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Allan v. Board of Trustees

March 7, 2000


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



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).


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 ...

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