RAYMOND L. CAPRA VS. SETON HALL UNIVERSITY (L-0891-18, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4053-18T2
RAYMOND L. CAPRA,
Plaintiff-Appellant,
v.
SETON HALL UNIVERSITY,
an educational corporation of
New Jersey,
Defendant-Respondent.
__________________________
Submitted May 11, 2020 – Decided June 4, 2020
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-0891-18.
Rabner, Baumgart, Ben-Asher & Nirenberg, PC, and S.
Micah Salb (Lippman, Semsker & Salb, LLC) of the
Maryland bar, admitted pro hac vice, attorneys for
appellant (Eugenie F. Temmler, of counsel; David H.
Ben-Asher, of counsel and on the briefs; S. Micah Salb,
on the briefs).
McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys for respondent (James P. Lidon, of counsel
and on the brief; Kelly R. Anderson, on the brief).
PER CURIAM
Plaintiff Raymond L. Capra appeals from a January 31, 2019 Law
Division order denying his motion for summary judgment; a February 11, 2019
order granting summary judgment to defendant Seton Hall University (Seton
Hall) dismissing counts one and two of Capra's complaint; and an April 12, 2019
order granting summary judgment to defendant dismissing count three of the
complaint.1 Capra argues the motion court erred in granting summary judgment
because he presented prima facie evidence that Seton Hall breached its
employment contract with him and acted in bad faith. We disagree and affirm.
I.
In 2006, Seton Hall hired Capra as a full-time instructor in the Classical
Studies in the Languages, Literatures, and Cultures Department (the Department).
The terms of Capra's employment were outlined in the Full-Time Faculty Member
1
Plaintiff did not brief the dismissal of his claim for declaratory judgment
(count three). We deem the issue waived and decline to address it. See
Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310, 318-19 (App. Div.
2017) ("An issue not briefed on appeal is deemed waived." (quoting Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011))); Pressler & Verniero,
Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020) (same).
A-4053-18T2
2
Term Contract that both he and Seton Hall renewed annually. In 2010, Capra
received a Ph.D. in Classical Philology. That same year, he was selected for a
tenure-track position at Seton Hall as an Assistant Professor. Following the
promotion, Capra signed a series of annual Full-Time Faculty Member Probationary
contracts.
Each probationary contract required Capra to "apply for tenure not later than
the fall semester of 2015." In the event he was not granted tenure, his employment
would "automatically terminate on June 30, 2017." The contracts also stated that
"[t]here is no automatic right to tenure. Tenure is conferred only by specific
affirmative action by the University's Board of Regents." Each contract noted that
Capra's position with Seton Hall was "subject to the Faculty Guide."
In the fall of 2015, Capra applied for promotion to the position of Associate
Professor with tenure. Capra acknowledges that the Department's Policies and
Procedures Regarding Applications for Promotion and Tenure impose the following
minimum scholarly performance requirements: (1) at least four articles published
or accepted in peer-reviewed journals and at least one additional scholarly article
published; (2) a contract or manuscript pending publication; (3) at least five
conference papers given; and (4) a clear research program laid out.
A-4053-18T2
3
Further, Capra acknowledges the standards, criteria, policies, and procedures
pertaining to promotion and tenure are contained in Article 4 of Seton Hall's Faculty
Guide. Under Article 4, three overarching factors would be applied in evaluating
Capra's application: (1) teaching effectiveness; (2) scholarship; and (3) service to
Seton Hall, the profession, and the community. Moreover, Capra had to demonstrate
"four (4) years of full-time college or university teaching experience, evidence
of teaching excellence, scholarly publication, research, or other creative work
in the appropriate discipline or field" and "promotion to this rank rests on proven
ability and accomplishments." (Emphasis added).
Capra's application was first considered by the Rank and Tenure Committee
for the Languages, Literatures, and Cultures Department. There, Capra was
recommended for promotion by an anonymous vote of fourteen to one. The
dissenting voter noted Capra's limited publications, having "published only two
articles for the book chapters in the fall of 2010 and in the spring of 2015." Another
colleague, who voted to advance Capra's application, did so "[d]espite [Capra]
having few publications." A colleague who voted in favor of the promotion
expressed "considerable misgivings about [Capra's] scholarly record and promise,"
stating "two chapters in books (not even peer-reviewed articles) are not sufficient to
merit tenure according to our Departmental standards." Another colleague stated, "I
A-4053-18T2
4
wish he had a more active profile in scholarship." The Chair of the Department
supported Capra's promotion but noted "[w]hile several voters wished that Dr. Capra
had been able to publish a bit more, only the lone dissenter felt that Dr. Capra's
scholarship did not meet departmental requirements."
