Opinion
DOCKET NO. A-5742-12T3
04-17-2015
PETER E. BIANCHI, Plaintiff-Appellant, v. UNIVERSITY OF MEDICINE AND DENISTRY OF NEW JERSEY, UMDNJ PUBLIC SAFETY DEPARTMENT, Defendant-Respondent.
Todd J. Gelfand argued the cause for appellant (Barker, Gelfand & James, P.C., attorneys; Mr. Gelfand, on the briefs). Robert J. Cino argued the cause for respondent (Jackson Lewis, PC, attorneys; Mr. Cino and John K. Bennett, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2991-12. Todd J. Gelfand argued the cause for appellant (Barker, Gelfand & James, P.C., attorneys; Mr. Gelfand, on the briefs). Robert J. Cino argued the cause for respondent (Jackson Lewis, PC, attorneys; Mr. Cino and John K. Bennett, on the brief). PER CURIAM
Plaintiff Peter E. Bianchi appeals from the dismissal, on summary judgment, of his complaint against the University of Medicine and Dentistry of New Jersey (UMDNJ) and the UMDNJ Public Safety Department (PSD) (collectively the defendant). Plaintiff challenges the conclusion of the motion judge that defendant's disciplinary appeal procedure for its police officers did not violate his constitutional right to procedural due process, and the denial of his request for prerogative writ review. Upon our review in light of the record and governing law, we affirm.
Although plaintiff initially alleged a violation of his substantive due process rights, in his reply brief he concedes, in light of our decision in Filgueiras v. Newark Public Schools, 426 N.J. Super. 449 (App. Div.), certif. denied, 212 N.J. 460 (2012), "there is no viable substantive due process claim."
I.
The record discloses the following facts and procedural history. On appeal from summary judgment, we recite the facts in the light most favorable to plaintiff, the non-moving party, giving him the benefit of all reasonably-drawn inferences. Robinson v. Vivirito, 217 N.J. 199, 203 (2014).
In September 2005, plaintiff began working as a police officer for UMDNJ at the PSD. Plaintiff is a member of the Fraternal Order of Police Lodge 74 (the Union), the exclusive union representing police officers at UMDNJ. UMDNJ and the Union entered into a collective negotiations agreement (CNA) setting the terms and conditions of employment, including grievance procedures, for all UMDNJ police officers.
Plaintiff became an employee of Rutgers, the State University of New Jersey, as a result of the merger of UMDNJ with Rutgers pursuant to the New Jersey Medical and Health Sciences Education Restructuring Act, L. 2012, c. 45, § 148, codified at N.J.S.A.
18A:65102.
Generally, "[i]n public sector labor relations in New Jersey, courts use the terms 'collective negotiation' and 'collective negotiations agreements' rather than 'collective bargaining' and 'collective bargaining agreements,'" Troy v. Rutgers, 168 N.J. 354 n.1 (2001) (citing N.J. Tpk. Emps. Union v. N.J. Tpk. Auth., 64 N.J. 579, 581 (1974)), a term found in the federal Labor Management Relations Act, 29 U.S.C.A. § 141 et seq. In our opinion, we follow this nomenclature notwithstanding the parties' reference to their agreement as a "collective bargaining agreement."
Article V of the CNA provides the three-step procedure to be utilized for any grievance falling within the scope of the CNA. First, should informal attempts to resolve the dispute fail, the aggrieved employee may elect to submit his or her case to the UMDNJ Director of Public Safety (DPS), before whom "[t]he grievant may be represented by the [Union] President and/or authorized representative." Step Two permits the employee to appeal the DPS's decision to UMDNJ's Director of Labor Relations (DLR). The DLR's ruling is final in most matters, such as those involving minor questions of UMDNJ policy affecting the Union's membership and minor suspensions.
For those grievances involving an interpretation of the CNA itself or more substantial discipline, the CNA provides an additional procedure. Step Three allows for review of a DLR decision by an independent arbitrator. However, unlike Steps One and Two, Step Three may be initiated "only by the [Union], through its President." Further emphasizing the Union's control of the arbitration process, including whether to utilize Step Three in the first instance, Article V of the CNA provides:
Nothing in this Agreement shall be construed as compelling the [Union] to submit a grievance to arbitration. When a grievant has [Union] representation, the [Union]'s decision to request the movement of any grievance at any step or to terminate the grievance at any step shall be final as to the interests of the grievant and the [Union].
