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Southward v. Elizabeth Board of Education

United States District Court, D. New Jersey

October 2, 2017

CARMEN SOUTHWARD and KRISTIN KULICK, Plaintiffs,
v.
ELIZABETH BOARD OF EDUCATION, OLGA HUGELMEYER, individually and in her official capacity as Superintendent, PABLO MUNOZ, individually and in his official capacity as former Superintendent, HAROLD KENNEDY, JR., individually and in his official capacity as Board Secretary, DONALD GONCALVES, individually and in his official capacity as Assistant Board Secretary, RAFAEL FAJARDO, individually and in his official capacity as board member, FRANCISCO GONZALES, individually and in his capacity as board member, PAUL PEREIRA, individually and in his capacity as board member, CARLOS TRUJILLO, individually and in his capacity as board member, ELCY CASTILLO-OSPINA, individually and in her capacity as board member, TONY MONTEIRO, individually and in his capacity as board member, OSCAR OCASIO, individually and in his official capacity as Director of Process Improvement, and JOHN DOES 1-10, Defendants.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court upon defendants' motion (ECF no. 52)[1]to dismiss the second amended complaint under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is GRANTED in part, and DENIED in part.

         I. Background

         This complaint joins together the claims of two employees of the Elizabeth public school system who were dismissed in June 2014. Their supporting facts are summarized separately.[2]

         A. Southward's Factual Allegations

         Plaintiff Carmen Southward was first employed by defendant Elizabeth Board of Education (the "Board") in 2006 as a world language teacher. (2AC ¶ 22). In July 2008, she was transferred to the Human Resources Department, where she worked as a staffing assistant. [Id. ¶ 24). In July 2009, she was promoted to Interim Supervisor for Recruitment and Hiring. (Id. ¶ 26). In December 2009, she was appointed as the District's Affirmative Action Officer, a position that was added to her existing responsibilities. (Id. ¶ 27).

         Southward claims that in 2010 and 2011, during her time as a supervisor in the Human Resources Department, she reported misconduct by Director of Education Daphne Marchetti. Her alleged whistleblowing consisted of reporting that Marchetti did not possess the required state certifications to work as either a teacher or an administrator (Id. ¶¶ 28-30); that Marchetti had a secretary in the Human Resources Department reload all of her vacation days back into the system (Id. ¶¶ 34-35); and that Marchetti allegedly forged documents that extended her maternity leave. (Id. ¶ 46). During this 2010-11 period, Southward also objected to defendant Rafael Fajardo's request to hand out political pins at interviews of new candidates (Id. ¶ 48); refused to approve the hiring of a Board-backed, non-tenured candidate because there were other tenured candidates on the hire list (Id. ¶ 42); and refused to alter employment paperwork for Fajardo. (Id. ¶¶ 49-51).

         Southward alleges that her whistleblowing, defined to include refusal to cooperate with improper conduct, led to retaliation. In 2010 and 2011, (i) defendant Pablo Munoz, who was then the Superintendent, told her to stop reporting about teacher-credential issues and undermined her job functions by limiting her ability to recommend personnel actions related to transfers, new hires, and non-renewals (Id. ¶¶ 37-38); (ii) defendant Donald Goncalves contacted her at home to warn her that things would get "ugly" because she had reported Marchetti's violations (Id. ¶ 59); and (iii) defendants Fajardo and Munoz pulled Southward's boss into a car to discuss their suspicion that Southward had gone to the FBI. (Id. ¶ 53). Fajardo and Munoz said they planned to transfer Southward until she was miserable and then fire her so "she wouldn't have a claim." (Id.). Also during this period, (iv) Munoz asked, during a cabinet meeting, if anyone wanted to address the serious concerns with Southward's handling of the vacancies in Elizabeth's schools (i.e., Southward's refusal to hire the Board members' preferred candidates) (Id. ¶¶ 54-56); (v) Southward received a written letter of reprimand related to the vacancy issues raised at the meeting (Id. ¶ 57); (vi) Southward received, for the first time, a negative performance evaluation from her supervisor (Id. ¶ 67); (vii) in February 2011 Southward was demoted from her position as Supervisor of Human Resources and transferred from the main office to School 28 (Id. ¶¶ 60-62); (viii) Goncalves met with Southward again and told her there is "still going to be a place for you as long as you let some things go" and "be careful" [Id. ¶¶ 63-66); and (vix) in June 2011 she was transferred out of Human Resources to the Food Services Department. [Id. ¶¶ 76-78).

         In her new position as Interim Supervisor of Food Services, she learned that some board members, teachers, and administrators were receiving free meals from the federal school lunch program, thus diverting resources meant to help feed low-income students. [Id. ¶ 78). In the summer of 2011, Southward reported the abuse of the federal school lunch program to the Union County Prosecutor, the New Jersey Office of the Attorney General, and the Federal Bureau of Investigation ("FBI"). [Id. ¶ 80). She met with law enforcement officials through the rest of 2011, 2012, and 2013, and reported additional violations of the Board's personnel policies and the use of paid time for political activities. [Id. ¶ 90).

         In July 2013, Southward heard secondhand that the defendants were aware she had been speaking to the FBI. [Id. ¶ 91). In April 2014, Southward was notified that Fajardo had obtained a copy of notes from her FBI interview. [Id. ¶ 93). She was told by Fajardo's political consultant and her boss that the Board was "furious" that she had communicated with the FBI. [Id. ¶ 94).

         Additionally, "throughout the course of her employment, " Southward was pressured to engage in political activities. [Id. ¶ 225). She was "subjected to demands for financial contributions to the political campaigns of Defendant Board Members through the required purchase of tickets to political fundraising events." [Id.). Defendant Trujillo also "pressured" her to participate in phone banks for campaigns. [Id. ¶ 226). Southward "made contributions of time and money to Defendant Board Members' political campaigns because it was threatened that she would be terminated if she didn't." [Id. ¶¶ 227, 269).

         On June 12, 2014, the Board met and unanimously approved administrative leave with pay for Southward. [Id. ¶ 102). She was notified the next day that she would be terminated effective June 30, 2014. [Id. ¶ 103). At the Board's June 19, 2014 meeting, the Board voted officially to terminate Southward's employment. (Id. ¶ 104). For the two weeks remaining in her employment, Southward was sent to what was colloquially known as the "rubber room, " where she remained in "isolation" without a phone or computer. (/d. ¶¶ 110-12).

         B. Kulick's Factual Allegations

         Plaintiff Kristin Kulick was the Board's Director of Special Projects beginning in August 2009. (Id. ¶ 122). First, she objected to several issues about the Communications Department. Kulick reports that there were four to six employees who worked solely on public-relations tasks for the Board in violation of the district's accountability regulations. (Id. ¶¶ 124-25). When Kulick received a voicemail asking about the communications department, defendant Goncalves insisted she not tell the person that there even was a Communications Department; he reminded her that the records showed that these employees worked in other departments. (Id. ¶ 137).

         Ms. Kulick also objected to defendant Goncalves that administrative publications were not sent periodically, but were sent in "multiple blasts inappropriately timed with the election cycle." (Id. ¶ 136). She also objected that Goncalves required that only pictures of Board members be on the front page of the publications. (Id. ¶ 136).

         In the spring of 2010, Kulick raised concerns that her co-worker Amy Gomes, the fiancee of defendant Tony Monteiro, was arriving to work late and sometimes visibly intoxicated. (Id. ¶ 127). Kulick informed Karen Murray, then the Director of Human Resources (who happens to be Kulick's sister), about Gomes's conduct. (Id. ¶¶ 129-31). Murray raised concerns about promoting Gomes, after which Murray was placed on administrative leave and was ultimately terminated. (Id. ¶ 130). Afterward, defendant Goncalves told Kulick that her sister's termination "doesn't have to affect you, unless you want it to." (Id. ¶ 131). Kulick interpreted this as a threat. (Id.).

         In May 2013, Kulick was told to purchase tickets at a fundraiser for hundreds of dollars. (Id. ¶ 132). She objected that "this was done as a direct threat [and] that her job was tied to her contribution." (Id., ). In 2013 and 2014, Ms. Kulick refused to buy tickets for politically connected charity events. (Id. ¶ 133). "Throughout her employment, including in 2014, Ms. Kulick was continually required to make significant financial contributions to the political campaigns of Defendant Board Members." (Id. ¶ 134). Ms. Kulick then refused to contribute time or money to Board-backed campaigns, (Id. ¶ 135).

         Kulick also objected to defendant Oscar Ocasio's employment with the Board. She claims that Ocasio was given "a job with no responsibilities" so he would get paid for full-time political work. (Id. ¶¶ 138-42). Ocasio also began "showing up at Ms. Kulick's meetings, " "leading meetings that were [Ms. Kulick's responsibility], " and took over her responsibilities with implementing a new security system for the schools. (Id. ¶¶ 141-43).

         In spring 2014, at a Director's Association union meeting, Kulick raised concerns that she and other Directors had not received the merit pay to which they were entitled under a 2012 Memorandum of Agreement. (Id. ¶ 144). Defendant Ocasio told Kulick that he knew of an impending Human Resources and cabinet staff meeting at which certain individuals were slated to be "let go." (Id. ¶ 145). He warned Kulick that "she shouldn't be asking questions like that at th[is] time." (Id.). Nevertheless, Kulick submitted a written request to defendant Munoz that the Directors receive their merit pay. (Id. ¶ 150). Kulick asserts that her employment was terminated in June 2014 in retaliation for these activities. (Id. ¶¶ 151-52).

         Kulick also asserts that she was punished for refusing to participate in political activities. In support, she alleges that shortly after she was hired in 2009, Annie Rooney, defendant Munoz's secretary, informed her that she was expected to purchase tickets to the Board members' political fundraisers and events. (Id. ¶¶ 172-73). Out of fear, Kulick purchased tickets. (Id. ¶¶ 174-75).

         Kulick alleges that she was harassed and forced to contribute time and money to political campaigns, and that for a time she acquiesced. (Id. ¶¶ 176-80, 276). Specifically, Kulick alleges that she was "verbally intimidated and threatened" by defendant Fajardo, who (although not a Board member at the time) allegedly controlled new hires and ran many of the Board members' political campaigns from his private business office. [Id. ¶¶ 180-85, 281). Fajardo also left threatening voice messages to induce her to contribute more to the campaigns of Board members. [Id. ¶¶ 188-91, 278). After Kulick refused to purchase expensive tickets for a fundraiser, defendant Goncalves told her during a June 2013 performance review that "none of us are safe." She perceived this statement as a threat to her job. (Id. ¶¶ 198-99).

         In September 2013, a Board-backed campaign led to the creation of a non-profit charity, to which Kulick refused to contribute. [Id., ¶¶ 200-01). In January 2014, Goncalves sent Ocasio to monitor Kulick's meetings, with the intent of intimidating her into changing her stance on fundraising issues. (Id. ¶¶ 202, 275). In May 2014, Kulick was told to pressure two school principals to encourage their teachers and students to attend the Elizabeth Cuban Day parade. (Id. ¶ 205). After a low turnout at the parade, Kulick was reprimanded and harassed. (Id. ¶¶ 206-07). Thereafter, Kulick altogether stopped contributing her time and money to Board-backed campaigns. (Id. ¶ 209). In June 2014, Kulick was terminated from her position and replaced by Ocasio, who was politically connected but had qualifications inferior to those of Kulick. (/d.¶¶ 210-14).

         C. Procedural History

         Plaintiffs initiated this action on June 2, 2015 (ECF no. 1). Jurisdiction is premised on 28 U.S.C. §§ 1331 (federal question), 1343(3) (federal civil rights claims), and 1367 (ancillary jurisdiction over state law claims). On August 14, 2015, defendants moved to dismiss plaintiffs' original complaint under Federal Rule of Civil Procedure 12(b)(6). (ECF no. 6). The Honorable Esther Salas, U.S.D.J., held oral argument on March 22, 2016, and stated reasons on the record for her decision to dismiss the original complaint. (ECF no. 23). The following day, Judge Salas entered an order granting Defendants' motion to dismiss the complaint without prejudice to the filing of an amended complaint within 30 days. (ECF No. 24).

         On April 21, 2016, the plaintiffs filed the first amended complaint. (ECF No. 26). The causes of action pled in the first amended complaint were:

Count 1: New Jersey Conscientious Employee Protection Act ("CEPA") (Southward); Count 2: CEPA (Kulick)
Count 3: 42 U.S.C. § 1983/First Amendment retaliation (Kulick)
Count 4: 42 U.S.C. § 1983/First Amendment retaliation (Southward)
Count 5: New Jersey Civil Rights Act ("NJCRA") (both plaintiffs)
Count 6: New Jersey Racketeer Influenced and Corrupt Organization Statute ("NJRICO") (both plaintiffs).

         On May 20, 2016, defendants filed a motion to dismiss the first amended complaint under Rule 12(b)(6). (ECF No. 29-1). After the motion to dismiss was fully briefed, it was administratively terminated pending reassignment. (ECF no. 42). On January 5, 2017, the case was formally reassigned from Judge Salas to me. (ECF no. 45). I reinstated the motion to dismiss and reviewed the matter afresh, and decided the defendants' motion.

