Asmar Fortney v. Rutgers

• Court: New Jersey Superior Court Appellate Division
• Decided: October 22, 2024
• Docket: A-3576-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3576-19

ASMAR FORTNEY,

Plaintiff-Respondent/ Cross-Appellant,

v.

RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, RUTGERS UNIVERSITY POLICE DEPARTMENT, CHIEF CARMELO V. HUERTAS, individually and in his official capacity, CAPTAIN MICHAEL REIN, individually and in his official capacity, Executive Director of Police Services/Chief of Police KENNETH COP, individually and in his official capacity, and former Vice President for Administration and Public Safety JAMES "JAY" KOHL, individually and in his official capacity,

Defendants-Appellants/ Cross-Respondents. _______________________________

Argued October 26, 2022 – Decided October 22, 2024 Before Judges Accurso, Vernoia and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3570-14.

James P. Lidon and Seth Spiegal argued the cause for appellants/cross-respondents (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; James P. Lidon, of counsel and on the briefs; Seth Spiegal, on the briefs).

Catherine M. Elston argued the cause for respondent/ cross-appellant (C. Elston & Associates, LLC, attorneys; Catherine M. Elston, of counsel and on the briefs; Cathlene Y. Banker, on the briefs).

The opinion of the court was delivered by

ACCURSO, P.J.A.D.

Rutgers, the State University of New Jersey, appeals from a jury verdict

finding the University violated plaintiff Asmar Fortney's procedural due

process rights under the New Jersey Constitution and awarding him $340,000

in backpay and $150,000 in emotional distress damages for a total award of

$490,000. Fortney cross-appeals from the jury's no-cause verdict on his race

discrimination claim under the New Jersey Law Against Discrimination,

N.J.S.A. 10:5-1 to -49, and the court's entry of judgment on his punitive

damages claim and his claim under the New Jersey Civil Rights Act, N.J.S.A.

A-3576-19 2 10:6-1 to -2, as well as from its directed verdict for the individual defendants

on his due process and aiding-and-abetting claims.

We reverse the judgment on Fortney's due process claim. Fortney's

exclusive remedy for any claim the University violated Departmental

disciplinary policies or transgressed procedural safeguards associated with

discipline under the collective negotiations agreement governing his

employment was binding arbitration under the auspices of the Public

Employment Relations Commission, a remedy he initially pursued but then

abandoned. His procedural due process claim should have been dismissed on

the pleadings. We affirm the judgments challenged on the cross-appeal

finding no error in the trial court's rulings.

Following his training at the police academy and a short stint as a

probationary officer, Asmar Fortney became a member of the Rutgers

University Police Department in April 2011, assigned to the Newark campus.

Before the altercation in December 2013, which gave rise to his termination

and this suit, Fortney had already amassed a record of several sustained

charges of unprofessional conduct or conduct unbecoming a police officer and

had served suspensions totaling 420 hours. He received a four-day, forty-hour

suspension in June 2011 for leaving his off-duty firearm unsecured by the

A-3576-19 3 microwave oven in the squad room; failing to provide backup by leaving an

incident scene he believed was being adequately handled by other officers

from Rutgers and the New Jersey Institute of Technology; failing to confirm

he had completed his search of the campus library after its midnight closing

and secured all doors, following which other officers spotted and removed a

homeless man inside; being unreachable on his police radio and riding in a

NJIT police cruiser when he was supposed to be on foot patrol.

Six months later, in December 2011, Fortney received a two-day,

twenty-hour suspension after he failed to write a required report after

investigating the smell of burnt marijuana in a dormitory, leading to the

University being unable to discipline students for the infraction. And nine

months after that, in August 2012, he received a thirty-day, 300-hour

suspension for falsely stating in a police report of a street theft on campus that

he had reviewed video camera surveillance, which revealed nothing of

evidentiary value, when he had not reviewed the surveillance video, which did

contain footage of evidentiary value.

Michael Lattimore, then-Chief of the Newark command, who hired

Fortney, was prepared to terminate him after that incident, and testified at

deposition that he had the notice prepared to do so. Instead, Lattimore

A-3576-19 4 determined to give Fortney one more chance and told him so. In his letter to

Fortney advising of his thirty-day suspension, Lattimore noted it was "not the

first time you have been disciplined by our department" and warned that "[a]ny

future violation will result in the termination of your employment."

The incident leading to Fortney's termination began shortly after 1:00

a.m. on Sunday, December 7, 2013, when LaShelle Cross, an Area Director for

the Rutgers Newark campus, arrived at University Square, a residence hall

housing over 300 freshmen, in response to a call by two undergraduate

Resident Assistants for help breaking up a party where students had been

drinking. Cross testified at trial that Fortney was in the lobby, in uniform,

speaking to the security guard on duty when she went upstairs to assist the

RAs, who were dealing with a guest who didn't want to leave.

Cross testified the young woman was a commuter student, who said

she'd just arrived at the party, and didn't have anywhere else to stay. Cross

told her she had to leave. The student was agitated, not understanding why she

couldn't stay as she hadn't been long at the party, and she was a tuition-paying

Rutgers student with no place else to go. Cross testified Rutgers does not

tolerate underage drinking on campus, that University Square is a freshman

dorm, and that both the hosts and all the guests were in violation of the rules

A-3576-19 5 simply by being at a party where there was underage drinking, even if not all

the guests were underage.

In the course of escorting the student and her host, who was pleading

that the student be allowed to stay, down to the lobby, Cross learned the

student had friends in an NJIT dorm a block away and confirmed she could

stay there. There was a delay in her leaving, however, as she had forgotten her

bag, and her host had gone upstairs to retrieve it. Cross testified the student,

although willing to leave, albeit grudgingly, continued to complain to her in

the lobby for the next five or ten minutes about the unfairness of the situation,

while waiting for her things. Cross testified she was "pretty sure" the student

was intoxicated. She claimed the student was "not willing to take no for an

answer," and was just "looking for an argument." Cross claimed she finally

motioned to Fortney, who was still standing at the security desk chatting with

the guard and said hey "could you just tell her she has to go kind of thing."

