BEHNE v. UNION COUNTY COLLEGE et al

Filing 51

OPINION. Signed by Judge John Michael Vazquez on 1/26/2018. (JB, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MATTHEW BEHNE,

Plaintiff
Civil Action No. 14-6929 (JMV) (Mf)
V.

OPINON

UNION COUNTY COLLEGE, MARTS LOWN,
ALLISON KELLISH, JO-ANN DAVIS
WAYNE. NEGAR FARAKISH, PATRICIA
CASTALDI, et al,
Defendants.

John Michael Vazguez, U.S.DJ.

Currently pending before the Court is Defendants’ motion for summary judgment. D.E 42.
This case concerns Plaintiff Matthew Behne, a student who was formerly enrolled in Union County
College’s (“UCC”) Physical Therapy Assistant Program, but was dismissed from the program in
2013. Plaintiff argues that in terminating him, the college breached its contract with him. Plaintiff
also asserts numerous additional causes of action. The Court reviewed submissions made in
support of the motion and considered the motion without oral argument pursuant to Fed. R. Civ.
P.78(b) and L. Civ. R. 78.1(b). For the reasons that follow, the Defendants’ motion is GRANTED
in part and DENIED in part.
I.

V

Factual Background & Procedural History

The following facts are taken from the parties’ respective statements of material fact and
documents annexed thereto.’ Plaintiff began UCC’s Physical Therapy Assistant (“PTA”) Program

1

Defendants’ Statement of Undisputed Material Facts, D.E. 44, referred to hereinafter as

(“the Program”) in January 2012. Defendants’ SOMF at ¶1. The Program is designed to train
PTAs who will ultimately work under the supervision of licensed physical therapists. Id. at ¶6.
The Program itself involves both classroom-based and clinical courses. Id. at ¶8. The clinical
courses involve students assisting physical therapists with actual patients at affiliated clinical sites.
Id. at ¶24, 26. Termination from a clinical affiliate results in an “automatic failure” of the clinical

course. Id. at30.
Three documents outline the Program’s policies and procedures: (1) the Union County
College PTA Handbook (“PTA Handbook”); (2) the Union County College PTA Program Clinical
Education Handbook (“Clinical Handbook”); and (3) the Union County College Student
Handbook (“Student Handbook”). Id, at ¶J12-l3.2 Students are expected to know the contents of
all three handbooks. Defendants’ SOMF at ¶15. Plaintiff signed forms that acknowledged his
receipt of the PTA Handbook. Id. at ¶14.
The PTA Handbook states in pertinent part:
The following actions will be taken if a student demonstrates
behaviors inconsistent with the criteria established in these
documents:
1. When behavior is perceived as being inappropriate the student will
be given feedback regarding the inappropriate behavior(s) and be
provided with relevant expectations for remediation. This feedback
can be provided by faculty and/or clinical educators. The student
“Defendants’ SOMf,” and Plaintiffs Counter-Statement of Undisputed Material Facts, D.E. 45,
referred to hereinafter as “Plaintiffs SOMf.” Note that Plaintiffs SOMF is not consecutively
numbered throughout.
2

Defendants argue that all three handbooks contain “disclaimers” because each indicates that
they are “subject to change.” Brief in Support of Defendants’ Motion for Summary Judgment,
D.E. 42, (hereinafter “Defendants’ Brief’), at pg. 4-5. First, the language does not constitute a
disclaimer; instead it merely indicates that UCC may change the contents of the handbooks in the
future. Second, Defendants never explain the legal effect of their “disclaimer” assertion. In any
event, the Court does not consider such language (“subject to change”) to constitute a sufficient
disclaimer as to the applicability of the handbooks.
2

will be expected to remediate the behavior as advised.
2. In the academic setting, if a change to more appropriate behavior(s)
does not occur, a formal learning contract between Union County
College and the student will be developed. This learning contract
will be developed by the student with the guidance from the
appropriate faculty member(s).
3. Automatic dismissal from the PTA program will result for the
following instances:
a. Conduct that constitutes harassment or abuse of or
discrimination against peers, faulty, patients and others
b. failure to provide a safe and secure environment for
patients and peers
c. Participation in academic coursework while under the
influence of an illegal substance that impairs the ability
to do so safely
d. Participation in academic coursework while under the
influence of an illegal substance and/or alcohol
e. Breach of confidentiality
f. Failure to comply with learning objectives set forth in a
fonnal learning contract between Union County College
and the student
g. Violation of the student regulations of Union County
college or PTA program
Exhibit G to the Certification of Micci J. Weiss, Esq., D.E. 42-2 (hereinafler “Weiss Cert.”) at pg.
25 (emphasis added).

The PTA Handbook incorporates the American Physical Therapy

Association Code of Ethics.3 See Ex. G. to Weiss Cert. at pg. 30.

