BIANCHI v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY et al
Filing
51
OPINION. Signed by Judge Renee Marie Bumb on 2/2/2016. (drw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
Peter E. Bianchi,
Plaintiff,
Civil Action No. 14-131
OPINION
v.
Rutgers, the State University
of New Jersey, et al.
Defendant.
Appearances
Barker, Gelfand & James
By: Todd J. Gelfand, Esquire
Linwood Greene, Suite 12
210 New Road
Linwood, NJ 08221
Attorney for Plaintiff
Jackson Lewis P.C.
By: John K. Bennett, Esquire
Robert J. Cino, Esquire
220 Headquarters Plaza
East Tower, 7th Floor
Morristown, NJ 07690
Attorneys for Defendant
BUMB, United States District Judge:
Peter E. Bianchi (“Plaintiff”) is a police officer at
Rutgers University.
Plaintiff brought this case against Rutgers
University (collectively “Rutgers” or “Defendant”) to challenge
a 20-day suspension and a written warning he received as a
result of two separate incidents.
Plaintiff argues that
1
Defendant violated his procedural due process rights and that he
is entitled to a declaratory judgment.
Defendant filed a Motion
for Summary Judgment, and Plaintiff filed a Cross-Motion for
Summary Judgment.
[Docket Items 30, 34.]
For the following
reasons, Rutgers’ Motion for Summary Judgment will be granted
and Plaintiff’s Cross-Motion for Summary Judgment will be
denied.
I.
Factual Background
At the relevant time, Plaintiff Peter E. Bianchi was
employed as a police officer by the University of Medicine and
Dentistry of New Jersey (“UMDNJ”). (Amend. Compl. ¶¶ 1,2 ).
In
2013, Plaintiff was transferred to the Rutgers University Police
Department as a result of the New Jersey Medical and Health
Services Restructuring Act.
(Plaintiff’s Statement of
Undisputed Material Facts (“PSOF”) ¶ 1).
Plaintiff remains
employed at the Rutgers University Police Department, the
successor–in-interest to the UMDNJ Police Department.
(Amend.
Compl. ¶ 2)
Plaintiff was and remains a member of the Fraternal Order
of Police (“F.O.P.”) Lodge 74. (PSOF ¶ 4).
As a member of
F.O.P. Lodge 74, Plaintiff must grieve all discipline in
accordance with the procedures outlined in the Collective
Bargaining Agreement (“CBA”) between F.O.P. Lodge 74 and
Defendant.
(Defendant’s Statement of Facts “DSOF” ¶¶ 4-11;
2
Collective Bargaining Agreement (“CBA”) art. V, Def. Ex. A).
Id.
The CBA provides a formal, three-step grievance procedure.
F.O.P. Lodge 74 has the final decision as to when to request the
movement of any grievance or terminate the grievance.
(CBA art.
V).
As Step One, F.O.P. Lodge 74 may submit an appeal to the
Director of Public Safety, who will schedule a hearing and
render a decision.
(Id.)
As Step Two, F.O.P. Lodge 74 may
appeal to the Director of Labor Relations, who will schedule a
hearing and render a decision. (Id.)
As Step Three, arbitration
before the Public Employment Relations Commission (“PERC”) is
available if the charges include suspension, demotion, or
discharge.
(Id.)
However, as both parties now admit, PERC does
not have jurisdiction over major disciplinary incidents
involving police officers, which include suspensions over 5
days.
(Pl. Opposition to Summary Judgment and in Support of Pl.
Cross- Motion for Summary Judgment (“Pl. Opp.”) at 3; Def.
Motion for Summary Judgment (“Def. MSJ”) at 8-9).
A.
Plaintiff’s 20-day Suspension
On April 18, 2013, Plaintiff Bianchi received an order from
a dispatcher.
(PSOF ¶¶ 2,3).
Plaintiff’s radio was not
working, and he responded to the dispatch asking the dispatcher
to dispatch another officer. (PSOF ¶ 3).
Plaintiff stated that
3
he did not have proper equipment to respond as backup on the
call.
(Id.)
Defendant ultimately characterized the incident as
follows: “Plaintiff had refused to answer a call to service, and
failed to notify his supervisor that he was unwilling to perform
his duties prior to his call to service. . . .”
(DSOF ¶ 29).
After the incident, Defendant initiated an Internal Affairs
investigation.
(DSOF ¶ 23).
As part of the investigation,
Plaintiff and F.O.P. President Richard Pinto met with DetectiveSergeant Jaimie A. Gutierrez and Detective Samuel Rodriguez.
(DSOF ¶¶ 23, 24).
Plaintiff signed a form that advised him of
the charges brought against him and of his right to consult with
a union representative.
(DOSF ¶ 25).
the investigation. (DSOF ¶ 28).
Plaintiff cooperated with
On May 31, 2013, Plaintiff
received a staff disciplinary notice for refusing to answer a
call to service and was issued a 20-day suspension without pay.
(DSOF ¶¶ 29-30).
Plaintiff formally grieved the procedure and was
represented by F.O.P. Lodge 74 in accordance with the CBA.
(PSOF ¶¶ 4-6).
F.O.P. Lodge 74 waived both the Step One and
Step Two Hearings.
(DSOF ¶ 33).
UMDNJ police Director Carmelo
Huertas, Jr. and Labor Relations Director Abdel Kanan upheld the
suspension.
(PSOF ¶ 5).
On June 5, 2013, Anthony J. Fusco, attorney for F.O.P.
Lodge 74 and Plaintiff, requested arbitration of the 20-day
4
suspension in accordance with Step Three of the CBA.
(Arbitration Request, Def. Ex. J).
