A federal judge from the District of New Jersey granted a school district’s motion for summary judgement in a case in which it was sued after an athletic trainer alleged that she was demoted, and subjected to a “hostile work environment,” in retaliation for reporting that the school’s football coach was giving painkillers to football players.
Plaintiff Tracy L. Power, a teacher and athletic trainer in the Bayonne school district, began working in the Bayonne school district in 2006 and received tenure in 2010. Beginning in September 2014, Power made internal complaints that the football coach, Ricardo Rodriguez, had given painkillers to football players. These allegations were investigated by the Bayonne police, but were dropped after the students denied receiving the painkillers and declined to cooperate.
Thereafter, Power made a similar report to the Federal Drug Enforcement Agency, “but the outcome, if any, is unclear, and defendants were not aware of the report when it was filed,” according to the defendant. The next year, Power made further complaints about Rodriguez’s unsafe treatment of the football players and harassment of her. In 2014, plaintiff resigned her position as equipment manager of the football team, allegedly as a result of harassment by Rodriguez.
In October 2015, the district hired an independent investigator to look into Power’s allegations. During the investigation the district determined that Rodriguez and Power should not work together and hired an outside contractor, Atlantic Health, to perform Power’s duties as athletic trainer to the football team. During that time Power was not demoted and suffered no loss in compensation. Power’s responsibility for training football players was restored in 2016 after Rodriguez left the school.
In 2016, however, Power had her salary partially withheld for reasons, the defendant claims, were “unrelated to her complaints about Rodriguez. The school board withheld her salary increment because it found she allowed students to grade one another’s tests in health class and allowed students to use her personal vehicle to run errands. Power did not submit a rebuttal to these or other misconduct allegations and did not report them to her union.”
Power first filed this case in July 2016 in the New Jersey Superior Court, Law Division, Hudson County. The complaint included five counts: Counts 1 and 2 alleged a violation of Power’s free speech rights under both the federal and New Jersey constitutions, Counts 2 and 3 alleged hostile work environment discrimination and retaliation under the New Jersey Law against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-12(a), (d), and Count 5 asserted breach of contract. The defendants removed the case to federal court. In September 2016, the defendants moved to dismiss the complaint. The court denied most of that motion, but did dismiss the Count 5 contractual claims. The court also noted that, “although the complaint cited the Fourteenth Amendment in passing, it did not assert any direct Fourteenth Amendment claim.”
After discovery, both sides filed motions for summary judgment.
The court first addressed Power’s motion for summary judgment, which it denied “because it is based entirely on a demonstrably false legal premise.” Basically, the plaintiff claimed as her “single argument” that “she should win by default because defendants did not respond to her (Request for Admissions) RFAs within 30 days and thus the RFAs should be deemed admitted.” The court noted that the defendants did move to strike them as untimely, which in effect constituted a response within the required 30-day window.
Turning to the defendant’s summary judgment motion, the court weighed its argument that summary judgment should be granted because “undisputed facts show that the type of speech in which Power engaged as a public employee was not protected” by the First Amendment.
“In order to establish a retaliation claim under the First Amendment, a plaintiff must allege (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his or her constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)).
“Here, defendants focus on the first element, arguing that Power’s speech was pursuant to her job duties as a public employee and thus not protected by the First Amendment.”
“First Amendment protection of a public employee’s speech is limited in some respects. A public employee’s speech is fully protected by the First Amendment when the employee speaks about matters of public concern in her capacity as a private citizen. Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 571-72, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). When a public employee speaks pursuant to her official duties, however, that speech is not protected by the First Amendment.” The court, therefore, concluded that “for Power to prevail on Counts 1 and 2, she must, as a preliminary matter, establish that she spoke as a private citizen on a matter of public concern and that her speech was thus protected by the First Amendment.” The federal judge found that Power did not.
The opinion states, “The record reveals that the speech that Power alleges led to retaliation against her consisted entirely of complaints up the chain of command. Power repeatedly made written complaints to her immediate supervisor, the Athletic Director, and also spoke with other school board officials within the chain of command. There are no facts in the record to show that Power spoke in a public forum in her capacity as a private citizen about her complaints regarding Coach Rodriguez.4 In fact, Power herself testified that her complaints were made pursuant to her job duties as Athletic Trainer. Thus, because her speech was made pursuant to her job duties as a public employee, rather than as a private citizen, her speech was not protected by the First Amendment.” Thus, the federal judge granted the defendant’s motion for summary judgment on Counts 1 and 2.5.
Next, the court turned to the hostile work environment under NJLAD (Count 3).
According to the court, “[s]exual harassment claims fall broadly into two categories: quid pro quo and hostile work environment. Lehmann v. Toys R Us, Inc., 132 N.J. 587, 601, 626 A.2d 445 (1993). Here, Power does not allege quid pro quo harassment, but alleges that the actions of coach Rodriguez created a hostile work environment in a manner attributable to defendants.”
Furthermore, “NJLAD prohibits sexual harassment that is ‘sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.” In order to succeed on a hostile work environment claim, the plaintiff must establish that “1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondent superior liability.”
The court reasoned that “Power puts forward no argument whatever related to her hostile work environment claim. Although the record is clear that Power and Coach Rodriguez had a number of conflicts, that Power generally found him vulgar and unpleasant, and that she complained about his allegedly giving painkillers to the players, the record does not reveal any severe and pervasive harassment based on Power’s gender.” Therefore, the federal judge granted the defendant’s motion for summary judgment once again for Count 3.
Turning to the NJLAD claim, the court noted that to prove a retaliation claim, a plaintiff show “(1) that [s]he engaged in a protected activity; (2) that [s]he suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse employment action.”
However, Power did not address this count in her briefs, which led the court to grant summary judgement on Count 4 in favor of the defendants as well.
