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Marco Nead v. Union County Educational Services Commission

January 20, 2011


On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1753-09.

Per curiam.


Submitted November 17, 2010 - Before Judges Axelrad, R. B. Coleman, and J. N. Harris.

Plaintiff Marco Nead was a physical education teacher employed by defendant Union County Educational Services Commission (UCESC) from 1992 until 2006. He appeals from the dismissal of his six-count complaint that sought remedies against his former employer pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49;*fn1 the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and the common law.*fn2 We reverse, reinstate the entire complaint, and remand for further proceedings.



The Law Division was not the first forum to address Nead's grievances. In March 2007, Nead filed a civil rights complaint against UCESC in the United States District Court for the District of New Jersey, which foreshadowed the allegations in his state action. Nead's federal complaint contained two counts pursuant to the Federal Civil Rights Act of 1871, 42 U.S.C.A. § 1983 (Section 1983), as well as the state claims that are the subject of this appeal.

Nead alleged that UCESC retaliated against him in violation of his freedom of speech as guaranteed by the First Amendment, and further contended that his rights under the Fourteenth Amendment were violated because UCESC failed to protect his safety, health, and welfare. As a threshold requirement, "a suit under [Section] 1983 requires the wrongdoers to have violated federal rights of the plaintiff . . . while acting under color of state law." Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).

After extensive discovery in the federal forum, UCESC successfully moved for summary judgment. In April 2009, the District Court found, among other things, that most of the allegedly retaliatory acts were trivial for First Amendment purposes; that is, they were not significant enough to constitute actionable adverse employment consequences pursuant to Section 1983's First Amendment jurisprudence. Furthermore, the court held that Nead had failed to demonstrate that his speech was a motivating factor in defendant's actions. Finally, the court determined that for Fourteenth Amendment purposes, Nead could not demonstrate that UCESC had misused its authority -- as opposed to just failing to use it -- to create opportunities for Nead to be exposed to harm.

In dismissing all claims over which it had jurisdiction, the District Court expressly declined to assert supplemental jurisdiction over Nead's state claims. See 28 U.S.C.A. § 1367(c)(3). Accordingly, in its written opinion granting UCESC's motion for summary judgment, the federal court did not address the LAD, CEPA, or common law theories of liability. In rapid succession, Nead sought review in the Court of Appeals for the Third Circuit, and filed this action in the Law Division in May 2009.

Soon after it was served, UCESC moved to dismiss the Law Division complaint for failure to state a claim upon which relief may be granted. R. 4:6-2(e). On December 8, 2009, following several months in which the parties researched and briefed the numerous issues, the Law Division denied UCESC's motion, issuing a well-reasoned and comprehensive twenty-four page written opinion explaining its rationale. We deem it unnecessary to explicate this first opinion because UCESC immediately applied "for an Order for Reconsideration pursuant to R[ule] 1:7-4 and R[ule] 4:49-2."*fn3

On January 22, 2010, after a second round of briefing and oral argument, the Law Division issued a detailed fourteen-page written opinion, which reversed its initial determination, dismissing Nead's entire complaint with prejudice. This appeal followed in early March 2010.*fn4


Although this case was decided in the context of UCESC's Rule 4:6-2(e) motion (and subsequent motion for reconsideration), both parties unflinchingly appended a wealth of discovery materials to their respective moving papers, going far beyond the four corners of Nead's complaint. The motion court readily considered all of these data, and therefore we are obliged to treat its disposition as if it were decided as a motion for summary judgment. See R. 4:6-2 ("If, on a motion to dismiss based on the defense numbered (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R[ule] 4:46."). Accordingly, we consider the facts in the light most favorable to plaintiff. Henry v. N.J. Dep't of Human Servs., ___ N.J. ___, ___ (2010) (slip op. at 3); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2.


Nead began his teaching career with UCESC in 1992. After initially spending one year assigned to Hillcrest High School, Nead served as a physical education teacher at Beadleston High School*fn5 in Westfield -- an alternative school for students with emotional and behavioral challenges -- for the balance of his fourteen-year employment. Throughout this term, Nead repeatedly complained to administrators about physical threats and abuse by students against teachers and other students, and railed against what he perceived as a general disregard for school policies and regulations by the administration.*fn6 Notwithstanding his repeated expressions of discontent, Nead received tenure during the 1995-1996 school year.

Throughout the 1999-2000 school year, Nead served as the union representative for the local teachers association. In this capacity, he often brought to the principal's attention what he believed were discordances with UCESC's educational policies and the inaction of the school's administration in response. Cited examples of noncompliance with UCESC policies included tolerance for on-campus drug and tobacco use, as well as ignoring physical assaults by students against faculty, staff, and other students.

In 2000, one of Nead's colleagues filed a lawsuit against UCESC, asserting retaliation for reporting student abuse of teachers and students. Nead testified as a witness at a deposition in the case although he claims that the school's administration tried to discourage his participation.

Nead also alleged that he was repeatedly victimized by students throughout his time at Beadleston, who either physically assaulted him or threatened him with physical violence. When he reported one particular incident to the school principal, he was "verbally attacked" and told instead that he had threatened the student.

In June 2005, Nead informed Beadleston's then-principal of his multiple myeloma diagnosis. Later that year, Nead advised the replacement principal of his condition and asserted that he could not take any chances with physical assaults, and may need to leave work early on some days once his cancer treatment started. When such treatment began, however, the principal refused to provide timely coverage for Nead's classes, causing him to miss transportation connections and become overly worried about being late.

Soon thereafter, an affiliated educational facility -- Centennial High School -- closed. Nead claimed that this caused "an influx of students with criminal records to be transferred to Beadleston." In October 2005, Nead was punched in the head and "wrenched his back" while attempting to break up a fight between two students, one of whom was a suspected gang member. That same month, another student punched Nead in the face through a glass window, causing shattered glass to enter Nead's eye.

Nead further claimed that UCESC retaliated against him for whistle blowing activities. Specifically, he asserted that UCESC (1) denied his requests to attend professional development classes, (2) refused to provide him with a paraprofessional (teacher's assistant) even though he was the only full-time teacher without one, (3) initially refused to give him a desk due to professed financial constraints, (4) neglected to order him needed school supplies, including a classroom telephone, (5) prohibited plaintiff from attending a school field trip he had organized, and (6) assigned him to thirty-classes, which he maintains was "more than any other teacher."

When the local education association wrote a letter to the superintendent regarding safety issues at the school in February 2000, Nead asserted that the school principal retaliated against him by refusing to give him a key to a classroom he used, forcing him and his students to congregate in the hallway before each class until someone unlocked the door and allowed them in. Nead also contended that he was given undesirable assignments such as supervising smoke breaks and being put on back-to-back lunch duty.

The final indignity, according to Nead, occurred on March 20, 2006, when UCESC reported to the Department of Human Services Institutional Abuse Investigation Unit (IAIU) allegations that Nead had assaulted a student. Four days later, Nead ceased being a teacher at Beadleston. He gave notice in a written letter to UCESC, stating "I regret to say ...

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