Opinion
DOCKET NO. A-2886-11T3
05-13-2013
JOHN NUGENT, JR., Plaintiff-Appellant/Cross-Respondent, v. STATE OF NEW JERSEY, STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS, GEORGE HAYMAN (Commissioner State of New Jersey Department of Corrections), and JAMES WOJTOWICZ, Defendants-Respondents/Cross-Appellants, and KENNETH GREEN, GATEWAY FOUNDATION, INC., SANDRA BROUSSARD (Employee Relations Director of Gateway Foundation, Inc.), and SOUTH WOODS STATE PRISON, Defendants.
Richard L. Press argued the cause for appellant/cross-respondent (Law Offices of Richard L. Press & Associates, LLC, attorneys; Mr. Press, on the brief). Gilbert S. Leeds argued the cause for respondents/cross-appellants (Schenck, Price, Smith & King, LLP, attorneys; Mr. Leeds, of counsel; Eric A. Inglis, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Fasciale and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-468-09.
Richard L. Press argued the cause for appellant/cross-respondent (Law Offices of Richard L. Press & Associates, LLC, attorneys; Mr. Press, on the brief).
Gilbert S. Leeds argued the cause for respondents/cross-appellants (Schenck, Price, Smith & King, LLP, attorneys; Mr. Leeds, of counsel; Eric A. Inglis, on the brief). PER CURIAM
Plaintiff John Nugent, Jr., appeals from orders granting summary judgment to defendants State of New Jersey, State of New Jersey Department of Corrections (DOC), George Hayman, and James Wojtowicz (collectively, "defendants"). Defendants cross-appeal from an order declaring plaintiff to be a dual employee of defendant The Gateway Foundation, Inc. (Gateway) and the State. We affirm on the appeal and deem the cross-appeal to be moot.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Giving plaintiff the benefit of all reasonable inferences, we discern the following facts from the summary judgment record.
Gateway contracted with the DOC to provide therapeutic services to inmates. Plaintiff served as a substance abuse counselor for Gateway and was assigned to South Woods State Prison (the "Prison"). He began working as a program director and eventually became the center director for the Prison's NuWay drug and alcohol program. Plaintiff performed, among other things, addiction severity index (ASI) assessments on inmates with drug and alcohol problems. Plaintiff exercised his "own particular . . . style" in conducting his duties as the director. He presented his "actual report[s]" to Bryan Bradford, his Gateway supervisor, and "reported also" to the assistant superintendent of the facility. Moreover, plaintiff's resume states that he was
responsible for implementing and executing program policies and procedures at [the] Prison . . . . [Plaintiff] supervise[d the] Assistant Program Director, two Unit Directors, two Administrative Directors, and a maximum of [twenty-four] Substance Abuse Counselors. . . . [Plaintiff was] responsible for ensuring the proper provision of Therapeutic Community services according to the contract with the [DOC].
On November 15, 2002, plaintiff received Gateway's Code of Conduct Policy, which stated:
Your employment with Gateway may be terminated if, for any reason — including but not limited to misconduct and/or violations of established institutional rules of conduct — you are denied access to the correctional facility or institution to which you have been assigned.
[(Emphasis added).]
On July 24, 2007, the Institutional Classification Committee (ICC) conducted a Classification Committee meeting attended by Jeffrey Beebe, the Assistant Prison Administrator at the Prison, an inmate at the Prison (purportedly an organized crime figure), and plaintiff. Beebe was second in command at the Prison and chaired the meeting. The ICC considered the inmate's ASI score of "Drug 5/Alcohol 4," which reflected a history of substance abuse necessitating treatment, required the inmate to enter substance abuse treatment, and referred him to the NuWay program. The inmate refused to enter the program and received an "I-override," which negatively affected the conditions of his confinement and opportunities for an early release.
A "day or two" after the July 24, 2007 meeting, Beebe telephoned plaintiff and asked him to conduct a second ASI on the inmate. Beebe told plaintiff that he believed the inmate's 2004 ASI score was incorrect, and that his history of drug use was at least twenty years old. Beebe further told plaintiff that the inmate had been clean for a number of years, and that drugs no longer seemed to be a problem for the inmate.
