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Allan v. Board of Trustees

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


March 7, 2000

RUDY ALLAN, PLAINTIFF,
v.
BOARD OF TRUSTEES, ATLANTIC COMMUNITY COLLEGE, JOSEPH ROSSI, INDIVIDUALLY AND AS PERSONNEL DIRECTOR, ATLANTIC COMMUNITY COLLEGE AND JOHN DOE, A-Z,(FICTITIOUS NAME) DEFENDANTS.

The opinion of the court was delivered by: Simandle, District Judge

HONORABLE JEROME B. SIMANDLE

OPINION

Plaintiff filed the instant lawsuit claiming that 1) the defendants improperly denied him military credits under N.J.S.A. 18A:29-11 and 2) the defendants unlawfully retaliated against, and harassed, the plaintiff because of his petition for military credits and his affiliation with the New Jersey Education Association. The plaintiff further contends that the above actions taken by the defendants violated his rights under the United States Constitution and 42 U.S.C. §1983. Since the plaintiff's Complaint asserts both federal and state causes of action, the defendants removed the case to this Court pursuant to 28 U.S.C. §1441. Now before this Court is the defendants' motion for summary judgment on all claims asserted by the plaintiff. For the reasons outlined below, the defendants' motion for summary judgment is hereby granted with respect to plaintiff's federal causes of action. The Court holds that defendant Board of Trustees of Atlantic Community College cannot be held liable pursuant to §1983 under a theory of respondeat superior for alleged discrimination on the basis of union activity. The Court further holds that, because there is no evidence that defendant Joseph Rossi himself engaged in discrimination against the plaintiff on the basis of his union affiliation, he too cannot be held liable pursuant to §1983. Finally, this Court holds that plaintiff's claim that he was denied military credits failed to state a federal cause of action under §1983, because the denial of such credits was not "intentional, arbitrary, and irrational" for purposes of equal protection analysis under the Fourteenth Amendment. Therefore, this Court dismisses all of plaintiff's federal claims against the defendants. Because this court has dismissed all claims over which it has original jurisdiction, the court hereby declines to exercise supplemental jurisdiction over the plaintiff's remaining state law claims. See 28 U.S.C. §1367(c)(3). The case will therefore be remanded to the Superior Court of New Jersey for further proceedings upon plaintiff's remaining claims arising under the law of New Jersey pursuant to 28 U.S.C. §1447(c).

I. BACKGROUND

A. In General

The plaintiff, Rudy Allan, graduated from James Monroe High School in 1961. *fn1 After attending Bronx Community College for half of a year, the plaintiff served in the United States Air Force from 1964 to 1968. He was honorably discharged on July 23, 1968. According to the State of New Jersey Department of the Treasury, the plaintiff is qualified for veteran's status.

After serving in the Air Force, plaintiff moved to Las Vegas, Nevada in 1968. It was at this time that plaintiff first applied for, and received, his casino license. Upon his licensure, plaintiff worked at various casinos in Nevada until he again moved back to New Jersey in 1978.

After returning to New Jersey, plaintiff continued to work in different positions at several casinos. In addition to his employment at casinos, the plaintiff also taught gaming classes part time. In March of 1993, he was hired as a Gaming Instructor by the Atlantic Community College ("ACC"). The Plaintiff intermittently taught gaming classes at ACC's Casino Career Institute ("CCI") until early October of 1997. It is the plaintiff's career as a gaming instructor at ACC that is the subject of this lawsuit.

B. Plaintiff's Claim for Military Credits

On July 21, 1994, the plaintiff requested that ACC give him military credit pursuant to N.J.S.A. 18A:29-11. The New Jersey statute allows a veteran to receive the equivalent years of employment credit corresponding to his or her length of service in the military. The statute provides, in pertinent part:

Every member who, after July 1, 1940, has served or hereafter shall serve, in the active military or naval service of the United States or of this state . . . shall be entitled to receive equivalent years of employment credit for such service as if he had been employed for the same period of time in some publicly owned or operated college, school or institution of learning in this or any other state or territory in the United States, except for the period of such service shall not be credited toward more than four employment or adjustment increments. N.J.S.A. 18:29-11.

