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September 21, 2018
VIA ELECTRONIC FILING AND LAWYERS SERVICEHon. John Michael Vazquez, U.S.D.J.United States District Court50 Walnut StreetNewark, NJ 07101
RE: RACIOPPE, LOUIS VS. VERONA BOARD OF EDUCATION, ET AL.Our File No. : 86601 ELHCivil Action No. : 2:18-CV-13308
Dear Judge Vazquez:
I enclose a courtesy copy of Defendants’ Rule 12(b)(6)Motion to Dismiss and supporting papers.
Respectfully submitted,
METHFESSEL & WERBEL, ESQS.
Eric L. [email protected]. 138
ELH:fmr/Encl.
cc: VIA ELECTRONIC FILINGGregory Mascera, Esq.Bannon, Rowding, McDonald & Mascera, PA10 South Prospect StreetPO Box 146Verona, New Jersey 07044
2025 Lincoln Highway Suite 200 P.O. Box 3012 Edison, NJ 08818 (732) 248-4200 FAX (732) 248-2355112 West 34th Street 17th Floor New York, NY 10120 (212) 947-1999 FAX (212) 947-3332
1500 Market Street 12th Floor, East Tower Philadelphia, PA 19102 (215) 665-5622 FAX (215) 665-5623www.njinslaw.com
JOEL N. WERBEL>JOHN METHFESSEL, JR.>FREDRIC PAUL GALLIN*+^STEPHEN R. KATZMAN#WILLIAM S. BLOOM>*ERIC L. HARRISON*+MATTHEW A. WERBEL>MARC DEMBLING*+LORI BROWN STERNBACK*+I. BLAKELEY JOHNSTONE,III+*GINA M. STANZIALE>
Of CounselJOHN METHFESSEL, SR.>(1964-1995)DONALD L. CROWLEY*+ED THORNTON*>
CounselCHRISTIAN R. BAILLIE+JOSEPH D. CASTELLUCCI, JR.>PAUL J. ENDLER JR.>JAMES FOXEN^GERALD KAPLAN>JARED P. KINGSLEY*+JOHN R. KNODEL*+LESLIE A. KOCH+CHARLES T. MCCOOK, JR.*>MARC G. MUCCIOLO>RICHARD A. NELKE~STEVEN K. PARNESS+BRENT R. POHLMAN+AMANDA J. SAWYER^
AssociatesSARAH K. DELAHANT+EDWARD D. DEMBLING>JASON D. DOMINGUEZ+NATALIE DONIS+MICHAEL R. EATROFF>DAVID INCLE, JR.>FRANK J. KEENAN+^SCOTT KETTERER>
Associates, Cont’dALLISON M. KOENKE>ALICIA C. LANGONE+ADAM N. LEVITSKY>OLIVIA R. LICATA+ASHLEY E. MALANDRE^JAMES V. MAZEWSKI+DIAA J. MUSLEH+KAJAL J. PATEL>RAINA M. PITTS^MATTHEW L. RACHMIEL>WILLIAM J. RADA+NABILA SAEED^JARED S. SCHURE>TIFFANY D. TAGARELLI>STEVEN A. UNTERBURGER+LEVI E. UPDYKE+^
* Certified by the Supreme Court ofNew Jersey as a Civil Trial Attorney
+Member of NY & NJ Bar^Member of PA & NJ Bar>Member of NJ Bar only^Member of NY Bar only≤Member of PA Bar only#Member of NJ & LA. BarMember of NJ, PA & DC Bar~Member of NY, NJ & DC Bar=Member of FL Bar
Please reply to New Jersey
METHFESSEL & WERBELA Professional Corporation
Case 2:18-cv-13308-JMV-JBC Document 5 Filed 09/21/18 Page 1 of 53 PageID: 81
METHFESSEL & WERBEL, ESQS.2025 Lincoln Highway, Suite 200PO Box 3012Edison, New Jersey 08818(732) 248-42001(732) [email protected] for Verona Board of Education, Rui Dionisio, JohnQuattrocchi, Michele Bernardino and Josh CogdillOur File No. 86601 ELH
UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY
LOUIS RACIOPPE
Plaintiff,
V.
VERONA BOARD OF EDUCATION; ETAL.
Defendants.
DOCKET NO.: ESX-L-5723-18/2:18-CV-13308
Civil Action
NOTICE OF MOTION TO DISMISS
TO: CLERK AND ALL COUNSEL OF RECORD
PLEASE TAKE NOTICE that the undersigned will apply to
the above named Court for an Order of Dismissal for failure
to state a claim.
METHFESSEL & WERBEL, ESQS.Attorneys for Verona Board ofEducation, Rui Dionisio, JohnQuattrocchi, MicheleBernardino and Josh Cogdill
By:__________________________Eric L. Harrison
DATED: September 21, 2018A proposed form of Order is annexed hereto.
Case 2:18-cv-13308-JMV-JBC Document 5 Filed 09/21/18 Page 2 of 53 PageID: 82
METHFESSEL & WERBEL, ESQS.2025 Lincoln Highway, Suite 200PO Box 3012Edison, New Jersey 08818(732) 248-42001(732) [email protected] for Verona Board of Education, Rui Dionisio, JohnQuattrocchi, Michele Bernardino and Josh CogdillOur File No. 86601 ELH
UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY
LOUIS RACIOPPE
Plaintiff,
V.
VERONA BOARD OF EDUCATION;RUI DIONISIO IN HISINDIVIDUAL AND OFFICIALCAPACITY; JOHN QUATTROCCHI INHIS INDIVIDUAL AND OFFICIALCAPACITY; MICHELE BERNARDINO,INHER INDIVIDUAL ANDPROFESSIONAL CAPACITY, JOSHCOGDILL, IN HIS INDIVIDUALAND PROFESSIONAL CAPACITY,JOHN/JANE DOE 1-10,FICTITIOUS INDIVIDUALS ANDABC ENTITIES 1-10, FICTITIOUSENTITIES
Defendants.
DOCKET NO.: ESX-L-5723-18/2:18-CV-13308
Civil Action
AFFIDAVIT OF ERIC L. HARRISON
I, Eric L. Harrison, of full age, duly certify as
follows:
1. I am an attorney at law in the State of New
Jersey, associated with the law firm of Methfessel &
Werbel, attorneys for the defendants, Verona Board of
Case 2:18-cv-13308-JMV-JBC Document 5 Filed 09/21/18 Page 3 of 53 PageID: 83
Education, Rui Dionisio, John Quattrocchi, Michele
Bernardino and Josh Cogdill, and in such capacity I am
fully familiar with the facts of the within matter.
2. Attached as Exhibit A is a true and correct copy of
Plaintiff’s Complaint.
3. Attached as Exhibit B is a true and correct copy of
Plaintiff’s grievances filed with the Verona Education
Association.
4. Attached as Exhibit C is a true and correct copy of
the press release from the Verona Board of Education dated
November 4, 2014.
5. Attached as Exhibit D is a true and correct copy of
the Request for Submission of a Panel of Arbitrators to the New
Jersey Public Employment Relations Commission.
I swear under penalty of perjury that the foregoing is true
and correct.
By:__________________________Eric L. Harrison
DATED: September 21, 2018
Case 2:18-cv-13308-JMV-JBC Document 5 Filed 09/21/18 Page 4 of 53 PageID: 84
UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY
LOUIS RACIOPPE
Plaintiff,
V.
VERONA BOARD OF EDUCATION;RUI DIONISIO IN HISINDIVIDUAL AND OFFICIALCAPACITY; JOHN QUATTROCCHI INHIS INDIVIDUAL AND OFFICIALCAPACITY; MICHELE BERNARDINO,INHER INDIVIDUAL ANDPROFESSIONAL CAPACITY, JOSHCOGDILL, IN HIS INDIVIDUALAND PROFESSIONAL CAPACITY,JOHN/JANE DOE 1-10,FICTITIOUS INDIVIDUALS ANDABC ENTITIES 1-10, FICTITIOUSENTITIES
Defendants.
