United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter is before the Court on a motion for summary judgment
brought by Defendant the State of New Jersey Department of
Human Services, Trenton Psychiatric Hospital, Ancora
Psychiatric Hospital, Teresa McQuaide, and Christopher
Morrison (hereinafter collectively as
"Defendants"). (ECFNo. 27).
Defendants argue that the case should be dismissed because
there was an ongoing state court process wherein an
Administrative Law Judge (ALJ) and the Superior Court of New
Jersey, Appellate Division decided the matter. Accordingly,
Defendants argue that the case is barred by res judicata,
collateral estoppel and the entire controversy doctrine.
specifically, this matter was initially filed in the New
Jersey Superior Court on August 5, 2013, then removed to this
Court on a cause of action that asserted a violation of the
Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq.
At the time that the Complaint was filed in this Court, the
ALJ had not yet rendered a decision. The ALJ's decision
was thereafter rendered on August 16, 2013. On October 9,
2014, this Court granted a stay on this matter due to a
pending appeal before the Superior Court of New Jersey,
Appellate Division. (ECF No. 19). After the Appellate
Division's decision, the stay was vacated, and on October
19, 2017, Defendant filed a motion for summary judgment. (ECF
No. 27), including a statement of uncontested material facts
in support of their motion. ("Def. SOMF", ECF No.
27-2). Thereafter, Plaintiff submitted its response as well
as a counterstatement of disputed material facts. (ECF No.
below are the facts from Defendant's Statement of
Uncontested Material Facts, and within same, Plaintiffs
responses are set forth in footnotes.
Plaintiff Kathleen Carr ("Plaintiff) is a former
Personnel Assistant for Defendant Trenton Psychiatric
Hospital ("TPH"). She transferred to TPH from the
Ancora Psychiatric Hospital ("APH") in
approximately November 2010.
matter arises from the suspension and ultimate removal of
Plaintiff from her employment with TPH. Plaintiff argues that
she "was discriminated against and subject to a hostile
work environment due to gender, age and her own
disability." 3) On May 24, 2011, TPH issued a
Preliminary Notice of Disciplinary Action (PNDA) to
Plaintiff, suspending her for twenty (20) days, for
a. failing to learn payroll procedures from her supervisor;
b. being uncooperative, argumentative, accusatory and
inappropriate with a Human resources supervisor;
c. approving correspondence that contained incomplete and
d. failing to delete a former employee's access to the
Time Keeping System after they were no longer employed by
e. attempting to return two employees to work who had been on
extended leaves of absence without following proper TPH
procedures; f. scheduling her own fingerprinting;
g. completing and reviewing her own Federal Family Medical
Leave Act (FMLA) leave;
h. refusing to complete the New Hire Package for new TPH
i. disclosing confidential protected health information of
employees who were out on leave;
j. failing to disclose two periods of employment with the
State of New Jersey in her employment application; and
k. refusing to cooperate with interviewers from the Office of
Employee Relations. (See Certification of Counsel, Ex. D).
November 9, 2011, TPH prepared a Final Notice of Disciplinary
Action (FNDA) which imposed a suspension for twenty (20)
working days commencing on a date which was to be determined
later along with a demotion to the position of Personnel
Assistant 2. (See Certification of Counsel, Ex.
Plaintiff appealed that determination and the matter was
transmitted to the New Jersey Office of Administrative Law
("OAL") by the Civil Service Commission
February 23, 2012, TPH filed an Amended FNDA regarding
Plaintiffs suspension. (See Certification of
Counsel, Ex. F).
June 17, 2011, TPH issued another FNDA to Plaintiff, this
time removing her from employment, and suspending her
effective June 17, 2011 for misconduct, including:
a. refusing to update management and contact the Office of
Employee Relations regarding a payroll staff member's
b. referring to employees in an unprofessional and
insubordinate manner, including calling an individual a
"little squirt" and an "a**hole"; and
c. discussing the confidential disciplinary history of a
member of the Payroll Office with another employee of TPH.
(See, Certification of Counsel, Ex. H).
prepared a FNDA on February 24, 2014, removing Plaintiff from
employment effective August 5, 2011. (See Certification of
Counsel, Ex. I). 9)Plaintiff appealed that determination and
the matter was transferred to the OAL by the CSC.
Plaintiffs suspension and removal from employment were both
heard by Administrative Law Judge John R. Futey on September
25, September 27, November 21 and December 3, 2012, and
February 12 and February 14, 2013.
OAL specifically considered Plaintiffs Law Against
Discrimination ("LAD") and Conscientious Employee
Protection Act ("CEPA") claims and held that the
"absence of any viable proofs by [Plaintiff] in...
regard [to her LAD and CEPA claims] negates any such claims
under the circumstances and, in any event, [Plaintiff]
totally failed to carry her burden regarding those
claims." (See Certification of Counsel, Ex. B, p.
Judge Futey held that Plaintiff advanced her claims through
the statutory framework of CEPA at her OAL proceeding. (See
id., p. 30).
Judge Futey determined that Plaintiff "totally failed to
carry her burden" under CEPA. (See id., p.
Judge Futey did not find "any actual animus or effort to
retaliate against [Plaintiff] by TPH in any of its charges
against her attendant to this matter." (See
Judge Futey determined that TPH had shown legitimate,
non-discriminatory reasons to demand her compliance with its
orders and directives. (See id., p.
Judge Futey found that "Plaintiffs request for leave
under the Family Medical Leave Act ("FMLA") was
eventually approved, the initial issue was that it was
unethical for Plaintiff to approve leave for herself in the
first place. (See id., p. 9).
Judge Futey determined that Plaintiff "was the one who
was in the position to routinely respond to appropriate
directives [of her supervisors], yet, for whatever reason
efforts of TPH to maintain and manage a viable institutional
system." (See id.).
Eleven (11) days before OAL reached its decision regarding
Plaintiffs suspension and ultimate removal from employment
(August 5, 2013) Plaintiff filed the instant Complaint. (See
Certification of Counsel, Ex. A).
Specifically, Plaintiff alleges in her Complaint that:
a. Plaintiff was subject to harassment, discrimination and
retaliation on the basis of her age in violation of the LAD
when she was issued her suspension and discharge.
(Id., ¶¶ 17-130).
b. Plaintiff was subject to retaliation in violation of the
CEP A when she was issued her suspension and discharge.
(Id., ¶¶ 17-128, 131-132).
c. Plaintiff was subject to discrimination and retaliation in
violation of the FMLA when she was issued her suspension and
discharge. (Id., ¶¶ 17-128, 133-134).
Plaintiff subsequently appealed the decision of Judge Futey
to the Superior Court of New Jersey, Appellate Division. (See
Certification of Counsel, Ex. C).
a decision dated August 7, 2017, the Appellate Division
affirmed the CSC's ...