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Clarke v. Atlantic City Board of Education

July 28, 2010

MELVIN A. CLARKE, PLAINTIFF-APPELLANT,
v.
ATLANTIC CITY BOARD OF EDUCATION AND FREDRICK P. NICKLES, JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2159-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 2009

Before Judges Skillman, Fuentes and Gilroy.

Plaintiff Melvin Clarke appeals from the May 27, 2008 order that dismissed his complaint for failure to state a claim upon which relief can be granted, R. 4:6-2(e). We reverse and remand.

Plaintiff is employed by defendant Atlantic City Board of Education (ACBOE) as an assistant superintendent responsible for student services. Plaintiff is one of several assistant superintendents in the ACBOE school district. Defendant Fredrick Nickles*fn1 is the district's Superintendent of Schools. On February 25, 2002, plaintiff filed a complaint in the Law Division under Docket No. ATL-L-731-02 alleging discrimination against the same defendants named in this action. On September 26, 2002, the parties settled the lawsuit with ACBOE agreeing, among other things, to "grant plaintiff a salary increase of $5,000, retroactive to July 1, 2002, over [and] above his present salary of $134,003." Additionally, ACBOE agreed "to maintain and [e]nsure at least a $5,000 salary differential in favor of plaintiff, during his employment, compared to other Assistant Superintendents in the District."

On June 27, 2007, plaintiff filed a thirty-six paragraph, single-count complaint against defendants, alleging that they had violated the Law against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by subjecting him to a hostile work environment, by subjecting him to handicap discrimination, and by retaliating against him for his having engaged in protected conduct under the LAD. On July 11, 2007, plaintiff filed an amended seventy-paragraph, single-count complaint. In September 2007, defendants filed a motion seeking to dismiss plaintiff's amended complaint for failure to state a claim upon which relief can be granted. The trial court heard argument on the motion on February 27, 2008. On May 8, 2008, the court entered an order supported by a written opinion granting the motion. In so doing, the court reasoned:

However, after taking a "generous and hospitable approach" to plaintiff's [c]omplaint, as required by R. 4:5-2 and R. 4:6-2, the comments thereto, and the relevant case law, the court has determined that plaintiff has failed to allege facts that sustain a cause of action. None of plaintiff's allegations against defendants is indicative of an adverse employment decision. Although plaintiff's allegations suggest that his work environment has been less than pleasant since assisting [, a co-employee,] with her sexual harassment claim, they are not suggestive of some action substantially similar in adversity to termination or a demotion - the LAD is "not a general civility code for workplace conduct." Sheperd v. Hunterdon [Ctr., 336 N.J. Super. 395, 416 (App. Div. 2001), aff'd. in part and rev'd. in part on other grounds, 174 N.J. 1 (2002)]. There is no single adverse employment [action] alleged that could sustain a cause of action. The events alleged accepted as true could not sustain a cause of action for hostile work environment.

. . . There is no adverse employment decision that rises to a level of more than arrogance.

In paragraph 40 plaintiff alleges very vaguely that he has been ostracized by co-workers, but no mention of by who, when or why. He previously accused Nickels and [Barry Caldwell, another assistant superintendent] of wrongful acts and in an earlier portion of the [c]omplaint describes Nickels making some negative statements that are false to Board members about him and Caldwell ostracizing him. Nickels telling the Board that plaintiff is trying to sabotage him when plaintiff has made it clear that he believes Nickels should not be Superintendent is not a cause of action. The unfortunate fact is that when you accuse others of wrongdoing, they probably won't like you and may talk about you and avoid you, but that isn't an adverse employment action as long as it does not interfere with your employment.

The claims regarding his contract and his settlement are not claims of an adverse employment action. They are claims for failure to comply with a settlement agreement and have already been addressed by this court as a motion to enforce settlement.*fn2

The new allegations about handling of expulsions and discipline are disagreements about policy and not actionable. Plaintiff seems to think that anything he disagrees with that is done at work is actionable. The law doesn't and cannot guarantee a pleasant dispute free and friendly work environment for those who assist others in discrimination claims.

The claim that plaintiff ha[d] his office moved from one floor to another is also not an adverse employment action. If plaintiff was not disabled, it wouldn't be actionable. Since he claims he is disabled, it may be a basis for a disability discrimination claim.

The court orders the [c]omplaint dismissed for failure to state a cause of action. Plaintiff is free to file a new complaint for his office being moved, but not as a retaliation claim. It is only ...


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