DOCKET NO.: ESX-L-5723-18/2:18-CV-13308
Civil Action
DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISSMETHFESSEL & WERBEL, ESQS.2025 Lincoln Hwy, Suite 200PO Box 3012Edison, New Jersey 08818(732) 248-4200(732) [email protected] for Verona Board ofEducation, Rui Dionisio, JohnQuattrocchi, MicheleBernardino and Josh CogdillOur File No. 86601 ELH
Of Counsel and On the Brief: Eric L. Harrison, Esq.Attorney Bar ID : 033381993
On the Brief: Kajal J. Patel, Esq.Attorney Bar ID : 242432017
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TABLE OF CONTENTS
Table of Authorities. . . . . . . . . . . . . . . . . . . . .i-v
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . 1
Procedural History. . . . . . . . . . . . . . . . . . . . . . .2
Factual Background. . . . . . . . . . . . . . . . . . . . . . .3
Legal Argument. . . . . . . . . . . . . . . . . . . . . . . . .7
I. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED PURSUANT TOFEDERAL RULE OF CIVIL PROCEDURE 12(B)(6). . . . . . .7
II. COUNT ONE FAILS TO STATE A CLAIM BECAUSE THE ABBRADOES NOT CREATE AN INDEPENDENT CIVIL CAUSE OF ACTION.. . . . . . . . . . . . . . . . . . . . . . . . . . 9
III. COUNTS TWO AND THREE FAIL TO STATE A CLAIM BECAUSE THEPLAINTIFF WAS AFFORDED PROCEDURAL DUE PROCESS ANDBECAUSE THE NJCRA DOES NOT CONTEMPLATE A CLAIM FORDENIAL OF PROCEDURAL DUE PROCESS. . . . . . . . . . 11
A. Plaintiff Has Not Lost a Property Interest. . .13
B. Plaintiff Fails to Allege Facts Showing He DidNot Receive Process Due To Him. . . . . . . . .14
IV. COUNTS FOUR AND FIVE FAIL TO STATE A CLAIM BECAUSE ANABUSE OF PROCESS AND MALICIOUS USE OF PROCESS CLAIMAPPLIES TO ONLY FORMAL LEGAL ACTION. . . . . . . . .16
A. The Tort of Malicious Abuse of Process IsConfined To Formal Legal Action. . . . . . . . 16
B. The Tort of Malicious Use of Process Requires TheUse of Judicial Process. . . . . . . . . . . . 18
V. COUNT SIX FAILS TO STATE A CLAIM BECAUSE AGE DISPARITYALONE IS INSUFFICIENT TO SUSTAIN AN AGE DISCRIMINATIONCLAIM AND NO FACTUAL ALLEGATIONS ESTABLISH AGE-BASEDANIMUS BY DEFENDANTS. . . . . . . . . . . . . . . . 20
VI. COUNT SEVEN FAILS TO STATE A CLAIM BECAUSE THE FILINGOF A PERSONAL GRIEVANCE IS NOT A PROTECTED ACTIVITYUNDER NEW JERSEY LAW. . . . . . . . . . . . . . . . 22
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VII. COUNT EIGHT FAILS TO STATE A CLAIM BECAUSE THE PRESSRELEASE IS NON-DEFAMATORY AS A MATTER OF LAW. . . . 27
A. No Third Person Could Understand That the AllegedDefamatory Communication Concerned Plaintiff. .28
B. The Press Release Is Protected by a QualifiedPrivilege. . . . . . . . . . . . . . . . . . . 29
VIII. COUNT NINE FAILS TO STATE A CLAIM BECAUSE PLAINTIFF’SFACTUAL ALLEGATIONS DO NOT ESTABLISH OUTRAGEOUSCONDUCT BY DEFENDANTS. . . . . . . . . . . . . . . .33
IX. COUNT TEN FAILS TO STATE A CLAIM BECAUSE THE TORT OFNEGLIGENT INFLICTION OF EMOTIONAL DISTRESS DOES NOTENCOMPASS AN EMPLOYMENT DISPUTE . . . . . . . . . .37
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . 38
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i
TABLE OF AUTHORITIES
Cases
49 Prospect St. Tenants Ass'n v. Sheva Gardens, Inc., 227N.J. Super. 449, 472 (App. Div. 1988) .............. 34, 35
Acevedo v. Monsignor Donovan High Sch., 420 F.Supp.2d 337,348 (D.N.J. 2006) ...................................... 36
Armstrong v. Manzo, 380 U.S. 545, 552 (1965) ............. 12
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ............... 7
Baglini v. Lauletta, 338 N.J. Super. 282, 284 (App. Div.2001) .................................................. 17
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007) ...... 7
Bishop v. Wood, 426 U.S. 341, 344 (1976) ................. 12
Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 365-66(1988) ................................................. 34
Clark v. Twp. of Falls, 890 F.2d 611, 617 (3d Cir. 1989) . 12
Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir.1990) .................................................. 35
Dairy Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125,136 (1986) ............................................. 30
DeAngelis v. Hill, 180 N.J. 1, 13 (2004) ................. 28
Emri v. Evesham Twp. Bd. of Educ., 327 F.Supp.2d 463, 472(D.N.J. 2004) .......................................... 11
Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 539(1990) ................................................. 31
Feggans v. Billington, 291 N.J. Super. 382, 390-91 (App.Div. 1996) ............................. 27, 28, 30, 31, 32
Galbraith v. Lenape Reg’l High Sch. Dist., 964 F.Supp. 889,897 (D.N.J. 1997) ...................................... 17
Case 2:18-cv-13308-JMV-JBC Document 5 Filed 09/21/18 Page 8 of 53 PageID: 88
ii
Gallo v. Princeton Univ., 281 N.J Super. 134, 142 (App.Div. 1995) ............................................. 30
Giri v. Rutgers Cas. Ins. Co., 273 N.J. Super. 340, 347(App. Div. 1994) ....................................... 18
Green v. Green, 899 F.Supp.2d 291, 301 (D.N.J. 2012) ..... 18
Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15,23 (App. Div. 2001) .................................... 35
Grimes v. City of E. Orange, 285 N.J. Super. 154, 165 (App.Div. 1995) ............................................. 26
Gupta v. Asha Enterprises, L.L.C., 422 N.J. Super. 136,151-52 (App. Div. 2011) ................................ 37
Hassoun v. Cimmino, 126 F.Supp.2d 353, 369 (D.N.J. 2000) .18
Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 100(1992) ................................................. 24
House v. Carter-Wallace, 232 N.J. Super. 42, 49 (App. Div.1989) .................................................. 23
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,1429 (3d Cir. 1997) ..................................... 7
Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 383(1988) ................................................. 21
L.W. ex rel. L.G. v. Toms River Reg’l Schs. Bd. of Educ.189 N.J. 381 (2007) .................................... 10
Lawrence v. Bauer Publ’g & Printing, 89 N.J. 451, 462(1982) ................................................. 31
Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585 (2009)................................................... 27, 34
Lehmann v. Toys R Us, Inc., 132 N.J. 587, 610 (1993) ..... 35
Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) .. 12,13
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iii
Lutz v. Royal Ins. Co. of Am., 245 N.J. Super. 480, 499(App. Div. 1991) ....................................... 32
Lynch v. New Jersey Educ. Ass'n, 161 N.J. 152, 164-65,(1999) ................................................. 27
MacDougall v. Weichert, 144 N.J. 380, 393 (1996) . 22, 23, 24
Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 344(App. Div. 1997) ....................................... 21
Major Tours, Inc. v. Colorel, 799 F.Supp.2d 376, 405(D.N.J. 2011) .......................................... 11
McLaughlin v. Rosanio, Bailets & Talamo, Inc., 331 N.J.Super. 303, 312 (App. Div. 2000) ....................... 27
Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 389(1998) ................................................. 12
Morgan v. Union Cty. Bd. of Chosen Freeholders, 268 N.J.Super. 337, 355 (App. Div. 1993) ....................... 12
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314(1950) ................................................. 14
Nami v. Faulver, 82 F.3d 63, 65 (3d Cir. 1996) ............ 7
Nat’l Amusements, Inc. v. Borough of Palmyra, 843 F. Supp.2d 538, 544, 546 (D.N.J. 2012) ..................... 11, 15
Pension Ben. Guaranty Corp. v. White ConsolidatedIndustries, Inc., 998 F.2d 1192, 1196 (3rd Cir. 2010) .... 8
Perry v. Sindermann, 408 U.S. 593, 598 (1972) ............ 13
Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J. Super. 77,82 (App. Div. 2001) .................................... 20
Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 65-66 (1980) .. 22,23, 24
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J.739, 768 (1989) ........................................ 28
Rice v. Union County Regional High School Bd. of Ed., 155N.J. 64 (1977) ......................................... 15
Case 2:18-cv-13308-JMV-JBC Document 5 Filed 09/21/18 Page 10 of 53 PageID: 90
iv
Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149,156 (2000) ............................................. 32
Ruberton v. Gabage, 280 N.J. Super. 125, 131 (App. Div.1995) .................................................. 17
Schlenk v. Lehigh Valley R.R. Co., 1 N.J. 131, 135 (1948)...................................................... .22
Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 27-28(2002) ................................................. 26
Sokolay v. Edin, 65 N.J. Super. 112, 127 (App. Div. 1961)...................................................... .32
State ex rel. Cty. of Cumberland v. One 1990 FordThunderbird, 371 N.J. Super. 228, 244 (App. Div. 2004) . 11
Tartaglia v. UBS Paine Webber Inc., 197 N.J. 81, 109 (2008)................................................... 23, 24
Taylor v. Metzger, 152 N.J. 490 (1998) ............... 34, 35
Tedards v. Auty, 232 N.J. Super. 541, 549 (App. Div. 1989)....................................................... 17
Tumpson v. Farina, 218 N.J. 450, 477 (2014) .............. 11
Ward v. Selikovsky, 136 N.J. 516, 529 (1994) ............. 28
West v. Atkins, 487 U.S. 42, 48 (1988) ................... 11
Williams v. Bell Tel. Labs., 132 N.J. 109, 121 (1993) .. .30,31
Winston v. Bd. of Educ., 125 N.J. Super. 131, 143 (App.Div. 1973) ............................................. 13
Wozniak v. Pennella, 373 N.J. Super. 445, 461 (App. Div.2004) .................................................. 17
Wright v. L-3 Comms. Corp., 227 F.Supp.2d 293, 301 (D.N.J.2002) .................................................. 20
Young v. Hobart W. Grp., 385 N.J. Super. 448, 459 (App.Div. 2005) ............................................. 20
Case 2:18-cv-13308-JMV-JBC Document 5 Filed 09/21/18 Page 11 of 53 PageID: 91
v
Constitutional Provisions
N.J. Const. Art. VI, § 5, ¶ 4............................15
Statutes, Rules and Regulations
42 U.S.C. § 1983 ...................................... 6, 10
Fed. R. Civ. P. 12(b)(6) .............................. 2, 38
N.J.S.A. § 18A:37-13 ...................................... 9
N.J.S.A. § 18A:37-13.2 and -22 ............................ 9
N.J.S.A. § 18A:37-25 ..................................... 10
N.J.S.A. § 18A:37-37 .................................. 9, 10
N.J.S.A. 10:5–12 ......................................... 20
N.J.S.A. 34:19-1 to -8 ................................... 23
Treatises
Restatement (Second) of Torts, § 46 cmt. d ............... 34
Other
Black’s Law Dictionary 1084 (5th ed. 1979) ............... 17
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1
PRELIMINARY STATEMENT
Plaintiff Louis Racioppe, a former football coach at Verona
High School (“VHS”), alleges that defendants – the Verona School
District, its Superintendent Rui Dionisio (“Dionisio”), VHS
Principal Josh Cogdill (“Cogdill”), and Verona School Board
members John Quattrocchi (“Quattrocchi”) and Michele Bernardino
(“Bernardino”) – unlawfully terminated his contract. Racioppe
alleges that when the District initiated an investigation into
his treatment of VHS football players, it failed to follow the
procedures applicable to the investigation of harassment,
intimidation and bulling (“HIB”) complaints under New Jersey
law.
Plaintiff alleges that defendants violated the District’s
own policies, the New Jersey Civil Rights Act (the “NJCRA”), 42
U.S.C. § 1983, and the New Jersey Anti-Bullying Bill of Rights
Act (the “ABBRA”) by denying him procedural due process and not
disclosing the nature of the complaint or the investigation and
its results. Plaintiff also alleges that defendants maliciously
committed the torts of abuse of process and malicious use of
process by pursuing a complaint that they knew or should have
known was not legitimate. Finally, plaintiff also contends that
the District violated the New Jersey Law Against Discrimination
by placing him on administrative leave during the investigation
and by failing to rehire him based on his age.
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2
Plaintiff asserts in the alternative that the District
decided not to re-hire him because he filed an ethics complaint
against the two defendant Board members with the New Jersey
School Ethics Commission (the “Commission”). He further alleges
that the defendants defamed him in a November 2017 press release
and committed the torts of intentional and negligent infliction
of emotional duress.
As the Complaint fails to assert a legally cognizable
claim, defendants now move, pursuant to Fed. R. Civ. P.
12(b)(6), to dismiss plaintiff’s Complaint for failure to state
a claim.
PROCEDURAL HISTORY
Plaintiff filed the original Complaint on August 14, 2018
in the Superior Court of New Jersey, Essex County. (See
Harrison Aff., Exhibit A). On August 29, 2018, defendants filed
a timely Notice of Removal to United States District Court. At
defendants’ request the Clerk extended until September 21, 2018
the time within which to answer or otherwise plead.
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3
FACTUAL BACKGROUND
According to the Complaint, on October 10, 2017, Principal
Cogdill notified plaintiff that he was placed on administrative
leave effective immediately and instructed him to have no
contact with any VHS football player or student. (See Harrison
Aff., Exhibit A at ¶ 11). Plaintiff remained on administrative
leave for the remainder of the 2017 football season. (Id. at ¶
15, 60). He does not allege that the Board withheld pay during
his administrative leave.
Earlier that day, VHS staff members had questioned the
majority of the VHS football team players individually and asked
them to complete a questionnaire drafted by the Board attorney,
VHS staff members and Dionisio. (Id. at ¶¶ 17, 22, 24).
Plaintiff alleges that defendants subsequently falsely
represented that all senior members and captains of the VHS
football team had been interviewed, when in fact defendants only
interviewed two of the six senior members and one of the three
captains. (Id. at ¶ 18-20). Plaintiff alleges that defendants
covered the windows of the interview room to intimidate and
coerce the players into cooperation, rather than to protect
their privacy. (Id. at ¶ 23).
Plaintiff alleges that the defendants denied his request to
review completed “questionnaires” and learn the identity of the
complainant. (Id. at ¶¶ 25-26). He alleges that Superintendent
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4
Dionisio instituted the investigation against him because of a
personal vendetta, and encouraged parents of football team
members to lodge complaints against him. (Id. at ¶¶ 27-28).
Plaintiff alleges Dionisio and Cogdill conspired to bring
charges against him and that Quattrocchi authorized the
investigation at Dionisio’s behest. (Id. at ¶¶ 29-31).
On October 23, 2017, Cogdill interviewed plaintiff. (Id.
at ¶¶ 33, 39). Plaintiff alleges that Cogdill did not inform
him of the charges and sought only “yes” or “no” answers without
allowing plaintiff to elaborate, acted hostile, and “demanded
respect” from plaintiff. (Id. at ¶¶ 34-38). Plaintiff alleges
that from October 7, 2017 forward, Board members were actively
engaged in the investigation, and on October 10, 2017, they
reviewed inaccurate summaries of student questionnaires. (Id.
at ¶¶ 40-41).
On October 30, 2017, the District reviewed the audio from
interviews Cogdill held with the assistant coaches, personnel
files and summaries of student feedback, and discussed the
investigation. (Id. at ¶¶ 42-44.). Plaintiff alleges that the
Board members met with the Board attorney several times, and
made public statements about the investigation, notwithstanding
representations that that the issue of plaintiff’s employment
was “not a Board matter.” (Id. at ¶¶ 46-47).
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5
The District sent plaintiff a Rice notice. (Id. at ¶¶ 48,
53). Plaintiff chose not to address the allegations against him
in a public forum. (Id. at ¶¶ 48-49, 53). Thereafter, on
November 4, 2017, Quattrocchi emailed a press release from a
Board account to a group of Verona employees and residents and
the media, in which he related that the District had completed
its investigation into allegations against plaintiff and
released its results. (Id. at ¶ 49). Plaintiff alleges that
Quattrocchi’s press release presented inaccurate and misleading
information intended to damage his reputation and was unrelated
to the Board’s duties. (Id. at ¶¶ 51-52). Plaintiff also
alleges that Quattrocchi, by stating that he wished he could
disclose the allegations against the plaintiff, misled the
public into believing that plaintiff was preventing the District
from releasing the investigation results and implying that
plaintiff had engaged in serious misconduct on several
occasions. (Id. at ¶¶ 54-55).
