Rochinsky v. State, Dept. of Transp.

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: GARIBALDI; O'HERN; O'HERN
• Citation: 110 N.J. 399,541 A.2d 1029
• Decision Date: 23 May 1988
• Parties: Alexander ROCHINSKY and Mary Rochinsky, his wife, Plaintiffs-Respondents, v. STATE of New Jersey, DEPARTMENT OF TRANSPORTATION, Defendant-Appellant, and County of Essex and Town of Nutley, Defendants.

Page 399

110 N.J. 399 541 A.2d 1029 Alexander ROCHINSKY and Mary Rochinsky, his wife,
Plaintiffs-Respondents,
v.
STATE of New Jersey, DEPARTMENT OF TRANSPORTATION, Defendant-Appellant,
and
County of Essex and Town of Nutley, Defendants. Supreme Court of New Jersey. Argued Oct. 13, 1987.
Decided May 23, 1988.

[541 A.2d 1047]

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Aron M. Schwartz, Morristown, for respondents-appellants (Vogel, Chait, Schwartz & Collins, attorneys).

Susan L. Reisner, Deputy Atty. Gen., for Div. on Civil Rights (W. Cary Edwards, Atty. Gen., attorney, James J. Ciancia, and Andrea M. Silkowitz, Asst. Attys. Gen., of counsel).

Alexander P. Waugh, Jr., Princeton, for amicus curiae The Trustees of Princeton University (Smith, Stratton, Wise, Heher & Brennan, attorneys, Alexander P. Waugh, Jr.,

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William J. Brennan, III and Thomas H. Wright, Jr., of counsel, Alexander P. Waugh, Jr. and Thomas H. Wright, Jr., on the brief).

Denise Reinhardt, Newark, submitted a brief on behalf of amicus curiae Rutgers Council of AAUP Chapters (Reinhardt & Schachter, attorneys).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal concerns the interest of a university in maintaining the confidentiality of peer review materials used in its tenure and promotion decisions, and a faculty member's competing interest in obtaining such materials to establish a prima facie claim of unlawful sex discrimination under the Law Against Discrimination [541 A.2d 1048] (LAD), N.J.S.A. 10:5-1 to -42. We reject the University's request to create a qualified privilege to protect the confidentiality of academic peer review materials. While we hold that the requested peer review materials are discoverable in the context of an anti-discrimination suit, we instruct trial courts to issue appropriate protective orders to ensure that discovery of the confidential materials is not unnecessarily broad and that access to such materials is limited. We likewise reject the contention that the collective bargaining agreement between Rutgers and the American Association of University Professors (AAUP) ¹ precludes discovery of the peer review materials. We thus affirm the judgment of the Appellate Division as modified. Dixon v. Rutgers Univ., 215 N.J.Super. 333, 521 A.2d 1315 (1987).

I.

In 1971 Rutgers hired Dr. Ruth Dixon, a black female, as Assistant Professor and Chairperson of the Educational Opportunity

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Fund Instructional Department, later known as the Academic Foundations Department, at Rutgers' Camden College of Arts and Sciences (Camden College). In August 1976 Rutgers notified Dixon that she would be evaluated for tenure and promotion to Associate Professor during the 1976-1977 academic year. If Dixon were denied tenure, university regulations provided that she would receive a one-year terminal contract as a lecturer. Pursuant to university procedures, Dixon was first evaluated by an ad hoc faculty committee, and then by the Appointments and Promotions Committee, and by the Dean of Camden College. These three evaluators unanimously recommended that Dixon be granted tenure and promotion. Dixon's promotion packet was then forwarded to the university-wide Promotion Review Committee (PRC). The PRC, appointed by the University president, reviews all evidence previously considered in connection with a proposed promotion and granting of tenure, including the confidential letters of recommendation from sources outside the University, and then submits its recommendations to the president. In February 1977 the PRC declined to recommend Dixon for promotion and tenure because of "insufficient evidence of distinction in teaching, creativity and research."

In April 1977 the Dean of Camden College informed Dixon that she would not receive tenure and promotion, and offered her a terminal contract as a lecturer. Eight days later Dixon filed a complaint with the Division of Civil Rights (DCR), alleging discrimination in the tenure and promotion process based on her race and sex contrary to the LAD. Dixon also availed herself of the University's internal grievance procedures. During this grievance process two neutral readers are appointed to review the confidential outside letters. Although the Rutgers-AAUP agreement expressly provides that "[t]he confidentiality of the contents and identity of the writers shall be protected at all times," the AAUP states that after this review "the contents of the outside letters are disclosed, in paraphrase and in substance, to unsuccessful candidates in the

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grievance procedures." The record on hand provides no further detail on the extent of this disclosure.

The University's own Grievance Review Committee ordered the PRC to reconsider its initial recommendation based on a finding that the teaching effectiveness category used in the evaluation was inapplicable to Dixon. After reconsideration the PRC again recommended against promotion and tenure. This time the PRC reasoned that Dixon could not be recommended for promotion and tenure because her record reflected "insufficient evidence of research and scholarly activities expected of a faculty member in [the] Academic Foundations [department]." Four months later, however, the Board of Governors of the University decided to award tenure to Dixon, retroactive to July 1, 1977. The record before us does not contain any explanation for this reversal by the Board of Governors. [541 A.2d 1049] The Board of Governors did not, however, reverse that portion of the PRC's recommendation that denied Dixon promotion to the position of Associate Professor.

Dixon's major allegation in her complaint was that she received "disparate treatment" in that she was treated less favorably than two men, Assistant Professors William Jones and Henry Eng, who were granted tenure by Rutgers at approximately the same time the University denied her tenure and promotion. Unlike Dixon, who had no teaching responsibilities due to her role as Department Chairperson, both of these men were primarily teachers--Jones in English and Eng in mathematics. Nevertheless, all three were chairpersons of the Academic Foundations Department of their respective campuses. The PRC examined the promotion and tenure records of Jones and Eng the day before that committee reviewed Dixon's record. However, the PRC gave the men favorable recommendations. The PRC recommended that Eng, an Assistant Professor at Livingston, be given tenure, and that Jones, an Assistant Professor at Newark, be given both tenure and a promotion to the rank of Associate Professor. Rutgers' Board of Governors

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later adopted the PRC's recommendations concerning Jones and Eng.

As part of its investigation into Dixon's allegations of discrimination, the DCR served interrogatories on the University. In response to those interrogatories, the University supplied the DCR with the promotion packets of Jones, Eng, and Dixon. Those promotion packets contain all the materials that were before the PRC when it made its promotion and tenure decisions. The packets include the personnel file of each candidate, recommendations of each of the peer review committees, materials submitted by each candidate in support of his or her application for promotion and tenure, as well as confidential letters evaluating the candidate submitted by individuals outside the University at the latter's request. Rutgers agreed to release the packets of Jones and Eng to the DCR provided that they be used exclusively by DCR personnel involved in the investigation. In a letter to Rutgers' counsel, the DCR assured the University that access to the packets would be limited to DCR personnel, but added that "should a public hearing be ordered in this matter the information may be entered into evidence."

On September 28, 1982, almost five years after the complaint was first filed, the DCR issued a Finding of Probable Cause to credit Dixon's allegation of sex discrimination in the original tenure and promotion decisions. At the same time, the DCR did not find probable cause to credit the allegation of unlawful discrimination based on race since both Jones and Eng were members of racial minorities. The DCR's sex discrimination finding was based on its conclusion that Dixon received "substantially different [treatment] than her male counterparts ... markedly reflected in ... promotion and tenure policies." As expressed in the DCR's Finding of Probable Cause, the DCR reached this conclusion because it found that the two men had demonstrably inferior credentials in comparison to Dixon:

At the time Complainant initially applied for promotion with tenure she had nearly completed the requirements of her doctoral degree and had also produced

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at least one document for publication. Regardless of these credentials she was denied both promotion and tenure.

In comparison, William Jones, a black male, possessing only a M.A. degree, and never having produced any documents for publication was granted promotion with tenure. Henry Eng, an oriental male, possessing only a B.A. degree, who also had not produced any documents for publication, was granted promotion with tenure. In both comparisons the males were unconditionally granted professional advancements while ... [Dixon] was denied these same privileges.

Following the DCR's Finding of Probable Cause to credit the allegations of sex discrimination, the Dixon matter was transferred to the Office of Administrative Law. Pursuant to a pretrial order, Rutgers moved before the Administrative Law Judge (ALJ) to strike and suppress from evidence various confidential documents, [541 A.2d 1050] including the promotion packets of Jones and Eng and the confidential letters of the outside evaluators in Dixon's packet. The University argued that (1) the documents were subject to an applicable qualified privilege; and (2) the express provisions of the relevant collectively negotiated agreements between Rutgers and its branch...