On or about August 2, 2007, the inmate submitted to the prison administrator an Inmate Request Form seeking a new ASI evaluation. Beebe wrote a note on the form that stated: "The NUWAY Director [plaintiff] will see you on 8/21 or 8/22 to redo your ASI." In or around August 2007, plaintiff conducted a second ASI on the inmate. The inmate received an ASI score of "Drug 1/Alcohol 1," which was the second lowest classification for drug or alcohol addiction. Plaintiff omitted any reference to the inmate's documented history of drug and alcohol abuse, which had been reported on the inmate's 2004 ASI. Plaintiff relied on information from Beebe and the inmate; he did not review the 2004 ASI or the inmate's classification folder.
On or about October 5, 2007, New Jersey State Investigative Division (SID) Senior Investigator Robert Melendez contacted Investigator Raymond Rossi regarding improprieties that had been reported to the SID concerning Beebe's relations with the inmate and the 2007 ASI. Between October and November 2007, Investigator Rossi conducted interviews.
In October 2007, plaintiff gave a recorded statement to Investigator Rossi. Plaintiff stated that after the July 24, 2007 meeting, Beebe contacted him and said that he felt the 2004 ASI score was inappropriate, and that the inmate had not used drugs for thirty years. Beebe asked plaintiff to conduct a second ASI, which was the first time Beebe had ever asked him to do that. Plaintiff admitted that he did not review the inmate's 2004 ASI or review his classification folder; instead, he relied on the information Beebe and the inmate provided him.
During the interview, Investigator Rossi informed plaintiff that SID was investigating Beebe for doing favors for the inmate. Investigator Rossi showed plaintiff the 2004 ASI score, about which plaintiff stated there were significant differences in the two ASIs. Plaintiff stated that the information that Beebe provided him may have influenced his scoring. When asked whether plaintiff felt that Beebe manipulated him, plaintiff responded: "It appears, yes, now. I didn't think I was manipulated."
Between January and March 2008, the DOC conducted hearings regarding Beebe's conduct involving the 2007 ASI. The DOC's attorneys anticipated calling plaintiff during the hearings to provide testimony consistent with plaintiff's statement. In early 2008, plaintiff informed a DOC attorney that if questioned, he would dispute that Beebe manipulated him, asked him to "redo the ASI," or suggested that he reevaluate the inmate in a more favorable fashion. Plaintiff explained to the attorney that Beebe did nothing wrong and only the inmate may have lied to plaintiff.
Investigator Rossi issued his final report on November 28, 2007, and concluded as to plaintiff that
not only did [plaintiff] fail to conduct a complete/thorough ASI on [the] inmate that was determined to be "not legitimate" by the Office of Drug Programs[,] but he should not have been conducting this ASI screening at all. Furthermore, taking into account the totality of [plaintiff's] involvement and personal knowledge of the matter to include his participation at the ICC meetings[,] this writer finds that he did accept [the] inmate's new answers to the ASI questions even though they contradicted the information/score of the 2004 ASI, knowing that it would result in a lower false score.As to Beebe, Investigator Rossi
conclude[d] that . . . Beebe extended a favor to [the] inmate as a result of his familiarity with him by utilizing his position to influence [plaintiff] in completing a new ASI on [the] inmate . . . and provided him with false/inaccurate information in order to manipulate the outcome. This false ASI was then utilized as the mechanism to inappropriately lift [the] inmate's I-Override in violation of NJDOC Administrative Code 10A.On December 13, 2007, the DOC issued a Preliminary Notice of Disciplinary Action against Beebe. On October 2, 2008, the DOC settled with Beebe based, at least in part, on plaintiff's changed statements; Beebe received a demotion, among other things. On January 18, 2008, Bradford provided plaintiff with a written warning, which stated, in pertinent part:
This memorandum serves as an official . . . [w]arning to give notice to a violation that occurred concerning the ASI completed on
[the inmate]. You failed to sign or initial the document to show that you were the author. [Your] failing to follow this procedure was questioned during an NJDOC's investigation to determine what role if any you had in the inmate being diverted from treatment.