Plaintiff alleges that on November 5, 2017, Bernardino
discussed the investigation with members of the Verona community
through Facebook and other public forums, and directed one
person to call her to discuss the matter. (Id. at ¶¶ 57-58).
On November 7, 2017, plaintiff received a Rice notice
advising him the Board would discuss his employment status at
the November 14, 2017 meeting. (Id. at ¶ 59). He does not allege
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6
that he exercised his right to address the Board at this or any
other meeting.
In January 2018 plaintiff filed a complaint against the
Board member defendants with the School Ethics Commission. (Id.
at ¶ 61). Contemporaneously, the Verona Education Association,
on his behalf, filed two contractual grievances seeking his
reinstatement. (See Harrison Aff., Exhibit B). The Board denied
those grievances, after which plaintiff invoked his contractual
right to binding arbitration before the Public Employment
Relations Commission (PERC). (See Harrison Aff., Exhibit D).
Plaintiff’s arbitration demand remains pending before PERC.
Thereafter, plaintiff claims, he applied for the 2018 head
football coach position, but was not hired. (Id. at ¶¶ 62-63)1.
Plaintiff alleges he was rejected from other football and
baseball coaching positions by other New Jersey school districts
and private schools. (Id. at ¶¶ 64-65).
Relying on these allegations, plaintiff asserts that
defendants failed to apprise him of the nature of the
investigation, preventing him from requesting a hearing, in
violation of the ABBRA (Count One); that defendants deprived him
of his procedural due process rights in violation of 42 U.S.C. §
1983 and the NJCRA (Counts Two and Three); that defendants
1 In fact, the District has no record of plaintiff applying forthe position.
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7
committed malicious abuse of process and malicious use of
process by pursuing an investigation they knew was not
legitimate (Counts Four and Five); that defendants violated the
LAD based on age discrimination (Count Six); that defendants
wrongfully terminated him in retaliation for filing a grievance
(Count Six); that defendants made defamatory statements about
plaintiff impairing his reputation and ability to obtain other
coaching positions (Count Eight); and that defendants committed
the torts of intentional and negligent infliction of emotional
duress (Counts Nine and Ten).
LEGAL ARGUMENT
POINT I
PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED PURSUANT TOFEDERAL RULE OF CIVIL PROCEDURE 12(B)(6).
In ruling on a Rule 12(b)(6) motion, the court must accept
as true all well-pleaded allegations of fact in the plaintiff’s
complaint and any reasonable inferences that may be drawn
therefrom, and must determine whether “under any reasonable
reading of the pleadings, the plaintiff may be entitled to
relief.” Nami v. Faulver, 82 F.3d 63, 65 (3d Cir. 1996)
(citations omitted). Nevertheless, in evaluating a plaintiff’s
pleadings, the court need not credit a complaint’s “bald
assertions” or “legal conclusions.” In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997).
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According to the Supreme Court:
To survive a motion to dismiss, a complaint mustcontain sufficient factual matter, accepted as true,to “state a claim to relief that is plausible on itsface”. . . . A claim has facial plausibility whenthe plaintiff pleads factual content that allows thecourt to draw the reasonable inference that thedefendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See also Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).
A pleading that offers only “labels and conclusions,”
contains “a formulaic recitation of the elements of a cause of
action,” or “tenders naked assertions devoid of further
enhancement” is insufficient to overcome a Rule 12(b)(6) motion
since it does not allow the court to reasonably infer the
defendant is liable for the alleged misconduct. Id.
Therefore, “threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements” do not meet
the “facial plausibility” requirement and are not entitled to
the assumption of truth. Id. at 678-79.
In adjudicating a motion to dismiss for failure to state a
claim, the court may consider documents of undisputed
authenticity which are specifically identified in the Complaint
and/or publicly available and directly relevant to the claims
asserted. Pension Ben. Guaranty Corp. v. White Consolidated
Industries, Inc., 998 F.2d 1192, 1196 (3rd Cir. 2010). We have
therefore included authenticated copies of the press release to
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which plaintiff’s defamation claim refers and plaintiff’s
contractual grievances denied by the Board and request for
arbitration before the PERC which speaks to his alleged
deprivation of due process.
For the foregoing reasons, plaintiff’s Complaint must be
dismissed for failure to state legally cognizable claims
supported by sufficient factual allegations.
POINT II
COUNT ONE FAILS TO STATE A CLAIM BECAUSE THE ABBRA DOES NOTCREATE AN INDEPENDENT CIVIL CAUSE OF ACTION.
In Count One of the Complaint, plaintiff asserts defendants
are civilly liable for violations of the ABBRA, N.J.S.A. §
18A:37-13, because he was unaware of the nature of the
investigation and did not have an opportunity to request a
hearing. Because the ABBRA “does not create or alter any tort
liability,” N.J.S.A. § 18A:37-37, plaintiff’s claim in Count One
fails as a matter of law.
The New Jersey Legislature enacted one of the nation’s
first anti-bullying acts in 2002. Garden State Equality,
“Factsheet: The Anti-Bullying Bill of Rights,”
http://njbullying.org/documents/FactsheetfortheAnti-
BullyingBillofRights.pdf (last visited September 17, 2018). The
2002 Anti-Bullying Act required school districts to implement
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trainings and programs to prevent HIB. Thereafter, the New
Jersey Legislature passed the ABBRA, which revised the 2002 Act
and took effect at the start of the 2011-12 school year.
N.J.S.A. § 18A:37-13.2 and -22.
The ABBRA removed any ambiguity as to whether the 2002 Act
created a cause of action for HIB. It specified that while “the
Commissioner of Education shall establish a formal protocol
pursuant to which the office of the executive county
superintendent of schools shall investigate a complaint that
documents an allegation of [HIB] . . . by a school district
located within the county,” N.J.S.A. § 18A:37-25, the Act
expressly “does not create or alter any tort liability.”
N.J.S.A. § 18A:37-37.
While civil liability for HIB may attach through other tort
and civil rights causes of action that are already available,
e.g., L.W. ex rel. L.G. v. Toms River Reg’l Schs. Bd. of Educ.
189 N.J. 381 (2007) (finding that a student bullied within the
meaning of the ABBRA for sexual orientation had a cause of
action under the LAD), no private cause of action exists.
Because plaintiff asserts a claim under only the ABBRA in Count
One, he fails to state a legally cognizable claim.
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POINT III
COUNTS TWO AND THREE FAIL TO STATE A CLAIM BECAUSE THEPLAINTIFF WAS AFFORDED PROCEDURAL DUE PROCESS AND BECAUSETHE NJCRA DOES NOT CONTEMPLATE A CLAIM FOR DENIAL OFPROCEDURAL DUE PROCESS.
In Counts Two and Three of the Complaint, plaintiff alleges
that defendants deprived him of his procedural due process
rights in violation of 42 U.S.C. § 1983 and the NJCRA by
withholding information regarding the complaint and not
providing him with an opportunity for a hearing. Because he
availed himself of the grievance process to challenge his
suspension and his subsequent non-reappointment, he was afforded
procedural due process.
State and federal due process claims use the same standard
and are analyzed together. Nat’l Amusements, Inc. v. Borough of
Palmyra, 843 F. Supp. 2d 538, 544 (D.N.J. 2012) (citing State ex
rel. Cty. of Cumberland v. One 1990 Ford Thunderbird, 371 N.J.
Super. 228, 244 (App. Div. 2004)). However, as the NJCRA
expressly does not contemplate a claim for violation of
procedural due process, Major Tours, Inc. v. Colorel, 799
F.Supp.2d 376, 405 (D.N.J. 2011), Tumpson v. Farina, 218 N.J.
450, 477 (2014), plaintiff’s attempted NJCRA procedural due
process claim would fail even if he had asserted a viable
federal due process claim.
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As to the federal claim, “to establish a cause of action
under § 1983, a plaintiff must show (1) there was a violation of
a right secured by the Constitution and laws of the United
States, and (2) the alleged violation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42,
48 (1988). The Fourteenth Amendment of the U.S. Constitution
entitles individuals to procedural due process, which requires
notice and an opportunity to be heard “at a meaningful time and
in a meaningful manner” that is “appropriate to the nature of
the case.” Emri v. Evesham Twp. Bd. of Educ., 327 F.Supp.2d
463, 472 (D.N.J. 2004) (quoting Armstrong v. Manzo, 380 U.S.
