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San Filippo v. Bongiovanni

argued: May 13, 1994.

JOSEPH SAN FILIPPO, JR., APPELLANT
v.
MICHAEL BONGIOVANNI, ANTHONY S. CICATIELLO, ADREIENNE S. ANDERSON, DONALD M. DICKERSON, FLOYD H. BRAGG, NORMAN REITMAN, INDIVIDUALLY AND AS MEMBERS OF THE BOARD OF GOVERNORS OF RUTGERS UNIVERSITY, RUTGERS UNIVERSITY APPELLEES, RUTGERS COUNCIL OF AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, AMICUS CURIAE



On Appeal From the United States District Court for the District of New Jersey. (D.C. Civil No. 88-2575).

Before: Becker And Lewis, Circuit Judges and Pollak, District Judge.*fn*

Author: Pollak

Opinion OF THE COURT

POLLAK, District Judge.

This case, brought under 42 U.S.C. § 1983, arises out of the dismissal by Rutgers University -- New Jersey's principal state institution of higher education -- of plaintiff Dr. Joseph San Filippo, who was, until May 13, 1988, a tenured professor of chemistry. The defendants named in this case are Rutgers University and six members of the Rutgers Board of Governors (hereinafter collectively described as "Rutgers"). The district court granted Rutgers' motion for summary judgment and dismissed Professor San Filippo's case.

On appeal, San Filippo, with support from the Rutgers Council of American Association of University Professors Chapters ("Rutgers AAUP") as amicus, challenges the district court's grant of summary judgment in Rutgers' favor: (1) on San Filippo's claim that he was dismissed in retaliation for the exercise of his first amendment rights, and (2) on San Filippo's claim that Rutgers violated his right to procedural due process, because the panel that recommended his dismissal had, according to San Filippo, a financial incentive to recommend dismissal.

Part I of this opinion outlines the factual background and procedural history of this case. Part II analyzes the legal issues posed by San Filippo's first amendment claim. Part III addresses San Filippo's due process claim.

I. Factual background and procedural history

Because San Filippo appeals from the district court's grant of Rutgers' motion for summary judgment, the following factual recital accepts as true all evidence proffered by non-movant San Filippo, with all reasonable inferences drawn in his favor.

On November 25, 1985, Dean Tilden Edelstein told San Filippo and his Rutgers AAUP counsellor, Wells Keddie,*fn1 of allegations that San Filippo had harassed, exploited and attempted to exploit visiting scholars from the People's Republic of China. On January 6, 1986, Dean Edelstein sent San Filippo a letter stating the complaints against him. As required by one of the University's dismissal regulations, advice about whether dismissal proceedings should be commenced was sought from two groups of San Filippo's faculty peers and three academic officers of the University. On February 14, 1986, the tenured faculty members of the chemistry department passed a resolution concluding that the charges against San Filippo, if proven, represented grounds for dismissal. After the Appointments and Promotion Committee, the University Provost, and the Chief Academic Officer concurred in the sentiment expressed in that resolution, Rutgers University President Edward Bloustein wrote a letter to San Filippo, dated October 1, 1986, in which he described the formal charges against San Filippo. President Bloustein further indicated that, if San Filippo did not make a timely request for a hearing, President Bloustein would recommend to the University's Board of Governors that San Filippo be dismissed based on the charges outlined in the letter.

San Filippo exercised his right to a hearing before a panel of five faculty peers (the "Senate Panel") which, after a forty-six day hearing, concluded that San Filippo had committed almost all of the offenses charged. In a forty-four page report, issued on December 21, 1987, the Senate Panel recommended that San Filippo be stripped of his tenure and dismissed from the University. The Board of Governors unanimously concluded in its sixty-page opinion that the Senate Panel's findings were supported by the evidence. On May 13, 1988, the Board of Governors voted to dismiss San Filippo on the basis of nine charges of misconduct. One member of the seven-member Board -- Walter Wechsler -- voted against dismissal because he believed that the sanction was too severe; Wechsler has not been named as a defendant.

San Filippo filed the instant action on June 13, 1988. He alleges, among other things, that disciplinary proceedings were initiated against him and that he was dismissed in retaliation for the numerous (1) grievances and lawsuits he had instituted, and (2) complaints he had voiced, against Rutgers University and various University officials between 1977 and 1986 -- activities that he contends are protected by the first amendment.

A. San Filippo's alleged protected activities

In 1977, San Filippo wrote a letter to the then chemistry department chairman, Professor Sidney Toby, complaining about dangerous conditions in the chemistry laboratories, conditions that had been described by the New Jersey Department of Health as "generally unsatisfactory." In 1979, in response to a newspaper reporter's questions concerning a student's collapse due to noxious fumes during a chemistry experiment, San Filippo stated -- as reported by the newspaper on January 30, 1979 -- that undergraduate students were being subjected to a "health hazard and an absolute danger" and that "minimum safety requirements are not being met." San Filippo was berated by the then department chairman, Professor Joseph Potenza, and by an administrator for making these comments. San Filippo's comments led to the creation of an American Association of University Professors - University Safety Committee.

In 1977 and 1978, San Filippo testified before a grand jury regarding an investigation into the manufacture of illegal drugs in the chemistry laboratories. Potenza criticized San Filippo for his "disloyalty" and for "washing the department's dirty linen in public."

In 1983-84, San Filippo became embroiled in a dispute over what he describes as an effort by members of the chemistry department's instruments committee to obtain federal funding for a mass spectrometer by misrepresenting the department's need for such an instrument. San Filippo threatened to tell the federal funding agency the truth about the department's needs. The committee members wrote a memorandum to Potenza, as department chairman, protesting San Filippo's threats to undermine their efforts to obtain a mass spectrometer. Potenza told San Filippo that he intended to place the memorandum in San Filippo's personnel file. San Filippo contacted the United States Attorney's office regarding this action against him, and an Assistant United States Attorney told San Filippo that such an action would be characterized as an effort to obstruct Justice. After San Filippo told Potenza what the government lawyer had said, Potenza had the letter of reprimand removed from San Filippo's personnel file.

Between 1979 and 1986, San Filippo complained about certain financial irregularities in the chemistry department, particularly efforts to divert funds from San Filippo's federal grants. In October 1985, San Filippo objected to a proposal by the new department chairman, Professor Robert Boikess, to impose a "shop user's fee," which San Filippo characterized as illegal double billing of chemistry department members.

In 1981, the chemistry department declined to recommend San Filippo for promotion to full professorship. San Filippo filed a grievance in 1982, contending that he had been denied promotion through manipulation of his promotion packet. While this grievance was pending, the chemistry department recommended that San Filippo be promoted to full professor, effective July 1984. Although the grievance committee ultimately agreed with San Filippo that he should have been promoted, the University took the position that the issue was moot. In September 1985, San Filippo filed a lawsuit in state court in which he contended that he was entitled to have his promotion effective July 1982. That suit is still pending.

In 1984, San Filippo grieved the fact that he had been denied a merit salary increase. The University rejected San Filippo's grievance, and he filed for non-binding arbitration. The first hearings in the arbitration occurred in October 1985. On September 10, 1986, Boikess testified for the University. Regarding this event, the arbitrator commented in his decision dated December 26, 1986:

Little things are often very revealing. A transcript does not convey the full flavor of what transpires in the hearing room. Boikess was called on the last day of the hearing. He brought his own lawyer with him (Mr. Peirano).

San Filippo cordially greeted him before he took the stand. Boikess would not acknowledge the greeting and refused to acknowledge grievant's presence in the room.

During his testimony, Boikess kept referring to grievant's "self-nomination" [for the merit salary award]. His tone of voice was so caustic that it sparked an inquiry from me. (The inference to be drawn by the tone of voice employed was that a "self-nomination" was somehow less worthy).

I specifically asked Boikess why he emphasized "self-nomination." Boikess danced around the issue and did not really answer my question. It became obvious that he would not answer, so I gave up. Further, the tenor and tone of his testimony revealed his near-total contempt for San Filippo.

I note in passing that most of the persons being considered were self-nominated. The [merit salary award procedure] specifically provides for same.

One would have to be a block of wood to fail to notice Dr. Boikess' complete distaste for Joe San Filippo.

(A.1155 n.21). The arbitrator sustained San Filippo's complaint. He further noted in his opinion:

San Filippo testified, without contradiction, that he was criticized by administration officials for talking to the school newspaper about unsafe conditions in the laboratories. [San Filippo] was chairman of the Safety Committee at the time. A student took ill. [San Filippo] was accused of being "disloyal." Putting aside the serious first amendment issues the episode raises (Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731), it seems to me that the danger to the health of the students outweighs any possible harm to the reputation of those in authority that disclosure of lab conditions might have created. Further, there is a difference to [sic] loyalty to the institution and the purposes it is supposed to serve and fealty to the individuals who may, at any given moment, occupy positions of higher authority in the organization. Which is more important in the scheme of things: bruised feelings because the teacher is tough and demanding or personal safety? . . .

While not directly at issue, there was some unsettling evidence that [Dr. San Filippo's] promotion packet had been surreptitiously removed and unfavorable material secretly inserted. [Dr. San Filippo] had to bring successful grievance action to rectify the situation. It would appear that someone was willing to go to extra-ordinary lengths to deny [Dr. San Filippo] professional advantage. That kind of conduct is similar to what happened to [Dr. San Filippo] in the [merit salary award] review.

[Dr. San Filippo's] nomination was clearly Judged under separate "San Filippo rules" that were applicable to no one else.

(A.1161 n.29).