On May 27, 2008, the DOC's Office of Drug Programs Director James Wojtowicz sent Bradford a letter indicating that plaintiff would be banned from working at DOC facilities. The letter stated:
Pursuant to sections 3.3.2.14 and 3.3.2.15 of the contract between [Gateway] and [the DOC], we hereby instruct you to immediately prohibit [plaintiff], Center Director-NuWay from performing any service with regard to this contract and dismiss him from working at any and all [DOC] facilities. Please take whatever action is necessary to immediately effectuate [plaintiff's]On or about May 28, 2008, DOC personnel banned plaintiff from entering the Prison. In June 2008, plaintiff provided a letter of resignation to his Gateway supervisors indicating that "[a]s of May 28, 2008[, he] was resigning from [his] position as Center Director for Gateway Foundation at [the] Prison, due to the fact that [he had] been banned from the property by the [DOC]."
dismissal.
The [DOC] appreciates your cooperation in this matter. Of course, the Office of Drug Programs is available to assist in the transition of management to minimize the impact of this action on the Therapeutic Community and its residents.
Section 3.3.2.14 of the contract provides: NJDOC Screening of Candidates: The NJDOC retains the ultimate right of approval/refusal of employment, or dismissal of an individual professional from working at any or all facilities. The Director of the Office of Community Programs and Drug Program Operations for the NJDOC or designee and institutional administrator will have the option to interview prospective personnel. The final selection of all employees or subcontractors shall be subject to approval of the NJDOC. . . . Section 3.3.2.15 provides: Continued Employment: Initial and continued employment of staff and subcontractors shall be subject to approval of the NJDOC, which reserve the right to instruct the contractor to prohibit any contractor's employees and/or independent subcontractors from performing any service with regard to this contract. . . . If such action or activity may result in harm . . . or if security may be compromised, as determined by the NJDOC, compliance will be immediate. . . .
On May 14, 2009, plaintiff filed his complaint alleging a violation of his constitutional rights to future employment after being discharged from Gateway; a violation of the NJCRA; intentional interference with economic advantage; defamation; New Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-1 to 12-3; and wrongful termination premised on a whistleblower claim pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.
In November 2011, defendants moved for summary judgment. Thereafter, Gateway moved for summary judgment. In January 2012, the judge conducted oral argument, granted Gateway's motion, and stated with regard to plaintiff's dual employment status with Gateway and the State that
unlike somebody who is a nurse or a nurse's aide in a jail on a prison medical facility, who works for an independent contractor, the services that Gateway was providing would seem to the [c]ourt to be more directly related to a central or core function of the correctional facility, particularly at the [DOC] level where these people are already convicted and serving sentences as opposed to many of the inmates in county jails being pretrial detainees who can't make bail. . . .In February 2012, the judge issued a lengthy oral opinion granting defendants' motion for summary judgment. The judge stated:
What also seems apparent to the [c]ourt is that the [s]tate under the terms of its contract with Gateway maintains some considerable supervisory and control functioning as to how Gateway functioned. . . . [I]t seems clear from the submissions that[,] in general[,] and with regard to [plaintiff] in particular[,] he was basically working with and being supervised by [s]tate correctional officials and employees, even if he was technically a Gateway . . . employee. . . .
With regard to termination of the work relationship here[,] it was the [s]tate that determined [plaintiff's] security clearance is revoked, [plaintiff] can't work in any of [their] facilities, [it is] not Gateway making that determination. . . . Here[,] if we look at the three-part test in [D'Annunzio v. Prudential Insurance Co. of America, 192 N.J. 110 (2007)], the [s]tate control was considerable. [Plaintiff's] economic dependence of the work relationship was directly related to the [s]tate[] providing him with security clearances. . . .
And with regard to the third factor, the degree to which there is a functional integration of the employer's business with that of the person doing the work at issue[,] here, there's a very close working
relationship between [plaintiff] and the [s]tate officials and how that entire process carried itself out with him sitting in and participating in classification meetings . . . .
Having said that, I'm going to reschedule this motion for two weeks.
