O'DONNELL v. THE BOUND BROOK BOARD OF EDUCATION

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PIERCE O’DONNELL,

Plaintiff,

v. Civil Action No. 23-22821 (GC) (JTQ)

THE BOUND BROOK BOARD OF OPINION

EDUCATION, EDWARD SMITH,

CHRISTINE LARSON, and DAVID

LEPOIDEVIN,

Defendants.

CASTNER, United States District Judge

THIS MATTER comes before the Court upon Defendants the Bound Brook Board of

Education, Edward Smith, Christine Larson, and David Lepoidevin’s Motion to Dismiss Plaintiff

Pierce O’Donnell’s pro se complaint pursuant to Federal Rule of Civil Procedure (“Rule”)

12(b)(1). (ECF No. 4.) Plaintiff opposed, and Defendants replied. (ECF Nos. 5 & 6.) The Court

has carefully considered the submissions and decides the matter without oral argument pursuant

to Rule 78(b) and Local Civil Rule 78.1(b). For the reasons set forth below, and other good cause

shown, Defendants’ motion is DENIED.

I. BACKGROUND

This case involves constitutional and common-law claims stemming from Plaintiff’s

alleged wrongful termination in May 2022 from his position as a teacher’s assistant.

Pierce O’ Donnell, a resident of North Plainfield, New Jersey, sues the Bound Brook Board

of Education, a public school district serving Bound Brook, New Jersey; Edward Smith, the

Principal of Bound Brook High School; Christine Larson, one of the Assistant Principals of Bound

Brook High School; and David Lepoidevin, employed “in various capacities including Assistant

and Head Football Coach” for the Bound Brook Board of Education. (ECF No. 1-2 at 2-3.')

Plaintiff alleges that he “worked periodically as a substitute teacher within the Bound

Brook School District, from 2019-2021, outsourced from ESS Staffing Agency.” (ad. at 3.) In

2021, Plaintiff “became a direct employee of the Bound Brook Board of Education, hired as a

Teacher’s Assistant, for the in[-]school suspension and disciplinary classroom.” (/d.) Plaintiff

was “working under .. . a collective negotiated labor agreement.” (/d. at 6.) Plaintiff's

“contractual agreement explicitly state[d] that district employees” would “receive routine

performance evaluations and [be] disciplined according to the guidelines set out in the negotiated

collective labor agreement.” (Jd. at 4.)

During Plaintiff's employment with the Bound Brook School District, “he never received

any formal performance evaluation” nor “any formal disciplinary action under the negotiated labor

contract.” (d.) In fact, Plaintiff “had a stellar employment history with the district.” (ld.)

Nevertheless, during a meeting in May 2022, Defendants Smith and Larson informed Plaintiff that

“his contract as the teacher assistant to the disciplinary room was not going to be renewed for the

2022-2023 school year.” (Ud. at 5.) They cited Plaintiff for “a plethora of alleged performance

deficiencies and disciplinary violations,” which “were never recorded.” (Id.)

Defendant Lepoidevin’s “son was hired to fill . . . Plaintiffs position almost immediately

after [Plaintiff] was ... terminated.” (/d. at 7.) The son “had recently graduated college and

needed a job.” (/d.) Lepoidevin was “wide[ly] acclaim[ed] for his role in regenerating and

Page numbers for record cites (7.e., “ECF Nos.”) refer to the page numbers stamped by the

Court’s e-filing system and not the internal pagination of the parties.

reviving Bound Brook’s Football program,” and Lepoidevin had a “professional as well as

personal relationship, outside of work, with” Larson and Smith. (Jd. at 6-7.)

