DR. MICHAEL CONTE VS. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY (L-5285-15, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0871-17T1
DR. MICHAEL CONTE,
Plaintiff-Appellant,
v.
UNIVERSITY OF MEDICINE AND
DENTISTRY OF NEW JERSEY
(UMDNJ); RUTGERS, THE STATE
UNIVERSITY OF NEW JERSEY,
RUTGERS SCHOOL OF DENTAL
MEDICINE; DR. CECILE A.
FELDMAN, Dean, Rutgers School of
Dental Medicine; ANDREA WEST, COO
of Rutgers School of Dental Medicine;
LISA GROSSKREUTZ, Director of
Office of Employment Equity of
Rutgers; and JENNIER HELLSTERN,
Defendants-Respondents.
____________________________________
Argued October 23, 2018 – Decided December 17, 2018
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-5285-15.
Gerald Jay Resnick argued the cause for appellant
(Resnick Law Group, PC, attorneys; Gerald Jay
Resnick, on the briefs).
Tricia B. O'Reilly argued the cause for respondents
(Walsh Pizzi O'Reilly Falanga, LLP, attorneys; Tricia
B. O'Reilly, M. Trevor Lyons and Kristin Spallanzani,
on the brief).
PER CURIAM
Plaintiff appeals from an order entered by the Law Division on September
29, 2017, which granted summary judgment in favor of defendants and
dismissed plaintiff's complaint with prejudice. We affirm.
I.
In 1993, plaintiff began his employment with the University of Medicine
and Dentistry of New Jersey (UMDNJ or the University) as a clinical dentist.
He later held various positions at UMDNJ. In 2007, plaintiff was appointed
Director of the Office of Faculty Practice (FP), a private dental practice operated
by Rutgers School of Dental Medicine (RSDM), and in 2013, plaintiff was
appointed Senior Associate Dean in Clinical Affairs, an administrative position.
In those capacities, plaintiff reported to Cecile A. Feldman, DMD, MBA, the
Dean of RSDM.
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On May 20, 2014, plaintiff met with W.P.D., an employee at FP, regarding
allegations by R.A., another FP employee, that W.P.D. assisted students in
cheating and stealing University property. 1 Plaintiff offered W.P.D. the
opportunity to resign to save his pension. W.P.D. rejected this offer. W.P.D.'s
representative suggested that W.P.D. file a formal complaint.
On May 27, 2014, W.P.D. filed a discrimination and harassment
complaint with the Rutgers Office of Employment Equity (OEE). The complaint
charged R.A. with making disparaging comments to him based on his sexual
orientation. The complaint included allegations that plaintiff made similarly
inappropriate comments.
In April 2014, plaintiff was informed that S.W., an employee at FP, lied
about her work history on her employment application. On June 9, 2014, S.W.
sent a letter to Feldman alleging that plaintiff acted inappropriately during a
meeting to discuss this allegation, and on June 17, 2014, S.W. filed a
discrimination and harassment complaint against plaintiff and another
individual.
On that same day, Feldman called plaintiff while he was on a business trip
out of state. Feldman told plaintiff he was being replaced as Director of FP.
1
We use initials to identify certain individuals to protect their privacy.
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Feldman made this decision after consulting with Lisa Grosskreutz, Director of
the OEE, and Andrea West, Chief Operating Officer of RSDM. Feldman based
her decision on a RSDM policy of removing supervisors when complaints of
discrimination and harassment are submitted. Feldman memorialized her
conversation with plaintiff in an email sent to plaintiff that day.
The next day, Feldman sent an email to members of FP stating, "Effective
immediately, Dr. August Pellegrini will assume the directorship of [FP]. In
addition, Mrs. Leilani Otuafi will assume the program administrator position.
Ongoing, all business related matters should be directed to Dr. Pellegrini and
Ms. Otuafi until further notice."
At her deposition, Feldman testified that she sent the email to "all
individuals who are associated with the [FP]." This included individuals who
treated patients either at FP or at University Hospital. Two days later, Pellegrini
sent an email to members of the FP stating that the OEE was conducting an
investigation of events that allegedly occurred at FP and that the investigation
was confidential.