In May 2012, plaintiff received a three-day suspension for missing work. Following unsuccessful challenges before the DPS and DLR, the Union elected to exercise its rights under the CNA and proceed to arbitration of plaintiff's suspension. However, before the arbitration hearing occurred, plaintiff filed the instant suit in the Law Division, independent of the ongoing CNA-promulgated grievance procedures. In his complaint, plaintiff alleged the negotiated CNA disciplinary procedures violated his federal and New Jersey constitutional and statutory rights to due process and his common law right to administrative fairness. The complaint sought a declaration of the same as well as damages, prerogative writ review of his suspension and the striking of plaintiff's prior disciplinary history from his employment files. Defendant denied liability and the parties cross-moved for summary judgment on the issue of the adequacy of defendant's disciplinary procedures.
The CNA provides that a three-day suspension is eligible for Step-Three arbitration. See generally N.J.S.A. 34:13A-5.3.
On the day of the CNA-prescribed arbitration, plaintiff arrived with his personal attorney, Todd J. Gelfand. UMDNJ's counsel objected on the grounds that, pursuant to the CNA, the Union's attorney, Matthew Areman, alone was responsible for advocating on plaintiff's behalf before the arbitrator. Additionally, since the proceeding was closed to the public, UMDNJ requested Gelfand be barred from the room for the duration. Areman, while consenting to Gelfand's presence at the proceeding, joined UMDNJ in asserting that he was plaintiff's sole representative in the arbitration. Gelfand argued the arbitration should not proceed unless he was permitted to represent plaintiff's interests, particularly in light of the pending civil suit in Superior Court. The arbitrator denied this request and, in light of the CNA's strict parameters governing the arbitration process, concluded Gelfand could not be present.
The pertinent provisions of the CNA included in the record do not speak directly to the selection of counsel for Step-Three arbitration.
However, the arbitrator informed plaintiff: "there is a duty of representation issue that does run to your individual right to make sure you are satisfied with your union representative," and gave him the option to adjourn the hearing pending the resolution of his civil suit. Plaintiff elected to proceed with arbitration with Areman as his counsel.
The record does not disclose the outcome of the arbitration of plaintiff's grievance. However, that resolution is not germane to the substance of plaintiff's claims before us.
Subsequently, the Law Division judge granted defendant's motion for summary judgment and dismissed the complaint with prejudice, holding the CNA's grievance procedures did not violate plaintiff's constitutional due process rights.
This appeal ensued.
II.
We review a grant of summary judgment de novo, employing the same standard as the trial court. Tarabokia v. Structure Tone, 429 N.J. Super. 103, 106 (App. Div. 2012), certif. denied, 213 N.J. 534 (2013). We first determine whether the moving party demonstrated there was no genuine dispute as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). "[W]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995) (citation and internal quotation marks omitted).
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. When summary judgment involves only a question of law, we review the legal determination de novo owing no deference to the motion judge. In re Estate of Ehrlich, 427 N.J. Super. 64, 70 (App. Div. 2012) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 213 N.J. 46, appeal dismissed, 213 N.J. 496 (2013).
Plaintiff contends his procedural due process rights were violated because: (1) he was unable to utilize his counsel of choice during arbitration of his grievance claim; (2) the decision to challenge the DLR's ruling in arbitration was reserved to the Union in its sole discretion; and (3) the process subjected him to cross-examination by UMDNJ counsel about a subject matter for which he is represented by an attorney not permitted to be present. We disagree, and conclude UMDNJ's disciplinary procedures established pursuant to the CNA adequately protected plaintiff's procedural due process rights.
Following prior instances of discipline in 2006 and 2007, plaintiff, individually, unsuccessfully attempted to appeal through arbitration, notwithstanding the clear language of the CNA. Regarding the discipline giving rise to this appeal, plaintiff laments that "the [U]nion is free to abandon the grievance procedure at any point, leaving [him] without redress to challenge the suspension."
"[T]he Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494, 503 (1985). Procedural due process addresses whether there are sufficient procedural safeguards in place when the government deprives an individual of a particular interest. Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363-64, cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996). "'The minimum requirements of due process . . . are notice and the opportunity to be heard.'" Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 240 (2008) (alteration in original) (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)). However, in order to trigger due process rights, a property interest must take the form of a "'legitimate claim of entitlement,'" Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 154-55 (1978) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972)), a question determined by state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684, 690 (1976).
When determining if procedural due process has been met in an administrative action, the court must balance the three Mathews factors:
Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."Nevertheless, "[t]hose plain notions of procedural due process-fair notice and a meaningful opportunity to be heard-must occupy the central stage of analysis." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 120 (2011).
[Doe, supra, 142 N.J. at 107 (quoting Zinermon v. Burch, 494 U.S. 113, 127, 110 S. Ct. 975, 984, 108 L. Ed. 2d 100, 115 (1990)).]
Plaintiff asserts the private interest at stake is his "employment record." He argues the Union's poor legal advice, combined with his inability to independently appeal grievances to Step-Three arbitration, has resulted in "an employment record from UMDNJ which contains several minor disciplinary matters, that preclude him from freely being able to obtain employment that might otherwise be available to him if his record were clean, as it should be."
