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Marco Nead v. Union County Educational Services Commission


January 20, 2011


On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1753-09.

Per curiam.


Submitted November 17, 2010 - Before Judges Axelrad, R. B. Coleman, and J. N. Harris.

Plaintiff Marco Nead was a physical education teacher employed by defendant Union County Educational Services Commission (UCESC) from 1992 until 2006. He appeals from the dismissal of his six-count complaint that sought remedies against his former employer pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49;*fn1 the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and the common law.*fn2 We reverse, reinstate the entire complaint, and remand for further proceedings.



The Law Division was not the first forum to address Nead's grievances. In March 2007, Nead filed a civil rights complaint against UCESC in the United States District Court for the District of New Jersey, which foreshadowed the allegations in his state action. Nead's federal complaint contained two counts pursuant to the Federal Civil Rights Act of 1871, 42 U.S.C.A. § 1983 (Section 1983), as well as the state claims that are the subject of this appeal.

Nead alleged that UCESC retaliated against him in violation of his freedom of speech as guaranteed by the First Amendment, and further contended that his rights under the Fourteenth Amendment were violated because UCESC failed to protect his safety, health, and welfare. As a threshold requirement, "a suit under [Section] 1983 requires the wrongdoers to have violated federal rights of the plaintiff . . . while acting under color of state law." Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).

After extensive discovery in the federal forum, UCESC successfully moved for summary judgment. In April 2009, the District Court found, among other things, that most of the allegedly retaliatory acts were trivial for First Amendment purposes; that is, they were not significant enough to constitute actionable adverse employment consequences pursuant to Section 1983's First Amendment jurisprudence. Furthermore, the court held that Nead had failed to demonstrate that his speech was a motivating factor in defendant's actions. Finally, the court determined that for Fourteenth Amendment purposes, Nead could not demonstrate that UCESC had misused its authority -- as opposed to just failing to use it -- to create opportunities for Nead to be exposed to harm.

In dismissing all claims over which it had jurisdiction, the District Court expressly declined to assert supplemental jurisdiction over Nead's state claims. See 28 U.S.C.A. § 1367(c)(3). Accordingly, in its written opinion granting UCESC's motion for summary judgment, the federal court did not address the LAD, CEPA, or common law theories of liability. In rapid succession, Nead sought review in the Court of Appeals for the Third Circuit, and filed this action in the Law Division in May 2009.

Soon after it was served, UCESC moved to dismiss the Law Division complaint for failure to state a claim upon which relief may be granted. R. 4:6-2(e). On December 8, 2009, following several months in which the parties researched and briefed the numerous issues, the Law Division denied UCESC's motion, issuing a well-reasoned and comprehensive twenty-four page written opinion explaining its rationale. We deem it unnecessary to explicate this first opinion because UCESC immediately applied "for an Order for Reconsideration pursuant to R[ule] 1:7-4 and R[ule] 4:49-2."*fn3

On January 22, 2010, after a second round of briefing and oral argument, the Law Division issued a detailed fourteen-page written opinion, which reversed its initial determination, dismissing Nead's entire complaint with prejudice. This appeal followed in early March 2010.*fn4


Although this case was decided in the context of UCESC's Rule 4:6-2(e) motion (and subsequent motion for reconsideration), both parties unflinchingly appended a wealth of discovery materials to their respective moving papers, going far beyond the four corners of Nead's complaint. The motion court readily considered all of these data, and therefore we are obliged to treat its disposition as if it were decided as a motion for summary judgment. See R. 4:6-2 ("If, on a motion to dismiss based on the defense numbered (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R[ule] 4:46."). Accordingly, we consider the facts in the light most favorable to plaintiff. Henry v. N.J. Dep't of Human Servs., ___ N.J. ___, ___ (2010) (slip op. at 3); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2.


Nead began his teaching career with UCESC in 1992. After initially spending one year assigned to Hillcrest High School, Nead served as a physical education teacher at Beadleston High School*fn5 in Westfield -- an alternative school for students with emotional and behavioral challenges -- for the balance of his fourteen-year employment. Throughout this term, Nead repeatedly complained to administrators about physical threats and abuse by students against teachers and other students, and railed against what he perceived as a general disregard for school policies and regulations by the administration.*fn6 Notwithstanding his repeated expressions of discontent, Nead received tenure during the 1995-1996 school year.

