BYRD v. ATLANTIC CITY HOUSING AUTHORITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

EVELYN BYRD,

Plaintiff,

No. 1:19-cv-18575

v.

ATLANTIC CITY HOUSING

OPINION

AUTHORITY, et al.,

Defendants.

APPEARANCES:

Peter M. Kober

KOBER LAW FIRM, LLC

1864 Route 70 East

Cherry Hill, NJ 08003

On behalf of Plaintiff.

Gerald J. Helfrich

MUSCIO, KAPLAN & HELFRICH, LLC

3125 State Route 10, Suite 2D

Denville, NJ 07834

On behalf of Defendants.

O’HEARN, District Judge.

This matter comes before the Court on the Cross-Motions for Summary Judgment filed by

Plaintiff Evelyn Green (“Plaintiff”) and Defendants Atlantic City Housing Authority (“ACHA”)

and ACHA Executive Director Thomas J. Hannon (“Hannon” and with ACHA, “Defendants”).

(ECF Nos. 76–77). The Court did not hear oral argument pursuant to Local Rule 78.1. For the

reasons that follow, the Court GRANTS Plaintiff’s Motion for Partial Summary Judgment, (ECF

No. 76), and GRANTS IN PART and DENIES IN PART Defendants’ Motion for Summary

Judgment, (ECF No. 77).

I. BACKGROUND1

Plaintiff was employed as a security guard at ACHA from roughly September 2011 until

October 2017. (Pla.’s Stat. of Mat. Facts (“SOMF”), ECF No. 76-3, ¶¶ 1–2; Defs.’ SOMF, ECF

No. 77-5 ¶ 1). As an ACHA employee, she was bound by its personnel policy, which, among other

things, provides that “[a]n employee’s employment and compensation can be terminated with or

without cause and with our without notice, at any time at the option of either the Authority or the

employee, unless the employee is otherwise covered by Civil Service or a Collective Bargaining

Agreement.” (Exh. G, ECF No. 77-12 at PDF p.44; Defs.’ SOMF, ECF No. 77-5, ¶ 1). As this

clause contemplates, Plaintiff was a member of a union—the Security, Police and Fire

Professionals of America Local 506 (“the Union”)—that had negotiated a collective bargaining

agreement with AHCA that covered her. (ECF No. 76-3, ¶ 4; Exh. H, ECF No. 77-13 at 136:14–

24).

Among others, Article 7 of that collective bargaining agreement includes the following

terms:

G. Discipline for an employee shall be imposed for just cause. The Chief Steward

will be informed within forty-eight (48) hours by mail or fax when discipline of

any nature is to be imposed.

. . . .

I. If an employee is summoned to a meeting, which he/she reasonably believes will

lead to disciplinary action, he/she will have the right to have a Chief Steward at the

meeting.

J. When the Employer believes that an employee has acted in such a manner that

he/she should be subject to disciplinary action, the Management should first

privately discuss the matter with the employee concerned and the Union

1 The facts set forth herein related to this Motion are undisputed unless otherwise noted. To

the extent facts remain in dispute, the Court finds that they are immaterial to its legal analysis.

representative, if the employee requests such.

K. Upon request of the Union, the parties will mutually arrange a hearing at the

earliest possible date after the proper notice has been given to the employee.

L. A hearing officer will be assigned by the Executive Director or designee. All

facts should be presented at this hearing, and both parties afforded the opportunity

to present witnesses, documents and make oral arguments before the hearing

officer.

M. A report of the hearing and a determination of the extent of disciplinary action,

if any, will be made within twenty (20) calendar days by the hearing officer after

the close of the record.

N. The Personnel Officer, with the approval of the Executive Director, may

determine that an immediate suspension with or without pay may be imposed

pending the outcome of the hearing. The employee will be notified of such a

determination and the reasons for the decision upon being served with the

disciplinary charges, and given an opportunity to respond verbally or in writing.

O. Following a hearing, the Hearing Officer may decide to agree with the

recommended Disciplinary action or amend the recommended action to take (1) or

more of the following forms, which are not required to be in the order set forth

below:

1) Verbal reprimand, with notations to the employee’s personnel file that

such action was taken;

2) Written reprimand with a copy of the reprimand placed in the employee’s

personnel file;

3) Suspension from duty without pay for one (1) or more days;

4) Demotion or payment of a fine as set forth below. Demotion shall

include, but not be limited to, a change in job title and/or loss of pay. A fine

may be imposed as a form of restitution, in lieu of suspension, where the

employee has agreed to payment of a fine as a disciplinary action. The fine

may be paid in lump sum or installments, as determined by the Executive

Director or designee;

5) Dismissal from the Authority’s employ.

