Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
KADETSKY v. EGG HARBOR TP. BD. OF EDUC.
January 20, 2000
MARK C. KADETSKY, PLAINTIFF,
EGG HARBOR TOWNSHIP BOARD OF EDUCATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Orlofsky, District Judge.
This employment law case presents this Court with the
opportunity to explore the expanding contours of a public
employee's First Amendment rights and the protection provided by
the New Jersey Constitution to an employee's reputation. In
addition, I must consider the employee's reputational interests
in the context of New Jersey's Conscientious Employee Protection
Act and the common law tort of defamation. Plaintiff, Mark C.
Kadetsky ("Kadetsky"), a tenured high school band director at Egg
Harbor Township High School, brought this action, pursuant to
42 U.S.C. § 1983,*fn1 alleging that the actions of the Egg Harbor
Township Board of Education ("the Board") and several of its
employees constituted retaliatory conduct in violation of
Kadetsky's First Amendment right of free speech and right to
petition as well as depriving him of due process of law under the
Fourteenth Amendment. Additionally, Kadetsky asserts pendent
state claims under the New Jersey Constitution, New Jersey's
Conscientious Employee Protection Act (CEPA) and common law
claims of defamation and invasion of privacy. Defendants move,
pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss
Kadetsky's Complaint for failure to state a claim upon which
relief can be granted. This Court has jurisdiction pursuant to
28 U.S.C. § 1343(a)*fn2 and 1367(a).*fn3 For the reasons set
forth below, I shall grant in part and deny in part the
Defendants' motion to dismiss.
The Complaint encompasses four groupings of pertinent facts.
First, Kadetsky alleges that in or around May, 1996, while
Defendant Ralph A. Ridolfino was the Assistant Principal of Egg
Harbor Township High School, Kadetsky reported him to the
then-Principal of the school for conduct in violation of school
policy. See id. at ¶ 26. Specifically, Kadetsky reported that
in Ridolfino's capacity as a chaperone on school band trips,
Ridolfino "had a bathtub full of beer and consumed alcoholic
beverages." Id. Following Kadetsky's report of the incident,
the school administration determined that Ridolfino would no
longer be permitted to serve as a chaperone on Kadetsky's band
trips. See id. Upon Ridolfino's 1997 appointment to the
position of Principal of the High School, Kadetsky alleges that
Ridolfino confronted him, stating that Ridolfino did not consider
Kadetsky to be a "team player and that he was going to fire
[Kadetsky]." Id. at ¶ 29. Kadetsky alleges that Ridolfino "made
it clear that this threat was a result of the decision reached by
the former Principal as a result of the complaints of
It is against this backdrop that Kadetsky's second major set of
allegations arises. According to the Complaint, in or around
January, 1998, Ridolfino and Levine began placing groundless
reprimand letters in Kadetsky's personnel file and deprived him
of his rights under the collective bargaining agreement to
contest the letters with the aid of union representation. See
Complaint at ¶¶ 13, 30E. On February 25, 1998, Kadetsky took an
"emergency personal day" to discuss the false letters of
reprimand with his union representative, only to receive another
negative letter from Ridolfino for insubordination. See id. at
¶ 14. Kadetsky alleges that around March 9, 1998, he filed a
formal grievance which requested that the negative memorandum be
removed from his personnel file for failure to follow the proper
procedures. See id. at ¶ 15. Furthermore, the Complaint alleges
that between March 9 and March 19, 1998, he notified the
Superintendent of Schools of the improper activities of Levine,
his direct supervisor. See id. at ¶ 16.
This exchange culminated in Kadetsky's third wave of
allegations. According to the Complaint, on March 24, 1998,
Ridolfino told Kadetsky that he had received a letter ("the
Letter") from the parents of a male band student which stated
that Kadetsky had "wined and dined the student and had sexual
relations with him on a band trip." Complaint at ¶ 17. Kadetsky
alleges that in the meeting, Ridolfino threatened Kadetsky that
if the band director discussed the letter, "the information might
make it into the newspapers." Id. According to the Complaint,
Ridolfino advised Kadetsky that "he would keep the information
under wraps if [Kadetsky] would agree to resign" at the end of
the 1997-98 school year. Id. Kadetsky alleges that Ridolfino
himself had approached the parents of the band student, "misled
them into thinking that [Kadetsky] had done something improper
and coached them in preparation of the letter." Id. at ¶ 19.