Next, Capra's application was considered by the Rank and Tenure Committee
for the College of Liberal Arts and Sciences, which recommended Capra for
promotion by an anonymous vote of seven to two. One dissenting voter explained
"Capra's research/scholarly productivity is not sufficient to warrant tenure and
promotion to associate professor." The other dissenting Committee member stated:
"Unfortunately, [Capra's] scholarship output is low. He only has produced [three]
publications in the time since his hire: one of these publications being a book
review." Another Committee member stated Capra has been "less productive" in his
scholarship and had produced "not quite enough to meet the department's standards."
Under the Faculty Guide, the Dean of the College of Arts and Sciences
submits a separate recommendation to the Provost. The Dean recommended
promoting Capra to Associate Professor but expressed the following concern, "I, like
a few of his colleagues, lament his limited publications, albeit in substantial presses."
Capra's application was then submitted to the University Rank and Tenure
Committee for review. Under the Faculty Guide, the Committee issues its
A-4053-18T2
5
recommendations to the Provost. The Committee recommended that Capra be
promoted and granted tenure by a vote of eight to three.
Finally, Capra's application was submitted to Seton Hall's Provost. At the
time, Dr. Larry A. Robinson served as the Provost and Executive Vice President. In
his capacity as provost, Robinson was required by the Faculty Guide to consider
each application for promotion and/or tenure after the applicant's department,
College Rank and Tenure Committee, dean, and the University Rank and Tenure
Committee had evaluated the application and provided their advisory
recommendations. The prior recommendations were not binding meaning the
provost could either endorse the application—thereafter referring it to the
University's Board of Regents for consideration and approval—or deny it. A denial
would be final unless "the application had been positively recommended by majority
vote of the University Rank and Tenure Committee." In that case, "the decision of
the provost is appealable to the president" by letter.
Robinson denied Capra's application. In a March 16, 2016 letter, Robinson
advised Capra:
I have carefully considered your application for
Associate Professor with Tenure. This review has
included my personal study of your application
materials, as well as the recommendations of your
department, dean, and University Rank and Tenure
Committee.
A-4053-18T2
6
I regret to inform you that I am unable to recommend
you for promotion to the rank of Associate Professor
with Tenure. My decision is based on my evaluation of
your performance as a faculty member according to the
criteria, and only the criteria, set forth in Article 4.1-
4.5 of the Faculty Guide, which states the standards in
the areas of Teaching Effectiveness, Scholarship, and
Service to the University, the Profession and the
Community.
I am appreciative of the contributions that you have
made to Seton Hall.
Capra appealed Robinson's decision to Seton Hall's then President, Dr. A.
Gabriel Esteban. In his letter to President Esteban, Capra surmised that the
Robinson's denial was due to his "error in writing the application in that [he]
underrepresented [his] scholarship as required under Faculty Guide 4.3b." He
claimed this underrepresentation "led to a few negative evaluations of [his]
scholarship and may have been a factor in the Provost's decision."
On April 8, 2016, President Esteban notified Capra that she would not
overturn Robinson's decision, stating that "[a]fter careful consideration and
reflection, I have decided to not grant your appeal to overturn the Provost's decision
that you have not yet fully satisfied all criteria for the rank of associate professor
with tenure as contained in Article 4-1 to 4.5."
A-4053-18T2
7
On February 6, 2018, Capra filed a three-count complaint alleging breach of
contract (count one) and breach of the implied covenant of good faith and fair
dealing (count two) based upon Robinson's purportedly generic denial letter. Capra
also sought a declaratory judgment (count three) that he "satisfied the requirements
of the Faculty Guide for promotion and tenure, and that [Seton Hall] is obligated to
grant promotion and tenure to [Capra], retroactive to July 1, 2016," and award him
back pay, lost benefits, punitive damages, interest, and costs.
Capra moved for summary judgment on counts one and two while Seton Hall
cross-moved for summary judgment as to those same counts. The motion court
heard oral argument on January 31, 2019.2 It issued an oral decision and separate
orders denying Capra's motion and granting Seton Hall's cross-motion.
Regarding Capra's breach of contract claim, the motion court found that he
failed "to identify any contractual provisions that require [Seton Hall or Robinson]
to provide detailed reasoning when denying an application for promotion to
associate professor with tenure."3 The court determined that Seton Hall was not
2
The complaint did not allege that Seton Hall breached the contract by not
providing annual evaluations of Capra. In addition, Capra made no such
argument during oral argument before the motion court.
