On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5850-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Gilroy and Simonelli.
On leave granted, defendants North Hudson Regional Fire & Rescue (NHRFR);*fn1 Jeffrey Welz, and Michael DeOrio, NHRFR's directors; and Brion McEldowney, NHRFR's Fire Chief, appeal from the June 22, 2009 order denying their motion for summary judgment. Defendants also appeal from the September 3, 2009 order that denied their motion for reconsideration. The primary issue presented is whether two Civil Service Commission (Commission) decisions, upholding NHRFR's disciplinary proceedings against plaintiff, collaterally estop plaintiff from pursuing claims against defendants under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and the Federal Constitution. We conclude that plaintiff's claims are not barred by the doctrine of collateral estoppel and affirm.
On January 19, 2007, plaintiff filed an amended four-count complaint against defendants alleging retaliation in violation of CEPA (count one); deprivation of his right to free speech and free association under the New Jersey Constitution, N.J. Const., art. I, ¶ 6 (count two); deprivation of his rights to free speech and free association under the United States Constitution, U.S. Const. amend. I and 42 U.S.C.A. § 1983 (count three); and retaliation under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 (count four). After the close of discovery, defendants filed a motion for summary judgment.
On June 22, 2009, the trial court entered an order supported by an oral decision of June 15, 2009, that among other things: 1) denied defendants' motion seeking to dismiss plaintiff's retaliation claims under CEPA and the First Amendment on the basis of collateral estoppel; 2) denied defendants' motion seeking to dismiss plaintiff's punitive damage claims under CEPA and the First Amendment, except that it granted the motion as to NHRFR only on count three; 3) pared down plaintiff's alleged instances of protected conduct under CEPA; and 4) dismissed plaintiff's claims for violations of the LAD and the New Jersey Constitution. On September 3, 2009, the trial court entered an order denying defendants' motion for reconsideration. On November 4, 2009, we granted defendants' motion for leave to appeal. The heart of this appeal concerns two disciplinary actions filed against plaintiff that resulted in his demotion, suspension, and subsequent removal from employment.
II-A. Suspension and Demotion Disciplinary Proceeding
Plaintiff began working as a firefighter in Union City in 1984. After the Union City Fire Department merged with other regional fire departments to form NHRFR in 1999, plaintiff continued in his employment with the new agency, eventually rising to the rank of captain. Between 2002 and 2006, plaintiff engaged in actions critical of NHRFR and of some of its officers. For example, between September 2002 and November 2004, plaintiff submitted several reports complaining about radio communication problems encountered by members of his fire company. Plaintiff also made complaints concerning health and safety issues with some of NHRFR's other firefighting equipment. Additionally, plaintiff sent a letter to the President of the North Hudson Fire Officers Association accusing McEldowney of interfering with a fire investigation.
On December 13, 2003, plaintiff prepared a report detailing an anonymous firefighter's allegations that an NHRFR Battalion Chief had sexually harassed him and other firefighters. The report noted the firefighter told plaintiff of the allegations because the firefighter was aware that plaintiff was preparing a report regarding NHRFR's firefighters' concerns. According to plaintiff, he hand-delivered the report in an envelope marked "confidential" to McEldowney's secretary on December 15, 2003.
In late 2004, plaintiff received a telephone call from Teaneck firefighter William Brennan, who was then representing another NHRFR firefighter in a disciplinary proceeding. Brennan informed plaintiff that the represented firefighter alleged the disciplinary charges he faced were in retaliation for objecting to the Battalion Chief's sexual harassment. Brennan, having learned that plaintiff had prepared reports concerning the NHRFR, asked plaintiff if he had written any reports regarding the Battalion Chief. In response, plaintiff provided Brennan with a copy of his December 13, 2003 report without having first received permission from NHRFR to release the report outside of the agency. Brennan subsequently provided the report to a television news reporter whose inquiry into the allegations against the Battalion Chief led to a departmental internal investigation. The investigation failed to disclose evidence supporting the allegations of sexual harassment by the Battalion Chief.
On September 28, 2005, the NHRFR served plaintiff with a Preliminary Notice of Disciplinary Action (PNDA) seeking to suspend him from employment for sixty days and to demote him to the position of firefighter based on charges of incompetency; inefficiency or failure to perform duties; insubordination; conduct unbecoming a public employee; neglect of duty; and other sufficient cause. The PNDA alleged that plaintiff improperly provided a copy of an official report to Brennan without authorization, failed to submit the December 13, 2003 report to McEldowney or any member of his office staff, and failed to pursue the status of the December 13, 2003 report by confirming its receipt by McEldowney. Plaintiff waived a disciplinary hearing; and on December 5, 2005, the NHRFR served plaintiff with a Final Notice of Disciplinary Action (FNDA), suspending plaintiff from employment for sixty days and demoting him to the position of firefighter effective that day.
Plaintiff appealed to the Merit System Board (Board). On March 29, 2006, the Board transferred the matter to the Office of Administrative Law (OAL) as a contested case. The assigned Administrative Law Judge (ALJ) conducted a hearing on the matter over eleven days.
On June 11, 2009, the ALJ issued his initial decision. The ALJ found, among other things, that plaintiff submitted the December 13, 2003 report to McEldowney's secretary on December 15, 2003, bypassing the chain of command; plaintiff failed to follow up on the status of the report; plaintiff did not falsely testify during NHRFR's internal investigation of the allegations; and plaintiff provided a copy of the report to Brennan without having first obtained NHRFR's authorization. Based on these findings, the ALJ concluded that the NHRFR failed to prove plaintiff had either engaged in conduct unbecoming a public employee by not submitting the report to McEldowney, or violated NHRFR's rules or regulations by not following up on the status of the report. However, the ALJ found plaintiff had violated NHRFR's regulation that required all official communications be treated as confidential and not disseminated outside the agency without obtaining the fire chief's approval. Based on this finding, the ALJ determined that plaintiff committed conduct unbecoming a public employee. The ALJ concluded that the demotion and suspension were warranted, determining that plaintiff's "conduct was reckless and egregious" and "[h]e needlessly placed in jeopardy the effective operation of the NHRFR."
On August 20, 2009, the Commission*fn2 issued its final decision adopting the ALJ's findings and recommendations upholding the demotion and suspension.*fn3 ...