The plaintiff's request for military credits was denied by the college. According to the college, the benefits were denied because they are permitted only for faculty and/or administrators. (Certification of Joseph Rossi ¶ 14.) Since instructors at CCI are not faculty or administrators, the college said, the plaintiff was not entitled to the military credits. (Id.)

The plaintiff, however, claims that several employees of Atlantic Community College who were not classified as either faculty or administrators received military credit. (Pl. Br. Ex. J.) In addition, the plaintiff asserts that at least three instructors in the Casino Career Institute received military credit. (Pl. Dep. at 110:8-9.) The defendants deny these assertions. (Certification of Joseph Rossi ¶ 16.)

On November 4, 1996, the plaintiff filed a petition for appeal of the college's decision to deny him military credit. (Pl. Dep. at 112:5; Pl. Br. Ex. D.) The plaintiff testified in his deposition that the college failed to address his appeal. (Pl. Dep. at 114:1-4.) The defendants claim, however, that the plaintiff never officially filed the appeal, and instead filed this lawsuit. (Pl. Dep. at 114:5-19.)

C. Plaintiff's Claims of Retaliation and Harassment

1. Union Affiliation

In March of 1994, several months before he applied for military credit, the plaintiff joined the Support Staff Association of Atlantic Community College ("SSAACC"). The SSAACC is affiliated with the New Jersey Education Association ("NJEA"), which is the collective bargaining agent for instructors and other support staff at the college. The plaintiff claims that, shortly after joining the union, the defendants began a pattern of harassment toward the plaintiff that was clearly designed to retaliate against him for his affiliation with NJEA. (Pl. Dep. at 23:5-8.) The plaintiff contends that these adverse employment actions eventually led to the end of his employment with the Atlantic Community College. (Pl. Dep. at 23:9-13.)

The plaintiff's first allegation of retaliation by the defendants for his union affiliation is that he was threatened with termination. (Pl. Dep. at 76:12-22.) As evidence of this type of retaliation, the plaintiff points to an event involving James Wortman, the college's resident director and plaintiff's superior. (Id.) Plaintiff claims that when Mr. Wortman heard the plaintiff discussing the NJEA with two other employees, he threatened to fire the plaintiff if he heard any more "union talk." (Pl. Dep. at 82:7-8.) The plaintiff contends that the two co-workers who were in attendance during this event heard Mr. Wortman make the threat. *fn2 (Pl. Dep. at 82:11.)

Second, the plaintiff claims that Mr. Wortman changed the plaintiff's normal teaching schedule to give him undesirable split classes because the plaintiff was a union member. (Pl. Dep. at 87:13-18.) As a result of these split classes, plaintiff was forced to teach one class in the morning, and one class in the evening. (Id.) The plaintiff claims that the split class schedule required him to have a six-hour interruption in his working day. (Id.) Further, the plaintiff asserts that his schedule was only returned to normal the following semester after he complained to his union representative. (Pl. Dep. at 90:2-3.)

Third, the plaintiff claims that he was excluded from teaching certain classes because of his union affiliation. (Pl. Dep. at 134:1-6.) For instance, in September of 1995, the college offered a new class in Pai-Gow Tiles. *fn3 The plaintiff alleges that Mr. Wortman refused to allow him to teach the class while permitting non-union employees to teach it instead. (Id.) Again, the plaintiff contends that he was only allowed to teach the class after filing a complaint with his union representative the following semester. (Pl. Dep. at 137:17-25.)

2. The Veteran's Benefits Application

The plaintiff also claims that he was retaliated against and harassed by the defendants because of his petition for military credits. (Pl. Dep. at 23:18-22.) Approximately one month after his November 1996 appeal of the denial of benefits, the plaintiff contends that he was verbally harassed by a second supervisor, Mr. Ray Perry. (Pl. Dep. at 122:16-22.) Allegedly, Mr. Perry and Mr. Wortman were friends from their days as co-workers at the Trump Castle Casino Hotel in Atlantic City, New Jersey. (Pl. Dep. at 157:24-25.) In this specific allegation, the plaintiff alleges that Mr. Perry took the side of a student in a classroom dispute in retaliation for the plaintiff's petition for military credit. (Pl. Dep. at 157:3-5.) According to the plaintiff's written record of the incident, Mr. Perry told plaintiff that he was not putting up with plaintiff's "bull----," and that he "didn't know what harassment [was]." (Pl. Br. Ex. F.)

