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Louis Melillo, Plaintiff v. Elizabeth Board of Education

December 21, 2012


The opinion of the court was delivered by: Wigenton, District Judge.


Before the Court is Defendants Elizabeth Board of Education (the "Board"), former Board member Pablo Munoz ("Munoz"), and Executive Director for Human Resources Karen Murray's ("Murray") Motion to Dismiss Louis Melillo's ("Plaintiff") Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Motion to Dismiss").*fn1

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391. This Court, having considered the parties' submissions, decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, Defendants' Motion to Dismiss is DENIED.


Since 1994, Plaintiff has been employed by the Board as a custodian in Elizabeth, New Jersey. (Third Am. Compl. ¶¶ 9-10.) At some point during his employment, Plaintiff advanced to the position of tenured head custodian. (Id.)

Plaintiff alleges that throughout his employment, he was asked to support and contribute financially to the Board, Board members' campaigns, and other political organizations that the Board supports. (Id. ¶ 13.) According to Plaintiff, supporting the Board in this way was necessary for job advancement, and that those who did not demonstrate support "suffered adverse employment consequences." (Id. ¶¶ 15-17; 20.) Plaintiff claims he suffered adverse working conditions-namely "Plaintiff was harassed, debased, demeaned, and received horrible and vindictive treatment"-in retaliation for refusing to support and contribute to the Board. (See id. ¶¶ 27-28.)

Plaintiff further alleges that the Board "used the legal process to harass, extort, and to attempt to intimidate Plaintiff into forfeiting his employment and pension." (Id. ¶ 33.) Beginning in the Summer of 2004, Plaintiff was accused of criminal sexual contact and related crimes with students. (See id. ¶¶ 29-40.) On or about July 13, 2004, criminal charges were brought against Plaintiff. (Id. ¶ 31.) Subsequently, the Board brought tenure charges against Plaintiff. (Id. ¶ 36.) During the pendency of the tenure charges, Plaintiff was suspended without pay. (Id. ¶¶ 36, 38.) Plaintiff alleges that Defendants were "motivated by malice, to fabricate evidence against Plaintiff in order to successfully prosecute him, with consequent forfeiture of his employment and pension in furtherance of the Board's objectives of retaliating against Plaintiff." (Id. ¶ 40.)

On or about September 27, 2005, Plaintiff was acquitted of all criminal charges at a Superior Court bench trial. (Id. ¶¶ 43-44.) After the acquittal, the Board "changed the status of Plaintiff's unpaid suspension to a paid suspension, thereby demonstrating it was aware of the acquittal." (Id. ¶ 46.) Additionally, post-acquittal, Plaintiff claims that the Board wrongfully sought and obtained a finding of sexual abuse from Division of Youth and Family Services ("DYFS"). (Id. ¶ 45.) In 2007, the DYFS findings were modified to reflect that the allegations of abuse were unsubstantiated. (Id. ¶ 48.)

On September 20, 2010, the Administrative Law Judge dismissed the tenure charges against Plaintiff and the Acting Commissioner of Education upheld the decision on November 4, 2010. (Id. ¶¶ 52-53.) The Board appealed the dismissal of the tenure action and a decision is currently pending. (Id. ¶ 54.) Because of the pending tenure charges, Plaintiff claims that his pay increase has been withheld. (Id. ¶ 49.)

Plaintiff returned to work on June 1, 2011, but he was demoted to a regular custodian (rather than head custodian), was assigned to a different shift "at a worse and more dangerous school," and was paid at his 2004 rate. (Id. ¶¶ 55, 61-62.) Plaintiff further claims he was deprived of approximately 100 accumulated sick days. (Id. ¶ 63.)


On August 23, 2011, Plaintiff filed the instant action in the United States District Court for the District of New Jersey. On December 12, 2011, Defendants moved to dismiss Plaintiff's initial eleven-count Complaint in its entirety and on December 23, 2011, Plaintiff filed a cross-motion to amend the Complaint.*fn2 The motion to dismiss was denied and the cross-motion to amend the complaint was granted.*fn3

On February 13, 2012, Plaintiff filed a cross-motion for leave to amend the First Amended Complaint and Defendants filed a motion to dismiss soon thereafter. On April 20, 2012, the second motion to amend the complaint was granted. On May 9, 2012, Plaintiff filed the Second Amended Complaint. On May 23, 2012, Defendants filed a motion to dismiss the Second Amended Complaint. The motion to dismiss the Second Amended Complaint was granted as to Counts Three, Six, Seven, Eight, Nine, Ten and Eleven of the Second Amended Complaint, and denied as to Counts One, Two, Four and Five.

On August 17, 2012, the Plaintiff filed the Third Amended Complaint containing four counts.*fn4 On September 4, 2012, Defendants filed this motion to dismiss Plaintiff's Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) ("Motion to Dismiss").


The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a complaint allege "a short and plain statement of the claim showing that the pleader is entitled to relief." This Rule "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 "requires a 'showing' rather than a blanket assertion of an entitlement to relief").

In considering a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6), the Court must "'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief."' Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd.,292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). If the "well-pleaded facts do not ...

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