Terry v. Guller

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

Jeffrey M. Terry,

Plaintiff-Appellant,

Matthew E. Guller, Individually;

and the Institute of Forensic Psychology,

Defendants-Respondents.

No. A-2867-07T1

2009 N.J. Super. Unpub. Lexis 2008

July 31, 2009

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1500-06. See prior decision, reported at 2007 N.J. Super. Unpub. Lexis 1609 (2007).

Per curiam.

Not for publication without the approval of the Appellate Division

Argued February 25, 2009

Before Judges Rodríguez, Waugh and Newman.

Jeffrey M. Terry appeals from the grant of summary judgment to Matthew E. Guller, J.D., Ph.D. (Guller), a psychologist, and the Institute of Forensic Psychology (Institute) (collectively “defendants”). We affirm.

This is the second matter before us arising out of an unfavorable psychological evaluation conducted by Guller. In the first action, Terry challenged the employment decision resulting from Guller’s evaluation. In this action, he challenges Guller’s qualifications.

Terry was employed as a communications officer at Morristown Police Department (Department), beginning in August 2002. In December 2004, Terry became provisionally eligible for employment as a police officer with the Department, which extended to Terry a conditional offer of employment, contingent on his passing a psychological evaluation.

The Department referred Terry to the Institute, where he was examined by Guller. At the time, Guller was not a fully-licensed psychologist, but was permitted to practice under the supervision of a fully-licensed psychologist, Dr. Leslie J. Williams, Ph.D.

Guller graduated from Rutgers School of Law-Camden in 1991. He passed both the Pennsylvania and New Jersey State Bar examinations that same year. Guller began working for the Institute in December 1994 as in-house counsel.

In 1994, Guller began a master’s program in clinical psychology at William Paterson College. He ultimately received a Ph.D. in clinical psychology from Seton Hall in 2003. During this time, Guller continued working as in-house counsel for the Institute and additionally worked as a psychology intern at the Institute in connection with his education. During his three years as an unpaid intern, Guller performed psychological examinations and conducted research.

Upon receiving his Ph.D. in August 2003, Guller became a permitted psychologist at the Institute. This means that he did not hold a plenary license, but he was permitted to conduct psychological evaluations, as long as he was acting under the supervision of Leslie Williams, who was a licensed psychologist and the Institute’s Director. Williams reviewed all of Guller’s cases, files and reports, acted as a mentor, and signed off on all of Guller’s reports. Guller became a licensed psychologist in New York in January 2006 and in New Jersey in May 2007.

At the time of Terry’s examination on November 27, 2004, Guller was listed as a “permitted psychologist” on the Institute’s website. Guller did not identify himself to the people he evaluated as a permitted psychologist. Because he did not consider himself to be providing psychological services to examinees, only to the Department, Guller did not require the examinees to sign any forms acknowledging his status as a permitted, rather than a licensed psychologist.

In his role as Guller’s supervisor, Williams did not observe the people Guller interviewed, interview them himself, have any direct contact with them, or notify them in writing that he was supervising Guller. He did consult with and advise Guller on issues which came up in the course of Guller’s work with examinees, and physically reviewed the file for every case Guller worked on. Williams additionally reviewed “in detail” any employment or public safety candidate rejections, which included reading test results, discussing cases with Guller, and reviewing reports generated on the case. He did not recall ever meeting Terry.

Prior to examining Terry, Guller was contacted by Department Chief Peter Demnitz, who provided Guller with background information on Terry. This was common practice with referrals from public safety entities. The letter from Chief Demnitz, addressed to the Institute, reads in part:

Mr. Terry was passed over for consideration in July of this year based on indications of a history using force when it may not have been necessary while employed as a “bouncer” in liquor establishments. Concerns were also raised by comments attributed to him by police officers after prisoners were placed in cell blocks. Terry reportedly asked of the police officers if they ‘tuned up’ the prisoner.

Mr. Terry’s direct supervisors (he is currently employed as a communications officer with the [Department]) indicated vast improvement in the manner in which Terry works.

Guller determined Terry was not psychologically suited to work as a police officer and recommended that he not be hired. Guller’s report was based on the data from a battery of tests he conducted on Terry, the background information supplied by the Department, and discussions with Williams. Williams was not present at and did not observe Terry’s clinical interview but reviewed Guller’s notes and discussed the case with him. Williams agreed with Guller’s recommendation concerning Terry. The Department withdrew its conditional offer of employment.

