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SAMPLE SUMMARY JUDGMENT BRIEFThe following is a sample civil service summary judgment brief to the Superior Court of New Jersey, Law Division, drafted by On-Point Paralegal Services, LLC. Personal information has been omitted. We have done our best to preserve the formatting of the brief when converting it to html code for display on the Internet. TABLE OF CONTENTS TABLE OF AUTHORITIES …………………………………………………… RESPONSE TO XXXXXX'S STATEMENT OF MATERIAL DISPUTED FACTS … PLAINTIFF'S STATEMENT OF UNDISPUTED MATERIAL FACTS …………… ARGUMENT
A. The Rights Pertaining To Stigmatizing Materials II. THERE ARE NO DISPUTED MATERIAL FACTS REGARDING
PLAINTIFF'S CONSTITUTIONAL CLAIMS OF STIGMATIZATION III. PLAINTIFF DID NOT WAIVE ANY OF HIS RIGHTS BY
SIGNING A RELEASE IV. XXXXXX SHOULD BE EQUITABLY ESTOPPED FROM PRESENTING
THE RELEASE AS EVIDENCE CONCLUSION ……………………………………………………………………………… ARGUMENT I. XXXXXX VIOLATED PLAINTIFF'S CONSTITUTIONAL RIGHTS BY STIGMATIZING HIM TO PROSPECTIVE EMPLOYERS WITHOUT AFFORDING HIM A NAME-CLEARING HEARING Plaintiff's Complaint alleges, inter alia, that XXXXXX
violated his Fourteenth Amendment rights to not be deprived of property
or liberty without due process of law (1) when it placed stigmatizing
materials in his personnel file and provided it to plaintiff's prospective
employers and (2) included the materials in his file without affording
him a hearing to safeguard his right to procedural due process, etc. "When a plaintiff sues under 42 U.S.C. §1983 for a state actor's failure to provide procedural due process, we employ the familiar two-stage analysis, … inquiring (1) whether the asserted individual interests are encompassed within the fourteenth amendment's protection of life, liberty, or property; and (2) whether the procedures available provided the plaintiff with due process of law." Alvin v. Suzuki, 227 F. 3d 107, 116 (3rd Cir. 2000) (inner quotation marks and citations omitted).
It is well-established throughout the Untied States that
a public employer's placement of stigmatizing materials in its employee's
personnel files may constitute a taking of "property" and "liberty"
within the meaning of the Fourteenth Amendment to the United States Constitution.
See Karr v. Castle, 768 F. Supp. 1087, 1096 (D. Del. 1991) ("[Plaintiff]
alleges that the false accusation made in connection with her termination
impugns her good character and reputation, is part of her personnel file,
and can reasonably be expected to be communicated to prospective employers
and prevent her from obtaining alternative employment. If true, these
conditions would require the employer to provide procedural safeguards"),
quoting Perri vs. Aytch, 724 F. 2d 362, 367 (3rd Cir. 1983) (inner quotation
marks omitted); Donato v. Plainview-Old Bethpage Cent. School Dist., 96
F. 3d 623, 631-32 (2nd Cir. 1996) ("This requirement is satisfied
where the stigmatizing charges are placed in the discharged employee's
personnel file and are likely to be disclosed to prospective employers
… We have recognized, in fact, that this is the very action that
circulates the stigmatization") (inner quotation marks and citations
omitted); Prager v. LaFaver, 103 F. Supp. 2d 1278, 1283 (D. Kan. 2000)
("Stigmatizing statements contained in a personnel file can form
the basis for a liberty interest claim if the statements are not restricted
to internal use and are shared with potential employers"); Doe vs.
United States Dept. of Justice, 753 F. 2d 1092, 1113, n. 24 (D.C. Cir.
