United States District Court, D. New Jersey
TRACEY L. POWER, Plaintiff,
BAYONNE BOARD OF EDUCATION, and PATRICIA L. MCGEEHAN, individually; and JOHN DOES 1-5; and JANE DOES 1-3; and XYZ CORPORATIONS 1-3, Defendants.
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") 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
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.
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
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)
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.
LEGAL STANDARD ON A RULE 12(b)(6) MOTION TO DISMISS
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).
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).
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)
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).
BBOE's Monell Liability as to Power's Free
Speech Claims (Counts 1-2)
1 and 2 of the Complaint allege that Defendants violated
Power's right to free speech by retaliating against her
for making protected communications.
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
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).
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.
contend that the Complaint fails to allege any facts that
would subject BBOE to liability for Superintendent