Opinion
Civ. No. 98-3393 (DRD)
March 1, 1999
Santo R. Tartivita, Atlantic Highlands, N.J., Pro se plaintiff.
Jack Wenik, Esq., Daniel A. Schlein, Esq., Sills Cummis Radin Tischman Epstein Gross, P.A., Newark, N.J., for defendant State-Operated School District of the City of Newark.
OPINION
Defendant State-Operated School District of the City of Newark (the "District") 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.
Although Tartivita names the "Newark Public Schools" as a defendant, the proper defendant is the District. Since July 1995, the Newark Board of Education has operated directly under the aegis of the New Jersey Department of Education. On July 5, 1995, the State Board of Education of New Jersey, following the recommendation of the New Jersey Commissioner of Education, entered an administrative order removing the Newark School Board and creating the District. Contini v. Board of Educ. of Newark , 286 N.J. Super. 106, 113 (App.Div. 1995), certif. denied , 145 N.J. 372 (1996). The District assumed control of the Newark school system on July 12, 1995. Id . at 114; see also City Ass'n of Supervisors and Adm'rs v. State Operated School District of the City of Newark , 311 N.J. Super. 300, 302-303 (App.Div. 1998) (noting that the City of Newark School District was "taken over" by the state in July 1995).
BACKGROUND
Tartivita became employed as a Senior Architect by the Office of Design and Construction ("DC 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 DC Office. Id. ¶ 13. Tartivita was then given responsibility for the two largest projects in the DC 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 DC 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 DC 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 DC 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).
STANDARD OF REVIEW FOR PRO S.E. SUBMISSIONS
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).
ANALYSIS
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. 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.
In the Complaint Tartivita also mentions the ADEA. Compl. ¶ 109. The ADEA claim need not be addressed here because Tartivita abandoned it in his certification and at oral argument. Tartivita Cert. ¶ 21. Tartivita also stated in his certification that his Complaint "is not for violations of the RICO Act," id . ¶ 23, yet RICO will be discussed in this opinion because at oral argument Tartivita attempted to revive this claim.
I. Violation of Whistleblower Laws
A. New Jersey's Conscientious Employee Protection Act
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 Comm. Research, 289 N.J. Super. 531, 541 (App.Div. 1996).See also Beck v. Tribert, 312 N.J. Super. 335, 346 (App.Div.),certif. denied, 156 N.J. 424 (1998).
In the present case, Tartivita alleges that he was terminated in July 1996 for whistleblowing activities. Compl. ¶ 6. All of the other acts complained of by Tartivita occurred prior to his termination. As a result, his CEPA claim expired in July 1997. Tartivita filed his Complaint on July 17, 1998, and thus his CEPA claim must be dismissed as time barred. Tartivita's assertion in his letter brief that the Complaint "was filed within the two year statute of limitations," Opp. Br. at 2, simply fails to recognize that under CEPA the statute of limitations is just one year. In addition, Tartivita's assertion that he "did not take prior legal action . . . because the defendant instructed Tartivita to do all that Tartivita claims," id., is unavailing primarily because the District is surely not the defendant to whom Tartivita refers here; rather, he accuses the state investigators of allegedly assuring him that he would be adequately compensated for cooperating with their investigation. Moreover, under CEPA Tartivita had a full year after being terminated to bring a timely state whistleblower action. Thus, his CEPA claim must be dismissed.
In his certification and at oral argument Tartivita acknowledged that he had no claim against the District for post-employment retaliation. Tartivita Cert. ¶ 22.
B. Federal Whistleblower Claim
To deal with employment claims by federal employees, Congress enacted the Civil Service Reform Act of 1978 ("CSRA"), Pub.L. 95-454, 92 Stat. 1111 et seq. (codified, as amended, in various sections of Title 5 of the United States Code). A provision to protect federal employees who engage in whistle blowing was added to 5 U.S.C. § 1213. See Daly v. Department of Energy, 741 F. Supp. 202, 204-205 (D.Colo. 1990). This federal law prohibits retaliatory actions taken by federal employers against federal employees. As a result, to the extent that Tartivita's claims can be construed as alleging a violation of 5 U.S.C. § 1213, they must be dismissed based on his failure to allege employment by the federal government.
II. Title VII Claim
The District argues that Tartivita's failure to plead that he has exhausted administrative remedies requires the dismissal of his Title VII claim. Tartivita responds that he did file a Notice of Claim with the Attorney General and the District's predecessor, the Newark Public Schools, on October 9, 1996, within 90 days after his termination on July 19, 1996. Tartivita Cert. Exhs. A-D. Assuming solely for the purposes of this motion that Tartivita properly exhausted all administrative remedies before filing suit, his Title VII claim must nonetheless be dismissed for failure to state a claim.
Under the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff in a Title VII action has the initial burden of proving his or her prima facie case by a preponderance of the evidence. If the plaintiff succeeds in making out a prima facie case of discrimination, the defendant must articulate some legitimate, non-discriminatory reason for the employee's discharge. The employee may then meet his or her ultimate burden of persuasion by proving, by a preponderance of the evidence, that the alleged reasons proffered by the defendant were pretextual and that the defendant intentionally discriminated against the plaintiff. See Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990).
At oral argument on February 23, 1999 Tartivita asserted, for the first time, that his claim under Title VII was for discrimination based on his national origin. To establish a prima facie case of national origin discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Tartivita must show that (1) he was a member of a protected class; (2) he was qualified for the job; and (3) he was discharged while other employees not in his protected class were retained. Jalil, 873 F.2d at 708.
It is clear even at this preliminary stage that plaintiff is unable make out a prima facie case of national origin discrimination. Nothing alleged in the Complaint supports Tartivita's claim that he was discriminated against based on his national origin. Indeed, nowhere in the Complaint does Tartivita even identify his nationality, let alone allege that any of the defendants' actions were motivated by discrimination against him based on his nationality. Rather, the gravamen of Tartivita's Complaint is that his employer retaliated against him for cooperating with state investigators who then breached their agreement to protect and assist him. As a result, Tartivita's Title VII claim will be dismissed.
III. Federal Civil Rights Claims
A. Sections 1981 and 1985
Section 1981 gives "[a]ll persons within the jurisdiction of . . . the United States . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981(a) (emphasis added). In other words, Section 1981 prohibits race discrimination in the making and enforcement of private contracts. To state a claim for violation of Section 1985, which prohibits conspiracies to interfere with civil rights, a plaintiff must allege, inter alia, that the "defendants' actions were motivated by a racial or otherwise class-based invidiously discriminatory animus." Litz v. City of Allentown, 896 F. Supp. 1401, 1413-1414 (E.D.Pa. 1995); 42 U.S.C. § 1985(3).
In the present case, Tartivita's Complaint fails to allege either that he was discriminated against because of his race (which is not identified) or that he is a member of any protected class. As a result, any claims under Sections 1981 and 1985 must be dismissed.
The District argues that Tartivita's Section 1981 claim should be dismissed under Patterson v. McLean Credit Union , 491 U.S. 164 (1989), which held in part that Section 1981 does not prohibit discriminatory conduct occurring after the formation of a contract. This argument is untenable. Congress expressly overruled the Patterson holding by adding new subsection (b) to Section 1981 in the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991). See H.R. Rep. No. 102-40(I), at 89-93, reprinted in 1991 U.S.C.C.A.N. 549, 627-631. More than 100 decisions, including at least one from the Court of Appeals for the Third Circuit and 14 from district courts in the Third Circuit, have noted that this portion of Patterson was superseded by statute. See, e.g . , Ezold v. Wolf, Block, Schorr and Solis-Cohen , 983 F.2d 509, 524 n. 16 (3d Cir. 1992); Klaus v. Duquesne Light Co . , No. 90-1149, 1992 WL 189390, at *5 (W.D.Pa. March 11, 1992) ("[T]he 1991 Act was clearly worded to reverse the Patterson decision which Congress expressly held was wrongly decided").
B. Section 1983
Section 1983 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 any 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. Section 1983 does not itself create substantive rights, but provides a method for obtaining relief for a violation of rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). In order to recover under this section, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Reading the Complaint liberally, the only possible constitutional claim Tartivita could allege under Section 1983 would be for violation of his First Amendment free speech rights. The District correctly argues that this claim is barred because, as the alter ego of the State of New Jersey, it is entitled to immunity under the Eleventh Amendment and cannot be sued for violations of Section 1983. The Eleventh Amendment acts as a jurisdictional bar to damage actions brought in federal courts against state governments, their agencies and state officials in their official capacity. Kentucky v. Graham, 473 U.S. 159 (1985).See also Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) (state entities are not "persons" amenable to suit in Section 1983 action); Ingenito v. Dep't of Corrections, State of New Jersey, 568 F. Supp. 946, 950 (D.N.J. 1983) ("It is clearly accepted that state agencies are not amenable to suit under § 1983, because they are not `persons' within the meaning of the civil rights statutes"). As a result, Tartivita's Section 1983 claim must be dismissed.
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
IV. Civil RICO Claim
In the jurisdictional statement of his Complaint Tartivita refers to 18 U.S.C. § 1964(c), which sets forth civil remedies for violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961 et. seq. Compl. ¶ 1. Section 1964(c), however, provides for civil damages only in the event that a "person [is] injured in his business or property by reason of a violation of section 1962 of this chapter. . . ." Section 1962, in turn, prohibits four types of activities: a) the use of income derived from a pattern of racketeering to either acquire an interest in or establish an enterprise engaged in or affecting interstate commerce; b) the acquisition or maintenance, through a pattern of racketeering, of an interest in, or control of, an enterprise engaged in or affecting interstate commerce; c) the participation in the affairs of a racketeering enterprise engaged in or affecting interstate commerce through a pattern of racketeering activity; and d) conspiring to violate any of these provisions. 18 U.S.C. § 1962(a)-(d).
The District correctly argues that to the extent Tartivita's Complaint can be construed as alleging a violation of RICO, this claim must be dismissed. No "pattern" of racketeering activity has been alleged because Tartivita failed to plead any predicate criminal act on the part of the District which falls within any of the categories of such acts enumerated in 18 U.S.C. § 1961(1). A complaint which does not specify a predicate criminal act with sufficient clarity insufficiently pleads a RICO claim. Acampora v. Boise Cascade Corp., 635 F. Supp. 66, 68 (D.N.J. 1986).
The District also correctly argues that it cannot be liable as the "person" who engaged in purported RICO violations. Section 1962(c) of RICO prohibits a person employed by an enterprise engaged in interstate commerce from conducting or participating in the conduct of the enterprise's affairs through a pattern of racketeering activity. 18 U.S.C. § 1962(c). A viable RICO claim under Section 1962(c) requires an assertion that the "person" and "enterprise" are distinct. Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 268 (3d Cir. 1995). No such assertion is made here. As a result, Tartivita's RICO claim must be dismissed.
V. State Law Contract Claim
As discussed above, Tartivita has failed to plead any federal cause of action. Tartivita's certification and letter brief, however, suggest that his theory of the case is more accurately one for breach of contract, a state law claim: "My Complaint is . . . for failing to deliver on the contractual agreement between me and defendants. The defendant needed my cooperation and continued presence and made numerous promises to me to induce me to stay. . . ." Tartivita Cert. ¶ 24. See also Opp. Br. at 2 ("The complaint is about the defendants [sic] instructions given to Tartivita and the failure of the defendants to honor their commitment to Tartivita"; "The defendant breached the agreement with Tartivita. . . .").
Thus, it appears that the heart of Tartivita's claim is the breach of an agreement between himself and state investigators who were looking into improper and/or illegal activity at the District and its predecessor. In exchange for his cooperation, these investigators allegedly made certain promises to Tartivita that were violated when his employment was terminated. As the District correctly asserts in its reply letter brief, even if there was such an agreement between Tartivita and state investigators, nothing in his submissions supports an inference that the District was a party to this agreement or that the investigators had authority to bind the District to such an agreement. As a result, even Tartivita's contract claim against the District must fail.
In light of the above, Tartivita's Complaint will be dismissed with prejudice as to the District and without prejudice as to all other defendants in order to allow him to pursue his contract claim in the appropriate forum, state court, against the proper defendants.
CONCLUSION
For the foregoing reasons, the Complaint will be dismissed with prejudice as to the District only and without prejudice as to all other defendants. An appropriate order follows.
ORDER
This matter having been opened to the Court by defendant State-Operated School District of the City of Newark (the "District") on its motion to dismiss the Complaint, and notice having been given to all parties, in consideration of the papers submitted, for good cause shown, and for the reasons set forth in the Court's opinion of even date,
IT IS, on this 1st day of March 1999, ORDERED as follows:
1. The District's motion is granted.
2. The Complaint is dismissed with prejudice as to the District only and without prejudice as to all other defendants.