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January 20, 2000


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 facts of this case are many and the following summary represents only what this Court considers relevant to the disposition of the pending motion. Kadetsky began his teaching career as the Egg Harbor Township High School band director during the 1995-96 school year and continued to receive contracts for each successive year until 1998. See Complaint at ¶¶ 10, 12. According to New Jersey law, Kadetsky would become a tenured teacher if employed by the Board for the 1998-99 school year. See N.J.S.A. 18A:28-5; see also Complaint at ¶ 11. Kadetsky contends that beginning in January, 1998, the Principal of Egg Harbor Township High School, Ralph A. Ridolfino ("Ridolfino"), and Kadetsky's immediate supervisor, Music Supervisor Dr. Jean Levine ("Levine"), set out to create a false record of insubordination and poor work performance to prevent Kadetsky from obtaining tenure in the Egg Harbor Township School District. See Complaint at ¶ 12.

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 [Kadetsky]." Id.

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.

Kadetsky also alleges that Egg Harbor Township Board of Education member Minnichbach repeated the letter's accusations to other band parents, advising them "that they should not do anything to support [Kadetsky's] efforts to keep his job." Complaint at ¶ 23. Furthermore, Minnichbach is alleged that have told parents that Kadetsky falsified his resume and was improperly using Egg Harbor computer equipment to develop band shows for other schools for his personal financial gain. See id.

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.

From the outset, this Court has struggled to interpret the myriad of possible claims raised by the lengthy Complaint. In his brief, Kadetsky contends that the Complaint raises the following claims: (1) First Amendment retaliation pursuant to 42 U.S.C. § 1983 (Count I); (2) deprivation of his liberty without due process in violation of the Fourteenth Amendment (Count I) and the New Jersey Constitution (Count V);*fn4 (3) a violation of New Jersey's Conscientious Employee Protection Act (CEPA) (Count II); (4) common law defamation (Count III); and (5) common law invasion of privacy (Count IV). Considering that the Complaint is hardly a model of clarity, this Court shall adopt Kadetsky's interpretation of the Complaint and shall treat all other possible claims arising out of the Complaint as waived.*fn5


"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 the speech and petition prongs of his First Amendment retaliation claim.

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 activity."

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 Concern

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 turn.

a. The Right to Petition

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 ...

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