                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2930-16T1

S.B.,

          Appellant,

v.

STATE OF NEW JERSEY, NEW
JERSEY TRANSIT CORPORATION,
NEW JERSEY TRANSIT POLICE
DEPARTMENT, and NEW JERSEY
TRANSIT POLICE CHIEF
CHRISTOPHER TRUCILLO,

     Respondents.
_________________________________

                    Argued September 25, 2018 – Decided April 12, 2019

                    Before Judges Rothstadt and Natali.

                    On appeal from the New Jersey Transit Police
                    Department, New Jersey Transit Corporation, Agency
                    Number II-2016-024.

                    Catherine M. Elston argued the cause for appellant (C.
                    Elston & Associates, LLC, attorneys; Catherine M.
                    Elston, of counsel and on the briefs).
            Michael S. Rubin argued the cause for respondents
            (Gurbir S. Grewal, Attorney General, attorney; Jason
            W. Rockwell, Assistant Attorney General, of counsel;
            Michael S. Rubin, Deputy Attorney General, on the
            brief).

PER CURIAM

      S.B.1 appeals from the New Jersey Transit Corporation's (NJT) decision

to terminate his employment with NJT's Police Department without a hearing.

Prior to discharging S.B., NJT filed disciplinary charges against him based on

allegations that he made racially and sexually offensive remarks on duty.

Because we conclude S.B. (1) was an at-will, probationary employee under the

collective negotiations agreement (CNA) governing the parties' employment

relationship that permitted NJT to fire him "without cause and for any reason,"

and (2) lacked a property interest in continued public employment, we affirm

NJT's decision to discharge S.B. pursuant to the CNA without affording him a

pre-discharge hearing. But, we remand to NJT for a post-discharge hearing

consistent with S.B.'s liberty interest in clearing his name and removing the

allegations underlying the disciplinary charges from his employee personnel file

because those charges imperil S.B.'s ability to secure future public employment.



1
  We refer to the appellant by his initials to protect the confidentiality of these
proceedings.
                                                                           A-2930-16T1
                                        2
                                       I.

      NJT hired S.B. as a police officer on December 10, 2014. The CNA

governing their employment relationship was negotiated by NJT and the Police

Benevolence Association, S.B.'s former union. Under the terms of the CNA,

S.B. was hired subject to a probationary period of employment that was extended

three times, and which was ultimately set to expire on June 10, 2017. The CNA

provides that NJT police officers serving probationary periods of employment

"may be discharged with or without cause and for any reason without recourse

to the grievance/arbitration provisions" of the CNA.

      By letter dated October 27, 2016, NJT Police Deputy Chief Laura Hester

advised S.B. that NJT had received a complaint about actions he allegedly

committed on July 29, 2016. The October 2016 letter also advised S.B. that a

member of the Office of Professional Standards would contact him to schedule

an interview to discuss the allegations. Following that interview, NJT issued

disciplinary charges and specifications against S.B. on or about January 4, 2017,

charging him with conduct unbecoming an officer, discourtesy, and

unsatisfactory performance.     The charges alleged S.B. made racially and

sexually offensive remarks that were corroborated by multiple witnesses.

Though the charges maintained S.B. behaved in a similar manner on multiple


                                                                         A-2930-16T1
                                       3
occasions, NJT identified only the July 29, 2016 incident by date. The charges

also stated that S.B. "admitted to the above allegations during his interview," a

statement S.B. claims is false.

      According to the January 4, 2017 charges, S.B. was subject to major

discipline ranging from a six-day suspension to employment termination, and

was required to plead guilty or not guilty. NJT Police Chief Christopher Trucillo

served S.B. with the charges on January 6, 2017.