Stemming from this incident with Mr. Perry, the plaintiff also claims that the defendants unjustly accused him of falsifying his employment application. (Pl. Dep. at 162:16-19.) The plaintiff contends that Mr. Perry told Ms. Cynthia James, the director of the Casino Career Institute, that he had worked with the plaintiff at Trump Castle, and that the plaintiff never worked as a Trump Castle casino floorman as stated on his application. (Certification of Cynthia James ¶ 2.) As a result of Mr. Perry's comments, the plaintiff claims that Ms. James began an extensive background check into the representations made by the plaintiff in his original employment application. (Id. at ¶ 3.) After conducting the investigation, college representatives claimed to have discovered inconsistencies that led them to believe that plaintiff did in fact falsify information on his application. (Id. at ¶ 4.)

Ms. James subsequently advised Joseph Rossi, the personnel director of ACC and the individual defendant in this case, of the alleged misrepresentations in the plaintiff's employment application. (Id. at ¶ 5.) Mr. Rossi then scheduled an October 10, 1997 meeting with the plaintiff and a union representative to discuss the discrepancies. (Pl. Dep. at 163:8-11.) At the meeting, the plaintiff was advised of the specific discrepancies and was asked to sign an authorization which would allow the college to secure additional information from his prior employers. (Certification of Joseph Rossi ¶ 12.) It is at this point where a disagreement occurs between the parties regarding when and how the plaintiff's relationship with the college ended.

3. Resignation, Discharge, or Constructive Discharge

a. Plaintiff's Story

At the October 10, 1997 meeting, the plaintiff claims that Mr. Rossi told him that the college was going to terminate his employment for falsifying his employment application, unless he resigned. (Pl. Dep. at 165:13-15.) After receiving the ultimatum from Mr. Rossi, the plaintiff left the meeting in order to discuss his options with his union representative. (Pl. Dep. at 168:14-17.) According to the plaintiff, his union representative advised him not to resign because they could prove that he was being harassed, and retaliated against, because of his union affiliation. (Pl. Dep. at 168:24-25; 169:1-4.) After this discussion, the plaintiff re-entered the meeting with Mr. Rossi and tendered his resignation anyway, effective that day. (Pl. Dep. at 169:19-23.) The plaintiff contends that he resigned under duress, because he was threatened with termination. (Id.)

Shortly after the meeting, the plaintiff received a letter from the college, dated October 10, 1997. (Pl. Br. Ex. L.) The letter informed the plaintiff that his employment was terminated, retroactive to October 9, 1997. (Id.) Therefore, there is some confusion and disagreement over whether plaintiff was discharged, constructively discharged because he was asked to resign under the threat of termination, or if he resigned voluntarily.

b. The Defendants' Story

The defendants, on the other hand, paint a very different picture of the relationship's end. The defendants contend that the plaintiff was discharged for cause. First, the defendants contend that Mr. Allan was discharged because the student evaluations of his teaching abilities were less than favorable. (Certification of Joseph Rossi ¶ 10.) Second, according to the defendants and uncontested by the plaintiff, the college received several complaints regarding the plaintiff's appearance during class. (Id.) The complainants suspected that the plaintiff may have been drinking alcohol prior to class. (Id.) Mr. Rossi informed the plaintiff by letter on at least three occasions, and through telephone messages, that students and employees had come forward stating that plaintiff's breath smelled of alcohol during working hours. (Id.) At that time, the plaintiff denied these allegations by claiming that he often took cough medicine and used mouthwash during the day. (Id. at ¶ 11.)

Third, the defendants assert that the plaintiff was discharged because he falsified his employment application. (Id. at ¶ 12.) Specifically, the defendants claim that the plaintiff lied about the positions he held while employed at several casinos. (Id.) Plaintiff's employment application (Def. Br. Ex. F) was believed to contain at least two misrepresentations about past relevant work experience. First, plaintiff indicated that he worked at Trump Castle's predecessor casino as a floor man, while Trump's employment records (Id. Ex. G) indicated that he was only a dealer. Second, plaintiff indicated that he worked as a pit boss at Tropicana, which was not possible since he had not received his key license (a prerequisite for a pit boss position) from the Casino Control Commission until after he left Tropicana. (Id. Ex. H.)(Plaintiff denies that these statements were misrepresentations, and presents evidence that his actual duties were different from his titled positions at both casinos.)

