HECHT v. EAST BRUNSWICK BOARD OF EDUCATION et al

Filing 11

MEMORANDUM AND ORDER that Defendants' 5 Motion to Dismiss is denied. Signed by Judge Peter G. Sheridan on 1/23/2019. (mps)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DARA HECHT, et a!.

Civil Action No.: 1 8-cv-06039
(PGS)(LHG)

Plaintzff
MEMORANDUM

V.

AND ORDER

EAST BRUNSWICK BOARD OF
EDUCATION, et al.
Defendant.

SHERIDAN, U.S.D.J.
This matter comes before the Court on Defendants East Brunswick Board of Education
(“Board”), Michael Gaskell, Margaret Haas, and Russell Petronko’s Motion to Dismiss Plaintiffs
Complaint pursuant Federal Rule of Civil Procedure 12(b)(6) (ECF No. 6).
Background

This case involves allegations from a middle school student, Plaintiff D.H. and her mother,
Dara Hecht, that their constitutional rights were violated when the Board suspended D.H. for
fighting with a classmate on September 16, 2016. Prior to this suspension, Hecht had lodged
several complaints against Defendant Michael Gaskell, the Principal of the Hammorskjold Middle
School. (Complaint at ¶J 7-18).
In October and December 2015, Hecht met with Principal Gaskell to discuss issues
regarding D.H.’s grades received in her computer and social studies classes. (Id. at ¶ 7-8). These
disputes continued into January 2016, wherein Principal Gaskell instructed all of D.H.’s teachers

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to disregard any emails from Hecht. (Id.). Dissatisfied with Principal Gaskell’s handling of her
complaints, Hecht brought the issues before the Board of Education. (Id. at ¶ 8-9). However, her
complaints fell on deaf ears. (Id. at ¶ 9).
In any event, on March 10, 2016, after a student had fallen and broken a bone, Hecht again
emailed Principal Gaskell to complain about the lack of supervision in a school stairwell. (Id. at ¶
10). The email also expressed concerns about the manner in which a security guard oversaw
students being dropped off across the street from the school. (Id.). Principal Gaskell responded
that there were no safety issues with either, and she asked D.H. separately if she agreed with her
mother’s concerns, which enraged Hecht. (Id. at ¶J 11-12).
The following month, April 2016, Hecht claims that the security guard scolded her for
approaching the student drop-off area too quickly and for dropping off D.H. in a prohibited area,
despite the fact that other people did the same. (Id. at ¶ 14). According to the Complaint, Principal
Gaskell contacted the East Brunswick Police Department to report some harassing behavior
between Hecht and a security guard and, on April 14, 2016, two officers approached Hecht’s home
to discuss the matter; however, she did not answer the door. (Id. at

¶IJ

14-15). Thereafter, Hecht

spoke with an officer and explained the growing tension between her, D.H., and the security guard,
and filed a police report against him, based on things the security guard purportedly said. (Id. at ¶J
15-16). A week later, April 21, 2016, Hecht again emailed Principal Gaskell complaining about
the continuing issues she had with the security guard and threatened to report the events to the
newspaper unless her concerns were resolved. (Id. at ¶ 17). That same day, Principal Gaskell filed
a police report against her, presumably based on the ongoing conflicts between her and the guard.
(Id. at 18).

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On May 3, 2016, Hecht emailed Principal Gaskell to notify him that she intended to file a
complaint with the county superintendent; later that day, Principal Gaskell replied that he was
unaware of these ongoing issues with the security guard but would initiate an investigation. (Id. at

¶

19). According to Plaintiffs, these complaints should have already triggered an investigation for

Harassment, Intimidation, and Bullying (hereinafter “HIB”), pursuant N.J.S.A.
seq., based on the guard’s continued harassment of Plaintiffs. (Id. at

¶ 20).

