Week Ending 7/27/12: Seel v. Langford

Alan Schorr’s Case of The Week ending July 27, 2012

Seel v. Langford, A-1042-11T4, 2012 WL 3000276 (N.J. App. Div., July 24, 2012) (unpublished)

For the third time in the last month, the New Jersey Appellate Division has rejected claims brought under the New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. 10:6-2, based upon a failure to prove a denial of “substantive due process”. The decision in each case has stressed that substantive due process does not apply to the property rights of public employees, and furthermore, that the plaintiff will be held to the very difficult standard of proving that the defendants’ actions “shock the conscience”. The three decisions highlight the difficulties of establishing a violation of the Civil Rights Act based upon a claim of violation of substantive due process.

In Seel v. Langford, the plaintiff alleged that he was replaced in his position as the Atlantic City Emergency Management Coordinator because a new mayor was elected and replaced him for political purposes. In McLemore v. Lewis, 2012 WL 2579591 (N.J. App. Div., July 5, 2012), there was an age discrimination and a civil rights claim. Although it is mentioned in the opinion that the plaintiff alleged retaliation, the Appellate Division perceived the CRA claim to be a procedural and/or substantive due process complaint regarding an unlawful reduction in salary. In Filgueiras v. Newark Public Schools, 45 A.3d 986 (N.J. App. Div., June 18, 2012), the plaintiff alleged a violation of substantive due process arising out of alleged defamatory statements made against him. In that case, the Appellate Division reversed a jury verdict in the plaintiff’s favor. Mr. Filgueiras has petitioned for Certification to the New Jersey Supreme Court.

The common thread in these three decisions is that there is no Constitutional substantive due process property right to public employment, especially when that employment is at-will. Additionally, it is well established in New Jersey that any claim for a violation of substantive due process requires a plaintiff to prove that such actions “shock the conscience or otherwise offend judicial notions of fairness that are offensive to judicial fairness.” Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352 (1996). Thus, even though Rivkin was not an employment case, and even though each of these cases alleged other reasons for the violation of their employment rights, the Appellate Division has consistently held that public employees will not succeed in claims brought for violation of substantive due process.

Employment practitioners should note that the NJCRA is not limited to violations of substantive due process. The relevant section “(c)” of the NJCRA states:

Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.

By its plain language, the Civil Rights Act is far broader than the protection of “substantive due process”rights. The NJCRA was intended to follow the federal statute 42 U.S.C. §1983, and therefore courts will follow that law if presented. My case of Stomel v. Camden, 192 N.J. 137 (2007) is a good example of substantive Constitutional Rights; in that case, retaliation for exercising Constitutional free speech rights was established in the absence of a claim for violation of substantive due process rights. Of course, Stomel was a §1983 claim because the NJCRA had not yet been passed when that complaint was brought.

Perhaps the best lesson these cases teach are that the NJCRA will not give much broader employment protection rights than those available under CEPA. Practitioners will be well advised to plead other substantive violations of the Constitutions, or perhaps not plead substantive due process at all. Considering the controversy, hopefully the N.J. Supreme Court will hear one of these cases and give us a more definitive answer.

Plaintiff’s counsel: YooNieh Ahn and Louis M. Barbone, Jacobs & Barbone, P.A.

Defendants’ counsel: Philip A. Magen and Grace H. Flanagan, Zarwin Baum DeVito Kaplan Schaer Toddy, P.C.

Judges: Sabatino and Kennedy

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