Plaintiff has provided no support for the bald assertion that the Union's counsel was in any way deficient.
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However, plaintiff offers no authority recognizing a constitutionally protected right to an unblemished employment record under either federal or New Jersey law. To the contrary, "'[a]s a general matter, one does not have a federal constitutionally protected liberty interest in his reputation.'" Filgueiras, supra, 426 N.J. Super. at 471 (quoting Austin v. Neal, 933 F. Supp. 444, 455 (E.D. Pa. 1996)). We recently rejected a similar claim to recognize such an interest under the New Jersey Constitution, even where the plaintiff's employment had been terminated. Id. at 453, 474-75. In Morgan v. Union County Board of Chosen Freeholders, 268 N.J. Super. 337, 355 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994), we held that a plaintiff who had resigned his position in the wake of purported harassment was not entitled to a due process hearing because he "[did] not face disqualification from future public employment." Id. at 355 (citing Battaglia v. Union Cnty. Welfare Bd., 88 N.J. 48, 56-57 (1981)); see also Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) ("Rather, to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest." (citing Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 1160-61, 47 L. Ed. 2d 405, 414 (1976))).
Here, unlike the aggrieved parties in Filgueiras and Morgan, plaintiff remains gainfully employed as a UMDNJ police officer. He therefore in essence argues we should recognize, for the first time, a constitutional interest in being protected from any discipline, no matter the degree, arising from his actions or circumstances as a public employee. We refuse to recognize such a right here. See Filgueiras, supra, 426 N.J. Super. at 474-75 ("It is inappropriate for us, as a court of intermediate jurisdiction, to recognize a cause of action, particularly one of constitutional dimension, heretofore never recognized under existing jurisprudence from our Supreme Court." (citing Riley v. Keenan, 406 N.J. Super. 281, 297 (App. Div.), certif. denied, 200 N.J. 207 (2009))).
More fundamentally, even if we were to recognize plaintiff's asserted constitutional right to an untarnished employment record, defendant's disciplinary procedures for its police officers fully comply with the strictures of procedural due process. Defendant promptly provided notice to plaintiff of his suspension in accordance with the terms of the CNA. Plaintiff received, not one, but three hearings at which he was able to challenge his suspension. We are therefore satisfied that, because defendant provided plaintiff with both notice and an opportunity to be heard — "[t]hose plain notions of procedural due process" — its disciplinary procedures fully complied with all procedural due process requirements. See R.D., supra, 207 N.J. at 120; see also Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 389 (1998) ("[A] party's due process rights are not violated if it is held liable for a judgment arising out of an action in which it participated or had the opportunity to be heard."); Doe, supra, 142 N.J. at 107 (holding that a hearing is required prior to public notification of a defendant's status as a repeat sex offender); State v. Polanca, 332 N.J. Super. 436, 442 (App. Div.) ("The application of [the] Mathews criteria has generally led courts to require some kind of hearing before a person is deprived of liberty or property . . . ."), certif. denied and appeal dismissed, 165 N.J. 604 (2000).
Lastly, plaintiff mistakenly argues the Union's role in negotiating for the procedures memorialized in the CNA invalidates those procedures as they relate to him. That the Union, rather than plaintiff individually, secured its members' rights to administrative review and independent arbitration of grievances is of no moment constitutionally.
Plaintiff would have us cloak him with all of the benefits of union representation without any of the limitations necessarily imposed upon individual autonomy by the right to collective bargaining. Such a holding would run counter to the fundamental nature of union membership in the public employment context and we decline to do so. See N.J.S.A. 34:13A-5.3 ("A majority representative of public employees in an appropriate unit shall be entitled to act for and to negotiate agreements covering all employees in the unit and shall be responsible for representing the interest of all such employees . . . ."); Futterman v. Bd. of Review, 421 N.J. Super. 281, 289 (App. Div. 2011) ("Because the agreement was freely and voluntarily negotiated by her union, [the plaintiff] was bound by it, regardless of whether she personally approved of its terms.").
In light of the foregoing, plaintiff's claim for reservation of prerogative writ review on the ground of administrative fairness lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E); see also Doe, supra, 142 N.J. at 108 ("'Fundamental fairness is a doctrine to be sparingly applied. It is appropriately applied in those rare cases where not to do so will subject the defendant to oppression, harassment, or egregious deprivation.'" (quoting State v. Yoskowitz, 116 N.J. 679, 712 (1989) (Garibaldi, J., concurring in part and dissenting in part))).
We therefore agree with the motion judge that plaintiff's claims lack merit and conclude the complaint was properly dismissed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION