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Bonitsis v. New Jersey Institute of Technology

October 29, 2003

T. HOMER BONITSIS, PLAINTIFF-APPELLANT,
v.
NEW JERSEY INSTITUTE OF TECHNOLOGY, ALOK K. CHAKRABARTI, BARBARA TEDESCO, GARY THOMAS, SAUL K. FENSTER, ROBERT AVERY, DAVID L. HAWK, AND IFTEKHAR HASAN, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BER-L-11834-97.

Before Judges Kestin, Axelrad and Winkelstein.

The opinion of the court was delivered by: Winkelstein, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2003

In this public employment law case, plaintiff, an Associate Professor at the New Jersey Institute of Technology (the University), challenges the motion judge's decision to dismiss plaintiff's intentional tort claims -- for tortious interference with his contract of employment and intentional infliction of emotional distress -- against two University deans. The judge dismissed the claims because plaintiff failed to file a notice of claim under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to -12.3. Plaintiff also appeals various evidentiary rulings of the trial judge, as well as the trial judge's dismissal of plaintiff's claims against the University and its president. The jury returned a verdict of no cause of action on plaintiff's remaining claims.

Taking first plaintiff's appeal of the motion judge's dismissal of his intentional tort claims, we conclude that regardless of whether the alleged tortious conduct arose out of a want of due care or an intentional act, when the public employee committed the conduct within the scope of his or her employment, compliance with the notice provisions of the Act was required. Accordingly, we affirm the motion judge's decision to dismiss the intentional tort claims.

Another of plaintiff's claims was that the deans and the University discriminated against him by failing to accommodate his physical disability. In support of that claim, plaintiff offered letters written by his treating physician to prove that plaintiff requested an accommodation for his disability in accordance with the University's policy. The trial court granted defendants'motion to preclude the evidence, finding the letters to be hearsay because the doctor who wrote the letters was not called as a witness. We disagree. Because the letters were not offered for the truth of their content, but to show that plaintiff had requested an accommodation, they were not hearsay and were admissible. Moreover, because proof that plaintiff had requested an accommodation was an essential element in plaintiff's disability accommodation cause of action, preclusion of the letters was harmful error and entitles plaintiff to a new trial on that claim.

Plaintiff's remaining arguments, as well as defendants' cross-appeal of the trial judge's denial of defendants'claim for counsel fees, are either rendered moot by our decision to grant plaintiff a new trial, or are without merit.*fn1

I.

Filed on December 19, 1997, plaintiff's twice amended seven-count complaint alleged that: Alok K. Chakrabarti, Dean of the School of Management, and Barbara Tedesco, Associate Dean of the School of Management, tortiously interfered with plaintiff's employment contract with the University and with plaintiff's prospective economic advantage (count one); the University, Chakrabarti and Tedesco discriminated against plaintiff based on his disability (count two); Gary Thomas, the Provost of Academic Affairs, Saul Fenster, the University President, Robert Avery, General Counsel and Executive Director of Employment Policy and Relations, and the University failed to investigate plaintiff's complaints of discriminatory and retaliatory actions (based on plaintiff's national origin and his medical disability) (count three); Thomas, Fenster, Avery, David L. Hawk, Professor of Architecture, and Iftekhar Hasan, Professor of Finance, aided and abetted Chakrabarti to destroy plaintiff's career (count four); Chakrabarti, Tedesco, Thomas, Fenster, Avery, Hawk and Hasan conspired to destroy plaintiff's career (count five); Chakrabarti intentionally caused plaintiff emotional distress (count six); and the University violated its covenant of good faith because its process for reviewing plaintiff's application was arbitrary and capricious and was contaminated by Chakrabarti's conflict of interest (count seven).

To place these issues in proper context, some extended discussion of the facts is required. Plaintiff began his employment at the University in 1984 as an Assistant Professor. In 1988, he applied for tenure and a promotion to Associate Professor. An application for tenure is first reviewed by the Department Promotion and Tenure Committee (Department Committee), which, if it renders a favorable recommendation, forwards the application to the University Promotion and Tenure Committee (University Committee). That committee then votes on the application and forwards it to the President of the University, who after consulting with the Provost, makes a recommendation to the University Board of Trustees, which decides whether to accept or reject the President's recommendation. Plaintiff's 1988 tenure application was supported by the Department Committee, but rejected by the University Committee.

In the fall of 1989, plaintiff submitted a second application for tenure. Chakrabarti, the chairperson of the Department Committee, supported plaintiff's application, which the committee unanimously approved. The University Committee rejected the application, however, on the grounds that plaintiff lacked sufficient scholarship to hold the position. In response to the rejection, Chakrabarti wrote a memorandum to the University supporting plaintiff's application. Consequently, despite the rejection of plaintiff's application by the University Committee, in June 1990, plaintiff was promoted and given tenure.

Subsequently, plaintiff and Chakrabarti had a falling out concerning plaintiff's decision to terminate his work on a research grant. Plaintiff claimed Chakrabarti became"very cold and hostile" towards him, complaining about the quality of his work.

During the 1990-1991 school year, plaintiff was diagnosed with dermatomyositis, an inflammatory muscle disease characterized by skeletal muscle weakness, rashes, fatigue, blurred vision, persistent fever, and trouble swallowing food. Due to plaintiff's illness, Chakrabarti granted plaintiff's request for medical leave for the 1991 fall semester.

Upon his return to work the following semester, plaintiff wrote to Tedesco requesting accommodations for his illness. He asked for course release time and a research assistant, one period time gaps between his lectures, and that he not be required to teach three-hour lectures at night. Plaintiff asked that his lectures be held in a room with an overhead projector, and he sought a parking space closer to the lecture hall.

Thomas informed plaintiff that the school could not accommodate his requests, but he could use his sick leave if he could not return to work. Plaintiff later reiterated his requests, which Tedesco denied. Tedesco, did, however, permit plaintiff to use an overhead projector from one of the conference rooms.

While teaching during the 1992 spring term, plaintiff was fatigued to the point that by mid-afternoon he found it difficult to do his work. He stopped doing research, but continued teaching. Upon returning to work in September, he was weak, experienced rashes, intense muscle pain and fatigue, and had difficulty swallowing. He acknowledged that the quality of his teaching decreased from his illness. Chakrabarti continually reminded plaintiff that his work was not up to par and he should take sick leave.

Chakrabarti subsequently informed plaintiff that he would be required to teach four courses rather than three. When plaintiff objected, Chakrabarti told him to obtain a medical certificate to support his claim that he could not teach four courses. After plaintiff submitted a letter from his treating doctor, Francis J. Collini, M.D., the University assigned plaintiff three courses to teach for the 1993 spring semester.

For the next semester, however, the University assigned plaintiff four classes to teach. As a result, he filed a grievance against Chakrabarti, in which he alleged a continuing pattern of personal and professional harassment. To review his grievance, plaintiff met with the Provost, with whom he discussed his problems with Chakrabarti and his requests for accommodations. Responding to plaintiff, the Provost said the University would attempt to accommodate plaintiff's request for one day between lectures should it become necessary to increase his teaching load.

Plaintiff later provided Avery, the University General Counsel, with a pamphlet describing the symptoms of plaintiff's disease. Avery advised plaintiff to supply a medical certification from his doctor. In response, plaintiff supplied another letter from Dr. Collini. Plaintiff's request for accommodations was not approved for the 1994 fall semester. However, for the following semester, the University gave plaintiff medical release time, and reduced his course load to three hours so he could do research.

In March 1995, after the Provost stated that plaintiff had failed to come forward with evidence to support the grievance against Chakrabarti, plaintiff filed a second grievance, which President Fenster found to be without merit.

Approximately five months after filing his second grievance, plaintiff applied for a promotion to full-time professor. He requested that Chakrabarti, who was on the seven member committee that would review plaintiff's promotion application, recuse himself. Chakrabarti declined to do so. The committee unanimously voted against plaintiff's application. Bruce Kirchoff, a Distinguished Professor employed at the University, and a member of the committee, testified that the review of plaintiff's application was"quite rigorous" and the committee used the same criteria for plaintiff as it did for everyone else. Neither plaintiff's ethnicity nor his disability were discussed.

Later in the year, Avery compiled a list for President Fenster of complaints plaintiff had lodged against various members of the administration, and he outlined the history of plaintiff's grievances against Chakrabarti and the University's responses. As for the reason that plaintiff's request for accommodations was denied, Avery indicated that plaintiff"simply failed to secure the proper medical validation he promised detailing his need for accommodation."

Plaintiff filed a third grievance, regarding the denial of his promotion, in December 1996. Three months later, plaintiff received a letter from Avery which stated, in part, that plaintiff was failing to engage in the essential functions of his position; and he was deficient with regard to student counseling, thesis advisement, sponsored research ...


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