The Code of Ethics provides in part:
STANDARD 1
Physical therapist assistants provide services
under the supervision of a physical therapist.
—

1.1 Supervisory Relationships Physical therapist assistants
shall work under the supervision and direction of a
physical therapist that is properly credentialed in the
jurisdiction in which the physical therapist practices.
—

1.2 (A) Physical therapists assistants may not initiate or alter
a treatment program without prior evaluation by and
approval of the supervising physical therapist.
3

The Clinical Handbook states in pertinent part as follows:
In situations where patient/client and/or staff safety are considered
compromised, immediate termination ofthe clinical experience may
occttr.

The ACCE [Academic Coordinator of Clinical Education] may
terminate a clinical experience at any time if it is felt that the student
will be unable to meet the course objectives. Prior to termination,
the student must have been given written notice that he/she is in
danger of failing. This notification must include an educational
contract with specific learning objectives.
Ex. H to Weiss Cert. at pg. 16 (emphases added).
The Student Handbook, in turn, states in pertinent part:
Physical Therapist Assistant Program
Once accepted into the PTA program, all PTA courses must be
completed in sequence with a grade of C+ or higher. If the student
fails or withdraws from a PTA course, he/she will not be allowed to
continue in the PTA program. The student must request program
re-entry from the Program Coordinator. All policies for re-entry are
described in the PTA program handbook.
Behavior for which Students Shall be Subject to Disciplinary Action
(1) Any student who is guilty of continued and willful disobedience
or of open defiance of the authority of any instructor or person
having authority over him or her, or the use of profanity or
obscene language, or defacing any College property shall be
liable to punishment including suspension or expulsion from the

Physical therapist assistants provide services
STANDARD 4
within the limits of the law.
—

4.1 Physical therapy assistants shall comply with all aspects
of law. Regardless of the content of any law, physical
therapist assistants shall provide services only under the
supervision and direction of a physical therapist that has
the proper credentials in the jurisdiction in which the
physical therapist assistant practices. Ix. G to Weiss
Cert. atpg. 32,34.
4

College.
(2) A threat to the personal safety of self or other students. When a
faculty or staff member has reason to believe that a student is or may
become a threat to personal safety or self, other students, or staff,
that faculty or staff member should immediately notify the Office of
the Dean of Students. Failure of the student to cooperate may result
in disciplinary action and/or expulsion from the College. An
immediate threat to personal safety should be reported directly to
the Public Safety Office.
Step 1: Review Process
Stttdent Disciplinary Process
student will be afforded the following:
—

.

.

.The

1. Written notification of the charges sent by certified mail to the
student address of record or by verbal notification by the Public
Safety Office when appropriate.
2. Sufficient notice of the time and place of a disciplinary
conference.
3. The right to have an advisor present.
4. The right to a translator/sign language interpreter/note taker, if
necessary.
5. The right to view pertinent documents.
6. The right to be informed of the outcome of any disciplinary
conference.
Step 3: Appeal Process The student may appeal through a formal
Hearing by notifying the Disciplinary Conference Officer, in
writing, within ten working days of notification of the decision.
—

Ex. M to the Certification of Matthew Behne, D.E. 46 (hereinafter “Behne Cert.”) at pg. 22, 24
(emphases added).
Defendant Allison Kellish, a senior professor and ACCE of the Program, met with Plaintiff
“on numerous occasions” to discuss what she perceived to be his inappropriate behavior. Id. at
¶40, Complaint, D.E. 1 (hereinafter “Complaint” or “Cornpl.”) at ¶5. Those behaviors included
placing his personal items on faculty desks and classroom podiums, personal space issues, being
disrespectful to other students, using office supplies that belonged to college staff, and having
emotional outbursts during exams. Id. at ¶J42-45. Generally, Kellish worried that Plaintiff did

5

not have the appropriate interpersonal skills or professionalism to successfully complete the
Program. Id. at ¶38. Kellish met with Plaintiff in June 2012 to discuss the behavioral issues and
to help him manage his stress. Id. at ¶45.
In October 2012, Kellish visited an off-site clinical affiliate, Waterview Center Clinic
(“Waterview”), after two of its employees notified her that Plaintiff had acted inappropriately
during his rotation there. Id. at ¶53. They reported that Plaintiff called his clinical instructor
outside business hours, stayed at the clinic after therapy hours were over, and brought his instructor
coffee after being told he should not. Id. at ¶54. Kellish then held another meeting with Plaintiff
and two Waterview employees, where Plaintiff signed a learning contract, in which he agreed to
several specific strictures on his behavior.4 Id. at ¶55-57. Plaintiff disputes that this was a true
learning contract, and instead states that the title of the document was rather “Matt’s Behavioral
Objectives,” which were determined without his input.

Plaintiffs SOMF at ¶56.

However

Plaintiff does state that the contract “served its function,” in that he completed his rotation at
Waterview successfully. Id. at ¶3. Defendants’ SOMF at ¶59. During Plaintiffs deposition,
Defendants’ attorney asked: “As a result of the meetings that you had with Dr. Kellish and with
the people at Waterview, was a learning contract created for you?”, to which Plaintiff responded:
“Yes.” Ex. Ito Weiss Cert. at 155:21-25. Yet, Plaintiff contended that he did not draft the contract
and that he did not agree that he suffered from the stated deficiencies.
Dr. Kellish then requested copies of Plaintiffs journal, which he was required to maintain
for each clinical rotation. Id. at ¶J60 & n. 5. Plaintiff states that Kellish “reviewed Plaintiffs
journals without his consent or authorization.” Plaintiffs SOMF at ¶60. After reading Plaintiffs

The document stated that, for instance: “[Plaintiff] will maintain professional boundaries with
his CI [clinical instructor] 100% of the time. He will not call or text his supervisor under any
circumstance.” Ex. 0 to Weiss Cert.
6

journal, Kellish became concerned “for Plaintiff and others’ well-being and safety.” Defendants’
SOMF at ¶61. In the journal, Plaintiff wrote: “Is swear to God I’m gonna punch that guy right in
the f

g mouth! !“, “I felt out of control many times and under the gun,” and “1 despise feeling

sad + despondent all of the time.

.

.

I do what I am told but still the mental anguish remains.” See

Ex. P to Weiss Cert. In December 2012, Dr. Kellish met with Plaintiff and Defendants Negar
Farakish and Patricia Castaldi, to discuss the journal. Id. at ¶63, Compl. at ¶7-8. Farakish was
the Provost and Assistant Vice President for Academic Affairs at UCC, and Patricia Castaldi was
the Director of Practical Nursing at UCC. During the meeting, Plaintiff said “people follow rules
or people die.” Id. at ¶65. Kellish, Farakish, and Castaldi insisted that Plaintiff meet with a school
counselor and his therapist before he started his second clinical rotation. Id. at ¶66.
After the meeting, Kellish sent Plaintiff a letter that stated, among other things:
Based on your current behavior in class and clinic, and written
statements in your reflective journal you are not consistently
exhibiting behavior that presents your ability to handle the rigors or
clinical rotations and achieve the criteria for professional behavior
and generic abilities as outlined in the program handbook.
Any issues in your ability to consistently 100% of the time exhibit
generic abilities and professionalism during clinical rotations will
be dismissal from the program.
Ex.

Q to Weiss Cert. Plaintiff claims that at no point during the meeting was his dismissal

discussed. Plaintiffs SOMF at ¶71. Plaintiffs therapist provided a letter stating Plaintiff should
be allowed to continue in the Program. Id. at ¶12. Kellish met with Plaintiff again in December
2012 to discuss an academic integrity violation. Defendants’ SOMF at ¶70. Plaintiff ultimately
received a zero on the assigmnent. Id. at ¶71.
Plaintiff began another clinical rotation in March 2013 at the Wayne Orthopedic Physical
Therapy clinic (“Wayne Clinic”). Id. at ¶72. On March 20, Plaintiffs second day at the clinic,
the Wayne Clinic dismissed Plaintiff. Id. Dr. Kellish learned of Plaintiffs dismissal when he
7

called her that morning; during that call she told him they would meet to discuss his dismissal on
campus once she learned more from the clinic. Ex. B. to Weiss Cert. at pg. 159: 9-18, pg. 161:
10-20.
The Wayne Clinic, through Ms. Noon, sent the following email to Dr. Kellish:
On his first day Matt displayed some behavior that was not in tine
with the way we need things done. Specifically, he inappropriately
questioned many of our methods (noting he preferred the way
Kessler did it
as you know, we’re pretty much the opposite of
Kessler in philosophy, so it makes sense why things were different),
resisted his U’s guidance, and there were some awkward moments
where questions were asked, thoughts were stated and/or things
were done in front ofpatients that shouldn ‘t have been, despite my
having gone this exact issue with him in orientation prior to his first
day. Dr. Benedetto, one of our clinic managers and acting CT, had
several direct dialogues with him, letting him know that it was up to
Matt whether he stays or chooses to go find somewhere else to
affiliate. If he was to stay he needed to accept guidance, not question
our methods, and slow things down, trusting that when we felt he
was ready we would progress him clinically.
---

Everything went well for the rest of the day and it was clear Matt
was trying. We were optimistic that it could still work out.
Unfortunately, though, today one of our staff let us know that she
had situation where Matt, withoitt being cleared to do so by the
clinic managers, insisted on setting up a patient. Basically doing
things his way instead of following the guidance his CI had given
him the previous day regarding allowing us to set the pace and
trusting in our guidance. As you know, the student needs to be open
to and accept our methods, where we have them focus mainly on
patient relationships before we allow them to put their hands on a
patient. This in itself is valuable clinical guidance and needs to be
followed without question.
Unfortunately, we need to end the affiliation with Matt today when
we dialogued with him about setting tip this patient withottt
aitthorization, he told a story aboitt someone asking him to set up
the patient. This is not possible, as we asked the staff, and our entire
staff knew that everything Matt did needed to go through Frank first
and Frank did not give the direction that Matt should set up patients.
—

Ex. R to Weiss Cert. (emphases added).