Throughout the 1999-2000 school year, Nead served as the union representative for the local teachers association. In this capacity, he often brought to the principal's attention what he believed were discordances with UCESC's educational policies and the inaction of the school's administration in response. Cited examples of noncompliance with UCESC policies included tolerance for on-campus drug and tobacco use, as well as ignoring physical assaults by students against faculty, staff, and other students.

In 2000, one of Nead's colleagues filed a lawsuit against UCESC, asserting retaliation for reporting student abuse of teachers and students. Nead testified as a witness at a deposition in the case although he claims that the school's administration tried to discourage his participation.

Nead also alleged that he was repeatedly victimized by students throughout his time at Beadleston, who either physically assaulted him or threatened him with physical violence. When he reported one particular incident to the school principal, he was "verbally attacked" and told instead that he had threatened the student.

In June 2005, Nead informed Beadleston's then-principal of his multiple myeloma diagnosis. Later that year, Nead advised the replacement principal of his condition and asserted that he could not take any chances with physical assaults, and may need to leave work early on some days once his cancer treatment started. When such treatment began, however, the principal refused to provide timely coverage for Nead's classes, causing him to miss transportation connections and become overly worried about being late.

Soon thereafter, an affiliated educational facility -- Centennial High School -- closed. Nead claimed that this caused "an influx of students with criminal records to be transferred to Beadleston." In October 2005, Nead was punched in the head and "wrenched his back" while attempting to break up a fight between two students, one of whom was a suspected gang member. That same month, another student punched Nead in the face through a glass window, causing shattered glass to enter Nead's eye.

Nead further claimed that UCESC retaliated against him for whistle blowing activities. Specifically, he asserted that UCESC (1) denied his requests to attend professional development classes, (2) refused to provide him with a paraprofessional (teacher's assistant) even though he was the only full-time teacher without one, (3) initially refused to give him a desk due to professed financial constraints, (4) neglected to order him needed school supplies, including a classroom telephone, (5) prohibited plaintiff from attending a school field trip he had organized, and (6) assigned him to thirty-classes, which he maintains was "more than any other teacher."

When the local education association wrote a letter to the superintendent regarding safety issues at the school in February 2000, Nead asserted that the school principal retaliated against him by refusing to give him a key to a classroom he used, forcing him and his students to congregate in the hallway before each class until someone unlocked the door and allowed them in. Nead also contended that he was given undesirable assignments such as supervising smoke breaks and being put on back-to-back lunch duty.

The final indignity, according to Nead, occurred on March 20, 2006, when UCESC reported to the Department of Human Services Institutional Abuse Investigation Unit (IAIU) allegations that Nead had assaulted a student. Four days later, Nead ceased being a teacher at Beadleston. He gave notice in a written letter to UCESC, stating "I regret to say that I am resigning my position due to disability retirement effective immediately."*fn7

After its investigation, the IAIU concluded that the reported incident involved "some sort of horseplay," resulting in the student being kicked "on the rib cage area using minimal force." More importantly, the IAIU found that "[p]hysical abuse was unfounded in accordance with N.J.S.A. 9:6-8.21."

On May 1, 2006, Nead applied for ordinary disability retirement benefits from the Public Employees' Retirement System and Teachers' Pension and Annuity Fund. In his application, he indicated that he was incapacitated for further service as a teacher due to "multiple myeloma (blood cancer)." Three physicians -- Dr. Sundar Jagannath, M.D.; Dr. Hen-Vri Wu, M.D.; and Dr. Myron Gessner, M.D. -- endorsed the application, noting that Nead's condition of multiple myeloma, coupled with depression and anxiety, rendered Nead "totally and permanently disabled and no longer able to perform his or her job duties." Nead's application was approved and he has been receiving disability retirement benefits since approximately July 2006.


The main thrust of UCESC's motions to dismiss and for reconsideration was that Nead was "precluded from seeking redress of the claims set forth in his complaint pursuant to the findings" of the District Court. Specifically, UCESC relied upon the District Court's determination that Nead "has not adduced sufficient evidence from which a reasonable jury could find either that he suffered an actionable, adverse employment action or that his speech was a motivating factor in [UCESC's] actions." From this conclusion -- self-limited to Nead's First Amendment claim -- UCESC argued that pursuant to the preclusionary effects of collateral estoppel, all of Nead's state claims must fail. In other words, because Nead could not surmount the First Amendment's "adverse employment action" threshold, he similarly cannot vault the LAD's and CEPA's supposed higher bar. We disagree and remand for further proceedings.