§

18A:37-13, et

When no action was

taken, Hecht wrote to both the County and, later, the Board about Principal Gaskell’s
shortcomings, specifically his failure to initiate an HIB investigation. (Id. at

¶

21). The Board

responded, finding that Principal Gaskell had done nothing wrong. (Id. at ¶ 20).
In any event, on September 16, 2016, D.H. was involved in a fight when a large student
that she did not know attempted to punch her, but missed; D.H. then proceeded to punch and kick
him. (Id. at

¶ 22). Three days later, D.H. was informed that she would receive a one day in-school

suspension and a note of the incident would be placed in her permanent file, despite not being

found to violate HIB. (Id. at ¶ 23). Prior to this incident, D.H. was in good standing, being an honor
student with no previous discipline. (Id.). According to the Complaint, no one else was present in
the hallway during the incident and D.H. was only acting in self-defense. (Id. at

¶

24). Heeht

appealed the suspension immediately, and asked to review video surveillance of D.H.’s altercation.
(Id. at ¶ 25-26). A week later, Hecht requested copies of D.H.’s school records and, again, video
surveillance of the incident, pursuant the Family Educational Rights and Privacy Act, 20 U.S.C.

§

1232(g). (hereinafter “FERPA”). (Id. at ¶J 29-32). However, Hecht’s requests were ignored. (Id.).
In another email, dated September 28, 2016, Hecht continued to protest the Board’s disciplinary
decision and noted that in a comparable circumstance, wherein a student was involved in a fight
and violated HIB, the student received only two lunch detentions. (Id. at

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¶

32). The Board

responded that the district considered the matter closed and that D.H. would serve her in-school
suspension on October 5, 2016. (Id. at ¶ 33).
On December 6, 2016, a phone conference was held between Hecht, defense counsel, and
an administrative law judge (hereinafter “AU”). (Id. at

¶

37). During this hearing, Hecht again

requested a copy of the video surveillance. (Id.). However, Defendants responded that they did not
intend to present any student witnesses and contended that the video was not relevant to the case.
(Id.). On January 31, 2017, the AU directed Defendants to allow Hecht to review the surveillance
footage, which she did the following month. (Id. at

¶

38-39). On February 22, 2017, after

reviewing the video, the AU noted that an adult was present during the incident and wanted that
individual to testify; but, she never appeared. (Id. at ¶ 40).
Almost six months later, on May 30, 2017, an administrative hearing was held on Hecht’s
appeal of the Board’s disciplinary decision. (Id. at

¶ 43).

At this hearing, only Hecht testified on

her own behalf. (Motion to Dismiss, Exhibit D, AU Initial Decision, p.’7, ECF No. 5-4).’ She
argued that D.H. was only acting in self-defense and that the punishment imposed on D.H. was
made in retaliation for the complaint she filed against Principal Gaskell. (Id. at p. 3-4). Hecht also
contended that Defendants infringed on D.H.’s procedural due process rights, when they refused
to show Hecht the video surveillance. (Id.). Finally, Hecht claimed that Defendants refused to
inform her of any possible witnesses. (Id.). Defendants responded, stating that they followed the
necessary procedural requirements in issuing D.H.’s short-term suspension. (Id.). Moreover,
Defendants maintained that the discipline was appropriate, given the severity of D.H.’s conduct

“As a general matter, a district court ruling on a motion to dismiss may not consider matters
extraneous to the pleadings. However, an exception to the general rule is that a document
integral to or explicitly relied upon in the complaint may be considered without converting the
motion to dismiss into one for summary judgment.” In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997).
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and was consistent with the suspensions imposed in similar circumstances. (Id.). Defendants also
noted that the discipline could not be perceived as retaliatory, since Principal Gaskell did not
impose the suspension; rather, Defendant Russell Petronko, the Assistant Principal, issued the
suspension without consulting Principal Gaskell. (Id.). After hearing testimony from both parties,
the AU determined that, under the circumstances, the Board’s decision to suspend D.H. was
reasonable, since the undisputed facts demonstrated that the male student did not strike D.H., D.H.
struck the male student at least twice, and D.H. deserved to be punished. (Exhibit D, p. 6).
Thereafter, Hecht appealed the AU’s decision to the Commissioner of Education, again
contending that D.H.’s punishment was retaliatory because of the open complaint against Principal
Gaskell. (Motion to Dismiss, Exhibit E, Exceptions to Initial Decision, p. 3-4, ECF No. 5-4). In
her appeal, Hecht also argued that that Defendants violated their duty to preserve evidence. (Id. at
p. 4-13). The crux of her appeal focused on inconsistencies in Defendants Petronko and Gaskell’s
statements, concerning the number of individuals present during the altercation, since both
children said there was no one there. (Id.). Therefore, Hecht alleged that Defendants altered the
video to show students and a staff member present and used this doctored video to justify their
punishment. (Id. at p.5).
This being said, the Commissioner of Education reviewed the appeal and affirmed the
AU’s determination that the suspension was reasonable. (Motion to Dismiss, Commissioner of
Education Decision, Exhibit F, p. 2, ECF No. 5-4). The Commissioner of Education also found
“that the record does not reflect D.H.’s procedural due process rights were violated”, that “claims
that the video was altered are unsubstantiated,” and that “accusations of retaliation are without
merit”. (Id.).

