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Gary N. Mcabee, D.O v. the University of Medicine


June 28, 2012


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4512-05.

Per curiam.


Argued February 8, 2012

Before Judges Lihotz, Waugh and St. John.

Plaintiff Gary N. McAbee, DO, appeals from the summary judgment dismissal of his complaint. Following his removal as chair of the Department of Pediatrics (DOP) for defendant the University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine (UMDNJ), and subsequent non-renewal of his faculty contract, plaintiff initiated this litigation contending defendant, R. Michael Gallagher, DO, Dean of UMDNJ, manipulated the review process and the resultant report that was critical of plaintiff's performance as chair of the DOP. Following our review, we affirm.

The following facts are taken from the record submitted in support of and in opposition to summary judgment, viewed in a light most favorable to plaintiff, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Plaintiff, a pediatric neurologist, was hired in 1996 as the chair of UMDNJ's DOP and was given a faculty position as an associate professor of pediatrics. Plaintiff's initial faculty performance evaluations revealed he was a "[s]uperior faculty [member] and administrator." On June 29, 2001, plaintiff was promoted to full professor. In plaintiff's fifth year as chair of the DOP, his performance review was less glowing. In the evaluation he achieved an overall rating of two-and-a-half out of five. That year, the review commended his scholarly pursuits and individual contributions, but identified significant problems including that he had minimally involved other faculty members in research; the DOP had not performed well on student evaluations; and the pediatric students achieved the lowest mean scores on licensing exams.

In April 2003, complying with the UMDNJ bylaws, a five-year review committee was formed to assess the DOP, including an evaluation of the chair's stewardship. The bylaws required the review committee to consist of "a Chair from the clinical chairs, 2 members of the department, an outside reviewer and a Dean" to chair the review committee. Dean Gallagher appointed the named individual defendants as members of the review committee: Thomas Cavalieri, DO, as chair representative; Linda Jones-Hicks, DO, and Gloria Durelli, DO, as members from the DOP; Myron Magen, DO, as an outside reviewer; and William Ranieri, DO, as chair of the committee. The informal guidelines stated all members of the DOP, including the chair, students, interns, other department chairs, and other deans of UMDNJ were invited to present their views before the review committee.

The review committee held two meetings; considered input from varied sources, including the dean of research, the DOP administrator, the dean of academic affairs, plaintiff as chair of the DOP, the dean of UMDNJ, and the chief financial officer; and received information from joint meetings with other departmental chairs, the DOP faculty, and student leadership. Dr. Ranieri authored the "Pediatric Stewardship Review Report" (DOP report) and submitted it to Dean Gallagher.

The DOP report commended plaintiff on his many publications over the prior three years and for development of the DO/JD program. The DOP report also enumerated flaws in plaintiff's performance as chair, including: (1) the lack of general leadership coupled with no evidence of a definitive hierarchy within the DOP; (2) recent research efforts and clinical trials were insufficient and lacked innovation; (3) the lack of coordination of the efforts of members of the DOP and uneven communication with them, which created a concern over teamwork;

(4) the DOP'S lack of public accessibility; (5) the chair's lack of a clear plan for effectuating a necessary restructuring of the clinical program; (6) an unacceptable favoritism for Cooper Hospital and lack of attention to other affiliate hospitals; and

(7) the lack of long-range and strategic planning. The report concluded: "The committee's impression is that [plaintiff] is a competent and intelligent physician with many skills who is not a 'hands on' Chair. He has not been able to implement or articulate a plan to secure the department's long-term growth, development or survival."

Plaintiff challenged the overall integrity of DOP report, maintaining it was flawed in its composition, process, and conclusions. He submitted a memorandum of disagreement challenging the failure to allow his input, stating the committee held two meetings in "a crowded and noisy restaurant," akin to a social meeting, and maintaining he should have been afforded a private meeting with Magen, the independent outside reviewer.

Plaintiff challenged any conclusion in the DOP report that he exhibited a lack of commitment or leadership. He asserted he had transformed the DOP's clinical focus to make it a research unit. The committee was not fully informed of his future plans because it merely sought a brief summary of his future objectives rather than the detail of his vision for the DOP. Plaintiff attributed the DOP's difficulties to a lack of funding and limited full-time faculty, not his stewardship. Finally, he outlined the information he would present on each point, if given the opportunity.

Effective May 20, 2003, UMDNJ's Board of Trustees removed plaintiff as chair of the DOP and returned him to faculty status. The following month, Dean Gallagher informed plaintiff his faculty contract, which was set to expire on June 30, 2004, would not be renewed.

On May 19, 2005, plaintiff filed his nine-count complaint alleging breach of contract and the covenant of good faith and fair dealing; tortious interference with contract and prospective economic advantage; and civil rights violations under 42 U.S.C.A. § 1983. Plaintiff maintained UMDNJ's Finance Committee had recommended the elimination of the DOP prior to the creation of the review committee. He insisted the committee's real purpose was to effectuate the closure of the DOP. Further, he alleged the members of the five-year review committee were chosen by Dean Gallagher because each held a bias against him. For example, plaintiff challenges the objectivity the review committee's members, stating: Ranieri had removed the DOP's full-time administrator, over plaintiff's vigorous objection, six months prior to the committee review and did not consult the past administrator regarding plaintiff's performance as chair; Ranieri and Cavalieri were members of UMDNJ's finance committee, which recommended the DOP be eliminated; Durelli had previously been told by plaintiff to increase her productivity by working evenings and weekends; Jones-Hicks was under investigation regarding possible inflated reimbursements requests, which had been initiated by plaintiff; and alleged another doctor claimed, prior to the five-year review, she was promised to be the next DOP chair.

Defendants moved for summary judgment, maintaining plaintiff's contract claims be dismissed because he served as chair at the pleasure of Dean Gallagher and his faculty contract expired. Alternatively, defendants argued plaintiff failed to comply with the notice requirements of the Contractual Liability Act, N.J.S.A. 59:13-1 to -10. Regarding plaintiff's tort allegations, defendants argued there was no proof of a conspiracy and no proof of malice. Moreover, plaintiff failed to file a notice required by N.J.S.A. 59:8-3 of the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. Finally, defendants asserted any civil rights claims were time barred and plaintiff failed to allege facts to show a deprivation of liberty or property interest.

The motion judge granted summary judgment to all defendants as to all claims. He agreed the failure to provide the statutory notices barred plaintiff's contract and tort claims. Further, he concluded plaintiff had not established a protected property interest or violation of his liberty.

Plaintiff moved for reconsideration. His motion was denied and this appeal ensued.

Our review of summary judgment is de novo, and we apply the same legal standard as the trial court. Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406 N.J. Super. 524, 538 (App. Div.), certif. denied, 200 N.J. 209 (2009). We consider, as the motion judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury [or trier of fact] or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "Even when credibility may be an issue," if there exists a single unavoidable resolution to the alleged factual issue, there is not a genuine issue of material fact and summary judgment might be appropriate. Liberty Surplus Ins., supra, 189 N.J. at 450.

"[A] party may defeat a motion for summary judgment by demonstrating that the evidential materials relied upon by the moving party, considered in light of the applicable burden of proof, raise sufficient credibility issues 'to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" D'Amato v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill, supra, 142 N.J. at 523).

In our review, when there is no genuine issue of material fact, we "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We afford no special deference to a trial court's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal plaintiff does not challenge the dismissal of his contract claims. He cites as error the dismissal of his claimed intentional torts, denial of injunctive relief, and dismissal of the § 1983 claim.

Plaintiff initially argues the dismissal of his claims for tortious interference with contract and prospective economic advantage based on a failure to file a tort claims notice was erroneous because the conduct was intentional, obviating the necessity of a tort claims notice. See Velez v. City of Jersey City, 180 N.J. 284, 297 (2004) (prospectively applying the Court's decision that claims for damages resulting from intentional torts are nevertheless subject to the notice requirements of the Act).

The Act is designed to afford prompt notice of a claim against a governmental entity, affording the State actor the opportunity for investigation and preparation of a defense. Moon v. Warren Haven Nursing Home, 182 N.J. 507, 514 (2005), superseded by statute on other grounds as recognized by Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 529 n.3 (App. Div. 2010). The Act requires a plaintiff to file a notice of claim within ninety days of the date a cause of action accrues. N.J.S.A. 59:8-8. Filing of a late notice may be permitted upon a showing of "extraordinary circumstances" constituting the basis for the late filing. N.J.S.A. 59:8-9.

In Velez, supra, 180 N.J. at 286-87, the Supreme Court examined the question of whether the Act's notice requirements apply to claims resulting from the intentional torts of assault and battery. The Act requires a plaintiff to provide timely written notice to a public entity of a tort claim or any action will be barred. Id. at 290. See N.J.S.A. 59:8-3 (mandating no suit shall be brought against a public entity unless a claimant has furnished the appropriate notification of claim); N.J.S.A. 59:8-8 (barring claims against public entities if timely notice is not provided).