We first address Nead's claim that the Law Division erred when it reconsidered UCESC's initially-unsuccessful motion to dismiss. Because we find that the Law Division did not abuse its discretion by engaging in the process of reconsideration, we are unpersuaded that its actions are subject to rebuke.*fn8

Courts should not begrudge parties the right to partake in motions for reconsideration. This method of error correction is, after all, an inherent -- as well as a rule-based -- adjunct to the decisional process of dispute resolution. Nevertheless, in the interest of conserving increasingly scarce judicial resources, judges must deploy principled standards to resolve such motions. Those standards are found in cases such as Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299 (App. Div.) (reviewing standards of reconsideration to be applied to what was an interlocutory order), certif. denied, 195 N.J. 521 (2008) and Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.) (noting that "reconsideration should be used only for those cases which fall into that narrow corridor in which either (l) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.") (citations omitted), certif. denied, 174 N.J. 544 (2002).

Furthermore, in order to maintain a consistent methodology for all motions seeking reconsideration, we believe that the same modes of thought and methods of analysis should apply to applications for reconsideration of both interlocutory (Rule 4:42-2) and final (Rule 4:49-2) orders. At its core, the guiding principle for all such reviews will always be the furtherance of the interests of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (noting that "[r]econsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice" (citations omitted)). We believe that this uniform approach will also enhance predictability and serve to fortify our observance of precedent.

Based upon the record presented to the Law Division, and notwithstanding that summary judgment principles should have informed its analysis, we cannot conclude that the motion court followed an ill-chosen path. It was confronted with a complicated jurisprudential landscape littered with difficult legal principles, many dependent upon subtle questions of federal law. In an abundance of caution, the court did not simply reassert its earlier comprehensive opinion, and instead took the time to review many of the federal cases that the parties bandied about. This emblemized an attempt to further the interests of justice, and plainly was not an abuse of discretion. The circumstance that such process resulted in an imperfect application of law does not detract from the motion court's proper methods of attempting to accord substantial justice to the parties.


We next turn to the collateral estoppel issue because it was the centerpiece of UCESC's motions, and formed the basis of the Law Division's decision to dismiss the complaint. To apply the doctrines of collateral estoppel or res judicata, an issue or claim between the parties must have been fairly litigated and determined, preventing relitigation of the same matter. First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007). This serves the important policy goals of "'finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness[.]'" Ibid. (quoting Hackensack v. Winner, 82 N.J. 1, 32-33 (1980)).

The Supreme Court has articulated a five-element test to foreclose relitigation of an issue. Id. at 352; Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005); In re Estate of Dawson, 136 N.J. 1, 20-21 (1994). The party asserting application of collateral estoppel must show that: "(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding." First Union, supra, 190 N.J. at 352.

We are satisfied that the primary issue upon which UCESC relies, which was resolved in the federal litigation (Nead's failure to demonstrate that he suffered an adverse employment consequence for First Amendment purposes), is not identical to the issue of what constitutes an adverse employment consequence under either the LAD or CEPA. Moreover, the Supreme Court's decision in Victor v. State, 203 N.J. 383 (2010), involving a claim of failure to accommodate, makes the federal determinations even more attenuated for collateral estoppel purposes. Accordingly, Nead is not foreclosed from pursuing his state statutory causes of action as a result of the federal case. Whether other principles of law may bar or truncate his claims is a different question.

As determined by the Third Circuit in Nead's federal appeal,

The test for determining whether an alleged act of retaliation is sufficient to give rise to a retaliation claim is whether it would be 'sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.' McKee v. Hart, 436 F. 3d 165, 170 (3d Cir. 2006).

Agreeing with the District Court "that most of the allegedly retaliatory acts are trivial," and "[o]ther acts alleged by Nead are unsupported by the record," Nead's First Amendment retaliation claims were dismissed on appeal. This may end our inquiry insofar as Section 1983 is concerned, but it does not suffice for the purposes of Nead's LAD and CEPA claims.

