NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2930-16T1
S.B.,
Appellant,
v.
STATE OF NEW JERSEY, NEW JERSEY TRANSIT CORPORATION, NEW JERSEY TRANSIT POLICE DEPARTMENT, and NEW JERSEY TRANSIT POLICE CHIEF CHRISTOPHER TRUCILLO,
Respondents. _________________________________
Argued September 25, 2018 – Decided April 12, 2019
Before Judges Rothstadt and Natali.
On appeal from the New Jersey Transit Police Department, New Jersey Transit Corporation, Agency Number II-2016-024.
Catherine M. Elston argued the cause for appellant (C. Elston & Associates, LLC, attorneys; Catherine M. Elston, of counsel and on the briefs). Michael S. Rubin argued the cause for respondents (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Michael S. Rubin, Deputy Attorney General, on the brief).
PER CURIAM
S.B.1 appeals from the New Jersey Transit Corporation's (NJT) decision
to terminate his employment with NJT's Police Department without a hearing.
Prior to discharging S.B., NJT filed disciplinary charges against him based on
allegations that he made racially and sexually offensive remarks on duty.
Because we conclude S.B. (1) was an at-will, probationary employee under the
collective negotiations agreement (CNA) governing the parties' employment
relationship that permitted NJT to fire him "without cause and for any reason,"
and (2) lacked a property interest in continued public employment, we affirm
NJT's decision to discharge S.B. pursuant to the CNA without affording him a
pre-discharge hearing. But, we remand to NJT for a post-discharge hearing
consistent with S.B.'s liberty interest in clearing his name and removing the
allegations underlying the disciplinary charges from his employee personnel file
because those charges imperil S.B.'s ability to secure future public employment.
1 We refer to the appellant by his initials to protect the confidentiality of these proceedings. A-2930-16T1 2 I.
NJT hired S.B. as a police officer on December 10, 2014. The CNA
governing their employment relationship was negotiated by NJT and the Police
Benevolence Association, S.B.'s former union. Under the terms of the CNA,
S.B. was hired subject to a probationary period of employment that was extended
three times, and which was ultimately set to expire on June 10, 2017. The CNA
provides that NJT police officers serving probationary periods of employment
"may be discharged with or without cause and for any reason without recourse
to the grievance/arbitration provisions" of the CNA.
By letter dated October 27, 2016, NJT Police Deputy Chief Laura Hester
advised S.B. that NJT had received a complaint about actions he allegedly
committed on July 29, 2016. The October 2016 letter also advised S.B. that a
member of the Office of Professional Standards would contact him to schedule
an interview to discuss the allegations. Following that interview, NJT issued
disciplinary charges and specifications against S.B. on or about January 4, 2017,
charging him with conduct unbecoming an officer, discourtesy, and
unsatisfactory performance. The charges alleged S.B. made racially and
sexually offensive remarks that were corroborated by multiple witnesses.
Though the charges maintained S.B. behaved in a similar manner on multiple
A-2930-16T1 3 occasions, NJT identified only the July 29, 2016 incident by date. The charges
also stated that S.B. "admitted to the above allegations during his interview," a
statement S.B. claims is false.
According to the January 4, 2017 charges, S.B. was subject to major
discipline ranging from a six-day suspension to employment termination, and
was required to plead guilty or not guilty. NJT Police Chief Christopher Trucillo
served S.B. with the charges on January 6, 2017.
By letter dated January 27, 2017, S.B. pleaded not guilty to all of the
charges, requested a hearing, and demanded discovery. According to NJT, on
February 3, 2017, Trucillo "elected not to pursue" the disciplinary proceedings
and, instead, terminated S.B.'s employment effective immediately. The
rationale provided in a February 3, 2017 termination letter was that S.B.'s
employment was "at will" and that NJT had the "right to terminate" him "at any
time, in [NJT's] sole discretion, with or without cause" and "for any reason
without recourse to the grievance/arbitration provisions" of the CNA. S.B.
maintains the "charges, and the investigatory documents underlying the charges,
remain in [his] employment record with [NJT] to this day," a contention that
NJT does not directly dispute.
A-2930-16T1 4 In a February 10, 2017 letter, S.B.'s counsel demanded that Hester
immediately reinstate him to his position and that he receive back-pay for the
time elapsed since his termination. The February 10, 2017 letter also advised
that the circumstances of S.B.'s discharge warranted procedural due process
protections. In a March 1, 2017 response, NJT stated that as a probationary
employee, S.B.'s "employment was completely at-will," he "could be discharged
without recourse," and "[h]e was not entitled to the grievance/arbitration
protections of the CNA." This appeal followed.
II.
NJT raises two jurisdictional challenges. First, NJT argues that this case
is merely a contract dispute and the PBA could have pursued other
administrative relief on S.B.'s behalf, so the appeal should be dismissed for
failure to exhaust administrative remedies. This argument is meritless . The
discharge letter NJT sent to S.B. states that he may not invoke any administrative
relief provided for in the CNA, and NJT further advised him that he "could be
discharged without recourse" and that "[h]e was not entitled to the
grievance/arbitration protections of the CNA."
Next, NJT contends its "discharge of S.B. without a hearing was not a
final agency action appealable under [Rule] 2:2-3(a)(2)" because its "decision
A-2930-16T1 5 to discharge S.B. did not follow an adjudicatory proceeding where a record was
developed," which NJT maintains is a prerequisite to final agency actions or
decisions pursuant to Frapaul Construction Co. v. Transportation Dep't of New
Jersey, 175 N.J. Super. 84 (App. Div. 1980). We disagree.
Rule 2:2-3(a)(2) provides that "appeals may be taken to the Appellate
Division as of right . . . to review final decisions or actions of any state
administrative agency or officer . . . ." In Frapaul, the New Jersey Department
of Transportation (DOT) awarded a contract to the petitioner, a construction
company, for construction work after Frapaul, an independent contractor, placed
the winning bid on a procurement contract. Id. at 87-88. After a dispute arose
as to payment due under the contract, Frapaul submitted a claim to DOT
pursuant to the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 to -10.
Frapaul, 175 N.J. Super. at 89. DOT processed the claim through its Claims
Committee, which gathered facts, considered Frapaul's claim, and decided to
deny it, a decision the DOT's Deputy Commissioner approved. Id. at 87-89.
Frapaul appealed and we held:
it [is] clear that the conclusions of the DOT Claims Committee are not final decisions within contemplation of [Rule] 2:2-3(a)(2). The Claims Committee does not provide a judicial type of hearing such as is necessary to adjudicate a construction contract controversy. Its proceedings do not provide for discovery nor do they
A-2930-16T1 6 provide the DOT an opportunity to present its own witnesses or the contractor the right to confront and cross-examine the DOT personnel. The witnesses who are presented to the Committee by the contractor do not testify under oath and, in addition, no evidence is introduced or marked.
[Id. at 91 (citations omitted).]
In stark contrast to the DOT Claims Committee's inability to provide "a
record adequate for appellate review of construction contract claims," ibid., NJT
concedes it could have "elected to hold a disciplinary hearing," but simply chose
not to. Further, the constitutionality of NJT's decision to discharge S.B. without
a hearing, as opposed to a complex construction contract dispute, is capable of
adjudication on this record. Thus, S.B. properly appealed from that final
decision "as of right" under Rule 2:2-3(a)(2).
III.
Turning to the merits of this appeal, S.B. maintains NJT unconstitutionally
deprived him of his interests in property and liberty by charging him with
stigmatic allegations then terminating his employment without a pre-discharge
hearing. In this regard, S.B. argues that N.J.S.A. 27:25-15.1c entitled him to
continued public employment despite his probationary status under the CNA,
and claims NJT's actions in charging him with racially and sexually offensive
conduct affected his liberty interests. According to S.B., NJT unlawfully
A-2930-16T1 7 deprived him "of the right to invoke certain statutory defenses" related to his
discharge by denying him a hearing.
In response, NJT contends the CNA "controls and allows [NJT] to
discharge probationary employees with or without cause and without a
disciplinary hearing." NJT also argues that by initially issuing disciplinary
charges, it did not waive any right to discharge S.B. pursuant to the CNA.
Our review of final agency action is limited, and the agency's decisions
typically will stand "in the absence of a showing that it was arbitrary, capricious
or unreasonable, or that it lacked fair support in the evidence." In re Carter, 191
N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562
(1963)). "[O]n questions of law, such as whether" a public employee "was
deprived of due process," however, "we are not bound by the agency decision
and will review the agency's determination de novo." George v. City of Newark,
384 N.J. Super. 232, 238–39 (App. Div. 2006).
A.
Our Federal and State Constitutions provide procedural protections for
substantive interests in life, liberty, and property. U.S. Const. amend XIV; N.J.
Const. art. 1, § 1. To sustain his claim that he has a protectable property interest
in continued public employment, S.B. must show "more than a unilateral
A-2930-16T1 8 expectation of it. He must, instead, have a legitimate claim of entitlement to it."
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Whether S.B. has a legitimate
claim of entitlement to, and thus a protectable property interest in, continued
public employment depends on whether a statute, rule, contract, or other mutual
understanding "secured his interest in employment" as an officer of NJT's Police
Department. See id. at 577-78; see also Leis v. Flynt, 439 U.S. 438, 442 (1979)
(holding that "[a] claim of entitlement under state law, to be enforceable, must
be derived from statute or legal rule or through a mutually explicit
understanding"); Bishop v. Wood, 426 U.S. 341, 344 (1976) (recognizing "the
sufficiency of the claim of entitlement must be decided by reference to state
law").
In New Jersey, "in the absence of a contrary agreement, an employee is
hired at-will . . . ." Bernard v. IMI Sys., Inc., 131 N.J. 91, 96 (1993). Here, S.B.
does not dispute his probationary status under the CNA, pursuant to which NJT,
"with or without cause and for any reason," could terminate his employment.
Indeed, S.B. does not attribute any significance to that negotiated provision of
the CNA. Rather, S.B. claims the CNA "is irrelevant as it serves only to
preclude [him] from appealing his termination administratively, specifically,
through the grievance procedure which ends in arbitration."
A-2930-16T1 9 S.B.'s at-will status ordinarily would foreclose further inquiry into
whether he had a protectable property interest because "a holding that as a matter
of state law the employee 'held his [or her] position at the will and pleasure of
the [government]' necessarily establishes that he [or she] had no property
interest." Bishop, 426 U.S. at 345 n.8; see also Grexa v. State, Dep't of Human
Servs., 168 N.J. Super. 202, 207 (App. Div. 1978) (acknowledging that "a
temporary employee without fixed term . . . , unprotected by Civil Service or by
any statutory tenure, contractual commitment or collective negotiations" has "no
property interest implicated such as to invoke the due process shield").
But, S.B. argues that he has a "statutory right to continued employment"
pursuant to N.J.S.A. 27:25-15.1c, notwithstanding his status as a probationary
employee under the CNA. The statute provides, in pertinent part:
A person shall not be removed from employment or a position as a police officer of [NJT's Police Department] pursuant to section 2 of P.L.1989, c. 291 (C.27:25-15.1), or suspended, fined, or reduced in rank for a violation of the internal rules and regulations established for the conduct of employees of [NJT's Police Department], unless a complaint charging a violation of those rules and regulations is filed no later than the [forty-fifth] day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. A failure to comply with this section shall require a dismissal of the complaint.
A-2930-16T1 10 [N.J.S.A. 27:25-15.1c.]
There are no reported cases interpreting this statute. S.B. maintains the
statute provides all NJT officers with "a reasonable expectation of continued
employment if the rules and regulations are adhered to," and that "[p]robationary
employees are not exempted from the statute." According to S.B., "[t]he statute
expressly confers the constitutional procedural due process right of notice of
charges before suspension, fine, demotion or removal," and "such notice
inherently includes an opportunity to be heard . . . ; otherwise, the notice
requirement would be superfluous[]." S.B. further contends "[t]he statute
precludes removal or suspension without these constitutional protections," and
that "[t]he statute . . . creates a property right to continued employment by
requiring adherence to the department's rules and regulations, or face suspension
or removal." Finally, S.B. claims the statute is analogous to the statutes held to
create property interests in In re Carberry, 114 N.J. 574 (1989), and Capua v.
City of Plainfield, 643 F. Supp. 1507 (D.N.J. 1986).
Ascribing ordinary meaning to the statute's plain language, In re Young,
202 N.J. 50, 63 (2010), we agree with S.B. that the statute applies to him
regardless of his status as a probationary officer, and is not limited, as NJT
maintains, to "permanent" officers. By its plain terms, N.J.S.A. 27:25 -15.1c
A-2930-16T1 11 applies to any "person" who is employed as a police officer for NJT, which
includes a person serving a probationary term of employment.
To the extent the statute applies to S.B., it only applies to him pursuant to
its terms – if S.B. is discharged for a violation, he must first receive a charging
document. The question remains whether the statute "secured his interest in
employment" as an officer of NJT's Police Department, i.e., whether it created
a protectable property interest. See Roth, 408 U.S. at 577-78.
S.B.'s first argument that the statute creates a property interest by
providing NJT officers with "a reasonable expectation of continued employment
if the rules and regulations are adhered to" overlooks the well-settled law that
"a unilateral expectation" does not create a protectable property interest. See
Roth, 408 U.S. 577; see also Nicoletta v. N. Jersey Dist. Water Supply Comm'n,
77 N.J. 145, 154 (1978) (recognizing "the key concept is 'entitlement,'" when
deciding whether an asserted property interest triggers constitutional
protections).
As for S.B.'s claims that "[t]he statute expressly confers the constitutional
procedural due process right of notice of charges before suspension, fine,
demotion or removal," and that the statute "precludes removal or suspension
without these constitutional protections," the statute's procedural protections
A-2930-16T1 12 apply only when the adverse employment action is "for a violation of the internal
rules and regulations . . . ." N.J.S.A. 27:25-15.1c.2 Further, "[t]he fact that state
law may grant procedural protections to an at-will employee does not transform
[the] interest in continued employment into a property interest protected by the
Due Process Clause." Thomas v. Town of Hammonton, 351 F.3d 108, 113 (3d
Cir. 2003). Indeed,
The point is straightforward: the Due Process Clause provides that certain substantive rights – life, liberty, and property – cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. "Property" cannot be defined by the procedures provided for its deprivation any more than can life or liberty.
[Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).]
2 Although S.B. challenges whether NJT in fact discharged him for a violation of NJT's rules, there is no serious dispute that NJT had the right to discharge S.B. "without cause and for any reason" pursuant to the CNA, and in the February 3, 2017 termination letter, NJT invoked the CNA's at-will provision when discharging him. Indeed, S.B. acknowledges that the "basis of [his] removal" as stated in the termination letter was "not the charges," but was S.B.'s "probationary status." Further, S.B. does not challenge the validity of the CNA. A-2930-16T1 13 Accord Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 764 (2005)
(deciding that "an entitlement to nothing but procedure" is "inadequate . . . [to]
be the basis for a property interest" (citation omitted)).
An examination of the statutes held to create property interests in Carberry
and Capua demonstrates that N.J.S.A. 27:25-15.1c does not entitle S.B. to
continued public employment. The statute interpreted in Carberry provides in
pertinent part:
Except as provided in section 3 of P.L.1983, c.403 (C.39:2-9.3), any member of the Division of State Police who has or shall hereafter serve continuously as such member for a period of five years shall thereafter continue in such membership during good behavior.
[N.J.S.A. 53:1-8.1.]
The difference between the statute in Carberry and N.J.S.A. 27:25-15.1c
is clear. The statute in Carberry expressly confers upon five-year officers the
right to "continue in such membership during good behavior." N.J.S.A. 53 :1-
8.1. Thus, as the Court "recogniz[ed]," N.J.S.A. 53:1-8.1 legitimately entitles
five-year officers to "continued employment" during good behavior. Carberry,
114 N.J. at 583. By contrast, N.J.S.A. 27:25-15.1c only establishes procedures
that must be followed when NJT takes adverse employment action against an
employee for a violation of the internal rules and regulations. Further, N.J.S.A.
A-2930-16T1 14 27:25-15.1c is silent as to removals not "for cause," during an employee's
probationary period pursuant to a negotiated agreement.
In Capua, the court addressed N.J.S.A. 40A:14-19, which provides in
Except as otherwise provided by law no permanent member or officer of the paid or part-paid fire department or force shall be removed from his [or her] office, employment or position for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations . . . , nor shall such member or officer be suspended, removed, fined or reduced in rank . . . except for just cause as herein above provided and then only upon a written complaint, setting forth the charge or charges as against such member or officer. . . . . A failure to substantially comply with said provisions as to the service of the complaint shall require a dismissal of the complaint.
That statute expressly conditions any and all removal of a permanent
officer upon there being "just cause . . . and then only upon" an adequate
complaint being filed. N.J.S.A. 40A:14-19. The language prohibiting removal
"except for just cause" legitimately entitles the permanent fire department
personnel to continued employment unless there is "just cause" to discharge
them. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (declaring
that "[t]he hallmark of property . . . is an individual entitlement grounded in state
law, which cannot be removed except 'for cause'"). The additional language
A-2930-16T1 15 providing that removal can occur only upon a written complaint being filed
establishes the procedure designed to protect that property interest. See Castle
Rock, 545 U.S. at 772 (Souter, J., concurring) (discussing "the distinction
between property protected and the process that protects it").
By contrast, N.J.S.A. 27:25-15.1c does not state that NJT's police officers
may be removed only for a violation of the internal rules and regulations.
Instead, N.J.S.A. 27:25-15.1c establishes procedures that must be followed – the
timely filing of a complaint – when adverse employment action is taken "for a
violation of the internal rules and regulations," without conditioning the removal
of an employee upon there being a rule violation. Accordingly, because the
statute does not legitimately entitle S.B. to continued public employment, he
does not have a protectable property interest sufficient to trigger constitutional
procedural due process protections.
B.
S.B. also asserts that he has a protectable liberty interest that NJT
infringed by charging him with stigmatic allegations without affording him a
hearing to defend himself against the charges. Under federal law, reputational
harm without more is not actionable as a deprivation of liberty. Paul v. Davis,
424 U.S. 693, 701-02 (1976). To establish an affected liberty interest under the
A-2930-16T1 16 Fourteenth Amendment, S.B. must show a "stigma" to his reputation "plus
deprivation of some additional right or interest." See Filgueiras v. Newark Pub.
Schools, 426 N.J. Super. 449, 471-72 (App. Div. 2012) (quoting Hill v. Borough
of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006)). "In the public employment
context, the 'stigma-plus' test has been applied to mean that when an employer
'creates and disseminates a false and defamatory impression about the employee
in connection with his [or her] termination,' it deprives the employee of a
protected liberty interest." Id. at 472 (quoting Hill, 455 F.3d at 236).
Under the New Jersey Constitution, the "analysis differs from that under
the [United States] Constitution only to the extent that we find a protect[able]
interest in reputation without requiring any other tangible loss." Doe v. Poritz,
142 N.J. 1, 104 (1995). Nonetheless, "a public employee who is defamed in the
course of being terminated or constructively discharged satisfies the 'stigma-
plus' test even if, as a matter of state law, [the employee] lacks a property interest
in the job he [or she] lost." Hill, 455 F.3d at 238. There is no serious dispute
that by alleging that he made sexually and racially offensive remarks on duty,
NJT created a defamatory impression of S.B. "in the course of being
terminated," ibid., even if, as NJT maintains, S.B. was discharged only because
he was a probationary employee. S.B. therefore satisfied the "plus" prong, as
A-2930-16T1 17 well as the creation and defamation elements. See Filgueiras, 426 N.J. Super.
at 472. The remaining elements are falsity and dissemination.
With respect to falsity, S.B. maintains the statement in the charges that he
"admitted to the . . . allegations during his interview" is false. We conclude that
this affirmative statement of falsity, coupled with S.B.'s initial plea of not guilty
to the charges, "raise an issue about the substantial accuracy of the report" in his
employment file sufficient to satisfy the falsity prong. Cf. Codd v. Velger, 429
U.S. 624, 628 (1977).
As to the dissemination element, NJT argues that because there is no
statutory "reporting requirement" with respect to the charges, as there was in
Nicoletta, "or other automatic disqualifier to impair his ability to obtain future
public employment," S.B. does not have an affected liberty interest. On the
other hand, S.B. maintains he "will most certainly be foreclosed from any future
law enforcement and/or public position" or "anywhere he may seek future
employment" because his "employment history on file with" NJT currently
"contains . . . charges of serious misconduct that impugns [his] integrity and his
reputation," which he "was never given the ability to defend against."
Ordinarily, there must be "public disclosure by the public employer that
could be said to have impaired [the public employee's] reputation, honor or
A-2930-16T1 18 integrity." Battaglia v. Union Cty. Welfare Bd., 88 N.J. 48, 57 (1981).
However, "[d]issemination to potential employers . . . is the precise conduct that
gives rise to stigmatization," Valmonte v. Bane, 18 F.3d 992, 1000 (2d Cir.
1994), and several courts have held that "the public disclosure requirement has
been satisfied where the stigmatizing charges are placed in the discharged
employee's personnel file and are likely to be disclosed to prospective
employers." See Brandt v. Bd. of Co-op. Educ. Servs., Third Supervisory Dist.,
Suffolk Cty., N.Y., 820 F.2d 41, 45 (2d Cir. 1987) (collecting cases); see also
McGinnis v. D.C., 65 F. Supp. 3d 203, 222 (D.D.C. 2014) (holding that if a
public employee's "personnel file is available to future employers, [he or] she
has stated a reputation-plus claim").
In considering the severity of the stigma that would stain S.B.'s reputation
if a prospective employer reviewed his employment file, the substantial
likelihood that a future government employer may obtain S.B.'s employment
file, and NJT's unilateral "elect[ion] not to pursue" the disciplinary proceedings
to resolution, we conclude S.B. has an affected liberty interest sufficient to
trigger constitutional protections.
A-2930-16T1 19 C.
Having concluded that S.B. has a protected liberty interest, "the question
remains what process is due." See Nicoletta, 77 N.J. at 165 (quoting Morrissey
v. Brewer, 408 U.S. 471, 481 (1972)). Relying substantially on our decision in
Dolan v. City of East Orange, 287 N.J. Super. 136 (App. Div. 1996), S.B.
maintains he is entitled to a pre-discharge hearing, reinstatement of his job, and
back-pay. In addition, S.B. argues that he was "unlawfully deprived of the right
to invoke statutory defenses" against the underlying charges "conferred upon
him via N.J.S.A. 27:25-15.1c and N.J.S.A. 40A:14-181." Further, S.B. claims
he is entitled to discovery "to determine if the department's rules and regulations
pertaining to the internal affairs investigation that was conducted of him were
adhered to or violated."
In Dolan, "a provisional, at-will employee" was terminated from public
employment after he was charged with "conduct unbecoming an employee" and
a "hearing officer recommended that [the employee] be removed" for cause. 287
N.J. Super. at 139. The City accepted the hearing officer's recommendation and
discharged Dolan. Ibid. After the City denied Dolan's request for a rehearing,
he appealed to the Law Division, which granted his motion for summary
judgment on claims that "his state and federal constitutional due process rights,
A-2930-16T1 20 as well as his civil rights under 42 U.S.C. § 1983, had been violated . . . ." Id.
at 140. The City appealed from that decision, and we affirmed "the summary
judgment ordering a new hearing," but "reverse[d] and dismiss[ed] the § 1983
claim because, although Dolan was denied administrative due process as a
matter of fundamental fairness, he did not suffer a constitutional deprivation
which would support such a claim." Ibid.
Our decision recognized that Dolan had an affected liberty interest based
on Civil Service regulations permitting denial of future employment when the
employee "[h]as been removed from the public service for disciplinary reasons
after an opportunity for a hearing," which we concluded entitled Dolan to "a
hearing before removing him from his job for disciplinary reasons even if he is
only a provisional, at-will employee." Id. at 143-44 (emphasis added) (quoting
N.J.A.C. 4A:4-6.1 to -6.2). In that regard, we concluded that "from a
constitutional perspective Dolan had a hearing that passed constitutional muster
in the sense that he had an opportunity to be heard and was heard by the hearing
officer" on the disciplinary charges for which he was terminated. Id. at 144.
But, because the hearing officer based its determination that Dolan should be
discharged for disciplinary reasons exclusively on hearsay, and "no residuum of
legal and competent evidence appear[ed] in the record," we remanded for a new
A-2930-16T1 21 pre-termination hearing on the disciplinary charges, not because "Dolan suffered
a constitutional deprivation," but rather "as a matter of basic fairness and
administrative due process." Id. at 144-45; see id. at 145 (recognizing "[a]
public employee, even a provisional one, is entitled to a hearing that conforms
to principles of 'basic' or 'fundamental fairness,'" to which Dolan's initial hearing
failed to conform) (quoting In re Kallen, 92 N.J. 14, 26 (1983)).
S.B. has not advanced any argument that NJT's employment protocol is
governed by Civil Service regulations. Cf. N.J.S.A. 27:25-15 (explaining NJT
"may employ . . . such . . . officers and employees . . . as the corporation deems
advisable; and may . . . discharge such officers and employees, all without regard
to the provisions of Title 11 of the Revised Statutes," which were the then-
existing Civil Service statutes). Further, in Dolan, "[w]e d[id] not consider the
[government's] rights, if any, to terminate Dolan's employment for reasons other
than those related to the disciplinary removal," because Dolan in fact was
terminated for cause. Dolan, 287 N.J. Super. at 143 n.2. By contrast, here, there
has been no official adjudication that S.B. committed the underlying allegations,
and thus his employment file would not reveal that an independent decision -
maker determined he was in fact terminated for cause. Instead, the charges
against S.B. are unresolved and contain a statement, which S.B. maintains is
A-2930-16T1 22 false, that he admitted to the underlying allegations. That is the nature of the
liberty interest S.B. seeks to vindicate, as opposed to the actual determination
of guilt wholly based on incompetent evidence that occurred in Dolan.
In assessing what process is due to protect S.B.'s liberty interest, case law
suggests any deprivation of liberty must be preceded by a hearing. See, e.g.,
Roth, 408 U.S. at 571 n.7 (discussing "[t]he constitutional requirement of
opportunity for some form of hearing before deprivation of a protected
interest"); Carberry, 114 N.J. at 583-84 (finding the appellant "possessed a
protect[able] interest in his continued employment" that "could be described as
both a property interest" and "a liberty interest," then holding that "[t]hose
interests require the [governmental employer] to proceed with due process
before terminating [the public employee's] employment") (citations omitted).
However, "[t]here are, of course, some situations in which a postdeprivation hearing
will satisfy due process requirements." Loudermill, 470 U.S. at 542 n.7.
There are three competing interests to balance when deciding the process
due a public employee subject to discharge: 1) the employee's interest in
employment; 2) "the governmental interest in the expeditious removal of
unsatisfactory employees and the avoidance of administrative burdens"; and 3)
"the risk of an erroneous termination." Loudermill, 470 U.S. at 542-43 (citing
A-2930-16T1 23 Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). After balancing these interests
in the context of a tenured employee with an affected property interest, the Court
in Loudermill found a "pretermination 'hearing[]'" was necessary. Id. at 545.
In a context more analogous to S.B.'s situation, however, the Court held
that "the hearing required where a nontenured employee has been stigmatized in
the course of a decision to terminate his employment is solely 'to provide the
person an opportunity to clear his [or her] name.'" Codd, 429 U.S. at 627; see
also Nicoletta, 77 N.J. at 168 ("for vindication of his constitutional 'liberty' right,
Sergeant Nicoletta is only entitled, if he wishes it, to a post-termination hearing not
so much for the limited purpose . . . 'to clear any damage to his reputation,' but rather
to attempt to dislodge the specter of possible Civil Service debarment from further
public employment" (quotation omitted)); Williams v. Civil Serv. Comm'n, 66
N.J. 152, 156-57 (1974) (holding a "provisional or temporary employee" was
"entitled to a post-termination evidentiary hearing to clear any damage to his
reputation" when his liberty interest was implicated in his discharge); Patterson
v. City of Utica, 370 F.3d 322, 335 (2d Cir. 2004) (holding "[t]he appropriate remedy
for a stigma-plus claim premised on a plaintiff's termination from at-will government
employment is a post-deprivation name-clearing hearing").
A-2930-16T1 24 In considering the nature of S.B.'s liberty interest in obtaining future
employment free from the stigmatic nature of the charges, NJT's interest in
discharging probationary employees during their probationary periods without
the burdens attendant to permanent employees' terminations, and the risk for
error in NJT's decision-making, we conclude that pre-termination notice, an
opportunity to respond, and a post-discharge hearing offers adequate procedural
safeguards under these circumstances. At the post-discharge hearing, S.B. may
invoke any applicable statutory defenses that he claims warrant dismissal o f the
underlying charges. 3
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
3 S.B. references our decision in O'Rourke v. City of Lambertville, 405 N.J. Super. 8 (App. Div. 2008), in which we held that "when a law enforcement agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the Attorney General's Guidelines," the government's noncompliance with those rules warranted reversal of its decision to discharge the plaintiff. Id. at 23. The plaintiff in O'Rourke "could be removed for, among other things, neglect of duty, insubordination, or willful violation of the department's rules and regulations." Id. at 12. Aside from his purported lack of discovery and the conclusory statement that "public policy would appear to dictate that there be no exemptions for probationary officers," S.B. has not advanced any argument that O'Rourke applies to at-will employees, or that NJT in fact violated the Attorney General's Guidelines. The hearing officer can address these issues in the first instance on remand. A-2930-16T1 25