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4418059 (D.N.J. Sept. 8, 2014) (“Where a defendant’s motion is one for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c), it is treated under the same standards as a Rule
12(b)(6) motion where it alleges that a plaintiff has failed to state a claim.”) (citing Turbe v. Gov’t
of V.I., 938 F.2d 427, 428 (3d Cir. 1991); Gebhart v. Steffen, 2014 WL 3765715, at *2 (3d Cir.
Aug. 1, 2014)).
“In deciding a Rule 12(c) motion, the court does not consider matters outside the pleadings”
and must “view[] the complaint ‘in the light most favorable to the plaintiff’ . . . [to determine
whether] ‘there is no material issue of fact to resolve, and [the moving party] is entitled to judgment
in its favor as a matter of law.’” Mele, 359 F.3d at 257 (quoting Leamer v. Fauver, 288 F.3d 532,
534 (3d Cir. 2002)); see also Phillips, 515 at 228 (3d Cir. 2008) (noting that, pursuant to Rule
12(b)(6), a district court is “required to accept as true all factual allegations in the complaint and
draw all inferences in the facts alleged in the light most favorable to the [plaintiff]”).
III.

DECISION
A. Counts One, Seven, Eight, and Nine
Borough Defendants move for judgment on the pleadings on Counts One, Seven, Eight and

Nine only insofar as the claims assert violations of the CBA. (ECF No. 8 at 14.) Borough
Defendants state the scope of their motion does not include Burke’s claims as they are pled under
the United States or New Jersey constitutions, NJLAD, or Red Bank’s policy manual. (Id. at 8
n.2.) They point out the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et
seq. (“EERA”) provides all “grievance procedures that employers covered by [EERA] are required
to negotiate . . . shall be deemed to require binding arbitration as the terminal step with respect to
disputes concerning imposition of reprimands and discipline.” (Id. at 9 (quoting N.J.S.A. 34:13A-

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29).) Borough Defendants argue any of Burke’s claims that arise from the CBA must be dismissed
and can be only heard in arbitration. (Id. at 10.)
In opposition to Borough Defendant’s motion, Burke argues EERA does not preclude an
employee from asserting claims for violations of NJLAD or related constitutional right in a civil
action. (ECF No. 11 at 22 (citing Gallo v. Salesian Soc., Inc., 676 A.2d 580, 600 (N.J. Super. Ct.
App. Div. 1996).) More generally, Burke contends the Complaint sufficiently states a claim for
violations of NJLAD and of his due process rights under the United States and New Jersey
constitutions. (Id. at 26-27.) The Court agrees, but Borough Defendant’s motion is not as broad as
Burke suggests. Borough Defendants’ motion does not seek dismissal of Counts One, Seven,
Eight, and Nine altogether. To the contrary, they expressly limit their motion to those counts only
to the extent the counts state a claim under the CBA. (ECF No. 8 at 8 n.2.)
The Court finds EERA bars Counts One, Seven, Eight, and Nine insofar as those claims
arise from the CBA. Therefore, Counts One, Seven, Eight, and Nine are DISMISSED WITH
PREJUDICE as to Burke’s claims for violations of the CBA. Burke’s claims in Counts One,
Seven, Eight, and Nine for violations of NJLAD and United States and New Jersey constitutions
are not affected by this dismissal.
B. Counts Ten, Eleven, and Twelve
Borough Defendants argue Counts Ten, Eleven, and Twelve should be dismissed as to
them, because all of the facts alleged in those counts concern Union Defendants. (ECF No. 8 at
15.) Count Ten alleges Union Defendants failed to adequately represent Burke’s interests
regarding the Directive and his first termination. (ECF No. 2.) Count Eleven alleges Union
Defendants failed to adequately represent Burke’s interests regarding the Settlement Agreement

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and his second termination. (Id.) Finally, Count Twelve alleges Union Defendants’ actions
intentionally or negligently inflicted emotional distress upon Burke. (Id.)
Burke argues dismissal of Counts Ten, Eleven, and Twelve as to Borough Defendants is
not appropriate because “the allegations against [Borough Defendants] and [Union Defendants]
are interrelated.” (ECF No. 11 at 27.) The Court is not persuaded. If Burke seeks to assert Counts
Ten, Eleven, and Twelve against Borough Defendants, he must allege a factual basis to support
those claims against them. See Rosado v. Lynch, No. 15-3999, 2017 WL 2495407, at *4 (D.N.J.
June 8, 2017) (dismissing a claim without prejudice when plaintiff did not clearly allege facts
supporting the claim and state against whom the claim was asserted); Ziemba v. Incipio Tech., Inc.,
No. 13-5590, 204 WL 7051782, at *5, (D.N.J. Dec. 12, 2014) (“[E]ach count as to each defendant
must contain the facts alleged in support for each individual claim”).
Therefore, Borough Defendants’ Motion for Judgement on the Pleadings on Counts Ten,
Eleven, and Twelve is GRANTED, and those claims as to Borough Defendants are DISMISSED
WITHOUT PREJUDICE.

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IV.

CONCLUSION
For the foregoing reasons, Borough Defendants’ Motion for Judgment on the Pleadings

(ECF No. 8) is GRANTED. Counts One, Seven, Eight, and Nine are DISMISSED WITH
PREJUDICE as to Burke’s claims for violations of the CBA. Burke’s claims in Counts One,
Seven, Eight, and Nine for violations of NJLAD and United States and New Jersey constitutions
are not affected by this dismissal. Counts Ten, Eleven, and Twelve are DISMISSED WITHOUT
PREJUDICE as to Borough Defendants.

Date: March 12, 2018

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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