On June 11, 2013, PERC
responded with list of arbitrators.
(PERC letter, Def. Ex. K).
The next day, Mr. Fusco responded with a selection of
arbitrators.
1.
(Fusco Arbitrator Selection Letter, Def. Ex. K).
Essex County Complaint
Days later, Plaintiff, through Mr. Fusco, filed a complaint
for an action in lieu of prerogative writ in the Superior Court
of New Jersey, Essex County, Law Division.
Def. Ex. K).
(Essex Cty. Compl.,
In the complaint, Plaintiff requested review of
the 20 day suspension. He alleged that there was “insufficient
testimony to justify his suspension” that his “suspension . . .
[was] contrary to UMDNJ policies and rules,” that his
“suspension was not for good and just cause,” and that the
punishment was “excessive.” (Essex Cty. Compl., Def. Ex. K).1
On July 29, 2013, F.O.P. Lodge 74 and Plaintiff’s new
attorney, Darryl M. Saunders, requested a stay of arbitration.2
(Saunders Stay Request, Def. Ex. L)
Saunders, substituted in as
Plaintiff stated in his deposition that the complaint was “a
disciplinary matter handled out of the union. . . . They filed
on my behalf not asking me.” (Deposition of Peter E. Bianchi
“Bianchi Dep.” at 34:21-24, 35:1-6).
1
At oral argument, Plaintiff’s current attorney, Todd Gelfand,
represented that Plaintiff Bianchi did not know that his former
attorney had stayed the arbitration until the Defendant filed a
Motion for Summary Judgment.
2
5
an attorney of record for Anthony Fusco3, wrote to Lorraine H.
Tesauro, Director of Conciliation and Arbitration at PERC,
requesting “that this matter be held in abeyance pending the
civil complaints filed in the Superior Court of New Jersey, Law
Division, Essex County.”
(Saunders Stay Request, Def. Ex. L).
Defendant, through Rutgers’ attorney Aron M. Schwartz, responded
to the Plaintiff’s request with a letter stating “The University
has no objection to Mr. Saunders request” that the matter be
held in abeyance pending the outcome of a civil action filed in
Superior Court of New Jersey in Essex County.
(Schwartz Letter
Re: Stay, Def. Ex. M).
B.
Disciplinary Warning Resulting from Patrol Car Crash
Plaintiff has also brought a complaint relating to
discipline he received after he hit a cement barrier while
operating a marked patrol car.
(Pl Opp. at 5).
Plaintiff
reported the accident approximately one hour later, to his
supervisor.
(Id.)
Plaintiff, however, did not complete a New
Jersey Crash Investigation Report.
(Id.)
Plaintiff stated that
he made a note of the accident in a written report, and that his
Darryl M. Saunders was substituted for Anthony Fusco, the
attorney who filed the original case, on June 9, 2013. (Fusco
Substitution, Def. Ex. L).
3
6
supervisor did not suggest that he had to fill out a New Jersey
Crash Investigation Report.
(Id.)
Internal Affairs conducted an investigation.
(DSOF ¶ 13).
On December 19, 2012, Plaintiff and F.O.P. President Richard
Pinto met with two detectives about the infraction.
(Id.)
Plaintiff received and signed a form advising him of the charges
brought against him.
(DSOF ¶ 14). Plaintiff answered questions
about the incident. (DSOF ¶¶ 15-17).
After the investigation,
on January 2, 2013, Plaintiff received a staff disciplinary
notice.
(DSOF ¶ 18).
The notice informed Plaintiff that he
would receive a written warning in lieu of a one-day shift
suspension.
(DSOF ¶ 19).
F.O.P. Lodge 74 filed a grievance on Plaintiff’s behalf.
(DSOF ¶ 20).
The F.O.P. waived Steps One and Two of the
grievance procedure and proceeded to Step Three on the narrow
procedural issue of timeliness of the discipline.
(DSOF ¶ 21).
Ultimately, Defendant Rutgers and the F.O.P. Lodge 74
subsequently agreed to a consent award denying Plaintiff’s
grievance and acknowledging that the case would not be used as
precedent in any subsequent matter.
1.
(DSOF ¶ 22).
Camden County Case
On January 1, 2014, Plaintiff, now represented by Todd
Gelfand, his current attorney, filed suit in the Superior Court
of New Jersey, Law Division, Camden County for a declaratory
7
judgment and action in lieu of prerogative writ.
Compl.)[Docket Item 1].
disciplinary warning.
(Camden
Plaintiff sought review of the
(Id.).
Plaintiff also brought a § 1983
claim for due process under the federal constitution.
(Id.)
Based on the federal due process claim, Defendant removed the
suit to federal court.
C.
[Docket Item 1].
Consolidation of the Essex County and Camden County
Cases
After the suit was removed to federal court, Plaintiff
combined the Essex Case, the suit involving the 20-day
suspension, with the Camden County suit involving the written
warning.
(Pl. Supp. Br. at 3.)
Plaintiff added the claims
related to the 20-day suspension to the Amended Complaint. (See
Amend. Compl.).
While Plaintiff’s original challenge to the 20-day
suspension in Essex County was for review of the suspension, the
Amended Complaint brought a federal due process claim into the
fold.
In so doing, the suit changed in character from “appeals
to disciplinary actions” as Plaintiff Bianchi characterized them
in his deposition, to a more expansive and protracted
litigation.
(See Bianchi Dep. at 33:4-5).
8
D.
PERC Jurisdiction and Arbitration
As mentioned, Step Three of the Collective Bargaining
Agreement allows the Union to request an arbitration proceeding
before PERC when the charges include suspension.