The defendants contend that the college notified the plaintiff of the misrepresentations, and scheduled a meeting with the plaintiff and his union representative to discuss the matter. (Id.) At that meeting, the plaintiff resigned. (Id.) The defendants deny that the plaintiff was threatened with termination, or that he resigned under duress. Instead, the defendants contend that he resigned voluntarily.

II. PROCEDURAL BACKGROUND

Plaintiff Rudy Allan filed the instant Complaint in the Superior Court of New Jersey, Atlantic County on August 6, 1998. In his Complaint, the plaintiff seeks damages from the defendants on two counts. In Count I, the plaintiff claims that the defendants denied his petition for military credits in violation of N.J.S.A. 18A:29-11, the New Jersey Constitution, the Fourteenth Amendment of the United States Constitution, and 42 U.S.C. §1983. In Count II, the plaintiff claims that the defendants harassed and retaliated against him because he filed the petition for military credits, and because he was affiliated with the active employment union at the college. The plaintiff claims that these acts were also in violation of the New Jersey Constitution, New Jersey statutory and common law, the First and Fourteenth Amendments of the United States Constitution, and 42 U.S.C. §1983.

On September 4, 1998, the defendants removed the case to federal court pursuant to 28 U.S.C. §1441, on the basis of this Court's federal question jurisdiction outlined in 28 U.S.C. §1331. Shortly thereafter, on September 25, 1998, the defendants filed an Answer denying all of the material allegations in the Complaint.

On July 27, 1999, the defendants filed the instant motion for summary judgment in this case. First, the defendants contend that the plaintiff is not entitled to military credits as a matter of law under N.J.S.A. 18A:29-11. Second, the defendants claim that there is no causal link between the alleged adverse employment decisions and the plaintiff's union affiliation or the denial of military credits. Third, the defendants contend that a claim cannot be asserted under 42 U.S.C. §1983 against either ACC or Mr. Rossi as a matter of law. Lastly, the defendants assert that plaintiff's claim for punitive damages must also fail as a matter of law.

III. DISCUSSION

A. Summary Judgment Standard

The standard for granting summary judgment is a stringent one. A court may, however, grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Liberty Lobby, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").

The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However,

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial. Celotex, 477 U.S. at 322-323. In such situations, "the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Id. at 325; Brewer, 72 F.3d at 329-330 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").

The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed. R. Civ. P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50.

B. 42 U.S.C. §1983

1. The Elements

To establish a valid claim under §1983, a claimant must show: 1) that the conduct complained of was committed by a person acting under color of state law, and 2) that the conduct deprived a person of rights, privileges, or immunities protected by the Constitution or the laws of the United States. Robb v. City of Philadelphia, 733 F.2d 286, 290-91 (3d Cir. 1984). The Supreme Court has long since decided that, in addition to individuals, municipalities and other local government units are included among those "persons" to whom §1983 applies. Monell v. Department of Social Servs. of the City of N.Y., 436 U.S. 658, 690 (1978). Therefore, government units may be sued directly under §1983 for monetary, declaratory, or injunctive relief where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Id. In addition, however, units of the government may be sued for constitutional deprivations by governmental "customs," even though the custom did not yet receive formal approval through the body's official decision-making channels. Id. at 690-91.

Although the Monell Court extended the reach of §1983 to include local governing bodies, the Court fell short of holding that those units could automatically be held liable solely because a tort was committed by a person whom they employed. Id. at 691. Instead, the Court found that the language of the statute could not be read to impose this type of vicarious liability. Id. at 692. Hence, the Court specifically held that a municipality could not be held liable under §1983 on a respondeat superior theory. *fn4 Id.

With this law in mind, the court now turns to the plaintiff's substantive claims.

2. §1983 Based on the Denial of Military Credits

In Count I of his Complaint, the plaintiff alleges that the defendants wrongfully denied his petition for military credits pursuant to N.J.S.A. 18:29-11. (Def. Br. Ex. A.) Plaintiff further contends, in both Counts I and II, that because the defendants were acting under color of state law, and because they violated his federal constitutional rights, the denial of military credits entitles him to relief under 42 U.S.C. §1983. (Id.) Because the plaintiff has failed to put forth any evidence that his federal constitutional rights were violated with respect to his petition for military credits, his §1983 claims under Count I and II of this complaint must be dismissed.

