                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2009

Elizabeth Wong v. Regina Thomas
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4571




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Recommended Citation
"Elizabeth Wong v. Regina Thomas" (2009). 2009 Decisions. Paper 1220.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1220


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                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 08-4571


                              ELIZABETH WONG,

                                                         Appellant

                                        v.

            REGINA THOMAS, in her individual and official capacity;
           MICAH RASMUSSEN, in his individual and official capacity;
          DIANE LEGREIDE; JAMIE FOX; STATE OF NEW JERSEY;
              E. MICHAEL ANGULO; KELLIE DRAKEFORD;
         HIGHER EDUCATION STUDENT ASSISTANCE AUTHORITY;
                           AMY MANSUE


                 On Appeal from the United States District Court
                        for the District of New Jersey
                         (D.C. Civ. No. 05-cv-02588)
                  Honorable Anne E. Thompson, District Judge


                   Submitted under Third Circuit LAR 34.1(a)
                                 June 2, 2009

       BEFORE: MCKEE, HARDIMAN, and GREENBERG, Circuit Judges

                              (Filed: June 05, 2009)


                            OPINION OF THE COURT


GREENBERG, Circuit Judge.
       This matter comes on before this Court on Elizabeth Wong’s appeal from a final

summary judgment entered on October 17, 2008, (1) dismissing certain aspects of the

claims she has asserted in this case in part initiated in the District Court and in part

removed from the Superior Court of New Jersey, and (2) remanding the balance of the

case to that court. In addition, Wong has appealed from a separate order of the District

Court entered on September 10, 2008, denying her motion for the imposition of sanctions

against defendants-appellees based on their alleged spoliation of evidence. The appellees

are New Jersey state officials and as well as the State itself and the New Jersey Higher

Education Assistance Authority. Wong, an American of Chinese background, is the

former executive director of the Authority who certain of the individual defendants forced

to resign. Wong brought this action under federal and New Jersey law alleging, inter alia,

racial and national origin discrimination and wrongful termination. Wong further claims

that appellees pressured her to engage in unlawful activity as the executive director.

Wong predicates her spoliation claim on allegations that appellees improperly destroyed

significant electronic documents important to her case.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1367 and 1441(b),

and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s denial

of Wong’s spoliation motion on an abuse of discretion basis, see Schmid v. Milwaukee

Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994), but exercise plenary review on the

balance of the appeal. See Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co.,



                                               2
998 F.2d 1224, 1230 (3d Cir. 1993).

       After our review of this matter, we are satisfied that the District Court did not

abuse its discretion in denying sanctions based on the alleged spoliation of evidence and

we are in full agreement with the Court’s substantive disposition of this case. Thus, we

will affirm largely for the reasons that the Court set forth in its comprehensive

memorandum opinions dated September 9, 2008, on the spoliation motion, and October

15, 2008, on the merits of the case.

       We, however, make the following additional observations. We find it surprising

that Wong brought this litigation. Governor McGreevey appointed Wong to her position

as executive director of the Authority in early 2002. The position was political and was

not subject to the selection procedures and criteria of the classified civil service.

Moreover, as executive director Wong served at the pleasure of the governor, and thus he

could remove her at any time with or without cause. See N.J. Stat. Ann. § 18A:71A-5

(West 1999). Wong remained in her position for a little more than two years until her

compelled resignation became effective on June 30, 2004, when McGreevey, who later

resigned, still was governor. Thus, Wong makes the unusual contention that officials of

the very administration that appointed her later discriminated against her on racial and

national origin bases and involuntarily forced her to resign. Though we do not suggest

that an entity that in a completely discretionary act employs an individual and

subsequently discharges her cannot be held to have discriminated against the employee on



                                               3
interdicted grounds, nevertheless it reasonably could be asked why the entity, if it had

been biased against the putative employee, would have made the appointment.

       It also should be noted that before her forced resignation, Wong was involved in

the expenditure of State funds that became the subject of adverse media attention.

Inquiries of this kind in a political milieu from time to time lead to forced resignations,

even if the individuals involved are blameless. The occurrence of such resignations

inhere in the political process and thus persons holding political appointments subject to

removal without cause cannot expect to be treated as public employees holding classified

civil service positions with protection against their removal. The reality is that Wong is

attempting to use her race and national origin as bases to insulate herself from the

ordinary functioning of the governmental process.

       Finally, we point out that Wong’s claims, at least in part, have the potential to

interfere inappropriately with decision making at a high government level. Officials at

high policy-making levels of government, such as the individual defendants here, should

be free to make managerial personnel decisions without undue interference by the courts.

See, e.g., Galli v. New Jersey Meadowlands Comm’n, 490 F.3d 265, 270-71 (3d Cir.

2007).1




  1
   We, of course, recognize that sometimes government officials in the executive branch
of government such as the attorney general and secretary of state in New Jersey have
legal protection against removal, see N.J. Const. art. 5, § 4, para. 3, but the executive
director of the Authority is not one of them.

                                              4
       The order of September 10, 2008, and the summary judgment of October 17, 2008,

will be affirmed.




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