1985) ("The 'public disclosure' requirement would also be satisfied
if the Department placed Doe's termination memorandum in her personnel
file and made that file available, even on a limited basis, to prospective
employers or government officials."); Hogue v. Clinton, 791 F. 2d
1318 (8th Cir. 1986) ("That Hogue's personnel file is replete with
wrongdoing," however, may be a sufficient publication if the defendants
made that file available to prospective employers"), quoting Bailey
vs. Kirk, 777 F. 2d 567, 580, n. 18 (10th Cir. 1985) (inner quotation
marks omitted). That satisfies the first prong of the test set forth in Alvin v. Suzuki, 227 F. 3d 107, 116 (3rd Cir. 2000), viz. that the issues complained about are entitled to constitutional protection. Plaintiff clearly had a constitutionally protected interest in not being stigmatized to prospective employers.
As a threshold issue, both the New Jersey and the United
States Supreme Courts have consistently held that a public employee's
job constitutes "property" within the meaning of the Fourteenth
Amendment providing that the employee had an entitlement to the job. See
Battaglia v. Union County Welfare Bd., 88 N.J. 48, 56 (1981), cert. den.,
456 U.S. 965 (1982) ("Under the Fourteenth Amendment a public employee
may not be deprived by the State of 'property' or 'liberty' without due
process of law"); and, Board of Regents v. Roth, 408 U.S. 564, 577
(1972) (Entitlement to a government job is a constitutionally protected
property interest providing that employee is otherwise entitled to have
the job). Plaintiff's entitlement to the position at XXXXXX is
set forth in a Collective Bargaining Agreement (hereinafter referred to
as the "CBA") entered into between XXXXXX and Fraternal Order
of Police Lodge 155, of which plaintiff was a member in good standing,
which was effective from July 1, 1999 through June 30, 2003. That CBA
was in effect at the time of the alleged acts of subordination, such as
the alleged acts of sexual harassment, abandoning small children on the
side of a dark major highway and being demoted in lieu of being disciplined.
[SECTION LEFT BLANK FOR COUNSEL TO ADD FACTUAL ASSERTIONS.] Plaintiff also had a substantive right to not have adverse
materials contained in his personnel file without his knowledge. (See
Collective Bargaining Agreement attached hereto as Exhibit ____, Art.
XXIII, Secs. B-D.) It is well-established that provisions like those set
forth in the CBA may create constitutionally protected liberty and property
interests with regard to maintaining one's job. "Property interests
… are not created by the Constitution. [T]hey are created and their
dimensions are defined by existing rules or understandings that stem from
an independent source such as state law -- rules or understandings that
secure certain benefits and that support claims of entitlement to those
benefits." Board of Regents v. Roth, 408 U.S. 564, 577 (1972). "[A]
property interest is determined by whether the terms of employment created
by contract, federal statute, city charter or an employee manual 'create
a sufficient expectancy of continued employment to constitute a property
interest which must be afforded constitutionally guaranteed due process.'
" Vinyard vs. King, 728 F. 2d 428, 432, 1998 WL 537504, *2 (10th
Cir. 1984) (footnotes omitted), quoting Hall vs. O'Keefe, 617 P. 2d 196,
200 (Okla. 1980). See also Muncy v. City of Dallas, Tex., 2001 WL 1480770
(N.D. Tex. 2001), aff'd,335 F. 3d 394, 398 (5th Cir. 2003). For a handbook, manual, regulation or the like to create
a constitutionally protected entitlement, the alleged entitlement must
be a substantive check upon the employer's power and not merely a procedural
safeguard. "[P]rocedural protections alone do not create a protected
property right in future employment; such a right attaches only when there
are substantive restrictions on the employer's discretion." Hulen
v. Yates, 322 F. 3d 1229, 1241 (10th Cir. 2003), quoting Asbill vs. Hous.
Auth., 726 F. 2d 1499, 1502 (10th Cir. 1984). See also Miller v. Township
of Readington, 39 Fed. Appx. 774, 776, 2002 WL 1480777, *2 (3rd Cir. 2002)
(In dicta, court states that a municipal employee's job was at-will pursuant
to New Jersey Statute notwithstanding that handbook that may have implied
that there was an entitlement to the job because the statute would trump
the handbook); Moffitt v. Town of Brookfield, 950 F. 2d 880, 885 (2nd
Cir. 1991) ("The collective bargaining agreement between the Town
and the police union to which Moffitt belonged guaranteed that he could
not be fired without just cause. Accordingly, Moffitt had a property interest
in his employment that qualified for the protections of procedural due
process"), citing Cleveland Bd. of Educ. vs. Loudermill, 470 U.S.