The plaintiff's petition for military credit is based on N.J.S.A. 18A:29-11, which was enacted by the State of New Jersey. A violation of that statute does not itself create a federal cause of action. Nowhere in his papers does the plaintiff adequately set forth a constitutional right deprived by the defendants in connection with his petition for military credits. Instead, throughout his argument relating to the denial of military credits, the plaintiff vaguely refers to the fact that the defendants violated his Fourteenth Amendment rights outlined in the United States Constitution. The plaintiff, however, has failed to put forth any evidence showing that he was denied procedural or substantive due process with respect to his military credits application. Moreover, the plaintiff has not come forward with any evidence that establishes a basis for this court to apply a type of heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Although plaintiff has come forth with evidence that some other non-faculty instructors were given military credit, he does not come forth with any evidence that this disparate treatment resulted from any class-based animus which triggers heightened scrutiny. *fn5

Therefore, although nowhere articulated in his Complaint or brief, he may be asserting that he was denied equal protection because another non-faculty instructor received military credit while he did not. If he is alleging membership in a "class of one" for purposes of equal protection, he must prove that his treatment was intentional, irrational, and wholly arbitrary. Village of Willowbrook v. Olech, U.S. , 68 U.S.L.W. 4157 (February 23, 2000). Under the circumstances of this case, plaintiff cannot meet this burden. The rationality of the decision to deny his application for military credits is manifest from the operation of the statutory and regulatory scheme upon which the military credits system is based in New Jersey law. For purposes of equal protection analysis, a decision need not be perfect or even correct in order to be rational and non-arbitrary, and such a decision is thus subjected to the lowest level of equal protection analysis. Here, even if the Court accepts plaintiff's hearsay regarding the granting of military credits to non-faculty members, which defendants deny (see Joseph Rossi Aff. ¶ 16), it is plain that defendants' decision to deny military credits to plaintiff was rational given the manner in which N.J.S.A. 18:29-11 has been applied in educational settings by the courts.

There is no case law suggesting that a person in plaintiff's position, as a non-certified, non-degreed instructor, is entitled to the award of military credit. Plaintiff is a high school graduate who received no college degree. (Pl. Dep. at 28, Ex. K to Def. Br.) He therefore also holds no teaching certificate. A teaching certificate, or its equivalent, is required under N.J.S.A. 18A:29-11 to trigger entitlement to military credit. Camden County Vocational Technical Ass'n v. Board of Education, 207 N.J. Super. 23, 26 (App. Div. 1986)(teachers holding emergency teaching certificates when hired become eligible for military service credits upon obtaining standard teaching certificate); Bassinski v. Board of Trustees of Union College, 97 N.J.A.R. 2d (Hud.) 2 (1996)(a "member" of education institution under 18A:29-11 may include a counselor with teaching duties if counselor holds a certificate appropriate to his office). Moreover, plaintiff's union affiliation, through the SSAACC section of the NJEA, denotes membership on the college staff rather than faculty, since the SSAACC agreement effective July 1, 1996 through June 30, 1999 denotes that such staff includes non-credit instructional personnel. (Def. Br. at Ex. N.) Finally, Mr. Rossi certified that instructors in the Culinary Department of ACC's Culinary Institute, through their union, also previously raised the issue of whether they were entitled to military credits. (Rossi Aff. ¶ 15.) That case was arbitrated before the Public Employment Relations Commission ("PERC"), and it was determined that because instructors were not faculty or administrators, they consequently were not entitled to such benefits. (Id.) In the present case, no reasonable factfinder could conclude that it was irrational or arbitrary for defendants to apply the same logic of the statute and precedents to deny veterans credits to Mr. Allan. Accordingly, as a matter of law, this decision easily passes muster under the Equal Protection Clause as not "intentional, arbitrary, and irrational."

Where, as in the present case, plaintiff does not raise a colorable claim of violation of due process or equal protection rights, 42 U.S.C. §1983 will not support this cause of action. Therefore, to the extent plaintiff's §1983 claim is based on the denial of his petition for military credits, the defendants' motion for summary judgment is granted and that claim is dismissed. *fn6 The Court expresses no view upon the merits of plaintiff's claim that denial of military credits violated his rights under the statutes, common law, and constitution of New Jersey, other than determining above that this decision was not arbitrary and irrational for purposes of Equal Protection analysis under the Fourteenth Amendment.