The Court held the Act's "notice requirements encompass injuries arising from intentional conduct as well as negligent conduct." Velez, supra, 180 N.J. at 294. However, the Court applied its determination prospectively. Id. at 297. See also Bonitsis v. N.J. Inst. of Tech., 180 N.J. 450, 450-51 (2004) (enforcing prospective application of Velez holding).

In this matter plaintiff's claims relate to his removal as DOP chair on May 20, 2003, and notice of the non-renewal of his faculty contract on June 19, 2003. Because these events occurred prior to the release of the Court's opinion in Velez, plaintiff maintains the Act's notice requirements are inapplicable. Alternatively, he argues his five-page rebuttal of the review committee's findings and conclusions equates to substantial compliance with these notice requirements.

Although the Court concluded the intentional nature of a tort would not obviate compliance with the Act's notice requirements, it specifically applied this holding prospectively "to all similar causes of action accruing after the date of this opinion." Velez, supra, 180 N.J. at 297. Therefore, we agree plaintiff's failure to timely file a tort claims notice would not defeat his tort claims. However, as stated by the motion judge on reconsideration, dismissal was grounded on plaintiff's failure to present facts supporting the elements of the claims alleged.

The liability of UMDNJ, a public entity, is circumscribed by the Act, such that it has no liability for any alleged intentional conduct of its employees. N.J.S.A. 59:2-10. Accordingly, the summary judgment dismissal in favor of UMDNJ must be affirmed.

Next, plaintiff argues the individual defendants willfully interfered with his chair position and caused UMDNJ not to renew his faculty contract, constituting intentional interference with a prospective contractual or economic relationship. Although the claims for these two torts are separate causes of action, see Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 750 (1989) (stating "[t]he separate cause of action for the intentional interference with a prospective contractual or economic relationship has long been recognized as distinct from the tort of interference with the performance of a contract"), the elements of each claim are the same. See Jenkins v. Region Nine Hous. Corp., 306 N.J. Super. 258, 265 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998) ("Whether the tort is denominated as an intentional interference with contractual advantage, or future economic advantage, the import is the same."). To recover, a plaintiff must prove: "(1) a protected interest, not necessarily amounting to an enforceable contract;

(2) defendant[s'] intentional interference without justification; (3) a reasonable likelihood that the benefit plaintiff anticipated from the protected interest would have continued but for the interference; and (4) resulting damage." Ibid.

Reviewing the evidence in the summary judgment record, plaintiff's faculty contract expired on June 30, 2004, and renewal was not elected by Dean Gallagher and the Board of Trustees. Plaintiff offers no legal challenge to UMDNJ's right to decline to renew his faculty contract. No evidence supports a claim that the terms of his contract were breached or that he had a right to automatic renewal. Moreover, had UMDNJ violated the terms of the contract, plaintiff could have, but did not, file a grievance engaging the process contained in the faculty collectively negotiated agreement. His failure to pursue this available administrative remedy defeats an attempt to present a claim before the courts. Wilson v. MVM, Inc., 475 F.3d 166, 176 (3d Cir. 2007).

Further, there are no facts linking the individual defendants to the non-renewal of plaintiff's faculty contract. The members served on the DOP review committee, whose work concluded in April with the presentation of the report to Dean Gallagher. Accordingly, plaintiff's claims regarding interference with his faculty contract were properly dismissed.

As to tortious interference with prospective economic advantage, plaintiff must show defendants' conduct constituting interference was intentional and with "malice." See Printing Mart, supra, 116 N.J. at 751 (stating a complaint of tortious interference "must allege facts claiming that the interference was done intentionally and with 'malice'"). See also Margolis & Novack, Claims Against Public Entities, comment 3 on N.J.S.A. 59:3-14 ("[W]here a defendant has intentionally harmed a plaintiff the first line of inquiry should be whether the public employee had intentionally harmed the plaintiff with actual malice.").

Malice is defined as intentionally inflicted harm without justification or excuse. Printing Mart, supra, 116 N.J. at 751. A determination of malice must focus on a defendant's action as presented by the unique facts of each individual case. Id. at 756-57. "Not only must [a] defendant[']s[] motive and purpose be proper but so also must be the means." Id. at 757 (alterations in original) (internal quotation marks and citation omitted). However, "[c]onduct admittedly spurred by spite and ill-will is not necessarily sufficient to sustain an action for tortious interference with an economic advantage." Lamorte Burns & Co. v. Walters, 167 N.J. 285, 307 (2001). "The line clearly is drawn at conduct that is fraudulent, dishonest, or illegal and thereby interferes with a competitor's economic advantage." Ibid. See also Shebar v. Sanyo Bus. Sys. Corp., 218 N.J. Super. 111, 118 (App. Div. 1987) (finding an employee who was fired after his employer used deceit to induce him to revoke acceptance of an outside employment offer until a replacement was found satisfied the malicious interference requirement), aff'd, 111 N.J. 276 (1988).

