On appeal from the Superior Court of New Jersey, Law Division, Union County, L-5247-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
Plaintiff John Skoorka is a tenured college professor. Plaintiff filed a complaint against defendants, Kean University (Kean), the State of New Jersey, the Board of Trustees (Board), Dr. William Kempey (Kempey), Dr. Ronald L. Applbaum (Applbaum) and Dr. Frank J. Esposito (Esposito) (collectively referred to as the State), the Kean Federation of Teachers (Union), and the Council of New Jersey State College Locals (State Council) alleging that because he (1) is Jewish, (2) objected to racial discrimination against a former colleague and disclosed or objected to other improper conduct, (3) filed a grievance and an affirmative action (AA) complaint, and (4) filed the present complaint, he was denied promotion to associate professor and subjected to a hostile work environment, contrary to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; the Conscientious Employee's Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and the New Jersey and Federal Constitutions.
Plaintiff appeals from various orders entered by the motion judge granting partial summary judgment to defendants and denying plaintiff's pretrial discovery motions and motion for leave to file an amended complaint. Plaintiff also challenges the trial judge's rulings, at trial and on in limine motions, which plaintiff argues led to his voluntary dismissal of the remaining claims.
We reverse the motion judge's dismissal of plaintiff's religious discrimination claims brought under the LAD and the First Amendment and plaintiff's claim for injunctive relief pursuant to 42 U.S.C. § 1983 asserted against the Board. We also reverse two pretrial discovery orders denying plaintiff's motion to reopen discovery to depose the union representative, Dr. Peter Ogar (Ogar), and denying plaintiff access to personnel files of certain faculty members. In all other respects, we affirm the orders entered May 28, 2004, July 9, 2004, September 24, 2004, March 18, 2005, March 30, 2005, July 6, 2005, and October 17 and 18, 2005.
The salient facts, as gleaned from the record, commenced in 1995 when plaintiff met and interviewed with Kempey, Chairman of the Economics and Finance Department at Kean. Plaintiff was subsequently hired in 1996 as an assistant professor in Kempey's department. Over the next two years, plaintiff received favorable yearly evaluations from Kempey and from his colleagues and students who evaluated him.
In April 1998, Kempey's evaluation was not as positive as it had been in previous years and the student evaluations rated plaintiff at mid-range. In 1999, Kempey once again found plaintiff's teaching deficient. Kempey reported that plaintiff was late for class and exhibited a negative attitude towards students. Plaintiff complained that Kempey's evaluations were false, malicious, and in retaliation for his support of Dr. Peter Jackson (Jackson), an African-American colleague against whom plaintiff claimed Kempey engaged in racial discrimination.
Plaintiff's intervention in the Kempey/Jackson matter first occurred during the 1997-1998 school term. Plaintiff reported to Charles Anderson (Anderson), the Dean of the School of Business and Public Administration,*fn1 that he believed Kempey was engaging in racial discrimination directed toward Jackson, with whom plaintiff shared office space. After doing so, plaintiff alleges that Kempey commenced to engage in retaliatory and discriminatory conduct directed towards him and created a hostile work environment.
During this same time period and continuing into February 1999, plaintiff complained to Anderson, as well as to the University Provost Livingston Alexander (Alexander), Union President Richard Katz (Katz), and Ogar, that Kempey was misappropriating Economics Department funds for his personal use. Skoorka based this claim on the fact that there were no office supplies, copiers, printers, and secretarial support. Plaintiff claims Anderson told him "that he was getting nowhere on those issues."
In either February 1999 or the Fall of 1999, plaintiff and his department colleagues, Dr. Carol Condon (Condon), Dr. YounSuk Kim (Kim), and Dr. Eufronio Carreno (Carreno), had a luncheon discussion during which they discussed, among other topics, exclusion of faculty from hiring decisions, secrecy of the department budget, lack of access to office equipment, supplies and services, and the lack of department meetings. Plaintiff was asked to take notes, and at the conclusion of the meeting, placed copies of the memo he prepared in the mailboxes of those present at the discussion. Carreno, who at the time was due for a post-tenure review, removed the memos from the mailboxes and admonished plaintiff for distributing the notices.
On his first day back for the Fall 1999 semester, plaintiff complained to Katz, Ogar, and Anderson about Kempey's peer review of his retention and tenure package. Ogar agreed that Kempey's peer review should be removed from plaintiff's file. Soon after, Katz told plaintiff that he would not intervene, and Anderson informed plaintiff that the Union was adamant "to thwart any effort to remove Dr. Kempey's peer review."
In a September 1999 memo to his department's Appointment, Retention, Tenure and Promotion (ARTP) Committee and in an October 1999 memo to Anderson, plaintiff protested the inclusion of Kempey's September 2, 1999 peer review in his file. Plaintiff contended that he had the right to choose his evaluators. Plaintiff also objected to the composition of the ARTP Committee and to Kempey's unilateral appointment of a student to sit on the committee.
Plaintiff complained to Katz, who plaintiff contends did nothing, and to Ogar, who, according to plaintiff, attempted to address it, but Katz reportedly told Ogar "to stay out of it." Katz informed plaintiff that "whatever Kempey wants to do he is not going to intervene. It's an internal matter and it's Kempey's prerogative." Katz also told plaintiff that he (Katz) would not "allow Dean Anderson to tell Kempey what to do."
Anderson, aware of the student appointment to the ARTP Committee, consulted Patrick Polito, Dean of Students, who had no answer. Anderson concluded that there was no official policy and "left it at that." Anderson told plaintiff that "he [Anderson] can't win on this with the union." Plaintiff was retained for the upcoming academic year.
On March 13, 2000, plaintiff wrote a memo to Anderson complaining that Kempey falsely accused him of missing class. Plaintiff explained that some students did not know where the class was meeting. Plaintiff also complained that Kempey was harassing him. On April 20, 2000, plaintiff wrote to Anderson and Katz protesting the absence of uniform, written procedures for the ARTP process in his department, as required by the "University Guidelines."
In the Fall of 2000, plaintiff complained to Anderson that Kempey was "targeting" him for several reasons, including religion. Apparently, after the ARTP voted not to recommend plaintiff for retention and tenure, Anderson found Kempey in his office allegedly altering plaintiff's promotion application. Anderson considered Kempey's conduct a "grave matter" and returned plaintiff's file to the ARTP Committee because he no longer had confidence that the evaluation process had been unbiased. Anderson also reported the incident to Katz, Alexander, and Applbaum.
Both Alexander and Applbaum agreed that Kempey violated Kean procedures by accessing plaintiff's file, but no action was taken against Kempey other than a letter of reprimand.
Alexander asked Anderson to work with the Union to rectify the situation and to ensure that it would not happen again. In a written memo to the Union, Anderson asked that a union representative be present during the ARTP's next deliberation on plaintiff's application for tenure.
Plaintiff submitted "a restored version" of his application to the ARTP Committee on October 5, 2000, and on October 10, after excluding the union representative and after Condon, a committee member, "stormed out," the remaining committee members, Kempey, Dr. Henry Saffer (Saffer), and Carreno, did not recommend plaintiff for retention and tenure. Despite the committee's vote, Applbaum notified plaintiff on December 13, 2000, that the Board had reappointed him for the 2001-02 academic term, and awarded him tenure effective the 2001-02 academic year.
In addition to seeking retention and tenure in 2000, plaintiff also sought promotion to the position of associate professor. The criteria for promotion to associate professor were mastery of the subject matter, continuing growth, effectiveness in teaching and community service, and scholarly ability.
Plaintiff followed Kean's protocol for promotion applications. He first submitted the application to the ARTP Committee, headed by Kempey, as department chair. The ARTP Committee initially rejected plaintiff's application as untimely, but later, at the direction of the University Promotion Committee (UPC), accepted the application for consideration and voted not to recommend plaintiff for promotion. The application was then considered by the UPC, which determined that plaintiff was qualified for promotion but did not rank him among the top one-third of promotion-eligible candidates. Applbaum reviewed the UPC recommendation and advised plaintiff, in a letter dated January 12, 2001, that he would "not be nominating [plaintiff] for promotion to the Board of Trustees for the 2001-02 academic year," stating that although the UPC recommended plaintiff for promotion, they did not rank his application "among the top third of 23 candidates."
In a letter dated January 8, 2001,*fn2 plaintiff filed an affirmative action (AA) complaint against Kempey with the Union and, three days later, with Kean's Director of Affirmative Action, Carlos Rivera (Rivera). The grievance and complaint consisted of eleven to thirteen "items," including an accusation that Kempey illegally entered Anderson's private office in order to alter plaintiff's confidential file, discriminated against plaintiff in the promotion process, and engaged in improper quid pro quo arrangements with faculty. Plaintiff amended his AA complaint in April 2001 to allege racial and religious discrimination.
Although the union grievance officer, Dr. Michael Israel (Israel), wanted to assist plaintiff with his grievance, Katz declined the offer and instead determined to forward the matter to the State Council, which recommended that plaintiff not file a formal grievance. The State Council advised plaintiff, in a letter dated February 2, 2001, that his complaints related to his tenure application were moot because he had been awarded tenure in December 2000, effective academic year 2001-2002, his complaints about business economic concentrations were "academic matters beyond the purview of the Union" and that his harassment complaints were untimely because they had occurred during the previous semester. In addition, the State Council advised plaintiff that it had been assured by Kean that plaintiff's complaint would be investigated.
