Gallo v. Princeton University

• Decision Date: 07 April 1995
• Citation: 656 A.2d 1267,281 N.J.Super. 134
• Parties: , 99 Ed. Law Rep. 984, 10 IER Cases 889 Dominick J. GALLO, Plaintiff-Appellant, v. PRINCETON UNIVERSITY, Eugene McPartland and Justin Harmon, Defendants-Respondents, and The Daily Princetonian, the Princeton Alumni Weekly, John Doe, a fictitious name and XYZ Company, a fictitious name, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 134

281 N.J.Super. 134

656 A.2d 1267, 99 Ed. Law Rep. 984,

10 IER Cases 889

Dominick J. GALLO, Plaintiff-Appellant, v. PRINCETON UNIVERSITY, Eugene McPartland and Justin Harmon Defendants-Respondents and The Daily Princetonian, the Princeton Alumni Weekly, John Doe, a fictitious name and XYZ Company, a fictitious name, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Dec. 7, 1994.

Decided April 7, 1995.

Arthur Penn, Princeton, for appellant (Pellettieri, Rabstein and Altman, attorneys; Mr. Penn, of counsel and on the brief).

Peter G. McDonough, Princeton, for respondents (Princeton University, Office of Gen. Counsel, attorneys; Mr. McDonough, on the brief).

Before Judges SHEBELL, SKILLMAN and KLEINER.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

This is a defamation action against Princeton University and certain of its administrators based on their statements to the media regarding an investigation into the alleged improper use of University property by University employees.

Plaintiff was employed by Princeton as the manager of plumbing and heating in its Facilities Department. After receiving an anonymous letter in the spring of 1989 alleging employee thefts and improper use of University property, the Princeton administration commenced an investigation of the Facilities Department. When plaintiff became one of the targets of this investigation, Princeton temporarily suspended him with pay. After several Princeton administrators met with plaintiff to discuss the allegations of wrongdoing against him, plaintiff submitted a letter of resignation on August 21, 1989.

Princeton's investigation of the Facilities Department and the resignations of plaintiff and two other supervisors spawned various rumors within the University community. Indeed, plaintiff characterized these rumors as "rampant." Anticipating inquiries from the press, Princeton prepared a written statement, subsequently published in the September 17, 1989 issue of the Princeton Weekly Bulletin ("Weekly Bulletin "), a University owned publication distributed to members of the faculty and administration, which stated:

An investigation over the summer into improper use of University resources in the Facilities Department has resulted in evidence that University equipment and personnel, or positions of responsibility, were used for personal gain.

"We discovered, for example, that University equipment had been sent off campus to work on personal projects," said Vice President for Facilities Eugene J. McPartland. The potential losses uncovered so far are in the range of $10,000, McPartland estimated.

Three members of the Facilities staff have submitted their resignations. The investigation, which is ongoing, was requested by McPartland and is being conducted by the University's Internal Audit Office and the Department of Public Safety.

Subsequently, two independent University newspapers published stories about the investigation and resignations which are the focus of plaintiff's defamation claims. Even prior to publication of the University's statement, a reporter for the Princeton Alumni Weekly ("Alumni Weekly "), a publication distributed to Princeton alumni, learned of Princeton's investigation into improprieties in the Facilities Department and began to prepare a story. A "source" in the Facilities Department told the reporter that "three supervisors in the department had resigned after the investigation revealed that the three men had used University equipment improperly." The reporter then met with defendant Eugene McPartland, the University Vice President for Facilities, who declined to reveal the details of the investigation or to confirm the identities of the persons involved. However, McPartland did indicate that the losses were in the range of $10,000. The reporter also spoke with defendant Justin Harmon, the University's Director of Communications and Publications, who indicated that a statement about the matter would be printed shortly in the Weekly Bulletin. The reporter also met with a "senior university official," who discussed the investigation on a "not for attribution" basis. This official confirmed information previously obtained by the reporter regarding the identities of the persons who had resigned, including plaintiff. Shortly thereafter, the reporter received a copy of the Weekly Bulletin statement which he also used in his article.

The article in the Alumni Weekly, which appeared on October 11, 1989, read in pertinent part:

Three senior administrators in Princeton's grounds and building maintenance office, including the director, have resigned after an investigation into alleged abuses of their office's human and material resources. In a prepared statement the university said that the three men--later identified as Anthony F. Cifelli, the director; Dominick J. Gallo, the manager of plumbing and heating; and Raymond A. Lumio, a project manager--had used "university equipment and personnel, or positions of responsibility ... for personal gain." Because the investigation that uncovered these alleged abuses is continuing, further resignations or revelations are possible.

Eugene J. McPartland, who oversees Princeton's grounds and building maintenance operations as the vice president for facilities, estimated that the losses from this purported malfeasance were "in the range of $10,000." McPartland declined to comment on any of the specific allegations against the three men, although in the official statement he said that "we discovered, for example, that university equipment had been sent off-campus to work on personal projects." In accepting the resignations of the three officials, the university did not require them to pay any restitution, McPartland said.

The other independent University newspaper that published a story about the investigation was the Daily Princetonian, a student operated newspaper distributed to Princeton students, faculty and administrators and available by subscription to alumni, parents and other interested parties. After reading the University's statement in the Weekly Bulletin, the editors of the Daily Princetonian decided that the investigation into the operation and management of the Facilities Department would be of interest to its readers, and therefore assigned a reporter to prepare a story. The reporter interviewed McPartland, Richard Spies, the University's Vice President for Finance and Administration, and Joseph Bielamowicz, Director of Internal Audits, who was one of the primary participants in the investigation, and various lower level employees in the Facilities Department. The Daily Princetonian's article, which was published on September 28, 1989, read in pertinent part:

An ongoing investigation into alleged misuse of funds and equipment in the university's facilities departments has so far led to the resignations of three top maintenance officials for abuses costing at least $10,000.

Eugene McPartland, vice president for facilities, confirmed that an investigation of the maintenance department has resulted in the "mutually agreed upon" resignations of Anthony Cifelli, director; Raymond Lumio, project manager for roofing contracts; and Dominick Gallo, project manager for plumbing and heating.

McPartland refused to comment on many specifics of the inquiry into the maintenance department, stating that the investigation is continuing into several other facilities departments.

.... McPartland also declined to elaborate on any of "at least half a dozen" initial findings of the investigation.

He did say, however, that "one of the most serious offenses" involved employees using university equipment, such as construction materials, for personal use at off-campus sites. The maintenance department has recovered all of the equipment, he said.

....

The university incurred approximately $10,000 in losses during the past three to five years because of the violations, McPartland said. The $10,000 estimate is based partly on what the equipment would have cost to rent during the time it was off campus.

He refused to comment on whether the university incurred financial losses from other infractions.

....

The university has decided not to press criminal charges for infractions discovered over the summer, McPartland said.

Administrators refused to comment on whether efforts will be made to recover financial losses.

Vice President and General Counsel Thomas Wright '62 said the university makes a "judgment call" on whether to press criminal charges in cases where university policies have been violated.

Thereafter, plaintiff filed this lawsuit against the Daily Princetonian, the Alumni Weekly, Princeton University, McPartland and Harmon. Plaintiff alleged that Princeton, McPartland and Harmon defamed him by publishing or causing to be published "a media release and other verbal and written statements to the named media defendants and other media ... indicating that plaintiff resigned from his position and ... that plaintiff had used University equipment and personnel, or positions of responsibility ... for personal gain." Plaintiff further alleged that these defamatory statements "were intended to convey, and did convey, to the public and [to] the Princeton University community that the plaintiff was and is guilty of dishonest, illegal and fraudulent conduct." Plaintiff's complaint also asserted defamation claims against the Daily Princetonian and the Alumni Weekly. In addition, plaintiff claimed that Princeton's actions constituted the intentional infliction of emotional distress and/or an invasion of privacy ¹ and that his resignation constituted a constructive discharge.

After substantial discovery was completed, including depositions of plaintiff, McPartland, Harmon, Spies and Bielamowicz, the trial court granted motions for summary judgment in favor of all defendants. In dismissing plaintiff's defamation claims against Princeton,...