      By letter dated January 27, 2017, S.B. pleaded not guilty to all of the

charges, requested a hearing, and demanded discovery. According to NJT, on

February 3, 2017, Trucillo "elected not to pursue" the disciplinary proceedings

and, instead, terminated S.B.'s employment effective immediately.            The

rationale provided in a February 3, 2017 termination letter was that S.B.'s

employment was "at will" and that NJT had the "right to terminate" him "at any

time, in [NJT's] sole discretion, with or without cause" and "for any reason

without recourse to the grievance/arbitration provisions" of the CNA. S.B.

maintains the "charges, and the investigatory documents underlying the charges,

remain in [his] employment record with [NJT] to this day," a contention that

NJT does not directly dispute.




                                                                         A-2930-16T1
                                       4
      In a February 10, 2017 letter, S.B.'s counsel demanded that Hester

immediately reinstate him to his position and that he receive back-pay for the

time elapsed since his termination. The February 10, 2017 letter also advised

that the circumstances of S.B.'s discharge warranted procedural due process

protections. In a March 1, 2017 response, NJT stated that as a probationary

employee, S.B.'s "employment was completely at-will," he "could be discharged

without recourse," and "[h]e was not entitled to the grievance/arbitration

protections of the CNA." This appeal followed.

                                       II.

      NJT raises two jurisdictional challenges. First, NJT argues that this case

is merely a contract dispute and the PBA could have pursued other

administrative relief on S.B.'s behalf, so the appeal should be dismissed for

failure to exhaust administrative remedies. This argument is meritless . The

discharge letter NJT sent to S.B. states that he may not invoke any administrative

relief provided for in the CNA, and NJT further advised him that he "could be

discharged without recourse" and that "[h]e was not entitled to the

grievance/arbitration protections of the CNA."

      Next, NJT contends its "discharge of S.B. without a hearing was not a

final agency action appealable under [Rule] 2:2-3(a)(2)" because its "decision


                                                                          A-2930-16T1
                                        5
to discharge S.B. did not follow an adjudicatory proceeding where a record was

developed," which NJT maintains is a prerequisite to final agency actions or

decisions pursuant to Frapaul Construction Co. v. Transportation Dep't of New

Jersey, 175 N.J. Super. 84 (App. Div. 1980). We disagree.

      Rule 2:2-3(a)(2) provides that "appeals may be taken to the Appellate

Division as of right . . . to review final decisions or actions of any state

administrative agency or officer . . . ." In Frapaul, the New Jersey Department

of Transportation (DOT) awarded a contract to the petitioner, a construction

company, for construction work after Frapaul, an independent contractor, placed

the winning bid on a procurement contract. Id. at 87-88. After a dispute arose

as to payment due under the contract, Frapaul submitted a claim to DOT

pursuant to the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 to -10.

Frapaul, 175 N.J. Super. at 89. DOT processed the claim through its Claims

Committee, which gathered facts, considered Frapaul's claim, and decided to

deny it, a decision the DOT's Deputy Commissioner approved. Id. at 87-89.

Frapaul appealed and we held:

            it [is] clear that the conclusions of the DOT Claims
            Committee are not final decisions within contemplation
            of [Rule] 2:2-3(a)(2). The Claims Committee does not
            provide a judicial type of hearing such as is necessary
            to adjudicate a construction contract controversy. Its
            proceedings do not provide for discovery nor do they

                                                                       A-2930-16T1
                                      6
            provide the DOT an opportunity to present its own
            witnesses or the contractor the right to confront and
            cross-examine the DOT personnel. The witnesses who
            are presented to the Committee by the contractor do not
            testify under oath and, in addition, no evidence is
            introduced or marked.

            [Id. at 91 (citations omitted).]

      In stark contrast to the DOT Claims Committee's inability to provide "a

record adequate for appellate review of construction contract claims," ibid., NJT

concedes it could have "elected to hold a disciplinary hearing," but simply chose

not to. Further, the constitutionality of NJT's decision to discharge S.B. without

a hearing, as opposed to a complex construction contract dispute, is capable of

adjudication on this record.    Thus, S.B. properly appealed from that final

decision "as of right" under Rule 2:2-3(a)(2).

                                       III.

