Re: Rehearsal Conflicts), were, in fact, part of a "conspiracy" to
deny Kadetsky tenure.
Moreover, the summary judgment record contains no evidence of
an established custom or policy condoning the violation of
Plaintiff's constitutional rights; therefore, I shall grant
Defendants' Motion for Summary Judgment on § 1983 liability as it
pertains to the Egg Harbor Board of Education.
2. First Amendment Retaliation
To assert a claim of retaliation for the exercise of
constitutionally protected rights, a public employee must show
that the activity was protected and was a substantial or
motivating factor in the alleged retaliation. Defendants may
defeat plaintiff's claim by showing "that the same action would
have been taken even in the absence of the protected activity."
Kadetsky I, 82 F. Supp.2d at 335 (internal quotation omitted).
a. Right to Petition
Kadetsky alleges that Defendants, Ridolfino and Levine,
violated his First Amendment right to Petition. Specifically,
Kadetsky claims that the official grievance which he filed on
March 9, 1998 and the handwritten note he sent to Kelpsh,
regarding the adverse treatment he was receiving from Defendants,
prompted Ridolfino to exaggerate and misconstrue a complaint from
parents concerning Kadetsky's behavior toward their son and
prompted Levine to write many memos regarding Kadetsky's failure
to conform to administrative procedures.
In Kadetsky I, I concluded that Kadetsky's grievance was
"protected speech" under the First Amendment, see Kadetsky I, 82
F. Supp.2d at 336; thus, the issue to be decided on Defendants'
Motion for Summary Judgment is whether Kadetsky has raised genuine
issues of material fact about whether his grievance was a
"substantial or motivating factor in the alleged retaliation" or
whether the same actions would have occurred in the absence of
After a thorough review of the summary judgment record, I
conclude that Kadetsky has failed to meet his burden. Despite the
temporal proximity of the filing of the grievance and the incident
concerning the student, there is nothing to suggest that Ridolfino
urged the parents to write the letter of complaint. Although
Kadetsky claims that Ridolfino put a "slant" on the incident to
suggest sexual impropriety on Kadetsky's part, Kadetsky has
produced no evidence which indicates that Ridolfino did anything
but thoroughly investigate a letter of concern from the parents of
a student who was allowed to sleep in Kadetsky's hotel room on a
school band trip. See Pl.'s App. at Pa-107-08 (3/18/98 Letter to
Levine & Ridolfino from Parents of G.L.); Pa-110 (3/26/98 Notes of
Ridolfino from Meeting with Plaintiff & Cohen); Cohen Depo. at
185-88 ("He [Ridolfino] asked questions like did you ever have
private dinners with students or were they with 12 or 15 people. . . .
He [Ridolfino] said that you've exhibited-you weren't going to
get tenure because you exhibited poor judgment. He told him it
was the hardest thing he had ever done was [sic] telling someone
that he wasn't going to get tenure and that he should ignore my
[Cohen's] advice.") Finally, Kadetsky's claims that Ridolfino
tried to "silence" him appears to have been nothing more than an
effort by Ridolfino to contain the possible damage to the school,
the student, and Kadetsky that could have resulted if the incident
became public. See Cohen Dep. at 188 ("[Ridolfino said] Take a
look at what people will think if this gets in the paper if you
were to fight this thing. . . . This hits the newspaper,
going to ruin your career."); Pl.'s App. at Pa-111 (Ridolfino Memo
of 3/26/98 to Kadetsky's Union Representative stating: "There is
to be no discussion of the contents of the L letter or any
contact or retribution to the student by either you or Mark.
Would you please contact Mark to go over this directive with
Kadetsky's claims of retaliation from Levine are equally
without merit. There is no evidence that Levine knew of the
grievance which Kadetsky filed; thus, to perceive her subsequent
actions as retaliatory strains logic. Although Levine contacted
the parents and asked them to write out their complaints, she did
so in conformity with a standard school policy. See Levine Dep.
