LEWIS SEAGULL VS. SARAH CHANDLER (L-1403-15, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5297-16T3
LEWIS SEAGULL and
GAIL SEAGULL, his wife,
Plaintiffs-Appellants,
v.
SARAH CHANDLER, DANIEL
O'DAY, CHARLES NELSON,
MELISSA SCOTT, and LUIS DIAZ,
Defendants,
and
JOSEPH CRONIN, SUZANNE
BOUSQUET, NICOLE RODRIGUEZ,
KATHRYN INSKEEP, MARIA
INGELMO, PHILIP CONNELLY,
GERI-ANN BENEDETTO, and
KEAN UNIVERSITY,
Defendants-Respondents.
_______________________________
Argued March 27, 2019 – Decided May 2, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Docket No. L-1403-15.
Lewis Seagull, appellant, argued the cause pro se.
Lauren Amy Jensen, Deputy Attorney General, argued
the cause for respondents (Gurbir S. Grewal, Attorney
General, attorney; Melissa Dutton Shaffer, Assistant
Attorney General, of counsel; Lauren Amy Jensen, on
the brief).
PER CURIAM
Plaintiffs Lewis and Gail Seagull 1 appeal from the March 4, 2016, March
3, 2017 and June 9, 2017 orders dismissing their complaint against Kean
University (Kean) and its employees. Lewis was an adjunct professor of English
at Kean from 2002 until 2013. He also enrolled as a master's student in 2012.
Lewis was not offered another contract to work as an adjunct professor after the
spring 2013 semester. On April 17, 2015, plaintiffs filed an initial complaint
against Kean and various employees, alleging wrongful termination and that,
while a master's student, Lewis was harassed, bullied, and his rights were
violated. The motion court ultimately dismissed all counts in plaintiffs' fifth
amended complaint, for failure to timely file a notice under the New Jersey Tort
1
We refer to the parties by their first names for clarity, and intend no disrespect.
When Lewis in his brief refers to a singular plaintiff, we presume he refers to
himself.
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2
Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, failure to file a more definite
statement, and failure to state a claim upon which relief can be granted. We
affirm substantially for the reasons stated by the motion court.
Plaintiffs' fifth amended, and final, complaint alleges: (1) "Hostile Work
Environment Due to Continuous Harassment"; (2) "Breach of Duty to Student
Causing Injury"; (3) "Breach of Duty to Provide Advisement"; (4) "Retaliatory
Discharge in Violation of Public Policy"; (5) "Tortious Interference with
Prospective Economic Advantage"; (6) "Breach of Implied Covenant of Good
Faith and Fair Dealing"; (7) "Breach of Oral Contract"; (8) "Failure to Notify
Plaintiff of Termination of Employment"; (9) "Defamation and 'False Light'";
(10) "Claim on Book Account"; (11) "Intentional Infliction of Emotional
Distress"; (12) "Mandatory Injunction to Correct Pension"; (13) "Mandatory
Injunction to Correct Grades"; (14) "Claims of Gail Seagull"; and (15) "Claim
for Counsel Fees."
On March 4, 2016, the motion court dismissed counts two, three, four,
five, six, seven, eight, nine, thirteen, and fourteen with prejudice.2 The motion
2
On March 4, 2016, count nine was dismissed with prejudice on the record,
because it did not state a claim and also was not included in the notice of tort
claim. Count fourteen was also dismissed with prejudice on the record for
failure to state a claim, but the order did not reflect the "with prejudice"
A-5297-16T3
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court also dismissed counts ten and eleven without prejudice. The motion court
found that a notice of tort claim for counts four through eight was not filed
timely. N.J.S.A. 59:8-8(a) (requiring that a notice be filed within ninety days of
the accrual of the cause of action). Plaintiffs did not file their notice until May
8, 2015, although Lewis stopped working as an adjunct professor in May 2013.
The motion court found that plaintiffs' cause of action arose no later than the
beginning of the fall 2013 semester, when Lewis did not receive a new teaching
contract. The motion court dismissed count nine because it was not included in
plaintiffs' untimely notice of tort claim.
On March 4, the motion court also found that count four failed to make
out a prima facie claim under the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14.3 On May 17, 2016, the court ordered plaintiffs
to file a more definite statement as to count one. The court directed Lewis to
"state clearly whether he alleges [a claim under the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49] of failure to contract on [the]
dismissal of either count nine or fourteen. On June 9, 2017, the court stated it
had dismissed both counts without prejudice.