      Turning to the merits of this appeal, S.B. maintains NJT unconstitutionally

deprived him of his interests in property and liberty by charging him with

stigmatic allegations then terminating his employment without a pre-discharge

hearing. In this regard, S.B. argues that N.J.S.A. 27:25-15.1c entitled him to

continued public employment despite his probationary status under the CNA,

and claims NJT's actions in charging him with racially and sexually offensive

conduct affected his liberty interests.        According to S.B., NJT unlawfully

                                                                          A-2930-16T1
                                        7
deprived him "of the right to invoke certain statutory defenses" related to his

discharge by denying him a hearing.

      In response, NJT contends the CNA "controls and allows [NJT] to

discharge probationary employees with or without cause and without a

disciplinary hearing." NJT also argues that by initially issuing disciplinary

charges, it did not waive any right to discharge S.B. pursuant to the CNA.

      Our review of final agency action is limited, and the agency's decisions

typically will stand "in the absence of a showing that it was arbitrary, capricious

or unreasonable, or that it lacked fair support in the evidence." In re Carter, 191

N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562

(1963)). "[O]n questions of law, such as whether" a public employee "was

deprived of due process," however, "we are not bound by the agency decision

and will review the agency's determination de novo." George v. City of Newark,

384 N.J. Super. 232, 238–39 (App. Div. 2006).

                                        A.

      Our Federal and State Constitutions provide procedural protections for

substantive interests in life, liberty, and property. U.S. Const. amend XIV; N.J.

Const. art. 1, § 1. To sustain his claim that he has a protectable property interest

in continued public employment, S.B. must show "more than a unilateral


                                                                            A-2930-16T1
                                         8
expectation of it. He must, instead, have a legitimate claim of entitlement to it."

Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Whether S.B. has a legitimate

claim of entitlement to, and thus a protectable property interest in, continued

public employment depends on whether a statute, rule, contract, or other mutual

understanding "secured his interest in employment" as an officer of NJT's Police

Department. See id. at 577-78; see also Leis v. Flynt, 439 U.S. 438, 442 (1979)

(holding that "[a] claim of entitlement under state law, to be enforceable, must

be derived from statute or legal rule or through a mutually explicit

understanding"); Bishop v. Wood, 426 U.S. 341, 344 (1976) (recognizing "the

sufficiency of the claim of entitlement must be decided by reference to state

law").

         In New Jersey, "in the absence of a contrary agreement, an employee is

hired at-will . . . ." Bernard v. IMI Sys., Inc., 131 N.J. 91, 96 (1993). Here, S.B.

does not dispute his probationary status under the CNA, pursuant to which NJT,

"with or without cause and for any reason," could terminate his employment.

Indeed, S.B. does not attribute any significance to that negotiated provision of

the CNA. Rather, S.B. claims the CNA "is irrelevant as it serves only to

preclude [him] from appealing his termination administratively, specifically,

through the grievance procedure which ends in arbitration."


                                                                            A-2930-16T1
                                         9
      S.B.'s at-will status ordinarily would foreclose further inquiry into

whether he had a protectable property interest because "a holding that as a matter

of state law the employee 'held his [or her] position at the will and pleasure of

the [government]' necessarily establishes that he [or she] had no property

interest." Bishop, 426 U.S. at 345 n.8; see also Grexa v. State, Dep't of Human

Servs., 168 N.J. Super. 202, 207 (App. Div. 1978) (acknowledging that "a

temporary employee without fixed term . . . , unprotected by Civil Service or by

any statutory tenure, contractual commitment or collective negotiations" has "no

property interest implicated such as to invoke the due process shield").

      But, S.B. argues that he has a "statutory right to continued employment"

pursuant to N.J.S.A. 27:25-15.1c, notwithstanding his status as a probationary

employee under the CNA. The statute provides, in pertinent part:

            A person shall not be removed from employment or a
            position as a police officer of [NJT's Police
            Department] pursuant to section 2 of P.L.1989, c. 291
            (C.27:25-15.1), or suspended, fined, or reduced in rank
            for a violation of the internal rules and regulations
            established for the conduct of employees of [NJT's
            Police Department], unless a complaint charging a
            violation of those rules and regulations is filed no later
            than the [forty-fifth] day after the date on which the
            person filing the complaint obtained sufficient
            information to file the matter upon which the complaint
            is based. A failure to comply with this section shall
            require a dismissal of the complaint.