Plaintiff asserts Count One for violation of due process under the Fourteenth Amendment

to the United States Constitution and under the New Jersey Constitution; Count Two for breach of

contract; Count Three for common-law wrongful termination under Pierce v. Ortho Pharm. Corp.,

417 A.2d 505 (N.J. 1980); and Count Four for tortious interference in contractual relations. (Jd.

at 4-7.) On December 1, 2023, Defendants removed the case to this Court from the Superior Court

of New Jersey, Somerset County, based on federal question jurisdiction pursuant to 28 U.S.C. §

1331 and supplemental jurisdiction pursuant to 28 U.S.C. § 1367. (ECF No. 1 at 1-4.)

On December 21, 2023, Defendants moved to dismiss the complaint pursuant to Rule

12(b)(1). (ECF No. 4.) Plaintiff opposed on December 29, 2023, and Defendants replied on

January 9, 2024. (ECF Nos. 5 & 6.)

I. LEGAL STANDARD

Under Rule 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter

jurisdiction to hear a claim. See Fed. R. Civ. P. 12(b)(1). In evaluating a Rule 12(b)(1) motion to

dismiss, courts must first determine whether the motion “presents a ‘facial’ attack or a ‘factual’

attack on the claim at issue, because that distinction determines how the pleading must be

reviewed.” Const. Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (quoting Jn re

Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir.

2012)). “A facial 12(b)(1) challenge, which attacks the complaint on its face without contesting

its alleged facts, is like a 12(b)(6) motion in requiring the court to consider the allegations of the

complaint as true.” Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016)

(citation omitted). A factual challenge, on the other hand, “attacks allegations underlying the

assertion of jurisdiction in the complaint, and it allows the defendant to present competing

facts.” Jd. The party invoking the federal court’s jurisdiction has “the burden of proof that

jurisdiction does in fact exist.” Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)

(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).

DISCUSSION

“Virtually every aspect of public education [in New Jersey] is governed by New Jersey’s

Education Law,” which “establishes the administration and operation of New Jersey’s public

school system.” Jackus v. City of Elizabeth Bd. of Educ., 2011 WL 798469, at *3 (N.J. Super. Ct.

App. Div. Mar. 9, 2011) (citing N.J. Stat. Ann. § 18A:1-1, et seq.). “The management and

supervision of the local public school districts rests with boards of education” that “are given

authority regarding the ‘employment, regulation of conduct and discharge of [their] employees.’”

Id. at *4 (quoting N.J. Stat. Ann. § 18A:11-1).

Under N.J. Stat. Ann. § 18A:6-9, New Jersey’s Commissioner of Education has broad

authority “to hear and determine, without cost to the parties, all controversies and disputes arising

under the school laws.” Indeed, New Jersey’s Department of Education and the Commissioner

have “subject matter interest” and the “‘first-instance jurisdiction . . . [over] ‘all controversies and

disputes arising under the school laws.’” Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ.,

800 A.2d 237, 240 (N.J. Super. Ct. App. Div. 2002) (quoting N.J. Stat. Ann. § 18A:6-9). This

“authority is plenary.” Jd. (citing Abbott v. Burke, 495 A.2d 376, 393 (N.J. 1985)). And “[i]t is

well-settled that ‘available and appropriate administrative remedies should be fully explored

before judicial action is sanctioned.’” J.G. on behalf of K.C. v. Hackettstown Pub. Sch. Dist., Civ.

No. 18-2365, 2018 WL 3756952, at *3 (D.N.J. Aug. 8, 2018) (quoting Abbott, 495 A.2d at 391).

“[W]hen enforcement of a [legal] claim requires resolution of an issue within the special

competence of an administrative agency,” “a trial court should normally stay its hand, even while

retaining jurisdiction where appropriate, out of deference for the primary subject matter

jurisdiction of the Commissioner and the Department, unless a reflective evaluation of the issues

and their relationship to each other suggests that another sequence for resolving the pending

questions would be more realistic.” Archway Programs, Inc., 800 A.2d at 240-41 (citation

omitted). “Concomitantly, if resolution of the action at law is the key element to resolving the

entire dispute, the administrative agency may defer its consideration until the lawsuit is resolved.”

