Winters v. Fire

• Decision Date: 13 September 2012
• Citation: 34 IER Cases 616,212 N.J. 67,50 A.3d 649
• Parties: Steven J. WINTERS, Plaintiff–Respondent, v. NORTH HUDSON REGIONAL FIRE AND RESCUE, Jeffrey C. Welz, Michael J. DeOrio, and Brion McEldowney, Defendants–Appellants.
• Court: New Jersey Supreme Court

212 N.J. 67

50 A.3d 649

34 IER Cases 616

Steven J. WINTERS, Plaintiff–Respondent,

v.NORTH HUDSON REGIONAL FIRE AND RESCUE, Jeffrey C. Welz, Michael J. DeOrio, and Brion McEldowney, Defendants–Appellants.

Supreme Court of New Jersey.

Argued May 3, 2011.

Reargued Jan. 5, 2012.

Decided Sept. 13, 2012.

Thomas R. Kobin, Secaucus, and David J. Pack argued the cause for appellants (Chasan Leyner & Lamparello, attorneys for Michael J. DeOrio and Thomas B. Hanrahan & Associates, attorneys for North Hudson Regional Fire and Rescue and Brion McEldowney; Mr. Kobin and Thomas B. Hanrahan, of counsel). David F. Corrigan argued the cause for appellant Jeffrey C. Welz (The Corrigan Law Firm, attorneys; Mr. Corrigan and Bradley D. Tishman, on the briefs).

Robert L. Herbst, a member of the New York bar, argued the cause for respondent (The Nirenberg Law Firm, attorneys; Mr. Herbst and Jonathan I. Nirenberg, Hackensack, on the briefs).

Richard E. Yaskin, Cherry Hill, submitted a brief on behalf of amicus curiae National Employment Lawyers Association/New Jersey Chapter (Mr. Yaskin, attorney; Bennet D. Zurofsky, Newark, of counsel).

Marvin M. Goldstein submitted a brief on behalf of amicus curiae Employers Association of New Jersey (Proskauer Rose, attorneys; Mr. Goldstein, Mark A. Saloman, and John J. Sarno, Newark, of counsel and on the brief).

PER CURIAM.

In this matter, we consider whether a plaintiff, who was removed from public employment after positing a claim of employer retaliation in a civil service disciplinary proceeding, should be barred from seeking to circumvent that discipline through a subsequent Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19–1 to –14, action also alleging retaliation. We hold that, under these facts, plaintiff's CEPA action is barred.

Plaintiff was terminated from his position following two close-in-time proceedings involving separate disciplinary matters before the Civil Service Commission (Commission). The first resulted in a demotion and the imposition of a sixty-day suspension. The second proceeding involved a distinct set of charges relating to plaintiff's abuse of sick leave.

Following full discovery practice before the Office of Administrative Law (OAL) and the commencement of an evidential proceeding in the second matter, the employer moved for partial summary decision, which was granted by the administrative law judge (ALJ). The ALJ found it significant that despite plaintiff's defensive theme of employer retaliation, he did not provide support for that claim in his response to the employer's motion seeking partial summary judgment, and plaintiff's termination, for sick-leave misuse. In reviewing the record, proposed findings, and conclusions of law of the ALJ, the Commission determined that plaintiff had committed, among other infractions, conduct unbecoming a public employee—abuse of sick leave by working two other public-sector jobs while receiving public benefits—and stated that, in light of the “egregious” nature of the misconduct, removal was the appropriate discipline. Indeed, in a strongly worded explanation for its de novo conclusion as to sanction, the Commission stated that removal was necessary for plaintiff's misconduct in breach of the public trust.

Plaintiff's appeal from that administrative final judgment brought him no relief. He also filed this CEPA action claiming that his termination was retaliatory, and his employer sought summary judgment on the basis that estoppel principles should bar the action. The trial court denied the motion and the Appellate Division affirmed on interlocutory review.

This matter raises significant and practical concerns about the intersection of administrative disciplinary proceedings and the important protection provided to whistle-blowing employees through CEPA. Although this matter does not present a textbook record for transparent application of the elements required for application of collateral estoppel, we are persuaded that preclusion should apply to plaintiff's subsequently filed retaliation claims against his former employer. We therefore reverse the judgment of the Appellate Division.

I.

At the outset, we note certain principles that guide our review in this matter. As a general matter, it is critical that there be intelligent and respectful interplay between the two systems of relief that may be called on to review the discipline of public employees—the civil service disciplinary system and CEPA's relief from retaliatory adverse employment action by an employer.

A litigant should not be permitted to participate in the administrative system designed to promote a fair and uniform statewide system of public employee discipline, see In re Herrmann, 192 N.J. 19, 37, 926 A.2d 350 (2007) (recognizing legislative charge to Commission's predecessor to supervise consistency in public employee disciplinary matters), raise a retaliation defense (as plaintiff did here), and then hold back on the defense in an attempt to save it for later duplicative litigation. No efficient and respected system of justice can permit the spectacle, and resulting disrepute, of inconsistent litigated matters involving the same transactional set of facts, notwithstanding that the forums embrace judicial and quasi-judicial proceedings. The public will neither understand nor appreciate the confounding wastefulness of such a result; and such disrespect of the legislatively created forum for supervision over, and resolution of, public employee discipline in this state should not be permitted. Rather, if an employee and employer engage the system of public employee discipline established by law and the employee raises a claim that employer retaliation at least partially motivated the decision to bring the charge or the level of discipline sought, then both the employee and employer must live with the outcome, including its potential preclusive effect on related employment-discrimination litigation as a matter of the equitable application of estoppel principles. We have held that estoppel principles can apply to findings made in administrative proceedings and affect subsequent judicial proceedings. See Hennessey v. Winslow Twp., 183 N.J. 593, 599–600, 604, 875 A.2d 240 (2005). We reaffirm that principle in this matter.

Here the disciplinary proceedings fairly conducted in this matter concluded with the determination that plaintiff had forfeited his right to continued employment as an officer in his firefighting unit. He raised his retaliation-themed defense in an opening session with the ALJ and was told to present it as part of his case in chief. That he did not fully present his defense before the Commission and is now barred from a more expansive presentation of his claim of disparate treatment in a CEPA action is a consequence with which he must live. Nothing prevented plaintiff from presenting his defense more fully than he did. Discovery was available to him as an OAL litigant. See N.J.A.C. 1:1–10.1. Accordingly, it is not unfair to require him to present the defense that he raised in the administrative forum and to accept the consequences of his strategy. If retaliatory animus is involved in the actions of a public employer, that information is important for the Commission to know as part of its overall responsibility for supervision of the public employee employment and discipline system. See N.J.S.A. 11A:2–6 (reposing major discipline review with Commission); Town of West New York v. Bock, 38 N.J. 500, 514–18, 186 A.2d 97 (1962) (tracing increase over time in Commission's supervisory authority over public employee discipline system).

We therefore put users of the public employment system of employee discipline on notice that integration of employer-retaliation claims should be anticipated and addressed where raised as part of the discipline review process. It is unseemly to have juries second-guessing major public employee discipline imposed after litigation is completed before the Commission to which the Legislature has entrusted review of such judgments. Findings made as part of the discipline process will have preclusive impact in later employment-discrimination litigation raising allegations of employer retaliation based on the same transactional set of facts. And it is to the set of facts in this case that we now turn.

II.

North Hudson Regional Fire and Rescue (Regional) is a public fire department that was created in 1999 from the consolidation of the fire departments of five municipalities: Weehawken, Union City, North Bergen, West New York, and Guttenberg. Plaintiff Steven J. Winters began his service as a firefighter with the Union City Fire Department in 1984. In 1997, he was promoted to Lieutenant and maintained the comparable position of Captain when the Union City Fire Department merged to form Regional. Over the years, Winters was a frequent and vocal critic of workplace policies and practices with which he disagreed. A relatively concise history of those interactions is provided; the crux of this matter is the abuse of sick leave, which is described last. Nevertheless, the following reveals the nature of the many disputes that occurred between this oft-complaining firefighter and his public employer, all of which were part of the record before the ALJ in this sick-leave disciplinary action.

A.

From 2002 until the time his employment was terminated in November 2006, Winters submitted approximately 250 reports, most of which were critical of Regional and its supervisors, particularly Chief Brion McEldowney, and Co–Directors Michael DeOrio and Jeffrey Welz.

Among Winters's series of complaints, criticisms, and critiques of numerous aspects of operations at Regional, was a recurrent theme about alleged inadequate fire coverage when fire companies were assigned other duties. We need not burden this recitation with the extensive number of complaints and ways in which Winters chose to express his views, notwithstanding...