                                                                           A-2930-16T1
                                       10
            [N.J.S.A. 27:25-15.1c.]

      There are no reported cases interpreting this statute. S.B. maintains the

statute provides all NJT officers with "a reasonable expectation of continued

employment if the rules and regulations are adhered to," and that "[p]robationary

employees are not exempted from the statute." According to S.B., "[t]he statute

expressly confers the constitutional procedural due process right of notice of

charges before suspension, fine, demotion or removal," and "such notice

inherently includes an opportunity to be heard . . . ; otherwise, the notice

requirement would be superfluous[]." S.B. further contends "[t]he statute

precludes removal or suspension without these constitutional protections," and

that "[t]he statute . . . creates a property right to continued employment by

requiring adherence to the department's rules and regulations, or face suspension

or removal." Finally, S.B. claims the statute is analogous to the statutes held to

create property interests in In re Carberry, 114 N.J. 574 (1989), and Capua v.

City of Plainfield, 643 F. Supp. 1507 (D.N.J. 1986).

      Ascribing ordinary meaning to the statute's plain language, In re Young,

202 N.J. 50, 63 (2010), we agree with S.B. that the statute applies to him

regardless of his status as a probationary officer, and is not limited, as NJT

maintains, to "permanent" officers. By its plain terms, N.J.S.A. 27:25 -15.1c


                                                                          A-2930-16T1
                                       11
applies to any "person" who is employed as a police officer for NJT, which

includes a person serving a probationary term of employment.

      To the extent the statute applies to S.B., it only applies to him pursuant to

its terms – if S.B. is discharged for a violation, he must first receive a charging

document. The question remains whether the statute "secured his interest in

employment" as an officer of NJT's Police Department, i.e., whether it created

a protectable property interest. See Roth, 408 U.S. at 577-78.

      S.B.'s first argument that the statute creates a property interest by

providing NJT officers with "a reasonable expectation of continued employment

if the rules and regulations are adhered to" overlooks the well-settled law that

"a unilateral expectation" does not create a protectable property interest. See

Roth, 408 U.S. 577; see also Nicoletta v. N. Jersey Dist. Water Supply Comm'n,

77 N.J. 145, 154 (1978) (recognizing "the key concept is 'entitlement,'" when

deciding whether an asserted property interest triggers constitutional

protections).

      As for S.B.'s claims that "[t]he statute expressly confers the constitutional

procedural due process right of notice of charges before suspension, fine,

demotion or removal," and that the statute "precludes removal or suspension

without these constitutional protections," the statute's procedural protections


                                                                           A-2930-16T1
                                       12
apply only when the adverse employment action is "for a violation of the internal

rules and regulations . . . ." N.J.S.A. 27:25-15.1c.2 Further, "[t]he fact that state

law may grant procedural protections to an at-will employee does not transform

[the] interest in continued employment into a property interest protected by the

Due Process Clause." Thomas v. Town of Hammonton, 351 F.3d 108, 113 (3d

Cir. 2003). Indeed,

             The point is straightforward: the Due Process Clause
             provides that certain substantive rights – life, liberty,
             and property – cannot be deprived except pursuant to
             constitutionally adequate procedures. The categories
             of substance and procedure are distinct. Were the rule
             otherwise, the Clause would be reduced to a mere
             tautology. "Property" cannot be defined by the
             procedures provided for its deprivation any more than
             can life or liberty.

             [Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
             541 (1985).]




2
  Although S.B. challenges whether NJT in fact discharged him for a violation
of NJT's rules, there is no serious dispute that NJT had the right to discharge
S.B. "without cause and for any reason" pursuant to the CNA, and in the
February 3, 2017 termination letter, NJT invoked the CNA's at-will provision
when discharging him. Indeed, S.B. acknowledges that the "basis of [his]
removal" as stated in the termination letter was "not the charges," but was S.B.'s
"probationary status." Further, S.B. does not challenge the validity of the CNA.
                                                                             A-2930-16T1
                                        13
Accord Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 764 (2005)

(deciding that "an entitlement to nothing but procedure" is "inadequate . . . [to]

be the basis for a property interest" (citation omitted)).