3
The motion court also dismissed counts two, three, ten, eleven, thirteen, and
fourteen because they failed to state a claim upon which relief can be granted
pursuant to Rule 4:6-2(e). She found counts four through nine also failed to
state a claim.
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basis of age, or if he alleges employment status." When Lewis failed to file a
further statement as directed, on March 3, 2017, the court dismissed count one
with prejudice for failure to state a claim upon which relief can be granted. On
June 9, 2017, the court also dismissed counts twelve and fifteen with prejudice
for the same reason. Each time the court dismissed a count in the complaint, it
articulated on the record its reasons for doing so.
On appeal, plaintiffs state about Lewis: "Although he was an 'at will'
employee, who could be fired for any reason or no reason, he could not be fired
for the wrong reason." Yet Lewis concedes he was not terminated while an
employment contract was in effect. He argues that he was on a list of potential
adjunct professors, until he was improperly stricken from that list. As
defendants point out, plaintiffs refer to documents on appeal that were not
incorporated into their complaint. Plaintiffs also refer to a recorded
conversation, in which Lewis was allegedly led to believe he would remain an
adjunct professor after the spring 2013 semester, which is not part of the record.
Plaintiffs claim Lewis was discriminated against because he was an adjunct
professor and adjunct professors have been relegated to a "precariat" or "serf"
class. Plaintiffs also allege that as a student, Lewis was discriminated against
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because he was sixty years old and because defendant Sarah Chandler had a
"disdain for all white males of privilege."
Plaintiffs, appearing pro se, present the following issues on appeal: 4
POINT I: ALLEGATIONS OF INJURY DUE TO
HARASSMENT AND ABUSE BY A TEACHER
AGAINST A STUDENT STATE A CAUSE OF
ACTION UPON WHICH RELIEF MAY BE
GRANTED.
POINT II: THE ALLEGATIONS OF PLAINTIFFS'
COMPLAINT ARE NOT, AS A MATTER OF LAW,
TIME-BARRED.
POINT III: PLAINTIFF DID COMPLY WITH THE
PROCEDURES OF THE NEW JERSEY
CONTRACTUAL LIABILITY ACT, SO HIS CLAIM
ON A BOOK ACCOUNT SHOULD NOT HAVE
BEEN DISMISSED.
POINT IV: THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY RESOLVING FACTUAL
ISSUES IN DETERMINING A MOTION TO
DISMISS ON THE PLEADINGS UNDER R. 4:6-2(e).
POINT V: THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY IGNORING PLAINTIFF'S
ALLEGATION OF WRONGFUL DISCHARGE IN
VIOLATION OF AN EXPRESS MANDATE OF
PUBLIC POLICY.
4
Plaintiffs do not "include in parentheses at the end of the point heading the
place in the record where the opinion or ruling in question is located or if the
issue was not raised below a statement indicating that the issue was not raised
below." R. 2:6-2(a)(1).
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POINT VI: THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY DISMISSING AS
INVALID PLAINTIFF'S CAUSE OF ACTION
AGAINST DEFENDANTS FOR NOT REPORTING
ACCURATE INFORMATION TO THE STATE
REGARDING HIS DATES OF SERVICE FOR HIS
PENSION.
POINT VII: PLAINTIFF WAS AN EMPLOYEE OF
KEAN UNIVERSITY UNDER THE LAD, COMMON
LAW TORT, AND C.E.P.A.
POINT VIII: THIS LAWSUIT ADDRESSES
IMBALANCES IN THE POWER STRUCTURE IN
INSTITUTIONS OF HIGHER EDUCATION-
SPECIFICALLY THE DENIGRATION OF
ADJUNCT FACULTY-WHICH RAISES AN
IMPORTANT ISSUE OF PUBLIC POLICY.
POINT IX: THE TRIAL JUDGE COMMITTED
ERROR WHEN SHE RESOLVED FACTUAL
DISPUTES REGARDING MOTIVE.
POINT X: THE TRIAL JUDGE BETRAYED HER
PREJUDICE AGAINST PRO SE LITIGANTS IN HER
COMMENTS FROM THE BENCH.
In August 2002, Kean hired Lewis as an adjunct professor of English.
