Before Judges Skillman, P.g. Levy and Lesemann.
The opinion of the court was delivered by: Skillman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 1998
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
The opinion of the court was delivered by
The issue presented by this appeal is whether a person who is statutorily disqualified from obtaining public employment as a result of a criminal conviction may maintain an action for an alleged wrongful discharge, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, or the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We hold that such an action may not be maintained and consequently reverse the denial of defendants' motions for summary judgment.
Between 1973 and 1979, plaintiff was employed by the Southeastern Pennsylvania Transportation Authority (SEPTA), an agency of the Commonwealth of Pennsylvania, as its Director of Purchasing. On June 10, 1981, a Pennsylvania grand jury returned a presentment recommending that plaintiff be charged with nineteen counts of bribery in official and political matters, in violation of 18 Pa. Cons. Stat. § 4701. This presentment was based on testimony by four vendors that they had paid kickbacks to plaintiff to obtain contracts from SEPTA or to increase the volume of their sales to SEPTA. The total amount of these kickbacks, which were paid over a six year period, exceeded $15,000. Plaintiff was subsequently charged in accordance with this presentment, and on November 9, 1982, he pled nolo contendere to four counts of bribery. The court sentenced defendant to a five year term of probation and a $2,500 fine on one count of bribery and a suspended sentence on the remaining counts.
After plaintiff left his position at SEPTA, he became employed by Fairfax County, Virginia, as Director of its Purchasing and Supply Management Agency. On June 30, 1980, the Fairfax County Board of Supervisors unanimously voted to discharge plaintiff. This discharge was based on a recommendation by the Acting County Executive, who reported that plaintiff "intimidated his staff, ... was profane, vulgar and abusive in his speech, ... [and had brought] discredit on himself and discredit and embarrassment to his agency and to the County Government."
In 1986, plaintiff applied for the position of Director of Purchasing at Montclair State University (MSU). The job application form which plaintiff was required to complete asked whether he had any "criminal convictions." In response, plaintiff checked the line which said "No." In response to another question which asked an applicant to set forth the names of prior employers, plaintiff disclosed his employment with SEPTA but did not set forth his employment with Fairfax County. After plaintiff was interviewed by Dr. Barry Cohen, MSU's Assistant Vice President of Administration and Finance, MSU hired him under a one-year employment contract which was subject to renewal on an annual basis.
On November 7, 1989, Dr. Cohen, who was then plaintiff's supervisor, recommended that his employment contract not be renewed. Dr. Cohen submitted a report which stated that "[i]n the past year, Charles' performance has been significantly impaired by repeated instances of poor judgment, inappropriate behavior, and ... a failure to complete a particularly important assignment." However, the President of MSU, who was newly appointed, declined to accept this recommendation because he himself had not yet had an opportunity to evaluate plaintiff.
In March of 1996, plaintiff's new supervisor, defendant Raye Jean Mastrangelo, also recommended that plaintiff not be re-appointed. Mastrangelo cited numerous deficiencies in plaintiff's job performance, including his failure to maintain a cooperative relationship with other units of the University; unauthorized use of a cellular phone; excessive use of the E-mail system; failure to establish an effective property control system; inappropriate behavior towards his supervisor; adversarial interactions with colleagues; unscheduled absences; and forcing the use of certain vendors who were neither cost beneficial nor convenient. The President of MSU concurred with this recommendation and plaintiff's employment contract expired on June 30, 1996.
Prior to the termination of his employment, plaintiff filed an internal complaint with the MSU Equal Opportunity/ Affirmative Action Office alleging that Mastrangelo had harassed him and discriminated against him on the basis of his national origin and ancestry. Based on evidence presented at a fact-finding hearing relating to this complaint, a hearing officer found that "there were deficiencies in [plaintiff's] work performance during the past year," and that his claims of "discrimination, harassment, disparate treatment and retaliation" were "fundamentally without merit." Plaintiff did not appeal this decision to the MSU Board of Trustees or pursue any other avenue of administrative review.
While his internal complaint was still under consideration, plaintiff filed the present action against MSU and Mastrangelo, alleging a retaliatory discharge, in violation of CEPA, and discrimination on the basis of ethnicity and age, in violation of the LAD. *fn1 Plaintiff also asserted claims for intentional infliction of emotional distress, conspiracy, invasion of privacy and denial of his right to free speech. Although plaintiff was still employed by MSU when the complaint was filed, he alleged that defendants had "begun taking steps to terminate and replace" him.
During discovery, defendants became aware of plaintiff's employment by Fairfax County and his bribery conviction. Consequently, defendants filed motions for summary judgment on the ground that plaintiff's wrongful discharge claims were barred because he was disqualified from public employment pursuant to N.J.S.A. 2C:51-2(d). Defendants also asserted that plaintiff's action was barred under the doctrines of res judicata and collateral estoppel based on the rejection of his internal discrimination and harassment complaint.