Ridolfino "carr[ied] out his threat of public humiliation" by
advising administration officials of the alleged letter. See
id. at ¶ 21.
Instead of remaining silent about the alleged contents of the
Letter, Kadetsky spoke to other teachers and his union
representative about the accusations and ignored Ridolfino's
further requests to "cease and desist from making all
conversations or comments with other teachers concerning his
situation and placing the Administration in a bad light."
Complaint at ¶ 17. In April, 1998, Kadetsky was informed that he
would not receive a contract of employment for the 1998-99 school
year. See id. at ¶¶ 18, 30G.
Kadetsky alleges that his union representative, after securing
a copy of the Letter, discovered that the document contained none
of the alleged charges of sexual misconduct. See Complaint at ¶
22. Kadetsky sought and was awarded a hearing before the Egg
Harbor Board of Education regarding the issues surrounding
Kadetsky's tenure bid, including the conduct of Ridolfino and
Levine. See id. at ¶ 32. As a result of a Board investigation,
Kadetsky's personnel file was purged, Levine was removed from her
position as Kadetsky's supervisor and appointed to a basic skills
and elementary school music position, and Kadetsky was granted
tenure after receiving a contract of employment for the 1998-99
school year. See id. at ¶¶ 33.
In the fourth and final series of allegations embodied in the
Complaint, Kadetsky alleges that after his success with the Board
of Education, Ridolfino and Levine continued to engage in
harassing conduct. See id. at 34. For example, the Complaint
alleges that Ridolfino allegedly interfered with Kadetsky's bid
for the position of High School Jazz Band Director, Kadetsky's
attempt to hold a band competition at the school's football
facilities, and the orchestra's performance trip to Disneyworld.
See id. at ¶¶ 34-35, 38. Additionally, Ridolfino and Levine
allegedly reduced the course classification of Kadetsky's music
classes from "Honors" and "College Prep" to the standard level.
See id. at 37. The Complaint does allege, however, that
Kadetsky obtained the Jazz Band Director position and that the
classes were restored to their original designations. See id. at
¶¶ 34, 37. Moreover, the Complaint does not indicate that there
were any disruptions to the band competition. See id. at ¶ 38.
Kadetsky also alleges that Minnichbach and Levine defamed him
through statements made to his new supervisor, Jay Kearns.
According to the Complaint, Minnichbach "informed the Supervisor
that if he (Minnichbach) had his way on the Board of Education,
[Kadetsky] would not be working with the children of the Township
because [Kadetsky] was unfit." Complaint at ¶ 36. Levine is
alleged to have added that Kadetsky "would let `any scum and
derelict into the Band to boost his power base.'" Id. Levine is
also alleged to have falsely accused Kadetsky of mishandling
marching band funds and illegally requiring all students to sign
up for marching band. See id. at ¶ 38.
II. LEGAL STANDARD GOVERNING A MOTION TO DISMISS
"In considering a motion to dismiss under Rule 12(b)(6), the
court may dismiss a complaint if it appears certain that the
plaintiff cannot prove any set of facts in support of its claims
which would entitle it to relief." Mruz v. Caring, Inc.,
39 F. Supp.2d 495, 500 (D.N.J. 1999) (Orlofsky, J.) (citing Ransom
v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988)). "While all
well-pled allegations are accepted as true and reasonable
inferences are drawn in the plaintiff's favor, the Court may
dismiss a complaint where, under any set of facts which could be
shown to be consistent with a complaint, the plaintiff is not
entitled to relief." Id. (citing Gomez v. Toledo,
446 U.S. 635, 636, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Schrob v.
Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v.
Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990)); see also
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). Finally, "Rule 12(b)(6) authorizes a court to dismiss a
claim on the basis of a dispositive issue of law." Neitzke v.
Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989) (noting that this procedure "streamlines litigation by
dispensing with needless discovery and factfinding").
A. Retaliation Claims Pursuant to 42 U.S.C. § 1983
Kadetsky alleges that the Defendants retaliated against him for
exercising his speech and petition rights under the First
Amendment to the United States Constitution, in violation of
42 U.S.C. § 1983. Specifically, Kadetsky contends that in
retaliation for filing a grievance with his union and sending a
letter to the Superintendent, Ridolfino fabricated the Letter
that charged Kadetsky with sexual misconduct. See Pl.'s Br. at
18. Additionally, after Kadetsky spoke out to his colleagues and
union representative against the Letter's false allegations and
Ridolfino's threats, Kadetsky contends that the Defendants
retaliated with a pattern of harassing conduct. See id. at 19.