With regard to plaintiff['s] CEPA claims[,] first we must look at the existence or not of an employment relationship. . . . To determine whether plaintiff should be considered an employee of the [s]tate for purposes of CEPA analysis, the [c]ourt's analysis is guided by CEPA's remedial nature, cases interpreting the Act's language[,] as well as the decisions addressing employer liability under the law against discrimination.The judge then briefly analogized this case to Hoag v. Brown, 397 N.J. Super. 34 (App. Div. 2007) (holding that plaintiff, who provided mental health services for prison inmates, was a state employee with respect to her Law Against Discrimination claims), and applied the twelve Pukowsky factors. He stated:
In the present context[,] a plaintiff who provides professional or specialized services requires the court to look beyond the label attached to the employer-employee relationship . . . . Analysis of a nontraditional work relationship is conducted under the [twelve] factor test set forth in [Pukowsky] v. Caruso[, 312 N.J. Super. 171 (1998)]. And those factors are . . . .
. . . .
The Court in [D'Annunzio] emphasized three primary considerations when examining the nontraditional employment relationship.
One, employer control.
Two, the worker's economic dependence on the work relationship.
And three, the degree to which there has been a functional integration of the employer's business with that of the person doing the work at issue.
[(Emphasis added).]
One, the employer's right to control the means and manner of the worker's performance. Final selection of all employees or subcontractors is subject to DOC's approval. Both [the private employer in Hoag, supra,] and . . . Gateway personnel are subject to a background investigation conducted by the DOC. The continued employment of . . . Gateway staff is subject to the DOC's approval. . . .The judge then dismissed the CEPA claim determining that plaintiff failed to prove a prima facie case of a retaliatory discharge, and he found no support for plaintiff's defamation claim. Next, the judge considered plaintiff's constitutional and CRA claims and stated:
Both plaintiffs in [Hoag] and [here] were required to follow DOC's respective services and procedures. . . . Both plaintiff[s] attended . . . meetings with prison administration and were required to attend staff meetings . . . .
[T]wo, the kind of occupation, supervised or unsupervised. The [Hoag] court found that many of the same facts that apply to DOC's control over plaintiff also apply here. Similarly[,] plaintiff was supervised by both Gateway and DOC personnel.
[T]hree, the skill involved. As a professional[,] plaintiff provided services in close proximity to other DOC employees and was providing skilled services as a substance abuse evaluator.
[F]our, who furnishes equipment and workplace. [This] weighs in favor of liability against the [s]tate. . . .
Five, the length of time in which the individual has worked. Although the Appellate Division has given little weight to this factor in certain cases . . . ., plaintiff . . . has worked at [the Prison] continuously from 1997 through 2008.
[S]ix, eight, ten[,] and eleven, all weigh in [plaintiff's] favor . . . . [S]ix, the method of payment.
[E]ight, whether there is an annual leave.
[T]en, whether the worker accrues retirement benefits.
[E]leven, whether the employer pays social security taxes.
Those factors weigh in favor of finding the [s]tate to not be the plaintiff's employer. He is not paid by the [s]tate. The [s]tate doesn't give him annual leave. The [s]tate doesn't provide him with a retirement benefit program. And[,] the [s]tate doesn't pay social security taxes on [plaintiff's] behalf . . .
Yet, the [Hoag] court determined that these factors are not entitled to great weight . . . .
[S]even, the manner of termination of the work relationship. Although plaintiff here ended the work relationship upon his
resignation[,] the contract between Gateway and the [s]tate states that the [s]tate can terminate, revoke clearances[,] and bar any Gateway employee from access to the facility. . . . [H]ere it was the [s]tate that barred the plaintiff from reentering any [DOC] facility . . . .
[N]ine, whether the work is an integral part of the business of the employer. [The Hoag court] found this factor to be a primary consideration . . . . The present record could easily support a conclusion that plaintiff's work was an integral part of the DOC's business in treating substance abuse of prisoners as part of its overall rehabilitation plan. Plaintiff's work affected inmate substance abuse treatment and inmate classification decisions. Plaintiff was required to be on site at least [forty] hours per week and was required to attend any training sessions or staff meetings involving substance abuse.
