Michael Wolff v. Salem County Correctional Facility and County of Salem , 439 N.J. Super. 282 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0543-13T3
MICHAEL WOLFF,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
January 29, 2015
v. APPELLATE DIVISION
SALEM COUNTY CORRECTIONAL
FACILITY and COUNTY OF SALEM,
Defendants-Respondents.
_______________________________________
Argued September 22, 2014 – Decided January 29, 2015
Before Judges Sabatino, Guadagno and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Salem County, Docket
No. L-163-11.
Anthony F. DiMento argued the cause for
appellant (Elkind & DiMento, attorneys; Mr.
DiMento and Thomas Connelly, on the brief).
Matthew C. Weng argued the cause for
respondents (Chance & McCann, L.L.C.,
attorneys; Mr. Weng, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
In Winters v. North Hudson Regional Fire & Rescue, 212 N.J.
67 (2012), our Supreme Court held that a plaintiff who
unsuccessfully raised retaliation as a defense in a disciplinary
proceeding was barred by the principles of collateral estoppel
from thereafter raising a retaliation claim under the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1
to -14. Here, plaintiff Michael Wolff appeals from a Law
Division order granting summary judgment and dismissing his
complaint claiming retaliation in violation of the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The court ruled
that, under Winters, supra, 212 N.J. at 96-97, plaintiff's claim
was barred because he raised retaliation as an unsuccessful
defense in a disciplinary proceeding before an Administrative
Law Judge (ALJ). We hold that Winters applies to plaintiff and
bars his retaliation claims under N.J.S.A. 10:5-12(d).
Accordingly, we affirm.
I.
The following facts can be discerned from the ALJ's
opinion, the portion of plaintiff's testimony before the ALJ
plaintiff has provided, and the documentary evidence. In 1990,
plaintiff became employed as a corrections officer by defendant
Salem County Correctional Facility (SCCF), an agency of
defendant County of Salem (the County). In January 2009,
plaintiff began complaining that Lieutenant Nobles improperly
allowed overtime to an officer. Plaintiff is Caucasian, and
both Nobles and the officer are African-American. Plaintiff
filed "operations/incident" reports raising discrimination in
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overtime and complaining that he was "being discriminated
against for bringing the problem to light." Plaintiff then
raised the issue with Nobles and with Lieutenant Lape, allegedly
saying that there was "a cover up about overtime, it's all
racial," and claiming that he had been retaliated against in
various ways. Nobles and Lape each filed an Employee
Disciplinary Offense Report (EDOR) against plaintiff, alleging
plaintiff was threatening and insubordinate. Plaintiff then
filed reports claiming this too was retaliation in violation of
N.J.S.A. 34:19-4 of CEPA, which he called the "Whistleblower
Protection Act." The County's Human Resources Office
investigated plaintiff's allegations.
The warden of SCCF told plaintiff to appear at a post-
investigation meeting on June 15, 2009. On that date, plaintiff
met with the sheriff, the warden, a deputy warden, and the
Deputy County Administrator (DCA). The DCA read a letter to
plaintiff which included the following. The investigation found
plaintiff's claims against Nobles and Lape were unsubstantiated.
This was plaintiff's third unsubstantiated discrimination
complaint, and disciplinary action would be taken if a complaint
was intentionally dishonest. The investigation also found
plaintiff had violated the County's Workplace Violence Policy
during his confrontations with Nobles and Lape. The sheriff and
3 A-0543-13T3
the County Administration were pursuing disciplinary action,
including mandatory training. If plaintiff violated the policy
again, the County would take disciplinary action that could
include termination.
The warden then read and gave plaintiff a Preliminary
Notice of Disciplinary Action (PNDA) regarding his
confrontations with Nobles and Lape. The PNDA charged plaintiff
with insubordination, conduct unbecoming a public employee, and
other sufficient cause. N.J.A.C. 4A:2-2.3(a)(2), (6), (11)
(2009).1 It assessed a 180-hour suspension.
What happened next was disputed. According to the sheriff,
warden, and the DCA, plaintiff became agitated and upset. He
claimed the "Whistleblowers Act" protected him and was being
violated by this "repercussion." He stood up, said they should
contact his lawyer, and started to leave. The sheriff, without
using profanity, repeatedly instructed plaintiff to sit down.
Plaintiff refused. The sheriff warned plaintiff he was being
insubordinate, and plaintiff began to return to his chair.
However, plaintiff termed the meeting "sh*t" or "bullsh*t." The
warden testified he feared plaintiff would attempt to push past
the sheriff and cause a physical confrontation. The sheriff and
1
"Other sufficient cause" has since been renumbered as N.J.A.C.
