D'Ambola v. Lakewood Bd. of Educ.
| Decision Date | 31 March 2017 |
| Docket Number | CIVIL ACTION NO. 16-2735 (MLC) |
| Parties | THOMAS A. D'AMBOLA, Plaintiff, v. LAKEWOOD BOARD OF EDUCATION, et al. Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Plaintiff Thomas D'Ambola brought this suit alleging federal and state causes of action arising from his employment as Business Administrator for the Lakewood Board of Education, the non-renewal of his contract for that position, and his ultimate termination. (Dkt. 1.)1 Plaintiff alleges claims against the Lakewood Board of Education, Michael Azzara, and David Shafter.
Defendants Azzara and Shafter filed a motion to dismiss. (Dkt. 11.) Defendant Board of Education filed a partial motion to dismiss. (Dkt. 13.) Plaintiff filed a brief opposing both motions. (Dkt. 16.) Defendant Board of Education (dkt. 19) and defendants Azzara and Shafter (dkt. 20) filed reply briefs.
We have considered all these filings, and will resolve the matter without oral argument. See L.Civ.R. 78.1(b).
For the following reasons, we will deny both the partial motion to dismiss and the motion to dismiss.
Plaintiff, Thomas A. D'Ambola, a New Jersey resident, previously worked for Defendant Lakewood Board of Education ("Board," "School Board," or "Board of Education"). (Dkt. 1 at 2.) Defendant Board is a public entity under New Jersey law. (Id.) Defendant Michael Azzara served as the State Monitor for the Board of Education. (Id.) Defendant David Shafter served as a fiscal consultant and adviser to Defendant Azzara, and currently serves as the Lead State Monitor for the Board of Education. (Id.)
Plaintiff makes the following allegations and representations in his Complaint, which we accept as true for the purposes of resolving these motions to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff has worked as a school business administrator for approximately twenty years. (Dkt. 1 at 5.) Defendant Board of Education hired Plaintiff as the Board of Education's School Business Administrator/Board Secretary on December 21, 2012, for a term through June 30, 2013. (Id. at 4.) Subsequently, Plaintiff, upon the recommendation of the Board Superintendent, Laura Winters, was reappointed twice more. (Id.) Each term involved a one-year contract. (Id.) For the 2013-14 school year the contract covered the period between July 1, 2013 and June 30, 2014, and for the 2014-15 school year, the contractcovered the period between July 1, 2014 and June 30, 2015. (Id. at 5.) Plaintiff did not have employee disciplinary problems while working for the Board. (Id.)
Plaintiff's job responsibilities included serving as Secretary to the Board of Education. (Id. at 6.) As Board Secretary, Plaintiff had to attend all Board meetings to take minutes and record roll call and votes. (Id. at 6.) Prior to each Board meeting, Plaintiff would assist the Superintendent's Office in preparing the agenda. (Id. at 7.) In this capacity, Plaintiff also attended Finance, Transportation, and Buildings and Ground Committee Meetings, as well as the annual Public Budget Hearing. (Id.)
Plaintiff objected to practices by the Defendant Board regarding fiscal management that he believed violated various New Jersey laws. (Id. at 7.) Because of the deficit in the Board's 2013-14 school-year budget, the Commissioner of the New Jersey Department of Education on April 25, 2014 appointed Defendant Azzara to serve as the State Monitor in charge of overseeing the Lakewood School District. (Id. at 11.)
At the time of Plaintiff's employment, Defendant School Board provided a service known as courtesy busing. (Id. at 9.) New Jersey school districts are not required to provide transportation, such as school buses, to elementary school children who live within two miles of their school or to high school students who live within two and one-half miles from their school. (Id.) Courtesy busing is the practice of providing a transportation service to these children when the school district is otherwise not obligated to. (Id.) The service is provided to private school students. (Id.) Because courtesy busing is not required, it receives less budgetary priority than other education items and programs. (Id.)
Plaintiff met with Superintendent Winters on multiple occasions in 2013 and 2014 to plan the 2014-15 budget. (Id. at 8.) Both agreed that the courtesy busing program, if continued, would lead to a deficit in the budget. (Id.) State law places a cap on budgets, and Plaintiff believed that including the courtesy busing would unlawfully cause the Board of Education to propose a budget that exceeded that cap. (Id. at 10.)
In March 2014, Plaintiff and Superintendent Winters proposed removing the courtesy busing from the budget, and submitting a question on the next general election ballot for the Lakewood voters to either approve or reject continuing the courtesy busing service. (Id. at 10.) Plaintiff believed this would have allowed the Defendant Board to present a balanced budget, as required by law, and then permit the voters of Lakewood to determine whether they wanted to finance the courtesy busing via an increase in municipal taxes. (Id.)