Terry appealed this rejection to the New Jersey Department of Personnel (DOP). The DOP had Terry evaluated by an independent licensed psychologist, Dr. Robert Kanen, Psy.D. Kanen also found Terry was not a suitable candidate to become a police officer. Terry obtained a separate evaluation from Bart Rossi, Ph.D., which he submitted to the DOP. Rossi opined that Terry was psychologically fit to become a police officer. Based on Kanen’s report, the DOP removed Terry from the police officer eligibility list.

Terry appealed to us. We affirmed the DOP’s decision in an unpublished opinion. In Re Terry, No. A-5620-05T3 (App. Div. August 22, 2007).

Terry also filed an administrative complaint against Guller with the State Board of Psychological Examiners (Board). The Board sent Guller a letter of admonishment in lieu of formal disciplinary action. The letter advised Guller that he was prohibited from using the words “psychology” or “psychologist” in connection with his name until he became fully licensed. The letter also expressed concern that Williams was not signing the evaluations Guller performed, which suggested he was not being properly supervised, and noted a possible conflict of interest because Williams was employed by Guller’s father.

The letter instructed Guller to obtain an independent supervisor, unaffiliated with the Institute. The Board additionally found Guller’s failure to inform examinees he was a permitted, and not a licensed, psychologist constituted misrepresentation. No other action was taken against Guller or any other psychologist at the Institute for these infractions. The Board’s letter was not based upon any sort of due process proceeding.

Terry then brought suit against Guller and the Institute, alleging negligence, tortious interference and fraud, among other claims. Judge W. Hunt Dumont granted summary judgment to defendants, finding Terry’s claims both legally and factually deficient. First, the judge found that the conflicting expert reports of Guller, Kanen and Rossi did not create disputed issue of material fact.

The judge found no merit to the tortious interference with contract claim because there was no contract between Terry and the Department, only a conditional offer of employment. With respect to a claim of tortious interference with prospective advantage, the judge found no protected interest because Terry had no guarantee he would be hired unless he passed his psychological examination.

The judge also found Terry lacked standing to enforce Board regulations and that a bare allegation of statutory violation, without any evidence Guller deviated from accepted psychological practices, was insufficient to sustain either a negligence or a professional negligence claim.

Finally, the judge found Terry could not establish proximate cause because Kanen’s independent examination, based on the results of independent psychological tests, also found Terry unsuited to be a police officer.

Terry appeals, contending:

I. COURT BELOW FAILED TO VIEW THE FACTS IN THE LIGHT MOST FAVORABLE TO APPELLANT. COURT BELOW MADE HARMFUL ERRORS. SUMMARY JUDGMENT WAS NOT APPROPRIATE

II. COURT BELOW ERRED. THE STATE LICENSING BOARD DISCIPLINED [MATTHEW] GULLER. A DUTY WAS BREACHED CAUSING DAMAGES

III. APPELLANT HAS STANDING UNDER STATE PUBLIC CONTRACTS LAW AND NEW JERSEY PRACTICING PSYCHOLOGY LICENSING ACT (PPA)

IV. THE COURT BELOW ERRED IN WEIGHING EVIDENCE AND MAKING CREDIBILITY DETERMINATION OF THE DUELING REPORTS

V. SUMMARY JUDGMENT FOR FAILING TO PROVIDE ANOTHER PROFESSIONAL EXPERT REPORT IS CONTRARY TO PONDER V. PONDER

VI. THE COURT BELOW COMMITTED HARMFUL ERROR. INTERFERENCE OF PROSPECT OF ECONOMIC ADVANTAGE DOES NOT REQUIRE A CONTRACT

VII. COURT NEVER ADDRESSED FRAUD AND NEGLIGENT REPRESENTATION IN THE COURSE OF BUSINESS. THIS COUNT WAS WRONGFULLY DISMISSED.

Because Terry has presented no factual or legal basis to support his claims, the judge properly granted summary judgment to the defendants.

Summary judgment is appropriate where, when all evidentiary material presented to the court is viewed in the light most favorable to the non-moving party, “there is no genuine issue as to any material fact challenged and... the moving party is entitled to a judgment or order as a matter of law.” R. 4:46-2(c); Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

We first note that Terry has articulated no basis on which he can make a claim for damages. The decision not to hire him as a police officer was ultimately made by the DOP based on Kanen’s independent psychological evaluation. Even if Guller negligently or improperly conducted Terry’s examination, this independent analysis severs the chain of proximate causation, precluding any recovery in negligence. Weinberg v. Dinger, 106 N.J. 469, 484 (1987).

We further note the contract between Terry and the Department was conditional. The conditional offer of employment from the Department was contingent on his receiving a satisfactory psychological evaluation by a psychologist selected by the Department. That contingency was never met.

Terry presented no basis for a professional negligence action against Guller: he has submitted no reports challenging Guller’s methods of examination or conclusions, nor has he suggested Guller’s report was improper for any reason other than the fact that Guller did not disclose his status as a permitted, rather than a licensed, psychologist. Guller was permitted to practice psychology under the supervision of a licensed psychologist, but was not permitted to use the words “psychology,” “psychologist” or any derivatives in connection with his name until he became fully licensed. N.J.S.A. 45:14B-6(f); N.J.A.C. 13:42-3.6.

Although the Board admonished Guller to disclose his permitted status in the future and recommended he find a new supervisor, it took no formal disciplinary action against him. In short, the Board sent Guller a warning based on technical regulatory violations; there is no evidence in the record of any substantive violation affecting Guller’s performance or work product. Although Terry is entitled to bring a private cause of action for Guller’s violation, because Kanen’s report severs the chain of proximate causation, he cannot establish either causation or damages. N.J.S.A. 45:14B-42.

Finally, we find no basis for Terry’s fraud and negligent representation in the course of business claims. Fraud requires: “(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.” Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005).

We find Guller’s failure to disclose his permitted status to Terry does not constitute a material misrepresentation, as such nondisclosure was a technical rather than a substantive violation of the Board’s licensing requirements. Moreover, Terry cannot prove damages where Kanen’s report severed the causal link between Guller’s report and the decision not to hire Terry.

Our careful search of New Jersey statutory and case law has revealed no basis for a “negligent representation in the course of business” cause of action, nor has Terry pointed to any authority to support this claim. Accordingly, we dismiss this remaining argument without written opinion. R. 2:11-3(e)(1)(E).

Because Kanen’s independent report found Terry unqualified to work as a police officer, Terry cannot establish the proximate causation necessary to prevail on his claims. Accordingly, we find the judge appropriately granted defendant’s motion for summary judgment.

Affirmed.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

In the Matter of Jeffrey M. Terry, Appellant.

Docket No. A-5620-05T3

2007 N.J. Super. Unpub. Lexis 1609

August 14, 2007, Submitted

August 22, 2007, Decided

UNPUBLISHED OPINION

On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2005-2949.

Before Judges Sabatino and Baxter.

Per Curiam

Jeffrey M. Terry appeals from a May 25, 2006 decision of the Merit System Board (Board) concluding that he is psychologically unfit and therefore ineligible to effectively perform the duties of a police officer in the Town of Morristown. In particular, he argues that in reaching that conclusion, the Board erred in two respects: (1) by relying upon the expert opinion of a psychologist whose report was tainted by his acceptance of the conclusions of an unlicensed psychologist, and (2) by declining to adopt the opinion of Terry’s own psychological examiner, Bart Rossi, Ph. D., who found Terry psychologically fit. We disagree with Terry’s arguments, and affirm.

Terry applied for the position of police officer with the Morristown Police Department, and on December 17, 2004, was notified that he was eligible for employment, conditioned upon “successful completion of physical and psychological evaluations.” The chief of police directed Terry to undergo a psychological evaluation at the Institute for Forensic Psychology (Institute). The Institute rendered a report on January 10, 2005, concluding that Terry “does not possess the psychological characteristics deemed necessary to perform the duties of the position sought and is not considered to be psychologically suited to [such] position.”

Thereafter, Terry filed a complaint with the Department of Law and Public Safety, Division of Consumer Affairs (Division), which licenses psychologists, alleging that Mathew Guller, Ph. D. had performed a psychological examination upon him even though Dr. Guller lacked a plenary license. The Division conducted an investigation, and notified the Board that Dr. Guller did not have a plenary license at the time he examined Terry.

Once the Board learned of Dr. Guller’s lack of licensure, it directed Terry to participate in an independent evaluation by a licensed psychologist, Robert Kanen, Psy. D. On January 7, 2006, Dr. Kanen conducted a clinical interview of Terry, administered eight psychological tests, and reviewed all of the applicable documents, including Dr. Guller’s report of January 10, 2005. Based upon the clinical interview, the eight psychological tests he administered and his review of the pertinent documents, Dr. Kanen issued a report on January 7, 2006 concluding that Terry was “psychologically unsuitable to perform the duties of a police officer.”

In reaching his conclusion, Dr. Kanen in part relied upon a June 30, 2004 memorandum to Morristown Police Chief Peter Demnitz from Lt. Mark Meehan, in which Meehan recommended that Terry not be hired. Meehan reported that Terry had been fired from two prior jobs and had admitted to being “too physical” with people in the past. Meehan also described a written reprimand issued to Terry while he served as a police dispatcher after Terry intentionally disobeyed the directions of the watch commander not to contact the airport tower during an emergency. Meehan also noted that “Terry admits to being head strong and physical in the past” and admits “he has made comments to arresting officers about ‘tuning people up’ but explained that he was [just] trying to fit in.” Meehan’s June 30, 2004 memo concluded with the remark that “Terry has the propensity to be abusive and a bully.”

Dr. Kanen’s January 7, 2006 report also analyzed Terry’s responses to the Rorschach Inkblot test. Dr. Kanen opined that those responses were “consistent with individuals” who “have great difficulty regulating their emotions.” Consequently, their resulting behavior “may be grossly inappropriate for what the situation warrants.” Dr. Kanen commented that “when faced with an emotionally charged, unstructured situation, [Terry] is prone to become very self-centered, do what he wants to do, and to have difficulty regulating his emotions.”

Dr. Kanen explained his findings in his report:

This examiner concurs with the findings of the Institute for Forensic Psychology that Mr. Terry lacks credibility regarding many issues in his background. This evaluator takes very seriously the concerns expressed by members of the Morristown Police Department regarding Mr. Terry’s capacity to follow orders, statement[s] about tuning people up, statements about speaking skills being rough in the past, and past work-performance problems.

He admits he wants the job partly because of the excitement. However, testing and social history suggest that when faced with an intense, emotionally charged situation, he may have difficulty effectively modulating his emotions and the resulting response may be grossly inappropriate for what the situation warrants. Mr. Terry summed it up himself by reporting that in the heat of an emergency, his response was a “gut reaction.” Although he knew he was disobeying an order, he did what he wanted to do. This is consistent with the finding that he is a self-centered individual who overrates his merits and capacities and attributes his difficulties to the actions of others or to events outside of his control rather than his own shortcomings.

The findings of this evaluation raise concerns that Mr. Terry would have difficulty effectively interacting with the community during emotionally charged, stressful and complex situations.

Mr. Jeffrey Terry is considered psychologically unsuitable to perform the duties of a police officer.

In contrast to Dr. Kanen’s opinion, the psychological evaluation conducted by Dr. Rossi at Terry’s request resulted in a finding that Terry had a “personality profile that is within normal limits.” Dr. Rossi opined that Terry’s “profile is not indicative of any major psychological problems or issues.” Ultimately, Dr. Rossi concluded that “Mr. Terry appears to be a good candidate for a position as police officer. He is recommended for the position and should be a fine addition to any local police department.”

After the Medical Appeal Panel of the Board received Dr. Kanen’s January 7, 2006 report, it afforded Terry the opportunity to file written exceptions. Terry did so. He argued that Dr. Rossi’s report should be adopted, and contended that because Dr. Kanen had simply parroted the findings of the unlicensed Dr. Guller, Dr. Kanen’s conclusions should be disregarded.

On May 25, 2006, the Board issued the decision from which Terry appeals. In that decision, the Board evaluated all three of the psychological evaluations that had been conducted. When it rejected Terry’s claim that Dr. Kanen had merely “regurgitated” Dr. Guller’s report and that Dr. Kanen’s report was not credible, the Board noted that Dr. Kanen made very specific findings, which included the results of his own “comprehensive psychological evaluation” and eight independent tests. The Board agreed with Dr. Kanen’s observation that Terry had been terminated from at least one previously-held position and had quit five or more jobs within the last ten years, and was once suspended from a hospital job due to an argument with a coworker. The Board concluded that Dr. Kanen’s findings of Terry’s unfitness were the result of Dr. Kanen’s own thorough analysis and did not merely parrot Dr. Guller’s findings. The Board also concluded that Dr. Kanen’s opinion properly focused on the specific character and behavioral traits necessary to perform the duties of a police officer.

The Board also provided reasons for rejecting Dr. Rossi’s findings. In particular, the Board noted that “Dr. Rossi failed to address the issue of aggression, which the [medical review] panel emphasized was of ‘monumental concern’ when evaluating a candidate’s psychological suitability for employment as a police officer.”

In concluding that Terry was not psychologically fit, the Board first reviewed the qualifications necessary for police work:

Police Officers are responsible for their lives, the lives of other officers and the public. In addition, they are entrusted with lethal weapons and are in daily contact with the public. They use and maintain expensive equipment and vehicle(s) and must be able to drive safely as they often transport suspects, witnesses and other officers. A Police Officer performs searches of suspects and crime scenes and is responsible for recording all details associated with such searches. A Police Officer must be capable of responding effectively to a suicidal or homicidal situation or an abusive crowd.

The Board then considered those duties in light of Dr. Kanen’s opinion, and concluded that “Terry is psychologically unfit to perform effectively as a police officer.”

II.

We analyze Terry’s contentions in light of our standard of review. An appellate court plays a limited role in reviewing the final decision of an administrative agency. In re Zahl, 186 N.J. 341, 353, 895 A.2d 437 (2006). We afford substantial deference to the actions of administrative agencies such as the Board. Ibid. Such “[d]eference is appropriate because of the ‘expertise and superior knowledge’ of agencies in their specialized fields.” Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513, 606 A.2d 336 (1992)). An appellate court will not upset the ultimate determination of an agency unless such decision was arbitrary, capricious or unreasonable. In re Taylor, 158 N.J. 644, 657, 731 A.2d 35 (1999).

Broad authority has been delegated to the Board to adopt and enforce rules and regulations in furtherance of the purposes of the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6. The Board is entitled to remove the name of a potential candidate from a list of candidates otherwise eligible for appointment if the candidate is “psychologically unfit to perform effectively the duties of the title.” N.J.A.C. 4A:4-6.1(a)(3). The administrative agency is permitted to use psychological and personality testing to predict or evaluate job performance and may remove a potential employee if specific reasons are shown based upon that testing. N.J.A.C. 4A:4-6.5.

Our careful review of the record in light of the applicable standard of review demonstrates that the Board’s decision of May 25, 2006 is amply supported by the record. The Board thoroughly analyzed Dr. Kanen’s report in light of Terry’s claims that Dr. Kanen’s report constituted merely an impermissible “regurgitation” of Dr. Guller’s findings, and it provided detailed and persuasive reasons for finding Dr. Kanen’s expert opinion nonetheless worthy of acceptance. The record supports the Board’s finding that Dr. Kanen administered eight different psychological exams to Terry, conducted a clinical interview and reviewed all of the documentary evidence. The Board’s acceptance of Dr. Kanen’s conclusions and its rejection of Dr. Rossi’s find substantial support in the record.

In its May 25, 2006 decision, the Board observed “this is not a matter of just any position. The position is that of a police officer.” As the Court reasoned in In re Vey, 135 N.J. 306, 639 A.2d 718 (1994), “[s]ociety reposes in police officers responsibilities that are simultaneously weighty, sensitive, and fraught with dangerous consequences to themselves, other police officers, and the public.” Id. at 308. “Police officers are authorized to carry firearms . . . and to use deadly force in justifiable circumstances. . . . Not everyone can do that kind of work. . . . [P]olice work is not just another job and . . . some people should not serve as police officers.” Ibid.

The Board’s conclusion that Terry lacked psychological fitness to so serve is not arbitrary, capricious or unreasonable and is based upon substantial credible evidence in the record.

Affirmed.