When he was deposed, plaintiff testified that on the first Monday after he
returned from his business trip, three individuals asked him about his removal .
Plaintiff stated "that word spread like wildfire through the dental school."
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On June 23, 2014, Grosskreutz sent plaintiff an email notifying him of
S.W.'s complaint. Plaintiff was allowed to respond. In his response, plaintiff
stated that he had "never discriminated against nor ha[d he] ever harassed
[S.W.]" He also stated that S.W.'s letter "was filled with inflammatory
misleading statements, which [had been] taken out of context with the actual
events."
On July 7, 2014, W.P.D. amended his complaint and named plaintiff as a
respondent. Plaintiff was provided with the amended complaint and permitted
to respond. In his response, plaintiff asserted that he "never discriminated
against [or] . . . ever harassed [W.P.D.]" He stated that W.P.D.'s "complaint
[was] filled with exaggerations, mistruths, [and] misleading statements which
are taken out of context with the actual events, and in some cases [are] direct
lies."
In October 2014, Grosskreutz provided plaintiff with a copy of the
investigation reports regarding W.P.D. and S.W.'s complaints, which were
prepared by Jennifer Hellstern, the Associate Director of the OEE. Hellstern
had interviewed various individuals including plaintiff, and considered
plaintiff's written responses to the complaints. Hellstern found that plaintiff
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violated UMDNJ's policy prohibiting discrimination and harassment with regard
to W.P.D., but found no such violation regarding S.W.
Plaintiff was permitted to respond to the reports. Plaintiff provided
Grosskreutz a written response to the report about W.P.D.'s complaint. He
asserted that W.P.D. had filed the complaint in retaliation for their conversation
regarding the allegation that W.P.D. assisted students in cheating and stealing
University property. Plaintiff also claimed his statements were taken out of
context, and he did not make any statements with prejudicial intent.
On October 21, 2014, Grosskreutz issued a preliminary report addressing
W.P.D.'s complaint. She accepted Hellstern's finding that plaintiff violated the
University's policy against discrimination and harassment with regard to W.P.D.
Plaintiff was provided a copy of the report and allowed to respond. He did not
do so. Thereafter, Feldman met with plaintiff to discuss W.P.D.'s complaint.
On November 25, 2014, Feldman sent plaintiff a letter in which she
"concluded that the allegations made against [plaintiff were] credible . . . and
that [his] conduct violated the University's [p]olicy [p]rohibiting
[d]iscrimination and [h]arassment." Feldman stated that she intended to remove
plaintiff from his position as Director of FP. She also intended to remove
plaintiff from his position as Senior Associate Dean for Clinical Affairs at
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RSDM and reduce his salary. Feldman advised plaintiff, however, he could
remain as Senior Associate Dean if he engaged an executive management coach.
Feldman provided plaintiff with another opportunity to submit
information regarding the complaint. Plaintiff asked Feldman to reconsider her
decision and he sent her a lengthy response in which he detailed thirty-seven
concerns he had with the investigation. Feldman responded on December 30,
2014. She stated that she was out of the office and any final action would be
deferred until January 2015. Feldman met with plaintiff on January 9, 2015.
She reaffirmed her decision to remove plaintiff from his position as Director of
FP; however, she decided that plaintiff could remain as Senior Associate Dean,
and his salary would not be reduced.
After he was removed from his position as Director of FP, plaintiff had
ongoing issues with Pellegrini at FP. Plaintiff claimed he was not receiving a
full calendar of patients. As a result, plaintiff resigned from FP. Plaintiff
contends that his removal as Director of FP has ruined his reputation, since he
now has to indicate on his curriculum vitae (CV) and inform persons who ask
that he was removed as Director.
On September 8, 2015, plaintiff filed a complaint in the trial court against
UMDNJ, Feldman, Grosskreutz, Hellstern, and West. Plaintiff alleged
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defendants deprived him of his liberty interest in protecting his good name and
reputation, in violation of Article 1, Paragraph 1 of the New Jersey Constitution.
Plaintiff claimed he was removed from his position as Director of FP without
"even being apprised of the particulars of . . . complaint[s] filed against him[.]"