545, 552 (1965)). See also Mettinger v. Globe Slicing Mach.
Co., 153 N.J. 371, 389 (1998) (describing the essential
components of due process as notice and an opportunity to be
heard).
To analyze a due process claim, a court conducts a two-part
inquiry: whether the plaintiff “was deprived of a protected
interest, and, if so, what process was his due.” Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982). Whether there is
a protected interest sufficient to trigger constitutional
protection is an issue of law. Clark v. Twp. of Falls, 890 F.2d
611, 617 (3d Cir. 1989).
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A. Plaintiff Has Not Lost a Property Interest.
To analyze a due process claim, the court must first
determine whether the plaintiff was deprived of a protected
liberty or property interest. Logan, 455 U.S. at 428. State
law governs whether a public employee holds a property interest
in his or her employment. Bishop v. Wood, 426 U.S. 341, 344
(1976). To assert a protected property interest, a public
employee must show a statutory or contractual entitlement to his
or her job. Morgan v. Union Cty. Bd. of Chosen Freeholders, 268
N.J. Super. 337, 355 (App. Div. 1993). As such, an employee at
will “has no protected interest in his employment and may not
prevail on a claim that his or her discharge constituted a
violation of property rights.” Ibid. See Perry v. Sindermann,
408 U.S. 593, 598 (1972) (“[T]he nonerenewal of a nontenured
public school teacher’s one-year contract may not be predicated
on his exercise of First and Fourteenth Amendment rights.”);
Winston v. Bd. of Educ., 125 N.J. Super. 131, 143 (App. Div.
1973) (“A nontenured teacher does not have the right to have an
employment contract renewed; nor is such a teacher ordinarily
entitled to a statement of reasons for such non-reappointment or
to a hearing prior to such action.”).
Here, plaintiff does not allege that he had a property
right in continued employment or point to any independent source
providing such a right. He only alleges that he was put on
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administrative leave as a football coach for the remainder of
the 2017 football season and that he was not selected as the
head coach for the following football season. He has not
alleged he had any property interest in continued employment
past the 2017 football season, whether based on a contract or
statute. Thus, like a nontenured teacher, he also had no right
to have his contract renewed. Because plaintiff failed to
allege a protected property interest in his continued
employment, his procedural due process claims must be dismissed.
B. Plaintiff Fails to Allege Facts Showing He Did NotReceive Process Due To Him.
Secondly, the court must determine what process was
plaintiff’s due. Logan, 455 U.S. at 428. Even if plaintiff had
pleaded sufficient facts to demonstrate a deprivation of a
property interest, he has failed to allege facts showing he did
not receive due process. Notice and an opportunity to be heard
are the hallmark of due process. See Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 314 (1950) (“An elementary and
fundamental requirement of due process . . . is notice
reasonably calculated . . . to apprise interested parties of the
pendency of the action and afford them an opportunity to present
their objections.”).
According to plaintiff, Cogdill interviewed him on October
23, 2017, the Board sent him a Rice notice on November 7, 2017
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which he chose not to address, and plaintiff filed a complaint
with the School Ethics Commission in January 2018. He has also
filed contractual grievances demanding reinstatement. Had he any
statutory or contractual right to continued employment, these
avenues would have afforded him all process that he would have
been due.
A Rice notice is formal notice, pursuant to Rice v. Union
County Regional High School Bd. of Ed., 155 N.J. 64 (1977), that
the recipient’s employment status will be discussed
confidentially at an upcoming Board meeting unless the employee
wishes to have the discussion conducted in public. This
constitutes the notice and opportunity to be heard required by
procedural due process.
Furthermore, New Jersey law provides for actions in lieu of
prerogative writ, a mechanism by which the judiciary may review
actions of public entities and set aside actions of public
entities upon a finding that they are arbitrary, capricious, or
unreasonable. N.J. Const. Art. VI, § 5, ¶ 4; Nat’l Amusements,
Inc., 843 F.Supp.2d at 546. According to New Jersey Court Rule
4:69, which provides the framework for the filing of an action
in lieu of prerogative writs, “[n]o action in lieu of
prerogative writs shall be commenced later than 45 days after
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the accrual of the right to the review, hearing or relief
claimed, except as provided by paragraph (b) of this rule.”
As paragraph (b) of the Rule would not apply to a personnel
decision, New Jersey law afforded plaintiff 45 days within which
to file an action in lieu of prerogative writ. Plaintiff could
have filed the action challenging the decision to place him on
administrative leave within 45 days of October 10, 2017 and his
non-reappointment within 45 days of January 2018. His failure
to avail himself of this opportunity to be heard through New
Jersey law is fatal to his procedural due process claim.
In sum, even if plaintiff had a property interest in
continued employment as a football coach, his procedural due
process claim must be dismissed in light of the availability of
several mechanisms to challenge his administrative leave and his
non-reappointment – one of which he invoked by filing a
contractual grievance, which remains pending.
POINT IV
COUNTS FOUR AND FIVE FAIL TO STATE A CLAIM BECAUSE AN ABUSEOF PROCESS AND MALICIOUS USE OF PROCESS CLAIM APPLIES TOONLY FORMAL LEGAL ACTION.
A. The Tort of Malicious Abuse of Process IsConfined To Formal Legal Action.
In Count Four, plaintiff asserts a malicious abuse of
process claim based on defendants’ “prosecution” of a complaint
and disregard of his statutory due process rights. Because
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plaintiff alleges that defendants pursued a complaint against
him by conducting only an internal investigation, rather than
filing a formal legal complaint, he fails to allege sufficient
facts to maintain a malicious abuse of process claim.
To establish a malicious abuse of process claim, a
plaintiff must demonstrate “the improper, unwarranted, and
perverted use of process after it has been issued . . ., the
employment of a process in a manner not contemplated by law.”
Galbraith v. Lenape Reg’l High Sch. Dist., 964 F.Supp. 889, 897
(D.N.J. 1997) (quoting Tedards v. Auty, 232 N.J. Super. 541, 549
(App. Div. 1989)). The plaintiff must show “some coercive or
illegitimate use of the judicial process.” Id. at 898 (citation
omitted). See also Wozniak v. Pennella, 373 N.J. Super. 445,
461 (App. Div. 2004).
“Process” refers to the “abuse of procedural methods used
by a court to ‘acquire or exercise its jurisdiction over a
person or over specific property.’” Ruberton v. Gabage, 280
N.J. Super. 125, 131 (App. Div. 1995) (quoting Black’s Law
Dictionary 1084 (5th ed. 1979)). Acts subject to abuse of
process include “attachment, execution, garnishment,
sequestration proceedings, arrest of the person and criminal
prosecution and even such infrequent cases as the use of a
subpoena for the collection of a debt.” Baglini v. Lauletta,
338 N.J. Super. 282, 284 (App. Div. 2001) (citation omitted).
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Here, plaintiff asserts defendants engaged in malicious
abuse of process by prosecuting a complaint they knew was not
legitimate, motivated by ill will. However, plaintiff fails to
allege any facts showing defendants engaged in any judicial
process or abused any process used by courts. Rather, plaintiff
claims defendants disregarded statutory due process requirements
when conducting an internal investigation. Plaintiff provides
no facts showing the internal investigation amounted to a
procedural method used by a court or judicial process and it was
in no way similar to a sequestration proceedings, arrest, or
subpoena. Because the processes subject to a malicious abuse of
process claim are confined to those used by the courts and
judiciary, plaintiff’s claim for malicious abuse of process must
fail.
B. The Tort of Malicious Use of Process Requires TheUse of Judicial Process.
In Count Five, plaintiff alleges a malicious use of process
claim based on defendants’ prosecution of a complaint based on
ill will and violation of his statutory due process rights.
Under New Jersey law, to bring a malicious use of process cause
of action, a plaintiff must allege that “(1) defendant
instituted the civil action against the plaintiff; (2) defendant
was motivated by malice; (3) defendant lacked probable cause;
(4) the civil action terminated favorably to the plaintiff; and
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(5) plaintiff suffered a special grievance.” Green v. Green,
899 F.Supp.2d 291, 301 (D.N.J. 2012). See also Hassoun v.
Cimmino, 126 F.Supp.2d 353, 369 (D.N.J. 2000) (quoting Giri v.
Rutgers Cas. Ins. Co., 273 N.J. Super. 340, 347 (App. Div.
1994)).
