Opinion
Civ. No. 96-5709 (DRD)
December 1, 1999
James M. Mets and Michael J., Weber, Esqs., SCHNEIDER, GOLDBERGER, COHEN, FINN, SOLOMON, LEDER MONTALBANO, P.C., Kenilworth, New Jersey, Attorneys for Plaintiff.
Francis De Leonardis, Michael L., Dermody, and Jennifer A. Rygiel, Esqs., Hudson County Counsel, Jersey City, New Jersey, Attorneys for Defendants, County of Hudson, Carmen Messano and Robert B. Martin.
OPINION
Plaintiff Joseph Potente ("Potente") brought this action challenging his termination as an Investigator with the Hudson County Prosecutor's Office, seeking both equitable relief and damages. Potente alleges a federal cause of action pursuant to 42 U.S.C. § 1983, as well as pendent state law claims under the New Jersey State Constitution and the New Jersey Law Against Discrimination, against defendants Hudson County ("the County"), County Prosecutor Carmen Messano ("Messano"), and County Chief of Investigations Robert B. Martin ("Chief Martin"). Two summary judgment motions are currently pending before the Court: defendants have moved to dismiss the complaint in its entirety; plaintiff has moved for summary judgment and an award of costs and attorneys' fees. For the reasons set forth herein, defendants' motion will be granted as to plaintiff's federal law claim, and plaintiff's motion will be denied as to that same claim. The remaining causes of action, asserting state law claims, will be dismissed without prejudice pursuant to the provisions of 28 U.S.C. § 1367(c).
STATEMENT OF FACTS
The facts of this case are virtually undisputed among the parties and are well supported by the exhibits presented in support of the motions. Plaintiff Joseph Potente worked as an Investigator with the Hudson County Prosecutor's Office from August, 1982 until his termination on December 7, 1994. Defendants Carmen Messano and Chief Robert Martin were Potente's immediate supervisors in the Prosecutor's Office.
On or about December 28, 1993, plaintiff was injured in an on-duty motor vehicle accident. He was taken to Meadowlands Hospital in Secaucus, New Jersey for initial treatment. Following his release from the hospital, plaintiff began receiving treatment for his injuries from Dr. Teofilo A. Dauhajre, who diagnosed plaintiff as suffering from acute cervical strain and sprain. Dr. Dauhajre determined that plaintiff was disabled from work and prescribed physical therapy sessions, which plaintiff completed on or about February 21, 1994.
Pursuant to a collective bargaining agreement, plaintiff received a medical leave of absence from work, with full pay, including a 30-day extension, until February 25, 1994. On February 28, Chief Martin informed plaintiff that the initial 30-day extension of his leave of absence with full pay had expired on February 24, making plaintiff eligible for temporary workers' compensation benefits only. Plaintiff was advised that his request for an additional extension had been denied.
Plaintiff was examined in connection with his workers' compensation claim on April 21, 1994 by a physician retained by the County, Dr. Jack G. Siegel. Dr. Siegel determined that plaintiff required additional physical therapy, but was otherwise able to return to work at the Prosecutor's Office. Plaintiff was also examined by Dr. Dauhajre on April 20. In a letter to the workers' compensation insurance carrier dated April 22, 1994, Dr. Dauhajre stated that "if the patient demonstrates further improvement on his revaluation in my office on 5/2/94, will consider returning back to his regular duties at work without restrictions." The Workers' Compensation Claims Adjuster set a termination date for plaintiff's benefits of May 3, 1994 and advised plaintiff to return to work on May 4. Plaintiff returned to light duty at the Prosecutor's Office on May 20, 1994.
Plaintiff's workers' compensation claim was eventually resolved by a settlement order awarding plaintiff payments for both temporary and permanent disabilities. Plaintiff's permanent disability was assessed as a thirty percent partial permanent disability.
From September 20 to November 17, 1994, plaintiff took a second approved medical leave of absence to receive arthroscopic surgery on his right shoulder. Following the surgery, Dr. Dauhajre certified plaintiff to return to work on December 14, 1994. Plaintiff submitted the certification with a request for an extended leave of absence until December 15, noting that "the reason for the leave of absence is due to the surgery I had on September 20, 1994 and continuing therapy." Lieutenant James Hoppes told plaintiff that he would have to submit a more detailed account of his reasons for this request by November 28. When plaintiff failed to do so, the request was denied by Chief Martin on November 29, 1994. Chief Martin's memorandum advised plaintiff that "you are directed to return to work on Wednesday, November 30, 1994 at 0900 hours. If you choose not to report to work, you have the option of resigning your position with this office. Failure to comply with this directive will result in disciplinary action."
On or about November 30, 1994, plaintiff requested a "Family Leave of Absence" until December 15, 1994. In a memorandum dated November 29, 1994, the Director of Personnel for Hudson County rendered a legal opinion that the County had no further obligations to plaintiff under federal or New Jersey state law. Plaintiff's request for Family Leave was denied by Chief Martin the next day.
Plaintiff did not return to work. By letter dated December 7, 1994, Chief Martin informed plaintiff that he had "been absent without leave or permission since November 18, 1994" and that as a result his employment with the Hudson County Prosecutor's Office would be terminated effective that same day.
Plaintiff alleges that the defendants' conduct respecting his termination constitutes a violation of his right to due process under the Fourteenth Amendment to the United States Constitution. He also alleges violations of his rights under New Jersey law, specifically the New Jersey Constitution and the New Jersey Law Against Discrimination ("NJLAD").
STANDARD OF REVIEW
Summary judgment will be granted if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Rule 56(c) imposes a burden on the moving party simply to point out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met this burden, the burden then shifts to the opposition to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The evidence need not be in a form that would be admissible at trial. Celotex, 477 U.S. at 324. However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247. In determining whether there exists a material issue of disputed fact, however, the facts and the inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Pollock v. American Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
In addition to being genuine, the disputed facts must be material, as determined by the substantive law. Anderson, 477 U.S. at 248. Debate over extraneous issues will not suffice; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
ANALYSIS
A. Section 1983
Section 1983 provides a civil remedy for violations of rights created by the Constitution or federal law. 42 U.S.C. § 1983; Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997); Maine v. Thiboutot, 448 U.S. 1 (1980). Section 1983 is not itself a source of substantive rights, but provides a remedy for the deprivation of rights found elsewhere. Plaintiff's first cause of action alleges a violation of his right to due process pursuant to the Fourteenth Amendment to the United States Constitution.
The Due Process Clause of the Fourteenth Amendment protects against deprivations of life, liberty, or property without due process of law. U.S. Const., Amend. XIV, § 1. The Supreme Court has recognized that "there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of either `liberty' or `property' as meant in the Due Process Clause." Paul v. Davis, 424 U.S. 693, 710 (1976). Such interests attain their constitutional status "by virtue of the fact that they have been initially recognized and protected by state law" or other independent sources. Id. at 710-11 and n. 5; See also Richardson v. Felix, 856 F.2d 505, 508 (3d Cir. 1988) ("The property interests that are protected by the due process clause of the Fourteenth Amendment are created and defined by existing rules and understandings that stem from an independent source such as state law,"quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
In order to prevail on a due process claim with respect to termination of a specific employment position, a plaintiff must first establish a property interest in the employment. Latessa v. New Jersey Racing Comm'n, 113 F.3d 1313, 1318 (3d Cir. 1997). To have a property interest in a job, an employee must have a legitimate claim of entitlement to his position. Id.; see also Morgan v. Union Cty., 268 N.J. Super. 337, 355 (App.Div. 1993) ("a public employee with no statutory or contractual entitlement to his job has no property interest subject to the protection of the Fourteenth Amendment"). Defendants assert that plaintiff cannot establish a due process violation because he was an at-will employee with no protected property interest in his continued employment. See Roth;Latessa at 1318.
Plaintiff does not contest that he was an at-will employee with no protectible property interest in his position with the County. As plaintiff points out, his due process claim is instead based on a violation of a protected liberty interest, citing Dolan v. City of East Orange, 287 N.J. Super. 136, 143 (App.Div. 1996). Dolan relied on the New Jersey Supreme Court's earlier decision in Nicoletta v. North Jersey Dist. Water Supply Comm'n, 77 N.J. 145 (1978), which held that non-tenured public employees have a protected liberty interest in their employment requiring a termination hearing under the federal and state constitutions. The rationale behind the Nicoletta holding was that under the New Jersey Administrative Code, removal from public service would automatically disqualify the employee from seeking future public employment, triggering procedural due process rights. See Nicoletta at 160.
As observed by the New Jersey Supreme Court, the civil service disqualification provision which allowed the plaintiff in Nicoletta to prevail has since been amended to provide that automatic disqualification from public employment may occur only when the public employee has been afforded an opportunity for a hearing. Battaglia v. Union Cty. Welfare Fund, 88 N.J. 48, 57 (1981); see also N.J.S.A. 4A:4-6.1(a)(5) ("a person may be denied examination eligibility or appointment when he or she has been removed from the public service for disciplinary reasons after an opportunity for a hearing"). Thus, where a public employee is removed without notice and the opportunity to be heard, there is no automatic disqualification and hence no protected liberty interest. See Grexa v. State, 168 N.J. Super. 202, 208 (App.Div. 197 8) (holding that where plaintiff did not receive a hearing, there was no disqualification and thus no protected liberty interest); Tuch v. College of Med. Dentistry, 177 N.J. Super. 101, 103 (same); c.f. Dolan, 287 N.J. Super. at 143-44 (finding protectible liberty interest where plaintiff had been dismissed following a disciplinary hearing, disqualifying him from future public service); see also Battaglia, 88 N.J. at 57 (finding no protectible liberty interest where plaintiff's dismissal would not disqualify him from future public service); Morgan, 268 N.J. Super. at 355 (finding no protected liberty interest where plaintiff resigned and remained eligible for future public service).
Plaintiff contends that Dolan "reaffirmed Nicoletta" and "appears to have rejected earlier decisions" like Tuch and Grexa. See plaintiff's brief in support of his motion for summary judgment at 9. To the contrary, Dolan is entirely consistent with Nicoletta and its progeny, but is distinguishable from the present case on its facts. In Tuch andGrexa, the plaintiffs had no liberty interest because they did not receive a hearing and would not be disqualified from future public service; in Dolan plaintiff had a liberty interest because he did receive a hearing and would be disqualified from future public service. In this case, the parties agree that plaintiff did not receive a hearing regarding his termination; accordingly plaintiff, like the plaintiffs inTuch and Grexa, has no protected liberty interest, no due process claim, and no cause of action under § 1983. Plaintiff's first cause of action will be dismissed with prejudice.
B. New Jersey State Law Claims
Federal district courts have supplemental jurisdiction over related state law claims by virtue of 28 U.S.C. § 1367. Section 1367(c) states that a district court may decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has original jurisdiction. Because plaintiff's federal cause of action has been dismissed, this Court will decline to exercise supplemental jurisdiction over plaintiff's remaining state law claims, dismissing said claims without prejudice to plaintiff's right to pursue them in the New Jersey state courts.
CONCLUSION
For the reasons set forth above, plaintiff's first cause of action pursuant to 42 U.S.C. § 1983 is dismissed with prejudice; plaintiff's remaining claims are dismissed without prejudice pursuant to 28 U.S.C. § 1367. An appropriate order shall enter.