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Presently, Plaintiffs, alleges that Defendants are liable under 42 U.S.C. § 1983 because they
retaliated against Hecht, who was exercising her right to free speech, by sending police officers to
harass her at various locations, issuing an overly severe punishment to her daughter, D.H., and
altering video evidence to justify the harsh discipline. (Id. at

¶ 52).

Further, Plaintiffs assert that

the Board breached their duty to train, supervise, and discipline employees for any wrongdoings.
(Id. atJ54).
As was presented before the Commissioner of Education, Plaintiffs also allege that
Defendants are liable under 42 U.S.C. §1983 for violating both Plaintiffs Hecht and D.H.’s
Fourteenth Amendment due process rights when Principal Gaskell, Defendant Margaret Haas, a
guidance counselor at the middle school, and Assistant Principal Petronko altered the video tapes
and created false witness statements to justify the suspension of D.H. (Id. at

¶

55). Again,

Plaintiff’s claim that the Board’s lack of training and supervision furthered the violation of their
constitutional rights. (Id. at ¶J 58, 64-66).
Legal Standard
On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court is required to accept as true all allegations in the Complaint and all
reasonable inferences that can be drawn therefrom, and to view them in the light most favorable
to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384
(3d Cir. 1994). “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.” Ashcrofl v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a court
will accept well-pleaded allegations as true for the purposes of the motion, it will not accept bald
assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast

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in the form of factual allegations. Iqbal, 556 U.S. at 678-79; see also Morse v. Lower Merion
School District, 132 F.3d 902, 906 (3d Cir. 1997). A complaint should be dismissed only if the
well-pleaded alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d
395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts
consistent with his or her allegations that will entitle him or her to relief, not whether that person
will ultimately prevail. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2001). The
pleader is required to ‘set forth sufficient information to outline the elements of his claim or to
permit inferences to be drawn that these elements exist.” Kost v. Kozakewicz, 1 F.3d 176, 183 (3d
Cir. 1993) (quoting 5A Wright & Miller, Fed. Practice & Procedure: Civil 2d

§

1357 at 340).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[mentj to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted). “Factual
allegations must be enough to raise a right to relief above the speculative level,
assumption that all the allegations in the complaint are true (even if doubtful in fact)

.

.

on the

.

“

Id.

Where, as here, Plaintiff is proceeding pro se, the Court should read Plaintiffs complaint
generously and hold it “to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted).
However, “a pro se plaintiff is not exempt from his burden ofproviding some affirmative evidence,
i.e. not just mere allegations, to establish a prima facie case, and to show that there is a genuine
dispute for trial.” Niblack v. Murray, No. 12-69 10, 2016 U.S. Dist. LEXIS 99325, at *7 (D.N.J.
July 29, 2016) (citing Barnett v. NJ. Transit Corp., 573 F. App’x 239, 243 (3d Cir. 2014)).
Discussion

