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

  •                                                  NOT PRECEDENTIAL
                 FOR THE THIRD CIRCUIT
                          No. 17-2052
                       JOHN O. TORREY,
      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
           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
           Submitted Under Third Circuit LAR 34.1(a)
                      November 13, 2017
    Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges
                (Opinion filed: December 7, 2017)
    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
           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.
     The District Court also dismissed Torrey’s New Jersey common law due process claim,
    but he does not challenge that ruling on appeal.
    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
    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
           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.