However, PERC
does not have jurisdiction over major disciplinary proceedings
involving police officers, which include suspensions of more
than five days, and has not had such jurisdiction since prior to
Plaintiff’s disciplinary incidents.
See Rutgers, the State
Univ. of N.J., and FOP Lodge 62, 41 NJPER ¶ 35 (citing State v.
State Troopers Fraternal Ass'n, 634 A.2d 478 (1993));Rutgers,
the State Univ. of N.J., and Fraternal Order of Police, Superior
Officers Association, 39 NJPER ¶ 47 (September 6, 2012); In The
Matter of Rutgers; the State Univ. and F.O.P. Lodge No. 62, 33
NJ PER 70, 2007 WL 7563507 (August 3, 2007). The Supreme Court
of New Jersey has held that permitting such arbitration “would
infringe unacceptably on one of the most important managerial
prerogatives” of New Jersey police. City of Jersey City v.
Jersey City Police Officers Benev. Ass'n, 713 A.2d 472, 481
(1998)(citing State Troopers Fraternal Ass'n, 634 A.2d at 492).
On February 27, 2015, Rutgers reduced Plaintiff Bianchi’s
suspension from 20 days to 5 days.
(DSOF ¶ 38).
As Defendant
wrote in its Motion for Summary Judgment, the reduction “thereby
effectively [enabled the] Union . . . to elect to proceed to an
arbitration hearing. . . .”
(Def. MSJ at 6).
After the
9
reduction of the suspension, Plaintiff Bianchi engaged in one
day of arbitration on June 9, 2015.
Court) [Docket Item 46].
(Pl. Dec. 1, 2015 letter to
At the time of oral argument,
Plaintiff Bianchi had one day of arbitration remaining.
Plaintiff has not yet served his suspension.
E.
(Id.)
(DSOF ¶ 31).
Instant Allegations
In this action, Plaintiff Bianchi has alleged violations of
his rights to procedural due process under
42 U.S.C. § 1983 and
violations of New Jersey law as recognized by N.J. Rev. Stat
10:6-2.
Plaintiff is also seeking a declaratory judgment.
While Plaintiff initially brought a substantive due process
claim and an action in lieu of a prerogative writ, Plaintiff
consented to dismissal of those claims in his Opposition brief.
(Pl. Opp. at 19-20).
fees.
II.
Plaintiff has also moved for attorneys’
(Pl. Opp. at 4, 8).
Legal Standard
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ.
P. 56(a).
14 Fed.
R.
A fact is “material” if it will “affect the
outcome of the suit under the governing law. . . .”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Anderson v.
A dispute is
10
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
Id.
When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”
Meyer v. Riegel Prods.
Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
However, a mere
“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.
Anderson, 477 U.S. at 252.
Further,
a court does not have to adopt the version of facts asserted by
the nonmoving party if those facts are “utterly discredited by
the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 373, 380 (2007).
In the face of such
evidence, summary judgment is still appropriate “where the
record . . .
could not lead a rational trier of fact to find
for the nonmoving party . . . .”
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
11
56(c)).
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’”
56(e)).
Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant’s burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009))(“[S]peculation and conjecture may not defeat
summary judgment.”).
III.
Analysis
Defendant has moved for Summary Judgment and the Plaintiff
has filed a Cross-Motion for Summary Judgment.
While some facts
about the underlying disciplinary incidents are in dispute, the
Court finds that there is no genuine dispute as to any material
fact.
(1986).
See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248
The Court will review the party’s legal arguments in
turn.
12
A.
Plaintiff’s Procedural Due Process Claim.
“An essential principle of due process is that a
deprivation of life, liberty, or property be preceded by notice
and opportunity for hearing appropriate to the nature of the
case.”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542,
(1985)(citation omitted). “To state a claim under § 1983 for
deprivation of procedural due process rights, a plaintiff must
allege that (1) he was deprived of an individual interest that
is encompassed within the Fourteenth Amendment's protection of
“life, liberty, or property,” and (2) the procedures available
to him did not provide “due process of law.”
Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006).
Hill v. Borough of
Plaintiff claims
that his property interest in continued employment as a police
officer was deprived without due process of law when he received
a suspension without pay that he could not appeal through PERC.
(See Pl. Opp. at 24).
Plaintiff also argues that he was
deprived of a property interest when he received a written
warning without due process of law.
1.
Sufficiency of the Property Interest
Plaintiff argues that suspension without pay constitutes a
deprivation of a constitutionally protected property interest in
his continued employment.
Defendant characterizes the
deprivation differently and contends that there is no
13
deprivation of a protected property interest because Plaintiff
is still employed.
(Def. Reply Br. at 4).
To have a property interest in a job, a person must have a
legitimate entitlement to such continued employment. Bd. of
Regents of State Colleges v. Roth, 408 U.S. 564 (1972). “The
hallmark of a constitutionally protected property interest is an
individual entitlement that cannot be removed except for cause.”
Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1078 (3d Cir.
1990)(quotations omitted). In this case, the Collective
Bargaining Agreement states, and Defendant does not dispute,
that discipline and dismissal from service can only be imposed
for just cause.
(CBA, art. VI).
The Court finds that Plaintiff
Bianchi had a legitimate entitlement to continued employment.
The next issue is whether suspension is a sufficient
deprivation. The Supreme Court has not made a determination as
to whether suspension without pay may constitute a deprivation
of a protected property interest.
In Gilbert v. Homar, the
Supreme Court assumed without deciding that a tenured university
policemen’s suspension without pay infringed upon a protected
property interest.
520 U.S.
924, 929 (1997).
