Argued September 22, 2014
Approved for Publication January 29, 2015.
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).
Before Judges SABATINO,
GUADAGNO and LEONE.
[439 N.J.Super. 285] OPINION
In Winters v. North Hudson Regional Fire & Rescue, 212 N.J. 67, 50 A.3d 649 (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, 50 A.3d 649, 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.
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 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, [439 N.J.Super. 286] 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 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). 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 [439 N.J.Super. 287] 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 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 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."
[439 N.J.Super. 288] 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 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 [439 N.J.Super. 289] 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. The Commission
agreed with the ALJ's findings of 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.
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 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 [439 N.J.Super. 290] clearly raised and considered" in the ALJ proceeding, and that the ALJ implicitly found plaintiff " failed to establish that the discipline was ...