Each semester Lewis received new, semester-long contracts to teach English
courses. In his fifth amended complaint, Lewis acknowledged that "no adjunct
professor ha[d] an entitlement to future contracts, but those in good standing
ha[d] a reasonable expectation that future contracts [would] be forthcoming and
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that the relationship [would] be renewed, semester by semester." Kean did not
offer plaintiff another contract to teach after the spring 2013 semester.
Lewis admits in June 2013 his nameplate was removed from the Kean
English Department mailbox. He states that on June 11, 2015 "he was formally
notified, in writing, that he was terminated," by which he means he was struck
from the list of potential adjunct professors by a written notice, which he did not
attach to the complaint.
In 2011, while teaching as an adjunct professor, Lewis was admitted to
Kean's English and Writing Studies master's degree program and began taking
classes in the spring 2012 semester. Lewis was awarded his master's degree in
2016.
Lewis' claims of harassment and bullying stem from his enrollment in
defendant Chandler's class. Chandler was a tenured professor of English and
director of Kean's "MA English and Writing Studies Graduate Program" until
her retirement in 2014. Lewis alleges Chandler "abused him from the moment
she began teaching him" because she "'look[ed] down' on adjunct professors,"
and her "failed former marriage" led her to make Lewis "a proxy-victim for
every white male Chandler detested." The alleged tension came to a head while
Lewis was enrolled in her "Writing as Being, Saying and Doing" class during
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the spring 2013 semester. As an assignment, each student was required to
engage in a two-hour, audio-taped interview with Chandler. The student was
directed to prepare a transcript of the interview for Chandler so she could "post
[it] on a public website." Lewis did not want his transcript posted, which led to
arguments with Chandler concerning research ethics.
On March 4, 2016, when it dismissed counts two through eleven, thirteen
and fourteen of plaintiffs' fifth amended complaint, the motion court concluded
the May 2015 notice of tort claim was untimely because Lewis had not had a
contract or taught for four semesters. The court stated:
What I'm seeing here, if anything, in terms of the
allegation[s] and reading them as favorably as I can for
the plaintiff, as I must on a [m]otion to [d]ismiss a
[c]omplaint, is an allegation that he was not rehired as
an adjunct -- that he was not given another contract as
an adjunct because of discrimination based on his age.
And all of the things that he complains about, while not
in themselves actionable -- I didn't get an A. I thought
I was entitled to an A. As a student I should have been
doing better and she told me that I wasn't going to do
better, never ever regardless of how well I -- how --
how great my papers were or anything like that. All of
that is not really actionable under Law Against
Discrimination. It really deals with employment
practices not student practices. And I -- I think courts
are going to be loath to reach their hands into how
universities conduct themselves and how -- how they
grade students.
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However, if that's evidential in terms of an age
discrimination in failure to contract, that's fine. We
think of it as evidence, not as a cause of action. Okay.
So . . . based on the facts in front of me, it appears that
plaintiff is an independent contractor and not an
employee for purposes of LAD, but I can't make a
finding on that on this record. So that's . . . another
issue.
So if he -- but certainly in saying that his contracts were
not renewed, the failure to contract because of age
based, that is an actual . . . cause of action. That's a
legitimate cause of action under the . . . LAD.
The issue is timing under Tort Claim, however.
Because as I have said, by at least the second time they
didn't contract with him, plaintiff had a pretty good
inkling that this was something that was going to
happen. So if there's no contract by September of two
-- 2013 and the beginning of the Spring semester of
2014, it seems like you should know that there's a
problem.
On March 3, 2017, the court dismissed count one of plaintiffs' fifth
amended complaint after Lewis failed to comply with the court's previous order
directing him to file a more definite statement. In reaching its decision, the trial
court stated:
THE COURT: . . . So I'm just going to dismiss the first
count because that's the count that -- to which my -- my
order of May [17], 2016 was directed and, you know,
reiterate there's a lot in here and I think really a lawyer's
guidance would be wonderful for you, Mr. Seagull, to
just try to fig-- I know you do have legal training, I
A-5297-16T3
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know you have been a lawyer, you've told us that, but
sometimes when it's yourself it's --
[LEWIS]: Agreed.
....
THE COURT: You don't have the objectivity to parse
out what's a good claim, what isn't a claim, what do I
leave aside, maybe something's evidential but not
actionable.