8

Dr. Kellish also spoke with the coordinator, Noon, that day, but is unsure if she spoke to
her before or after receiving the email. Ex. B. to Weiss Cert. at 173:20-23. However, when Kellish
did speak with Noon, Noon did not say that Plaintiff was dismissed for reasons of patient safety
and Kellish did not recall if Noon indicated that Plaintiff had actually touched the patient. See Ex.
A. to Behne Cert. at 176: 11-17.
Kellish forwarded the email message from the Wayne Clinic to Castaldi and wrote: “FYI.
Can I use this to dismiss him at this point?” Ex. N. to Behne Cert. Castaldi replied:

‘a,

As we discussed, he has ongoing issues that are precluding him from
practicing in a safe and appropriate manner within the clinic
environment. Send me the statement from your handbook that
addresses dismissal and we can connect the dots.
Plaintiff states that he “never set up a patient at the Wayne Clinic.” Plaintiffs SOMF at

¶72. In a call to Kellish, Plaintiff indicated that he had been dismissed for asking a physical
therapist “questions about certain techniques in front of a patient.” id. at ¶74. In a subsequent
email, Plaintiff said that he “was dismissed from clinic because I violated their rules of interaction
and failed to follow their timeline and methodology of training.” Ex. S to Weiss Cert.
As a result of his termination from the Wayne Clinic, Kellish dismissed Plaintiff from the
Program. Id. at ¶88. On April 2, 2013, Plaintiff met with Kellish and Castaldi, where he was
informed of his dismissal, and Dr. Kellish explained why he was being dismissed. Id. at ¶89, Ex.
C. to Weiss Cert. at pg. 58-59. Before that meeting, Plaintiff was asked to write a reflection “about
what he thought—what happened and what he would do in the future to be successful.” Ex. B to
Weiss Cert. at 184:15-18. Dr. Kellish testified that she was certain Plaintiff would need to be
dismissed once she heard from the clinic that there had been a safety issue with the patient set up,
but she also stated she did not decide until the day of the meeting. Id. at 184: 7-24. Plaintiff
requested a different placement in another clinic, but Kellish denied the request. Plaintiffs SOMF
9

at ¶31. It is not clear if Plaintiff was asked any questions or peniiitted to give his version of events
at the April

21

meeting. Plaintiff made a formal appeal request on April 15, 2013. Id. at ¶36.

This request was never responded to. Id. at ¶40.
Plaintiff filed his Complaint on November 5, 2014. D.E. 1. The Complaint charges UCC5;
Mans Lown, the Assistant Vice President for Academic Affairs; Dr. Kellish; Jo-Ann Davis
Wayne, the Dean of Students; Dr. Negar F arakish; Dr. Castaldi; and various unnamed persons and
entities (collectively “Defendants”). Compi. at ¶J3-l0.
violations of 42 U.SC.

Count I charges all defendants with

§ 1983 for violation of Plaintiffs “First, fifih, Fourth, and Fourteenth

Amendrnent[]” rights; Count II is for the same violations under the New Jersey Constitution; Count
III is for “arbitrary and capricious” actions; Count IV is for breach of contract; Count V is for
quasi-contract breach; Count VI is for implied contract breach; Count VII is for abuse of process;
Count VIII is for discrimination under the New Jersey Law Against Discrimination (“LAD”);
Count IX is for hostile education environment; Count X is for promissory estoppel; Count XI is
for negligence; Count XII is for misrepresentation; Count XIII is for intentional and negligent
infliction of emotional distress; Count XIV is for aiding and abetting violations of the LAD. Id.
at ¶1195-252
Defendants answered the Complaint on January 6, 2015. D.E. 7. A number of conferences
on scheduling and settlement have been held in front of Judge Falk. See D.E. 13-41. Discovery
has concluded. See D.E. 39. Defendants filed the instant motion for summary judgment on
January 6, 2017. D.E. 42. Plaintiff filed his opposition on february 6, 2017. Defendants replied
onFebruary2l,2017.

Union County was initially named as a Defendant, but it has since been dismissed from the
case. D.E. 16.
10

II.

Standard of Review

Summary judgment is proper where the moving party “shows that there is no genuine
dispute as to any material fact,” and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999). A fact in dispute is
material when it “might affect the outcome of the suit under the governing law” and is genuine “if
the evidence is such that a reasonable jury could return a verdict for the nonrnoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Disputes over irrelevant or

unnecessary facts will not preclude granting a motion for summary judgment. Id. “In considering
a motion for summary judgment, a district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the nonmoving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.” Marino v. Indtts. crating Co., 358 f.3d
241, 247 (3d Cir. 2004) (quotingAnderson, 477 U.S. at 255)). A court’s role in deciding a motion
for summary judgment is not to evaluate the evidence and decide the truth of the matter but rather
“to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp.

V.

Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,

the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[hf the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the

11

court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).

Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the

import of

the evidence,”

however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
III.

Analysis
a. Contract Claims

It is clear that Plaintiff was not an easy student. His behavior ranged from the odd (such
as personal space issues) to the disruptive (such as emotional outbursts during an exam and being
disrespectful to other students) to the concerning (such as discussing thoughts of violence toward
others) to the defiant (disobeying instructions at both the Waterview and Wayne Clinics). Thus,
the Court is sympathetic to Defendants’ plight.