3. §1983 Based on Retaliation and Harassment Because of Plaintiff's Union Affiliation

In Count II of his Complaint, the plaintiff alleges that both ACC and Mr. Rossi unlawfully retaliated against and harassed him because of his union affiliation. (Def. Br. Ex. A.) Plaintiff further contends that because the defendants were acting under color of state law, and because the retaliation and harassment violated his First and Fourteenth Amendment rights, he is therefore entitled to §1983 relief. (Id.) As discussed below, there is no evidence that ACC employees acted pursuant to a custom or policy of ACC in allegedly discriminating against the plaintiff on the basis of his union affiliation, and thus ACC cannot be held liable. Further, to the extent that there may be evidence that some ACC employees threatened to discriminate against plaintiff on the basis of his union activity, those actions were not taken by defendant Rossi, and therefore there is no basis for holding him liable under the United States Constitution, federal statutes, or §1983. Because this Court holds that there is no basis for holding either defendant liable, this Court need not address defendants' other arguments as to why summary judgment should be granted. Also, because this Court is granting summary judgment to the defendants on all claims over which this Court has original jurisdiction, this Court declines to exercise supplemental jurisdiction over plaintiff's state law claims. See 28 U.S.C. § 1367(c)(3).

a. Atlantic Community College

Based on the Supreme Court's decision in Monell, the plaintiff cannot assert a valid §1983 claim against the Atlantic Community College as a municipality. As discussed above, although the Monell court extended the reach of §1983 to include municipalities, the Court fell short of holding that those units could automatically be held liable solely because a tort was committed by a person whom they employed. Monell, 436 U.S. at 690. Instead, a §1983 claim against a local governing unit may only lie if it is alleged that the state actor violated a constitutional right by implementing or executing a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Id.

Here, the plaintiff failed to present such evidence. Even if this court were to agree that the plaintiff's constitutional rights were violated by employees of the college, a point which will be discussed below, the plaintiff has failed to show that these state actors were implementing or executing a policy statement, ordinance, regulation, or decision officially adopted by the school's officers. Instead, the plaintiff makes several vague allegations that his constitutional rights were violated by different individuals employed by the college.

Mr. Allan contends that Mr. Wortman threatened to fire him if he heard any more union talk. (Pl. Dep. at 82:7-8.) In addition, the plaintiff asserts that he was given a split schedule, unjustly accused of falsifying information on his employment application, and was excluded from teaching certain classes because of his union affiliation. (Pl. Dep. at 87:13-18; 162:16-19; 134:1-6.) While it is possible that valid §1983 actions could be asserted against the individuals who perpetrated these alleged wrongdoings, the Monell court specifically held a local governing body could not be held liable under §1983 on a respondeat superior theory. 436 U.S. 658, 692.

In both his Complaint and brief, the plaintiff fails to even mention whether the officers at Atlantic Community College set forth certain policies or decisions that led to the violation of plaintiff's constitutional rights. Such a failure is fatal to the prospect of asserting a valid §1983 claim against a municipality or local entity under the reasoning in Monell. Therefore, to the extent that the plaintiff asserts a §1983 claim against ACC for harassment and retaliation, the defendants' motion for summary judgment is granted and that claim is dismissed.

b. Joseph Rossi

Also in Count II of his Complaint, the plaintiff sets forth a §1983 claim against Joseph Rossi that contends the defendant violated his constitutional rights by retaliating against him because of his union affiliation. (Def. Br. Ex. A.) Specifically, the plaintiff asserts that Mr. Rossi took part in an unjust investigation into the plaintiff's employment history, and threatened to terminate the plaintiff because of his inaccurate employment application, unless he resigned. (Pl. Dep. at 165:13-15.) It is these allegations that the plaintiff contends violates his First and Fourteenth Amendment rights under the United States Constitution. The remaining allegations relating to the retaliation claim, i.e. the harassment because of "union talk," the split schedule, the failure to let plaintiff teach a Pai-Gow Tiles class, and taking a student's side in a classroom dispute, were all perpetrated by other supervisors, such as Mr. Wortman, who is not named as a defendant here. As discussed below, even taking the evidence in a light most favorable to the plaintiff, the plaintiff failed to set forth any evidence tending to show that Mr. Rossi's specific conduct was a result of plaintiff's affiliation with the NJEA. Therefore, defendants' summary judgment motion with respect to the §1983 claim against Mr. Rossi is granted, and that claim is dismissed.

