The opinion of the court was delivered by: Irenas, Senior District Judge
In a prior opinion denying the Defendants' motions to dismiss, this Court observed that the poorly drafted and factually muddled Complaint at least alleged sufficient factual information to plead a cause of action under multiple overlapping legal theories.*fn1
Those legal theories have morphed (or have simply been abandoned) over the course of this litigation.
All of the Defendants have now moved for summary judgment, and in so doing, have attempted in their opening briefs to precisely identify the various claims and legal theories Plaintiff*fn2 now asserts. Plaintiff's opposition brief has subsequently made clear, however, that her principal claims are that Defendants retaliated against her after she filed a Notice of Tort Claim against them pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:8-4; and that Defendant Caldwell tortiously recorded a telephone conversation between himself and Plaintiff. For the reasons that follow, the Defendants' Motions for Summary Judgment on liability will be granted.*fn3
Plaintiff has been employed as a secretary by Defendant Atlantic City Board of Education since 1992. For many years, she was secretary to Defendant Barry Caldwell, Director of Operations for the Board of Education. Defendant Fred Nickles is the Superintendent of the Board of Education.
In the spring of 2006, rumors were circulating among Board of Education employees that Caldwell had sexually harassed other employees.*fn4 Caldwell was very disturbed by these rumors and began asking other Board of Education employees, many of whom were his subordinates, to sign notarized certifications stating that any rumors of inappropriate conduct were untrue, and that Caldwell had always acted professionally. (See, e.g., Pl's Ex. U) Plaintiff and other employees refused to sign such certifications.
Continuing his crusade to clear his name, sometime in April, 2006, Caldwell surreptitiously recorded a telephone conversation he had with Bradley, his secretary at the time. Caldwell called Bradley on her home phone.*fn5 Their telephone conversation occurred while Bradley was entering her home after work. In that telephone conversation, Caldwell asked Bradley to confirm that he had never acted inappropriately toward her. (Frino Decl. Ex. B) Bradley stated that he "never" harassed her. (Id.)
However, on November 29, 2007, Bradley filed a Notice of Tort Claim with the Board of Education asserting, among other somewhat vague allegations*fn6 , that in 2002 Caldwell "sexually harassed" her by "expos[ing] himself" to her on two occasions. (Pl's Ex. DD)
On December 21, 2007, Caldwell and his wife filed a defamation suit against Bradley and her lawyer, alleging that Bradley's sexual harassment accusations in the Tort Claim Notice were false and defamatory. (Frino Decl. Ex. D) The complaint further alleges that Bradley and her lawyer gave the Tort Claim Notice to the Atlantic City Press, which published the accusations in a news article on December 5, 2007. (Id.) Plaintiff denies giving the Tort Claim Notice to the newspaper.
Plaintiff also states that since she filed her Tort Claim Notice she has "not had proper [office] supplies to perform [her] job." (Bradley Cert. ¶ 13)
"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
As noted previously, the Complaint is not entirely clear as to the claims asserted. Plaintiff's brief in opposition to the motions for summary judgment concedes that "the New Jersey [Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8] claim under the facts of this case cannot be sustained." (Pl's Opp. Br. at 71) The brief also states that Plaintiff does not oppose the motions for summary judgment with regard to her New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, claim. Summary judgment will be granted as to the CEPA claim and the New Jersey Civil Rights Act claim.
According to Plaintiff, the remaining claims to be addressed are: (1) the 42 U.S.C. § 1983 claim-- retaliation in violation of the First Amendment; and (2) the claims arising out of Caldwell's recording of his telephone conversation with Bradley. The Court will also address Plaintiff's Law Against Discrimination, N.J.S.A. 10:5-12d, claim, even though Plaintiff makes no legal argument as to that claim.*fn7
Plaintiff asserts that filing a Tort Claims Notice is activity protected by the First Amendment*fn8 and that Caldwell unlawfully retaliated against her when he filed his defamation suit. Plaintiff also asserts that the Board of Education is liable for Caldwell's actions.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
The statute only provides a remedy for deprivations of rights that occur under color of law.
It is well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state. Rather, in order for the tortfeasor to be acting under color of state law, his act must entail 'misuse of power, possessed by virtue of state law and made ...