After granting all reasonable inferences to plaintiff's factual assertions of bias by the individual review committee members, we conclude plaintiff has not asserted facts from which a fact finder could conclude malice or conduct occurred outside the scope of public employment. This necessary element must be alleged to sustain a cause of action for tortious interference with economic opportunity.

Plaintiff conceded he was not under contract but served as DOP chair "at the pleasure of" Dean Gallagher. While Dean Gallagher appointed each of the committee members, he did so in keeping with UMDNJ's bylaws.

The evidence shows the review committee fulfilled its charge of considering the status of the DOP and plaintiff's stewardship as chair after consulting with DOP faculty, administrators, other deans, department chairs, and student leadership. Further, the committee reviewed objective evidence including student performance, faculty productivity, measures of clinical performance, and all publications, projects, and research conducted in the prior five-year period. The DOP report properly outlined and balanced the positive strides made and endeavors accomplished by plaintiff, detailed his authored publications, and credited him for moving the DOP toward research emphasis. The DOP report also delineated the difficulties expressed by those interviewed regarding plaintiff's management style, peer relationships, student successes, and limited leadership to resolve the consistent deficiencies. The review committee concluded the DOP lacked concrete plans to resolve the operational deficits, non-performing faculty and continued unsatisfactory student performance as demonstrated by the DOP's acquisition of limited grants, dismal research funding, and the conclusion of only one clinical trial in the last of the five years with no new clinical trials pending. These measures were not unfairly cast as resulting from ineffective leadership of the DOP chair.

That the report omitted a comparison of similar staffing or financial struggles of other UMDNJ departments does not reflect malice. Rather, the review committee's concentration and responsibility was the examination of the DOP, not a global review of UMDNJ's departments.

Plaintiff's challenges do not identify inaccuracies in the objective facts contained in the DOP report, rather he offers disagreement by attacking the conclusions regarding his overall performance drawn from the facts. Plaintiff suggests grudges by his UMDNJ colleagues caused them to cast the facts in an unfavorable light. Even if plaintiff's assertion was true, the contention insufficiently meets the malice standard. Lamorte Burns & Co., supra, 167 N.J. at 307.

Second, plaintiff presents no evidence of intentional conduct by the individual defendants that can be construed as their participating on the review committee for the purpose of illicitly advancing personal interests or otherwise interfering with plaintiff's position. For example, plaintiff protests he was not given a private one-on-one meeting with Dr. Magen, who served as the independent review committee member. He does not show such a request was even made, let alone purposely denied or ignored. Plaintiff points to no misconduct by Dr. Durelli other than his suspicion of rancor because he expected her to increase her productivity, yet nothing in the evidence reflects she resented plaintiff's constructive criticism or set out on a course to harm him.

Similarly, plaintiff points to the finance committee's recommendation to eliminate the DOP as justification to scapegoat him by issuing a negative review of his years as DOP chair. However, this record contains no evidential support to suggest Dr. Ranieri and Dr. Cavalieri, individually or together, engaged in conduct outside the scope of their responsibility while serving on the review committee. The finance committee's recommendation and the review committee's findings were coincident in time, but not dependent upon one another. A generous reading of the facts reveals no factual falsehoods willfully advanced by the review committee members to harm plaintiff that could possibly support a finding of legal malice.

Third, but for Magen, the individual defendant-committee members who purportedly harbored ill will toward plaintiff were UMDNJ employees. "[I]f an employee . . . is acting on behalf of his or her employer . . . , then no action for tortious interference will lie." DiMaria Const., Inc. v. Interarch, 351 N.J. Super. 558, 568 (App. Div. 2001), aff'd o.b., 172 N.J. 182 (2002). However, "an employee or agent falls outside the scope of the privilege if he or she 'acts for personal motives, out of malice, beyond his [or her] authority, or otherwise not in good faith in the corporate interest.'" Id. at 569 (quoting Varrallo v. Hammond Inc., 94 F.3d 842, 849 n. 11 (3d Cir. 1996)). Finally, plaintiff's allegations of an overall conspiracy orchestrated by Dean Gallagher is merely a statement of plaintiff's suspicions, unsupported by any facts. The DOP report concluded plaintiff was a competent and intelligent physician, credited his prolific publications, but noted he was not a "hands on" chair and his leadership lacked foresight to ensure the department's success and survival. Dean Gallagher, faced with the task of keeping afloat a struggling department, exercised his discretion and removed plaintiff. Plaintiff offers no material disputed facts which could, if accepted by a jury, result in a finding he suffered intentional interference with a protected economic interest. The entry of summary judgment will not be disturbed. Gilhooley v. Cnty. of Union, 164 N.J. 533, 545 (2000).

