Before Judges Muir, Jr., Eichen, and Coburn.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
The primary question raised by this appeal is whether the entire controversy doctrine bars a discharged State civil service employee, who has failed to raise a claim of discrimination in an administrative proceeding before the Merit System Board, from suing her supervisors and employer in court under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to 42. We hold that the LAD action may be maintained.
Plaintiff Linda Long, a State civil service employee, was denied an extension of a medical leave of absence by the administrator of the Alfred C. Wagner Youth Correctional Facility, defendant Donald E. Lewis. His written explanation indicated that Long had insufficiently documented the need for further time off to deal with her condition of major depression. He wrote that he would be willing to reconsider her request if she provided appropriate documentation within seven days. Failing that, she had to return to work or she would be dismissed pursuant to N.J.A.C. 4A:2-6.2(c), a regulation that provides for dismissal if a classified civil service employee fails to return to work for five consecutive days at the end of an approved leave of absence. Long did not comply, Lewis dismissed her on November 7, 1991, and she appealed to the Merit System Board ("MSB" or "the Board"), which referred the matter to the Office of Administrative Law, pursuant to N.J.A.C. 4A:2-2.9.
At the hearing before the Administrative Law Judge ("ALJ"), Long was represented by counsel. The only defense offered was that she had done her best to satisfy Lewis's request for documentation but had been frustrated in that endeavor by her psychiatrist's initial unwillingness to report in detail on her condition. She claimed that Lewis was arbitrary in failing to give her additional time to persuade the doctor of the need to supply the information to which she acknowledges Lewis was entitled. The ALJ concluded that Long had used her best efforts to comply with the request in the brief time allowed but declined to accept that as a basis for overturning her dismissal. In short, he found that the admin- istrator was entitled to the information and that the burden of supplying it in a timely manner belonged with Long.
Long appealed to the MSB pursuant to N.J.A.C. 4A:2-2.9. On July 13, 1993, the Board sustained the ALJ's determination that discipline was appropriate based on Long's failure to provide the requested medical documentation in a timely fashion and her subsequent failure to return to work within the five-day requirement of N.J.A.C. 4A:2-6.2(c). However, the Board also noted that the documentation subsequently provided and placed in the record before the ALJ fully supported the reasonableness of the request for an extended leave. Because Long had "diligently attempted to fulfill her employer's request for further information," the Board held that the dismissal was not justified, and instead, it reduced the punishment to a ten-day suspension and directed that she receive mitigated back pay beginning six months after the effective date of the suspension.
She returned to work in July. Subsequently, plaintiff reviewed her personnel file and, after consultation with her attorney, became convinced that the file indicated her supervisors may have taken their actions against her because of a prejudice against mental illness. She had not previously entertained such a suspicion.
Long filed this action in the Law Division after she returned to work. Defendants moved unsuccessfully for summary judgment, and we granted their motion for leave to appeal. We also granted plaintiff's motion for leave to cross-appeal from that portion of the order denying her the right to seek back pay for periods of time not allowed by the MSB.
Plaintiff seeks to pursue three of the causes of action set out in her Superior Court complaint: malicious abuse of process; "intentional misrepresentation"; and a claim under the LAD. The first two actions cannot be maintained.
An action for malicious abuse of process requires proof that the prior action terminated in the plaintiff's favor. Penwag Property Co. v. Landau, 76 N.J. 595, 598 (1978). Although the MSB reduced plaintiff's punishment, it sustained the Conclusion that she had violated the applicable regulation. ...