However, the question remains whether

Defendants are entitled to summary judgment.
Plaintiffs contract claims are based on the argument that UCC violated its own policies by
dismissing him.

Memorandum of Law in Opposition to Defendants’ Motion for Summary

Judgment (hereinafler “Opposition”), D.E. 48, at pg. 11. Defendants argue that no contract existed
between UCC and Plaintiff, and that Plaintiffs dismissal was justified by their written policies and
procedures. Defendants’ Brief at pg. 4-5. Specifically, Kellish’s December 2012 letter stated that
Plaintiff would be dismissed if he was unable to meet the goals set by the Program, including
“generic abilities and professionalism” during his clinic rotation. Ex.

Q to Weiss Cert. Defendants

also contend that the PTA and Clinical Handbooks provide for automatic dismissal in the case of
a safety violation, which they allege occurred during Plaintiffs rotation at the Wayne Clinic.

12

Defendants’ Brief at pg. 13-14.
Plaintiff argues that Defendants failed to follow their own procedures in several respects,
thus violating the agreements between UCC and Plaintiff. First, Plaintiff asserts, Defendants
drafted the alleged learning contract without his participation, and now claim that it applied to both
clinical rotations at Waterview and Wayne. Opposition at pg. 12. Plaintiff adds that the Clinical
Handbook permits a student’s dismissal from a clinical rotation, but it does not allow tennination
from the Program without further investigation by the college. Id., Plaintiffs $OMF at 16-18, 27.
Plaintiff continues that he was also not granted any chance to appeal his dismissal from the
Program, as is provided for in the Student Handbook. Opposition at pg. 13.
Although a student may bring a claim for breach of contract against his or her university,
“a student’s contract claim arising from a public university’s disciplinary process is not adjudicated
under strict contract principles.” Collick v. William Paterson Univ., 2016 WL 6824374, at *22
(D.N.J. Nov. 17, 2016); see also Hernandez v. Don Bosco Preparatoiy High, 322 N.J. Super. 1,
17 (App. Div. 1999). However, “New Jersey recognizes an implied agreement between students
and universities.” Mucci v. Rutgers, 2011 WL 831967, at *19 (D.N.J. Mar. 3,2011). Much like
a student’s claim for lack of procedural due process, a higher education institution must guarantee
a “fair procedure” to protect against “arbitrary or capricious decision making,” including “adequate
notice of deficiencies,” an “opportunity to examine evidence of those deficiencies,” and the “right
to present a case to the decision-making authority.” Mittra v. Univ. of Med. & Dentistn’ ofNi,
316 N.J. Super. 83, 91-92 (App. Div. 1998). If the student cannot produce evidence that the school
“deviated in some significant way from its published rules and regulations.
allegation.

.

.

.

.

[a] mere conclusory

that appropriate procedures were not followed [is] insufficient to withstand summary

judgment.” Id. at 92.

13

Here, there is a genuine issue of material fact about whether there was a significant
deviation from UCC and the Program’s stated requirements. first, Plaintiff claims that the learning
contract signed during his first clinic rotation applied only to his time at Waterview, and it was not
intended as to apply to all subsequent clinical rotations. Despite Defendants’ protestations, it is
not clear from the document or the record that the contract was intended to cover all future clinical
rotations for Plaintiff. Indeed, the contract was written to address specific conduct issues at
Waterview. In addition, the “learning contract” in the PTA Handbook refers to the “academic,”
not clinical, setting. The Clinical Handbook, in turn, provides for an “educational contract” but it
is limited to situations in which a student is in danger of failing.
Second, Defendants’ brief focuses mainly on the safety violation at the Wayne Clinic, but
Plaintiff does not dispute the clinic ‘s ability to terminate him, as opposed to the school ‘s ability to
do so. The Clinical Handbook clearly states that the clinical experience can be immediately
terminated if a patient’s safety is compromised. Plaintiff objects because UCC did

not perform

an

adequate investigation of what occurred at the clinic. for instance, it is not clear if Kellish sent
the email to Castaldi before she had an opportunity to speak with the Wayne Clinic supervisor or
afler.6 Ex. N to Behne Cert. (noting the time stamps between the initial email from the Wayne
Clinic and the forwarded message to Castaldi shows only four minutes between the messages). If
Kellish acted solely on Wayne Clinic’s email, then Kellish’s actions can be reasonably interpreted
as indicating that she had already decided to try to terminate Plaintiff from the Program based on
the email from the Wayne Clinic alone, i.e. without performing any substantive follow-up with
either the Wayne Clinic or Plaintiff.