Defendants filed a motion to dismiss the complaint pursuant to Rule 4:6-
2(e), for failure to state a claim upon which relief can be granted. The trial court
denied the motion. Following discovery, defendants filed a motion for summary
judgment. After hearing oral argument by counsel, the judge granted the motion
and entered an order memorializing her decision.
The judge found that plaintiff had failed to establish that he had a
constitutionally-protected liberty interest because there was no evidence
defendants had publicly disseminated any damaging information about him.
The judge further found that even if plaintiff was entitled to due process with
regard to his removal from the position as Director of FP, he had been provided
with all of the process due. In addition, the judge determined that plaintiff had
not presented sufficient evidence to impose liability upon the individual
defendants.
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The judge filed an order dated September 29, 2017, granting summary
judgment in favor of defendants and dismissed the complaint with prejudice.
This appeal followed.
II.
On appeal, plaintiff argues he presented sufficient evidence to support a
claim under Article 1, Paragraph 1 of the New Jersey Constitution for the denial
of procedural due process. He therefore argues the trial court erred by granting
defendants' motion for summary judgment.
When reviewing an order granting a motion for summary judgment, we
apply the same standard that the trial court applies in ruling on the motion. Lee
v. Brown, 232 N.J. 114, 126 (2018) (citing Steinberg v. Sahara Sam's Oasis,
LLC, 226 N.J. 344, 366 (2016); Globe Motor Co. v. Igdalev, 225 N.J. 469, 479
(2016)); Templo Fuente De Vida Corp. v. Nat'l. Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v. Zurich Am.
Ins. Co., 210 N.J. 512, 524 (2012)). Therefore, we must determine whether the
evidence before the trial court shows that there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. R. 4:46-
2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
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Here, plaintiff alleges that he has a liberty interest in his good name and
reputation, which is protected from deprivation without due process under the
New Jersey Constitution. He claims W.J.D. and S.W. falsely asserted claims of
unlawful discrimination and harassment against him, and the OEE's
investigation did not afford him due process in addressing those allegations.
The Fourteenth Amendment to the United States Constitution provides
that a state shall not "deprive any person of life, liberty, or property, without due
process of law[.]" U.S. Const. amend. XIV, § 1. The United States Supreme
Court has held that under the United States Constitution, an individual may have
a protected liberty interest in his or her good name or reputation, and a state
government may not deprive the individual of that interest without due process.
See, e.g., Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971) ("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.").
However, a claim of damage to a person's good name or reputation alone
is insufficient to establish a protected liberty interest under the United States
Constitution. See Paul v. Davis, 424 U.S. 693, 711-12 (1976). The claimant
must satisfy the so-called "stigma-plus" test and, "[i]n the public employment
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context, . . . [the test] has been applied to mean that when an employer 'creates
and disseminates a false and defamatory impression about the employee in
connection with his termination,' it deprives the employee of a protected liberty
interest." Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006)
(quoting Codd v. Velger, 429 U.S. 624, 628 (1977)).
"To satisfy the 'stigma' prong of the test, [the plaintiff] must . . . allege[]
that the purportedly stigmatizing statement(s) (1) were made publicly, and (2)
were false." Ibid. (citations omitted); see also Bishop v. Wood, 426 U.S. 341,
348 (1976) ("Since the . . . communication was not made public, it cannot
properly form the basis for a claim that [the plaintiff's] interest in his 'good
name, reputation, honor, or integrity' was thereby impaired." (footnote
omitted)). Furthermore, to satisfy the "plus" prong, there must "be an alteration
or extinguishment of 'a right or status previously recognized by state law.'" Hill,
455 F.3d at 237 (quoting Paul, 424 U.S. at 711 (1976)).
"Article I, [P]aragraph 1 of the New Jersey Constitution does not
enumerate the right to due process, but protects against injustice and, to that
extent, protects 'values like those encompassed by the principle[] of due
process.'" Doe v. Poritz, 142 N.J. 1, 99 (1995) (second alteration in original)
(quoting Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985)). Our Supreme
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Court has held that under the New Jersey Constitution there are "protectable
interests in both privacy and reputation." Id. at 104.