We do not share UCESC's view that the federal court determinations presage mandatory dismissal of the unresolved state claims under the LAD and CEPA. Notwithstanding the argument that the First Amendment demands only a very low threshold for actualized claims in Section 1983 litigation, we believe that this State's anti-discrimination statutes promote and validate different purposes than Section 1983's gloss on the First Amendment, making its adverse employment consequence threshold immaterial for purposes of collateral estoppel.

For example, the Supreme Court recently noted that although the LAD generally follows federal anti-discrimination legislation, the LAD has its own "long and rich history" of protecting employees from discrimination. Victor, supra, 203 N.J. at 398. Thus, we remain unconvinced that for issue preclusion purposes the elements of a prima facie case under Section 1983 are either (1) identical to the elements of an LAD or CEPA claim or (2) in any other way significant for comparison purposes.

In order to establish a prima facie case of retaliation or discrimination under the LAD, an employee must prove that he suffered an adverse employment consequence. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). The Supreme Court cataloged the nature of such proofs as follows:

There is no single prima facie case that applies to all employment discrimination claims. Instead, the elements of the prima facie case vary depending upon the particular cause of action. For example, the prima facie elements for a complaint arising from the failure to hire, regardless of whether that claim is based on race, sex or handicap, are: (1) that plaintiff falls within a protected class; (2) that plaintiff was qualified for the work for which he or she applied; (3) that plaintiff was not hired; and (4) that the employer continued to seek others with the same qualifications or hired someone with the same or lesser qualifications who was not in the protected status. Anderson v. Exxon Corp., 89 N.J. 483, 492 (1982). If the claim is based upon discriminatory discharge, the prima facie case is similar, in that plaintiff must demonstrate: (1) that plaintiff is in a protected class; (2) that plaintiff was otherwise qualified and performing the essential functions of the job; (3) that plaintiff was terminated; and (4) that the employer thereafter sought similarly qualified individuals for that job. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596-97 (1988).

On the other hand, the prima facie elements of a retaliation claim under the LAD requires plaintiff to demonstrate that:

(1) plaintiff was in a protected class; (2) plaintiff engaged in protected activity known to the employer; (3) plaintiff was thereafter subjected to an adverse employment consequence; and (4) that there is a causal link between the protected activity and the adverse employment consequence. Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996); cf. Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 371-73 (2007) (construing element four to include proving original complaint was made reasonably and in good faith). A hostile environment claim, first recognized by this Court as a variety of LAD discrimination, has as its prima facie elements: (1) that plaintiff is in a protected class; (2) that plaintiff was subjected to conduct that would not have occurred but for that protected status; and

(3) that it was severe or pervasive enough to alter the conditions of employment. See Lehmann, supra, 132 N.J. at 603-04.

As these examples demonstrate, there is no single prima facie case that applies to all discrimination claims. Instead, the prima facie elements of a claim vary depending upon the particular employment discrimination claim being made. What they traditionally share, however, is the requirement that plaintiff endure an adverse employment consequence as a result of the discriminatory act. [Victor, supra, 203 N.J. at 408-10 (footnote omitted).]

Although there are no bright-line rules defining an adverse employment consequence, New Jersey has admittedly looked for guidance to federal law to determine what constitutes an adverse employment decision in the context of an LAD claim. Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002) (citing Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)). The factors to be considered include an "employee's loss of status, a clouding of job responsibilities, diminution in authority, disadvantageous transfers or assignments, and toleration of harassment by other employees." Ibid. "In order to constitute 'adverse employment action' for the purposes of the LAD, 'retaliatory conduct must affect adversely the terms, conditions, or privileges of the plaintiff's employment or limit, segregate or classify the plaintiff in a way which would tend to deprive her of employment opportunities or otherwise affect her status as an employee.'" Marrero v. Camden Cnty. Bd. of Soc. Servs., 164 F. Supp. 2d 455, 473 (D.N.J. 2001).*fn9 However, as noted in Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), "'not everything that makes an employee unhappy is an actionable adverse action.'" Ibid. (quoting Montandon v. Farmland Indus., 116 F.3d 355, 359 (8th Cir. 1997)), aff'd, 362 N.J. Super. 245 (App. Div.), certif. denied, 178 N.J. 32 (2003).