Additionally,
the Third Circuit found deprivation under Pennsylvania law in
Skrutski v. Marut, a non-precedential case involving a
Pennsylvania police officer’s suspension without pay, stating,
“there is no question [the police officer plaintiff] . . . has
14
established a requisite deprivation of property.”
288 F. App'x
803, 808 (3d Cir. 2008); see also Schmidt v. Creedon, 639 F.3d
587, 589-590 (3d Cir. 2011)(finding that a pre-suspension
hearing in a case involving a police officer is necessary to
comply with procedural due process under Pennsylvania law).
District Courts in New Jersey have found, or assumed, that
suspension is sufficiently serious to cause a deprivation.
For
instance, in Aiellos v. Zisa, a court in this district found
that a New Jersey police officer who was suspend experienced a
deprivation of his property interest sufficient to bring a due
process claim. No. 2:09-CV-03076 WJM, 2013 WL 4016362, at *3
(D.N.J. Aug. 6, 2013).
The district court wrote,
Riotto had a protected property interest in his
employment with the Hackensack Police Department.
See Kelly v. Borough of Sayreville, N.J., 107 F.3d
1073, 1077 (3d Cir.1997) (It is “unquestionably
correct ... that public employees may enjoy
constitutionally protected property rights in their
employment”); Citta v. Borough of Seaside Park, No.
09–865, 2010 WL 3862561, at *26 (D.N.J. Sept.27,
2010) (“[I]t is clear that Plaintiff had a property
interest in his position as a police officer”).
Riotto's
suspension
from
his
position
thus
constituted a deprivation of property.
Id.
Similarly, in Vatner v. Board. of Trustees of the
University. of Medicine., where a tenured professor was
suspended for ten work days without pay, the district court
found a deprivation of a protected property interest.
No. CIV.
A. 12-3339 JLL M, 2015 WL 461901, at *1 (D.N.J. Feb. 4, 2015).
15
Citing to the Supreme Court’s decision in Gilbert and noting
that the deprivation was not contested by the Defendant, the
court found that the Plaintiff had met his burden of
demonstrating that his suspension without pay from his tenured
employment amounted to a property deprivation.
Id. at *10.
In fact, the Defendant does not cite a single federal court
case holding that suspension without pay does not deprive an
individual of a protected property interest, when the individual
has a legitimate entitlement.4
This Court will follow the
example of the Third Circuit and other courts of the District of
New Jersey to find that suspension without pay may be a
sufficient deprivation to trigger the protections of the due
process clause.
However, the written warning is a different category of
discipline.
The warning does not impact Plaintiff’s ability to
continue to work.
In Burns v. Borough of Glassboro, an
Defendant does, however, cite a recent New Jersey Superior Court
case involving Plaintiff Bianchi and the same Defendant.
Bianchi v. Univ. of Med. & Dentistry of N.J., UMDNJ Pub. Safety
Dep't, No. A-5742-12T3, 2014 WL 8623330, at *2 (N.J. Super. Ct.
App. Div. Apr. 17, 2015). In this case, Plaintiff Bianchi filed
suit against Defendant in state court challenging a three day
suspension. Id. The Superior Court characterized Plaintiff’s
interest as his interest in his employment record, and wrote
that he “argues we should recognize, for the first time, a
constitutional interest in being protected from any discipline.”
Id. at *4. The Superior Court did not find that Bianchi had
such a protected property interest. Id. This Court declines to
use the same characterization.
4
16
unpublished procedural due process case involving a written
warning, the New Jersey Superior Court, Appellate Division
explained, “While a written reprimand could have some future
effect on promotions, discipline, or future employment, that
speculative effect is too attenuated to rise to a legitimate
claim of significant entitlement warranting prior notice and a
hearing.”
No. A-2085-12T2, 2014 WL 923160, at *5 (N.J. Super.
Ct. App. Div. Mar. 11, 2014). The court held that a written
reprimand “does not directly and immediately result in
deprivation of any property or liberty interest.”
Id.
This
Court agrees with the Superior Court’s reasoning in Burns, and
finds that the written warning Plaintiff received is not a
sufficient deprivation of a property interest to trigger the
protections of the due process clause.
The Defendant’s Motion for Summary Judgment on the due
process claim related to the car accident and subsequent written
warning will be granted. The Court now turns its analysis to the
due process related to the 20-day suspension.
2.
Procedures Available to Plaintiff: 20 Day
Suspension
i.
Adequacy of the Procedures
The Court must first assess whether the procedures
available to Plaintiff were adequate to provide due process of
17
law.
“It is by now well established that ‘due process, unlike
some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances.’”
Gilbert,
520 U.S. at 930 (quoting Cafeteria & Rest. Workers v. McElroy,
367 U.S. 886, 895 (1961)(internal quotations omitted).
Courts
must balance the following factors to determine what process is
due:
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 procedural
safeguards; and finally,
the Government's interest.
Gilbert, 520 U.S. at 931-32 (1997)(quoting Mathews v. Eldridge,
424 U.S. 319, 335 (1976)).
Plaintiff received a pre-termination hearing as well as the
opportunity for two post-deprivation hearings in accordance with
the CBA.
In Loudermill, the Supreme Court held that a pre-
termination hearing may be required to satisfy due process.
U.S. 545.
470
Subsequently, in Gilbert, the Court reemphasized that
due process required a balancing of interests, and held that due
process may be satisfied without a pre-termination hearing if
there is prompt post-deprivation process available.
See 520
U.S. at 930.
The first of the Mathews v. Eldridge factors is the private
interest, which requires the court to take into account “the
18
length” and “finality of the deprivation.”
Gilbert, 520 U.S. at
932 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 434
(1982).