532, 538-39 (1985); The entitlements set forth in the CBA are sufficient
under these caselaws to create for plaintiff a constitutionally protected
property and liberty interest in maintaining his job with XXXXXX.
The before mentioned Collective Bargaining Agreement
sets forth that plaintiff was entitled to various procedural protections
that he never received. Various grievances were allegedly filed against him by
his peers and he was entitled to notice that those grievances were filed
against him and to have FOP representation. (See Collective Bargaining
Agreement attached hereto as Exhibit ____, Art. V.) Plaintiff had a right
not to have derogatory or potentially derogatory materials added to his
personnel file without his knowledge and without him having received a
copy of the materials, he was entitled to include a written statement
of his own in the file along with the adverse materials and he was entitled
to petition for an expungement of adverse materials based upon a plethora
of different grounds. (See Collective Bargaining Agreement attached hereto
as Exhibit ____, Art. XXIII, Secs. B-D.) He had the right to take legal
action in a court of law. (See Collective Bargaining Agreement attached
hereto as Exhibit ____, Art. XXIV.) In addition, "disciplinary demotions
or discharge from employment shall be subject to arbitration as specified
in the grievance procedure set forth in Article IV." (See Collective
Bargaining Agreement attached hereto as Exhibit ____, Art. IV, Sec. C
thereof.) Plaintiff never received any of these entitlements. He
never knew that such adverse materials were contained in his personnel
file until he was already terminated. In addition to the CBA, XXXXXX's own manuals and handbooks provided for procedural safeguards that plaintiff was clearly deprived of. The New Jersey Department of Public Safety's Rules and Procedures that were in effect at the time relevant herein provided that,
12. Minor complaints include differential treatment, demeanor, and minor rule infractions.
Just like with the rights set forth in the CBA, plaintiff
never received the benefit of any of these procedural safeguards. In addition to the handbooks and manuals, constitutional
law also mandates a due process hearing whenever a governmental employer
may tarnish the good name of a governmental employee. In sum, plaintiff never received a copy of the Complaints
allegedly filed against him with XXXXXX by his co-employees, he and his
witnesses were never interviewed with regard to those Complaints, he was
not provided the opportunity to engage defense counsel, he was not advised
of the disposition and conclusions of the investigations or afforded an
opportunity to appeal. Notwithstanding, the complaints were placed in
his employee personnel file without him knowing that they were there and
the file was provided to his prospective employers who, in turn, withdrew
job offers that were made to him in writing. This satisfies the second prong of the test set forth in Alvin v. Suzuki, 227 F. 3d 107, 116 (3rd Cir. 2000), viz. whether procedures were available that would have provided adequate procedural due process of law to plaintiff. The procedures available would have provided sufficient due process of law, but plaintiff was denied all of them. II. THERE ARE NO DISPUTED MATERIAL FACTS REGARDING PLAINTIFF'S CONSTITUTIONAL CLAIMS OF STIGMATIZATION There are two elements within the Third Circuit Court of Appeals for stating a stigmatization claim against a public employer.
As set forth hereinabove, materials were included in
plaintiff's personnel file that was provided to his prospective employers
that implied that plaintiff was disciplined on one or more occasions for
subordination, including sexual harassment, preaching religion on the
job and abandoning a van full of young children on the side of a dark,
deserted and dangerous highway. Such statements are surely stigmatizing
in that they suggest total incompetence. That meets all three prongs of the Anderson test: (1)
The allegations suggested insubordination and incompetence, (2) the allegations
interfered with his prospective employment opportunities (Union County
withdrew a job offer solely because of the stigmatizing information in
the file) and (3) the allegations were publicized to, inter alia, the
Piscataway Police Department and the Defendant Union County Prosecutor.