4A:2-2.3(a)(12) (2014).
4 A-0543-13T3
the DCA testified they felt physically threatened. Plaintiff
left the room, calling them "f*cking clowns."
Plaintiff's version of the events differs as follows.
When, following his attorney's advice, plaintiff stood up, told
them to contact his attorney, and began to leave, the sheriff
repeatedly told him to "sit the f*ck down." Plaintiff began to
comply, but the sheriff screamed profanities at him, got into
his "personal body space," and made physical contact with him
several times. The sheriff told him he was terminated, and
chased him out of the room. Plaintiff did not use profanity or
call the sheriff, warden, or the DCA "f*cking clowns" to their
faces. Rather, in the hallway, plaintiff had a loud telephone
conversation with his wife in which he used profanity and termed
those in the meeting room "f*cking clowns."
On cross-examination before the ALJ, plaintiff testified
that he had been retaliated against. In particular, when
plaintiff was asked why the DCA would testify adversely to him,
plaintiff replied that all of his complaints had alleged
violations, not only of overtime policy but also of federal law,
"and I threatened to disclose those violations." "[O]nce they
started reprising [sic] against me it also made it a [CEPA]
violation." Plaintiff elaborated that in all his reports, he
had listed not only the overtime violations, but also "the
5 A-0543-13T3
violation of the whistle blower policy, . . . whistle blower
retaliation, [and CEPA] violation." Plaintiff added that the
County knew that he would "probably file a [CEPA] law suit [and]
I actually believe that is why I was retaliated against."
Further, when asked about being upset at the meeting,
plaintiff testified that he "felt that I was in that meeting for
a reason that they could get a reaction out of me so that they
could get one more insubordination charge because based on the
county policy if you have four of the same charges . . . they
can terminate you." The insubordination charges regarding Lape
and Nobles had given plaintiff a total of three such charges, so
"they needed one more insubordination charge to be able to
terminate me." Plaintiff "knew they wanted to get me on an
insubordination charge so I purposely kept my mouth shut."
Rather than "give them what they are looking for I wanted to get
out of that office as fast as possible." When he attempted to
leave, "they took a desperate attempt to get me to act out."
After a hearing, defendants terminated plaintiff's
employment based on the PNDA. Plaintiff requested a hearing
before the Office of Administrative Law. The case was assigned
to the ALJ, who heard the testimony set forth above. In his
decision the ALJ expressly acknowledged plaintiff's assertions
"that the charges were brought against him as retaliation
6 A-0543-13T3
because he was going to file a Whistleblower suit and a
complaint with the Department of Labor," that "the County was
setting him up," and that the sheriff screamed at him to goad
him into committing insubordination so the County could fire
him.
The ALJ found plaintiff's testimony regarding what was said
in the conference room on June 15, 2009, to be "incredible and
unbelievable." The ALJ determined that the sheriff did not
scream or use profanity. Rather, the ALJ found plaintiff lost
emotional control, used profanity during and after the meeting,
and called his superiors "f*cking clowns" as he left the room.
The ALJ ruled that this insult, and plaintiff's actions at the
meeting, "cannot be countenanced."
Nonetheless, the ALJ found that plaintiff's emotional
outburst was just a "vent," and that he made some effort to
comply with the sheriff's orders. The ALJ dismissed the
insubordination charge, sustained the conduct unbecoming charge,
and merged the other sufficient cause charge. The ALJ reduced
the penalty from termination to suspension for six months.
The County filed exceptions with the Civil Service
Commission.2 The Commission agreed with the ALJ's findings of
2
Plaintiff filed cross-exceptions, but simply supported the
ALJ's decision, which he later termed a "fair resolution."
7 A-0543-13T3
fact, determination of the charges, and penalty, and also
ordered back pay. The Commission upheld the reduction of the
penalty, noting that plaintiff's reaction at the meeting
"stemmed from his perception that the charges were
'repercussions' for filing his [overtime] complaint." No
appellate review was sought of the Commission's final agency
decision.3
On May 4, 2011, plaintiff filed a complaint in the Law
Division, alleging that the County violated N.J.S.A. 10:5-12(d)
by retaliating against his complaint of racial discrimination in
the distribution of overtime. Plaintiff claimed he was
retaliated against when Nobles and Lape filed the EDORs, when
the warden and the DCA filed the PNDA against him, during the
June 15, 2009 meeting, and in the resulting disciplinary action.
Defendants moved for summary judgment, which Judge Robert J.
Malestein denied without prejudice on July 27, 2012. Defendants
renewed the motion after discovery ended, and the judge again
denied summary judgment.
Defendants sought reconsideration, claiming for the first
time that plaintiff's suit was barred by issue preclusion under
3
Plaintiff did not return to his position as a corrections
officer. Instead, he went on special leave, settled separate
litigation against the County involving a prior injury, and
received a disability retirement pension.
8 A-0543-13T3
Winters, which had been decided September 13, 2012. On August
27, 2013, Judge Malestein granted reconsideration and dismissed
plaintiff's complaint. The judge's written opinion explained
that "[b]asic principles, as elucidated by the Winters Court,
would preclude relitigation" of plaintiff's retaliation claim.
The judge found that plaintiff had "a full and complete
opportunity" to present his retaliation claim to the ALJ, that
the issue of retaliation "was clearly raised and considered" in
the ALJ proceeding, and that the ALJ implicitly found plaintiff
"failed to establish that the discipline was the result of
retaliation." The judge also found that the Law Division suit
involved "exactly the same parties and the exact same
arguments."
As the judge recognized, Winters reaffirmed that "our
courts will accord administrative rulings that otherwise satisfy
collateral estoppel standards preclusive effect if the
proceedings provide 'significant procedural and substantive
safeguards,' similar to those that are provided to litigants in
courts of law." Winters, supra, 212 N.J. at 87 (quoting
Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 524 (2006)).
Winters noted that civil service proceedings have been held to
meet that standard. See id. at 88 (citing Ensslin v. Twp. of N.
9 A-0543-13T3
Bergen, 275 N.J. Super. 352, 371 (App. Div. 1994), certif.
denied, 142 N.J. 446 (1995)).
Winters reiterated the factors required for issue
preclusion. Id. at 85 (quoting Olivieri, 186 N.J. at 521). The
judge applied those factors to plaintiff's complaint:
(1) the issue to be precluded is identical
to the issue decided in the prior proceeding
(retaliation); (2) the issue was actually
litigated in the prior proceeding (raised as
a defense); (3) the court in the prior
proceeding issued a final judgment on the
merits (6 months suspension plus payment of
backpay); (4) the determination of the issue
was essential to the prior judgment (if the
[ALJ] believed that the discipline was
imposed by employer as a result of
retaliation for filing complaints about
discrimination there would have been no
discipline); and (5) the party against whom
the doctrine is asserted was a party or in
privity with a party to the earlier
proceeding.
Therefore, the judge concluded that, "just as in Winters,
[p]laintiff herein should be prevented from using two separate
forums to litigate the same set of facts[.]" The judge granted
defendants' motion for summary judgment. Plaintiff appeals.
II.
Summary judgment must be granted if "there is no genuine
issue as to any material fact challenged and that the moving
party is entitled to a judgment or order as a matter of law."
R. 4:46-2(c). The court must "consider whether the competent
10 A-0543-13T3
evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 540 (1995). As "appellate courts 'employ
the same standard that governs the trial court,'" we review
these determinations de novo, and the "trial court rulings 'are
not entitled to any special deference.'" Henry v. N.J. Dept. of
Human Servs., 204 N.J. 320, 330 (2010) (citation omitted). We
must hew to that standard of review.
We agree with the reasons given in Judge Malestein's
written opinion. We add the following.
A.
Plaintiff contends that the 2012 Winters decision cannot be
applied retroactively, because his disciplinary proceeding
before the ALJ was in 2009. However, plaintiff's action in the
Law Division was pending when Winters was decided. Thus, the
issue before us is whether the Law Division properly looked to
the Supreme Court's decision in deciding the reconsideration
motion.4
4
Because the Law Division case was pending when Winters was
decided, we consider only "pipeline retroactivity." Harrison
Redev. Agency v. DeRose, 398 N.J. Super. 361, 420 (App. Div.
2008). We have no occasion to consider whether Winters should
(continued)
11 A-0543-13T3
Generally, a court resolving a legal issue must apply the
case law in existence at the time of its decision. "'[T]he
general rule applied in civil cases [is] that a new ruling shall
apply to all matters that have not reached final judgment.'"
Kibble v. Weeks Dredging & Constr. Co., 161 N.J. 178, 192
(1999). Thus, "the 'traditional rule' is that judicial
decisions are presumed to apply retroactively" in civil cases.
In re Contest of Nov. 8, 2011 Gen. Election of Office of N.J.
Gen. Assembly, 210 N.J. 29, 68 (2012). A party seeking to
escape that presumption must show the judicial decision
"establish[ed] a new principle of law, either by overruling
clear past precedent on which litigants may have relied, . . .
or by deciding an issue of first impression whose resolution was
not clearly foreshadowed." Ibid. (internal quotation marks
omitted). The court then considers whether retrospective
application of the new rule will further its operation, or
produce substantial inequitable results. Ibid.
Plaintiff argues that Winters established a new rule of
law. However, Winters did not overrule past precedent or decide
(continued)
be granted complete retroactivity, which would make it
applicable to cases "'where final judgments have been entered
and all avenues of direct review exhausted.'" State v. Colbert,
190 N.J. 14, 23 (2007). That "potentially would expose the
judicial system to the undue burden of resolving numerous
concluded matters." Olds v. Donnelly, 150 N.J. 424, 450 (1997).
12 A-0543-13T3
an issue of first impression not foreshadowed by prior cases.
See Malinowski v. Jacobs, 189 N.J. 345, 352 (2007). Rather, as
set forth above, Winters applied long-standing "general estoppel
principles" that bar the relitigation in judicial proceedings of
issues decided in administrative proceedings. Winters, supra,
212 N.J. at 85. The Court stressed that "[w]e have recognized
that concerns about finality and consistency . . . are
applicable to the intersection of judicial and administrative
proceedings." Id. at 87 (citing Hennessey v. Winslow Twp., 183
N.J. 593, 599-600, 604 (2005)). Indeed, the Court stated: "We
have held that estoppel principles can apply to findings made in
administrative proceedings and affect subsequent judicial
proceedings. We reaffirm that principle in this matter."
Winters, supra, 212 N.J. at 73 (emphasis added) (citing
Hennessey, supra, 183 N.J. at 599-600).
Even the dissenter in Winters agreed that, under existing
law,
if a public employee raises retaliation as a
defense in an administrative disciplinary
proceeding, if he is given a full and fair
opportunity to litigate the defense, and if
the Office of Administrative Law and the
Civil Service Commission adjudicated that
defense on the merits adversely to the
employee, he may be collaterally estopped
from pursuing a CEPA claim.
[Id. at 93 (Albin, J., dissenting).]
13 A-0543-13T3
The dispute in Winters was whether those things had
happened. Ibid. The Court found they had, despite "Winters's
litigation tactics to avoid the application of estoppel
principles," namely that he "chose not to present proofs to
demonstrate his claim of retaliation." Id. at 87, 90. The
Court ruled that a "litigant should not be permitted to
participate in the administrative system designed to promote a
fair and uniform statewide system of public employee discipline,
raise a retaliation defense (as plaintiff did here), and then
hold back on the defense in an attempt to save it for later
duplicative litigation." Id. at 72 (citation omitted).
Plaintiff notes that "prospective application is
'particularly appropriate when a court renders a first-instance
or clarifying decision in a murky or uncertain area of the
law.'" Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 587
(2012). However, the principles of collateral estoppel applied
in Winters were not murky or uncertain, but were "well-settled."
Olivieri, supra, 186 N.J. at 521. Winters simply applied those
principles to the scenario of an employee "throttling back on
his claim of retaliation in the administrative proceeding after
having initially raised it." Winters, supra, 212 N.J. at 88.
To show Winters is new law, plaintiff cites the Court's
statement: "We therefore put users of the public employment
14 A-0543-13T3
system of employee discipline on notice that integration of
employer-retaliation claims should be anticipated and addressed
where raised as part of the discipline review process." Id. at
74. Defendants argue this means that employees must raise any
retaliation claim in the disciplinary proceeding. We need not
determine the precise import of the Court's statement, because
the Court made clear it did not preclude application of its
holding to plaintiffs who do raise retaliation in the
disciplinary proceedings. The Court explained: "It is because
Winters raised the issue that we differentiate his case from
past disciplinary actions that preceded the notice provided in
this matter, where an employee might have relied on the fact
that retaliation was not an essential part of the employer's
case." Id. at 91 n.6 (citing Scouler v. City of Camden, 332
N.J. Super. 69, 74-75 (App. Div. 2000)). Because plaintiff here
raised retaliation before the ALJ, it is appropriate to apply
the Winters decision.
Furthermore, retrospective application of the Winters
decision will advance its goals to avoid "the spectacle, and
resulting disrepute, of inconsistent litigated matters involving
the same transactional set of facts." Id. at 72-73. It will
also prevent "the confounding wastefulness of such a result,"
and will diminish the "disrespect of the legislatively created
15 A-0543-13T3
forum for supervision over, and resolution of, public employee
discipline in this state." Id. at 73. "It is unseemly to have
juries second-guessing major public employee discipline imposed
after litigation is completed before the Commission to which the
Legislature has entrusted review of such judgments." Id. at 74.
Plaintiff has also failed to show that it would be
substantially inequitable to apply Winters to him. The Court's
decision in Winters is even-handed: if in a disciplinary
proceeding, an "employee raises a claim that employer
retaliation at least partially motivated the decision to bring
the charge or the level of discipline sought, then both the
employee and employer must live with the outcome, including its
potential preclusive effect on related employment-discrimination
litigation." Id. at 73. As Winters ruled, "it is not unfair to
require [plaintiff] to present the defense that he raised in the
administrative forum and to accept the consequences of his
strategy." Ibid.
Plaintiff also notes that prospective application is
appropriate "when the affected party 'reasonably relied on a
plausible, although incorrect, interpretation of the law,' or 'a
member of the public could reasonably have relied on a different
conception of the state of the law.'" Selective, supra, 208
N.J. at 587. Plaintiff argues that he and his counsel relied on
16 A-0543-13T3
the allegedly different conception of the law before Winters.
However, plaintiff has not cited any prior published opinion
holding that collateral estoppel would not apply where an
employee raised and testified to retaliation at the disciplinary
hearing.5 Nor has plaintiff pointed to anything in the record
indicating any such reliance, such as express preservation of a
subsequent retaliation lawsuit. Indeed, the sequence of events
here — defendant's failure to challenge the rulings of the ALJ
and the Commission, his retirement on disability, and then,
after more than a year, his filing of this LAD suit — suggests
the decision to file the suit occurred long after the ALJ's
hearing. Finally, plaintiff has not explained what additional
testimony or exhibits he would have presented to the ALJ to
prove retaliation had Winters been decided before the
disciplinary hearing. "Nothing prevented plaintiff from
presenting his defense more fully than he did." Winters, supra,
212 N.J. at 73.
5
Plaintiff cited Thornton v. Potomkin Chevrolet, 94 N.J. 1
(1983), but Thornton involved the different issue of whether the
entire controversy doctrine barred presentation before the
Division on Civil Rights of a discrimination claim the plaintiff
failed to raise in a grievance arbitration. Id. at 3, 5 ("The
entire controversy doctrine is not applicable here because there
is no comparability between private contractual arbitration and
court or administrative adjudications.").
17 A-0543-13T3
Plaintiff does not assert he would have abandoned any
defense of retaliation. Such an assertion would be dubious. As
plaintiff's brief admits, the ALJ "could have easily have found
that [plaintiff's] reference to [the sheriff, the warden, and
the DCA] as 'f[*]cking clowns' constituted insubordination," and
thus the grounds for termination. If plaintiff's version of the
events at the meeting was disbelieved, as it largely was, his
only defense would have been retaliation — the argument that
others had not been as severely disciplined, and that severe
discipline was sought against him because of his protected
conduct. Further, as the Commission noted, plaintiff's
misperception of retaliation was viewed as a genesis for his
misconduct and a basis to reduce the punishment to suspension.
Therefore, plaintiff has failed to show it was
substantially inequitable for the Law Division to apply the law
existing at the time of its decision, including the Supreme
Court's pertinent opinion in Winters, to decide the pre-trial
motion pending before it.
B.
Plaintiff would have us distinguish Winters because it
precluded a claim under CEPA, which provides "relief from
retaliatory adverse employment action by an employer." Id. at
72. He argues Winters has no application to his complaint under
18 A-0543-13T3
the LAD. He notes the LAD is much broader than CEPA, because it
prohibits discrimination, not merely retaliation.
We need not address whether Winters applies to all LAD
claims, because it plainly applies to plaintiff's claim, which
is brought under the LAD provision most akin to CEPA.
Plaintiff's complaint alleges retaliation in violation of
N.J.S.A. 10:5-12(d), the provision of the LAD which makes it
unlawful "[f]or any person to take reprisals against any person
because that person has opposed any practices or acts forbidden
under this act[.]" We see no reason why Winters would not apply
to a retaliation claim under N.J.S.A. 10:5-12(d) when it applies
to a retaliation claim under CEPA.
Plaintiff stresses that the LAD is remedial legislation.
However, CEPA is similarly remedial legislation. The Supreme
Court in Winters expressly noted its "clear understanding of the
important public policy enshrined in CEPA," which is "a very
important remedy against wrongful employment practices."
Winters, supra, 212 N.J. at 88-89. The Court acknowledged that
public employees were protected by CEPA, and by disciplinary
procedures including review by an ALJ and the Commission. Ibid.
Nonetheless, the Court emphasized that those two protective
systems "can and must be reconciled, and not made duplicative
of, irrelevant to, or worst, inconsistent with, one another."
19 A-0543-13T3
Id. at 89. "In the interest of promoting the public interest in
finality and consistency in judicial and quasi-judicial
proceedings involving the same transaction," the Court held that
Winters was "estopped from proceeding with his CEPA action."
Id. at 92. The Court reversed our ruling that collateral
estoppel should not apply because "CEPA is remedial
legislation." Id. at 84. The same needs for finality,
consistency, and reconciliation of the judicial and quasi-
judicial systems exists here. Therefore, as the judge ruled,
whether the retaliation claim is under CEPA or the LAD, the end
result should be the same.
C.
Finally, plaintiff tries to distinguish Winters factually.
He notes Winters "raised his retaliation-themed defense in an
opening session with the ALJ and was told to present it as part
of his case in chief," and also raised it in his administrative
pleadings and argument. Id. at 73, 91. Plaintiff contends that
did not occur here. However, plaintiff has not presented us
with the transcripts of any portion of the administrative
proceeding other than his testimony on the second day of the
hearing.6 Nor has plaintiff supplied us with his administrative
6
Indeed, it does not appear that plaintiff has even presented us
with his whole testimony before the ALJ. The transcript
(continued)
20 A-0543-13T3
pleadings.7 Plaintiff has failed to provide us with a factual
basis to evaluate his contention.
In any event, plaintiff went further in raising a
retaliation defense than Winters had. Plaintiff testified
before the ALJ that the disciplinary charge served on him at the
June 15, 2009 meeting, the allegedly provocative meeting itself,
and the subsequent discipline, were all retaliation for his
complaints of overtime discrimination. See id. at 91 (finding
that "everything Winters pointed to, or at, was supposedly
evidence of overall animosity and retaliatory bias").8 Thus,
plaintiff offered far more testimony to support a retaliation
defense in the administrative proceeding than Winters, who
"chose not to present proofs to demonstrate his claim of
retaliation." Id. at 90.
(continued)
provided is from the second day of the hearing, appears to start
midstream, and does not clearly identify which party's counsel
questions plaintiff. Thus, it may omit some or all of
plaintiff's direct testimony.
7
Plaintiff cites the ALJ's prehearing order, which listed the
issues to be resolved as the sufficiency of the evidence to
sustain the charges, and the appropriate penalty. However, the
prehearing order did not address the defenses.
8
Moreover, plaintiff's testimony was echoed in the evidence
before the ALJ that he claimed at the meeting the discipline was
a "repercussion," and that his reports claimed retaliation.
21 A-0543-13T3
Plaintiff argues that retaliation was not a "central theme"
of his defense. He refers to the Court's remark about Winters:
"Retaliation was a central theme of his argument and that he
chose not to present there his comprehensive proof of that claim
does not afford him a second bite at the apple in this matter."
Ibid. The Court did not state that retaliation had to be a
central theme where an employee does present testimonial proof
of a retaliation claim, rather than "throttling back" as Winters
did. Ibid. The principles of issue preclusion are not limited
to the central issue or the only issue in a case, but apply to
any issue that "'was actually litigated in the prior
proceeding'" if "'the determination of the issue was essential
to the prior judgment.'" Id. at 85 (quoting Olivieri, supra,
186 N.J. at 521).
In any event, by presenting testimony to show retaliation,
plaintiff made retaliation a more central part of his defense
than Winters's unsupported argument. Indeed, if plaintiff's
version of events was rejected, retaliation was his only
remaining defense for his unacceptable comments. We see no
reason why Winters would permit plaintiff a second bite after a
more substantial first bite.
Plaintiff claims that he did not "raise" the retaliation
defense, because his retaliation testimony came on cross-
22 A-0543-13T3
examination. However, plaintiff affirmatively raised
retaliation in response to neutral questions asking why the DCA
would testify adversely to him, and why he was upset at the
meeting.9 After plaintiff thus volunteered a retaliation
defense, his counsel did not interpose an objection or move to
strike his answers that the employer was retaliating against
him. There is no indication in the record supplied to us that
plaintiff's counsel requested the ALJ to disregard plaintiff's
retaliation testimony. Nor is there any indication plaintiff
would have complained if the ALJ had found plaintiff's testimony
asserting retaliation to be credible and dismissed the
disciplinary charges on that basis. Here, it is sufficient that
the retaliation defense was raised in the disciplinary hearing
by plaintiff himself, for his own attempted advantage.
Plaintiff contends it was improper to apply Winters because
there was no factual basis that "'(1) the issue to be precluded
is identical to the issue decided in the prior proceeding; [or]
9
Thus, we are not faced with the situation where an employer
unilaterally and strategically injects retaliation into a
disciplinary proceeding by asking the employee on cross-
examination: "Do you think that you were retaliated against?"
We do not decide whether such a direct query can itself
manufacture collateral estoppel barring a future retaliation
suit under CEPA or the LAD, particularly where the employee is
not represented by counsel, who presumably would be attuned to
the legal implications of retaliation testimony. See Serrano v.
Underground Utils. Corp., 407 N.J. Super. 253 (App. Div. 2009).
23 A-0543-13T3
(2) the issue was actually litigated in the prior proceeding.'"
Ibid. The judge properly rejected this contention, pointing out
that plaintiff, like Winters, raised retaliation as a defense
that the ALJ specifically discussed and "necessarily considered"
and rejected. See id. at 91-92.
Like the Court in Winters, we "are fully convinced that the
ALJ assessed his claim of retaliation, to the extent it was
supported, when he rendered his findings and conclusion," even
though "it was not addressed specifically" in the ALJ's
conclusions of law. Id. at 91.10 A "claim that the disciplinary
charge was brought in retaliation for [protected conduct] is
solely a matter of defense" in a disciplinary proceeding.
Scouler, supra, 332 N.J. Super. at 75. In "weigh[ing] the
credibility of the employer's allegations of misconduct," the
ALJ must consider an employee's allegation that "the supervisor
may have had a motive other than the faithful performance of his
public duties for filing the charge and testifying against the
employee." Ibid. Thus, "evidence of retaliation at a civil
service disciplinary hearing" is "critical to a fair and
10
Judge Malestein concluded that the ALJ "did not believe
[plaintiff] and clearly did not believe that the defense of
retaliation in relationship to the discipline warranted
discussion."
24 A-0543-13T3
reliable evaluation of the credibility of the witnesses
testifying in support of the charge." Ibid.
Here, plaintiff initially raised retaliation as a defense
response to questions about why defendants' witness would
testify contrary to plaintiff's testimony. By asserting
retaliation, plaintiff attempted to influence the fact-finding
and credibility determinations of the ALJ. As Judge Malestein
stressed, the ALJ "did not believe the discipline was
retaliatory, [or] he would not have ordered such discipline."
Plaintiff did not appeal the aspects of the ALJ or the
Commission's decisions that were adverse to him. In light of
that history, Judge Malestein appropriately accepted — and did
not second-guess — the ALJ's factual assessments. Those
assessments included, at least implicitly, a finding that the
employer's witnesses were credible about plaintiff's unbecoming
conduct and that they had not disciplined plaintiff for improper
retaliatory reasons as he had contended.
The Commission's discussion of retaliation was more
limited. That is understandable, as plaintiff did not seek to
overturn the ALJ's decision. To the extent plaintiff "did not
fully present his defense before the Commission and is now
barred from a more expansive presentation of his claim of
25 A-0543-13T3
[retaliation in a subsequent judicial] action is a consequence
with which he must live." Id. at 73.
Plaintiff claims Scouler, not Winters, is the pertinent
precedent here. To the contrary, Scouler involved a different
statutory provision, and applied it to a different scenario. In
Scouler, we held that under the CEPA provision waiving other
rights, N.J.S.A. 34:19-8, an "employee who has filed a CEPA
action is not precluded from appealing a disciplinary action to
the Board simply because the employee alleges that his employer
instituted disciplinary charges against him for the same
retaliatory reasons alleged in the CEPA action." Scouler,
supra, 332 N.J. Super. at 72. Scouler did not consider the
application of the principles of collateral estoppel to the
scenario of a plaintiff who files a retaliation lawsuit after
not appealing a disciplinary ruling in which he unsuccessfully
raised retaliation. The Supreme Court subsequently applied
those principles to that scenario in Winters. In this case, the
judge applied those same principles to an essentially similar
scenario. Therefore, Winters, not Scouler, is the controlling
precedent here. Id. at 91 n.6.
Affirmed.
26 A-0543-13T3
SABATINO, P.J.A.D., concurring.
I join with my colleagues in affirming summary judgment and
the dismissal of plaintiff's retaliation claims under the Law
Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, based
upon principles of collateral estoppel expressed by the Supreme
Court in Winters v. North Hudson Regional Fire & Rescue, 212
N.J. 67 (2012).
I write briefly to emphasize that our decision hinges on
the fact that plaintiff voluntarily chose to assert retaliation
in the course of his testimony in the administrative
disciplinary proceedings brought against him by his employer.
Neither Winters nor our decision in this case should be
construed as signifying that an employee who believes that he or
she has been the victim of retaliation is obligated to raise
those retaliation claims as a defense in such disciplinary
cases. More specifically, I reject this discrete aspect of
respondents' argument interpreting Winters to impose such a
requirement.
Repeatedly, the Court was very clear in Winters to confine
its preclusionary holding to circumstances in which the employee
actually "raised" or "posited" retaliation in the administrative
forum.11 The Court did not state or even suggest that it would
have applied preclusionary consequences if Winters had not, in
fact, raised the issue of retaliation in his disciplinary
proceeding.
Indeed, it would be inequitable and contrary to the strong
anti-discriminatory public policies of the LAD and the
Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1
to -14, to impose such an obligation upon an employee. To
deprive an employee of that choice and mandate that he or she
assert and litigate his or her retaliation claims in a
disciplinary proceeding brought by the employer would severely
curtail the employee's rights under the LAD and CEPA to the
important benefits of a Superior Court forum. Those benefits
11
See, e.g., id. at 71 ("after positing a claim of employer
retaliation") (emphasis added); ibid. (noting plaintiff's
"defensive theme of employer retaliation") (emphasis added); id.
at 72 (a litigant should not be permitted to "raise a
retaliation defense" and then "save it later for duplicative
litigation") (emphasis added); id. at 73 (where "the employee
raises a claim that employer retaliation at least partially
motivated the [employer's disciplinary] decision") (emphasis
added); ibid. (plaintiff "raised his retaliation-themed
defense") (emphasis added); id. at 74 ("integration of employer-
retaliation claims should be anticipated and addressed where
raised as part of the discipline review process) (emphasis
added); id. at 84 ("Winters raised a retaliation defense before
the Commission") (emphasis added); id. at 90 (Winters "could not
fold his arms . . . on a [retaliation] claim that he has
raised") (emphasis added); id. at 90 n.6 ("[i]t is because
Winters raised the [retaliation] issue that we differentiate his
case from past disciplinary actions that preceded the notice
provided in this matter") (emphasis added).
2 A-0543-13T3
include more expansive discovery, a trial by jury, and the full
panoply of remedies available in civil actions brought under
those statutes.
In essence, respondents advocate that Winters should be
extended from a precedent that enforces principles of collateral
estoppel (or "issue preclusion") as to matters that were
actually raised and litigated in an administrative forum, to a
precedent that imposes the far more extensive consequences of
res judicata (or "claim preclusion") to matters that were not
raised and litigated, but which could have been. See First
Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 351-
52 (2007) (noting the distinctions between res judicata and the
"less demanding" concept of collateral estoppel). In my view,
it would be inconsistent with the public policies established by
the Legislature in the LAD and CEPA to make that doctrinal leap.
To be sure, if the employee elects to raise retaliation as
a defense to a disciplinary action and persuades the
administrative tribunal that his or her claims of such employer
misconduct are credible, that finding of fact may work to the
employee's advantage in a subsequent LAD or CEPA action, based
on principles of "offensive" collateral estoppel. See, e.g.,
Kortenhaus v. Eli Lilly & Co., 228 N.J. Super. 162, 164-65 (App.
Div. 1988) (explaining the concept of offensive collateral
3 A-0543-13T3
estoppel). However, if the employee fails to convince the
administrative tribunal that retaliation occurred, he or she
will presumptively be stuck with that finding later in court.
The employee, for whose protection the State's anti-
discrimination laws were drafted, should maintain the ability to
weigh the risks of these possible outcomes and choose whether or
not to raise retaliation in the administrative proceeding.
I agree with my colleagues, for the detailed reasons set
forth in Judge Leone's thorough analysis of the record, that
plaintiff Wolff in this case sufficiently and voluntarily
"raised" in the administrative proceeding his long-standing
contentions of retaliation. I am mindful that the retaliation
testimony emerged in Wolff's cross-examination rather than
during his direct examination. However, as Judge Leone
carefully points out, plaintiff asserted his contentions of
retaliation in response to a generic question from opposing
counsel, and his counsel did not move to strike his testimony or
seek to have the administrative law judge ("ALJ") disregard it.
Plaintiff was not manipulated, coaxed, or fooled into presenting
claims that he did not want the fact-finding ALJ to consider.
Under the circumstances presented, I agree with my
colleagues that the collateral estoppel principles of Winters
should be enforced here. That said, I would go further than my
4 A-0543-13T3
colleagues do in footnote nine of the majority opinion, ante at
23, and state my view that more pointed questioning from
opposing counsel — strategically designed to inject retaliation
issues into the administrative case unilaterally — should not be
countenanced.
5 A-0543-13T3