In this case, the interest at stake is the continuation
of Plaintiff’s pay.
Since Plaintiff was facing a temporary,
twenty day suspension, his interests were less weighty than if
he were facing a termination.
See id.
The Court also notes
that Plaintiff was not required to serve his suspension while
his appeals were ongoing.
The second factor of the Mathews v. Eldridge test involves
the risk of erroneous deprivation, and the value of additional
safeguards.
The Court will start with the pre-suspension
hearing Plaintiff received.
The purpose of a pre-suspension
hearing is to “assure that there are reasonable grounds to
support the suspension without pay.”
Gilbert, 520 U.S. at 933.
This purpose comes from Loudermill, a case involving the
termination of a public employee. 470 U.S. at 545-46.
In
Loudermill, the Court explained that a pre-termination hearing
“should be an initial check against mistaken decisions—
essentially, a determination of whether there are reasonable
grounds to believe that the charges against the employee are
true and support the proposed action.”
545-46.
Loudermill, 470 U.S. at
The Court held that a pre-termination hearing must
include “oral or written notice of the charges against him, an
19
explanation of the employer's evidence, and an opportunity to
present his side of the story.”
Id. at 546.
Plaintiff’s meeting with Detective-Sergeant Gutierrez and
Detective Rodriguez was sufficient to constitute a predeprivation hearing in the suspension context.
At this meeting,
Plaintiff, represented by his union, was given notice of the
charges against him and an opportunity to respond.
25).
(DSOF ¶¶ 23-
Thus, the meeting was sufficient to serve as an “initial
check against mistaken decisions.”
Loudermill, 470 U.S. at 545.
Plaintiff’s hearing looks very similar to the pretermination hearing in Gniotek.
Gniotek v. City of
Philadelphia, 808 F.2d 241, 245-46 (3d Cir. 1986).
In that
case, the Third Circuit found that an ethics accountability
meeting with an investigator constituted a sufficient predeprivation hearing for police officers who were suspended and
then terminated.
Id.
Similarly, in Solomon v. Philadelphia
Housing Authority, the court found that a pre-termination
interview where the employee was confronted with specific
allegations and given the opportunity to respond, “was all the
pre-deprivation process that was due.”
143 F. App'x 447, 455
(3d Cir. 2005).
Plaintiff also had the opportunity to have two post
deprivation hearings— a Step One hearing before the Director of
Public Safety and a Step Two hearing before the Director of
20
Labor Relations.
(See CBA art. V).
The two hearings were part
of the collectively negotiated grievance procedures.
(Id.)
The
Third Circuit has held that grievance procedures established in
collective bargaining agreements may satisfy due process.
Dykes
v. Se. Pa. Transp. Auth., 68 F.3d 1564, 1572 n.6 (3d Cir. 1995).
The procedures may satisfy due process even though F.O.P.
Lodge 74 waived the hearings.
The Third Circuit has declined to
find procedural due process violations in cases where the
employee’s union settled or declined to pursue an employee’s
claims, focusing on the availability of the procedures and not
the union’s independent decisions.
See Jackson v. Temple Univ.
of Com. Sys. of Higher Educ., 721 F.2d 931, 933 n.1 (3d Cir.
1983)(finding no precedent for a “section 1983 action where a
union has refused to take to arbitration an employee's claim
against a public employer.”); see Dykes v. Se. Pa. Transp.
Auth., 68 F.3d at 1572 (finding no procedural due process
violation where union settled claim without plaintiff’s consent
and plaintiff failed to bring suit in court of common pleas);
see also Skrutski v. Marut, 288 F. App'x 803, 809 (3d Cir.
2008).
Additionally, after the union waived the two hearings,
Plaintiff, represented by his union, filed an action in lieu of
prerogative writ.
(Essex Cty. Compl.)
An action in lieu of a
prerogative writ is an action for Superior Court review
21
established pursuant to the New Jersey Constitution, and
implemented by New Jersey Court Rule 4:69-1.
See Romanowski v.
Brick Twp., 185 N.J. Super. 197, 203-04, 447 A.2d 1352, 1355-56
(Ch. Div. 1982).
The writ allows for a review against a
municipality when there are no available administrative appeals
procedures.
See id.
Plaintiff has argued the procedures available to him were
per se inadequate without the option of PERC arbitration of his
20-day suspension “before a presumably neutral arbitrator.”
(Pl. Opp. at 25).5
Plaintiff points out that arbitration was
part of the collectively negotiated grievance procedures held to
comply with procedural due process in cases like Jackson and
Dykes.6
However, the Court does not read either case to require
arbitration in order to comply with procedural due process.
Additionally, while arbitration was unavailable to Plaintiff by
While the Court acknowledges that the suspension has been
reduced to enable Plaintiff to pursue PERC arbitration, the
Court does not find that the reduction was sufficiently timely
to constitute prompt post-deprivation procedures, as identified
in Gilbert. See 520 U.S. at 935. The Court will therefore
address the procedures available to Plaintiff within a short
period of time of the issuance of discipline.
5
Plaintiff does not identify the cases by name, but the Court
assumes that Plaintiff is discussing Jackson and Dykes. The
Third Circuit held in Dykes, “Where a due process claim is
raised against a public employer, and grievance and arbitration
procedures are in place, we have held that those procedures
satisfy due process requirements ‘even if the hearing conducted
by the Employer ... [was] inherently biased.’” Dykes 68 F.3d at
1571 (citing Jackson, 721 F.2d at 931).