There is no dispute regarding these claims because there
was no dispute that the materials were contained in plaintiff's personnel
file, that the materials were stigmatizing, that the materials were provided
to prospective employers and that the materials were the cause of the
rescinding of written job offers. See Miller vs. City of Mission, Kansas,
705 F. 2d 368, 374 (10th Cir. 1983) (police officer offered "substantial
evidence" of his inability to obtain any comparable employment). Accordingly, the Court should grant plaintiff summary judgment on his claims of stigmatization in violation of the Fourteenth Amendment to the United States Constitution. III. PLAINTIFF DID NOT WAIVE ANY OF HIS RIGHTS BY SIGNING A RELEASE It is of no significance that Mr. XXXXXX signed a Release
authorizing his prospective employers to review his personnel file because
(1) he had no choice but to sign the Release, (2) the stigmatizing materials
were not supposed to be in the file to begin with and (3) XXXXXX concealed
from plaintiff that the file contained stigmatizing materials. The terms and conditions of a Release, just like the
terms and conditions of a contract, are valid only if they are freely
entered into by both parties and is not signed by one of the parties merely
for lack of an alternative. In Employers Liability Assurance Corp. vs.
Greenville Business Men's Association, 423 Pa. 288, 224 A. 2d 620 (1966),
the Pennsylvania Supreme Court indicated that a release would be valid
only if "each party is a free bargaining agent and the clause is
not in effect a mere contract of adhesion, whereby (one party) simply
adheres to a document which he is powerless to alter, having no alternative
other than to reject the transaction entirely." Id., 423 Pa. 288
at 291-92, 224 A. 2d. 620, 622-23 (inner quotation marks and citations
omitted). More specifically, the Court said,
In Buxton v. City of Plant City, Fla., 871 F. 2d 1037
(11th Cir. 1989), a police officer was discharged as a result of assaulting
someone under arrest. The officer had met with the appropriate personnel
before his discharge. The officer applied to another city's police department,
and signed a Release to allow his former employer to present a reference
to his prospective employer. The officer claimed that the presence of
stigmatizing information in his public file implicated his liberty interests.
Id. at 1038-40. The court held that because the officer's liberty interests
were affected, and because the officer was not afforded the opportunity
of a hearing, the officer's due process rights were implicated, and the
district court's dismissal of the officer's action was reversed. Id. at
1046.
Plaintiff did not waive any rights by resigning or by
signing a Release of information form because he did not know what rights
he had at the time because he deprived of the knowledge necessary for
making those determinations. "Waiver is defined as a voluntary and
intentional relinquishment of a known existing legal right or such conduct
as warrants an inference of the relinquishment of such a right."
Playmates Toys, Inc. vs. Director, Division of Taxation, 316 N.J. Super.
509, 512 (App. Div. 1998), cert. granted, 158 N.J. 73 (1999), aff'd, 162
N.J. 186 (per curiam), citing West Jersey Tile & Guar. Co. vs. Industrial
Trust Co., 27 N.J. 144, 152 (1958). Accordingly, the Court should hold that plaintiff did
not voluntarily waive any of his rights. IV. XXXXXX SHOULD BE EQUITABLY ESTOPPED FROM PRESENTING THE RELEASE AS EVIDENCE Application of the doctrine of equitable estoppel is appropriate here because XXXXXX engaged in a certain course of action (i.e., including the materials in plaintiff's personnel file without providing plaintiff the rights he was entitled to) while knowing that plaintiff was going to rely upon that to his own detriment by signing the Release of information and then entering his resignation with XXXXXX.
All of the requirements of the doctrine of equitable estoppel are present here and the Court should respectfully apply it to bar XXXXXX from benefiting from its wrongdoing by barring it from presenting the Release as evidence during this summary judgment motion or at trial. Plaintiff was tricked and misled into signing the Release by XXXXXX. CONCLUSION
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