Southward v. Elizabeth Bd. of Educ.

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

Civil Action No. 15-3699 (KM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

January 11, 2017

OPINION

MCNULTY, District Judge

This matter comes before the Court upon Defendants' motion (ECF No. 29) to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is GRANTED in part without prejudice, and DENIED in part.

This Opinion is organized as follows:

I. Background

II. Legal Standards On Motion to Dismiss

III. Claims Asserted by Southward

A. CEPA (Count 1)

i. Legal standards under CEPA

ii. Discussion of Southward's Count 1 CEPA Claim

1. Statute of limitations

2. Notice-exhaustion requirement

3. Liability of individual defendants

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

1. Statute of limitations

2. Causation

3. Other grounds

IV. Claims Asserted by Kulick

A. CEPA (Count 2)

B. First Amendment and NJCRA (Counts 3, 5)

1. Liability of individual defendants

2. Other grounds

V. NJ RICO

I. BACKGROUND

Joined together in this Complaint are claims brought by two employees of the public school system who were dismissed in June 2014. Although the claims are similar, the supporting facts are distinct, and I summarize them separately.¹

A. Southward's Factual Allegations

Plaintiff Carmen Southward was first employed by defendant Elizabeth Board of Education (the "Board") in 2006 as a teacher. (ECF No. 26, Amended Complaint (cited as "AC") ¶ 20). In July 2009, she became Interim Supervisor for Recruitment and Hiring in the Human Resources Department. (Id. ¶ 24).

Southward claims that in 2010 and 2011 (during her time as a Supervisor in the Human Resources Department) she reported misconduct by Director of Education Daphne Marchetti. Southward's alleged whistleblowing consisted of complaints about (i) personnel actions and violations of Board policy regarding teacher credentials (after learning that Marchetti did not possess the required state certifications to work as either a teacher or an administrator for the Board) (AC ¶¶ 28-30); (ii) misuse of vacation time (after learning that Marchetti had a secretary in the Human Resources Department reload all of her vacation days back into the system) (id. ¶¶ 34-35); and (iii) improper taking of maternity leave (after learning that Marchetti provided a forged medical certificate to obtain extended leave) (id. ¶¶ 43-46). In the same 2010-11 period, Southward (i) objected to the request of defendant Rafael Fajardo to hand out "political pins at HR interviews of new candidates" (id. ¶¶ 26-27, 166); (ii) refused to approve the hiring of a Board-backed, non-tenured candidate because there were other tenured candidates on the hire list (id. ¶ 42, 164); and (iii) refused to alter employment paperwork for Fajardo (id. ¶ 165).

Southward alleges that her whistleblowing, defined to include refusal to cooperate with improper conduct, led to retaliation. In 2010 and 2011, (i) defendant Pablo Munoz, who was then the Superintendent, told her to stop reporting about teacher-credential issues and undermined her job functions by limiting her ability to recommend personnel actions related to transfers, new hires, and non-renewals (AC ¶¶ 31, 36-38); (ii) defendant Francisco Gonzales contacted her at home to warn her that things would get "ugly" because shehad reported Marchetti's violations (id. ¶ 56); (iii) Munoz, at a cabinet meeting, asked if anyone wanted to address the serious concerns with Southward's handling of the vacancies in Elizabeth's schools (i.e., Southward's refusal to hire the Board members' preferred candidates) (id. ¶¶ 51-52); (iv) she received a letter of reprimand related to the vacancy issues raised at the meeting (id. ¶ 54-55); (v) she received a negative performance evaluation by her supervisor for the first time (id. ¶¶ 64-65); (vi) in February 2011 she was demoted from her position as Supervisor of Human Resources and transferred from the main office to School 28 (id. ¶¶ 57-59); and (vii) in June 2011 she was transferred out of Human Resources to the Food Services Department (id. ¶ 73).

In her new position as Interim Supervisor of Food Services, Southward learned that "some board members, teachers and administrators were receiving free lunches, when same should have been reserved for the students whose economic status qualified them to receive free meals through the school." (AC ¶ 76). In the summer of 2011, Southward reported the abuse of the federal school lunch program to the Union County Prosecutor, the New Jersey Attorney General's Office, and the Federal Bureau of Investigation ("FBI"). (Id. ¶¶ 76-78). She met with law enforcement officials through the rest of 2011, 2012, and 2013, and reported additional violations of the Board's personnel policies and the use of paid time for political activities. (Id. ¶¶ 89, 79-80).