For the 2014-15 school-year budget, Defendant Azzara declared that he "found" five million dollars to use in the budget, and the budget would thus be able to include courtesy busing. (Id. at 11.) Plaintiff alleges that this was unlawful and was done by Defendant Azzara to "provide a 'gift' to a powerful political group in the form of courtesy busing for the non-public students in Lakewood." (Id. at 12.)
The following year, Plaintiff expressed concern to Defendant Azzara and Superintendent Winters to his certifying of the 2015-16 school-year budget, which was also projected to include a deficit. (Id. at 13.) Superintendent Winters shared Plaintiff's budget concerns with the Defendant Board of Education. (Id.) Defendant Azzara told Plaintiff that pending revenues would stabilize the budget and instructed Plaintiff to certify the budget. (Id.) Plaintiff objected to this, believing it would be a "fraud on the system and on thetaxpayers." (Id.) Defendant Azzara suggested removing textbook purchases from the budget so that courtesy busing could be included. (Id. at 14.) Plaintiff objected, but Defendant Azzara told Plaintiff that "If I don't do it, they will replace me with someone who will do it." (Id.)
During the finalization of the 2015-16 school-year budget, Defendant Azzara did not meet to discuss details of the budget with Plaintiff even though Plaintiff served as the business administrator. (Id. at 13) According to Plaintiff, Defendants Azzara and Shafter excluded him from dialogue on the budget and finances. (Id. at 14.) The preliminary budget was more than eight million dollars over the budget cap. (Id.)
Within two months of objecting to Defendant Azzara's proposal to remove textbook purchases from the school budget, Plaintiff's employment was terminated and he was not reappointed as Business Administrator despite having the recommendation of Superintendent Winters. (Id. at 15, 18-19.) Plaintiff's last day was June 30, 2015. (Id. at 19.)
Plaintiff alleges that Defendants retaliated against him because he objected to the courtesy busing program, which he found to be unethical, unlawful, and not in the interest of the Lakewood public school students, and that ultimately Plaintiff was terminated and his contract was not reviewed, notwithstanding Superintendent Winter's recommendation. (Id. at 17.)
Plaintiff filed this federal suit alleging: that Defendants School Board, Azzara, and Shafter2 violated the New Jersey Conscientious Employee Act ("CEPA") by terminatingPlaintiff for voicing objection to the courtesy busing policy (Count One); and Defendants School Board, Azzara, and Shafter deprived Plaintiff of his First Amendment rights, in violation of 42 U.S.C. § 1983, by retaliating against Plaintiff (Count Two).3 (Dkt. 1 at 19-22.)
Defendant Board of Education filed a partial motion to dismiss.4 (Dkt. 13.) Defendants Azzara and Shafter moved to dismiss both Count One and Count Two. (Dkt. 11.) We address both motions in this opinion. For the following reasons, we will deny both motions.
Defendants Azzara and Shafter argue that they took no action, and therefore, they cannot be held liable for the actions of the Defendant School Board. (Dkt. 11-3 at 10-11.) Specifically, Defendants contend that they cannot be held liable under CEPA for decisions made by Defendant School Board that they did not participate in nor approve. (Id. at 11.) Defendant Shafter also argues that Plaintiff has failed to specifically make any allegationagainst him that meets the pleading standards of Iqbal. (Id. at 9.) Defendant School Board did not move to dismiss the CEPA claim against it.
Plaintiff argues that he has sufficiently stated a claim against both Defendant Azzara and Defendant Shafter. Plaintiff refutes Defendants' assertion that he merely raised failure to act claims. (Dkt. 16 at 23.) He notes that both Defendants "engaged in actual participation of the retaliatory treatment of and wrongful termination of [him]." (Id.) In support, Plaintiff cites specific factual allegations made in the Complaint that he claims are sufficient to survive a motion to dismiss for failure to state a claim. (Id. at 24-25.) He also points to specific allegations he made against Defendant Shafter. (Id. at 21- 22.)5
We conclude that Plaintiff has sufficiently pleaded a claim under the New Jersey Conscientious Employee Protection Act against both Defendant Azzara and Defendant Shafter. Therefore, the motion to dismiss (dkt. 11) is denied as to Count One.
The New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq., provides employees who act in the public interest by "blowing the whistle" on employers engaged in illegal or harmful activity with broad protections from employer...
To continue reading
Request your trial