P. The Executive Director will review the Hearing Officer’s decision and authorize

the imposition of the recommended disciplinary action. The Executive Director

can, for good cause, amend the recommended action prior to imposition. The Union

will be permitted in such a situation to provide written opposition to the Executive

Director’s decision, only where the action of the Executive Director causes an

increased discipline.

(Exh. I, ECF No. 77-14 at 11–12; ECF No. 76-3, ¶ 4; ECF No. 77-5, ¶¶ 8, 11–13). The article also

sets forth “a non-exclusive list of possible violations that may affect the employee’s

status/employment with the Authority,” including, (i) “Harassment of co-workers, volunteers or

visitors,” (ii) “Insubordination,” (iii) “Failure to perform duties,” (iv) “Conduct unbecoming a

public employee.” (Exh. I, ECF No. 77-14 at 10–11; ECF No. 77-5, ¶ 10).

By September 29, 2017, and in the weeks that followed, Defendants came to believe that

they had just cause to discipline Plaintiff for a series of personnel issues that occurred beginning

in September 2017. (ECF No. 76-3, ¶ 6; Exh. 5, ECF No. 76-5). These issues included unbecoming

conduct, harassment of a coworker, intimidation of a coworker, appearing on property when

unscheduled, videotaping employees when off duty, and spreading rumors about coworkers. (ECF

No. 76-3, ¶ 6). Defendants prepared several security incident reports and multiple coworkers of

Plaintiff provided written statements memorializing these events. (ECF No. 76-3, ¶¶ 7–16;

Exhs. 6–14, ECF No. 76-6–76-14).

On October 21, 2017, Defendants presented Plaintiff a discharge memorandum informing

her that she was terminated from her employment effective immediately. (ECF No. 76-3, ¶¶ 17–

18; Exh. 16, ECF No. 76-16). The memorandum explained that Plaintiff had “repeatedly violated

the terms of [her] employment” by “creat[ing] a hostile work environment for . . . part-time

employees” and spreading “gossip and untruths” about coworkers and their families and was

signed by Hannon as ACHA’s Acting Executive Director. (Exh. 16, ECF No. 76-16). This

memorandum was Plaintiff’s first notice of the allegedly just cause for her determination. (ECF

No. 76-3, ¶ 18).

Ten days after her termination, the Union filed a grievance on Plaintiff’s behalf and a post-

termination hearing was held on November 30, 2017. (ECF No. 77-5, ¶¶ 17, 19; Exh. J, ECF No.

77-15). Plaintiff attended the hearing alongside representatives from the Union and was allowed

to present evidence and testimony in her defense. (ECF No. 77-5, ¶¶ 20–21; Exh. H, ECF No. 77-

13 at 196:11–197:20).

On December 8, 2017, ACHA advised Plaintiff by letter that the hearing officer had

determined that “the circumstances surrounding [her] termination of employment were both valid

and truthful,” and thus, the decision to terminate her would not be reversed. (Exh. K, ECF No. 77-

16; ECF No. 77-5, ¶ 22). Plaintiff contacted the Union and requested that it seek to proceed to

arbitration on her behalf. (ECF No. 77-5, ¶ 22). In a letter dated March 18, 2018, the Union advised

her of its decision with respect to that request:

After careful consideration of the facts of your grievance, the grievance has been

turned down because it lacked arbitration merit. Therefore, the grievance will not

be arbitrated. It will be withdrawn without prejudice and precedent. A notice will

be sent to the employer. No further action will be taken.

(Exh. L, ECF No. 77-17 (emphases in original); ECF No. 77-5, ¶ 25).

This suit followed. (Compl., ECF No. 1).

II. PROCEDURAL HISTORY

Plaintiff initiated this action on October 1, 2019, by filing her Complaint pro se. (ECF

No. 1). She later applied for and was granted in forma pauperis status. (ECF No. 5). Plaintiff

subsequently retained counsel, who entered his appearance on March 20, 2020. (ECF No. 23).

Although her original Complaint asserted a variety of claims against several defendants,

Plaintiff later amended the pleading without opposition, narrowing her allegations. (ECF No. 33).