Additionally, whether an employment consequence is "adverse" must be assessed objectively. An employee's subjective feelings are irrelevant in making that analysis. See Klein v. Univ. of Med. and Dentistry of N.J., 377 N.J. Super. 28, 46 (App. Div. 2005) ("Although plaintiff feels that performing his [assignment] . . . was demeaning, . . . [a]n employer's actions are not [adverse] merely because they result in a bruised ego or injured pride on the part of the employee."), certif. denied, 185 N.J. 39 (2005).

Our disagreement with the Law Division is two-fold: first, the court decided the reconsideration motion by cabining itself within the confines of the federal courts' statements about the First Amendment, without giving due regard to the independent purposes of the LAD and CEPA; and second, it neglected to properly analyze the application as a motion to dismiss for failure to state a claim. Although the court was clearly operating in summary judgment territory, its opinion expressly referred to the principles of law governing Rule 4:6-2(e).

Motions to dismiss pursuant to Rule 4:6-2(e) "should be granted in only the rarest of instances" and generally without prejudice. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989). The court must read the complaint liberally and afford plaintiff every reasonable inference of fact to determine if the facts alleged "suggest[]" a cause of action. Id. at 746. A judge shall convert a Rule 4:6-2(e) motion to dismiss into a Rule 4:46 motion for summary judgment and consult "matters outside the pleading," if "all parties [have been] given reasonable opportunity to present all material pertinent to such a motion." R. 4:6-2. Without such a conversion, the court must limit its inquiry to the face of the complaint and not concern itself with plaintiff's ability to prove the allegations asserted. Printing Mart-Morristown, supra, 116 N.J. at 746. Nevertheless, a court may consider documents referenced in the complaint without converting a motion to dismiss into one for summary judgment. See E. Dickerson & Son, Inc. v. Ernst & Young, LLP, 361 N.J. Super. 362, 365 n.1 (App. Div. 2003), aff'd, 179 N.J. 500 (2004); N.J. Sports Prod. Inc. v. Bobby Bostick Promotions, LLC, 405 N.J. Super. 173, 178 (Ch. Div. 2007).

The court's dismissal of Nead's complaint was accomplished at a stage at which this ought not to have been done. Even though the submissions by the parties on the motions automatically transformed them into motions for summary judgment,*fn10 the Law Division hewed to the jurisprudence of Rule 4:6-2(e), but misapplied it. Instead, at this early stage of the proceedings -- where the movant had not explicitly moved for summary judgment -- the motion court should have looked only to the face of the complaint to determine whether Nead had alleged sufficient facts to state a claim upon which relief could be granted. Nead's ability to prove those allegations was of no concern since a Rule 4:6-2(e) motion to dismiss requires the court to accept all the pleadings as true. Heavner v. Uniroyal, Inc., 63 N.J. 130, 133 (1973).

The Law Division -- for collateral estoppel purposes -- focused upon whether the LAD and CEPA had a "higher" or "lower" burden for establishing an adverse employment consequence than required by the First Amendment. As noted, we believe that this is a false comparison as the separate jurisprudential frameworks protect different interests and are not readily comparable. We do not foreclose, in a proper application (such as summary judgment or at trial), the Law Division's consideration of whether -- independent of the federal courts' exposition of Section 1983's First Amendment burden -- Nead actually surmounted New Jersey's definitional threshold of an adverse employment consequence.

We also leave to a future determination the still unresolved question of whether in a failure to accommodate case, a plaintiff must demonstrate an adverse employment consequence. In Victor, the Supreme Court addressed this issue at great length, and strongly suggested that such a claim may not necessarily require anything more than the failure to engage in an interactive dialogue with the employee. Id. at 421 ("The LAD's purposes suggest that we chart a course to permit plaintiffs to proceed against employers who have failed to reasonably accommodate their disabilities or who have failed to engage in an interactive process even if they can point to no adverse employment consequence that resulted."). However, the Court itself noted that this comment was dicta, and left for another day the ultimate determination. Id. at 422 ("[W]e are constrained to refrain from resolving today the question of whether a failure to accommodate unaccompanied by an adverse employment consequence may be actionable . . . because, in the end, this record is a poor vehicle in which to find the definitive answer to that important question.").