6

Dr. Kellish could not recall whether she spoke to the Wayne Clinic before or afier forwarding
the email to Dr. Castaldi. See Ex. B to Weiss Cert at 173: 20-22. However, in forwarding the
email, Dr. Kellish did not refer to a conversation with Wayne Clinic.
14

Moreover, it is unclear whether an actual safety violation happened; Plaintiff insists that
he did not “set up” a patient, while the Wayne Clinic director wrote to Kellish that he did.
However, even assuming that Plaintiff “set up” a patient without approval, Defendants have not
demonstrated how this action compromised the safety of the patient. Dr. Kellish testified that the
clinic reported Plaintiff initiated set up of an “e-stim,” or electrical stimulation, to a patient while
at the Wayne Clinic, by “going to get the electrodes.” Ex. B to Weiss Cert. at 169-170. Dr. Kellish
described this as a safety concern, even if Plaintiff “had not touched the patient,” or if he had
started the setup and was told to stop. Id. at 171. Yet, it is not clear to the Court how Plaintiffs
actions jeopardized patient safety if he never touched the patient, and Dr. Kellish did not provide
a sufficient explanation in this regard. Moreover, Plaintiff denies that this occurred. Ex. B to
Belme Cert. at 205-206. Plaintiff does state that he “was signed off as proficient on, and was
practicing, all modalities, within his scope of practice, including hot/cold packs, & ‘e-stirn,’ at
least seven months prior to” his dismissal. Plaintiffs SOMF at ¶21.
In addition, it is not clear in reading the email from the Wayne Clinic that the clinic
dismissed Plaintiff for patient safety concerns. Instead, the email can be reasonably read as
indicating that the Wayne Clinic dismissed him because the clinic had had difficulty with him on
the first day and then did not believe Plaintiffs explanation as to the patient “set up” on the second
day. Again, such action by the clinic was acceptable, but it is not clear that from the email that the
dismissal related to patient safety. In fact, when she spoke with the clinical coordinator from the
Wayne Clinic, Kellish admitted that the coordinator did not mention patient safety issues.
Third, while Plaintiff was asked by Dr. Kellish on the day of his dismissal from the clinic
what occurred that precipitated his dismissal, it does not appear that he was given a chance to
provide his version of events once UCC decided to terminate him from the Program. Mittra, 316

15

N.J. Super. at 91-92. Instead, he was called into a meeting with Kellish and Castaldi on April 2,
2013 and informed that he was being released

from the

Program. In fact, Dr. Kellish testified that

she had not definitively decided to dismiss Plaintiff from the Program until the day of the meeting,
although it is not clear what caused her to reach the decision. As a result, if Dr. Kellish was unsure
of whether she was going to release Plaintiff from the Program, then Plaintiff could not have
known of a decision that had not yet been made. At a minimum, there is a genuine issue of material
fact as to whether Plaintiff was given the opportunity to provide his side before the decision to
dismiss him was made and he was so advised.
Plaintiff also notes that despite his request, he was not given an opportunity to appeal his
dismissal from the Program, as is specifically provided.for in the Student Handbook. Defendants
argue that the PTA Handbook appeals process applies, not the Student Handbook’s. According to
Defendants, the Student Handbook appeal process applies when the student has been reported to
the Public Safety Division, which was not done here.7 The PTA Handbook states:
In the case of flagrant and intentional violations of the Professional
Code of Ethics, a student may be removed without previous warning
at any time in his or her academic career.
In general, program decision regarding academic standing are final.
A decision may be appealed only if the student can show that:
1. There was an error in the procedure used by the faculty
2. There is new evidence sufficient to alter the decision
3. Or the sanction imposed was not appropriate to the severity of
the violation of processional or academic standards.
Ex. G to Weiss Cert. at pg. 117.

The Student Handbook appeal process is described in the section titled “Student Disciplinary
Process,” which is performed through the Dean of Students and a designated “Disciplinary
Conference Order.” The procedure includes review, a disciplinary conference, and then an
appeal. See Ex. M to Belme Cert. at pg. 24.
16

Even if only the PTA Handbook appeals process applies, Plaintiff has still raised a genuine
issue of material fact precluding summary judgment.

He argues that there was an error in

procedure in that Kellish and other administrators failed to do a proper investigation of his conduct
at the Wayne Clinic, and that there is potentially new evidence in that he denies any safety issue
occurred. Because Plaintiff never got to explain or present his side of the story (or, alternately,
there is a genuine issue of material fact as to whether he was permitted), there is an issue of fact
about the “new evidence” that could be presented. Clearly, Plaintiff should have been able to
address UCC’s concerns directly before he was terminated from the Program. Of course, if it turns
out that patient safety was not compromised, then the sanction imposed (termination from the
Program) would not be commensurate with severity of the violation.
Thus, Plaintiff has raised genuine issues of material fact as to his breach of contract claims
regarding the scope of learning contract, the propriety of the dismissal from the Wayne Clinic as
a justification for his dismissal from the Program, UCC’s notice to him and his ability to be heard,
and as to whether he was provided an appropriate appeal. As a result, there are genuine issues of
material fact as to whether there was a significant deviation UCC and the Program’s requirements
in terminating Plaintiff from the Program. For this reason, summary judgment on the contract

claims, Counts IV, V, VT and X, is denied.
b. Negligence & Fraudulent Misrepresentation

Defendants indicate that they are entitled to summary judgment on Plaintiffs negligence
and fraud claims because they are entitled to summary judgment on the contract claims. However,
because the Court is not dismissing the contract claims, and the negligence and fraud8 counts, XI