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Relying on collateral estoppel, Defendants contend that Plaintiff’s claims are barred, since
the AU and the Commissioner of Education previously addressed and found that no facts
supported the issues before the Court. However, issues involving federal constitutional law are out
of administrative agencies’ purview, and for that reason, the Court finds that collateral estoppel
cannot apply.
The Third Circuit has set forth four factors for courts to consider in determining whether
collateral estoppel applies: “(1) the identical issue was previously adjudicated; (2) the issue was
actually litigated; (3) the previous determination was necessary to the decision; and (4) the party
being precluded from relitigating the issue was fully represented in the prior action.” Jean
Alexander Cosmetics, Inc. v. L ‘Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 2006) (quoting

Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 209 (3d Cir. 2001)). In addition, courts
must consider whether the prior adjudication was final and valid. Id. When agency decisions have
not been affirmed by a judicial forum, the Third Circuit has cautioned that only the “unreviewed
agency factfinding” is entitled to preclusive effect. Edmundson v. Borough of Kennett Square, 4
F.3d 186, 193 (3d Cir. 1993).
Plaintiffs argue that the issues of retaliation and video alteration were not actually litigated
during the AU proceeding. “An issue is ‘actually litigated’ when it ‘is properly raised, by the
pleadings or otherwise, and is submitted for determination, and is determined.” O’Leary v. Liberty
Mut’l. Ins. Inc., 923 F.2d 1062, 1066 (3d Cir. 1991) (quoting Restatement (Second) of Judgments
§27 cmt. d). “[Tihe litigant against whom issue preclusion is invoked must have had a full and fair
opportunity to litigate the issue in the previous tribunal.” Pittman v. LaFontaine, 756 F. Supp. 834,
841 (D.N.J. 1991) (citing In re Braen, 900 F.2d 621, 628 (3d Cir. 1990)). Here, the AU was tasked
with determining whether the school’s suspension was arbitrary, capricious, or unreasonable.

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Likewise, while the Commissioner of Education did acknowledge Plaintiffs’ concerns relating to
retaliation and video alteration, he, too, was limited to considering the reasonableness of Plaintiff
D.H. ‘s suspension.
Under N.J.S.A.

§

18A:6-9, the Commissioner of Education enjoys broad authority “to hear

and determine, without cost to the parties, all controversies and disputes arising under the school
laws.” “In cases ‘[w]here the controversy does not arise under the school laws, it is outside the
Commissioner’s jurisdiction even though it may pertain to school personnel.” Goode v. Camden
City Sch. Dist., No. 16-3936, 2017 U.S. Dist. LEXIS 79301, at *6 (D.N.J. May 24, 2017)
(quoting Bd. ofEduc. ofE. Brunswick Twp. v. Twp. Council ofE. Brunswick Twp., 223 A.2d 481,
485 (N.J. 1966)). Courts have held that Section 1983 claims fall outside the Commissioner’s
jurisdiction. See Hornstine v. Twp. ofMoorestown, 263 F. Supp. 2d 887, 900 (D.N.J. 2003); See
also Goode, 2017 U.S. Dist. LEXIS, at *6, Galbraith v. Lenape Reg ‘1 High Sch. Dist., 964 F. Supp.
889, 895 (D.N.J. 1997) (Title VII, NJLAD, and breach of contract claims do not “arise under the
school laws” for purposes of N.J.S.A.

§

1 8A:6-9). Additionally, the Third Circuit has held that

administrative agencies do not have the “expertise to issue binding pronouncements in the area of
federal constitutional law.” Edmundson, 4 F.3d at 193 (court declined to preclude issues that
pertained to a potential First Amendment violation). As such, because the issues previously
adjudicated before the Commissioner of Education, involving D.H.’s suspension, are different than
what is presently before the Court, mainly section 1983 claims, collateral estoppel is inapplicable.
Thus, Defendants’ Motion to Dismiss, based on collateral estoppel, is denied.

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ORDER
Having carefully reviewed and taken into consideration the submissions of the parties, as
well as the arguments and exhibits therein presented, and for good cause shown, and for all of the
foregoing reasons,
IT IS on this 23rd day of January, 2019,
ORDERED that Defendants’ Motion to Dismiss is denied.

PETER 0. SHERIDAN, U.S.D.J.

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