Nead also appeals the Law Division's determinations that (1) UCESC's referral of the striking incident of March 20, 2006, to the IAIU was not actionable because of the statutory immunity of N.J.S.A. 9:6-8.13 ("[a]nyone acting pursuant to this act in the making of a report under this act shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed") and (2) Nead was estopped from pursuing LAD claims because of statements made in his application for disability retirement benefits. We note that both of these determinations were improvidently decided as if they were considered in a summary judgment modality because significant information beyond the complaint was provided by the parties and considered by the court.

Nead's complaint alleged the following:

[The principal of Beadleston] then attempted to ruin [p]laintiff's professional career and his health by calling the [IAIU] where he fabricated a report regarding a student's assault upon the [p]laintiff. The principal never asked the plaintiff what happened, but instead reported him to [the IAIU]. That agency launched an investigation into the false allegations made by [the principal]. The false claims caused [p]laintiff [to] suffer debilitating stress which affected the plaintiff's health. Although the incident was deemed to be unfounded by [the IAIU], the [p]laintiff had to seek emergency medical attention for his blood pressure and discovered that test results for his cancer skyrocketed as a result. The principal engaged in this behavior with full knowledge of [p]laintiff's diagnosis.

Indulgently distilled to their essence, these allegations contend that UCESC's agent retaliated against plaintiff by filing a bad faith report of child abuse. Notwithstanding this characterization, UCESC argues that immunity shields it for what actually occurred.

Pursuant to N.J.S.A. 9:6-8.10, "[a]ny person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately to the Division of Youth and Family Services." A person "acting pursuant to this act in the making of a report under this act shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed."

N.J.S.A. 9:6-8.13. This provision "affords a qualified immunity by protecting those who report in good faith." F.A. by P.A. v. W.J.F., 280 N.J. Super. 570, 580 (App. Div. 1995).

Nead's allegations, which must be credited at this stage, are precisely that an agent of UCESC did not report in good faith. As we have recognized, such a qualified immunity may be decided at the summary judgment stage more easily than at the motion to dismiss stage, see id. at 581; however, we expected that "immunity issues will be addressed and determined speedily without extensive and burdensome discovery and trial preparation." Ibid.

Under the paradigm created in F.A. by P.A., we liberally construe the statutory grant of immunity as follows: (1) An objective test will be used to determine whether a report of suspected child abuse is made pursuant to the statute. The test will be whether a reasonable person would have reasonable cause to believe that a child has been abused. (2) Immunity will attach if an investigation by DYFS shows that there was a reasonable basis to suspect child abuse and the report was made immediately. (3) Immunity will not be withheld merely because the reporter did not act "immediately." The requirement of reporting "immediately" was intended to protect children from the potentially serious consequences of delay. We glean no legislative intent that the failure to act immediately will necessarily strip immunity from the reporter. [Id. at 578.]

In this case, the Law Division explicated these principles, but then relied upon the federal court's determination "that defendant had a right to call DYFS" in finding that UCESC's reporting was "not retaliatory." In fact, what the District Court found was the following:

Plaintiff has not adduced any evidence that his protected conduct [under the First Amendment] was a motivating factor in the adverse employment decision. To the contrary, the evidence adduced clearly demonstrates actions that would have occurred regardless of whether [p]laintiff engaged in protected conduct, i.e., [d]efendant was required by law to report allegations of abuse to DYFS.

In similar vein, the Third Circuit echoed the lack of causality between Nead's protected conduct and the alleged retaliatory acts, noting "Nead claims the school retaliated against him by reporting a student's abuse allegation, but the school was required by law to report it."

None of these federal findings address the objective test outlined in F.A. by P.A. In this case, no court has determined "whether a reasonable person would have reasonable cause to believe that [the] child has been abused" in deciding whether "[i]mmunity will attach." Id. at 578. Thus, the Law Division's reliance upon federal expressions of federal law did not properly consider the specific question presented. On remand, UCESC is free to move for summary judgment on the immunity issue, and we express no opinion here as to the outcome of such a motion.


The motion judge also applied principles of estoppel against Nead because of contradictory statements between his complaint and disability retirement application. Initially, the court recognized that "such statements are not determinative, and plaintiff may explain the reason for the filing." On the motion for reconsideration, however, the court changed course. In partial reliance upon information provided (outside the complaint) from Nead's three medical providers, none of which "indicat[ing] that plaintiff could work with an accommodation," the Law Division determined -- in summary judgment fashion -- that Nead had utterly failed to show any evidence that he could continue to work with reasonable accommodations.