We also reject as lacking merit plaintiff's suggestion of error in the denial of his request for injunctive relief.

R. 2:11-3(e)(1)(E). After reviewing this argument on reconsideration, the judge denied plaintiff's motion. We determine no abuse of discretion is presented. See Davidson Bros., Inc. v. D. Katz & Sons, Inc., 121 N.J. 196, 232 (1990) (stating injunctions are issued at the discretion of the court). Absent a legal basis for relief, no equitable remedy can issue. See Verna v. Links at Valleybrook Neighborhood Ass'n, 371 N.J. Super. 77, 89 (App. Div. 2004) ("A permanent injunction requires proof that the applicant's legal right to such relief has been established and that the injunction is necessary to prevent a continuing, irreparable injury.").

Plaintiff also argues the court erred in dismissing his civil rights claims, 42 U.S.C.A. § 1983. We disagree and affirm substantially for the reasons recited by the motion judge. R. 2:11-3(e)(1)(A).

In granting summary judgment on plaintiff's § 1983 claim, the motion judge court concluded plaintiff had not established a protected property interest that is a legitimate claim of entitlement to the position as set forth in Board of Regents v. Roth, 408 U.S. 564[, 92 S. Ct. 2701, 33 L. Ed. 2d 548, (1972)].

Here[,] there was no contract or statute that would establish this entitlement.

Neither was there a liberty issue interest.

There is no evidence that the defendants foreclosed any future employment to the plaintiff.

In Roth, the United State Supreme Court held a non-tenured Wisconsin State University professor, hired on a year-to-year basis, was not deprived of liberty or property protected by the Fourteenth Amendment when the university opted not to rehire him. Id. at 579, 92 S. Ct. at 2710, 33 L. Ed. 2d at 562. The Court explained the protection of liberty and property afforded by the due process clause of the Fourteenth Amendment applies to the nature of the interest at stake. Id. at 570-71, 92 S. Ct. at 2705-06; 33 L. Ed. 2d at 557. The High Court found since the university "did not make any charge against [the professor] that might seriously damage his standing and associations in his community" or "impose[] on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities[,]" the professor was not deprived of liberty as protected by the Constitution. Id. at 573, 92 S. Ct. at 2707, 33 L. Ed. 2d at 558-59. Likewise, the Court found year-to-year employment did not confer any protected property interest. Id. at 578, 92 S. Ct. at 2710, 33 L. Ed. 2d at 561.

Here, plaintiff maintains defendants presented the DOP report to willfully create a negative impression of his abilities, wrongfully causing his removal as chair of the DOP. However, plaintiff was not fired but served out his contract; he did not suffer a lapse in employment, but assumed the position of Director of Pediatric Neurology at JFK Medical Center after leaving UMDNJ, turning down two other positions in the course of his job search; and identifies no facts connecting the DOP report's contents with a loss of property or liberty other than to say that it cast his performance in a negative light as it contained misleading and unfair criticisms of his stewardship.

As set forth in Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006), "to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest[,]" commonly known as the "stigma-plus" test. "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 termination,' it deprives the employee of a protected liberty interest." Ibid. (quoting Codd v. Velger, 429 U.S. 624, 628, 97 S. Ct. 882, 884, 51 L. Ed. 2d 92, 97 (1977)). See McKnight v. Se. Pa. Trans.

Auth., 583 F.2d 1229, 1235-36, (3d Cir. 1978) (finding allegation of employee's intoxication allegedly communicated to others was sufficient stigma to withstand summary judgment).

Here, plaintiff did not offer evidence he was rejected for jobs because of the contents of the DOP report. In fact, he admits he was never turned down for a position because of his five-year review, but stopped pursuing specific positions because he "knew" he would not be hired. We conclude plaintiff did not present evidence which could support he suffered a stigma impacting his protected property interests. See Shovlin v. Univ. of Med. & Den. of N.J., 50 F. Supp. 2d 297, 316 (D.N.J. 1998) (stating absent a "showing of an accompanying deprivation, such as a subsequent denial of employment due to the alleged defamatory conduct [a plaintiff] lacks a claim" under § 1983).



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