Plaintiff’s Amended Complaint comprised eight counts: (i) wrongful discharge in violation of

public policy under New Jersey common law as to both Defendants (“Count I”); (ii) denial of pre-

deprivation procedural due process under 42 U.S.C. § 1983 as to Hannon in his individual capacity

(“Count II”); (iii) the same as to Hannon in his official capacity (“Count III”); (iv) the same under

Monell v. Department of Social Services, 436 U.S. 658 (1978), as to ACHA (“Count IV”);

(v) denial of post-deprivation procedural due process under 42 U.S.C. § 1983 as to Hannon in his

individual capacity (“Count V”); (vi) the same as to Hannon in his official capacity (“Count VI”);

(vii) the same under Monell as to ACHA (“Count VII”); and (viii) denial of fundamental fairness

under New Jersey common law as to both Defendants (“Count XIV”). (ECF No. 33).2 Defendants

answered on June 24, 2020, and the parties proceeded to discovery. (ECF No. 34).

After the close of discovery on May 31, 2021, (ECF Nos. 45, 47), and an unsuccessful

settlement conference in July 2021, (ECF No. 48), the parties filed their first Cross-Motions for

Summary Judgment on November 12, 2021. (ECF Nos. 52–53). The Court heard oral argument

on those Motions on June 29, 2022, and delivered an opinion from the bench. (ECF No. 70).

The Court granted Defendants’ Motion, (ECF No. 53), in part and denied it in part without

prejudice. (ECF No. 69). Specifically, the Court granted Defendants summary judgment on all

counts except Count II and Count XIV of the Amended Complaint and denied summary judgment

without prejudice as to those same counts. (ECF No. 69).

As to Plaintiff’s Motion, which sought summary judgment on Counts II and III only, (ECF

No. 52), the Court denied it in part and denied it in part without prejudice. (ECF No. 69). The

Court denied Plaintiff summary judgment as to Count III—having granted Defendant summary

judgment on that same count—and denied her summary judgment without prejudice as to Count

II. (ECF No. 69).

The Court further ordered the parties to attend another settlement conference with

Magistrate Judge Matthew J. Skahill, and if unsuccessful, granted them leave to file renewed

motions for summary judgment as to the remaining claims. (ECF No. 69).

2 Counts VIII through XIII were all voluntarily dismissed, as were all defendants save for

ACHA and Hannon. (Text Order, ECF No. 38).

Having been unable to settle the matter, (ECF No. 73), the present Cross-Motions for

Summary Judgment followed. (ECF Nos. 76–77). Defendants have moved for summary judgment

on all remaining claims, (ECF No. 77), to which Plaintiff responded in opposition, (ECF No. 81).

Plaintiff seeks summary judgment as to Count II alone, (ECF No. 76); Defendants responded in

opposition, (ECF No. 82), and Plaintiff replied in further support, (ECF No. 83).

III. LEGAL STANDARD

Courts may grant summary judgment when a case presents “no genuine dispute as to any

material fact and . . . the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

A genuine dispute of material fact exists only when there is sufficient evidence for a reasonable

jury to find for the non-moving party. Young v. United States, 152 F. Supp. 3d 337, 345 (D.N.J.

2015). When the Court considers the evidence presented by the parties, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 346

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The moving party bears the burden of establishing that no genuine issue of material fact

remains. Id. A fact is material only if it will affect the outcome of a lawsuit under the applicable

law, and a dispute of material fact is genuine if the evidence is such that a reasonable fact finder

could return a verdict for the nonmoving party. Id. The nonmoving party, however, must present

“more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v.

County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).

IV. DISCUSSION

The parties have cross-moved for summary judgment as to Count II of Plaintiff’s Amended

Complaint—her § 1983 claim for denial of pre-deprivation procedural due process as to Hannon

in his individual capacity—and Defendants have further moved for summary judgment as to Count

XIV, Plaintiff’s claims for denial of fundamental fairness as to both Defendants under New Jersey

common law. (ECF Nos. 76–77). For the reasons that follow, the Court concludes that Plaintiff is

entitled to summary judgment with respect to Count II and Defendant is entitled to the summary

judgment with respect to Count XIV, and thus grants Plaintiff’s Motion and grants Defendants’

Motion in part and denies it in part.