6
22
law, Plaintiff received more procedural protection than the
employees in Dykes and Jackson because Plaintiff received a predeprivation hearing.7
Given the pre-deprivation hearing, the
availability of two post-deprivation hearings as an additional
check against erroneous deprivation, and Plaintiff’s subsequent
filing in Superior Court for review, the Court fails to see how
the availability of arbitration, in this case, “would have led
to a different result.”
See Biliski v. Red Clay Consol. Sch.
Dist. Bd. of Educ., 574 F.3d 214, 223 (3d Cir. 2009).
Balancing
the weight of a temporary suspension with the procedures
Plaintiff received and the probable value of an additional
proceeding, the Court is satisfied that the process Plaintiff
received was constitutionally adequate, even without an analysis
of the third Mathews v. Eldridge factor, governmental interest.8
The Court acknowledges that Plaintiff may have reasonably
believed he was entitled to arbitration of his 20-day suspension
in accordance with the CBA.
(See CBA art. V.)
The record
In Schmidt, the Third Circuit wrote, “the issue in both Dykes
and Jackson was the sufficiency of the post-deprivation union
grievance procedures, not whether a pre-deprivation hearing was
required. Although it appears from the facts of both cases that
the employees were not provided hearings prior to their
termination . . . it is apparent from our opinions in these
cases that we did not consider it.” Schmidt, 639 F.3d at 597.
7
The parties did not brief the Mathews v. Eldridge factors, and
given the adequacy of the procedures, the Court does not find it
necessary to guess at the governmental interests at stake.
8
23
suggests at least some confusion amongst the Plaintiff and
F.O.P. Lodge 74 as to what procedures were available to
Plaintiff.
(See CBA art. V; Fusco Arbitration Selection Letter;
Saunders Stay Request; Schwartz Letter Re: Stay).
However, even
if Plaintiff erroneously believed, based on the CBA, that he was
entitled to arbitration, Plaintiff, through Mr. Saunders, stayed
the arbitration pending the outcome of the Essex County
proceeding.
(Saunders Stay Request; Schwartz Letter Re: Stay.)
Thus, the Court is unable to see how Plaintiff was harmed by a
CBA that does not reflect the current state of the law when
Plaintiff asked the Defendant for a stay of arbitration and the
Defendant agreed.
ii.
Adequacy of Exclusive Union Representation
In Plaintiff’s complaint, Plaintiff argues that the
“allocation of Plaintiff Bianchi’s personal rights . . . to the
exclusive control of Lodge 74 is not sufficient to safeguard
Plaintiff Bianchi’s rights.”
(Amend. Compl. ¶ 46).
The Court
understands this to be a procedural due process challenge to the
exclusive union representation.
Plaintiff’s claim must fail as
a matter of law.
The Collective Bargaining Agreement sets out procedures for
union members, represented by F.O.P. Lodge 74, to grieve the
discipline they receive.
(CBA art. V)
The Third Circuit has
held that a “public employer may meet its obligation to provide
24
due process through grievance procedures established in a
collective bargaining agreement, provided, of course, that those
procedures satisfy due process.”
Dykes, 68 F.3d at 1571 (citing
Armstrong v. Meyers, 964 F.2d 948, 951 (9th Cir.1992).
Under
this precedent, the Court sees no procedural due process problem
with a CBA that makes provisions for exclusive union
representation and limits the ability of outside counsel to
grieve discipline.
The Superior Court looked at a similar due process claim
based on exclusive union representation in grievance proceedings
in Plaintiff Bianchi’s previous case.
Bianchi v. Univ. of Med.
& Dentistry of N.J., UMDNJ Pub. Safety Dep't, No.
A-5742-12T3,
2014 WL 8623330, at *2 (N.J. Super. Ct. App. Div. Apr. 17,
2015).
The Superior Court rejected Plaintiff’s procedural due
process claim and held:
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.
Id. at *4.
This Court agrees, and does not find a procedural
due process violation in the role for F.O.P. Lodge 74 outlined
in the Collective Bargaining Agreement.
25
iii.
Action in Lieu of Prerogative Writ
As noted, shortly after the issuance of Plaintiff’s
suspension, Plaintiff filed an action in lieu of a prerogative
writ for review in Superior Court.
The review was ongoing until
Plaintiff dismissed his prerogative writ claims in his
Opposition to the Defendant’s Motion for Summary Judgment.
(Pl.
Opp. at 20).
Plaintiff’s third argument relates to the Defendant’s
position on the availability of an action in lieu of a
prerogative writ.
Plaintiff claims that “UMDNJ took the
position, until after discovery, that Plaintiff Bianchi only had
an appeal right through PERC which was non-existent and
illusory, and indeed the Defendants steadfastly denied any right
of prerogative writ review.” (Pl. Opp. at 26).
Plaintiff argued
that since he did not have a practical right of review under
PERC, Defendant’s position on prerogative writ review left him
without a remedy and violated the general laws of the state of
New Jersey, as actionable under N.J. Stat. Ann. 10:6-2.
(Id.)
Defendant has responded that “only a court can deny Plaintiff’s
right to seek such review.”
(Def. Opp. to Pl.’s Cross-Motion
for Summary Judgment at 4).
This Court agrees that only a court can deny Plaintiff the
right to seek prerogative writ review.
However, if Defendant
unambiguously told Plaintiff that his only right of review was
26
through PERC, when Defendant knew that PERC had no jurisdiction,
there could be a violation of Plaintiff’s procedural due process
rights.
The Court requested supplemental briefing on the issue
of whether Defendant unambiguously told Plaintiff that his only
option for review was through PERC.
[Docket Item 48].
After
considering the supplemental briefing and the Defendant’s
response, the Court does not believe there is sufficient
evidence, on this record, to reach this finding.
