Dunleavy v. New Jersey

251 F. App'x 80
CourtCourt of Appeals for the Third Circuit
DecidedOctober 16, 2007
DocketNo. 07-1058
StatusPublished
Cited by2 cases

This text of 251 F. App'x 80 (Dunleavy v. New Jersey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunleavy v. New Jersey, 251 F. App'x 80 (3d Cir. 2007).

Opinion

OPINION

PER CURIAM.

Harry Dunleavy sued the State of New Jersey, the New Jersey Division of Civil Rights (“NJDCR”), Rene Rovtar (then Superintendent of Education for Morris County, New Jersey), Lorraine Watson (the manager of the NJDCR office in Paterson, New Jersey), Susan Paletta (a NJDCR investigator), and J. Frank Vespa-Papaleo (Director of the NJDCR).1 Dunleavy purported to proceed under “the Civil Rights Acts, the No Child Left Behind Federal Act, the Age Discrimination Acts, the Freedom of Information Act (FOIA), and the Education Laws of the State of New Jersey.” SuppApp. D01. He also cited 42 U.S.C. § 1983 and state law causes of action, including specific provisions of New Jersey statutes. Id. at D01, D05-D07.

As Dunleavy described them in his complaint, the events giving rise to his lawsuit began in 2002, when he applied for a position as a high school Mathematics teacher with the Mount Olive Board of Education (“Mount Olive”). Mount Olive allegedly passed him over for employment as a high school Mathematics teacher in favor of less-qualified younger applicants. In response, Dunleavy filed a complaint with the NJDCR. Watson dismissed the charge of discrimination. Dunleavy subsequently cited FOIA to request information from the NJDCR. The NJDCR initially ignored his requests, but then provided him with some information, which led him to believe that Rovtar had colluded with [82]*82Mount Olive and NJDCR to deem legal Mount Olive’s decision not to hire him. Dunleavy also took issue with Rovtar’s decision to issue a substitute teaching licence to the candidate Mount Olive hired, and with Watson, Paletta, and Vespa-Papaleo’s efforts to conceal the alleged illegality of Rovtar’s action.

Defendants, as a group, moved to dismiss Dunleavy’s complaint. Defendants argued that Dunleavy failed to state a federal claim and that the District Court should decline to exercise supplemental jurisdiction over the state law claims. Defendants also contended that collateral estoppel barred any claim under the Age Discrimination and Employment Act (“ADEA”), that the lack of a private right of action doomed any claim under the No Child Left Behind Act (“NCLBA”), and that the defense of qualified immunity served as alternative basis for rejecting any claims under 42 U.S.C. § 1983. Dunleavy first filed a motion for leave to amend his complaint (attaching a proposed amended complaint to his motion), and then submitted a response to Defendants’ motion. After Defendants responded to the former and replied to the latter, the District Court ruled.

The District Court liberally construed Dunleavy’s complaint as raising claims under the Civil Rights Acts of 1991 and 1964, 42 U.S.C. § 2000e; 42 U.S.C. § 1981; NCLBA, 20 U.S.C. § 6301; FOIA, 5 U.S.C. § 552; ADEA, 29 U.S.C. § 621; and 42 U.S.C. § 1983, and held that Dunleavy had failed to state a claim upon which relief can be granted. The District Court declined to exercise supplemental jurisdiction over Dunleavy’s state law claims. The District Court also denied Dunleavy’s motion for leave to amend his complaint, concluding that amendment was futile. Dunleavy appeals.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.2004). We review the dismissal of the state law claims pursuant to 28 U.S.C. § 1367(c) and the decision to deny leave to amend for abuse of discretion. Cf. De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir.2003); see Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.2002). We agree with the District Court’s characterization of Dunleavy’s claims, and we will consider each claim in turn.

First, we agree with the District Court’s decision to dismiss Dunleavy’s claims under the “Civil Rights Acts.” The Civil Rights Act of 1991 makes unlawful a failure or refusal to hire on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). Dunleavy did not state a claim for an unlawful failure to hire in violation of the Civil Rights Act because he did not allege discrimination on the basis of race, color, religion, sex, or national origin. He claimed discrimination on the basis of age.

Any claim Dunleavy tried to bring under 42 U.S.C. § 1981 was appropriately dismissed for similar reasons. Section 1981 provides a remedy for discrimination on the basis of race, not age. 42 U.S.C. § 1981; Al-Khazraji v. St. Francis College, 784 F.2d 505, 514-518 (3d Cir.1986).

We also conclude that the District Court was correct in dismissing Dunleavy’s NCLBA claims because he had no private right of action under the statute. Congress must create a private right of action before an individual may bring suit to enforce federal law. See Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). “The judicial task is to interpret the statute Congress has [83]*83passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Id. Every court that has considered whether the NCLBA evidences the unambiguous, see Gonzaga Univ. v. Doe, 536 U.S. 273, 286, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), intent to create a private cause of action has decided it does not. See Alliance for Children, Inc. v. City of Detroit Pub. Schs., 475 F.Supp.2d 655, 658 (D.Mieh.2007) (collecting cases). Under the sound analysis of the District Court, including its note of the relevant statutory enforcement provisions, we agree that Dunleavy does not have a private cause of action under the NCLBA.

The District Court also properly dismissed Dunleavy’s FOIA claims. In establishing “a policy of openness toward information within [the federal government’s] control,” S.Rep. No.

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251 F. App'x 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunleavy-v-new-jersey-ca3-2007.