John Torrey v. New Jersey Department of Law a ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2052
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JOHN O. TORREY,
Appellant
v.
STATE OF NEW JERSEY DEPARTMENT OF LAW
AND PUBLIC SAFETY, Division of Criminal Justice;
STEPHEN J. TAYLOR, individually, and in his official
capacity of Director of the Division of Criminal Justice;
PAUL MORRIS, individually, and in his official capacity as
the chief of investigations, Division of Criminal Justice;
STANLEY BEET, individually, and in his official capacity;
DERMOT P. O’GRADY, Esq. in his individual and his
official capacity; JOHN AND JANE DOES 1 TO 25,
individually and in their official capacities
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-13-cv-01192)
District Judge: Honorable Peter G. Sheridan
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Submitted Under Third Circuit LAR 34.1(a)
November 13, 2017
Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges
(Opinion filed: December 7, 2017)
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OPINION*
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AMBRO, Circuit Judge
John Torrey is a former law enforcement officer who was employed by the New
Jersey Department of Law and Public Safety, Division of Criminal Justice (“DCJ”).
While there he was the target of an internal investigation involving allegations of sexual
harassment, hostile work environment, and other misconduct. Following the
investigation, he was terminated and began applying for other law enforcement positions,
including positions at the Mercer County Sheriff’s Office and the Camden County Police
Department.
To facilitate routine background checks in connection with his applications,
Torrey signed and notarized consent forms authorizing the DCJ to share its personnel
files relating to him, including those produced by the internal investigation. After
receiving these forms, the DCJ allowed investigators from both the Mercer and Camden
County offices to review Torrey’s files. He was not hired.
Torrey sued the DCJ and individual, state-employee defendants, alleging a
deprivation of a liberty interest in reputation under 42 U.S.C. § 1983, and defamation,
false light, and tortious interference with economic advantage under New Jersey law.1
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
The District Court also dismissed Torrey’s New Jersey common law due process claim,
but he does not challenge that ruling on appeal.
2
The District Court entered summary judgment for the defendants and dismissed his
claims. It found that there were no genuine issues of material fact about whether the
DCJ’s internal files contained false and inaccurate information. It also concluded that the
consent forms signed by Torrey were not void as against public policy. Next, it found no
evidence the defendants interfered with his prospective economic advantage. Finally, it
ruled sua sponte that the State and state-employee defendants were entitled to qualified
immunity. As none of the Court’s rulings were erroneous, we affirm.
For three of Torrey’s four claims, he must produce evidence that the contents of
the personnel files were both false and made public. DeAngelis v. Hill, 847 A.2d 1261,
1267–68 (N.J. 2004) (defamation claims require a “false and defamatory statement” and
an “unprivileged publication of that statement”); see also Hill v. Borough of Kutztown,
455 F.3d 225, 236 (3d Cir. 2006) (a section 1983 liberty interest in reputation claim
requires an employer to have “disseminate[d] a false and defamatory impression about
the employee.”); Romaine v. Kallinger, 537 A.2d 284, 289, 109 N.J. 282, 293 (N.J.,1988)
(false light claims require placement “in a false light before the public.”) The record
evidence, however, fails to establish either requirement. To begin, Torrey does not
provide evidence of falsity. The District Court found the majority of Torrey’s file was
undisputedly true, as Torrey himself acknowledged in a formal, recorded interview
conducted as part of the investigation into the complaints. During that interview, he
confirmed making harassing sexual comments, gestures, and contact with female
subordinates, improperly using confidential funds, and visiting sexually explicit websites
on his work computer. Second, Torrey does not provide evidence of unprivileged
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publication, as there is no evidence that the personnel files were disseminated to parties
other than Torrey’s prospective employers, who Torrey had authorized to access the files.
Torrey answers that the consent forms are void as against public policy. He also
challenges the District Court’s qualified immunity analysis for the same reason, disputing
its reliance on the waivers in its reasoning. But Torrey’s public policy argument is
unpersuasive. Investigators who conduct background checks are capable of
independently evaluating the reliability of findings, evidence, and conclusions contained
in internal files. Moreover, as the District Court stated, the sensitive, dangerous, and
public-facing nature of police work favors a policy encouraging inter-agency disclosure
of information about police officers. Imposing liability here could dissuade police offices
from conducting thorough, memorialized investigations into allegations of problem
conduct.
Torrey’s final claim is for tortious interference with prospective economic
advantage. For this he must show intentional and malicious interference. See Varrallo v.
Hammond Inc., 94 F.3d 842, 848 (3d Cir. 1996). But he does not point to any evidence
of anyone at the DCJ speaking negatively about him to the investigators. His assertion
that providing the files constituted interference is incorrect because he consented to their
limited disclosure. The District Court correctly concluded that this claim fails, as there is
no other communication or conduct alleged.
Accordingly, we affirm.
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