Fortney, however, did nothing to assist Cross in having the student leave

the dorm. The host offered to walk her guest up the hill to NJIT, and Cross

determined to wait in the lobby until the host returned, making sure the guest

had gotten "to where she needed to go," and her freshman host was back in the

dorm. Cross testified she began a casual conversation with Fortney and the

A-3576-19 6 security guard as the two students made ready to leave during which Fortney

questioned Cross about the University's housing policies. As the two students

walked outside, Cross testified Fortney said, "it's like see. This is what I

mean. Like, why is that — you know, why is that a rule?"

Cross claimed Fortney expressed a "general disdain" for the way the

housing staff "enforce[d] certain rules" and vented about "Anthony faggot ass

and his RAs tr[ying] to get [him] fired," referring to the two-day suspension

Fortney had received two years earlier for failing to write a report when called

to a dorm to investigate the smell of burnt marijuana. Cross testified Fortney

said "'This is why I don't like housing. I'm not fucking with y'all. When I

come to y'all events, I'm just going to sit on the side.'" After the security guard

told Fortney to "watch his language," Fortney responded by saying "'I don’t

give a fuck. I got freedom of speech. I can say what I want.'"

After Fortney told Cross that "'[s]ome of the stuff y'all do is dumb as

hell. That's why when I come to an incident, I don't even be fucking with

y'all,'" she concluded the conversation and left the building. Cross testified

she didn't remember her "exact words but it was kind of like this is going

nowhere. I'm just going to, you know, end it here and call it a day."

A-3576-19 7 The following Monday, Cross reported the incident to the Associate

Dean for Housing and Residence Life. Cross testified she "didn't want to mess

with anyone's job" or "get anyone in trouble" but she "didn’t feel it appropriate

[for a Rutgers police officer] to be challenging a [housing] policy in the middle

of, like, a duty call" in the presence of undergraduate RAs. That, "coupled

with some of the language and being in, like, a public space," led her to

conclude she should share the incident with her supervisors. The Dean

directed Cross to document the incident, and she personally walked Cross's

report over to Chief Lattimore, resulting in the Department's investigation into

the altercation. Cross testified she was interviewed during the investigation

and provided the investigator with the information to which she'd testified.

Fortney didn't dispute Cross's description of the incident, other than to

deny he used a homophobic slur to describe the former Area Director in the

burnt marijuana incident from two years before. Fortney maintained he'd only

referred to the Director as "a F'er" for "inserting his non-police abilities into

official police business." Fortney also acknowledged his use of "several F

bombs" during his conversation with Cross was inappropriate and inconsistent

with his responsibilities as a Rutgers police officer. He maintained, however,

that he was "passionate and frustrated" about Cross, whom he knew, enforcing

A-3576-19 8 a housing policy that would put a student out of the dorm in the early hours of

the morning. He testified he couldn't understand "how an adult [could] kick a

young child out at that stage of the night."

Fortney reiterated on cross-examination that his priority that night was

to clarify the housing policy and "protecting a young lady." After Fortney

confirmed he was in uniform when speaking to Cross, and armed with a semi-

automatic weapon with his police cruiser parked outside at the curb, counsel

asked why instead of venting to Cross about University housing policy, he just

didn't escort the young woman "to a place of safety?" Fortney replied that "it

happened so fast, . . . the next thing you know she was out the building. And

then by the time I thought of that, the . . . host that escorted her out of the

building came back and says that she's safe."

Following an internal investigation in which Fortney was permitted to

read Cross's complaint, although her name was redacted, and in which he

produced for the investigator an email he had solicited from the commuter

student "about [her] disdain of being kicked out of housing . . . that night" after

he had "bumped into the young lady" on campus, he was served with a

Preliminary Notice of Disciplinary Action advising the Department intended to

terminate his employment for the conduct he admitted occurred in his

A-3576-19 9 exchange with Cross. The charge alleging the homophobic slur was not

sustained.

At the pre-disciplinary meeting that followed, Fortney's counsel offered

a written statement contesting the charges and asked to see the evidence

gathered in the internal investigation, which the Department had never

previously provided to officers at pre-disciplinary meetings, notwithstanding a

disciplinary process directive providing that "[t]he parties shall have the

opportunity to review the evidence supporting the charges and make

statements or provide additional facts which may impact the considered

action(s)."1 The meeting was adjourned to allow the Department to consider

the request, and Fortney's counsel was subsequently advised to direct his

request to the University's Office of Labor Relations, which never responded.

Following the rescheduled meeting at which Fortney made no statement in his

own behalf, the Department issued its Final Notice of Disciplinary Action

terminating Fortney's employment effective April 3, 2014.

1 Deputy Chief Rein testified at trial that the Directive was revised after Fortney's termination to clarify that officers are provided "the opportunity to review the statements of fact supporting the charges," not the evidence the Department had amassed. A-3576-19 10 Fortney's union, Fraternal Order of Police — Primary Unit, Lodge 62, is

the exclusive collective negotiations agent for the University's police officers,

and it and Rutgers were parties to a collective-negotiations agreement covering

the period of July 1, 2006, through June 30, 2009, the agreement still in effect

when Fortney was terminated following his altercation with Cross. The CNA

provided in Article 5 that "[n]o officer shall be discharged, suspended or

disciplined except for just cause," and "[i]n the case of any disciplinary action,

the sole right and remedy under this Agreement shall be to file a grievance

through and in accordance with the grievance procedure."

Article 7 of the CNA defined a grievance "as any difference or dispute

concerning the interpretation, application, or claimed violation of any

provision of this Agreement, or of any Rutgers policy or any administrative

decision relating to wages, hours or other terms or conditions of employment

of the officers as defined herein." After unsuccessfully grieving Fortney's

termination through the first three steps of the grievance procedure provided in

the CNA, the Union proceeded to step 4, submitting the grievance to binding

arbitration on April 15, 2014.