A. Plaintiff’s Pre-Deprivation Procedural Due Process Claim (Count II)

The parties each seek summary judgment with respect to Count II, Plaintiff’s § 1983 claim

for Hannon’s alleged denial of her pre-deprivation procedural due process rights. (ECF Nos. 76–

77). Plaintiff argues that she was entitled to notice of cause and a hearing of some kind prior to the

termination of her employment. (Pla.’s Br., ECF No. 76-2 at 2–6; Pla.’s Resp. ECF No. 81 at 1–

6). Defendants do not contest that Plaintiff received neither, (Pla.’s SOMF, ECF No. 76-3, ¶ 18),

arguing instead that she was not entitled to them, (Defs.’ Br., ECF No. 77-5 at 7–15; Defs.’ Resp.,

ECF 82 at 3–7). But Defendants’ position is plainly incorrect in light of the Supreme Court’s

holding in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). As such, for the

reasons that follow, Plaintiff is entitled to summary judgment as to Count II.

Plaintiff brings this suit under 42 U.S.C. § 1983,3 alleging that Hannon violated her pre-

3 To succeed on a § 1983 claim generally, a plaintiff must show “(1) a person deprived him of

a federal right; and (2) the person who deprived him of that right acted under color of state or

territorial law.” See Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).

Defendants do not appear to dispute that Hannon was a state actor for § 1983 purposes, (ECF Nos.

77-5, 82), and thus, the Court need only analyze whether Hannon violated Plaintiff’s rights.

deprivation procedural due process rights under the Fourteenth Amendment. (Am. Compl., ECF

No. 33). To determine whether Hannon deprived Plaintiff of due process, the Court “must first ask

whether the asserted individual interests are encompassed within the [F]ourteenth [A]mendment’s

protection of ‘life, liberty, or property.’” Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir.

2008) (quoting Robb v. City of Phila., 733 F.2d 286, 292 (3d Cir. 1984)). If so, the Court “then

must decide what procedures constitute ‘due process of law.’” Id. (quoting Robb, 733 F.2d at 292).

As to the first question, Defendants concede that Plaintiff had a Fourteenth Amendment-protected

property interest in her continued employment. (ECF No. 82 at 3). Accordingly, all that remains

for the Court to determine is what sort of process must she have been afforded before she was

deprived of her job. Loudermill, 470 U.S. at 541 (“[O]nce it is determined that the Due Process

Clause applies, ‘the question remains what process is due.’” (quoting Morrissey v. Brewer, 408

U.S. 471, 481 (1972))). The answer to that question is simple.

As the Supreme Court explicitly stated in Loudermill, a “tenured public employee is

entitled to oral or written notice of the charges against h[er], an explanation of the employer’s

evidence, and an opportunity to present h[er] side of the story” before her employment may be

terminated. 470 U.S. at 542, 546. These procedures do not need to be formal or elaborate, but they

remain necessary: the employee is entitled to some form of “notice and an opportunity to respond.”

Id. at 545–46. And “in those situations where the employer perceives a significant hazard in

keeping the employee on the job, it can avoid the problem by suspending with pay.” Id. (footnote

omitted).

Therefore, there can be no doubt that Plaintiff was entitled to notice and some sort of

hearing to permit her to respond before she was terminated. Id. at 542. The parties agree that she

received neither. (Pla.’s SOMF, ECF No. 76-3, ¶ 18). Having not, Hannon deprived Plaintiff of

her due process rights under the Fourteenth Amendment and Plaintiff is entitled to summary

judgment as to Count II.

Defendants raise several arguments to try to avoid this conclusion, none of which is

persuasive. First, they suggest that Plaintiff was not entitled to notice and a hearing because no

statute or provision of the collective bargaining agreement to which Plaintiff was subject provided

her such a right. (ECF No. 82 at 3). But Plaintiff’s right to a pre-termination hearing does not flow

from a statute or an agreement; rather, it derives from the Fourteenth Amendment. Loudermill,

470 U.S. at 542. Defendants misread Loudermill when they suggest that “the decision was based

on the existence of a[n] Ohio statute that specifically provided the aggrieved party with the right

to a pre-termination hearing.” (ECF No. 82 at 3). Loudermill’s holding is constitutional; it

describes what process is due for the deprivation of a protected property right under the

Constitution. Id. (“[The Due Process Clause] requires ‘some kind of a hearing’ prior to the

discharge of an employee who has a constitutionally protected property interest in his

employment.”). Plaintiff was denied her due process rights here. Id.

Next, Defendants seem to argue that the notice they provided Plaintiff was specific and

supported by sufficient evidence. (ECF No. 82 at 4–5). That might well be true, but it is irrelevant

because of when they provided that notice. Defendants agree that the “first notice” Plaintiff

received of the cause for her termination was the same memorandum that effected her termination.

(Pla.’s SOMF, ECF No. 76-3, ¶ 18). By failing to provide this notice prior to Plaintiff’s

termination, she was denied due process. Loudermill, 470 U.S. at 542.

Defendants also suggest that Plaintiff’s immediate termination was necessary because her

behavior “became increasingly unstable.” (ECF No. 82 at 4–5; see also ECF No. 77-5 at 8–10).

However, Defendants’ concern about Plaintiff’s behavior did not provide them license to violate

her due process rights. More importantly, Loudermill provides direction for how to proceed in such

circumstances: “in those situations where the employer perceives a significant hazard in keeping

the employee on the job, it can avoid the problem by suspending with pay.” 470 U.S. at 545–46

(footnote omitted). Defendants did not do so in this case. Instead, Defendants terminated Plaintiff

immediately, and in doing so, denied her due process. Id. at 542.

Defendants relatedly argue, relying on cases such as Gilbert v. Romar, 520 U.S. 924

(1997), that the flexibility of due process allows for post-deprivation process to satisfy Fourteenth

Amendment requirements in certain circumstances.4 (ECF No. 77-5 at 7–9). But Defendants miss

the critical difference between cases like Gilbert and those like Loudermill and the present one:

Gilbert concerned the process due a tenured public employee prior to a suspension from

employment, not termination. Compare Loudermill, 470 U.S. at 542 with Gilbert, 520 U.S. at 928–

29; see also Reilly v. City of Atlantic City, 532 F.3d 216, 233–36 (3d Cir. 2008) (reversing district

court’s denial of qualified immunity for failure to considered post-deprivation procedures in a

suspension, not termination case). Defendants are correct in saying that “a public employee is not

absolutely entitled to a pre-suspension hearing.” (ECF No. 77-5 at 8). But Plaintiff was not

suspended; she was terminated. (Pla.’s SOMF, ECF No. 76-3, ¶ 17). Accordingly, under

Loudermill, she was entitled to but denied notice and a hearing, and thus deprived of due process.

4 Defendants also cite Biliski v. Red Clay Consolidated School District Board of Education,

574 F.3d 214 (3d Cir. 2009), for this proposition, but that case is also readily distinguishable. In

Biliski, although the plaintiff did not receive a formal hearing prior to his termination, he did

receive an informal one: he met with and discussed the cause for his termination with school

administrators before the school board made the ultimate decision regarding his employment. 574

F.3d at 215–18. This sort of informal hearing—which Loudermill explicitly sanctioned, 470 U.S.

at 545 (“[T]he pretermination ‘hearing,’ though necessary, need not be elaborate.”)—coupled with

post-termination process secured the plaintiff’s due process rights. Biliski, 574 F.3d at 224. Here,

Plaintiff was denied even an informal hearing before her termination. As noted above, the same

memorandum that provided her the “first notice” of the cause for her discipline actually effected

her immediate termination.

470 U.S. at 542.

Finally, Defendants argue that regardless of whether Hannon violated Plaintiff’s rights, he

is entitled to qualified immunity. (ECF No. 77-5 at 13–15). He is not. The qualified immunity

doctrine generally shields government officials from liability when they perform their duties

reasonably. E.g., Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 168 (3d Cir.

2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “When properly applied, it

protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al–

Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). To overcome

the immunity, a plaintiff must show “(1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Id. at 735.

Courts conducting this qualified immunity analysis have the discretion to tackle either of the

prongs first. Id.

Taking them in order, first, as explained above, Hannon violated Plaintiff’s Fourteenth

Amendment due process right to notice and a hearing prior to her termination from tenured

employment. As to the second question, a government official’s conduct “violates clearly

established law when, at the time of the challenged conduct, the contours of a right are sufficiently

clear that every reasonable official would have understood that what he is doing violates that right.”

Id. at 741 (quotations and alterations omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). The doctrine does “not require a case directly on point, but existing precedent must have

placed the statutory or constitutional question beyond debate.” Id. Here, we have both: Loudermill

is directly on point and had been the law at the time of Plaintiff’s termination for over thirty years.

