Athletic Trainer’s Retaliation Lawsuit Can Continue Against School Board and Superintendent

May 26, 2017

Athletic Trainer’s Retaliation Lawsuit Can Continue Against School Board and Superintendent
A federal judge from the District of New Jersey has permitted a claim brought by an athletic trainer, who alleged that the school district and its superintendent retaliated against her in connection with her whistleblowing activities, to continue, granting only part of the defendants’ motion to dismiss.
The impetus for the lawsuit was plaintiff Tracey L. Power’s formal complaint, in September 2014, to her supervisors in the Bayonne Board of Education (BBOE), including Superintendent Patricia L. McGeehan, that there were various legal and policy violations in connection with the student athletics program.
Specifically, her complaints included allegations that medications were being illegally administered to student-athletes. Further, she alleged that a former coach for the football team allowed students, without medical clearance, to participate in team practices, ignored the heat indices, and conducted contact drills “prior to the time allowed.”
Further, Superintendent McGeehan allegedly covered up the allegations, and the Bayonne Police “visited” Power in an attempt to intimidate her. In addition, the complaint alleges that, in retaliation for these and similar complaints that Power made in September 2015, Power was “removed from her position as Athletic Trainer for the Football Team,” and was “ordered not to step on or near the Football Field.”
The plaintiff sued the BBOE and Superintendent McGeehan, in her individual capacity, alleging that they retaliated against her for whistleblowing activities. This, she alleged, violated her rights under the First and Fourteenth Amendments to the United States Constitution, the New Jersey Law Against Discrimination, and the New Jersey Constitution. She also asserted common law causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing.
On Sept. 9, 2016, the defendants moved to partially dismiss Power’s complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), or the failure to state a claim upon which relief can be granted.
The court first considered Power’s allegation that the defendants violated her right to free speech by retaliating against her for making protected communications. The claim relies on Section 1983, which provides that “every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983.
“Thus, to sufficiently set forth a section 1983 claim, a complaint must allege the violation of a right secured by the Constitution or laws of the United States and that the alleged violation was committed by a person acting under color of state law.” See Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011); see also West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).
In the second count, Power asserts similar claims under the New Jersey Civil Rights Act (the NJCRA), N.J.S.A. § 10:6-2, alleging that the defendants violated her free speech rights under Article I of the New Jersey Constitution.
The counts were considered together as one argument.
In its analysis, the court noted that a municipality may be liable under section 1983 only where the constitutional injury is alleged to have been caused by a municipal “policy” or “custom.” In such cases, a policy can be set if a decisionmaker, whether a school board or superintendent, has enough authority to be considered “a final policymaker.”
Thus, based on the information available at this, the motion to dismiss stage, it is plausible that the superintendent has final unreviewable authority as to the alleged actions taken against Power.
“Reading the complaint in the light most favorable to the plaintiff … Power has plausibly alleged that McGeehan, as Superintendent, was in a position of final policy-making authority with respect to allegedly punitive actions against Power, and that the superintendent’s actions should be deemed to bind BBOE. Accordingly, the defendants’ motion to dismiss the first and second counts as to BBOE is denied.”
Turning to Superintendent McGeehan’s motion to dismiss Power’s Fourteenth Amendment claim, the defendants argued that the complaint “failed to identify the particular right affected and fails to allege facts sufficient to hold Superintendent McGeehan liable for a Fourteenth Amendment violation.”
The judge wasn’t buying it.
The plaintiff’s Fourteenth Amendment claim is plainly intertwined with the First Amendment claim, and the defendants “do not challenge the sufficiency of the pleadings for the First Amendment claim as to the superintendent. Simply put, the defendants’ arguments seem to target claims that do not appear in the complaint.” Thus, the motion to dismiss the Fourteenth Amendment claims against McGeehan was denied.
Next, the judge considered Power’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing against BBOE and Superintendent McGeehan. The defendants succeeded on their argument that Power “has not alleged the existence of an explicit employment contract, and the policy manual provision upon which she bases her claim cannot create an implied contract.”
Tracey L. Power v. Bayonne Board of Education, and Patricia L. Mcgeehan et al.; D.N.J.; Civ. No. 16-5091 (KM) (JBC), 2017 U.S. Dist. LEXIS 65176; 4/26/17
Attorneys of Record: (for plaintiff) Christine Finnegan, Lead Attorney, Cresci Law Firm, LLC, Bayonne, NJ. (for defendants): Cherie L. Adams, Lead Attorney, Adams Gutierrez & Lattiboudere, LLC, Newark, NJ; Ruby Kumar-Thompson, Lead Attorney, Adams Gutierrez & Lattiboudere, LLC, Newark, NJ.


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