NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________

No. 22-2553 _______________________

TRACEY L. POWER, Appellant

v.

BAYONNE BOARD OF EDUCATION; PATRICIA L. MCGEEHAN, Individually; JOHN DOES 1-5; JANE DOES 1-3, XYZ CORPORATIONS 1-3 _______________________

On Appeal from the United States District Court for the District of New Jersey District Court No. 2-16-cv-05091 District Judge: The Honorable Kevin McNulty __________________________

Submitted under Third Circuit L.A.R. 34.1(a) September 28, 2023

Before: KRAUSE, AMBRO, and SMITH, Circuit Judges

(Filed: October 3, 2023) __________________________

OPINION* __________________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Circuit Judge.

Tracey L. Power, a physical education teacher and athletic trainer for the Bayonne

Public School District (the “District”), sued the Bayonne Board of Education and its

superintendent, Patricia L. McGeehan, for alleged retaliation. Power now appeals the

District Court’s grant of summary judgment in favor of the Board and McGeehan,

arguing that the Court erred in (1) failing to treat certain Requests for Admissions

(“RFAs”) as admitted and (2) determining that Power’s speech was not protected under

the First Amendment. We will affirm the District Court’s order.

I.

The events leading up to this case began when Power reported to the District’s

Athletic Director, that the football coach was dispensing prescription drugs to some of his

players. The District immediately communicated with law enforcement. Although

police investigated the matter, they were unable to substantiate Power’s allegations. But,

in the meantime, Power raised other issues that the District likewise tried to address.

Tension between Power and the football coach continued into the start of the

football season in the following academic year, with each complaining about the other’s

conduct. This prompted the Board to: obtain an independent investigation into the

circumstances; direct that neither Power nor the football coach were to communicate with

the other; and temporarily contract with an independent athletic trainer to service the

football program. Although Power continued to serve as the athletic trainer for all other

sports, she viewed the retention of an independent athletic trainer to perform one of her

job functions as a demotion in retaliation for her reports about the football coach. She 2 also believed that other subsequent events—namely, a reprimand for conduct unrelated to

the football program, and the withholding of a salary “increment”—constituted additional

retaliation. A555.

Thereafter, Power sued the Board and Superintendent McGeehan, claiming that

the alleged retaliation for speaking out on a matter of public interest violated her right to

free speech under both the First Amendment and the New Jersey Constitution.1 Further,

she alleged that the Board and McGeehan were liable under the New Jersey Law Against

Discrimination (“NJLAD”) for subjecting her to a hostile work environment based on her

gender and because, when she objected to the hostile environment, they retaliated against

her.2

As discovery was winding down, Power’s attorney served ninety RFAs on the

Board pursuant to Federal Rule of Civil Procedure 36. Although the Board objected to

the RFAs and subsequently answered them, Power’s counsel asserted that the Board

never answered the RFAs and that they were therefore “deemed admitted.” A703.

Power relied upon the purported admissions to her RFAs to not only support her own

1 On appeal, Power fails to address the merits of her retaliatory speech claim under the New Jersey Constitution. In any event, because the free speech guarantee contained in New Jersey’s Constitution “is generally interpreted as co-extensive with the First Amendment,” that claim will be governed by our federal analysis. Palardy v. Twp. of Millburn,

(3d Cir. 2018) (quoting Twp. of Pennsauken v. Schad,

(N.J. 1999)). 2 Power purports to appeal the summary judgment order as to her NJLAD claims. We need not address those claims because Power’s opening brief only mentions her claims and does not address them substantively. Laborers’ Int’l Union of N. Am. v. Foster Wheeler Energy Corp.,

(3d Cir. 1994).

3 summary judgment motion but also to oppose the Board and McGeehan’s cross-motion.

The District Court, considering the Board’s timely objection and answers, concluded that

the RFAs had not been admitted. Because the “RFAs constitute[d] the entirety of

Power’s case for summary judgment,” the District Court denied her motion and granted

summary judgment in favor of the Board and McGeehan. A7.

This timely appeal followed.3

II.

A party’s failure to respond to a request for admissions results in a “deemed”

admission. Gwynn v. City of Philadelphia,

(3d Cir. 2013). Power

contends that the District Court “abuse[d] its discretion” because it failed to treat the

unanswered RFAs as “deemed” admissions, thereby conclusively establishing those

admissions for purposes of summary judgment.4 Appellant’s Br. 2. Power’s argument

ignores the text of Rule 36(a)(3), the Board’s timely responses to the RFAs, and the

docket entries concerning the discovery dispute and the Magistrate Judge’s order. Rule

36(a)(3) provides that “[a] matter is admitted unless, within 30 days after being served,

the party to whom the request is directed serves on the requesting party a written answer

3 The District Court exercised jurisdiction under

, 1367. We have jurisdiction under

. 4 “A district court abuses its discretion if its decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.” Johnston v. HBO Film Mgmt., Inc.,

, 183 (3d Cir. 2001). Accordingly, we apply an abuse-of-discretion standard to the District Court’s application of Rule 36.

4 or objection addressed to the matter.” Fed. R. Civ. P. 36(a)(3) (emphasis added). But the

rule also provides that the 30-day period for responding may be extended “by the court.”

Id. Here, the Board objected two days after being served with the RFAs, and then, well

within the 30-day period for responding, filed a letter motion to strike the RFAs.

Although the Magistrate Judge declined to strike them, he granted an extension of time to

answer. Because the Board complied with that deadline, we agree with the District Court

that the RFAs were not admitted.

III.

Power also challenges the District Court’s conclusion that she failed to adduce

evidence that she made public complaints that were protected under the First

Amendment.5 She contends that her RFAs established that the Board was aware that she

had reported the football coach’s improper conduct to the Drug Enforcement Agency, the

New Jersey Public Employees Occupational Safety and Health Program, the New Jersey

Department of Education, and the New Jersey Interscholastic Athletic Association. But

the Board denied the RFAs that Power relies upon, and, in any event, the RFAs do not

establish that Power made public complaints or that the Board was aware of any such

complaints. After reviewing the remainder of the record, we agree with the District Court

that there were “no facts in the record to show that Power spoke in a public forum in her

capacity as a private citizen” or that the Board was aware of such speech. A9. We also

agree with the Court that Power’s reports to the Board “consisted entirely of complaints

5 “We review a grant of summary judgment de novo,” using the “same test” as the district court. T.R. v. Sch. Dist. of Phila.,

(3d Cir. 2021). 5 up the chain of command,” A8, which do not constitute protected speech. See Garcetti v.

Ceballos,

(2006). See also Foraker v. Chaffinch,

(3d Cir. 2007) (concluding that “[i]n making their voices heard up the chain of command

. . . [they] spoke pursuant to their duties as government employees”), abrogated on other

grounds in Borough of Duryea v. Guarnieri,

(2011).

In sum, we will affirm the judgment of the District Court.

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