Tartivita v. State, Civ. No. 98-3393 (DRD) (D. N.J. 3/1/1999)
| Decision Date | 01 March 1999 |
| Docket Number | Civ. No. 98-3393 (DRD). |
| Parties | SANTO R. TARTIVITA, Plaintiff, v. STATE OF NEW JERSEY, CHRISTINE TODD WHITMAN, GOVERNOR, LEO KLAGHOLZ, N.J. STATE DEPARTMENT OF EDUCATION, NEWARK BOARD OF EDUCATION - CITY BOARD OF NEWARK, NEWARK PUBLIC SCHOOLS, EUGENE CAMPBELL, BEVERLY HALL, CAROL M. PERRY, JAMES P. KOKKALIS, ERNEST LAMONT, WILLIAM BELOTT, REYNOLDS THOMPSON, MARK KAPLAN, EDDY CROSS, CARL H. CARABELLI, JAMES J. CHALLENDER, MICHAEL GOSDEN, BILL LEAHY, RICHARD SALGADO, VIRGIL BRYAN, C. REID CRUMPLER, JAN SARNOWSKI, BRANDON SMITH, DANIEL GUTMORE and RANDALL KANTER, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Santo R. Tartivita, Atlantic Highlands, NJ, Pro se plaintiff.
Jack Wenik, Esq., Daniel A. Schlein, Esq., Sills Cummis Radin Tischman Epstein & Gross, P.A. One Riverfront Plaza, Newark, NJ, Attorneys for defendant State-Operated School District of the City of Newark.
Defendant State-Operated School District of the City of Newark (the "District")1 moves to dismiss plaintiff Santo R. Tartivita's pro se Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons the Complaint will be dismissed with prejudice as to the District only and without prejudice as to all other defendants.
Tartivita became employed as a Senior Architect by the Office of Design and Construction ("D&C Office") of the Newark Board of Education (the "Newark Board") in April 1991. Compl. ¶¶ 5, 13. During the fall of 1991 Tartivita was evaluated favorably by his supervisor, defendant James Kokkalis, who was Director of the D&C Office. Id. ¶ 13. Tartivita was then given responsibility for the two largest projects in the D&C Office, including the Hawthorne Avenue School. Id. Subsequently, Tartivita began to review contract documents for the construction of the Hawthorne Avenue School. His inspection of the contract documents suggested to him that the Newark Board had committed certain unspecified state statutory violations such as a failure to obtain building permits and state approvals and the use of faulty bidding practices. Id. ¶¶ 15-16. His complaints to his supervisors, defendants Mark Kaplan, Eugene Campbell, William Belott and Kokkalis, and others about these deficiencies were ignored. Id. ¶ 17.
In 1993 Tartivita was approached by criminal investigators from the New Jersey Department of Education ("Department of Education") and the New Jersey State Police regarding alleged unlawful activities at the Newark Board and the D&C Office. Id. ¶¶ 19-23. According to Tartivita, state investigators repeatedly requested over a three year period that he cooperate with the state in its investigation of the Newark Board, and they assured him that he would not lose his job. Id. ¶¶ 20-22, 30, 96. Tartivita further alleges that investigators represented to him that any financial losses he might suffer would be paid by the state following the takeover of the Newark Board by the Department of Education and that he would be promoted. Id. ¶¶ 24, 27, 30, 41, 59, 88, 100.
Because of his alleged cooperation with state investigators
Tartivita alleges that he was subjected to several "instances of harassment" including the following: i) between February 20, 1993 and October 27, 1995, the Newark Board improperly deducted $3,407.81 from his salary, id. ¶¶ 36-37; ii) in July 1994, $331.59 was deducted from Tartivita's salary for being late for work or leaving work early, id. ¶ 46; iii) Tartivita was ordered to wear an electronic beeper and instructed to be available for work at all times, id. ¶¶ 53-54; iv) Tartivita's working hours were changed, making it more difficult for him to take public transportation to work, id. ¶ 67; v) Tartivita's desk was moved from a window to the D&C Office's entrance door and his telephone was removed, id. ¶ 76; and vi) Tartivita was denied permission to attend seminars and computer classes, id. ¶ 105.
Tartivita alleges that the above and other events at work were ordered by Newark Board employees in retaliation for his cooperation with state investigators. In August 1993 Tartivita's application to become the Director of the D&C Office was denied. Id. ¶¶ 84-85. In June 1996 his application to become the Executive Director for facilities for the District was denied. Id. ¶ 86. In July 1996 he was dismissed from his position by the District. Id. ¶ 5.
Tartivita filed his pro se Complaint on July 17, 1998. With the exception of the denial of his application for the Executive Director position in June 1996 and his dismissal a month later, all of the conduct complained of by Tartivita occurred between 1991 and 1995. Tartivita alleges that the defendants' actions against him "were in violation of Federal whistle-blowing statutes, Title VII of the Civil Rights Act of 1964, ADEA, N.J. Conscientious Employee Protection Act and other laws," Compl. ¶ 109. In addition, he states that "[f]ederal jurisdiction in this matter is invoked by way of 28 U.S.C.A. 1331, 42 U.S.C.A. [§§] 1975, 1981, 1983, 1985, and 1986 et seq., New Jersey Statutes — NJSA 10:1 et seq., NJSA 19, et seq., NJSA 34, et seq." Id. ¶ 1. Nowhere in the Complaint does Tartivita allege that any act was taken because of his age, race, gender, religion, national origin or any other discriminatory basis.
DISMISSAL PURSUANT TO RULE 12(b)(6)
A complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In analyzing motions to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). A court should allow a plaintiff to amend the complaint instead of dismissing it where "a more carefully drafted complaint might state a claim upon which relief could be granted." Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985); see Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984).
A motion to dismiss which presents the court with matters outside the pleading which are not excluded is to be treated as a motion for summary judgment and analyzed pursuant to Rule 56. Fed. R. Civ. P. 12. In such circumstances, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id. However, an undisputedly authentic document attached to a motion to dismiss may be considered without converting it to a motion for summary judgment if plaintiff's claims are based upon that document. Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994).
It is recognized that pro se submissions "must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977) (quoting Conley v. Gibson, 355 U.S. at 45-46); see also Haines v. Kerner, 404 U.S. 519, 520, reh'g denied, 405 U.S. 948 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992); Lewis v. Attorney Gen. of the United States, 878 F.2d 714, 722 (3d Cir. 1989). When reviewing a pro se complaint, a court must construe a plaintiff's factual allegations and his or her claim liberally. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989); Haines, 404 U.S. at 520; Roman v. Jeffes, 904 F.2d 192, 197 (3d Cir. 1990).
Construing the Complaint liberally, it appears that Tartivita alleges violations of state and federal whistleblower laws, Title VII, federal civil rights laws (including Sections 1981, 1983 and 1985) and civil RICO.2 The District argues that the Complaint should be dismissed in its entirety because i) Tartivita has failed to properly plead all of the elements of any of these causes of action, ii) many of Tartivita's claims are time barred or barred for failure to exhaust administrative remedies, and iii) as an entity which is part of the State of New Jersey, the District is immune to some of Tartivita's claims by virtue of the Eleventh Amendment. Each of Tartivita's claims will be discussed in turn.
Under the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq.:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law...;
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer or another employer, with whom there is a business relationship...; or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law...;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
N.J.S.A. 34:19-3. CEPA provides that all actions must be brought within one year of an employer's alleged retaliatory acts. N.J.S.A. 34:19-5. Under New Jersey law, when a plaintiff files a cause of action based upon retaliatory discharge, the "plaintiff's cause of action accrue[s] on the date of actual discharge." Keelan v. Bell...
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