Here, plaintiff failed to allege any facts establishing
defendants’ malicious use of process. While plaintiff alleges
defendants acted out of malice and without probable cause by
pursuing an investigation they knew was not legitimate and
disregarded his due process rights, he does not allege that
defendants instituted a civil action against him. According to
the Complaint, defendants only conducted an internal
investigation against plaintiff, and his grievance complaint is
pending. Because defendants have not instituted a civil action
against plaintiff, he also fails to establish that a civil
action terminated favorably to him and that he suffered a
special grievance. Rather, plaintiff alleges defendants placed
him on administrative leave indefinitely and simply decided not
to re-hire him. Thus, even the internal investigation did not
terminate in his favor, as he was not re-hired and he did not
suffer a special grievance because he was placed on
administrative leave – not fired – for the remainder of the
football season.
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Because plaintiff fails to plead facts sufficient to
support the elements of a prima facie malicious use of process
claim, Count Five must be dismissed for failure to state a
claim.
POINT V
COUNT SIX FAILS TO STATE A CLAIM BECAUSE AGE DISPARITYALONE IS INSUFFICIENT TO SUSTAIN AN AGE DISCRIMINATIONCLAIM AND NO FACTUAL ALLEGATIONS ESTABLISH AGE-BASED ANIMUSBY DEFENDANTS.
In Count Six, plaintiff alleges age discrimination in
violation of the LAD. The LAD provides, in pertinent part, that
it is unlawful “[f]or an employer, because of the . . . age . .
. of any individual . . . to discharge or require to retire,
unless justified by lawful considerations other than age, from
employment such individual or to discriminate against such
individual in compensation or in terms, conditions or privileges
of employment[.]” N.J.S.A. 10:5–12.
In establishing a prima facie case for age discrimination
under the LAD, “[t]he focal question is not necessarily how old
or young the claimant or his replacement was, but rather whether
the claimant’s age, in any significant way, ‘made a difference’
in the treatment he was accorded by his employer.” Petrusky v.
Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 82 (App. Div.
2001). See also Wright v. L-3 Comms. Corp., 227 F.Supp.2d 293,
301 (D.N.J. 2002); Young v. Hobart W. Grp., 385 N.J. Super. 448,
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459 (App. Div. 2005). Age must not have only played a
significant role in the decision making process but must have
had a “determinative influence on the outcome of that process.”
Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 344
(App. Div. 1997) (citation omitted). Such discrimination must
be intentional. See Jansen v. Food Circus Supermarkets, Inc.,
110 N.J. 363, 383 (1988).
Here, plaintiff fails to make any factual allegations,
which if proven true, would establish an age-based animus on the
part of defendants. He asserts he was not re-hired because of
his age, but fails to allege any facts showing age played a
significant role in his non-reappointment or had a determinative
influence on that outcome.
While plaintiff may belong to a protected class because of
his age, his allegations that the District placed him on
administrative leave and conducted an investigation after
receiving a complaint evidence that the District did not act out
of a discriminatory animus based on his age; it acted upon
receiving a complaint and based upon the results of the
investigation. Because plaintiff was placed on administrative
leave until the end of the football season, the District sought
to fill a vacancy that occurred after plaintiff’s employment
effectively expired. As such, his factual allegations do not
support an inference that the District sought to replace him
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because of his age, but show he was placed on administrative
leave because of a complaint against him and not re-hired
because of a pending investigation. Since plaintiff fails to
plead sufficient facts to infer a discriminatory animus based on
age, Count Six must be dismissed for failure to state a claim.
POINT VI
COUNT SEVEN FAILS TO STATE A CLAIM BECAUSE THE FILING OF APERSONAL GRIEVANCE IS NOT A PROTECTED ACTIVITY UNDER NEWJERSEY LAW.
In Count Seven, plaintiff asserts a Pierce claim, alleging
the District chose not to re-hire him because he filed a
grievance with the School Ethics Commission and that his non-
rehiring was therefore retaliatory and against the public policy
of the State of New Jersey. Because plaintiff was not fired, or
wrongfully discharged, for filing a grievance, his claim must be
dismissed.
Absent an employment contract, employers or employees can
terminate their employment relationship with or without cause.
Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 65-66 (1980) (citing
Schlenk v. Lehigh Valley R.R. Co., 1 N.J. 131, 135 (1948)). To
protect at-will employees, the New Jersey Supreme Court has
recognized a common law cause of action for at-will employees
"who were discharged for reasons that were in some way
'wrongful.'" Id. at 67. "In most cases of wrongful discharge,
the employee must show retaliation that directly relates to an
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employee's resistance to or disclosure of an employer's illicit
conduct." MacDougall v. Weichert, 144 N.J. 380, 393 (1996)
(citations omitted).
An employee may show retaliation based on his or her
“exercise of certain established rights, violating a clear
mandate of public policy." MacDougall, 144 N.J. at 393. To
that end, an employee in New Jersey "has a cause of action for
wrongful discharge when the discharge is contrary to a clear
mandate of public policy." Pierce, 84 N.J. at 72; see also
N.J.S.A. 34:19-1 to -8 (recognizing a statutory cause of action
for retaliatory discharge). Sources of public policy include
"legislation; administrative rules; regulations or decisions;
and judicial decisions." Ibid. If an employee fails to point
to a clear expression of public policy, a court "can grant a
motion to dismiss or for summary judgment." Id. at 73.
A plaintiff must either complain to an external authority
or partake in "other action reasonably calculated to prevent the
objectionable conduct." House v. Carter-Wallace, 232 N.J.
Super. 42, 49 (App. Div. 1989). See also Tartaglia v. UBS Paine
Webber Inc., 197 N.J. 81, 109 (2008) (stating that to support a
Pierce claim, a plaintiff must lodge a complaint with the
appropriate authorities). The Pierce claim requires an employee
to express “a disagreement with a corporate policy, directive,
or decision based on a clear mandate of public policy derived
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from” legislation, administrative rules, regulations, or
judicial decisions, and a “sufficient expression of that
disagreement . . . support[s] the conclusion that the resulting
discharge violates the mandate of public policy and is
wrongful.” Tartaglia, 197 N.J. at 109. Therefore, an employee
must prove he or she complained about a public policy violation
and that his or her discharge also violated a clear public
policy. Id. at 112. Complaints to an outside agency or senior
corporate management will ordinarily suffice, but a complaint to
an immediate supervisor or a passing remark to a co-worker will
not. Ibid.
Here, plaintiff fails to plead facts sufficient to maintain
a common law wrongful termination claim, or a Pierce claim.
First, there is no indication the grievance he filed concerned
the District’s violation of a “clear mandate of public policy.”
Tartaglia, 197 N.J. at 109. While he identifies the public
policy that was violated by his “effective firing,” the
complaint fails to identify what corporate policy, directive, or
decision he disagreed with based on a clear mandate of public
policy. The only possible inference from the factual
allegations he provides is that he filed the grievance in
response to his suspension and his non-reappointment. However,
the public policy relied upon by the plaintiff must concern more
than one person or a private interest; it must be one that “on
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balance is beneficial to the public.” Pierce, 84 N.J. at 75;
MacDougall, 144 N.J. at 392; Hennessey v. Coastal Eagle Point
Oil Co., 129 N.J. 81, 100 (1992).
Plaintiff points to no public policy upon which he based
his grievance. Moreover, his factual allegations suggest that
it concerned only the manner in which the District handled the
internal investigation and its outcome. While the grievance
identified certain District policies, provisions of the
collective bargaining agreement and statutes, the alleged
violations concerned only his private interest in his reputation
and reappointment, not one beneficial to the public or
concerning someone other than only himself. Thus, he fails to
plead sufficient facts to support a Pierce claim.
To the extent plaintiff is alleging he was constructively
discharged when the District “decided not to re-hire” him and
that that decision constituted an “effective firing,” plaintiff
fails to state a cognizable claim. Plaintiff does not allege he
was fired but that after the football season ended, his
“suspension effectively was expired” and thereafter he
“submitted his name to the [District] . . . as a candidate for
the 2018 head football coach” and was not selected2. Thus,
there was no actual termination, but simply an administrative
2 As noted above, while not material to this motion, the Districthas no record of plaintiff applying for the position for the2018 season.
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suspension that started before he filed his grievance and
happened to last through the effective term of his employment.