However, the analysis under the New Jersey Constitution "differs from
that under the Federal Constitution" because our Supreme Court found a
protected interest in reputation, without a showing of "tangible loss." Ibid.
Therefore, to establish a claim under the New Jersey Constitution, a plaintiff
does not have to demonstrate the "plus" factor to assert a cognizable liberty
interest in his or her good name.
Nevertheless, to establish a protected liberty interest in reputation, the
plaintiff must present proof of public dissemination of the alleged stigmatizing
information. See id. at 106 (holding that individual has a protected liberty
interest arising from community notification under Megan's Law of his status as
a convicted sex offender); In re R.P., 333 N.J. Super. 105, 114-15 (App. Div.
2000) (finding a liberty interest where a state agency expressed concerns about
a teacher's alleged improper conduct to the teacher's employer and to the child's
parents, "with no restriction upon further dissemination"); In re East Park High
School, 314 N.J. Super. 149, 162 (App. Div. 1998) (holding that there is a liberty
interest where a state agency placed a substantiated claim of sexual abuse by a
teacher on to the central registry, which was publicly accessible).
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In this case, the trial court correctly determined that plaintiff did not have
a protected liberty interest in his good name and reputation under the New Jersey
Constitution. As noted, plaintiff presented evidence showing that Feldman and
Pellegrini sent emails to certain individuals indicating plaintiff had been
removed as Director of FP, and an investigation was being conducted of certain
alleged events at FP
However, the dissemination of the fact that plaintiff was removed from
his position as Director of FP, and that certain unspecified events at FP were the
subject of an investigation is insufficient to establish that plaintiff had a
protected liberty interest in his good name and reputation. See Doe, 142 N.J. at
106; In re L.R., 321 N.J. Super. 444, 460 (App. Div. 1999) (noting that "a liberty
interest is [not] implicated anytime a governmental agency transmits
information that may impugn a person's reputation"). The analysis is based in
part on the extent to which the information is disseminated, and the potential
impact on the individual's reputation. See, e.g., Doe, 142 N.J. at 106 (holding
that a person classified under Megan's Law as a Tier Two and Three sex offender
had a protected liberty interest in his reputation because his status was
transmitted to the public); In re R.P., 333 N.J. Super. at 114-15.
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Here, defendants did not disclose any stigmatizing information about
plaintiff to persons associated with FP, or to the public generally. Feldman sent
FP "providers" an email stating that "[e]ffective immediately, . . . Pellegrini will
assume the directorship of [the FP]." The email did not disclose the reasons for
plaintiff's removal. In addition, Pellegrini sent an email to FP "providers" and
staff members advising them that the OEE was conducting an investigation "into
events that allegedly occurred at the [FP]."
In the email, Pellegrini noted that the "the integrity of the investigation is
paramount" and any discussion of the investigation would compromise its
integrity. Pellegrini also stated that "the investigation [was] confidential in
nature." Pellegrini did not identify the events being investigated. He did not
indicate that plaintiff's actions were the subject of the investigation. When he
was deposed, plaintiff was asked if he had any information that defendants
informed anyone outside of the OEE's investigation about the facts or
conclusions of the investigation. Plaintiff responded, "I do not."
Plaintiff argues that his reputation was harmed because he had to inform
other persons that he was no longer Director of the FP, and he had to state on
his CV and tell persons who asked that he no longer held that position. However,
as the record shows, defendants did not publicly disseminate any stigmatizing
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information about plaintiff, his removal from his position, or the investigation
of the allegations against plaintiff.
Plaintiff further argues he is not required to establish publication to
support his due process claim under the New Jersey Constitution. However, as
stated previously, in Doe, our Supreme Court found that the "stigma-plus" test
under federal law does not apply in determining whether an individual has a
protected interest in his or her good name and reputation under New Jersey law.
Doe, 142 N.J. at 104. The plaintiff need only show "stigma." Ibid.
The "stigma" part of the test, which requires publication, see Hill, 455
F.3d at 236, is unaffected. See In re R.P., 333 N.J. Super. at 114-15; In re East
Park High School, 314 N.J. Super. at 162. In this case, plaintiff failed to present
sufficient evidence to show publication of stigmatizing information.