The AA complaint was investigated and the report issued on July 26, 2001. Among the findings, the report credited plaintiff's allegations that Kempey improperly tampered with plaintiff's retention and tenure file, that Kempey's department had no written procedures for evaluating candidates for retention, although required to do so by Kean, and that Kempey had not taught in the classroom for several years, was generally unavailable, and did not represent the department at Kean programs. As to plaintiff's claims of religious and racial discrimination, the report did not substantiate the claims, but concluded that a pattern of behavior was suggested and warranted close monitoring.
In response to the report, Applbaum notified Kempey and Skoorka that based upon the report's findings, there was insufficient evidence of a violation of Kean's institutional policy against discrimination in the workplace and that the managerial issues raised in the complaint were being referred to the "appropriate University personnel for review and assessment."
Plaintiff then submitted his second application for promotion in the Fall of 2001. Plaintiff asked that a special committee be appointed to review his application because he believed Kempey would not impartially evaluate his application in light of the grievance and AA complaint he had filed. Plaintiff also expressed the belief that Kempey was continuing to engage in discriminatory and harassing conduct towards him. Plaintiff's request was granted. Dr. Patrick Coughlin, a professor of management, was appointed to chair the committee, which also consisted of Condon, Kim, Saffer, and Carreno.
Saffer and Carreno boycotted the meeting, while the remaining three members voted in favor of plaintiff's promotion. The UPC once again determined that plaintiff was qualified for promotion but did not rank him in the top one-third of promotion-eligible candidates.
Applbaum notified plaintiff, in a letter dated January 11, 2002, that he was not recommending plaintiff for promotion. In his written request for reconsideration, plaintiff advised Applbaum that, in his opinion, he was "fully, not minimally, qualified for promotion to Associate Professor," that less qualified candidates were recommended for promotion, and that the committee's failure to rank his application among the top third and Applbaum's refusal to nominate him for promotion were part of ongoing harassment, discrimination, and retaliation. In a letter dated February 4, 2002, Applbaum responded by informing plaintiff that he had reviewed plaintiff's promotional file and concluded that although plaintiff was qualified, his "record on a comparative basis across the five criteria matched against the pool of candidates [did] not warrant nomination for promotion at this time."
In November 2001, prior to this decision on his promotion application, plaintiff had filed a nine-count complaint against defendants. In the complaint plaintiff alleged: (1) denial of promotion in retaliation for his complaints, contrary to CEPA (Count One); (2) religious discrimination contrary to the LAD (Count Two); (3) retaliation for objecting to improper conduct, contrary to the LAD (Count Three); (4) retaliation for speaking out on matters of public concern, contrary to the New Jersey Constitution (Count Four) and the First Amendment (Count Seven); (5) violation of his right of assembly and petition under the New Jersey Constitution (Count Five) and his right of petition under the First Amendment (Count Eight); (6) denial of due process and equal protection under the New Jersey Constitution (Count Six) and the United States Constitution (Count Nine).
The complaint was amended in December 2002 to add Frank J. Esposito, the interim university president, as a defendant. In an order dated July 7, 2004 the court permitted plaintiff to amend the complaint to add new allegations, but denied plaintiff's request to add an additional defendant, the new president, Dawood Farahi (Farahi).
The acts of retaliation, discrimination, and hostile work environment set forth in the complaint include (1) Kempey defaming and harassing plaintiff, instigating false student complaints against him, vandalizing his office, making improper visits to his classes, abusing him in the presence of students, falsely criticizing him in evaluations, preventing him from serving on committees, illegally entering the dean's office and altering his application for retention and tenure, interfering in his outside employment endeavors, causing an audit of his income tax returns, inscribing anti-Semitic remarks on his automobile, and misappropriation of department funds; (2) the hiring and retaining of unqualified professors while plaintiff's promotion to associate professor was twice denied; (3) defendants' refusal to properly investigate his complaints about Kempey or giving short shrift to his allegations; and (4) the Union's refusal to afford him a union representative while providing such representation to Kempey and other non-Jewish faculty, and the Union's failure to otherwise support his claims.
In September 2004, the court granted partial summary judgment dismissing plaintiff's claims against the Union. The motion judge determined that for purposes of CEPA, the Union was not plaintiff's employer, it did not act in the interest of Kean or with Kean's consent, and it did not represent Kempey. The motion judge also found that plaintiff's claim that the Union conspired with Kean to engage in retaliatory actions against plaintiff lacked evidentiary support.