Plaintiff pleads this claims as “misrepresentation” but lists the elements of fraud in their Reply.
See Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, D.E.
48,atpg. 16.
17

and XIII, survive as well.
c. Abuse of Process

The elements of an abuse of process claims are: “first, an ulterior purpose, and second, a
willful act in the use of this process not proper in the regular conduct of the proceedings.” Barletta
v. Golden Nugget Hotel Casino, 580 f.Supp. 614, 640 (D. N.J. 1984) (citing Prosser’s Law of
Torts). Plaintiff does not point to any evidence creating a material issue of fact as to improper use
of process by Defendants. Therefore, Count VII is dismissed.
d. Intentional & Negligent Infliction of Emotional Distress

To establish a claim of intentional infliction of emotional distress, Plaintiff must prove
three elements: (1) intentional and outrageous conduct on the part of the defendant; (2) proximate
cause, i.e. that defendant’s actions caused emotional distress; and (3) severe emotional distress.
Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 366 (1988). The emotional distress must

be “so severe that no reasonable man could be expected to endure it.” Id. To establish a claim of
negligent infliction of emotional distress, Plaintiff must show (1) that defendant owed a duty of
reasonable care to him; (2) “defendant breached that duty; (3) [he] suffered severe emotional
distress; and (4) defendant’s breach was the proximate cause of the injury.” Dello Russo v. Nagel,
358 N.J. Super, 253, 269 (App. Div. 2003).
As Defendants point out, Plaintiff cites no legal support for establishing either tort based
on dismissal from an academic program. Additionally, Plaintiff has failed to provide sufficient
evidence of emotional distress. He merely indicates that he has continues to see his therapist,
which he was doing before his termination from the Program. This is insufficient. Additionally,
UCC cannot be held liable for willful or intentional misconduct of an employee.9 See N.J.S.A.

‘

Defendants do not raise this point as to the fraudulent misrepresentation claim, so the Court
18

59:2-10; Seal Tite Corp. v. Bressi, 312 N.J. Super. 532, 53$ (App. Div. 1998). Thus, Count XIII
is dismissed.
e. Due Process10
i. Procedural Due Process

The essence of a procedural due process claim is “notice and an opportunity to be heard.”
Kadakia v. Rutgers, 633 F. App’x 83, 88 (3d Cir. 2015). In the context of a university’s decision-

making as to its students, there is a difference in the amount of due process required for academic
actions as opposed to disciplinary actions. 3d. of Curators of Univ. ofMo. v. Horowitz, 435 U.S.
78, 88 & n.4 (197$) (“There is a clear dichotomy between a student’s due process rights in
disciplinary dismissals and in academic dismissals.” (internal quotation marks omitted)). “When
a student is discharged for academic

.

.

.

reasons, all that is required to satisfy procedural due

will not address it sita sponte.
Plaintiffs Due Process claims are brought pursuant to 42 U.S.C. §1983, which provides a
vehicle for vindication violations of other federal rights. Graham i’. Connor, 490 U.S. 386, 39394 (1989). 42 U.S.C. § 1983 provides in relevant part as follows:
10

Every person who, under color of any statute, ordinance, regulation,
subjects, or causes to be
custom, or usage, of any State or Territory
any citizen of the United States or other person within the
subjected,
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress[.]
.

.

.

In order to state a valid claim for relief under Section 1983, a plaintiff must first allege a violation
of a right secured by the Constitution or laws of the United States and, second, a plaintiff must
contend that the violation was caused or committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
Neither party argues the Section 1983 standard in their briefing, rather they interpret the relevant
constitutional standards under the Fourteenth Amendment Due Process Clause. As a result, the
Court focuses on the constitutional provision. Moreover, although the initial allegations also assert
violations other constitutional provisions, neither party addresses those provisions.
19

process is ‘an informal faculty evaluation with the student.” Kadakia, 633 F. App’x at $8 (quoting
Maitriello v. Univ. of Med. & Dentistiy of N.i, 781 F.2d 46, 51 (3d Cir. 1986)). Similarly, in

regard to disciplinary actions, a “formal hearing” is not required. Horowitz, 435 U.S. at $5.
However, there must at least be an “informal give-and-take” between the student and the school
that provides the student with “the opportunity to characterize his conduct and put it in what he
deems the proper context.” Id. at 86 (quoting Goss v. Lopez, 419 U.S. 565, 584 (1975)). In
evaluating whether procedural due process has been satisfied, the Supreme Court has “frequently
emphasized that ‘the very nature of due process negates any concept of inflexible procedures
universally applicable to every imaginable situation.” Id. (quoting Cafeteria Workers v. McElroy,
367 U.S. 886, 895 (1961)).
Plaintiff here raises genuine issue of material fact as to whether he was given an
opportunity to be heard afier he was dismissed from the Wayne Clinic.