On August 27, 2014, the Union requested that PERC appoint a panel of

arbitrators. PERC promptly did so. After the Union forwarded its selection

A-3576-19 11 from the panel to PERC, Rutgers advised on September 3 that it intended to

file a scope of negotiations petition to restrain arbitration of the grievance on

the ground that Fortney's termination was not arbitrable in accordance with

State v. State Troopers Fraternal Association, 134 N.J. 393, 407 (1993)

(holding major discipline of a police officer was a managerial prerogative not

mandatorily negotiable as a term and condition of employment and thus not

cognizable as a grievance subject to binding arbitration). On September 4, the

Union requested PERC stay the Fortney matter pending the Union's appeal of

PERC's decision in another case involving major discipline of a different

Rutgers officer, Edward Ruff.

In Ruff's case, PERC had granted Rutgers' scope petition, ruling the

merits of Ruff's eight-day suspension was not arbitrable, even after the

amendment of N.J.S.A. 34A:13-5.3 in 2003.2 The Commission found the

language of the amendment plainly applied only "to unionized employees of

the State of New Jersey," and that State Troopers continued to preclude

binding arbitration of the merits of "major disciplinary disputes involving

2 L. 2003, c. 119, § 2 amended N.J.S.A. 34:13A-5.3 to permit binding arbitration of disputes involving major discipline of unionized employees of the State of New Jersey, with the exception of the State Police, pursuant to the terms of any collectively negotiated agreement. A-3576-19 12 police officers," including those employed by Rutgers. PERC further ruled

that the only procedural argument advanced in the grievance contested

Rutgers' decision to charge Ruff "with major rather than minor discipline."

Finding Rutgers had "a managerial prerogative to impose discipline in the first

instance," PERC "restrain[ed] arbitration over the [Union's] challenge to

Rutgers' right to bring major disciplinary charges" against Ruff.3

3 We subsequently affirmed PERC's decision. State Univ. v. FOP Lodge 62 (In re Rutgers), No. A-0455-14 (App. Div. Sept. 8, 2016) (slip op. at 1). Thereafter, Ruff filed a three-count complaint in the Law Division, alleging the University's disciplinary procedures violated his due process rights under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, and the New Jersey Constitution; that the University had violated the Law Enforcement Officers' Protection Act, N.J.S.A. 40A:14-181, and the Attorney General Guidelines on Internal Affairs; challenging its "arbitrary, capricious and patently unreasonable conduct in the disciplinary process and the imposition of discipline, including violation of this State's policy of progressive discipline" and seeking compensatory and punitive damages, as well as attorney's fees. Ruff v. Rutgers, A-2549-16 (App. Div. Jun. 20, 2019) (slip op. at 5-6). The Law Division dismissed the complaint and denied Ruff's motion to amend to assert a breach of contract claim based on violations of the CNA, finding it expressly limited recourse against discipline to the grievance process, and that neither the Officers' Protection Act nor the Attorney General Guidelines on Internal Affairs were applicable. Id. at 10-13.

We affirmed on grounds of mootness, finding "[a]ll of the relief Ruff seeks stems from Rutgers' refusal to participate in step four of the CBA grievance procedure — a decision we already affirmed" and from which no appeal was taken. Ruff v. Rutgers, A-2549-16 (App. Div. Dec. 12, 2018) (slip op. at 4).

A-3576-19 13 In her request to PERC to stay arbitration in this matter, counsel for

Fortney, who also represented Ruff, acknowledged that the reasoning in

PERC's decision in Ruff would apply in Fortney's case. She explained to

PERC that "the filing of the request for arbitration on Officer Fortney's behalf

was intended to preserve Officer Fortney's right to appeal in the event the

PERC ruling" restraining arbitration in Ruff's case was overturned. PERC

granted Fortney's request to stay arbitration pending Ruff's appeal.

In the meantime, however, on May 16, 2014, Fortney had filed a verified

complaint in lieu of prerogative writs "for an order to show cause, summary

action and demand for jury trial" in the Law Division alleging that by

terminating his employment without having provided him "an opportunity to

review all evidence in support of the charges and without a fair trial in a fair

tribunal," Rutgers and the individual defendants had deprived him "of those

The Supreme Court granted Ruff's petition for certification and summarily remanded the case to us for decision on the merits. Ruff v. Rutgers, the State Univ. of N.J., 237 N.J. 174 (2019). We found the trial court did not err in concluding the CNA "expressly limits recourse against disciplinary action to the grievance process," and thus an amendment to assert a claim for breach of the CNA "would have been an exercise in futility." Id. at 10. We also agreed with the trial court that neither the Officers' Protection Act nor the Attorney General Guidelines on Internal Affairs applied and that Ruff's opportunity to challenge the discipline in a prerogative writs action was time-barred, thus, affirming on the merits. Id. at 10-16. The Supreme Court denied Ruff's petition for certification. Ruff v. Rutgers, 239 N.J. 491 (2019). A-3576-19 14 rights secured by the New Jersey Civil Rights Act, the New Jersey

Constitution, and the Fourteenth Amendment of the United States

Constitution."

Rutgers removed the complaint to the United States District Court on

federal question grounds, 28 U.S.C. § 1331. Two of the individual defendants

subsequently moved to dismiss the complaint on the basis of qualified

immunity, arguing Fortney lacked a protectible property interest in his

employment because the provision in Article 5 of the CNA, that no officer

shall be discharged without just cause, was unenforceable. Judge Arleo denied

the motion in January 2016, finding Fortney had sufficiently pleaded the

individual defendants had violated his constitutional right to due process. See

Richardson v. Felix, 856 F.2d 505, 507 (3d Cir. 1988) ("One who has been

dismissed from public employment must make two showings to establish that

the dismissal violated due process: (1) that the dismissal deprived him of a

property or liberty interest, and (2) that the employer did not afford him

adequate procedural protections in connection with the action.").

The judge found the law was well established that a contract, like the

CNA, can provide a public employee with an interest in continued employment

protected by the due process clause of the Fourteenth Amendment. See Board

A-3576-19 15 of Regents v. Roth, 408 U.S. 564, 577 (1972). She found the CNA's "just

cause" provision created such a property right and that there was "no support"

for defendants' argument that New Jersey law "has long rendered the 'just

cause' language in the CBA unenforceable in matters involving major

discipline imposed against police officers." Judge Arleo acknowledged that

"several decisions" by PERC "have held that the merits of major discipline

imposed against officers are not subject to arbitration," but found "none of the

PERC decisions or state court cases cited by defendants have held that the 'just

cause' language in the [CNA] is unenforceable."