      An examination of the statutes held to create property interests in Carberry

and Capua demonstrates that N.J.S.A. 27:25-15.1c does not entitle S.B. to

continued public employment. The statute interpreted in Carberry provides in

pertinent part:

            Except as provided in section 3 of P.L.1983, c.403
            (C.39:2-9.3), any member of the Division of State
            Police who has or shall hereafter serve continuously as
            such member for a period of five years shall thereafter
            continue in such membership during good behavior.

            [N.J.S.A. 53:1-8.1.]

      The difference between the statute in Carberry and N.J.S.A. 27:25-15.1c

is clear. The statute in Carberry expressly confers upon five-year officers the

right to "continue in such membership during good behavior." N.J.S.A. 53 :1-

8.1. Thus, as the Court "recogniz[ed]," N.J.S.A. 53:1-8.1 legitimately entitles

five-year officers to "continued employment" during good behavior. Carberry,

114 N.J. at 583. By contrast, N.J.S.A. 27:25-15.1c only establishes procedures

that must be followed when NJT takes adverse employment action against an

employee for a violation of the internal rules and regulations. Further, N.J.S.A.


                                                                          A-2930-16T1
                                        14
27:25-15.1c is silent as to removals not "for cause," during an employee's

probationary period pursuant to a negotiated agreement.

      In Capua, the court addressed N.J.S.A. 40A:14-19, which provides in

pertinent part:

             Except as otherwise provided by law no permanent
             member or officer of the paid or part-paid fire
             department or force shall be removed from his [or her]
             office, employment or position for political reasons or
             for any cause other than incapacity, misconduct, or
             disobedience of rules and regulations . . . , nor shall
             such member or officer be suspended, removed, fined
             or reduced in rank . . . except for just cause as herein
             above provided and then only upon a written complaint,
             setting forth the charge or charges as against such
             member or officer. . . . . A failure to substantially
             comply with said provisions as to the service of the
             complaint shall require a dismissal of the complaint.

      That statute expressly conditions any and all removal of a permanent

officer upon there being "just cause . . . and then only upon" an adequate

complaint being filed. N.J.S.A. 40A:14-19. The language prohibiting removal

"except for just cause" legitimately entitles the permanent fire department

personnel to continued employment unless there is "just cause" to discharge

them. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (declaring

that "[t]he hallmark of property . . . is an individual entitlement grounded in state

law, which cannot be removed except 'for cause'"). The additional language


                                                                             A-2930-16T1
                                        15
providing that removal can occur only upon a written complaint being filed

establishes the procedure designed to protect that property interest. See Castle

Rock, 545 U.S. at 772 (Souter, J., concurring) (discussing "the distinction

between property protected and the process that protects it").

      By contrast, N.J.S.A. 27:25-15.1c does not state that NJT's police officers

may be removed only for a violation of the internal rules and regulations.

Instead, N.J.S.A. 27:25-15.1c establishes procedures that must be followed – the

timely filing of a complaint – when adverse employment action is taken "for a

violation of the internal rules and regulations," without conditioning the removal

of an employee upon there being a rule violation. Accordingly, because the

statute does not legitimately entitle S.B. to continued public employment, he

does not have a protectable property interest sufficient to trigger constitutional

procedural due process protections.

                                       B.

      S.B. also asserts that he has a protectable liberty interest that NJT

infringed by charging him with stigmatic allegations without affording him a

hearing to defend himself against the charges. Under federal law, reputational

harm without more is not actionable as a deprivation of liberty. Paul v. Davis,

424 U.S. 693, 701-02 (1976). To establish an affected liberty interest under the


                                                                          A-2930-16T1
                                       16
Fourteenth Amendment, S.B. must show a "stigma" to his reputation "plus

deprivation of some additional right or interest." See Filgueiras v. Newark Pub.

Schools, 426 N.J. Super. 449, 471-72 (App. Div. 2012) (quoting Hill v. Borough

of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006)). "In the public employment

context, the 'stigma-plus' test has been applied to mean that when an employer

'creates and disseminates a false and defamatory impression about the employee

in connection with his [or her] termination,' it deprives the employee of a

protected liberty interest." Id. at 472 (quoting Hill, 455 F.3d at 236).

      Under the New Jersey Constitution, the "analysis differs from that under

the [United States] Constitution only to the extent that we find a protect[able]

interest in reputation without requiring any other tangible loss." Doe v. Poritz,

142 N.J. 1, 104 (1995). Nonetheless, "a public employee who is defamed in the

course of being terminated or constructively discharged satisfies the 'stigma-

plus' test even if, as a matter of state law, [the employee] lacks a property interest

in the job he [or she] lost." Hill, 455 F.3d at 238. There is no serious dispute

that by alleging that he made sexually and racially offensive remarks on duty,

NJT created a defamatory impression of S.B. "in the course of being

terminated," ibid., even if, as NJT maintains, S.B. was discharged only because

he was a probationary employee. S.B. therefore satisfied the "plus" prong, as


                                                                              A-2930-16T1
                                         17
well as the creation and defamation elements. See Filgueiras, 426 N.J. Super.

at 472. The remaining elements are falsity and dissemination.

      With respect to falsity, S.B. maintains the statement in the charges that he

"admitted to the . . . allegations during his interview" is false. We conclude that

this affirmative statement of falsity, coupled with S.B.'s initial plea of not guilty

to the charges, "raise an issue about the substantial accuracy of the report" in his

employment file sufficient to satisfy the falsity prong. Cf. Codd v. Velger, 429

U.S. 624, 628 (1977).

      As to the dissemination element, NJT argues that because there is no

statutory "reporting requirement" with respect to the charges, as there was in

Nicoletta, "or other automatic disqualifier to impair his ability to obtain future

public employment," S.B. does not have an affected liberty interest. On the

other hand, S.B. maintains he "will most certainly be foreclosed from any future

law enforcement and/or public position" or "anywhere he may seek future

employment" because his "employment history on file with" NJT currently

"contains . . . charges of serious misconduct that impugns [his] integrity and his

reputation," which he "was never given the ability to defend against."

      Ordinarily, there must be "public disclosure by the public employer that

could be said to have impaired [the public employee's] reputation, honor or


                                                                             A-2930-16T1
                                        18
integrity."   Battaglia v. Union Cty. Welfare Bd., 88 N.J. 48, 57 (1981).

However, "[d]issemination to potential employers . . . is the precise conduct that

gives rise to stigmatization," Valmonte v. Bane, 18 F.3d 992, 1000 (2d Cir.

1994), and several courts have held that "the public disclosure requirement has

been satisfied where the stigmatizing charges are placed in the discharged

employee's personnel file and are likely to be disclosed to prospective

employers." See Brandt v. Bd. of Co-op. Educ. Servs., Third Supervisory Dist.,

Suffolk Cty., N.Y., 820 F.2d 41, 45 (2d Cir. 1987) (collecting cases); see also

McGinnis v. D.C., 65 F. Supp. 3d 203, 222 (D.D.C. 2014) (holding that if a

public employee's "personnel file is available to future employers, [he or] she

has stated a reputation-plus claim").

      In considering the severity of the stigma that would stain S.B.'s reputation

if a prospective employer reviewed his employment file, the substantial

likelihood that a future government employer may obtain S.B.'s employment

file, and NJT's unilateral "elect[ion] not to pursue" the disciplinary proceedings

to resolution, we conclude S.B. has an affected liberty interest sufficient to

trigger constitutional protections.




                                                                          A-2930-16T1
                                        19
                                        C.

      Having concluded that S.B. has a protected liberty interest, "the question

remains what process is due." See Nicoletta, 77 N.J. at 165 (quoting Morrissey

v. Brewer, 408 U.S. 471, 481 (1972)). Relying substantially on our decision in

Dolan v. City of East Orange, 287 N.J. Super. 136 (App. Div. 1996), S.B.

maintains he is entitled to a pre-discharge hearing, reinstatement of his job, and

back-pay. In addition, S.B. argues that he was "unlawfully deprived of the right

to invoke statutory defenses" against the underlying charges "conferred upon

him via N.J.S.A. 27:25-15.1c and N.J.S.A. 40A:14-181." Further, S.B. claims

he is entitled to discovery "to determine if the department's rules and regulations

pertaining to the internal affairs investigation that was conducted of him were

adhered to or violated."

      In Dolan, "a provisional, at-will employee" was terminated from public

employment after he was charged with "conduct unbecoming an employee" and

a "hearing officer recommended that [the employee] be removed" for cause. 287

N.J. Super. at 139. The City accepted the hearing officer's recommendation and

discharged Dolan. Ibid. After the City denied Dolan's request for a rehearing,

he appealed to the Law Division, which granted his motion for summary

judgment on claims that "his state and federal constitutional due process rights,


                                                                           A-2930-16T1
                                       20
as well as his civil rights under 42 U.S.C. § 1983, had been violated . . . ." Id.

at 140. The City appealed from that decision, and we affirmed "the summary

judgment ordering a new hearing," but "reverse[d] and dismiss[ed] the § 1983

claim because, although Dolan was denied administrative due process as a

matter of fundamental fairness, he did not suffer a constitutional deprivation

which would support such a claim." Ibid.

      Our decision recognized that Dolan had an affected liberty interest based

on Civil Service regulations permitting denial of future employment when the

employee "[h]as been removed from the public service for disciplinary reasons

after an opportunity for a hearing," which we concluded entitled Dolan to "a

hearing before removing him from his job for disciplinary reasons even if he is

only a provisional, at-will employee." Id. at 143-44 (emphasis added) (quoting

N.J.A.C. 4A:4-6.1 to -6.2).      In that regard, we concluded that "from a

constitutional perspective Dolan had a hearing that passed constitutional muster

in the sense that he had an opportunity to be heard and was heard by the hearing

officer" on the disciplinary charges for which he was terminated. Id. at 144.

But, because the hearing officer based its determination that Dolan should be

discharged for disciplinary reasons exclusively on hearsay, and "no residuum of

legal and competent evidence appear[ed] in the record," we remanded for a new


                                                                          A-2930-16T1
                                       21
pre-termination hearing on the disciplinary charges, not because "Dolan suffered

a constitutional deprivation," but rather "as a matter of basic fairness and

administrative due process." Id. at 144-45; see id. at 145 (recognizing "[a]

public employee, even a provisional one, is entitled to a hearing that conforms

to principles of 'basic' or 'fundamental fairness,'" to which Dolan's initial hearing

failed to conform) (quoting In re Kallen, 92 N.J. 14, 26 (1983)).

      S.B. has not advanced any argument that NJT's employment protocol is

governed by Civil Service regulations. Cf. N.J.S.A. 27:25-15 (explaining NJT

"may employ . . . such . . . officers and employees . . . as the corporation deems

advisable; and may . . . discharge such officers and employees, all without regard

to the provisions of Title 11 of the Revised Statutes," which were the then-

existing Civil Service statutes). Further, in Dolan, "[w]e d[id] not consider the

[government's] rights, if any, to terminate Dolan's employment for reasons other

than those related to the disciplinary removal," because Dolan in fact was

terminated for cause. Dolan, 287 N.J. Super. at 143 n.2. By contrast, here, there

has been no official adjudication that S.B. committed the underlying allegations,

and thus his employment file would not reveal that an independent decision -

maker determined he was in fact terminated for cause. Instead, the charges

against S.B. are unresolved and contain a statement, which S.B. maintains is


                                                                             A-2930-16T1
                                        22
false, that he admitted to the underlying allegations. That is the nature of the

liberty interest S.B. seeks to vindicate, as opposed to the actual determination

of guilt wholly based on incompetent evidence that occurred in Dolan.

      In assessing what process is due to protect S.B.'s liberty interest, case law

suggests any deprivation of liberty must be preceded by a hearing. See, e.g.,

Roth, 408 U.S. at 571 n.7 (discussing "[t]he constitutional requirement of

opportunity for some form of hearing before deprivation of a protected

interest"); Carberry, 114 N.J. at 583-84 (finding the appellant "possessed a

protect[able] interest in his continued employment" that "could be described as

both a property interest" and "a liberty interest," then holding that "[t]hose

interests require the [governmental employer] to proceed with due process

before terminating [the public employee's] employment") (citations omitted).

However, "[t]here are, of course, some situations in which a postdeprivation hearing

will satisfy due process requirements." Loudermill, 470 U.S. at 542 n.7.

      There are three competing interests to balance when deciding the process

due a public employee subject to discharge: 1) the employee's interest in

employment; 2) "the governmental interest in the expeditious removal of

unsatisfactory employees and the avoidance of administrative burdens"; and 3)

"the risk of an erroneous termination." Loudermill, 470 U.S. at 542-43 (citing


                                                                            A-2930-16T1
                                        23
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). After balancing these interests

in the context of a tenured employee with an affected property interest, the Court

in Loudermill found a "pretermination 'hearing[]'" was necessary. Id. at 545.

      In a context more analogous to S.B.'s situation, however, the Court held

that "the hearing required where a nontenured employee has been stigmatized in

the course of a decision to terminate his employment is solely 'to provide the

person an opportunity to clear his [or her] name.'" Codd, 429 U.S. at 627; see

also Nicoletta, 77 N.J. at 168 ("for vindication of his constitutional 'liberty' right,

Sergeant Nicoletta is only entitled, if he wishes it, to a post-termination hearing not

so much for the limited purpose . . . 'to clear any damage to his reputation,' but rather

to attempt to dislodge the specter of possible Civil Service debarment from further

public employment" (quotation omitted)); Williams v. Civil Serv. Comm'n, 66

N.J. 152, 156-57 (1974) (holding a "provisional or temporary employee" was

"entitled to a post-termination evidentiary hearing to clear any damage to his

reputation" when his liberty interest was implicated in his discharge); Patterson

v. City of Utica, 370 F.3d 322, 335 (2d Cir. 2004) (holding "[t]he appropriate remedy

for a stigma-plus claim premised on a plaintiff's termination from at-will government

employment is a post-deprivation name-clearing hearing").




                                                                                A-2930-16T1
                                          24
       In considering the nature of S.B.'s liberty interest in obtaining future

employment free from the stigmatic nature of the charges, NJT's interest in

discharging probationary employees during their probationary periods without

the burdens attendant to permanent employees' terminations, and the risk for

error in NJT's decision-making, we conclude that pre-termination notice, an

opportunity to respond, and a post-discharge hearing offers adequate procedural

safeguards under these circumstances. At the post-discharge hearing, S.B. may

invoke any applicable statutory defenses that he claims warrant dismissal o f the

underlying charges. 3

      Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.




3
   S.B. references our decision in O'Rourke v. City of Lambertville, 405 N.J.
Super. 8 (App. Div. 2008), in which we held that "when a law enforcement
agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the Attorney
General's Guidelines," the government's noncompliance with those rules
warranted reversal of its decision to discharge the plaintiff. Id. at 23. The
plaintiff in O'Rourke "could be removed for, among other things, neglect of
duty, insubordination, or willful violation of the department's rules and
regulations." Id. at 12. Aside from his purported lack of discovery and the
conclusory statement that "public policy would appear to dictate that there be
no exemptions for probationary officers," S.B. has not advanced any argument
that O'Rourke applies to at-will employees, or that NJT in fact violated the
Attorney General's Guidelines. The hearing officer can address these issues in
the first instance on remand.
                                                                         A-2930-16T1
                                      25