As discussed above, to properly assert a §1983 claim, the plaintiff must show that 1) the conduct complained of was committed by a person acting under color of state law, and 2) that the conduct deprived a person of rights, privileges, or immunities protected by the Constitution or the laws of the United States. Robb, 733 F.2d at 290-91. It is undisputed by the parties that Mr. Rossi is a person acting under color of state law as it pertains to 42 U.S.C. §1983. Therefore, our inquiry must focus on whether the conduct complained of is a violation of plaintiff's Constitutional rights, specifically the right of free association with the labor union.

To survive summary judgment, plaintiffs "may not rest upon the mere allegations or denials of" their pleadings in order to show the existence of a genuine issue. Fed. R. Civ. P. 56(e). They must do more than rely only upon bare assertions, conclusory allegations or suspicions. See Gans, 762 F.2d at 341. If the plaintiffs' evidence is "not significantly probative," the court may grant summary judgment. See Anderson, 477 U.S. at 249-50.

Here, the plaintiff has done nothing more than rely on bare assertions, conclusory allegations, and suspicions. The plaintiff contends that Mr. Rossi's request that he sign a waiver so that Mr. Rossi could further investigate the plaintiff's employment application "must have been" because he was affiliated with the NJEA. (Pl. Dep. at 168:24-25; 169:1-4,) Further, the plaintiff asserts that Mr. Rossi's investigation into his employment application and his threat to fire him unless he resigned was also because of his union affiliation. (Id.) Outside of merely stating these accusations in his brief, the plaintiff has put forth no evidence of any connection between the plaintiff's union affiliation and Mr. Rossi's actions. The plaintiff has not sufficiently refuted the clear reason for the investigation into his employment application, namely that the representations made by the plaintiff on his original application were, at best, not clear. Nor has the plaintiff set forth any evidence showing that Mr. Rossi's threat of termination was for anything more than the alleged misrepresentations in plaintiff's employment application. Put simply, the plaintiff just has not shown any correlation between Mr. Rossi's actions and the fact that the plaintiff was a member of the NJEA. Such a failure to show causation is fatal to a claim under 42 U.S.C. §1983. Horn v. Madison County Fiscal Court, 22 F.3d 653, 659 (6th Cir. 1994); see also, Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 305-308 (1986). Therefore, to the extent that the plaintiff asserts a §1983 claim against Joseph Rossi for harassment and retaliation, the defendants' motion for summary judgment is granted and that claim is dismissed. The Court expresses no view upon plaintiff's claim that his dismissal violated New Jersey's statutes, common law, or constitution. *fn7

IV. CONCLUSION

For the foregoing reasons, the Court hereby grants defendants' summary judgment motion with respect to plaintiff's claims based on the United States Constitution and 42 U.S.C. §1983. Therefore, to the extent Counts I and II of plaintiff's complaint asserts federal causes of action, those claims are hereby dismissed. Further, the Court having dismissed all claims over which it has original jurisdiction, the Court hereby declines to exercise supplemental jurisdiction over the remaining state law claims asserted by the plaintiff. Since the Court has disposed of the federal claims which form the basis of its removal jurisdiction, the Court must remand the state law claims to the Superior Court of New Jersey for further proceedings pursuant to 28 U.S.C. §1447(c). The accompanying Order is entered.

JEROME B. SIMANDLE U.S. District Judge

ORDER

This matter having come before the Court upon defendants' motion for summary judgment; and the Court having considered the submissions of the parties; and for the reasons stated in the Opinion of today's date;

IT IS on this day of , 2000 hereby

ORDERED that defendants' motion for summary judgment is hereby GRANTED to the extent that the plaintiff's claims are based in federal law, and plaintiff's federal claims are DISMISSED; and it is hereby

ORDERED that this case is REMANDED to the Superior Court of New Jersey, Atlantic County, Law Division at Docket No. ATL-L-2768-98, for further proceedings upon plaintiff's claims arising under state law.

JEROME B. SIMANDLE U.S. District Judge


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