Moreover, he was not constructively terminated because he
did not resign and he does not allege that defendants created an
intolerable hostile or discriminatory work environment. In New
Jersey, a constructive discharge claim requires an employer to
“knowingly permit[] conditions of discrimination in employment
so intolerable that a reasonable person subject to them would
resign.” Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1,
27-28 (2002). The discharged employee must show more than
“severe or pervasive conduct” as the “standard envisions a
‘sense of outrageous, coercive and unconscionable
requirements.’” Id. at 28 (citations omitted).
In this case, plaintiff sets forth no factual allegations
showing defendants knowingly permitted intolerable, coercive, or
unconscionable conditions of discrimination or that he actually
departed from the employment. See Grimes v. City of E. Orange,
285 N.J. Super. 154, 165 (App. Div. 1995) (requiring a plaintiff
to resign in order to assert a constructive discharge claim).
Because plaintiff fails to identify a sufficient expression of
disagreement with a policy, directive or decision based upon a
clear mandate of public policy and because he was not either
actually or constructively terminated, Count Seven must be
dismissed.
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POINT VII
COUNT EIGHT FAILS TO STATE A CLAIM BECAUSE THE PRESSRELEASE IS NON-DEFAMATORY AS A MATTER OF LAW.
In Count Eight, plaintiff asserts a defamation claim
arising from the dissemination of a press release and verbal
statements made to the public. Plaintiff pleads insufficient
facts from which it can be inferred that the statements made by
defendants concerned plaintiff, and even if such an inference
could be made, the statements in question are protected by
qualified privilege.
To establish a prima facie case of defamation, a plaintiff
must show the defendant communicated to a third person a false
statement about plaintiff that tended to harm plaintiff's
reputation in the eyes of the community or to cause others to
avoid plaintiff. McLaughlin v. Rosanio, Bailets & Talamo, Inc.,
331 N.J. Super. 303, 312 (App. Div. 2000) (citing Lynch v. New
Jersey Educ. Ass'n, 161 N.J. 152, 164-65, (1999); Feggans v.
Billington, 291 N.J. Super. 382, 390-91 (App. Div. 1996)).
Generally, a defamation claim has three elements: “(1) the
assertion of a false and defamatory statement concerning
another; (2) the unprivileged publication of that statement to a
third party; and (3) fault amounting at least to negligence by
the publisher.” Leang v. Jersey City Bd. of Educ., 198 N.J.
557, 585 (2009) (quoting DeAngelis v. Hill, 180 N.J. 1, 13
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28
(2004)); see also Feggans, 291 N.J. Super. at 391. “Whether the
meaning of a statement is susceptible of a defamatory meaning is
a question of law for the court.” Ward v. Selikovsky, 136 N.J.
516, 529 (1994).
A. No Third Person Could Understand That the AllegedDefamatory Communication Concerned Plaintiff.
The circumstances under which a defamatory statement is
made must show the alleged defamatory statements are “of and
concerning” plaintiff. Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 768 (1989) (citation omitted). A third
person must have understood that the statements relate to the
plaintiff. Ibid. (citation omitted)).
In Gnapinski v. Goldyn, 23 N.J. 243, 253 (1957), the New
Jersey Supreme Court held that more than mere publication had to
be proved to warrant the inference that the listener in fact
understood that plaintiff was being referred to when the
statement was made.. The Court emphasized that given the lack
of evidence suggesting a third person understood the statements
referred to the plaintiff, a defamation claim could not be
established. Ibid.
In this case, the press release regarding the investigation
into the allegations against the football coaches and about
student well-being never mentioned plaintiff by name. (See
Harrison Cert, Exhibit C). It references the questions asked of
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the students and in those questions there are references to “the
head football coach or … assistant coaches,” but there is no
mention of any first or last name, only “the head football
coach.” (Id.). It simply describes the outcome of the
investigation. Thus, the recipients of the press release would
have no way of knowing that any of the references to the
football coaches were “of and concerning” the plaintiff.
More fundamentally, he fails to identify the alleged verbal
defamatory statements made to the public. His statement that
“[d]efendants have made false defamatory statements concerning
[p]laintiff, damaging [p]laintiff’s reputation” is not
accompanied by any factual allegation supporting the contention;
thus it amounts to a bare conclusory assertion that falls far
short of the Iqbal/Twombly pleading standard.
B. The Press Release Is Protected by a QualifiedPrivilege.
Statements otherwise alleged to be defamatory may not be
actionable against the publisher if the statement was published
under privileged circumstances. Gallo v. Princeton Univ., 281
N.J Super. 134, 142 (App. Div. 1995). Privileges may be
“absolute” (such as, the litigation privilege), which means that
the statements are completely immune, or “qualified,” meaning
that the statements are entitled to limited protection. Dairy
Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125, 136 (1986).
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“A communication made bona fide upon any subject matter in
which the party communicating has an interest or in reference to
which he has a duty, is privileged if made to a person having a
corresponding interest or duty.” Williams v. Bell Tel. Labs.,
132 N.J. 109, 121 (1993). A qualified privilege shields the
defamatory statements made in furtherance of the interest the
qualified privilege is meant to accommodate, regardless of
whether those remarks turn out to be false or defamatory.
Feggans, 291 N.J. Super. at 392-93. In determining whether
qualified privilege applies to the statement, the court should
consider “the circumstantial justification for the publication
of the defamatory information[,] . . . the appropriateness of
the occasion on which the defamatory information is published,
the legitimacy of the interest thereby sought to be protected or
promoted, and the pertinence of the receipt of that information
by the recipient.” Erickson v. Marsh & McLennan Co., 117 N.J.
539, 564 (1990) (citation omitted).
The existence or absence of a qualified privilege in a
defamation action is a question of law for the court to decide.
Lawrence v. Bauer Publ’g & Printing, 89 N.J. 451, 462 (1982).
Thus, a court need not decide what normally is thethreshold question of law, that is, whether astatement was "reasonably susceptible of a defamatorymeaning," rather, it will examine the relationship ofthe parties, the persons to whom the statement iscommunicated, the circumstances attendant to the
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statement, and the manner in which the statement ismade.
Feggans, 291 N.J. Super. at 394-95 (citations omitted).
“[T]he burden of establishing the existence of a
[qualified] privilege is on the defendant . . . .” Ibid. After
the qualified privilege is established, “plaintiff bears the
burden of proving defendant’s abuse of qualified privilege . . .
by clear and convincing evidence.” Williams, 132 N.J. at 121
(citing Erickson, 117 N.J. 539). A qualified privilege, if
abused, will cease to protect the publisher against a claim of
defamation. Feggans, 291 N.J. Super. at 394. A publisher
abuses a qualified privilege if (1) the publisher knows the
statement is false or the publisher acts in reckless disregard
of its veracity; (2) the publication serves a purpose contrary
to the interests of the qualified privilege; or (3) the
statement is excessively published. Ibid.; see also Lutz v.
Royal Ins. Co. of Am., 245 N.J. Super. 480, 499 (App. Div.
1991); Sokolay v. Edin, 65 N.J. Super. 112, 127 (App. Div.
1961).
In the instant matter, the District had an interest in
informing the Verona community of the nature of the
investigation and its results. After students and the coaches
were interviewed, the administrators reasonably anticipated they
would receive inquiries regarding the investigation from
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parents, students, the press, and other interested parties.
They had a legitimate interest in keeping the community informed
of the actual facts of the investigation and its outcome because
of the public interest in fully and fairly investigating
allegations of wrongdoing by the school’s staff towards students
and addressing the situation accordingly. Rocci v. Ecole
Secondaire Macdonald-Cartier, 165 N.J. 149, 156 (2000)
(recognizing the strong public interest in the conduct of an
employee whose job responsibilities involve contact with
children). The members of the Verona community have a
corresponding interest in keeping apprised of the investigation
and knowing any allegations of wrongdoing against employees
concerning children have been investigated fairly and fully.
Moreover, plaintiff’s bare recital of the element that
“[d]efendants have communicated these false statements with the
actual knowledge that these statements were false, or with
reckless regard by [d]efendants . . ., or with negligence in
failing to determine the falsity of the statement” is a mere
conclusory statement that fails as a matter of law to support a
claim that defendants abused the privilege. Plaintiff provides
no factual support showing defendants communicated any false
statement with actual knowledge that it was false, with reckless
disregard, or with negligence. Accordingly, plaintiff’s
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defamation claim also fails for failure to identify a false
statement.