3
The motion court did not consider Capra's late reply brief and opposition to
Seton Hall's cross-motion, which were received by the court on January 30,
A-4053-18T2
8
obligated to promote Capra but "was [only] required to weigh certain criteria and
follow certain procedures in evaluating his application for promotion," which it did.
As to Capra's implied covenant of good faith and fair dealing claim, the motion court
concluded that Capra could not "establish that . . . defendant acted pursuant to [an]
improper motive or in bad faith in the evaluation of [his] application for promotion."
Seton Hall subsequently moved for summary judgment on count three. The
motion court granted defendant's unopposed motion dismissing that count. This
appeal followed.
Defendant raises the following points for our consideration:
POINT I. SETON HALL DENIED DR. CAPRA'S
APPLICATION FOR PROMOTION WITHOUT
REASON.
A. Seton Hall and Dr. Capra Formed a Contract.
B. Dr. Capra Fully Satisfied the Criteria for
Promotion.
1. It is Undisputed that Dr. Capra Satisfied
the Effective Teaching Requirement.
2. It is Equally Clear – and Undisputed –
that Dr. Capra Satisfied the Record of
Service Requirement.
2019, the day before the motions' return date. See R. 4:46-1 (requiring reply
briefs and opposition to cross-motions to be served and filed not later than four
days before the return date).
A-4053-18T2
9
3. Dr. Capra Has Proved Excellence in His
Scholarship.
4. Tenure is Consistent with "the Needs of
the Department or College."
C. The Provost Denied Dr. Capra's Application
Without Reason.
D. Seton Hall Also Refused to Identify Any
Reasons for the Provost's Decision During the
Litigation.
POINT II. BY DENYING DR. CAPRA'S
APPLICATION FOR PROMOTION WITHOUT
EXPLANATION, SETON HALL BREACHED ITS
CONTRACT WITH DR. CAPRA.
POINT III. SETON HALL IS FORECLOSED FROM
ARGUING THAT DR. CAPRA'S JOB
PERFORMANCE DID NOT MERIT PROMOTION.
POINT IV. THE PROVOST IS NOT EMPOWERED
TO MAKE HIS DECISIONS BY FIAT.
POINT V. SETON HALL'S ARBITRARY DECISION
CONSTITUTES A BREACH OF THE COVENANT
OF GOOD FAITH AND FAIR DEALING.
POINT VI. THE TRIAL COURT PLAINLY
VIOLATED LAW BY GRANTING DEFENDANT'S
CROSS-MOTION.
II.
Our review of a ruling on summary judgment is de novo, applying the
same legal standard as the motion court. Townsend v. Pierre, 221 N.J. 36, 59
A-4053-18T2
10
(2015) (citing Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)).
That is, we "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).
Summary judgment must be granted "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law." RSI
Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (quoting R.
4:46-2(c)). "When no issue of fact exists, and only a question of law remains,"
a reviewing court "affords no special deference to the legal determinations of
the trial court." Ibid. (quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co., 224 N.J. 189, 199 (2016)).
III.
We first address Capra's claim that the motion court erred by dismissing his
breach of contract claim. We disagree.
A-4053-18T2
11
Capra argues "Seton Hall breached its contract with [him] because it cannot
demonstrate that it evaluated [his] application for promotion according to the criteria
stated in the" Faculty Guide. The motion court noted that Article 5.3 of the Faculty
Guide "omits the provost from the listed individuals and bodies required to provide
reasons for a recommendation." Thus, unlike the prior reviewers, the provost is only
required to notify an applicant "of his action on the application," namely whether he
endorsed or denied it. Robinson did just that, advising Capra that he was "unable to
recommend [Capra] for promotion to the rank of Associate Professor with Tenure."
Capra states that he had written three book chapters and two book reviews;
was working with another author to translate a book into English; delivered
presentations at eleven academic conferences; and had various ideas for future
research projects. However, despite Capra's accomplishments, several of his
colleagues—both voting for and against Capra's promotion—cited his lack of
academic work as his primary setback. Even the Dean acknowledged Capra's
"limited publications."
The Faculty Guide makes clear that only advisory "recommendations" were
garnered from the three Rank and Tenure Committees and the Dean. Robinson was
free to endorse or deny it without relying upon faculty opinion.
A-4053-18T2
12
Neither Capra's self-serving representations regarding his academic
credentials, nor the comments of colleagues in favor of promotion and tenure, suffice
to create an issue of disputed material fact precluding summary judgment. See
Molthan v. Temple Univ. of Com. Sys. of Higher Educ., 778 F.2d 955, 962 (3d Cir.
1985) (stating "the evidence as a whole must show more than a denial of tenure [or
promotion] in the context of disagreement about the scholarly merits of the
candidate's academic work, the candidate's teaching abilities or the academic needs
of the department or university") (alteration in original) (quoting Zahorik v. Cornell
Univ., 729 F.2d 85, 94 (2d Cir. 1984)); Sarmiento v. Montclair State Univ., 513 F.
Supp. 2d 72, 89 (D.N.J. 2007) (finding "plaintiff's subjective belief he was more
qualified for the job does not create an issue of fact for the jury") (quoting Dungee
v. Ne. Foods, Inc., 940 F. Supp. 682, 689 (D.N.J. 1999), aff'd, 285 F. App'x 905 (3d
Cir. 2008)); Harel v. Rutgers, State Univ., 5 F. Supp. 2d 246, 271 (D.N.J. 1998)
(explaining that Faculty Appeal Board's recommendation for tenure and
disagreement with the President, Vice President, and University's denial of tenure
was insufficient to warrant grant of tenure), aff'd sub nom., Harel v. Rutgers, 191
F.3d 444 (3d Cir. 1999).
Capra also argues that Seton Hall "breached the contract by failing to provide
[him] with the annual evaluations required by the contract." He claims "Seton Hall
A-4053-18T2
13
evaluated [him] only once during his five years of probationary service" and did not
advise him of his progress toward tenure.
Capra's complaint, however, does not allege that Seton Hall breached the
contract by failing to perform annual evaluations or contain any facts in support of
that claim. Capra cannot amend the complaint through opposition to a dispositive
motion. See Labree v. Mobil Oil Corp., 300 N.J. Super. 234, 236-37 (App. Div.
1997) (rejecting a plaintiff's fraud claim first raised in an opposing brief where the
complaint did not allege fraud, the underlying facts for fraud were not pleaded, and
plaintiff did not move to amend the complaint). Moreover, this argument was not
argued before the motion court and was not decided on the merits. "[A]ppellate
courts will decline to consider questions or issues not properly presented to the trial
court when an opportunity for such presentation is available unless the questions so
raised on appeal go to the jurisdiction of the trial court or concern matters of great
public interest." Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012)
(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Capra does not
raise jurisdictional questions or matters of significant public interest.4
4
In his reply brief on appeal, Capra concedes that Seton Hall's failure to conduct
annual evaluations is not reviewable. Moreover, the record establishes that Capra
was denied promotion and tenure due to inadequate scholarship not inadequate work
performance, teaching effectiveness, or service to Seton Hall, the profession, and
A-4053-18T2
14
Capra also argues that his employment contract with Seton Hall is illusory
because "[u]nder [Seton Hall's] interpretation of the contract, [it] could never be held
to its promise to evaluate tenure applications based on the criteria established by the"
Faculty Guide. The record demonstrates, however, that Robinson's discretion was
not "unfettered," as Capra claims. Instead, as provost, he was required to evaluate
each application for tenure according to the Faculty Guide criteria and then to "notify
each applicant of his action on the application." In his denial letter to Capra,
Robinson stated that he based his decision upon Articles 4.1 to .5, "which states the
standards in the areas of Teaching Effectiveness, Scholarship, and Service to the
University, the Profession and the Community." Robinson certified that he
"conducted [his] own independent review and analysis" of Capra's application,
which was "extensive, rigorous and contemplative." Ultimately, he concluded that
"Capra's record as a whole did not evidence sufficient proven ability and
community. In any event, the minimum requirements for adequate scholarly
performance are set forth in Department Policies and the Faculty Guide. Capra
does not claim he was unaware of those requirements nor does he claim that
annual evaluations were necessary to inform him whether he met those
requirements. He merely argues that annual evaluations were not performed in
four of his five probationary years. For these reasons, we decline to consider this
issue.
A-4053-18T2
15
accomplishments during his probationary period to merit a promotion to Associate
Professor with the accompanying award of lifetime tenure."
In any event, Robinson's decision was not final because Capra appealed to
President Esteban, who could have reversed it. The record also indicates Capra later
pursued reconsideration by interim President, Mary J. Meehan, who responded:
In your request to me for reconsideration, you
offer only your own disagreement with the academic
judgments of both the former Provost and former
President. Essentially, you are asking me to consider
substituting my judgment for the judgment of my
predecessor and the former Provost. This I cannot do -
- your personal disagreement (and the several letters of
support from former students and one of your own
professors) is not a basis to revisit the substantive and
reasoned decisions made before my arrival at the
University. Indeed, both under the Faculty Guide and
through your attorney, you have been provided with
ample opportunity to explain and advance your
application and dispute any aspect of the decisions by
Drs. Robinson and Esteban. Consequently, not only
have you exhausted all appeals under the Faculty
Guide, but you present no basis for reconsideration.
[(Emphasis omitted).]
The contract was not illusory; it provided further review of the provost's
decision to deny an application for promotion and tenure, which Capra availed
himself of.
A-4053-18T2
16
IV.
Finally, Capra argues Seton Hall breached the implied covenant of good faith
and fair dealing by denying his "application without stating any facts, reasons, or
analysis for the decision—indeed, without even proof that the [P]rovost considered
the application on its merits—it acted capriciously and it breached the covenant of
good faith and fair dealing." We are unpersuaded by this argument.
The implied covenant of good faith and fair dealing is "a component of every
contract." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 109 (2007). "'Good faith'
entails adherence to 'community standards of decency, fairness or reasonableness.'"
Id. at 109-10 (quoting Wilson v. Amerada Hess Corp., 168 N.J. 236, 245 (2001)). It
"requires a party to refrain from 'destroying or injuring the right of the other party to
receive' its contractual benefits." Id. at 110 (quoting Brunswick Hills Racquet Club,
Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 224-25 (2005)). Accordingly,
to succeed on this claim a plaintiff must demonstrate a defendant's "bad motive or
intention." Ibid. (quoting Brunswick Hills, 182 N.J. at 225).
The motion court concluded that Capra could not establish Seton Hall acted
with an "improper motive or in bad faith in the evaluation of [Capra's] application
for promotion." The court found that the contractual "process and procedure were
followed, event to the extent that after this [P]rovost denied him, he followed the
A-4053-18T2
17
next process, which was an appeal, and was addressed by the [P]resident, who
had the right and the authority to overrule the [P]rovost and did not."
A party opposing summary judgment cannot merely rely on unsupported
allegations in its pleadings. See Pressler & Verniero, cmt. 2.2 on R. 4:46-2 ("[B]are
conclusions in the pleadings without factual support in affidavits will not defeat a
motion for summary judgment." (Citations omitted)).
During discovery, Capra elected not to take any depositions. As a result, there
is no testimony impeaching Robinson or President Esteban, which might have lent
credence to his bad faith claim. The motion record contains no other evidence of
any improper motive or intention.
As the motion court noted, the record demonstrates that Seton Hall provided
Capra with the proper procedures and notice for promotion that were contractually
afforded to him by the Faculty Guide. Capra has not demonstrated a prima facie
case for a breach of the implied covenant of good faith and fair dealing. See Wilson,
168 N.J. at 251 (holding that bad motive or intention is an essential element of
a breach of the implied covenant of good faith claim).
Additionally, Seton Hall presented Robinson's certification, explaining that he
engaged in an "independent," "extensive," "rigorous," "contemplative," and
A-4053-18T2
18
"thorough review" of Capra's application and his decision to deny it came after
"careful deliberation." Robinson also noted the following:
I understand that Dr. Capra now asserts that my
decision not to endorse his application to the
University's Board of Regents represents bad faith
conduct on my part that resulted in a breach of contract
by the University. Those allegations reflect both a
dramatic change and deviation from Dr. Capra's
previously-stated acceptance of responsibility for the
denial of his application [detailed in his March 21, 2016
letter to President Esteban] and a troubling lack of
candor. . . . It is noteworthy that Dr. Capra did not
accuse me of failing to review his application until after
Dr. Esteban denied his appeal. . . .
In sum, although Capra claims that Robinson and Seton Hall reviewed his
application in bad faith, his "[b]are conclusions in the pleadings without factual
support in tendered affidavits, will not defeat a meritorious application for summary
judgment." Cortez v. Gindhart, 435 N.J. Super. 589, 606 (App. Div. 2014) (quoting
Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)). It
was Capra's burden, in response to Seton Hall's motion for summary judgment, to
present evidence demonstrating there is a genuine issue of material fact for trial.
Brill, 142 N.J. at 528-29; Pressler & Verniero, cmt. 2.2 on R. 4:46-2. He failed to
do so. Accordingly, the court properly granted summary judgment dismissing count
two.
A-4053-18T2
19
Capra's remaining arguments are without sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4053-18T2
20