(See Pl. Supp.
Br.).
Plaintiff’s supplemental submission starts with Defendant’s
Answers to the Amended Complaint and Rule 26 Disclosures.
The
Court finds that Defendant does not tell Plaintiff that his only
remedy was through PERC in either submission.
Plaintiff’s
supplemental briefing also includes an October 17, 2014 email
addressed to the Defendant from Mr. Gelfand, where Mr. Gelfand
requested a settlement and stated:
UMDNJ’s position is that the only way for a police
officer to appeal major discipline is through
arbitration through PERC at the union’s option.
However even assuming that the union follows
through and requests arbitration in a major
disciplinary case, PERC WILL NOT HEAR IT through
its arbitration procedures.” 9
The Court observes that Plaintiff has complicated what may have
otherwise been an ordinary Superior Court review of discipline
by adding a procedural due process claim resulting in removal to
this Court. To the extent that Plaintiff is frustrated with the
delay of litigation, the delay may be of Plaintiff’s own making.
9
27
(Pl. Supp. Br., Ex. B).
Defendant represented to the Court in
its response that it did not respond to the email “due to the
outrageousness of Plaintiff’s demands and the pending (at the
time) matter between these same parties before the Appellate
Division of the Superior Court of New Jersey.” (Def. Response to
Supp. Br. at 3).
The Court does not find confirmation, on this record, that
Mr. Gelfand’s statement reflects Rutgers’ position.
In fact,
Defendant has consistently taken the position that PERC did not
have jurisdiction to review suspensions such as the one that
Plaintiff received.10
(See Def. MSJ at 8-9).
Additionally,
prior to this suit, Defendant was involved in a number of PERC
determinations affirming that PERC did not have jurisdiction to
review major disciplinary disputes by police officers.
See,
e.g., Rutgers, the State Univ. of N.J., and FOP Lodge 62, 41
NJPER ¶ 35; Rutgers, the State Univ. of N.J., and Fraternal
Order of Police, Superior Officers Association, 39 NJPER ¶ 47
(September 6, 2012); In The Matter of Rutgers; the State Univ.
and F.O.P. Lodge No. 62, 33 NJ PER 70, 2007 WL 7563507 (August
3, 2007).
Moreover, it is apparent that counsel’s email was in the form
of a settlement request and thus is not admissible under Federal
Rules of Evidence 408.
10
28
Finally, Plaintiff submitted an email correspondence
between the Plaintiff and the members of F.O.P. Lodge 74 (not
the Defendant) regarding Plaintiff’s desire to engage in
arbitration.
(Pl. Supp. Br., Ex. C).
The Court does not see
any evidence in the correspondence relevant to the question at
hand.
After careful consideration, the Court is unable to find,
on this record, that Defendant’s actions violated Plaintiff’s
right to procedural due process or state law under N.J. Stat.
Ann. 10:6-2.
For the aforementioned reasons, the Defendant’s
Motion for Summary Judgment on procedural due process will be
granted, and Plaintiff’s Motion for Summary Judgment will be
denied.
B.
Plaintiff’s Claim for Declaratory Judgment.
Plaintiff also moves for a declaratory judgment, requesting
a declaration from this court that:
[T]he collectively negotiated procedures for review of
a UMDNJ Police Officer’s administrative discipline do
not adequately safeguard the Police Officer’s personal
right of appeal and review of the disciplinary matter,
such
that
a
UMDNJ
Police
Officer
subject
to
administrative disciplinary action may bring an action
in Superior Court, Law Division, and thereby obtain
judicial review of the merits of such administrative
disciplinary action.
(Amend. Compl. ¶ 39)
29
The Declaratory Judgment Act provides that “in a case of
actual controversy within its jurisdiction . . . any court of
the United States . . . may declare the rights and other legal
relations of any interested party seeking such a declaration.”
28 U.S.C. § 2210(a).
While Plaintiff brought the initial claim
under the New Jersey Declaratory Judgment Act, the Federal
Declaratory Judgment Act applies in Federal Court. See Fischer &
Porter Co. v. Moorco Int’l Inc., 869 F. Supp. 323, 326 (E.D. Pa.
1994).
This Court finds that Plaintiff does not have a claim
appropriate for a declaratory judgment, especially now that
arbitration is ongoing.
Under Article III, the availability of
a declaratory judgment is limited to actual cases and
controversies.
See, e.g., Travelers Ins. Co. v. Obusek, 72 F.3d
1148, 1153 (3d Cir. 1995).
The “question in each case is
whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.”
Id. at 1154
(citing Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273
(1941)).
Declaratory judgments must also be ripe, a requirement
grounded, in part, in the case or controversy requirement.
Armstrong World Indus., Inc. by Wolfson v. Adams, 961 F.2d 405,
30
411 n.12 (3d Cir. 1992).
For cases involving declaratory
judgments, the Third Circuit has developed a three part test to
determine if an action for declaratory judgment is ripe; the
Court must assess “the adversity of the interests of the
parties, the conclusiveness of the judicial judgment, and the
practical help, or utility, of that judgment.’”
Presbytery of
N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454,
1463 (3d Cir. 1994)(citing Step–Saver Data Sys., Inc. v. Wyse
Tech., 912 F.2d 643, 647 (3d Cir. 1990)).
Examination of these
three factors shows that this case is not appropriate for a
declaratory judgment.
The first factor, adversity of the interest, requires the
court to find “a substantial threat of real harm and that the
threat must remain real and immediate throughout the course of
the litigation.”
omitted).
Presbytery, 40 F.3d at 1463 (quotations
The Court does not find such a threat of real harm at
at this time.
As held, Plaintiff received adequate process.
