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Cedeno v. Montclair State University3/9/1999
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 1998
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
The opinion of the court was delivered by
The issue presented by this appeal is whether a person who is statutorily disqualified from obtaining public employment as a result of a criminal conviction may maintain an action for an alleged wrongful discharge, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, or the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We hold that such an action may not be maintained and consequently reverse the denial of defendants' motions for summary judgment.
Between 1973 and 1979, plaintiff was employed by the Southeastern Pennsylvania Transportation Authority (SEPTA), an agency of the Commonwealth of Pennsylvania, as its Director of Purchasing. On June 10, 1981, a Pennsylvania grand jury returned a presentment recommending that plaintiff be charged with nineteen counts of bribery in official and political matters, in violation of 18 Pa. Cons. Stat. ยง 4701. This presentment was based on testimony by four vendors that they had paid kickbacks to plaintiff to obtain contracts from SEPTA or to increase the volume of their sales to SEPTA. The total amount of these kickbacks, which were paid over a six year period, exceeded $15,000. Plaintiff was subsequently charged in accordance with this presentment, and on November 9, 1982, he pled nolo contendere to four counts of bribery. The court sentenced defendant to a five year term of probation and a $2,500 fine on one count of bribery and a suspended sentence on the remaining counts.
After plaintiff left his position at SEPTA, he became employed by Fairfax County, Virginia, as Director of its Purchasing and Supply Management Agency. On June 30, 1980, the Fairfax County Board of Supervisors unanimously voted to discharge plaintiff. This discharge was based on a recommendation by the Acting County Executive, who reported that plaintiff "intimidated his staff, ... was profane, vulgar and abusive in his speech, ... [and had brought] discredit on himself and discredit and embarrassment to his agency and to the County Government."
In 1986, plaintiff applied for the position of Director of Purchasing at Montclair State University (MSU). The job application form which plaintiff was required to complete asked whether he had any "criminal convictions." In response, plaintiff checked the line which said "No." In response to another question which asked an applicant to set forth the names of prior employers, plaintiff disclosed his employment with SEPTA but did not set forth his employment with Fairfax County. After plaintiff was interviewed by Dr. Barry Cohen, MSU's Assistant Vice President of Administration and Finance, MSU hired him under a one-year employment contract which was subject to renewal on an annual basis.
On November 7, 1989, Dr. Cohen, who was then plaintiff's supervisor, recommended that his employment contract not be renewed. Dr. Cohen submitted a report which stated that " n the past year, Charles' performance has been significantly impaired by repeated instances of poor judgment, inappropriate behavior, and ... a failure to complete a particularly important assignment." However, the President of MSU, who was newly appointed, declined to accept this recommendation because he himself had not yet had an opportunity to evaluate plaintiff.
In March of 1996, plaintiff's new supervisor, defendant Raye Jean Mastrangelo, also recommended that plaintiff not be re-appointed. Mastrangelo cited numerous deficienci
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