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Power v. Bayonne Board of Education

United States District Court, D. New Jersey

April 26, 2017

TRACEY L. POWER, Plaintiff,


          KEVIN MCNULTY. U.S.D.J.

         Plaintiff Tracey L. Power ("Power") brought this action against Defendants Bayonne Board of Education ("BBOE") and Superintendent Patricia L. McGeehan, in her individual capacity (collectively, the "Defendants"). She alleges that the Defendants retaliated against her for whistleblowing activities in connection with misconduct in the BBOE student athletic programs. Power's complaint (ECF no. 1, cited hereinafter as the "Complaint")[1] alleges that Defendants violated her rights under the First and Fourteenth Amendments to the United States Constitution, the New Jersey Law Against Discrimination, and the New Jersey Constitution. She also asserts common law causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing.

         For the reasons stated below, Defendants' motion to partially dismiss the Complaint is GRANTED IN PART and DENIED IN PART. Accordingly, Count 5 is dismissed in its entirety without prejudice. The remainder of the Complaint (Counts 1, 2, 3, and 4) will go forward.

         I. BACKGROUND

         Plaintiff Tracey L. Power is employed by the Bayonne Board of Education as an athletic trainer and teacher. (Compl. ¶ 2) She alleges that in September 2014, she formally complained to her supervisors about various legal and policy violations in connection with the student athletics program. Her complaints included allegations that medications were being illegally administered to student athletes, and that a former coach for the football team allowed students without medical clearance to participate in team practices, ignored the heat indices, and conducted contact drills "prior to the time allowed." (Id. ¶ 3) In response, Power alleges, Superintendent McGeehan covered up the allegations, and the Bayonne Police "visited" Power in an attempt to intimidate her. The Complaint alleges that, in retaliation for these and similar complaints that Power made in September 2015, Power was "removed from her position as Athletic Trainer for the Football Team, " and was "ordered not to step on or near the Football Field." (Id.)

         Power continued to make these and other complaints to the "Central Office, " Executive Director Steven J. Timko, Commissioner David C. Hespe, and state and federal agencies, including the DEA. (Id.) Power was again visited by the Bayonne Police, her work schedule was changed, she was "moved from her position and [her] remuneration . . . was reduced, " and Superintendent McGeehan "illegally procured the services of an investigative service to subject Plaintiff Power to unnecessary questioning for several hours, delving into personal life activities." (Compl. ¶¶ 4-5, 8)

         Seeking redress for alleged violations of her rights under the federal and State constitutions and laws, Power commenced this action on August 19, 2016. (ECF no. 1) On September 9, 2016, Defendants moved to partially dismiss Power's complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF no. 3) That motion is now before the Court.


         Fed. R. Civ. P. 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss, a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Worth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) ("reasonable inferences" principle not undermined by later Supreme Court Twombly case, infra).

         Fed. R. Civ. P. 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, such that it is "plausible on its face." See Id. at 570; see also Umland v. PLAN CO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement'... it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678 (2009).

         The United States Court of Appeals for the Third Circuit, interpreting the Twombly/Iqbal standard, has provided a three-step process for analyzing a Rule 12(b)(6) motion:

To determine whether a complaint meets the pleading standard, our analysis unfolds in three steps. First, we outline the elements a plaintiff must plead to a state a claim for relief. See [Iqbal, 556 U.S.] at 675; Argueta [v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 73 (3d Cir. 2011)]. Next, we peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth. See Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73. Finally, we look for well-pled factual allegations, assume their veracity, and then "determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73. This last step is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).


         A. BBOE's Monell Liability as to Power's Free Speech Claims (Counts 1-2)

         Counts 1 and 2 of the Complaint allege that Defendants violated Power's right to free speech by retaliating against her for making protected communications.

         In Count 1, Power asserts section 1983 claims alleging that Defendants violated her rights under the First and Fourteenth Amendments to the United States Constitution. (Compl., Count 1, ¶¶ 1-6) Section 1983 provides:

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.

42 U.S.C. § 1983. Thus, to sufficiently set forth a section 1983 claim, a complaint must allege the violation of a right secured by the Constitution or laws of the United States and that the alleged violation was committed by a person acting under color of state law. See Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988).

         In the Second Count, Power asserts similar claims under the New Jersey Civil Rights Act (the "NJCRA"), N.J.S.A. § 10:6-2, alleging that Defendants violated her free speech rights under Article I of the New Jersey Constitution. (Compl., Count 2, ¶¶ 1-8) The NJCRA "was modeled after 42 U.S.C. § 1983, and creates a private cause of action for violations of civil rights secured under the New Jersey Constitutions." Trafton v. City of Woodbury, 799 F.Supp.2d 417, 443 (D.N.J. 2011). "This district has repeatedly interpreted NJCRA analogously to § 1983." Id. Therefore, I address Counts 1 and 2 together.[2]

         Defendants contend that the Complaint fails to allege any facts that would subject BBOE to liability for Superintendent ...

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