And even if Plaintiff had not received adequate process,
Plaintiff is now in the midst of an additional arbitration
proceeding, and now claims to be the prevailing party.
Opp. at 4, 13).
(Pl.
Plaintiff cannot have it both ways; Plaintiff
cannot ask for a declaratory judgment requiring a “substantial
threat of real harm” and also claim to have already prevailed on
the merits.
31
The Court finds declaratory judgment inappropriate under
the conclusiveness and utility factors as well.
The test for
conclusiveness requires the court to determine whether “judicial
action at the present time would amount to more than an advisory
opinion based on a hypothetical set of facts.”
Presbytery, 40
F.3d at 146. The “conflict between the parties . . . cannot be
‘nebulous or contingent’ but ‘must have taken on fixed and final
shape so that a court can see what legal issues it is
deciding.’” Wyatt, Virgin Islands, Inc. v. Gov't of the Virgin
Islands, 385 F.3d 801, 806 (3d Cir. 2004)(quoting Pub. Serv.
Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 244 (1952)).
Any
additional review of Plaintiff’s right to appeal would be
advisory while arbitration is ongoing.
This case also fails on the third factor, utility.
This
factor requires the Courts to consider “whether the parties’
plans of actions are likely to be affected by a declaratory
judgment.”
Presbytery, 40 F.3d at 1469 (3d Cir. 1994)(citing
Step–Saver, 912 F.2d at 649 n.9).
The Court does not believe
declaratory relief in this case would materially affect the
parties.
As noted, Plaintiff is already in the process of
arbitration.
Moreover, Plaintiff already filed for Superior
Court review of the discipline he received in this case.
Plaintiff does not need this court to declare that he had such a
right to file for review, as Plaintiff already filed suit.
32
Thus, the Court is unable to see how a declaratory judgment
would have utility for either party.
The Defendant’s motion for
summary judgment on the declaratory judgment claim will be
granted.
C.
Plaintiff’s Claim for Prevailing Party Status
Plaintiff has argued that he is a prevailing party entitled
to attorney’s fees and costs under § 1983 and § 1988.
at 4).
(Pl. Opp.
Plaintiff argues that he is entitled to the status of
prevailing party since he brought a § 1983 claim and Defendant
reduced Plaintiff’s suspension from 20 to 5 days, “only after
Plaintiff Bianchi spent 21 months seeking to appeal and
challenge” the suspension and “litigating the constitutionality
of the UMDNJ policy for appealing police officers’ major
discipline.” (Id.)
Plaintiff’s Cross-Motion for Summary
Judgment must be denied as a matter of law.
In order to be considered a prevailing party, the party
must have “been awarded some relief by the court.”
Buckhannon
Bd. & Care Home, Inc. v. W. VA. Dep't of Health & Human Res.,
532 U.S. 598, 598 (2001).
In Buckhannon, the Supreme Court held
prevailing parties were limited to parties that had received
judgments on the merits and court-ordered consent decrees,
including settlement agreements enforced through consent decree.
Id. ; see also Singer Mgmt. Consultants, Inc. v. Milgram, 650
33
F.3d 223, 228 (3d Cir. 2011)(quoting Buckhannon, 532 U.S. at
604).
After Buckhannon, the Third Circuit has explicitly stated
that “courts may not award fees based on a ‘catalyst theory;’ a
plaintiff does not become a ‘prevailing party’ solely because
his lawsuit causes a voluntary change in the Defendant’s
conduct.”
People Against Police Violence v. City of Pittsburgh,
520 F.3d 226, 232 (3d Cir. 2008).
In that situation, “the
change in legal relationship lacks the requisite ‘judicial
imprimatur.’”
Id.
While Defendant reduced the suspension,
Plaintiff has not been awarded a judgment on the merits, nor has
the court issued a consent decree.
Therefore, Plaintiff is not
entitled to be considered a prevailing party.
Plaintiff argues that Buckhannon and accordingly People
Against Police Violence are limited to cases involving a
preliminary injunction. (Pl. Supp. Br. at 18).11
merit to this argument.
There is no
In Singer Management, the Third Circuit
wrote to explain the significance of Buckhannon, calling
Buckhannon a “sea change,” and writing that prior to Buckhannon,
the rule in most circuits was that a plaintiff was a
“‘prevailing party’ if it ‘achieve[d] the desired result because
In the Defendant’s response to the supplemental briefing,
Defendant argues that Plaintiff’s supplemental briefing on the
issue of attorney fees should be struck, since the Plaintiff
went beyond the scope of Court’s motion. (Def. Response to Supp.
Br.) The Court declines to strike the Defendant’s supplemental
briefing on attorney fees.
11
34
the lawsuit brought about a voluntary change in the Defendant’s
conduct.’”
Singer Mgmt., 650 F.3d at 231 (quoting Buckhannon,
532 U.S. at 601-2.)
The Third Circuit explained that Buckhannon
overruled the catalyst theory allowing attorney fees when
Defendant voluntarily changed their behavior.
Id.
There is no
suggestion in Buckhannon, nor in Singer Mgmt., that this holding
was limited to cases involving preliminary injunctions.
Plaintiff’s theory no longer reflects the case law.
For the aforementioned reasons, the Court does not find
that Plaintiff can be considered a successful claimant in order
to obtain fees.
Plaintiff’s Cross-Motion for Summary Judgment
will be denied.
IV.
Conclusion
For the aforementioned reasons, Defendant’s Motion for
Summary Judgment will be granted and Plaintiff’s Cross-Motion
for Summary Judgment will be denied.
An appropriate order will
follow.
Date: February 2, 2016
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
35
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