associates, cont’d joel n. werbel> christian r. baillie+ … · 2018-10-15 · 2:18-cv-13308...

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.




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


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



LOUIS RACIOPPE

Plaintiff,

V.


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


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


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


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


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


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


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


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


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.


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.


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


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).


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


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.


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).


8

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


9

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


10

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.


11

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.


12

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).


13

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


14

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


15

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


16

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


17

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).


18

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


19

(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.


20

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,


21

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


22

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


23

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


24

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


25

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.


26

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.


27

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


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


29

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).


30

“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


31

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


32

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


33

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


34

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


35

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


36

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.


37

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.


38

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




LOUIS RACIOPPE

Plaintiff,

V.


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


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.


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


associates, cont’d joel n. werbel> christian r. baillie+ … · 2018-10-15 · 2:18-cv-13308...

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