In July 2013, Southward heard secondhand that the defendants were aware she had been speaking to the FBI. (AC ¶ 90). In April 2014, she was informed that Fajardo had obtained a copy of her interview notes with the FBI. (Id. ¶ 91). On June 13, 2014, Southward was notified that she would be terminated effective June 30, 2014. (Id. ¶ 93). For the two weeks preceding her termination, Southward was sent to what was colloquially known as the "rubber room," where she remained in "solitary confinement" without a phone or computer. (Id. ¶ 94).

B. Kulick's Factual Allegations

Plaintiff Kristin Kulick was the Board's Director of Special Projects beginning in August 2009. (AC ¶ 104). She, too, alleges that she blew the whistle on improper conduct in the school system.

In the spring of 2010, Kulick raised concerns that her co-worker Amy Gomes, who was the fiancee of defendant Tony Monteiro, was arriving to work late and sometimes visibly intoxicated. (Id. ¶ 109). Kulick informed Karen Murray, then the Director of Human Resources (who happens to be Kulick's sister), about Gomes's conduct. (Id. ¶ 111). Murray raised concerns about promoting Gomes, after which Murray was placed on administrative leave and ultimately terminated. (Id. ¶ 112). Afterwards, defendant Goncalves warned Kulick that her sister's termination "doesn't have to affect you, unless you want it to," a remark Kulick perceived as a threat. (Id. ¶ 113).

Four years later, in the spring of 2014, Kulick resumed her whistleblowing. At a Director's Association union meeting, she raised concerns that she and other Directors had not received the merit pay to which they were entitled under a 2012 Memorandum of Agreement. (AC ¶ 115). Defendant Ocasio told Kulick that "he was privy to information regarding certain individuals who were going to be 'let go' and told Ms. Kulick that she should not be asking questions like that at that time." (Id. ¶ 117). Nevertheless, Kulick submitted a written request to defendant Munoz that Directors receive their merit pay. (Id. ¶ 120). Kulick asserts that the termination of her employment in June 2014 was in retaliation for these activities. (Id. ¶¶ 115-21).

Kulick also asserts that she was punished for refusing to participate in political activities. In support, she alleges that shortly after she was hired in 2009, Annie Rooney, defendant Munoz's secretary, informed her that she was expected to purchase tickets to the Board members' political fundraisers and events. (AC ¶¶ 128-31). Out of fear, Kulick did purchase tickets. (Id. ¶¶ 128-31).

Kulick alleges that she was harassed and forced to contribute time and money to political campaigns, and that for a time she acquiesced. (AC ¶¶ 131-35). Specifically, Kulick alleges that she was harassed and threatened by defendant Fajardo, who (although not a Board member at the time) controlled new hires and ran many of the Board members' political campaigns from his private business office. (Id. ¶¶ 136-37). In 2012 and 2013, Fajardo called Kulick and left threatening voice messages to induce her to contribute more to the campaigns of Board members. (Id. ¶¶ 138-46). After Kulick refused to purchase expensive tickets for a fundraiser, defendant Goncalves told her during a June 2013 performance evaluation that "none of us are safe." She perceived this statement as a threat to her job. (Id. ¶¶ 147-49).

In September 2013, a Board-backed campaign led to the creation of a non-profit charity, to which Kulick refused to contribute. (AC ¶¶ 150-51). In January 2014, Goncalves sent Ocasio to monitor Kulick's meetings, with the intent of intimidating her into changing her stance on fundraising issues. (Id. ¶ 152). Finally, in May 2014, Kulick was told to pressure two school principals to encourage their students to attend the Elizabeth Cuban Day parade. (Id. ¶ 153) . After a low turnout at the parade, Kulick was reprimanded and harassed. (Id. ¶ 154). Thereafter, Kulick altogether stopped contributing her time and money to Board-backed campaigns. (Id. ¶¶ 155-56). In June 2014, Kulick was terminated from her position and replaced by Ocasio, who was politically connected but had qualifications inferior to those of Kulick. (Id. ¶¶ 157-58).

C. Procedural History

Plaintiffs...