         Count 1 was dismissed regarding acts of retaliation before June 2, 2014 based on the statute of limitations. Counts 2, 4, and 6 were dismissed. Count 3 survived the motion to dismiss. Southward's Count 5 claim was dismissed, but Kulick's Count 5 claim survived. Southward v. Elizabeth Bd. of Educ, No. 15-3699, 2017 WL 111924 (D.N.J. January 11, 2017); (ECF nos. 46-48).

         On February 10, 2017, plaintiffs filed a second amended complaint. (2AC, ECF no. 49). It amends and supplements the allegations, although the causes of action in the six counts remain broadly the same. On March 17, 2017, defendants filed a motion to dismiss. (ECF no. 52). Plaintiffs filed a brief in opposition of the motion to dismiss on April 25, 2017. (ECF no. 57). Defendants submitted a reply brief on April 28, 2017. (ECF no. 58).

         II. Legal Standards on Motion to Dismiss

         Federal Rule of Civil Procedure 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 under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth 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).

         Federal Rule of Civil Procedure 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. PLANCO 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.

         The United States Court of Appeals for the Third Circuit has explicated the Twombly/Iqbal standard on several occasions. See, e.g., Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 70-73 (3d Cir. 2011); Santiago v. Warminster Twp., 629 F.3d 121, 129-30 (3d Cir. 2010). In doing so, it has provided a three-step process for evaluating 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, 643 F.3d at 73. 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).

         "In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of the public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); see also In re Asbestos Products Liability Litigation (No. VI), 822 F.3d 125, 134 & n.7 (3d Cir. 2016); Buck v. Hampton Twp. Sch. Dist, 452 F.3d 256, 260 (3d Cir. 2006) ("In evaluating a motion to dismiss, we may consider documents that are attached to or submitted with the complaint, and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, and items appearing in the record of the case.").

         III. Claims Asserted by Southward

         A. CEPA (Count 1)

         Count 1, asserted by plaintiff Southward, brings a retaliation claim under the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. § 34:19-1 et seq. Southward's allegations of retaliatory acts in Count 1 fall into two distinct categories: (i) in 2010 and 2011, during her time as Supervisor of Human Resources, she was subjected to harassment and unwanted transfers (in retaliation for raising complaints related to personnel policies and hiring preferences); and (ii) from June 13-30, 2014, she was sent to the "rubber room" and ultimately discharged (in retaliation for providing information to law enforcement).

         This action was filed on June 2, 2015. As I explained in my earlier opinion on the motion to dismiss the first amended complaint, Southward's Count 1 claims regarding acts of retaliation that occurred before June 2, 2014 are barred based on CEPA's one-year statute of limitations. Southward, 2017 WL 111924, at *4-9. Those based on later acts, including Southward's termination in mid-June, 2014, are not barred. Defendants have not moved to dismiss Southward's timely Count 1 claims.

         B. First Amendment and NJCRA (Counts 4, 5)

         In Count 4, Southward asserts a claim of First Amendment retaliation under 42 U.S.C. § 1983.[3] In Count 5, Southward asserts a parallel claim under the analogous provisions of the New Jersey Constitution and the NJCRA.[4] As before, for simplicity I refer to Southward's Section 1983 and NJCRA claims in Counts 4 and 5 as her "First Amendment" claims. On the motion to dismiss the first amended complaint, Southward's First Amendment claims were dismissed. Southward, 2017 WL 111924, at* 11-13.

         In the second amended complaint, Southward's First Amendment claims have been supplemented, primarily by a claim of retaliatory discharge. Defendants again move to dismiss Southward's First Amendment claims on statute of limitations and substantive grounds.

         Southward now alleges that she engaged in protected First Amendment conduct by "not always supporting] the Board-backed political causes or candidates or favored friends of the Board." (2AC ¶ 219). She asserts that she was "intimidated" into purchasing tickets for political fundraising events "because her continued employment was dependent on her making contributions." (Id. ¶¶ 225, 227). Eventually, Southward stopped supporting political organizations with her time and finances. (Id. ¶ 231). As a result of these actions, she was (i) transferred in around February 2011 from her position as Supervisor of Human Resources to a position with less authority (Id. ¶ 223); and (ii) terminated in June 2014. (Id. ¶¶ 102-04).

         Defendants argue that Southward's "newly asserted" claim for retaliatory discharge is untimely under the applicable two-year statute of limitations. They add that her First Amendment claims are vaguely alleged, and fail to establish a causal nexus between events in 2010-11 and her discharge in 2014. (Def. Br. 9-10). I conclude that, to the extent they are ...


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