Following Fortney's voluntarily dismissal of his federal due process

claim, this matter was remanded to the Law Division, and he filed an amended

complaint alleging six causes of action arising out of his termination: (1)

violation of the New Jersey Civil Rights Act and his right to procedural due

process under the New Jersey Constitution; (2) violation of the Law

Enforcement Officers Protection Act, N.J.S.A. 40A:14-181, and the Attorney

General Guidelines on Internal Affairs; (3) violation of the New Jersey

Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14; (4) violation

of public policy and common law retaliation; (5) arbitrary, capricious and

A-3576-19 16 unreasonable conduct in the disciplinary process; and (6) racial discrimination

in violation of the LAD.

Following discovery, Fortney withdrew his CEPA claim. In March

2019, the court granted Rutgers' motion for summary judgment on all but

Fortney's claims under the Civil Rights Act, the New Jersey Constitution, and

the LAD. The court determined Judge Arleo's decision that Fortney had

demonstrated a property interest in his employment to be the law of the case

and that Fortney had demonstrated a material issue of fact on his LAD claim.

On the parties' in limine motions in February 2020, immediately before

trial, the court granted Rutgers' motion to bifurcate the trial on liability and

punitive damages and granted its motion to dismiss Fortney's Civil Rights Act

cause of action because plaintiff had not asserted an equal protection or

substantive due process claim that could be pursued under the statute. The

court again denied Rutgers' motion to dismiss plaintiff's procedural due

process claim.

Relying on our opinion in Plemmons v. Blue Chip Ins. Servs., Inc., 387

N.J. Super. 551, 566 (App. Div. 2006), the court found that in order to

establish a procedural due process violation, Fortney needed to show that

Rutgers "deprived him of a protected property interest and that the local and

A-3576-19 17 state procedures for challenging the deprivation were inadequate." It further

found that whether the provided procedures were adequate was a question of

law for the court to decide, citing Harris v. City of Philadelphia, 47 F.3d 1333,

1338 (3d Cir. 1995).

The court ruled, based on law of the case, that Fortney had established a

property interest in continued employment protected under the due process

guarantee of our State Constitution. See Greenberg v. Kimmelman, 99 N.J.

552, 568 (1985) (noting that although the phrase "due process" does not appear

in our Constitution, article I, paragraph 1 safeguards "values like those

encompassed by the principle[ ] of due process").

It also had no hesitation in finding the police disciplinary procedures in

the Department's written directives, the preliminary and final disciplinary

notices and the grievance procedure in the CNA were "constitutionally

sufficient" under the three-factor test of Mathews v. Eldridge, 424 U.S. 319,

334 (1976). See In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J.

452, 467 (2006) (cataloging the Mathews factors our courts often employ to

decide what process is due, as the private interest affected by the official

action; "the risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or substitute

A-3576-19 18 procedural safeguards"; and "the Government's interest, including the function

involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail") (quoting Mathews, 424 U.S.

at 335).

Although satisfied those procedural safeguards were sufficient to protect

Fortney's due process rights, the court held "the question of whether or not

[Rutgers] violated the adequate procedures in place should be decided by a

jury." See Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 682

(3d Cir. 1991) (noting "a court, not a jury, should decide whether the licensing

scheme satisfied procedural due process," leaving for the jury the question of

"whether the City violated the prescribed procedure in denying the licenses "),

abrogated on other grounds by United Artists Theatre Cir., Inc. v. Twp. of

Warrington, PA, 316 F.3d 392 (3d Cir. 2003).

The trial consisted of several witnesses, including Fortney, Cross, the

security guard and both RAs who testified to the altercation giving rise to

Fortney's termination, as well as the Dean who reported the incident to Chief

Lattimore, and those officers in the chain of command involved with Fortney's

termination: Captain Michael Rein, who assisted in finalizing the preliminary

and final notices of disciplinary action; Chief of Police for the Newark

A-3576-19 19 Command Carmelo Huertas, who succeeded Chief Lattimore and made the

decision to terminate Fortney's employment; Kenneth Cop, Director of Public

Safety for the University and Chief of Rutgers University Police, who

approved the decision; and James Kohl, Vice President for Administration and

Public Safety at Rutgers, whose portfolio included the Rutgers Police

Department.

As to the LAD claim, Fortney did not present any evidence that some

similarly situated white officer with a comparable disciplinary record had been

treated more favorably than he had been treated. He had no direct evidence of

racial discrimination and no comparator or other evidence on which to base a

finding of pretext. See A.D.P. v. ExxonMobil Rsch. & Eng'g Co., 428 N.J.

Super. 518, 531-35 (App. Div. 2012) (explaining a disparate treatment case

may be proved by direct evidence of discriminatory animus under Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), or circumstantial evidence using

the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973)). Fortney never even testified he believed race played a role

in his termination. His theory instead centered on the departure of two senior

African American officers in a reorganization of the entire Department near

A-3576-19 20 the time of his termination, which he claimed was emblematic of a racist

culture in the Newark command that led in some unexplained way to his firing.

Specifically, following the merger between Rutgers and the University

of Medicine and Dentistry of New Jersey in 2013, there were two police chiefs

in Newark, Chief Lattimore at Rutgers and Chief Huertas, Director of Public

Safety and Chief of Police at UMDNJ, as well as Chief Cop in New Brunswick

and Chief Guy Still in Camden. In February 2014, while the internal

investigation of Fortney was still underway, Vice President Kohl, promoted

Chief Cop to a new position, Executive Director of Police Services,

supervising the chiefs in New Brunswick, Newark and Camden. Cop made

Huertas the Chief of the Newark command, now including both the Rutgers

and UMDNJ campuses, and laterally moved Chief Lattimore to Chief of the

New Brunswick command. Cop testified he chose Huertas over Lattimore to

lead the Newark command because of Huertas' experience in working with

University Hospital, "by far our most significant generator of work and

response in the Newark command." Cop also testified he believed that by

moving Chief Lattimore to New Brunswick, he would have benefitted from

Chief Lattimore's knowledge of the Newark command, which Cop had been

newly assigned to oversee in New Brunswick where Cop kept his office.