In November 1985, Dr. San Filippo brought a libel action in state court against three administrators who accused San Filippo of deliberately falsifying time reports relating to one of his technical assistants.

Finally, San Filippo brought a lawsuit in state court against the University in March 1986 complaining about, among other things, the University's decision to prohibit -- without a hearing of any kind -- graduate student assistance in San Filippo's research program, because of the accusations against San Filippo.

B. The charges and proceedings against San Filippo

As explained above, on October 1, 1986, President Bloustein brought formal written charges against San Filippo. After a hearing before the Senate Panel, which recommended dismissal,

the Board of Governors, which reviewed the findings of the Senate Panel for sufficiency of the evidence, concurred in the Senate Panel's findings sustaining the following charges:

Charge 1 : Your treatment of scholars visiting from the People's Republic of China and a Chinese Teaching Assistant violated the standards of professional ethics required by all faculty members. More specifically, your treatment with respect to these individuals, as set forth more fully in the attached documents, is as follows:

a. You took advantage of your professorial position and exploited Mr. Hetian Gao and Mr. Changhe Xiao, both visiting scholars from the People's Republic of China, by directing them or leading them to believe that they had no choice but to perform domestic work for you, such as garden work and indoor and outdoor cleaning work during the period May through July 1985.*fn2

c. You exploited Messrs. Gao and Xiao by representing that they would be provided health benefits coverage and that you would deduct $700.00 from the salary to be paid each of them in order to cover the costs of such benefits. Despite deducting such sums, you did not provide coverage to either Mr. Gao or Mr. Xiao.

d. During the period of time that the above-named visiting Chinese scholars were at Rutgers, you threatened and harassed those individuals by repeatedly stating that you would send them back to China and by directing abusive language toward them.

e. On or about March 31, 1986, you interrupted without sufficient cause a laboratory class being conducted by Teaching Assistant, Zong Ping Chen. You continued that incident by treating her in an unprofessional, threatening and abusive manner, within the hearing of other individuals, including her students.

Charge 2 : On or about July 8, 1985, you directed Mr. Changhe Xiao, who had injured himself while doing maintenance work at your house, to identify himself as Mr. Peng Zhou in Middlesex Hospital in order to have Mr. Xiao covered by Mr. Peng Zhou's medical insurance.

Charge 3 : You encouraged and permitted individuals working under your direction and supervision to submit false time reports and to make inappropriate charges against certain University accounts. Specifically:*fn3

b. Ms. Marilyn Brownawell, who works directly under your supervision, submitted time reports for the week ending August 17, 1984. She reported and was paid for 40 hours of work for that period, charged against the Chemistry Department's mass spectrometer account, even though you knew that she did not perform any work related to the mass spectrometer or indeed any compensable work for Rutgers of any kind during that period.*fn4

Charge 4 : You violated professional and academic standards and exploited foreign visitors to the University by bringing to the University as post-doctoral fellows Chinese scholars you knew did not have appropriate credentials and by charging stipends of such individuals, who did not possess doctoral degrees, to your NSF grant as post-doctoral fellows. Subsequently you supported these individuals for admission to the graduate program in Chemistry, a fact which clearly established that they did not have the credentials to be post-doctoral fellows.*fn5

Charge 5 : During Fall 1985, you submitted an application for admission to the graduate program, including letters of reference, on behalf of Mr. Peng Zhou, one of the individuals referred to in #4 above. One of the letters of reference submitted by you purportedly was written and signed by Liu Guozhi. In fact, that letter was not prepared by Liu Guozhi, and you had knowledge of the fact and did not make it known when you submitted the letter.

Charge 6 : On December 16, 1985, Professor Robert Boikess, Chair of your department, specifically instructed you not to permit Mr. Peng Zhou, Mr. Cong-Yuan Guo, or any other graduate student except those already associated with your research group, to work in your laboratory, pending investigation of allegations of exploitation and harassment lodged against you by visiting Chinese scholars. Despite these specific instructions, you subsequently permitted Cong-Yuan Guo, Zhen-min He, and Peng Zhou to perform work in your laboratory.

In the Board's opinion, the Board specifically found that the conduct described in sustained charges 1(a), 1(d) and 1(e) was a serious enough breach of the role of faculty member that, even if those were the only sustained charges, there would be sufficient cause for dismissal. Accordingly, on May 13, 1988, the Board directed that San Filippo be dismissed from the University.

Board member Wechsler agreed with his colleagues' findings but felt that dismissal was too severe a sanction: "Because this punishment is clearly out of proportion to his alleged wrongdoing, and quite possibly tainted by a long history of animus, I respectfully Dissent." (A.322).

C. The procedural history of this case

On June 13, 1988, San Filippo filed this suit against the University and the six Board members who voted in favor of his dismissal. San Filippo sued under ยง 1983 and state law, alleging that the dismissal violated his speech, petition, equal protection, and due process rights under the United ...


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