Given that the motion court treated this motion as one to be decided under Rule 4:6-2(e), it is plain that the court erred in analyzing evidence outside of the complaint. However, even under the appropriate lens of Rule 4:46, the court did not give plaintiff the benefit of all reasonable inferences concerning his explanation for what he provided on the disability retirement application.

Although the receipt of disability retirement benefits is not dispositive of plaintiff's disability-related claims under the LAD, Nead is obliged to proffer a sufficient explanation why his multiple assertions of an inability to work, set forth in his disability retirement application, his letter of resignation, as well as his sworn deposition in the federal litigation, did not reflect an accurate view of his physical condition at the time he resigned. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806, 119 S. Ct. 1597, 1603, 143 L. Ed. 2d 966, 977 (1999); Ramer v. N.J. Transit Bus Operations, Inc., 335 N.J. Super. 304, 317-18 (App. Div. 2002). In this regard, notwithstanding any perceived weakness in Nead's proofs, because he has offered an explanation of his capacity to work with reasonable accommodations in the period immediately following his resignation, his LAD claims cannot be dismissed outright. We cannot say that it is inevitable that a reasonable juror will find only in favor of UCESC on this issue, and accordingly, the grant of summary judgment was improper. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).


Without filing a cross-appeal, UCESC has raised the argument that the Law Division erred in not dismissing Nead's LAD and CEPA claims on the basis of being barred by the applicable statute of limitations and by laches.*fn11 It maintains that its position takes into account the timing of the federal action, which it asserts was filed beyond the applicable limitations periods. See Montells v. Haynes, 133 N.J. 282, 292 (1993) (two years for the LAD claims*fn12 ); N.J.S.A. 34:19-5 (one year for the CEPA action).

In fact, in the two motions decided by the Law Division, the court expressly only considered the CEPA one-year bar,*fn13 and did not explicitly explain how the commencement of the federal action in May 2007 was timely, except for its recitation of the date of Nead's resignation (July 24, 2006) as being within one year of such filing. Although it analyzed the principles of the continuing violation doctrine and its applicability to CEPA actions, the court did not specifically review any of the hundreds of alleged acts of discrimination and retaliation spanning fourteen years as asserted by Nead to see if such evidence brought him within the "equitable exception" for a "continuing violation," which requires proof of a pattern of discriminatory acts one of which occurred "within the statutory limitations period." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 6-7 (2002).

Although we harbor few concerns that the Law Division erred in refusing to bar Nead's claims on limitation of actions grounds (including laches), we nevertheless are troubled by the lack of a full explication of (1) Nead's entitlement to the benefits of the continuing violation doctrine and (2) why laches is not an effective defense. R. 1:7-4. Because this matter will be remanded for further proceedings, we will permit UCESC to renew its application to bar or limit Nead's claims pursuant to the applicable statute of limitations and laches. Nead will be likewise permitted to contend that he is entitled to the benefits of the continuing violation doctrine and argue why laches is inapplicable. In so doing, we express no opinion about the vitality of any or all of the parties' postions, and are content to leave it to the sound discretion of the Law Division to dispose of the issues.


The main focus of the parties and the motion court in the Law Division was a comparative analysis of the federal courts' Section 1983 determinations under the lens of the paradigms established pursuant to the LAD and CEPA. The fundamental error was to treat the concept of adverse employment consequences on the same scale, regardless of which statutory framework applied. We require a much more particularized scrutiny for collateral estoppel purposes and eschew the use of a metaphorical thermometer of adverse employment consequences to reveal whether plaintiff's LAD or CEPA temperature is higher or lower than his First Amendment heat. That relativistic approach neglects to give due regard to the distinctive salutary goals of our LAD*fn14 and CEPA,*fn15 without diminishing the important purposes of Section 1983. Upon the remand to the Law Division, the parties remain free to seek all appropriate remedies and utilize all suitable defenses with respect to all of the revived claims, but without regard to collateral estoppel vis-A-vis the federal litigation.

Reversed and remanded for further proceedings in accordance with this opinion.

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