As to plaintiff's LAD claims against the Union, the motion judge found a deficient factual basis for plaintiff's religious discrimination claims. The judge observed that plaintiff identified several non-Jewish persons, including Kempey, who were afforded union representation in connection with disputes, but noted that plaintiff did not specify the factual background surrounding the representation, including whether the circumstances were similar to the circumstances under which plaintiff sought union representation. The judge concluded that the fact that the Union represented Kempey and not plaintiff, as well as the fact that there was evidence that the Union represented members in conflicting positions, was not evidence that its failure to represent plaintiff was because he was Jewish.
Finally, the motion judge rejected plaintiff's constitutional claims against the Union because it found that the Union is a private entity rather than a state actor. Further, the judge reasoned there was no basis to maintain a cause of action against the Union based upon a conspiracy theory because plaintiff presented insufficient evidence of a conspiracy.
In March 2005, the court granted the State's motion for partial summary judgment dismissing those claims alleging violation of the New Jersey Constitution and the LAD, which the court concluded were preempted by CEPA. On July 6, 2005, the court entered a second partial summary judgment order dismissing most of plaintiff's CEPA allegations, ruling that the incidents about which plaintiff complained or objected to were "mere complaints by an individual" that did not implicate CEPA, legislation which the judge reasoned was not intended to provide a remedy for employees who simply disagree with entirely lawful decisions of an employer.
Following the entry of the second partial summary judgment order, trial commenced October 17, 2005, with the court considering in limine motions from the parties. On October 17 and 18, 2005, the court entered orders that dismissed plaintiff's punitive damages claims and limited the scope of admissible evidence.
After the court's ruling on these in limine motions, plaintiff advised the court that he was voluntarily dismissing the remaining claims, as he believed the court's evidentiary rulings eviscerated his case. The following colloquy occurred:
THE COURT: Okay. [Plaintiff], at this point, you're making a legal judgment call as to how to handle your matter. You could go forward to trial with some pretty damaging rulings from the previous case from [the motion judge] or it's my understanding that you don't wish to go forward the way the case looks now. You want to dismiss this case and I gather take an appeal of [the motion judge's] rulings and depending on what happens then, perhaps we'll see you again based upon [the motion judge] having made errors in his rulings. Is that your understanding of what we're doing?
[PLAINTIFF]: It's my understanding I believe that the case will be futile on the judge[']s prior rulings and the rulings yesterday and today and I understand the ramifications and I reserve my appeal rights.
THE COURT: All right. Nobody's forcing you to do this?
[PLAINTIFF]: Nobody's forcing me to do this. I see it as my only option at this point.
THE COURT: Okay and we had a short colloquy on the record on the 10th floor while you were on the first floor and your attorneys caught you up on that and told you what happened with regard to that this morning?
[PLAINTIFF'S COUNSEL]: The evidentiary rulings this morning.
THE COURT: Okay. You don't feel under any kind of pressure other than the pressure anyone would feel under a lawsuit[;] is that . . . correct?
[PLAINTIFF]: Any pressure to do what I'm doing now?
THE COURT: To do what you're doing, yes.
[PLAINTIFF]: No, I don't feel pressure to do what I'm doing now. It would be futile to continue at this point.
THE COURT: All right. That's a --counsel, any questions?
[DEFENSE COUNSEL]: I'm duty bound, I have to, Your Honor. In terms of reserving appeal rights, I don't know the effect of a voluntary dismissal on those appeals.
THE COURT: I don't either and I don't give legal advice, so . . . he makes a good point. I don't know . . . where you are in the appeal process. I don't know what your dates are, when you can file things. I don't know and I'm not making any representation as to that. You're dealing with your attorneys on . . . the dates of appeal, et cetera. You understand that?
THE COURT: It's a . . . technical issue as to when you can file them and neither the State nor I are telling you --giving you any advice with regard to that. You rely on your attorneys. Is that correct?
[PLAINTIFF]: That's correct.
The present appeal followed. On appeal plaintiff raises the following points for our consideration:
THE TRIAL COURT ERRED IN GRANTING STATE DEFENDANTS' FIRST MOTION FOR SUMMARY JUDGMENT ON THE NJLAD AND N.J. CONSTITUTION CLAIMS.
THE TRIAL COURT ERRED IN ALLOWING STATE DEFENDANTS TO BRING A SECOND MOTION FOR SUMMARY JUDGMENT.
THE TRIAL COURT ERRED IN GRANTING STATE DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT VIRTUALLY ELIMINATING THE CEPA CLAIMS.
THE TRIAL COURT ERRED IN GRANTING STATE DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT THAT DEFENDANTS ARE ...