A-3576-19 21 That plan did not work out, however, because Lattimore, who didn't

want to go to New Brunswick in the first place, chafed at having Cop over his

shoulder as Lattimore settled into his role as Chief in New Brunswick. The

two men had an argument about their respective roles in the first weeks of

Lattimore's tenure. Cop charged Lattimore with insubordination and Lattimore

resigned before the charges were finalized.

Lattimore, who had suspended Fortney for a total of 420 hours and given

him his last chance warning, was Black, as were both internal affairs officers

who investigated the various charges against Fortney, including the one that

led to his termination. Lattimore testified at deposition that he'd almost fired

Fortney for the falsification charge, and that there was no discrimination in the

discipline of minorities while he served in the Newark command. Cop

testified he approved Huertas' recommendation to terminate Fortney because

he had never "seen a disciplinary history that extensive for someone who had

been with the Department that short a period of time," and he noted other

officers had been terminated for falsification of police reports without more.

Fortney also charged that Cop had precipitated the retirement of Chief

Still, the other Black chief at Rutgers, who had served in Camden for forty

years, twenty as Chief, by reassigning him to New Brunswick. Cop

A-3576-19 22 acknowledged he had temporarily assigned Still to New Brunswick two-and-a-

half-years after Fortney's termination, although Still never reported there. Still

testified at deposition that Cop had asked him in 2016 to come to New

Brunswick to assist him in running the New Brunswick command and

reviewing various issues across all three commands. As Still had already

decided to retire some months before, he testified he elected to accelerate his

retirement date instead of reporting to New Brunswick. Still did not suggest

that Cop pressured him into retiring or that race had anything to do with the

decision. Lattimore and Still had both died by the time of trial; portions of

their depositions were read into the record.

As already noted, the court directed a verdict in favor of Huertas, Rein,

Cop and Kohl, finding no reasonable juror could conclude on the evidence

presented that those individual defendants "provided substantial assistance" to

Rutgers in racially discriminating against Fortney so as to subject them to

"aiding and abetting" liability under N.J.S.A. 10:5-12(e). See Cicchetti v.

Morris Cnty. Sheriff's Off., 194 N.J. 563, 595 (2008) (cautioning against

confusing "the significance of a supervisor's act as a basis for an employer's

liability with the significance of those same acts for purposes of the

supervisor's individual liability"). The court also dismissed the punitive

A-3576-19 23 damages claim finding "[t]he facts as presented . . . make it clear that no

rational, reasonable juror could find by clear and convincing evidence that

[Rutgers'] conduct was malicious." See N.J.S.A. 2A:15-5.12(a); Quinlan v.

Curtiss-Wright Corp., 204 N.J. 239, 274 (2010) (noting the necessity of

"sufficient evidence of especially egregious conduct" presented by the plaintiff

"to get to the jury on the issue" of punitive damages).

The jury returned a no cause verdict on Fortney's LAD claim but found

he had established by a preponderance of the evidence that the University

provided him with constitutionally deficient process and that it had not

demonstrated that Fortney would have been terminated even had the

University afforded him constitutionally sufficient process, awarding him

$490,000 in backpay and emotional distress damages.

Although a jury verdict is ordinarily entitled to considerable deference,

Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011), the

issue on Rutgers' appeal is whether Fortney stated a claim for denial of due

process under our State Constitution cognizable in the Law Division, a

question of law we review de novo. See In re DiGuglielmo, 252 N.J. 350, 359

(2022). The answer to that question is unequivocally no.

A-3576-19 24 Although the issue is actually a very straightforward one, the parties'

arguments have needlessly complicated the question and obscured the analysis.

Rutgers has insisted on asserting an extreme position, without case support,

that Fortney has no property interest in his continued employment,

notwithstanding the "just cause" provision in the CNA, because he's had no

forum in which he can enforce that right after State Troopers. 134 N.J. at 407

(holding as major discipline of a police officer is a managerial prerogative not

mandatorily negotiable as a term and condition of employment, it is not

cognizable as a grievance subject to binding arbitration). Whatever salience

that argument might have had has been completely eroded by the Court's

decision — affirming PERC's long-standing position — that police officers at

public colleges and universities may challenge a termination in special

disciplinary arbitration pursuant to N.J.S.A. 40A:14-209 and -210.

DiGuglielmo, 252 N.J. at 354.

PERC has held that campus police officers could challenge their

terminations in special disciplinary arbitration since passage of the act creating

it in 2009, L. 2009, c. 16, §§ 1-16. DiGuglielmo, 252 N.J. at 367 ("Our

holding is consistent with PERC's interpretation of special disciplinary

arbitration eligibility and the manner in which PERC has administered this

A-3576-19 25 form of arbitration since the enactment of the 2009 amendments."); In re NJIT,

P.E.R.C. No. 2010-48, 35 N.J.P.E.R. ¶ 158, 2009 N.J. PERC LEXIS 258

(2009). Thus, notwithstanding that Fortney did not choose to pursue special

disciplinary arbitration, there was an arbitral forum available to him where he

could seek to enforce the just cause provision of the CNA, and thus no support

for Rutgers' claim that that the just cause provision that provided Fortney a

protected property interest in continued employment is unenforceable.

Fortney, for his part, did not advise the several judges that have

considered whether he could bring his due process claim in court that PERC

has unequivocally held for nearly thirty years that although "the merits of [an]

officer's termination may not be submitted to 'traditional' binding grievance

arbitration," id. at 5, "claims asserting that a disciplined police officer was

denied procedural rights," like the ones he asserts here, are subject to binding

arbitration in accordance with the parties' CNA, In re Rutgers, The State Univ.

and FOP, P.E.R.C. No. 96-22, 21 N.J.P.E.R. ¶ 356, 1995 N.J. PERC LEXIS

248, at *4-5 (1995). See also In re Rutgers and FOP Lodge 62, P.E.R.C. No.

2017-17, 43 N.J.P.E.R. ¶ 35, 2016 N.J. PERC LEXIS 84, at *4-5 (2016)

(agreeing with the Union, based on the same CNA as in this case, "that even if

Rutgers' managerial prerogative to discipline the grievant is not arbitrable,

A-3576-19 26 binding arbitration is permitted over the way the disciplinary proceedings were

conducted"), aff'd, Rutgers & Fraternal Ord. of Police, Lodge 62, No. A-0990-

16 (App. Div. July 27, 2018) (slip op. at 1) (agreeing with PERC "that only the

procedural aspects of the dispute were arbitrable, that is, the claims relating to

notice, an opportunity to be heard and the University's adherence to

contractual investigatory and disciplinary policies and procedures ").

Indeed, the Union made the same argument to PERC in Ruff, the case on

which Fortney and the Union based their request to PERC to stay binding

arbitration in this case, and which also involved the same CNA, asserting there

"that the alleged violations of disciplinary procedures in the grievance are

mandatorily negotiable." In re Rutgers University, P.E.R.C. NO. 2015-8, 41

NJPER 101 ¶ 35, 2014 NJ PERC LEXIS 83, at *7 (2014). The only reason

PERC restrained arbitration entirely in Ruff was because "the procedural

arguments made in the grievance" contested only Rutgers' "charging the

grievant with major rather than minor discipline" in the first instance, a

decision PERC ruled was within Rutgers' managerial prerogative. Id. at *12.

We agreed PERC properly restrained arbitration entirely because the decision

to charge an officer with major versus minor discipline is a managerial

prerogative of the employer not an arbitrable dispute over disciplinary

A-3576-19 27 procedure. State Univ. v. FOP Lodge 62 (In re Rutgers), No. A-0455-14 (App.

Div. Sept. 8, 2016) (slip op. at 1-2).4

As the United States Supreme Court has many times explained,

"[p]roperty interests are not created by the Constitution." Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 538 (1985). "Rather they are created and

their dimensions are defined by existing rules or understandings that stem from

an independent source such as state law — rules or understandings that secure

certain benefits and that support claims of entitlement to those benefits." Bd.

of Regents v. Roth, 408 U.S. 564, 577 (1972). "The Fourteenth Amendment's

4 We cite our prior unpublished opinions involving the same parties litigating the same issue not for their precedential value, for they have none, but to note Fortney's failure to advise the federal court on Rutgers' motion to dismiss, or the Law Division on summary judgment or the in limine motions before trial of our having affirmed, on more than one occasion and in reviewing the same CNA, PERC's long-standing position that the procedural claims he filed in the Law Division were subject to binding arbitration under PERC's auspices. Because the case history is relevant to the issue before us, Rule 1:36-3's prohibition against the citation of unpublished opinions is not violated. See Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 560 (2015). We further note that although our prior holdings are not precedential, they are binding on Rutgers and the Union, the entity who petitioned PERC to stay binding arbitration in this case. See Eherenstorfer v. Div. of Pub. Welfare, Dep't of Hum. Servs. of State of N.J., 196 N.J. Super. 405, 412 (App. Div. 1984) ("A party does not have the right to avoid a legal determination made by this court merely because a decision is unpublished.").

A-3576-19 28 procedural protection of property is a safeguard of the security of interests that

a person has already acquired in specific benefits," id. at 576; here Fortney's

interest in continued employment created by the "just cause" provision in

Article 5 of the CNA that "[n]o officer shall be discharged, suspended or

disciplined except for just cause." Article 1, paragraph 1 of our own

Constitution operates the same way. Doe v. Poritz, 142 N.J. 1, 99 (1995).

As our Supreme Court has many times explained, identifying the

protected property right interfered with is only the first step in the two-step

process of examining a procedural due process claim; the second step requires

an assessment of "whether the procedures attendant upon that deprivation are

constitutionally sufficient." Ibid. "To assert a claim for a deprivation of

property without procedural due process, 'the claimant must either avail

himself of the remedies provided by state law or prove that the available

remedies are inadequate.'" Plemmons, 387 N.J. Super. at 566 (quoting Florida

Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627,

643 (1999)).

The reasoning is straightforward; "[t]he constitutional violation . . . is

not complete when the deprivation occurs; it is not complete unless and until

the State fails to provide due process." Zinermon v. Burch, 494 U.S. 113, 126

A-3576-19 29 (1990). Thus, the inquiry into whether a due process violation occurred

includes an examination of "the procedural safeguards built into the statutory

or administrative procedure of effecting the deprivation, and any remedies for

erroneous deprivations provided by statute or tort law." Ibid. "A state cannot

be held to have violated due process requirements when it has made procedural

protections available and the plaintiff has simply refused to avail himself of

them." Plemmons, 387 N.J. Super. at 567 (quoting Alvin v. Suzuki, 227 F.3d

107, 116 (3d Cir. 2000)).

The trial court found the "procedures in place, warnings of the . . .

consequences for bad behavior, notice of termination and the hearings

provided" satisfied the three-factor balancing test of Mathews for determining

the process due prior to termination. Mathews, 424 U.S. at 335. We do not

disagree with that finding, and Fortney has not appealed from it.

But it's not the whole picture. The Court in Loudermill defined the

Mathews interests in the case of a public employee facing termination as "the

private interests in retaining employment, the governmental interest in the

expeditious removal of unsatisfactory employees and the avoidance of

administrative burdens, and the risk of an erroneous termination." 470 U.S. at

542–43. The Loudermill Court held that "before being fired a public employee

A-3576-19 30 dismissible only for cause" was entitled to a pretermination process — which

"need only include oral or written notice of the charges, an explanation of the

employer's evidence, and an opportunity for the employee to tell his side of the

story" — "to be followed by a more comprehensive posttermination hearing."

Gilbert v. Homar, 520 U.S. 924, 929 (1997). Although the trial court correctly

understood Fortney's claim that he was deprived of the evidence necessary to

defend himself in the pre-determination hearings, it failed to consider whether

there were post-termination remedies provided to Fortney for that alleged due

process violation and whether he had availed himself of them.

Because Fortney's right not to be dismissed without just cause is

contained in the CNA between the Union and Rutgers, it is there we look for

his post-termination remedies in the dispute resolution mechanism the Union

negotiated and the relation of that mechanism to the New Jersey Employer-

Employee Relations Act, N.J.S.A. 34:13A-1 to -39. Article 5 of the CNA not

only provided that "[n]o officer shall be discharged, suspended or disciplined

except for just cause," but also that "[i]n the case of any disciplinary action,

the sole right and remedy under this Agreement shall be to file a grievance

through and in accordance with the grievance procedure." The CNA defined a

grievance in Article 7 "as any difference or dispute concerning the

A-3576-19 31 interpretation, application, or claimed violation of any provision of this

Agreement, or of any Rutgers policy."

There can be no question but that Fortney's claim that he was not

provided the evidence supporting the charges against him in violation of a

Department disciplinary process directive and his due process rights qualified

as "a grievance" under the CNA. The Employer-Employee Relations Act

requires public employers to negotiate grievance procedures by "which their

employees or representatives of employees may appeal the interpretation,

application or violation of policies, agreements, and administrative decisions

affecting them," permits such grievance procedures to "provide for binding

arbitration as a means for resolving disputes" and "mandates the use of the

grievance procedures established by the collective negotiations agreement 'for

any dispute covered by the terms of such agreement.'" Saginario v. Attorney

Gen., 87 N.J. 480, 491 (1981) (quoting N.J.S.A. 34:13A-5.3) (emphasis

added).

Although Fortney and his Union resorted to the grievance procedure —

unsuccessfully grieving Fortney's termination through step 3 of the process and

initiating binding arbitration in step 4 — the Union, through the same counsel

who has represented Fortney throughout this matter, petitioned PERC to stay

A-3576-19 32 binding arbitration while the Union appealed the grant of Rutgers scope

petition in Ruff. Despite our affirmance of PERC's decision in Ruff, the Union

never reactivated its step 4 grievance in this matter, thus never proceeding to

binding arbitration of Fortney's claim that he was denied the evidence

supporting the charges against him in violation of a disciplinary process

directive as required in the CNA.

Fortney's failure to pursue the due process protections provided him in

the CNA bars his due process claims here. See Snitow v. Rutgers Univ., 103

N.J. 116, 124 (1986) (dismissing Superior Court action challenging

University's method for awarding tenure, holding "while the substantive

criteria for determining tenure status are not negotiable in this public -

university setting, the parties may negotiate the procedural process to be

followed in making such a decision," thus making the dispute over the

procedure subject to the negotiated grievance procedure).

The Union and Rutgers bargained for an arbitrator "to be chosen jointly"

from a list of ad hoc arbitrators provided by PERC "from its panel of experts in

public employment dispute settlement" to decide whether Fortney was entitled

to the evidence supporting the charges against him at the pre-termination

A-3576-19 33 hearings and, if so, what should be the remedy, not a jury.5 Fortney had no

right under the CNA, from which all his rights flowed, to bypass that

procedure by filing a Superior Court action. 6 As we held in Plemmons, "[a]

state cannot be held to have violated due process requirements when it has

made procedural protection available and the plaintiff has simply refused to

avail himself of them." 387 N.J. Super. at 567 (quoting Alvin, 227 F.3d at

116). "If there is a process on the books that appears to provide due process,

the plaintiff cannot skip that process and use the . . . courts as a means to get

5 Fortney's counsel argued to the jury in her opening statement that due process required a hearing before "an unbiased, independent hearing officer," and he instead got Chief Huertas and Director of Public Safety Cop, asking the jurors, "Is that fair?" Whether fair or not, it is what the grievance procedure in the CNA negotiated by the Union provides for in the first two steps of a grievance. 6 The rule could not be otherwise in light of New Jersey's strong public policy favoring arbitration to settle labor-management disputes. Cnty. Coll. of Morris Staff Ass'n v. Cnty. Coll. of Morris, 100 N.J. 383, 390 (1985). As the Supreme Court has noted in a different context, a rule that "would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend" it, as it "would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances." Republic Steel Corp. v. Maddox, 379 U.S. 650, 653 (1965). As the Court noted, a grievance procedure that "cannot be made exclusive . . . loses much of its desirability as a method of settlement. A rule creating such a situation 'would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.'" Ibid. (quoting Loc. 174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour Co., 369 U.S. 95, 103 (1962)). A-3576-19 34 back what he wants."7 Alvin, 227 F.3d at 116. See also Dykes v. Se.

Pennsylvania Transp. Auth., 68 F.3d 1564, 1565 (3d Cir. 1995) (holding

"where an adequate grievance/arbitration procedure is in place and is

followed," even when the union elects not to pursue binding arbitration, "a

plaintiff has received the due process to which he is entitled under the

Fourteenth Amendment").

Our Supreme Court applied the same principles in Leang v. Jersey City

Board of Education, barring the procedural due process claims of a teacher

denied reappointment following expiration of her one-year contract based on

7 The Seventh Circuit has explained that "[t]he availability of recourse to a constitutionally sufficient administrative procedure satisfies due process requirements if the complainant merely declines or fails to take advantage of the administrative procedure" has nothing to do with exhaustion of remedies. Dusanek v. Hannon, 677 F.2d 538, 542-43 (7th Cir. 1982). It simply expresses "the logical proposition that a state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them. Because the procedural protections existed, the state cannot be accused of withholding them." Id. at 543. See also Alvin, 227 F.3d at 116 (noting "exhaustion simpliciter is analytically distinct from the requirement that the harm alleged has occurred. Under the jurisprudence, a procedural due process violation cannot have occurred when the governmental actor provides apparently adequate procedural remedies and the plaintiff has not availed himself of those remedies").

A-3576-19 35 her failure to exercise "[t]hose statutory rights [that] are the embodiment of the

process created by the Legislature through which plaintiff could seek to

challenge and to be heard about the Board's non-renewal decision." 198 N.J.

557, 578 (2009). The Court found Leang "did not avail herself of those

statutory rights [to receive a statement of reasons for the Board's decision not

to renew her contract and demand an informal appearance before the Board to

advocate for an offer of reemployment] and therefore failed to take advantage

of the avenues of relief that would have afforded her the due process she now

complains was denied to her." Id. at 578-79. The Court held it would "not

permit" Leang to "expand upon her statutorily-protected right to be heard by

authorizing her to pursue a claim that she was in some way deprived of due

process in the Board's non-renewal decision." Id. at 579.

Because Fortney abandoned binding arbitration under the CNA to

address the alleged procedural flaws in his termination, he is precluded from

pursuing a claim in this action to secure the due process under our State

Constitution binding arbitration under the CNA was designed to afford him.

As Fortney's due process claim was not cognizable in the Superior Court, we

will reverse the judgment entered in his favor and remand for entry of

judgment for Rutgers.

A-3576-19 36 Little need be said about the merits of Fortney's cross appeal. Although

he has argued several errors: two alleged discovery errors; error in the jury

charge on his LAD claim; dismissal of his aiding-and-abetting claim, his

punitive damages claim, and his Civil Rights Act claim; and a host of claimed

evidentiary errors at trial, including the court's unwillingness to allow

testimony about an anonymous racial slur written on the wall of a bathroom

stall, none has any merit.

Specifically, we find no error in the court's denial of Fortney's request

for the internal affairs files for Public Safety Director Cop and Deputy Chief

Rein following its in camera review of those files. The court denied the

request in a six-page statement of reasons. In his brief on appeal, Fortney

asserts those files were relevant to Rutgers' affirmative defense of maintaining

an anti-discrimination policy without explaining why, or how, their absence

prejudiced his case. Thus, we need not consider the argument further. See

Nextel of N.Y., Inc. v. Bd. of Adjustment, 361 N.J. Super. 22, 45 (App. Div.

2003) ("Where an issue is based on mere conclusory statements by the brief

writer, we will not consider it.").

The same is true of Fortney's request for comparator evidence, which the

court entertained on more than one occasion. As the judge explained in

A-3576-19 37 denying the motion for the last time, unlike with the files for Cop and Rein,

Fortney never made a threshold showing sufficient to obtain in camera review

of the close to seventy internal affairs files he requested for unidentified

officers across all three campuses against whom a demeanor complaint had

been filed during a two-year period. "Discovery is intended to lead to facts" to

support a legal theory, not to find out if one exists. Camden Cnty. Energy

Recovery Assocs., L.P. v. New Jersey Dep't of Env't Prot., 320 N.J. Super. 59,

64 (App. Div. 1999), aff'd o,b,, 170 N.J. 246 (2001). Fortney has provided us

no basis on which to find the court abused its discretion in denying the

requested discovery. See Cap. Health Sys., Inc. v. Horizon Healthcare Servs.,

Inc., 230 N.J. 73, 79-80 (2017).

Fortney also contends the court erred in charging the jury on his prima

facie case of race discrimination under the LAD. To be sure, the Court has

held that "[g]iven the confusion that often results when the first and second

stages of the McDonnell Douglas test goes to the jury, we recommend that the

court should decide both those issues." Mogull v. CB Com. Real Est. Grp.,

Inc., 162 N.J. 449, 473 (2000). In light of Mogull, the Model Jury Charge

recommends the issue as to whether the plaintiff has made out a prima facie

case of discrimination "should be handled, if necessary, in the context of a

A-3576-19 38 motion for judgment pursuant to R. 4:40-1 at the end of the plaintiff's case, and

should not be an issue for the jury." Model Jury Charges (Civil), 2.21, "The

New Jersey Law Against Discrimination" (approved May 2003). It further

provides, however, "[i]n cases where an element of the prima facie case is in

dispute . . . , the court must charge the jury on such issues based on the

specific facts of the case." Ibid.

Although not having made the Rule 4:40 motion at the conclusion of

plaintiff's case, Rutgers refused to concede at the charge conference that

Fortney had established his prima facie case. As is evident from our sketch of

the testimony adduced at trial, Fortney's discrimination case was weak. As

already noted, Fortney did not testify his termination was motivated by race or

recount any perceived racism in the Department. Having reviewed the trial

transcripts, we cannot fault the trial court for putting to the jury whether

Fortney "was terminated . . . under circumstances that would give rise to an

inference of discrimination." Ibid. As the charge adequately conveyed the law

to the jury and was not confusing, we are satisfied any error was harmless.

Willner v. Vertical Reality, Inc., 235 N.J. 65, 79 (2018). Fortney was not

entitled to a mixed-motive charge as he presented no direct evidence of

discrimination. See A.D.P., 428 N.J. Super. at 533-35.

A-3576-19 39 Turning to those claims the court dismissed on motion, given the jury's

rejection of plaintiff's LAD claim, which we affirm, there is no basis for

aiding-and-abetting liability against the individual defendants. See Failla v.

City of Passaic, 146 F.3d 149, 159 (3d Cir. 1998). And given our rejection of

plaintiff's due process claim, neither is there a basis for punitive damages, even

had plaintiff established a prima facie case for their imposition, which he did

not. See Dong v. Alape, 361 N.J. Super. 106, 111-12 (App. Div. 2003).

Although Fortney complains about the dismissal of his Civil Rights Act claim,

a review of his third amended complaint makes clear he pleaded only a

procedural due process claim for which the Act provides no relief. See Harz v.

Borough of Spring Lake, 234 N.J. 317, 332 (2018).

Finally, having reviewed all of plaintiff's alleged evidentiary errors,

including his claim that the court erred in admitting the "last chance" letter

Fortney testified Chief Lattimore handed to him when the Chief spared his job

— arguing it was not authenticated — we find no instance in which we can say

the trial judge misapplied his considerable discretion. See Est. of Hanges v.

Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). Plaintiff's

remaining arguments, to the extent we have not addressed them, lack sufficient

merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).

A-3576-19 40 We reverse the judgment for Fortney on his procedural due process

cause of action and remand for entry of judgment for Rutgers on that claim.

We affirm in all other respects.

Affirmed in part, reversed in part, and remanded. We do not retain

jurisdiction.

A-3576-19 41