Id. at 241.

“In general, disputes involving teachers are controversies under the school laws.” Jackus,

2011 WL 798469, at *4. Nonetheless, “the sweep of the Department’s interest and the

Commissioner’s jurisdiction does not extend to all matters involving boards of education.”

Archway Programs, Inc., 800 A.2d at 240. The issues raised “must be cognizable within the

expertise of the Commissioner.” Jackus, 2011 WL 798469, at *4. If “the controversy does not

arise under the school laws, it is outside the Commissioner’s jurisdiction even though it may

pertain to school personnel.” Bd. of Ed. of E. Brunswick Twp. v. Twp. Council of E. Brunswick

Twp., 223 A.2d 481, 485 (N.J. 1966).

Applying the above principles, courts have found jurisdiction over “contract claims against

boards [that] do not arise under the school laws but rather from statutory or common law .. . [and]

are, therefore, typically and appropriately adjudicated in the courts.” Archway Programs, Inc.,

800 A.2d at 240; see also Picogna v. Bd. of Educ. of Twp. of Cherry Hill, Camden Cnty., 592 A.2d

570, 571 (N.J. Super. Ct. App. Div. 1991) (“The contract claim of a nontenured school employee

does not arise under the school laws simply because its outcome may later enable him to attain

tenure under the school laws. ... Whether petitioner’s employment was wrongfully terminated

under the [three-year] contract and under the CEP Act is for the court, not the Commissioner, to

decide.”); S. Orange-Maplewood Ed. Ass’n v. Bd. of Ed. of Sch. Dist. of S. Orange & Maplewood,

370 A.2d 47, 50 (N.J. Super. Ct. App. Div. 1977) (holding that court had jurisdiction over teacher’s

contract claim related to sabbatical leave for qualifying teachers because it stemmed from the terms

of an agreement, and the dispute “concern[ed] the interpretation of that agreement” and did not

“nvolve[] an interpretation of any specific statute in Title 18A (Education)’).

Courts have also found jurisdiction over claims arising under the federal and state

constitutions or under federal and state statutes. See, e.g., Hochman v. Bd. of Ed. of City of Newark,

534 F.2d 1094, 1095 (3d Cir. 1976) (holding that nontenured teacher did not need to “exhaust his

administrative remedies prior to commencing an action in federal court under 42 U.S.C. §§ 1983,

1985 where among other claims, he allege[d] violation of his First Amendment rights”); Hecht v.

E. Brunswick Bd. of Educ., Civ. No. 18-06039, 2019 WL 293234, at *4 (D.N.J. Jan. 23, 2019)

(“Courts have held that Section 1983 claims fall outside the Commissioner’s jurisdiction.”

(collecting cases)); Goode v. Camden City Sch. Dist., Civ. No. 16-3936, 2017 WL 2265146, at *3

(D.N.J. May 24, 2017) (holding that tenured teachers could “assert[] claims [for age

discrimination] under a federal statute, the U.S. Constitution, state laws, and the state constitution”

because “[a]lthough the allegations pertain[ed] to [the] [p]laintiffs’ employment with a public

school, they do not arise under school laws” where “the pleadings d[id] not invoke school law

provisions anywhere therein”); Knox v. Union Twp. Bd. of Educ., Civ. No. 13-5875, 2015 WL

769930, at *8 (D.N.J. Feb. 23, 2015) (“Knox challenges the Board’s treatment of her, as well as

its policies and practices, under the Free Speech Clause, Free Exercise Clause, Establishment

Clause, Equal Protection Clause, and New Jersey’s Free Exercise and Enjoyment of Religion

Clauses. Those are not school law claims, but rather state and federal constitutional claims. As

such, they are not committed to the Commissioner’ □ jurisdiction and do not invoke any specialized

administrative expertise.”); Galbraith v. Lenape Reg’! High Sch. Dist., 964 F. Supp. 889, 895

(D.N.J. 1997) (finding that “[a]lthough Plaintiffs Title VU, NJLAD, and breach of contract claims

in her... complaint relate[d] to her public school employment, none of the[] claims ‘ar[ose] under

the school laws’” (quoting N.J. Stat. Ann. § 18A:6-9)).