In support of their motion to dismiss the Complaint for failure
to state a claim upon which relief can be granted, the Defendants
argue first that Kadetsky's speech was not protected, and second,
that Kadetsky, a tenured teacher, suffered no adverse employment
action. See Def.'s Br. at 23. For the reasons set forth below,
I find that Kadetsky has sufficiently stated a claim under both
speech and petition prongs of his First Amendment retaliation
1. General Principles of Kadetsky's Retaliation Claims
To assert a claim successfully under 42 U.S.C. § 1983, a
plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States and must show that the
alleged deprivation was committed by a person "acting under color
of State law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250,
101 L.Ed.2d 40 (1988); Suarez v. Camden County Bd. of Chosen
Freeholders, 972 F. Supp. 269, 274 (D.N.J.1997) (Irenas, J.).
Because the Defendants have conceded, for purposes of this
motion, that they were "acting under color of State law," this
Court must determine whether Kadetsky has sufficiently alleged
the violation of his First Amendment rights.
"A public employee's claim of retaliation for engaging in a
protected activity is analyzed under a three-step process."
Carlino v. Gloucester City High School, 57 F. Supp.2d 1, 31
(D.N.J.1999) (Orlofsky, J.) (quoting Green v. Philadelphia
Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997)). This
well-settled tripartite "process" involves the following:
A plaintiff must first demonstrate the activity in
question was protected. Second, the plaintiff must
show the protected activity was a substantial or
motivating factor in the alleged retaliatory action.
. . . Finally, defendants may defeat plaintiff's
claim by demonstrating "that the same action would
have been taken even in the absence of the protected
Id. (citation omitted) (quoting Swineford v. Snyder County,
15 F.3d 1258, 1269 (3d Cir. 1994)); see also Anderson v. Davila,
125 F.3d 148, 161 (3d Cir. 1997).
2. First Amendment Retaliation: Speech as a Matter of Public
In Count I of the Complaint, Kadetsky alleges that he was
wrongfully retaliated against for filing a grievance and for
engaging in speech, both of which he contends are protected under
the First Amendment to the United States Constitution. See
Pl.'s Br. at 18. In support of their motion to dismiss, the
Defendants first argue that the grievance was not "protected
speech." See Def.'s Br. at 23. Second, the Defendants contend
that the statements made by Kadetsky to his teaching colleagues
and to his union representative were merely of personal interest,
not on a "matter of public concern," and therefore outside the
scope of First Amendment protection. See Def.'s Br. at 23;
Def.'s Reply at 6. I will address each of these arguments in
The full extent of the Defendants' argument against Kadetsky's
petition claim is that he was not "engaged in protected speech
under the First Amendment of . . . the United States . . .
Constitution." Def.'s Br. at 23. Simply stated, this rather vague
contention, however interpreted, is wholly precluded by the law
of this Circuit.
In San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994),
over a vociferous dissent by Chief Judge Becker, the Third
Circuit held that a public employee is protected under the
Petition Clause of the First Amendment to the United States
Constitution for filing a non-frivolous petition relating solely
to a matter of private concern. See id. at 434-43. The Court
considered lawsuits and grievances filed pursuant to a collective
bargaining agreement as deserving of such First Amendment
Constitutional protection. See id. at 439, n. 18, 442.
In his Complaint, Kadetsky alleges that on March 9, 1998, he
"filed a formal grievance through his [union]." Complaint at ¶
15. In light of San Filippo, this Court is perplexed by this
ambiguous contention made on behalf of the Defendants. If, by
their assertion that Kadetsky's petition is not "protected," the
Defendants argue that
the grievance solely related to a matter of private concern,
their argument is foreclosed by San Filippo, 30 F.3d at 434-43.
If instead the Defendants contend that the petition was
frivolous, their contention is foreclosed by the Complaint's
allegations that the negative memorandum, which was the substance
of the grievance, was purged from Kadetsky's personnel file
following the Board of Education's investigation of Kadetsky's
case. See Complaint at 33. Accordingly, I find no ...