While Defendants

repeatedly indicate that Plaintiff was provided a “formal meeting,” Defendants’ Brief at pg. 24,
there are genuine issues of material fact as to what the meeting consisted of and whether Plaintiff
had the opportunity to at least answer the allegations against him. In this regard, the Court refers
to the analysis of the termination meeting discussed above in the Contract Claims section. Because
there are genuine issues of material fact as to whether Plaintiff was given proper notice of the
anticipated termination and as to whether Plaintiff was allowed an opportunity to be heard,
summary judgment as to Counts I and II, the federal and state constitutional claims, is denied.
ii. Substantive Due Process

Initially, the Court notes that the Third Circuit “has strongly suggested that the right to
continued graduate education is not protected by substantive due process.” Manning v. Temple
Univ., 157 F. App’x 509, 514 (3d Cir. 2005); see also McMahon v. Rutgers, No. 11-02306, 2013

20

WL 5937416, at *9 (D.N.J. Nov. 4, 2013), aff’d sub norn. Mciahon v. Salmond, 573 F. App’x
128 (3d Cir. 2014) (stating that the court is “skeptical” that the plaintiff “has a constitutionally
protected interest in his continuing enrollment in a graduate-level nursing program”).

To

demonstrate a violation of substantive due process, a plaintiff is “required to show that he was
deprived of a fundamental property right through an arbitrary and deliberate abuse of authority.”
Kadakia, 633 F. App’x at 87. Substantive due process rights are narrower in scope than the rights
protected by procedural dtie process. Mttcci

v. Rtttgers,

No. 08-4806, 2011 WL 831967, at *18

(D.N.J. Mar. 3,2011).
In the context of academic decisions, the Supreme Court has cautioned that courts
reviewing those decisions “should show great respect for the faculty’s professional judgment.”
Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225 (1985). Put simply, courts “may not
override [a university’s decision] unless it is such a substantial departure from accepted academic
norms as to demonstrate that the person or committee responsible did not actually exercise
professional judgment.” Id. The Supreme Court in Ewing assumed, without deciding, that there
was a property interest in continuing enrollment (there in a medical school)—neither it nor the
Third Circuit has recognized this right in subsequent case law. See Van de Zilver v. Rutgers
University, 971 F.Supp. 925, 934; Bell v. Ohio State University, 351 F.3d 240, 251 (6th Cir. 2003)
(declining to find “an interest in

[J continuing enrollment” in a medical school).

Because no higher

court has clearly recognized the right asserted by Plaintiff, the Court will grant Defendants’ motion
for summary judgment as to Plaintiffs substantive due process claim.
f.

Arbitrary & Capricious

Plaintiffs “arbitrary and capricious” claim must be dismissed as this is a legal standard,
not an independent cause of action. Broad St. Surgical Ctr., LLC v. UnitedHealth Gip., Inc., 2012

21

WL 76249$, at

(D.N.J. Mar. 6, 2012). Count III is dismissed.

g. LAD

Plaintiffs claim under the New Jersey Law Against Discrimination (“LAD”), N.J.S.A.
10:5-12, is that UCC failed to reasonably accommodate his disability. The elements of such a
claim are: (1) plaintiff is disabled, (2) his requests for accommodations were reasonable, and (3)
that those requests were denied. See Mttcci, 2011 WL $31967, at *21. Plaintiff here has failed to
allege that he ever advised Defendants that he was disabled, much less that he asked for an
accommodation.

All parties agree that Plaintiff was undoubtedly suffering from stress, but

Plaintiff cites to no case finding that his the ability to adequately address stress, without more, is
a disability requiring accommodation under the LAD.’ Because the Court is dismissing Count
VIII for violation of LAD, it does not reach Count XIV, asserting aiding and abetting violations
of LAD, which is also dismissed.
li. Hostile Education Environment

One of the elements of a hostile environment claim is that the plaintiff is the member of a
protected class of persons and that the defendants were aware of his status as such. See Lehman
v. Toys R. Us, Inc., 132 N.J. 587, 604 (1993). The LAD prohibits discrimination based on “race,
creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, genetic
information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular

Although stress alone is likely not sufficient under the Americans with Disabilities Act, the
LAD is read more permissively, and thus “stress disorders” may be covered by the LAD “which
defines ‘handicap’ more broadly.” See Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super.
385, 39$ (App. Div. 2002) (noting the plaintiff suffered from post-traumatic stress disorder and a
number of other physical illnesses). Regardless, Plaintiff fails to make this argument and the
Court will not address it sua sponte. While Plaintiff indicates that he suffered from stress, he
fails to provide any cognizable diagnosis concerning his stress levels.
“

22

or blood trait.

.

.“

N.J.S.A. 10:5-12. As with the LAD claim, there is insufficient evidence that

would preclude summary judgment, showing that Plaintiff was the member of a legally cognizable
protected class. Count IX is dismissed.
IV.

Conclusion

for the reasons stated above, the Defendants’ motion for summary judgment is GRANTED
in part and DENIED in part. Counts I only as to the procedural due process claim, II only as to
the procedural due process claim, IV, V, VI, X, XI, and XII remain. Counts Ill, VII, VIII, IX,
XIII, and XIV are dismissed as are Counts I and II to the extent they do not rely on procedural due
process. An appropriate Order accompanies this Opinion

Dated: January 26, 2018

John Michael Vazqu,

23

.D.J.