[T]welve, the intention of the parties. The contract between the [s]tate and . . . Gateway . . . provides that the parties intended that . . . Gateway would be considered an independent contractor and its employees would not be considered employees of the [s]tate. Plaintiff conceded in discovery that he was only employed by Gateway and was not technically a [s]tate employee.
Here, like in [Hoag], this factor weighs in favor of the [s]tate[,] but considering the overall economic realities of the relationship between plaintiff, Gateway[,] and the DOC, the character of the relationship between the DOC and plaintiff could be considered that of an employer-employee for purposes of CEPA.
Defendant's motion for summary judgment as to the CEPA claim is denied to the extent
that it is based on the lack of an employer-employee relationship.
[(Emphasis added).]
The present issue is whether plaintiff is entitled to the protection of the New Jersey Constitution relating to the right to procedural due process due to deprivation of a liberty interest.The judge dismissed plaintiff's tortious interference claim finding that he failed to show that the State acted with malice. He pointed out that
There are two ways in which a liberty interest can be implicated. The first [is] where an employee's good name, reputation, honor[,] or integrity is at stake because of what the government is doing to him . . . .
The second situation arises if the employer in terminating an employee imposes on him a stigma or other disability that forecloses his freedom to take advantage of other employment opportunities. In either situation[,] it is the denial of future government employment [and] not just the deprivation of present employment that implicates a protected liberty interest.
In Bishop [v.] Wood[, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976),] the U.S. Supreme Court held that there is no deprivation of liberty of an at-will governmental employee when he is discharged
and there is no public disclosure of the reasons for discharge.
. . . .
Only if the employer creates and disseminates a false and defamatory impression about the employee in connection with this termination, is a name clearing hearing required.
. . . .
Adopting the analysis under [Pukowsky,] it should be assumed for the present motion that plaintiff has established that he is entitled to the same due process protections as those afforded state employees.
Here[,] there is no indication that defendants have publicized any reasons related to plaintiff's termination. . . .
Furthermore, although plaintiff now argues otherwise, the evidence in discovery supports the defendant's contention that [plaintiff] was fired because he changed his story and raised some already heightened suspicions regarding the Beebe [and inmate] incident.
Plaintiff has failed to show that defendants made any stigmatizing statements. Summary judgment is therefore granted.
[t]he [s]tate allege[d] that its actions were motivated by the need to insure prison security and safeguard the public. Both the [s]tate and public interest in protecting the DOC's freedom and maintaining theSubsequently, the judge dismissed plaintiff's TCA claims and dismissed the complaint with prejudice. This appeal and cross-appeal followed.
security and integrity of its prison system is paramount.
Plaintiff does not appeal from the denial of his defamation and CEPA claims.
In July 2012, plaintiff withdrew his appeal from the order granting summary judgment to Gateway and its employee Sandra Broussard, and plaintiff dismissed all claims against defendants Kenneth Green and the Prison with prejudice.
On appeal, plaintiff's primary argument is that because defendants never provided him with the reason for his ban from DOC facilities, or an opportunity to challenge that decision, his constitutional rights were violated and he is entitled to a post-termination hearing. He also contends that the judge erred by rejecting his CRA claim and assertion that Wojtowicz tortiously interfered with plaintiff's economic advantage. On the cross-appeal, defendants argue the judge erred by finding that plaintiff was a dual employee of Gateway and the DOC. Defendants maintain that plaintiff was never a state employee and is therefore not entitled to the protections or due process procedures afforded state employees.
For purposes of this appeal, and giving the benefit of all reasonable inferences to plaintiff, we assume that he was a dual employee of Gateway and the State. We focus, therefore, on plaintiff's contentions that his constitutional rights have been violated.
I.
We begin by addressing plaintiff's argument that he maintains a liberty interest in future employment and was therefore entitled to a post-termination hearing. He relies on Nicoletta v. North Jersey District Water Supply Commission, 77 N.J. 145 (1978), for that proposition. Plaintiff states that he has never been presented with specific notice of the charges against him, which he contends violates due process notice requirements.