In support of his argument that publication is not required to establish a
claim under the New Jersey Constitution, plaintiff relies upon Shovlin v.
University of Medicine & Dentistry of New Jersey, 50 F. Supp. 2d 297 (D.N.J.
1998). Plaintiff's reliance on Shovlin is misplaced. In that case, the plaintiff
asserted a due process claim under the United States Constitution, not a claim
under New Jersey's Constitution. Id. at 300. Furthermore, the federal district
court in Shovlin noted that a due process claim under the New Jersey
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Constitution does not require a showing of tangible loss to establish a protected
liberty interest in reputation. Id. at 316-17. The court did not state that
publication of stigmatizing information was not required to state a claim.
Plaintiff also relies upon Kadetsky v. Egg Harbor Township Board of
Education, 82 F. Supp. 2d 327 (D.N.J. 2000). There, the plaintiff asserted a due
process claim under the federal and state constitutions based on a deprivation of
an alleged interest in reputation. Id. at 337-38. The federal district court stated
that the plaintiff had presented sufficient evidence to assert a claim under the
New Jersey Constitution. Id. at 338.
However, the plaintiff in Kadetsky presented evidence showing that the
defendants had disseminated a letter to certain individuals indicating that the
plaintiff had been accused of sexual misconduct with a student. Id. at 332-33.
In this case, plaintiff failed to present sufficient evidence showing that
defendants published information that damaged his reputation. Thus, plaintiff's
reliance on Kadetsky is misplaced.
III.
Plaintiff further argues that he should have been afforded the opportunity
for a trial-type hearing before a neutral third-party to address the complaints
against him. He contends he should have been allowed to present witnesses and
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cross-examine the individuals who made the allegations. Even if we assume
plaintiff's removal from his position as Director of FP implicated a
constitutionally-protected liberty interest in his reputation under New Jersey
law, the procedures that defendants employed here in investigating the
complaints provided plaintiff with all the process required.
"Due process is not a fixed concept . . . but a flexible one that depends on
the particular circumstances. Fundamentally, due process requires an
opportunity to be heard at a meaningful time and in a meaningful manner. The
minimum requirements of due process . . . are notice, and the opportunity to be
heard." Doe, 142 N.J. at 106 (citing Zinermon v. Burch, 494 U.S. 113, 127
(1990); Matthews v. Eldridge, 424 U.S. 319, 334 (1976); Nicoletta v. N. Jersey
Dist. Water Supply Comm'n, 77 N.J. 145, 165 (1978)).
In deciding the process that is due, courts consider the private interests at
stake, "the risk of an erroneous deprivation" of those interests, the probable
value of any additional procedural safeguards, "and the fiscal and administrative
burdens of such procedures." Ibid. (quoting Zinermon, 494 U.S. at 127).
In this case, plaintiff's interest relates to his removal from an at-will
position as Director of FP, where defendants did not publicly disseminate any
damaging information about the reasons for that action. Furthermore, plaintiff
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was provided with notice of the allegations. He was afforded numerous
opportunities to respond to those allegations, which substantially reduced any
risk of an erroneous deprivation.
Plaintiff has not shown that additional procedural safeguards in the form
of a trial-type hearing, with the attendant fiscal and administrative burdens, is
warranted in these circumstances. In sum, even if we assume plaintiff
established that he had a constitutionally-protected liberty interest in his
reputation that would be affected by his removal from his position as Director
of the FP, he was afforded all of the process due.
IV.
Plaintiff also argues that the trial court erred by granting summary
judgment on the claims against the individual defendants. He contends the
individual defendants each had a role in depriving him of his procedural due
process. However, in discovery, plaintiff did not offer any proof indicating that
Feldman, Hellstern, Grosskreutz, or West disseminated any information
damaging to plaintiff's good name or reputation to any individual outside the
complaint and investigation process. Therefore, the trial court did not err by
granting summary judgment on the claims plaintiff asserted against the
individual defendants.
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We have considered plaintiff's other arguments and conclude they lack
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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