at 40. The memos which Levine wrote concerning Kadetsky all
concerned his adherence to administrative policies which were
within Levine's province to monitor. All the memos appear to be
written dispassionately and in a manner typical of an
administrator concerned with maintaining order in the school
functions under her supervision and ensuring adherence to
procedure among those employees she supervised. See Pl.'s App. at
Pa-83 (2/23/98 Memo to Ridolfino from Levin; re: Plaintiff's
Scheduling Request); Pa-80 (2/9/98 Letter to Kelpsh & Ridolfino
I conclude that Plaintiff has failed to raise a genuine issue
of material fact concerning his First Amendment Right to Petition
claim. I shall therefore grant Defendant's Motion for Summary
Judgment on the right to petition prong of Kadetsky's retaliation
b. Freedom of Speech
Pursuant to 42 U.S.C. § 1983, public employees may sue to
enforce the constitutional protection of their speech if: "(1)
they spoke on a matter of public concern; (2) their interest in
that field outweighs the government's concern with the effective
and efficient fulfillment of its responsibilities to the public;
(3) the speech caused the retaliation; and (4) the adverse
employment decision would not have occurred but for the speech."
Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997).
This Court articulated the standard for determining whether
speech addresses a matter of public concern in Carlino v.
Gloucester City High School, 57 F. Supp.2d 1 (D.N.J. 1999):
A public employee's speech involves a matter of
public concern if it can be [of] political, social, or
other concern to the community. Whether an employee's
speech addresses a matter of public concern must be
determined by the content, form, and context of a given
statement, as revealed by the whole record. When an
employee [comments] upon matters only of personal
interest, that public employee speaks not as a citizen
upon matters of public policy.
Id. at 31 (quoting Connick v. Myers, 461 U.S. 138, 146-48
(1983)). Inquiry into "the speaker's motivation is relevant to
the extent that it indicates whether the speaker is speaking as `a
citizen upon matters of public concern' or as a volunteer `upon
matters only of personal interest.'" Versarge v. Township of
Clinton New Jersey, 984 F.2d 1359, 1364 (3d Cir. 1993) (quoting
Connick, 461 U.S. at 147). "To presume that all matters which
transpire within a [public school] are of public concern would
mean that virtually every remark . . . would plant the seed of a
constitutional case." Connick, 461 U.S. at 149. It is
well-settled in the Third Circuit that "speech disclosing public
officials' misfeasance is protected while speech intended to air
personal grievances is not." See Swineford v. Snyder
Pennsylvania, 15 F.3d 1258, 1271 (3d Cir. 1994).
To illustrate the distinction between personal grievances and
disclosure of official misfeasance, Swineford collected cases
where the criticisms of public employees were found to be matters
of public concern: Zamboni v. Stamler, 847 F.2d 73, 77 (3d. Cir.
Date)(civil service employee's criticism of county prosecutor's
reorganization and promotion plan); Rode v. Dellarciprete,
845 F.2d 1195, 1201 (3d. Cir. 1988) (state police civilian employee's
communication to the press of racial profiling); Czurlanis v.
Albanese, 721 F.2d 98, 104 (3d Cir. 1983) (county auto mechanic's
criticism of internal management of Department of Motor Vehicles);
Trotman v. Board of Trustees, 635 F.2d 216, 225 (3d Cir.
1980) (professor's criticism of university president's efforts to
increase the school's faculty/student ratio).
When viewed against this backdrop, Kadetsky's speech fails to
qualify as speech touching upon a matter of public interest.
Although Kadetsky characterizes his speech as challenging
"defendants' violation of the collective bargaining agreement" and
a "violation of the school districts [sic] Sexual Harassment
Policy" see Pl.'s Br. at 56, the summary judgment record indicates
that Kadetsky was motivated at all times by concern for his
personal employment, rather than by a desire to expose errant
school policies or malfeasance on the part of his superiors for
the betterment of the public.
Furthermore, even if Kadetsky's speech concerning Ridolfino's
investigation into the parental complaint could be characterized
as a matter of public concern, his interest in its publicity would
be outweighed by the school's interest in protecting the identity
of the student and frankly, in protecting the reputation of
Kadetsky himself, see Ridolfino Dep. at 135.