"Before a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.'" Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570 n.7, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548, 556 (1972) (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971)) (holding liberty interest not implicated where the state "did not make any charge against" the plaintiff, a former teacher who alleged the school violated his rights to free speech by not rehiring him, "that might seriously damage his standing and associations in his community," or impose upon him a "stigma"). "[T]o determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake." Id. at 570-71, 92 S. Ct. at 2705-06, 33 L. Ed. 2d at 557.
The first way that a liberty interest can be implicated is "where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Id. at 573, 92 S. Ct. at 2707, 33 L. Ed. 2d at 558 (internal quotation marks omitted). Where a "communication was not made public, it cannot properly form the basis for a claim that petitioner's interest in his 'good name, reputation, honesty, or integrity' was thereby impaired." Bishop, supra, 426 U.S. at 348-49, 96 S. Ct. at 2079-80, 48 L. Ed. 2d at 692. The second way is where the state has "imposed on [the plaintiff] a stigma or other disability that foreclosed his [or her] freedom to take advantage of other employment opportunities." Roth, supra, 408 U.S. at 573, 92 S. Ct. at 2707, 33 L. Ed. 2d at 559. Liberty
denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as"It stretches the concept too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one job but remains as free as before to seek another." Id. at 575, 92 S. Ct. at 2708, 33 L. Ed. 2d at 560.
essential to the orderly pursuit of happiness by free men.
[Id. at 572, 92 S. Ct. at 2706-07, 33 L. Ed. 2d at 558 (internal quotation marks omitted).]
In Roth, the Court, while discussing "stigma," stated:
The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. For "to be deprived not only of present government employment but of future opportunity for it certainly is no small injury . . . ."The Court found, however, that the plaintiff was not barred from all other public employment. Ibid. As to the Fourteenth Amendment's procedural protections of "property," the Court stated:
[Id. at 573-74, 92 S. Ct. at 2707, 33 L. Ed. 2d at 559.]
[I]n the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U.S. 551[, 76 S. Ct. 637, 100 L. Ed. 692 (1956)], and college professors and members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U.S. 183[, 73 S. Ct. 215, 97To have a property interest in a benefit, a person "must have a legitimate claim of entitlement to it." Id. at 577, 92 S. Ct. at 2709, 33 L. Ed. 2d at 578.
L. Ed. 216 (1952)], have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle "proscribing summary dismissal from public employment without hearing or inquiry required by due process" also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment. Connell v. Higginbotham, 403 U.S. 207, 208[, 91 S. Ct. 1772, 1773, 29 L. Ed. 2d 418, 420 (1971)].
[Id. at 576-77, 92 S. Ct. at 2709, 33 L. Ed. 2d at 560 (emphasis added).]
In Nicoletta, supra, 77 N.J. at 149, 151, the plaintiff, a former reservoir police force sergeant, alleged he had been discharged without fair notice and a hearing of the charges, thereby violating his constitutional rights. His employer, the water supply commission, had provided him with a "hearing." Id. at 152. The court cited Roth extensively and then stated that it "cannot be overemphasized that [the plaintiff's] employment was terminated for 'cause,' which went to the heart of the responsibilities of a law enforcement official." Id. at 157. The court noted that a specific line of cases did not establish the proposition that "reputation alone, apart from some more tangible interests such as employment, is either 'liberty' or 'property' by itself sufficient to invoke the procedural protection of the Due Process Clause." Id. at 159 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 1160-61, 47 L. Ed. 2d 405, 414, reh'g denied, 425 U.S. 985, 96 S. Ct. 2194, 48 L. Ed. 2d 811 (1976)).
As to a "property" interest, the court noted that "termination need not be predicated on just cause, and accordingly no 'property' interest is implicated, such as to invoke the due process shield." Id. at 154. The court found that "a legitimate claim of entitlement" was the key concept at play. Id. at 154-55. In construing the pertinent statute, the court held that plaintiff's employment was at the employer's will; therefore, he had no entitlement to employment. Id. at 155.
--------
Ultimately, the court decided the case on a narrow basis related to N.J.A.C. 4:1-8.14, which, at the time, provided for automatic disqualification from future state service in light of prior removal from public employment. Id. at 159-60. The court found that this removal, pursuant to "operation of state law," implicated a Fourteenth Amendment liberty interest. Id. at 162.