In contrast, courts have found that they lack jurisdiction when a teacher claims that a board

of education “violated ‘school laws’ by failing to renew her [or his] contract.” Sawires v. Elizabeth

Bd. of Educ., 2024 WL 2809785, at *2 (N.J. Super. Ct. App. Div. June 3, 2024); see also Lock v.

Rockaway Twp. Pub. Sch., 2019 WL 5302850, at *3 (N.J. Super. Ct. App. Div. Oct. 21, 2019)

(dismissing teacher’s common-law claim for whistle blowing where she did not first exhaust

administrative remedies, the “case did not present questions of law,” and the “issue [was] within

the jurisdiction of the Commissioner because at its core it [was] a dispute over the denial of [the

teacher’s increment”); Bd. Of Educ. Of Twp. Of Middletown v. Witmer, 2009 WL 2486640, at *12

(N.J. Super. Ct. App. Div. Aug. 17, 2009) (“The contractual issues involved are incidental to

resolving the education claims that are the subject of this litigation.”’).

Ultimately, a close “examination of the causes of action asserted in [a] plaintiffs complaint

is pivotal to determine the question of jurisdiction.” Jackus, 2011 WL 798469, at *5.

Here, Defendants argue that all “Plaintiffs claims are based exclusively on decisions made

by Defendants in their capacity as a board of education with respect to the non-renewal of

Plaintiff's employment.” (ECF No. 4-1 at 4.) Because “[s]uch matters arise under school law and

fall squarely within the primary jurisdiction of the Commissioner of Education,” Defendants argue

that the claims must be dismissed “for lack of subject matter jurisdiction.” (/d.) Further, “because

Plaintiff... failed to present this matter before the Commissioner,” Defendants argue that the

complaint “must also be dismissed for failure to exhaust administrative remedies.” (d.)

In response, Plaintiff argues that his case “is not a simple contestation of the district’s non-

renewal of his contract which N.J.S.A. 18A:6-9 could remedy.” (ECF No. 6 at 6.) Instead,

“Plaintiff seeks relief from quasi-fraudulent conduct by board employees, acting beyond the scope

of their official capacity, to illegally deprive him of his employment for the purpose of procuring

his position for a political crony’s son.” (/d.) Plaintiff emphasizes that he “never sought

reinstatement which is the only remedy that the Commissioner can grant.” (/d.) Plaintiff also

argues that the letter notifying him that his employment had ended did not state that it was “a final

board action or resolution” and did not “contain any reasoning or motivation that would have

enabled .. . Plaintiff to utilize the [administrative] process.” (d. at 7.)

Having carefully considered the parties’ arguments, the Court finds that the Department of

Education does not have jurisdiction over Plaintiff's claims and, therefore, the claims are not

subject to dismissal at this stage for failure to exhaust administrative remedies.”

Critically, Plaintiff does not rest his common-law claims on any provision in New Jersey’s

school laws. For his contract claim, Plaintiff alleges that “under the negotiated labor agreement

between the district and the local education bargaining unit,” he “was entitled to his performance

review and to be notified of disciplinary actions at the time of their occurrence.” (ECF No. 1-2 at

4-6.) Because Defendants allegedly did not provide Plaintiff with the contractually promised

performance review or disciplinary notifications, he did not have “an opportunity to remediate his

performance” prior to being discharged for “alleged performance deficiencies and disciplinary

violations.” (/d. at 5-6.) Plaintiff's wrongful termination claim under Pierce rests on the same

allegations that Defendants’ failure to follow the “requisite procedures” delineated in the

“collective negotiated labor agreement” violated the common law and constituted wrongful

termination. (/d. at 6.) And for tortious interference, Plaintiff alleges that Defendants Larson and

Smith conspired to manufacture reasons to end Plaintiff's employment with the Bound Brook

Defendants did not move under Rule 12(b)(6) for failure to state a claim, so the Court does

not make any findings as to the plausibility of Plaintiffs claims.