Finally, as I noted above in my discussion of Kadetsky's
right to petition claims, I find that Kadetsky has failed to raise
genuine issues of material fact relating to the causation prongs
of his prima facie case. There is nothing in the summary judgment
record which indicates that Kadestsky's criticisms of Ridolfino
precipitated Ridolfino's decision not to recommend Kadetsky for a
tenured position. Instead, the record indicates that Ridolfino's
decision had been taking shape as the incidents with Kadetsky
escalated throughout the school year and that the decision was
finally reached when he received the letter from the band
student's parents. See Ridolfino Dep. at 61, 80, 84. Kadestsky
has cast additional doubt on the claim by making conflicting
assertions as to when Ridolfino informed him that he would not be
recommending Kadetsky for tenure. If Kadetsky's initial papers
are to be believed, Ridolfino informed him of his decision before
Kadetsky engaged in any protected speech. If his later assertions
are to be believed, Ridolfino's decision was communicated to
Kadetsky only a few days after Kadetsky had begun talking to his
colleagues about his meeting with Ridolfino.
I conclude that Plaintiff has failed to raise genuine issues
of material fact as to whether his speech was a matter of public
concern, whether his speech was a substantial cause of the alleged
retaliation, or whether Ridolfino's decision not to recommend
tenure would not have occurred but for Kadetsky's speech.
Consequently, I shall grant Defendants' Motion for Summary
Judgment on the Free Speech prong of Plaintiff's First Amendment
B. State Law Claims
Having determined that Plaintiff has failed to raise genuine
issues of material
fact on his federal claims under
42 U.S.C. § 1983, the claims which remain present issues of state
constitutional law and state formulations of common law, over
which this court may exercise supplemental jurisdiction pursuant
to 28 U.S.C. ¶ 1367*fn4. The contours of federal supplemental
jurisdiction were explained in the Supreme Court's opinion in
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). The
decision to exercise supplemental jurisdiction involves a two-step
process. First, the District Court must determine if it has the
power to hear Plaintiff's state law claims. This analysis
requires the Court to consider whether the federal claim has
"substance sufficient to confer subject matter jurisdiction on the
court," if the state and federal claims "derive from a common
nucleus of operative fact," and if "plaintiff's claims are such
that he would ordinarily be expected to try them all in one
judicial proceeding." Id. The Third Circuit has articulated an
additional consideration. The federal court must also determine
whether the exercise of jurisdiction "would violate a particular
federal policy decision." Ambromvage v. United Mine Workers of
America, 726 F.2d 972, 990 (3d Cir. 1984).
If the court finds that it possesses the power to hear the
pendant claim(s), then it still possesses the discretion to
dismiss plaintiff's state law claims if it finds that state issues
substantially predominate, if "economy, convenience and fairness
to the litigants" caution against supplemental jurisdiction,
Gibbs, 383 U.S. 726, or if inclusion of state law claims could
unduly complicate the case or confuse a jury. Moor v. County of
Alameda, 411 U.S. 693, 716-17 (1973). The federal court's
decision should be guided by the goal of avoiding "[n]eedless
decisions of state law . . . both as a matter of comity and to
promote justice between the parties, by procuring for them a
surer-footed reading of applicable law." Gibbs, 383 U.S. at 726.
Declining to exercise supplemental jurisdiction is particularly
warranted when the case calls for an interpretation of a state
constitution. See Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts, Inc., 963 F. Supp. 395, 408 (D.N.J. 1997).
The Third Circuit has adopted a conservative approach to the
discretionary prong of the Gibbs test. In Tully v. Mott
Supermarkets, it stressed that the mere fact that considerable
time and expense had already been devoted to a case was not
sufficient to justify the exercise of supplemental jurisdiction.
540 F.2d 187, 196 (3d Cir. 1976). Only "exceptional
circumstances" of the level of the "invocation of a significant
federal policy" or severe prejudice or unfairness to the parties
should be considered as a basis for exercising supplemental
jurisdiction when state law predominates. Id.; see also Prospect
Purchasing Co., Inc. v. Weber, Lipshie & Co., 694 F. Supp. 1149,
1157 (D.N.J. 1988)
("this Court will not now abide the total
dismissal of plaintiff's action in federal court and possibly
leave plaintiff without any forum because of the belated
application of the statute of limitations"); but see Lentino v.
Fringe Employee Plans, Inc., 611 F.2d 474, 480 (3d Cir. 1979) (the
exercise of pendant jurisdiction was proper when the federal claim
was not dropped until the morning of trial and over a year of
pretrial proceedings had occurred).
Because Plaintiff's remaining claims concern interpretations
of the New Jersey Constitution and require the application of a
recent change in New Jersey state law concerning the pleading
requirements for defamation on matters of public concern, see
Rocci v. Ecole Secondaire MacDonald-Cartier,