The trial court issued a written decision denying defendants' motions. First, the court ruled that plaintiff's claims were not barred under the doctrines of res judicata and collateral estoppel because the hearing at MSU had not "provide[d] [him] a 'full and fair' opportunity to litigate the matter." Second, the court decided that plaintiff's criminal conviction in Pennsylvania did not bar him from maintaining a wrongful discharge claim because it constituted "after-acquired evidence." The court relied upon cases such as McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995), which hold that after-acquired evidence is irrelevant in the liability stage of a discrimination case. Although there is no reported decision in this State which has endorsed this rule, the trial court concluded that in view of federal precedent and the important public policies behind the LAD and CEPA, New Jersey would not allow an employer to avoid liability under the these statutes based on after-acquired evidence. The court also stated that it was "tempted to make an exception" to this rule based on plaintiff's disqualification from holding public employment as a result of his criminal conviction as well as his failure to disclose the conviction on his employment application. However, the court concluded that "if such an exception is to be made it has to be made by a higher Court."
Defendants filed motions for leave to appeal from the orders denying their motions for summary judgment. We granted the motions and consolidated the appeals.
We conclude that a person who is statutorily barred from obtaining public employment as a result of a criminal conviction may not maintain an action for an alleged wrongful discharge from that position. Our Conclusion that plaintiff is barred from maintaining this action makes it unnecessary to consider defendants' alternative argument that because plaintiff's claims were rejected in the MSU administrative proceeding, he is barred under the doctrines of res judicata and collateral estoppel from pursuing those same claims in this action.
The Supreme Court of New Jersey "has repeatedly emphasized the strong public policy ... against employment discrimination" expressed in the LAD. Andersen v. Exxon Co., 89 N.J. 483, 492 (1982). The Court has also indicated that CEPA was enacted to effectuate similar "important public policies." Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 418 (1994). "Both CEPA and LAD ... seek to overcome the victimization of employees and to protect those who are especially vulnerable in the workplace from the improper or unlawful exercise of authority by employers." Ibid. In view of the important public policies served by the LAD and CEPA, we have no hesitancy in concluding that an employer ordinarily may not defeat a wrongful discharge claim under either of these statutes simply by showing that the employee made a misrepresentation on an employment application which, if it had been discovered during the employment, would have resulted in the employee's discharge. See Massey v. Trump's Castle Hotel & Casino, 828 F. Supp. 314, 324-35 (D. N.J. 1993) (predicting that Supreme Court of New Jersey would hold that after-acquired evidence of employee misconduct which would have justified discharge does not bar a claim under LAD); In re Jackson, 294 N.J. Super. 233, 237 (App. Div. 1996) (stating in dictum that alleged misconduct of an employee in 1996 was not relevant to a determination of whether his removal from public employment in 1993 violated the LAD), certif. denied, 149 N.J. 141 (1997); cf. Nicosia v. Wakefern Food Corp., 136 N.J. 401, 417-21 (1994) (discussing the case law and scholarly commentaries relating to the after-acquired evidence doctrine but declining to pass on its applicability in New Jersey because the issue was not directly presented). *fn2
However, this case involves exceptional circumstances. Plaintiff did not simply make a misrepresentation on his employment application which would have provided a basis for his discharge. Instead, as a result of his conviction for bribery, plaintiff was statutorily barred from ever obtaining any public employment in New Jersey.
N.J.S.A. 2C:51-2(d) (formerly N.J.S.A. 2C:51-2(c)) provides in pertinent part that "any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions." A conviction for bribery based on acts committed in the course public employment clearly constitutes "an offense involving or touching on [plaintiff's] public office, position or employment," and the position of Director of Purchasing which plaintiff held at MSU constituted a "position of honor, trust or profit under this State." See Moore v. Youth Correctional Inst. at Annandale, 119 N.J. 256, 266 (1990); Pastore v. County of Essex, 237 N.J. Super. 371 (App. Div. 1989), certif. denied, 122 N.J. 129 (1990); State v. Musto, 187 N.J. Super. 264, 310 (Law Div. 1982), aff'd, 188 N.J. Super. 106 (App. Div. 1983). Thus, at the time of his application for employment and throughout the course of his employment, plaintiff was absolutely disqualified by statute from holding the position from which he claims to have been discharged in violation of the LAD and CEPA. Consequently, MSU's administrators were prohibited by statute from hiring plaintiff, and if they had become aware of his conviction at any time during his employment, they would have been required to summarily discharge him. *fn3
Plaintiff concedes that the disqualification from public employment imposed by N.J.S.A. 2C:51-2(d) would preclude an order mandating his reinstatement to the position of Director of Purchasing even if he could show that his discharge violated the LAD or CEPA. However, plaintiff argues that he is entitled to maintain a claim for back pay for the period between the termination of his employment and MSU's discovery of his criminal conviction. Plaintiff relies upon McKennon v. Nashville Banner Publ'g Co., supra, which held that a discharged employee can maintain an action under the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, even though the employer subsequently discovers evidence which would have provided "lawful and legitimate grounds" for the discharge, and that the employee could seek recovery for "backpay from the date of the unlawful discharge to the date the new information was discovered." 513 U.S. at 362, 115 S. Ct. at 886, 130 L. Ed. 2d at 863. The Court stated that "[t]he private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the ADEA," and concluded that "[i]t would not accord with this scheme if after-acquired evidence of wrongdoing that would have resulted in termination operates, in every instance, to bar all relief from an ...