School District so that Defendant Lepoidevin’s son could replace Plaintiff. (id. at 6-7.) Plaintiff

seeks, among other things, monetary and punitive damages from Defendants. (Jd. at 7-8.)

Notwithstanding that Plaintiff does not cite the school laws nor rely on the school laws as

the basis for his common-law claims, Defendants still argue that the Department of Education has

jurisdiction, citing several provisions in title 18 of New Jersey’s Education Law. Defendants argue

that non-renewals of nontenured teaching staff are governed by N.J. Stat. Ann. § 18A-27-10 and

N.J. Stat. Ann. § 18A-27-4.1, which provides that a nontenured “employee whose employment

contract is not renewed shall have the right to a written statement of reasons for nonrenewal □□ □

and to an informal appearance before the board.” Defendants also argue that periodic evaluations

of nontenured teaching staff are governed by N.J. Stat. Ann. § 18A-27-3.1, which provides that

every board of education in New Jersey “shall cause each nontenure teaching staff member

employed by it to be observed and evaluated in the performance of her or his duties at least three

times during each school year but not less than once during each semester.”

While these statutory provisions relate to the general subject matter of Plaintiff’s

complaint, he does not seek reinstatement in this case and bases his claims on Defendants’ alleged

breaches of and tortious interference with the negotiated labor agreement, not on violations of the

statutes.’ Plaintiff’s claims therefore do not arise from New Jersey’s school laws and do not confer

jurisdiction on the Department. See Rivera v. Elizabeth Bd. of Educ., 2011 WL 1135232, at *4

(N.J. Super. Ct. App. Div. Mar. 30, 2011) (‘[T]he language in N.J.S.A. 18A:6-9, which confers

3 Defendants emphasize that in paragraph 37 of the complaint, Plaintiff alleges that

“Defendant Lepoidevin’s son was . . . hired by the district, in obfuscation of the Request for

Qualifications process delineated by both New Jersey Law and the Board of Education’s policies.”

(ECF No. 1-2 at 7.) Defendants argue that this indicates that Plaintiffs claims arise under the

school laws. But this sole allegation concerns a different employee and does not give rise to any

of Plaintiffs claims. Whether or not Lepoidevin’s son was hired via a proper process under the

school laws does not alter the basis for Plaintiff’s suit.

jurisdiction on DOE over ‘all controversies and disputes arising under the school laws,’ makes it

clear that unless the dispute in question ‘involves an interpretation of [a] specific statute in Title

18A (Education),’ deferring to DOE’s primary jurisdiction should be avoided.”).

Indeed, New Jersey’s Appellate Division held in South Orange-Maplewood Education

Association v. Board of Education of the School District of South Orange and Maplewood that the

plaintiff could sue in court for specific enforcement of provisions of an agreement relating to

sabbatical leave for qualifying teachers, even though the board of education argued that the dispute

“involve[d] a number of school laws, including the mandate in the Education Clause of our

Constitution (N.J. Const. (1947), Art. VII, § 4, par. 1) for a thorough and efficient system of

education, the management of local schools by school boards (N.J.S.A. 18A:10-1), the

employment and regulation of employees (N.J.S.A. 18A:11-1), the power to fix and alter their

compensation (N.J.S.A. 18A:16-1) and the power to make rules governing terms of employment

(N.J.S.A. 18A:27-4 and N.J.S.A. 18A:28-5).” 370 A.2d at 49. The Appellate Division saw

“nothing in the dispute over the meaning of the agreement as it pertains to sabbatical leave which

involve[d] an interpretation of any specific statute in Title 18A (Education).” Jd. at 50.

Similarly, in Picogna v. Board of Education of the Township of Cherry Hill, the Appellate

Division held that a nontenured employee could sue for breach of his employment contract, even

though the board of education argued that the dispute arose “under the school laws because if it

had wrongly terminated petitioner’s employment it thereby prevented him from attaining tenure

under the school laws.” 592 A.2d at 571. The Appellate Division wrote that the contract claim

did “not arise under the school laws simply because its outcome may later enable [the plaintiff] to

attain tenure under the school laws,” and it concluded that whether the plaintiffs “employment

was wrongfully terminated under the contract and under the CEP Act [was] for the court, not the

Commissioner, to decide.” Id.

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Here, too, the legal issues as to whether Defendants breached the agreement that Plaintiff

sues under and whether Defendants tortiously interfered with Plaintiffs contractual relations do

not arise under New Jersey school laws. Plaintiff does not seek reinstatement for nonrenewal nor

does he challenge his nonrenewal under the school laws. Plaintiff claims he has separate

enforceable contractual rights that were breached. To adjudicate the claim, the Court would

consider and interpret the terms of the applicable agreement, without reference to Title 18 of the

school laws. And unlike in Archway Programs, Incorporated v. Pemberton Township Board of

Education, the parties have identified no pending administrative proceeding involving a “larger

controversy” that would resolve issues bearing on the present suit and would warrant staying this

case. 800 A.2d at 244 (“[O]ut of respect for the subject matter interest of a coordinate branch of

government and to promote consistency of result, the trial court should stay its hand regarding all

interrelated issues of law between the parties until the Commissioner and the Department have

resolved all those questions that are within their subject matter purview and amenable to

disposition by administrative order or directive.’’).

Finally, Plaintiff's due process claim under the United States Constitution and New Jersey

Constitution “are not school law claims, but rather state and federal constitutional claims. As such,

they are not committed to the Commissioner’s jurisdiction and do not invoke any specialized

administrative expertise.” Knox, 2015 WL 769930, at *8; see also Hochman, 534 F.2d at 1095;

Goode, 2017 WL 2265146, at *3.

4 Federal constitutional claims are typically asserted by private citizens against state actors

via section 1983, which Plaintiff does not reference in his complaint. Nevertheless, based on

Plaintiffs pro se status, the Court will read the pleading as invoking section 1983. See Campbell

v. Conroy, 55 F. Supp. 3d 750, 757 (W.D. Pa. 2014) (“Although the complaint does not specifically

refer to 42 U.S.C. $1983, the court construes the complaint as asserting claims under that statute.”).

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In their reply brief, Defendants argue for the first time that Plaintiff’s due process claim

fails on its merits because Plaintiff did not “identify a property interest subject to Fourteenth

Amendment protection.” (ECF No. 5 at 7.) Defendants write that “[a]s a non-tenured teacher, the

source of Plaintiffs claim to entitlement, if any, is the employment contract,” and “an at-will

employment contract does not create a protected property interest in one’s job.” (/d. at 8.) Because

this argument was raised on reply and Plaintiff did not have an opportunity to directly address it,

the Court will not consider it at this time. See Schiffli Embroidery Workers Pension Fund v. Ryan,

Beck & Co., 869 F. Supp. 278, 281 n.1 (D.N.J. 1994) (“This Court will not usually consider

arguments raised for the first time in a reply brief... .”). Defendants may renew their merits-

based challenge to the due process claim at a later point.

IV. CONCLUSION

For the reasons set forth above, and other good cause shown, Defendants’ Motion to

Dismiss (ECF No. 4) is DENIED. An appropriate Order follows.

Dated: July 30, 2024 ( Lyi ( Vb

GEORGETCE CASTNER

Uyytep STATES DISTRICT JUDGE

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