470 U.S. 532. No debate remained as to what process was due to tenured public employees before

their termination. Id. at 542. Hannon failed to provide it. (Pla.’s SOMF, ECF No. 76-3, ¶ 18). He

violated Plaintiff’s clearly established right and therefore is not entitled to qualified immunity.

Loudermill, 470 U.S. at 542.

In sum, because Hannon terminated Plaintiff—a public employee with a constitutionally-

protected property interest in her continued employment—without prior notice or a hearing, he

deprived her of her pre-deprivation procedural due process rights in violation of § 1983. She is

thus entitled to summary judgment as to Count II, her Motion is granted, and Defendants’ Motion

is denied in part.5

B. Plaintiff’s Fundamental Fairness Common Law Claim (Count XIV)

Defendants have moved for summary judgment with respect to Count XIV, Plaintiff’s

claims for denial of fundamental fairness under New Jersey common law, arguing that Plaintiff

was not subject to any “unjust and arbitrary governmental action” in her termination. (ECF No.

77-5 at 15–17). Whether or not that is true, Plaintiff’s fundamental fairness claims suffer from a

more glaring deficiency: it does not appear that any such claim exists.

In support of her “claim,” Plaintiff cites cases such as State v. Saavedra, 117 A.3d 1169

(N.J. 2015), which refer to the “doctrine of fundamental fairness.” Id. at 1185. That doctrine,

however, is a legal framework “sparingly” applied “at various stages of the criminal justice

process” to “protect citizens generally against unjust and arbitrary governmental action, and

specifically against governmental procedures that tend to operate arbitrarily.” Id. (emphasis added)

(quoting Doe v. Poritz, 662 A.2d 367, 422 (N.J. 1995)). As such, it is better understood as a state

constitutional backstop akin to the vagueness doctrine, see, e.g., State v. Lee, 475 A.2d 31, 36 (N.J.

5 Having established Hannon’s liability under § 1983, the question remains what damages

Plaintiff is due. More specifically, the question presented is what damages were caused by the

violation of her pre-deprivation rights when in the end she was provided with a hearing and her

termination was upheld. That question is for another day. In an order to follow, the Court will

establish appropriate procedures to resolve these remaining issues.

1984), on which criminal defendants can rely to challenge charges levied against them. The Court

is aware of no case—and Plaintiff points to none6—recognizing a private cause of action under

the doctrine.

As a federal court sitting in diversity, in the absence of any clear precedent from the state’s

high court, the Court must predict how the Supreme Court of New Jersey would treat the question

of whether such a claim exists. See, e.g., Hunt v. U.S. Tobacco Co., 538 F.3d 217, 220 (3d Cir.

2008). The Court would not presume to create a brand new cause of action without even persuasive

authority suggesting its existence. Cf. Proske v. St. Barnabas Med. Ctr., 712 A.2d 1207, 1210 (N.J.

App. Div. 1998) (“Generally, a new cause of action should be created by legislative enactment or

by the Supreme Court rather than by an intermediate appellate court.”); see also Hunt, 538 F.3d at

220 (“In making such a prediction, we should consider relevant state precedents, analogous

decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to

show how the highest court in the state would resolve the issue at hand.”). Accordingly, the Court

concludes that Count XIV must be dismissed.

6 Plaintiff cites In re A.I., 922 A.2d 817 (N.J. App. Div. 2007), as an “example of the

application of fundamental fairness” by a New Jersey court. (ECF No. 81 at 7). But that description

is a stretch. A.I. does not recognize a fundamental fairness cause of action. Nor does it really refer

to the fundamental fairness doctrine described in Saavedra, 117 A.3d 1169. Rather, A.I. explains

how a state administrative agency failed to abide by the concept of fundamental fairness—and thus

violated state statutory and administrative law—when it failed to explain its reasons for dismissing

allegations of child abuse against a teacher. 922 A.2d at 824–25. In other words, the fundamentally

unfair nature of the agency’s action was, in part, the reason it had violated the state administrative

code. Id. This holding—if it can even be called that—can hardly be used to support the private

cause of action Plaintiff seeks to advance here.

CONCLUSION

For the foregoing reasons, Plaintiffs Motion for Partial Summary Judgment, (ECF No.

76), is GRANTED, and Defendants’ Motion for Summary Judgment, (ECF No. 77), is

GRANTED IN PART and DENIED IN PART. An appropriate Order accompanies this Opinion.

(fritnel Den

CHRISTINE P. □□ HEARN

United States District Judge

15