So, you know, I -- I think that would be great if you do
get a lawyer to -- to deal with the issues that you have
here. So I'm just going to -- I did issue that order about
the more definitive statement. I -- I even wrote on the
order really what's -- what's the issue here, I -- because
you're mixing up being a student and being a fac--
adjunct faculty member.
It's not clear whether you're suing under LAD for
failure to contract . . . or continue the contractual
relationship because of an age discrimination for which
whatever happened in Professor Chandler's class might
be just evidence of -- you know, so it's all -- it's all
mixed up.
They don't know whether they're dealing with a failure
to contract or whether they're dealing with you're
alleging to be an employee.
On June 9, 2017, the court dismissed with prejudice the remaining counts,
twelve and fifteen, of plaintiffs' fifth amended complaint. As for count fifteen,
the claim for counsel fees, the court stated: "There is -- there's no attorney in
this case. There's no substantive claim to -- that would entitle someone to
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attorney's fees." Referring to count twelve, plaintiffs' pension claim, the court
stated:
I can't involve myself in Pensions and Benefits and
correcting what you think is something wrong. I mean,
I think you should work with Kean and work with
Pensions and Benefits. If you go down to Pensions and
Benefits and say, look, here, I've been working since
2002. Here's my proof. Here's my Tax Return. Here's
everything I have. Then they've got to correct that for
you. Okay.
We review a trial court's grant of a motion to dismiss de novo. Watson v.
N.J. Dep't of Treasury, 453 N.J. Super. 42, 47 (App. Div. 2017). We will
"consider, and accept as true, the facts alleged in the complaint to ascertain
whether they set forth a claim against [the moving party] upon which relief can
be granted." Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005).
"Obviously, if the complaint states no basis for relief and discovery would not
provide one, dismissal [of the complaint] is the appropriate remedy. " Banco
Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).
A plaintiff must make a prima facie claim of retaliation under CEPA,
N.J.S.A. 34:19-1 to -14. Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015). A
plaintiff must demonstrate that:
(1) he or she reasonably believed that his or her
employer's conduct was violating either a law, rule, or
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regulation promulgated pursuant to law, or a clear
mandate of public policy;
(2) he or she performed a "whistle-blowing" activity
described in N.J.S.A. 34:19–3(c);
(3) an adverse employment action was taken against
him or her; and
(4) a causal connection exists between the whistle-
blowing activity and the adverse employment action.
[Ibid. (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462
(2003)).]
When alleging a claim of negligence, a plaintiff must articulate facts
sufficient to show the following elements: "(1) a duty of care, (2) a breach of
that duty, (3) actual and proximate causation, and (4) damages." Jersey Cent.
Power & Light Co. v. Melcar Utility Co., 212 N.J. 576, 594 (2013).
When making a breach of contract claim, a plaintiff must prove "the
existence of a contract and that the defendant breached that contract and caused
damages." Sun Source, Inc. v. Kuczkir, 260 N.J. Super 256, 268 (App. Div.
1992). A plaintiff must first prove a contract exists before making a claim that
a defendant breached the implied covenant of good faith and fair dealing. See
Kalogeras v. 239 Broad Ave., LLC, 202 N.J. 349, 366 (2010) (noting that "every
contract in New Jersey contains an implied covenant of good faith and fair
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dealing") (quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420
(1997)).
As the court discussed, if Lewis had filed a complaint under the LAD
within 180 days of Kean's alleged failure to contract with him because of his
age, the complaint may have survived summary judgment. N.J.S.A. 10:5-12(l);
N.J.S.A. 10:5-18; see also Rubin v. Chilton, 359 N.J. Super. 105, 109-10 (App.
Div. 2003) (finding that N.J.S.A. 10:5-12(l) "is directed at refusals to do
business with persons because of a protected characteristic," and independent
contractors may "legitimately advance a claim" of age discrimination under this
statute). Plaintiffs did not raise an LAD claim and maintain on appeal that
"[Lewis] never claimed age discrimination under the LAD."
We affirm substantially for the reasons expressed by the motion court in
its patient and thorough explanation prior to dismissing each count of plaintiffs'
fifth amended complaint.
Plaintiffs' claim that the motion court unfairly took the side of the
"establishment" when Lewis "sp[oke] truth to power" is unconvincing. Like all
litigants, plaintiffs had the obligation of filing a complaint that complied with
legal requirements.
Affirmed.
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