United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon defendants' motion
(ECF no. 52)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.
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
Southward's Factual Allegations
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).
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).
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).
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).
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).
"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).
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.
Kulick's Factual Allegations
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.
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).
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.).
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).
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).
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. ¶¶
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.
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).
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).
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).
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
Count 4: 42 U.S.C. § 1983/First Amendment retaliation
Count 5: New Jersey Civil Rights Act ("NJCRA")
Count 6: New Jersey Racketeer Influenced and Corrupt
Organization Statute ("NJRICO") (both plaintiffs).
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
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).
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).
Legal Standards on Motion to Dismiss
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
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.
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).
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.").
Claims Asserted by Southward
CEPA (Count 1)
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).
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.
First Amendment and NJCRA (Counts 4, 5)
Count 4, Southward asserts a claim of First Amendment
retaliation under 42 U.S.C. § 1983. In Count 5,
Southward asserts a parallel claim under the analogous
provisions of the New Jersey Constitution and the
NJCRA. 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.
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.
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).
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