POINT VIII
COUNT NINE FAILS TO STATE A CLAIM BECAUSE PLAINTIFF’SFACTUAL ALLEGATIONS DO NOT ESTABLISH OUTRAGEOUS CONDUCT BYDEFENDANTS.
In Count Nine, plaintiff asserts an intentional infliction
of emotional distress (IIED) claim. To establish a claim for
IIED plaintiff must show that: (1) defendant acted intentionally
or recklessly; (2) the conduct was “extreme and outrageous”; (3)
defendant’s actions were the proximate cause of plaintiff’s
emotional distress; and (4) plaintiff’s emotional distress was
“so severe that no reasonable person could be expected to endure
it.” Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 365-66
(1988); see also Leang v. Jersey City Bd. of Educ., 198 N.J.
557, 587 (2009); Taylor v. Metzger, 152 N.J. 490 (1998).
For liability to attach, the plaintiff must prove the
defendant intended both the act and to produce the emotional
distress. Buckley, 111 N.J. at 366 (emphasis added).
Alternatively, the plaintiff must prove the defendant acted in
“deliberate disregard of a high degree of probability that
emotional distress will follow.” Ibid.
“The conduct must be ‘so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
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intolerable in a civilized community.’” Ibid. (quoting
Restatement (Second) of Torts, § 46 cmt. d)). As such, “mere
insults, indignities, threats, annoyances, petty oppressions, or
other trivialities” will not support an intentional infliction
of emotional distress claim. Taylor, 152 N.J. at 509 (quoting
49 Prospect St. Tenants Ass'n v. Sheva Gardens, Inc., 227 N.J.
Super. 449, 472 (App. Div. 1988)).
In Taylor, the Court noted that not every instance of
discriminatory harassment in the workplace rises to the level of
IIED. Id. at 527. While for a LAD claim “[t]he plaintiff’s
injury need be no more tangible or serious than the conditions
of employment have been altered and the work environment has
become abusive,” showing of such an injury would be insufficient
to meet the required level of harm when asserting an IIED claim.
Ibid. (quoting Lehmann v. Toys R Us, Inc., 132 N.J. 587, 610
(1993)). The “elevated threshold” required to prove a case of
IIED can only be met in extreme cases. Griffin v. Tops
Appliance City, Inc., 337 N.J. Super. 15, 23 (App. Div. 2001).
See 49 Prospect St. Tenants Ass’n, 227 N.J. Super. 449 (finding
an IIED claim when a landlord failed to provide central heating,
running water, and reasonable security in a rent controlled
building in an effort to induce the tenants to vacate); Taylor,
152 N.J. at 508-21 (finding an IIED claim when an employer
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referred to an African American employee with a disgusting
racial epithet).
Except for cases like Taylor, “it is extremely rare to find
conduct in the employment context that will rise to the level of
outrageousness necessary to provide a basis for recovery for the
tort of” IIED. Griffin, 337 N.J Super. at 23 (citing Cox v.
Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1990)). The
Third Circuit has held that while the loss of employment is
unfortunate, it is a “common event” and cannot meet the
threshold required for an IIED claim. Cox, 861 F.2d at 395.
As such, “allegations of sexual harassment, discrimination,
or improperly motivated discharge, cannot alone provide the
basis for an” IIED claim and “claims regarding employment
decisions fail to state a claim as for intentional infliction of
emotional distress as a matter of law.” Acevedo v. Monsignor
Donovan High Sch., 420 F.Supp.2d 337, 348 (D.N.J. 2006)
(citations omitted).
Here, plaintiff fails to provide any factual support for
the contention that defendants acted in an extreme and
outrageous manner amounting to intolerable conduct, as he fails
to identify what acts by defendants constituted intolerable or
outrageous behavior. Rather, he only alleges he was placed on
administrative leave, not informed of the complaint spurring the
investigation, not re-hired for the subsequent school year, was
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discriminated against because of his age, and was unfairly
investigated. Such actions constitute employment decisions
which this court has declared insufficient to support an IIED
claim. Ibid. If terminations are considered commonplace and
not extreme or outrageous, plaintiff’s allegations regarding his
indefinite suspension until the end of the school year also do
not amount to the level of outrageous behavior required to
sustain an IIED claim. Accordingly, Count Nine must be
dismissed for failure to state a claim.
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POINT IX
COUNT TEN FAILS TO STATE A CLAIM BECAUSE THE TORT OFNEGLIGENT INFLICTION OF EMOTIONAL DISTRESS DOES NOTENCOMPASS AN EMPLOYMENT DISPUTE.
In Count Ten, plaintiff asserts a negligent infliction of
emotional duress (NIED) claim. Under New Jersey law, a
plaintiff may recover for negligent infliction of emotional
injury if the defendant’s negligent conduct placed the plaintiff
in “a reasonable fear of immediate personal injury” and the
plaintiff’s emotional distress resulted in “substantial bodily
injury or sickness.” Gupta v. Asha Enterprises, L.L.C., 422 N.J.
Super. 136, 151-52 (App. Div. 2011).
Alternately, a plaintiff may recover for “bystander” NIED
where the defendant’s negligent conduct caused death or serious
bodily to one with whom the bystander shared a marital or
intimate family relationship, the bystander contemporaneously
observed the death or injury, and the plaintiff suffered severe
emotional distress. Id. at 152. Plaintiff sets forth no facts
in his complaint in support of either theory and, as such, his
NIED claim must be dismissed for failure to state a claim upon
which relief can be granted.
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CONCLUSION
For the foregoing reasons, the Court should dismiss the
Complaint for failure to state a claim upon which relief can be
granted, pursuant to Fed. R. Civ. P. 12(b)(6).
Respectfully submitted,
METHFESSEL & WERBEL, ESQS.Attorneys for Metuchen PublicSchool District
By:_______________________________Eric L. Harrison
DATED: September 21, 2018
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METHFESSEL & WERBEL, ESQS.2025 Lincoln Highway, Suite 200PO Box 3012Edison, New Jersey 08818(732) 248-42001(732) [email protected] for Verona Board of Education, Rui Dionisio, JohnQuattrocchi, Michele Bernardino and Josh CogdillOur File No. 86601 ELH
UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY
LOUIS RACIOPPE
Plaintiff,
V.
VERONA BOARD OF EDUCATION;RUI DIONISIO IN HISINDIVIDUAL AND OFFICIALCAPACITY; JOHN QUATTROCCHI INHIS INDIVIDUAL AND OFFICIALCAPACITY; MICHELE BERNARDINO,INHER INDIVIDUAL ANDPROFESSIONAL CAPACITY, JOSHCOGDILL, IN HIS INDIVIDUALAND PROFESSIONAL CAPACITY,JOHN/JANE DOE 1-10,FICTITIOUS INDIVIDUALS ANDABC ENTITIES 1-10, FICTITIOUSENTITIES
Defendants.
DOCKET NO.: ESX-L-5723-18/2:18-CV-13308
Civil Action
ORDER DISMISSING THECOMPLAINT FOR FAILURE TO
STATE A CLAIM
THIS MATTER having been brought before the Court on
the Motion of Methfessel & Werbel attorneys for defendants,
Verona Board of Education, Rui Dionisio, John Quattrocchi,
Michele Bernardino and Josh Cogdill for an Order, and the
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Court having considered the matter and for good cause
shown;
IT IS on this ________ day of _________________________
2018;
ORDERED that Plaintiff’s Complaint be and is hereby
DISMISSED with prejudice for the failure to state a claim upon
which relief can be granted.
ORDERED that a copy of this Order be served on all
counsel within days of the date hereof.
____________________________Hon. John Michael Vazquez,U.S.D.J.
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Our File No. 86601
CERTIFICATE OF MAILING
The undersigned hereby certifies as follows:
1. I am employed by the law firm of Methfessel &Werbel.
2. On September 21, 2018 the undersigned preparedand forwarded copies of the within correspondence to thefollowing parties:
VIA ELECTRONIC FILING AND LAYWERS SERVICEHon. John Michael Vazquez, U.S.D.J.United States District Court50 Walnut StreetNewark, NJ 07101
VIA ELECTRONIC FILINGGregory Mascera, Esq.Bannon, Rowding, McDonald & Mascera, PA10 South Prospect StreetPO Box 146Verona, New Jersey 07044Attorneys for: Louis Racioppe
3. I certify that the foregoing statements made byme are true. I am aware that if any of the foregoingstatements made by me are willfully false, I am subject topunishment.
_____________________________Felicia M. Ricci
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