In Tuch v. College of Medicine & Dentistry, 177 N.J. Super. 101, 102 (App. Div. 1980), plaintiff — a former managerial employee of the defendant — argued, while relying on Nicoletta, supra, that he was entitled to an evidentiary hearing prior to his termination. The court began by noting that N.J.A.C. 4:1-8.14 had been amended since Nicoletta to remove the automatic disqualification of a discharged public employee from other public employment. Id. at 103. The defendant never afforded the plaintiff a hearing. Ibid. The court stated that "[i]n view of the amendment to N.J.A.C. 4:1-8.14, Nicoletta is distinguishable and not controlling." Ibid. The court then held that the plaintiff "did not suffer loss of a fundamental liberty; he is no longer barred from other governmental employment in this [s]tate." Ibid. (emphasis added). In so deciding, the court stated that as "an at[-]will . . . employee he was subject to termination without cause and without an opportunity for a hearing, absent infringement of some other constitutionally protected interest such as freedom of speech." Ibid.; see also Grexa v. State, Dep't of Human Servs., 168 N.J. Super. 202, 207 (App. Div. 1978) (holding that where a plaintiff is "a temporary employee without [a] fixed term with DYFS, unprotected by Civil Service or by any statutory tenure, contractual commitment[,] or collective negotiations," a public employer may discharge the employee without cause).
In Grexa, supra, 168 N.J. Super. at 209, the court stated that a liberty interest termination hearing is required when:
the employee alleges that the agency's failure to renew his employment contract resulted from certain activities by him, which activities are within the area protected by the State or Federal Constitutions, or both, and the employee has made some showing that the activities were such that they may have been a significantThereafter, the court held that the terminated former DYFS at-will employee "failed to make any showing that any of his constitutionally protected activities were a significant element in his discharge"; rather, he relied on "bare allegations of an infringement of his constitutional rights." Ibid.
element in the decision of the agency not to renew or not to retain.
[(Internal quotation marks omitted).]
Here, the judge cited Nicoletta, supra, 77 N.J. at 154, and stated that "the present circumstances do not implicate a protected property interest where there was no constitutional right to employment, tenured employment[,] or a promise of continued employment." See also Tuch, supra, 17 7 N.J. Super. at 103; Grexa, supra, 168 N.J. Super. at 209. After listing the two ways to implicate a liberty interest, the judge concluded that "there is no indication that defendants have publicized any reasons related to plaintiff's termination," and that "the evidence in discovery supports the defendant's contention that [plaintiff] was fired because he changed his story and raised some already heightened suspicions regarding the Beebe [and inmate] incident." The judge concluded that plaintiff "failed to show that defendants made any stigmatizing statements." We agree.
Plaintiff also fails to show how defendants violated the first way to implicate a liberty interest: "where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him." Roth, supra, 408 U.S. at 573, 92 S. Ct. at 2707, 33 L. Ed. 2d at 558 (internal quotation marks omitted). While plaintiff argues that the DOC has deprived him of all future employment, he concedes that he could have pursued employment with Gateway elsewhere but chose not to do so. Gateway personnel informed him that they would assist him in locating another job, but he was not interested. Moreover, the DOC banned him from entering DOC premises — they did not bar plaintiff from all public employment. See Tuch, supra, 177 N.J. Super. at 103. In fact, plaintiff is employed full time at a rehabilitation center and plaintiff's counsel did not contest at oral argument that plaintiff had since obtained public and private employment with a hospital, clinic, and school.
There is no credible evidence in the record to suggest that the DOC somehow tarnished plaintiff's name, reputation, honor, or integrity, other than simply barring him from entering the premises in light of what could reasonably be concluded to be a security threat whereby a substance abuse counselor might be assisting inmates in changing information that could possibly lead to early release or less punishment. See, e.g., Bell v. Wolfish, 441 U.S. 520, 540, 99 S. Ct. 1861, 1874, 60 L. Ed. 2d 447, 469 (1979) (The "[g]overnment must be able to take steps to maintain security and order at" prisons.).
