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Pollowitz v. University of Medicine

July 27, 2007

ROBERT POLLOWITZ, PLAINTIFF-APPELLANT,
v.
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, DAVID SEIDEN, INDIVIDUALLY AND AS ASSOCIATE DEAN OF ADMISSIONS AND STUDENT AFFAIRS, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4801-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 5, 2007

Before Judges Skillman and King.

This is an appeal from the dismissal for failure to state a claim of a complaint asserting claims of violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and of rights protected by the United States and New Jersey Constitutions.

Plaintiff was a medical student at defendant University of Medicine and Dentistry of New Jersey (UMDNJ). His complaint alleges that in 1996 a fellow student accused him of gender discrimination, as a result of which defendant David Seiden, UMDNJ's Associate Dean for Admissions and Student Affairs for the Robert Wood Johnson Medical School (RWJMS), required him to submit to a psychiatric evaluation without first securing the approval required by UMDNJ rules. Plaintiff alleges that Seiden disclosed the fact of this psychiatric examination to persons who were not authorized to receive the information.

Plaintiff then filed an administrative complaint against Seiden with UMDNJ's Office of Affirmative Action, which according to plaintiff's complaint eventually determined Seiden had breached plaintiff's medical confidentiality. Plaintiff alleges that this complaint precipitated a series of retaliatory actions by Seiden, which included preventing him from transferring from RWJMS to another UMDNJ facility, "assigning the plaintiff a failing grade in the anatomy course he taught even though he knew plaintiff had been diagnosed with a serious medical condition and was not matriculated at UMDNJ during that period," and "[p]lacing in plaintiff's permanent academic file a complaint of inappropriate conduct/sexual harassment received from a clinical teaching assistant without first conducting an independent investigation as to the veracity of same and having information that the allegations were not corroborated."

Plaintiff's complaint also alleges that he complained about Seiden's conduct, and that rather than addressing the substance of his complaint, "defendants convened a hearing of the Academic Standing Committee for the purpose of determining whether or not to dismiss the plaintiff from UMDNJ, even though he had never previously been placed on academic probation or warned of any academic deficiency[.]" Plaintiff alleges that this hearing "was convened in direct retaliation for plaintiff's prior complaints of defendants' illegal conduct, including his complaint to UMDNJ's Office of Affirmative Action that he had been discriminated against on the basis of his gender." Following the hearing, the Academic Standing Committee recommended plaintiff's dismissal from RWJMS. This recommendation was forwarded to Dean Harold Paz, who allegedly had final decision-making authority with respect to plaintiff's dismissal from RWJMS. Before Dean Paz acted upon this recommendation, plaintiff tendered his resignation as a student on January 14, 2004, which Dean Paz accepted on or about January 22, 2004. The complaint characterizes this resignation as a "constructive[] terminat[ion]" of plaintiff as a UMDNJ student "because of his opposition to, and complaint about the defendants' discriminatory and derogatory conduct."

Plaintiffs' complaint further alleges that "[d]efendants engaged in a pattern and practice of discrimination against [him], including repeatedly denying him his due process rights, failing to accommodate his disability, and repeatedly retaliating against him for his opposition to and complaints concerning defendants' discriminatory and illegal conduct."

On January 17, 2006, plaintiff filed his five count complaint, which asserts claims under the LAD and the United States and New Jersey Constitutions. The complaint names UMDNJ, David Seiden and various John Does as defendants. The LAD count asserts that "[d]efendants have discriminated against plaintiff based on his gender, his medical condition and based on his complaints of discrimination and retaliation[.]"

Less than a month after filing their answer, defendants filed a motion under Rule 4:6-2(e) to dismiss the complaint for failure to state a claim. The trial court initially denied the motion. However, the court subsequently granted defendants' motion for reconsideration and dismissed plaintiff's complaint for failure to state a claim. In reaching this conclusion, the court stated:

[T]he doctrine of exhaustion of remedies requires that parties pursue available internal proceedings to conclusion before seeking judicial intervention. . . .

Upon reconsideration of the issue, it is apparent that the plaintiff did not pursue the internal proceedings available to him to conclusion before seeking judicial intervention. Taking the allegations of the plaintiff's complaint as true, the plaintiff himself stated that "[t]he Academic Standing Committee's recommendation was not a final determination, and was subject to review and a final decision by Dean Paz (emphasis added)." Thus, by the terms of the plaintiff's complaint, no final decision was rendered by the defendants, and as such plaintiff did not exhaust his remedies.

The plaintiff's "resignation" was the only event noted in plaintiff's complaint which would fall within an applicable statute of limitations. Since that event cannot form the basis of a claim under these circumstances, any other claim which the plaintiff may have had is now time-barred. Plaintiff appeals from ...


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