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Carmichael v. Pennsauken Township Board of Education

November 27, 2006


The opinion of the court was delivered by: Bumb, United States District Judge

[Docket No. 8]



This matter comes before the Court upon a motion for summary judgment by Defendants, Pennsauken Township Board of Education ("BOE") and William T. Clarke ("Clarke"), individually and in his official capacity, hereinafter collectively referred to as "Defendants".

On December 6, 2004, Leonard Carmichael ("Plaintiff") filed his Complaint in the Superior Court of New Jersey, Camden County alleging that Defendants have acted in violation of the New Jersey Law Against Discrimination, N.J. Stat. § 10:5-1 et seq. ("NJLAD"), and the New Jersey Conscientious Employee Protection Act, N.J. Stat. § 34:19-1 ("CEPA"). Plaintiff also claims that Defendants are liable pursuant to 42 U.S.C. § 1983 for depriving him of his constitutional rights and that Defendants have committed acts of common law negligence.

Plaintiff commenced this action in the Superior Court, Law Division, Camden County on December 4, 2004. Defendants were served with a Summons and Complaint on January 3, 2005. This matter was removed to this Court on January 25, 2005, pursuant to 28 U.S.C. § 1441.

Factual Background

Harassing Phone Call

The following facts are undisputed. Plaintiff began his teaching career with the Pennsauken Board of Education in 1988. (Defs.' Statement of Undisputed Material Facts ("SOF") at ¶ 1; Pl.'s Resp. to Defs.' SOF at ¶ 1). From the 1990's through the present, Plaintiff taught and continues to teach keyboarding at Pennsauken High School. (Id.) On March, 12, 2001, Plaintiff received a telephone message on his school voicemail which stated, roughly, as follows:

Voice #1 - Hey man. I'm gonna do something man...You keep on poppin shit-I'll put a gun to your head...(pause) Hey man...where ya going??? the bathroom? You a mack truck son...(pause)

Voice #2 -...hey Mr. Carmichael...Where ya goin morrow Mr. Carmichael...You got any fresh eggs for me?? Some bacon???

Voice #1-SHUT THE F----UP!!! (Defs.' SOF at ¶ 5; P's Response SOF at ¶ 2).

After receiving this message, Plaintiff went to the Principal of Pennsauken High School, William Clarke, to report it. (Defs.' SOF at ¶ 7; Pl.'s Resp. SOF at ¶ 4). Either Clarke or the Plaintiff contacted the Pennsauken Police Department and Plaintiff made a formal complaint with the Police. (Defs.' SOF at ¶¶ 8 & 9; Pl.'s Resp. SOF at ¶4). The Police were able to trace the call back to its place of origin - a home phone number of Alden Schultz, a student at Pennsauken High School. (Defs.' SOF at ¶¶ 10 & 12; Pl.'s Resp. SOF at ¶4 & 6).

Following a police investigation, Plaintiff signed criminal charges against Alden Schultz, Jay Riccardi and Craig Cairns, all students at the High School. (Defs.'SOF at ¶ 18; Pl.'s Resp. SOF at ¶ 8). On November 18, 2002, Alden Schultz admitted to the charge of harassment under N.J. Stat. § 2C:33-4a for the calls made to Plaintiff. (Defs.' Ex. F). On December 10, 2002, Schultz was given "a six month rule conditioned on his attending school with no unexcused absences or lateness, maintaining passing grades, having no behavioral problems at home or school, and remaining drug and alcohol free." (Id.).

Following the imposition of the six month rule, Plaintiff checked Alden Schultz's records for the Spring 2003 semester and saw that Schultz had been tardy for classes - but that there were no disciplinary actions taken against Schultz; Plaintiff did not report the tardiness to anyone, including the Prosecutor's office. (Defs.'SOF at ¶ 26 & 27; Pl.'s Resp. SOF at ¶ 10).

The March 12, 2001, harassing phone call constitutes the only incident/interaction between Plaintiff and Alden Schultz, Jay Riccardi, and Craig Cairns that was ever reported by Plaintiff to Clarke or Mr. Lewis, the School's Vice Principal. (Defs.'SOF at ¶ 33; Pl.'s Resp. SOF at ¶ 11). The one time Plaintiff informed Vice Principal Lewis that he did not want to be in the Internal Suspension Room with Jay Riccardi, Mr. Lewis removed Plaintiff from the room without incident. (Defs.'SOF at ¶¶ 29, 30 & 31; Pl.'s Resp. SOF at ¶ 10). Plaintiff's Coaching Position

Plaintiff coached the Girls' Track Team from 1988 through 2002; in April of 2002, Plaintiff resigned from his position. (Defs.'SOF at ¶¶ 34 & 35; Pl.'s Resp. SOF at ¶ 12). The parties do not agree on the reason for the resignation.*fn1

In November 2002, following his resignation, Plaintiff applied for the posted Spring Girls' Track Coach position. (Defs.'SOF at ¶ 41; Pl.'s Resp. SOF at ¶ 15). Plaintiff interviewed for the position with Mr. Wright, the school's Athletic Director. (Defs.'SOF at ¶ 42; Pl.'s Resp. SOF at ¶ 15). Mr. Wright had no knowledge of the phone message incident between Plaintiff and Schultz. (Defs.'SOF at ¶ 57; Pl.'s Resp. SOF at ¶ 21). The other candidate for the coaching position was Ms. Parks, who had been coached by Mr. Wright when she was on the high school track team in Camden. (Defs.'SOF at ¶ 45; Pl.'s Resp. SOF at ¶ 15). On January 21, 2003, the decision was made to not offer the position to Plaintiff. (Defs.'SOF at ¶ 46; Pl.'s Resp. SOF at ¶ 15).

Plaintiff requested a meeting to discuss why he had not been offered the position and, on February 11, 2003, a formal grievance was filed; this grievance was denied by Superintendent Quint. (Defs.'SOF at ¶¶ 48-51; Pl.'s Resp. SOF at ¶ 17). The Superintendent indicated that Plaintiff was not recommended for the position because evaluations of Plaintiff between 1999 and 2002 showed that he needed to improve attendance at a clinic for coaches, improve the number of participants in the Girls' Spring Track and Field Program, improve the team website and bulletin board, improve the academic and physical status of the team members and needed to consistently submit nominations for Athlete of the Week. (Defs.' Ex. J). Plaintiff appealed the denial of his grievance on June 12, 2003, and the Board of Education again denied it. (Defs.' Ex. K).

Plaintiff filed the instant action on December 6, 2004, asserting that Defendants failed to take effective remedial measures to end discriminatory treatment and that he was retaliated against for making his complaints when Defendants refused to nominate and appoint him varsity head coach in violation of the NJLAD and CEPA. Plaintiff also asserts that Defendants are liable pursuant to 42 U.S.C. § 1983 because they failed to investigate or discipline the students and that Defendants have committed acts of common law negligence.

Summary Judgment Standard

Summary judgment is appropriate 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."*fn2 Fed. R. Civ. P. 56(c). 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; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). 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."*fn3 Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).


Plaintiff's Claims Pursuant to 42 U.S.C. ...

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