As a result, we conclude that plaintiff's due process rights have not been violated and he is not entitled to a post-termination hearing.
II.
Next, we reject plaintiff's contention that his civil rights have been violated. Plaintiff argues that he has been deprived of a constitutional right to due process because no charges have been presented and there was no right to appeal or obtain information related to the ban.
N.J.S.A. 10:6-2c of the CRA provides, in pertinent part:
c. Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this [s]tate, or whose exercise or enjoyment of those substantive rights, privileges[,] or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief."To establish a cause of action [under the CRA], a plaintiff must allege a specific constitutional violation." Matthews v. N.J. Inst. of Tech., 717 F. Supp. 2d 447, 452 (D.N.J. 2010) (holding that there is "no constitutionally protected property interest for an at-will employee in continued public employment"). We conclude that plaintiff has failed to demonstrate a violation of his civil rights.
We reject plaintiff's argument that defendants violated Article I, Section I, of the New Jersey Constitution because Wojtowicz deprived him of a right under color of state law without getting the proper authorization from the DOC. Plaintiff asserts that the DOC owed him a "writing, as is required," explaining the reason(s) for his removal. Here, the pertinent contract provision states:
Section 3.1.1.15, Denial of facility access: NJDOC may deny entrance of any personnel to any or all of its facilities, provided that NJDOC shall notify the Program Director of such denial and the reasons as soon as reasonably practical. Contractor shall be responsible for filling the positions of any personnel prohibited from working at an NJDOC facility.There is no requirement that plaintiff be given a "writing" of any sort indicating any reason(s) for his removal. Plaintiff could have worked elsewhere for Gateway, and the DOC did not bar him from pursuing public employment elsewhere.
[(Emphasis added).]
III.
Finally, plaintiff argues that the judge erred by dismissing his claim for tortious interference with economic advantage. Plaintiff asserts that "Wojtowicz maintained a grudge [against him] and therefore acted out of his own personal motive and clearly beyond his authority."
To prove tortious interference with economic advantage, (1) the plaintiff must have a "reasonable expectation of economic advantage"; (2) the interference and harm inflicted must be done "intentionally and with malice," not necessarily "ill will," but in the sense of conduct that is wrongful and "without justification or excuse" under all the circumstances; (3) the interference must have caused a "loss of the prospective gain"; and (4) the loss or injury caused damage. Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 751 (1989) (internal quotation marks omitted). The plaintiff bears the "burden to prove that defendants acted intentionally and wrongfully without justification." Id. at 756. The factors most pertinent to the "malice" standard are: "(a) the nature of the actor's conduct, (b) the actor's motive, (d) the interests sought to be advanced by the actor, and (e) the social interest in protecting the freedom of action of the actor and the contractual interests of the other." MacDougall v. Weichert, 144 N.J. 380, 404-05 (1996).
Here, the judge remarked that the "[s]tate['s] . . . actions were motivated by the need to insure prison security and safeguard the public. Both the [s]tate and public interest in protecting the DOC's freedom and maintaining the security and integrity of its prison system is paramount." Moreover, plaintiff conceded that he failed to follow proper procedure in conducting the ASI report by not signing or dating it, among other deficiencies. Plaintiff initially stated that he felt Beebe had "influenced" and "manipulated" him, and then recanted such statements when state personnel contacted him subsequently. According to both Beebe and the State, the inmate was "the number two mob figure in Southern [New] Jersey." Plaintiff's actions could have led to favorable treatment for the inmate. Plaintiff's allegations that Wojtowicz acted out against him because of a personal "grudge" are unsubstantiated and would at most lead to an inference of ill will. As such, plaintiff fails to establish that the DOC acted with "malice." See MacDougall, supra, 144 N.J. at 404-05; Printing Mart-Morristown, supra, 116 N.J. at 751.
We have determined that plaintiff's remaining arguments lack sufficient merit to warrant discussion in this written decision. R. 2:11-3(e)(1)(E). Moreover, because we viewed the facts in the light most favorable to plaintiff, we need not reach whether plaintiff was a dual employee.
We affirm on the appeal and deem the cross-appeal to be moot.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION