Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


October 19, 2001


The opinion of the court was delivered by: Joseph E. Irenas, United States District Judge


Presently before the Court is the Motion to Dismiss of Defendants Lee Solomon and the Office of the Camden County Prosecutor. In this § 1983 action, Plaintiff Janet Jordan, an Investigator with the Camden County Prosecutor's Office, claims that she was demoted in violation of the Due Process Clause of the 14th Amendment by Solomon, the Camden County Prosecutor. Jordan contends that this demotion deprived her of her "liberty" to pursue her occupation and her "property" interest in her former position and that she was consequently entitled to notice and a hearing prior to being demoted. Although under New Jersey law county investigators serve "at the pleasure" of the Prosecutor, N.J.S.A 2A:157-10, Plaintiff contends that she had a protectable property interest in her position by virtue of language allegedly contained in the Office's "Standard Operating Procedures" (SOPs) and its Collective Bargaining Agreement (CBA) with the Camden County Superior Officers Association, Plaintiff's union. However, because any promises made by Solomon or the Prosecutor's Office regarding the job security of county investigators are rendered unenforceable by the mandates of New Jersey law and because Plaintiff's demotion did not constitute a deprivation of any cognizable liberty interest protected by the Due Process Clause, Plaintiff's federal constitutional claims will be dismissed. Further, because those claims constitute the entirety of her federal cause of action, the Court will decline to exercise supplemental jurisdiction over the remaining state law claims and will remand the case to the New Jersey Superior Court.


In 1981, Janet Jordan was hired as an Investigator by the Camden County Prosecutor's Office. She served in that capacity until March 1992, when she was promoted to the position of Senior Investigator. On October 19, 1998, Jordan was again promoted, this time to the position of Sergeant II. (Compl. ¶¶ 6-8).
In late November 1999, Plaintiff was summoned to a meeting with Solomon and two other high-ranking office officials. (Compl. ¶ 12). Solomon informed Plaintiff at the meeting that she was being transferred and demoted back to Senior Investigator. (Id.). Plaintiff objected and, pursuant to the provisions of the CBA, filed a grievance contesting her demotion. (Id. at ¶ 16). According to Plaintiff, "without affording [her] the opportunity to a hearing or to be heard", she was told, by memorandum, that Solomon was not inclined to change his decision. (Id.) In January 2000, Plaintiff and her attorney were given an opportunity to meet with Solomon to discuss the charges against her. (Id. at ¶ 18). During those discussions, Solomon apparently agreed to review Plaintiff's case and render a decision. Six months later, Solomon issued his decision, declining to reinstate Plaintiff to her Sergeant's position. (Id. at ¶¶ 18, 19).

Plaintiff filed the instant suit in the Superior Court of New Jersey, Law Division, asserting a number of state law claims in addition to the instant due process claims under 42 U.S.C. § 1983. Defendants removed the case to federal court on January 20, 2001. This Court has jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331, 1367 and 1441.


Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." In considering a Rule 12(b)(6) motion, the court will accept all of the allegations of the complaint as true. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Dismissal of claims under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Although the court must assume as true all facts alleged, "[i]t is not . . . proper to assume that the [plaintiff] can prove any facts that it has not alleged." Associated Gen. Contractors of Calif., Inc., v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Finally, when "[c]onfronted with [a 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Commonwealth of Pennsylvania v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988) (emphasis added).


According to Plaintiff, there have been promulgated in the Office of the Camden County Prosecutor a number of "Standard Operating Procedures" (SOPs) which govern the conduct of employees and the operation of the Office. (Compl. At ¶ 8). When Plaintiff was demoted, she was given a Notice of Disciplinary Proceeding which set forth five alleged violations of these SOPs: failure to perform the duties of her position, insubordination, incompetence, neglect of duty and conduct unbecoming a member of the staff. (Pl. Br. at 3). In addition to setting forth the obligations of employees, the SOPs apparently establish a system of "progressive discipline" and state that "in all disciplinary proceedings the applicable standard of proof shall be a preponderance of the evidence." (Compl. At ¶ 8). Plaintiff appears to contend that these provisions, in conjunction with provisions of the CBA providing for a "three-step" grievance procedure, entitle Prosecutor's Office employees to be disciplined only for cause and to an opportunity for a formal hearing before any such discipline is imposed.*fn1 Defendants respond to Plaintiff's contentions by arguing that any contractual obligations created by the CBA or SOPs are inconsistent with the statutory requirement that county investigators serve "at [the Prosecutor's] pleasure and subject to removal by him", N.J.S.A. 2A:157-10, and are therefore unenforceable.*fn2
It is well-settled that "the requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Roth v. Board of Regents of State Colleges, 408 U.S. 564, 569 (1972); see also, Matthews v. Eldridge, 424 U.S. 319, 332 (1976). Accordingly, before the issue of "what process is due" can be reached, the Court must first find that Plaintiff suffered a deprivation of a cognizable liberty or property interest. See, e.g., Unger v. National Residents Matching Program, 928 F.2d 1392, 1395 (3d Cir. 1991) ("Application of this prohibition requires a familiar two stage analysis . . .") (quoting Robb v. City of Philadelphia, 733 F.3d 286, 292 (3d Cir. 1984)).
"There is generally not a property interest in continued public employment unless a claimant can demonstrate a `legitimate claim of entitlement to it.'" Dungan v. Slater, 252 F.3d 670, 676 (3d Cir. 2001) (quoting Roth, 408 U.S. at 577); see also Latessa v. New Jersey Racing Commission, 113 F.3d 1313, 1318 (3d Cir. 1997) ("To have a property interest in a job or job benefit, an employee must have a legitimate claim of entitlement, not just a unilateral expectation."). Indeed, "the Supreme Court has held that a public employee who has no statutory or contractual entitlement to his job has no property interest. Thus, an employee hired at will . . . may not prevail on a claim that loss of the employment constituted deprivation of property." Battaglia v. Union Cty. Welfare Board, 88 N.J. 48, 56 (1981) (citing Roth). Although it is by no means clear, because the issue is arising on a motion to dismiss, the Court will assume that Plaintiff can show that the CBA and SOPs purported to afford her a "contractual" entitlement to her Sergeant's position.
The issue, then, is whether these contracutal entitlements are enforceable given the constraints placed upon the Prosecutor by statute. As the Supreme Court has noted, "property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Roth, 408 U.S. at 577. Thus, even if the SOPs and CBA did purport to create an entitlement to for-cause discipline, if such entitlements are invalid under state law, no protectable property interest exists. The objective language of the alleged contract and the subjective understandings of individual employees are irrelevant as each employee in the public service is presumed to have accepted his or her position with "full knowledge of the law." See Walsh v. State of New Jersey, 290 N.J. Super. 1, 15 (App. Div. 1996) (Skillman, J., dissenting) (citing Township of Washington, 270 N.J. Super. 84, 91 (App. Div. 1994)).

The New Jersey Supreme Court has held that statutes such as the one at issue in this case "unambiguously create an at-will employment relationship" and that such relationships are "not ipso facto contractual in character . . . but [are] instead controlled by the statutes pursuant to which the public official has been appointed." Golden v. County of Union, 163 N.J. 420, 427, 430 (2000) (citing Walsh, 290 N.J.Super. at 15 (Skillman, J., dissenting)). In Golden, for instance, the Court, in interpreting a statute (N.J.S.A. 2A:158-15) the operative language of which was virtually identical to that involved in this case, determined that "in view of the clear statutory language establishing plaintiff's at-will employment status, it is not necessary for us to address whether a public agency may be bound by an implied contract or whether the manual here represented such a contract. The statute trumps whatever implied contract may have existed between the parties." 163 N.J. 420, 431. Like the statute applicable to Jordan, the law at issue in Golden provided that individuals in Golden's position serve "at the pleasure of" the County Prosecutor. N.J.S.A. 2A:158-15. Indeed, the parties agree that "it is undisputed that [ยง 157-10] does not allow a prosecutor to negotiate limits on his right to hire and discharge investigators." (Pl. Br. at 8). The parties differ, however, as to the effect of the statute on the Prosecutor's ability to establish procedural entitlements relating to employment decisions other than removal. While Defendants argue that the New Jersey Supreme Court's decisions in Golden and Walsh are dispositive, Jordan contends that since "there are no court decisions regarding the negotiability of contractual protections regarding a prosecutor's decision to take disciplinary action against an ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.