San Filippo v. Bongiovanni

Decision Date18 August 1994
Docket NumberNo. 93-5658,93-5658
Parties, 93 Ed. Law Rep. 88 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.
CourtU.S. Court of Appeals — Third Circuit

Leon Friedman (argued), New York City, for appellant.

John J. Peirano, Jr. (argued), Linda B. Celauro, Carpenter, Bennett & Morrissey, Newark, NJ, for appellees.

Denise Reinhardt, Reinhardt & Schachter, Newark, NJ, for amicus curiae.

Before: BECKER and LEWIS, Circuit Judges and POLLAK, District Judge *.

OPINION OF THE COURT

LOUIS H. POLLAK, District Judge.

This case, brought under 42 U.S.C. Sec. 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, 1 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 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.

"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.

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 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:

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.

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...

To continue reading

Request your trial
169 cases
  • Deluca v. City of Hazelton
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • 20 Octubre 2016
    ...rights under 42 U.S.C. § 1983.2 See Baldassare v. State of New Jersey, 250 F.3d 188, 195-96 (3d Cir.2001); San Filippo v. Bongiovanni, 30 F.3d 424, 430-31 (3d Cir.1994); Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.1993). First, a plaintiff must show that her conduct was constitut......
  • Marrero v. Camden County Board of Social Services
    • United States
    • U.S. District Court — District of New Jersey
    • 1 Enero 2001
    ...either as a party or a witness."). As noted in Pollock, the Third Circuit's controlling decision in this area came in San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994). Pollock, at 192. In San Filippo, the Court determined that special constitutional protection should be accorded to "a......
  • Garanin v. City of Scranton
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • 17 Diciembre 2019
    ...must act with deliberate indifference to the purported constitutional deprivation in order to ground liability. San Filippo v. Bongiovanni, 30 F.3d 424, 445 (3d Cir. 1994).Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007). These general legal tenets apply with part......
  • Wolfgram v. Wells Fargo Bank
    • United States
    • California Court of Appeals Court of Appeals
    • 27 Febrero 1997
    ...the subjects to petition the king ... all commitments and prosecutions for such petitioning are illegal"], see San Filippo v. Bongiovanni (3d Cir.1994) 30 F.3d 424, 443, fn. 23, quoting I Blackstone, Page 143 )   The right embraces dissent, [53 Cal.Ap......
  • Request a trial to view additional results
3 books & journal articles
  • Compel, resist and amend discovery
    • United States
    • James Publishing Practical Law Books Archive Handling Federal Discovery - 2014 Contents
    • 5 Agosto 2014
    ...the movant’s exclusive control. See Iverson v. Johnson Gas Appliance Co. , 172 F.3d 524, 531 (8th Cir. 1999); San Filippo v. Bongiovanni , 30 F.3d 424, 432, 433 (3d Cir. 1994); Resolution Trust Corp. v. North Bridge Assocs. , 22 F.3d 1198, 1208 (1st Cir. 1994); Church of Scientology v. IRS ......
  • Compel, resist and amend discovery
    • United States
    • James Publishing Practical Law Books Archive Handling Federal Discovery - 2016 Contents
    • 8 Agosto 2016
    ...the movant’s exclusive control. See Iverson v. Johnson Gas Appliance Co. , 172 F.3d 524, 531 (8th Cir. 1999); San Filippo v. Bongiovanni , 30 F.3d 424, 432, 433 (3d Cir. 1994); Resolution Trust Corp. v. North Bridge Assocs. , 22 F.3d 1198, 1208 (1st Cir. 1994); Church of Scientology v. IRS ......
  • Free Speech Rights of Public Employees
    • United States
    • Kansas Bar Association KBA Bar Journal No. 71-1, January 2002
    • Invalid date
    ...62. Id. 63. U.S.CONST. amend. I. 64. 179 F.3d 882 (10th Cir. 1999). 65. Id. at 886. 66. Id. at 888-89 (citing San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)). 67. Id. at 887 (citing McDonald v. Smith, 472 U.S. 479, 485 (1985)). 68. Id. at 889. 69. Pickering, 391 U.S. at 568. 70. Wat......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT