Michael Wolff v. Salem County Correctional Facility and County of Salem

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0543-13T3

MICHAEL WOLFF,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
January 29, 2015
v. APPELLATE DIVISION

SALEM COUNTY CORRECTIONAL
FACILITY and COUNTY OF SALEM,

Defendants-Respondents.
_______________________________________

Argued September 22, 2014 – Decided January 29, 2015

Before Judges Sabatino, Guadagno and Leone.

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).

The opinion of the court was delivered by

LEONE, J.A.D.

In Winters v. North Hudson Regional Fire & Rescue, 212 N.J.

67 (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, 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.

I.

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

2 A-0543-13T3
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, 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

3 A-0543-13T3
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).1 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

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

1
"Other sufficient cause" has since been renumbered as N.J.A.C.
4A:2-2.3(a)(12) (2014).

4 A-0543-13T3
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

5 A-0543-13T3
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."

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

6 A-0543-13T3
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 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.2 The Commission agreed with the ALJ's findings of

2
Plaintiff filed cross-exceptions, but simply supported the
ALJ's decision, which he later termed a "fair resolution."

7 A-0543-13T3
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.3

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

3
Plaintiff did not return to his position as a corrections
officer. Instead, he went on special leave, settled separate
litigation against the County involving a prior injury, and
received a disability retirement pension.

8 A-0543-13T3
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 clearly raised and considered" in

the ALJ proceeding, and that the ALJ implicitly found plaintiff

"failed to establish that the discipline was the result of

retaliation." The judge also found that the Law Division suit

involved "exactly the same parties and the exact same

arguments."

As the judge recognized, Winters reaffirmed that "our

courts will accord administrative rulings that otherwise satisfy

collateral estoppel standards preclusive effect if the

proceedings provide 'significant procedural and substantive

safeguards,' similar to those that are provided to litigants in

courts of law." Winters, supra, 212 N.J. at 87 (quoting

Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 524 (2006)).

Winters noted that civil service proceedings have been held to

meet that standard. See id. at 88 (citing Ensslin v. Twp. of N.

9 A-0543-13T3
Bergen, 275 N.J. Super. 352, 371 (App. Div. 1994), certif.

denied, 142 N.J. 446 (1995)).

Winters reiterated the factors required for issue

preclusion. Id. at 85 (quoting Olivieri, 186 N.J. at 521). The

judge applied those factors to plaintiff's complaint:

(1) the issue to be precluded is identical
to the issue decided in the prior proceeding
(retaliation); (2) the issue was actually
litigated in the prior proceeding (raised as
a defense); (3) the court in the prior
proceeding issued a final judgment on the
merits (6 months suspension plus payment of
backpay); (4) the determination of the issue
was essential to the prior judgment (if the
[ALJ] believed that the discipline was
imposed by employer as a result of
retaliation for filing complaints about
discrimination there would have been no
discipline); and (5) the party against whom
the doctrine is asserted was a party or in
privity with a party to the earlier
proceeding.

Therefore, the judge concluded that, "just as in Winters,

[p]laintiff herein should be prevented from using two separate

forums to litigate the same set of facts[.]" The judge granted

defendants' motion for summary judgment. Plaintiff appeals.

II.

Summary judgment must be granted if "there is no genuine

issue as to any material fact challenged and that the moving

party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c). The court must "consider whether the competent

10 A-0543-13T3
evidential materials presented, when viewed in the light most

favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995). As "appellate courts 'employ

the same standard that governs the trial court,'" we review

these determinations de novo, and the "trial court rulings 'are

not entitled to any special deference.'" Henry v. N.J. Dept. of

Human Servs., 204 N.J. 320, 330 (2010) (citation omitted). We

must hew to that standard of review.

We agree with the reasons given in Judge Malestein's

written opinion. We add the following.

A.

Plaintiff contends that the 2012 Winters decision cannot be

applied retroactively, because his disciplinary proceeding

before the ALJ was in 2009. However, plaintiff's action in the

Law Division was pending when Winters was decided. Thus, the

issue before us is whether the Law Division properly looked to

the Supreme Court's decision in deciding the reconsideration

motion.4

4
Because the Law Division case was pending when Winters was
decided, we consider only "pipeline retroactivity." Harrison
Redev. Agency v. DeRose, 398 N.J. Super. 361, 420 (App. Div.
2008). We have no occasion to consider whether Winters should
(continued)

11 A-0543-13T3
 Generally, a court resolving a legal issue must apply the

case law in existence at the time of its decision. "'[T]he

general rule applied in civil cases [is] that a new ruling shall

apply to all matters that have not reached final judgment.'"

Kibble v. Weeks Dredging & Constr. Co., 161 N.J. 178, 192

(1999). Thus, "the 'traditional rule' is that judicial

decisions are presumed to apply retroactively" in civil cases.

In re Contest of Nov. 8, 2011 Gen. Election of Office of N.J.

Gen. Assembly, 210 N.J. 29, 68 (2012). A party seeking to

escape that presumption must show the judicial decision

"establish[ed] a new principle of law, either by overruling

clear past precedent on which litigants may have relied, . . .

or by deciding an issue of first impression whose resolution was

not clearly foreshadowed." Ibid. (internal quotation marks

omitted). The court then considers whether retrospective

application of the new rule will further its operation, or

produce substantial inequitable results. Ibid.

Plaintiff argues that Winters established a new rule of

law. However, Winters did not overrule past precedent or decide

(continued)
be granted complete retroactivity, which would make it
applicable to cases "'where final judgments have been entered
and all avenues of direct review exhausted.'" State v. Colbert,
190 N.J. 14, 23 (2007). That "potentially would expose the
judicial system to the undue burden of resolving numerous
concluded matters." Olds v. Donnelly, 150 N.J. 424, 450 (1997).

12 A-0543-13T3
an issue of first impression not foreshadowed by prior cases.

See Malinowski v. Jacobs, 189 N.J. 345, 352 (2007). Rather, as

set forth above, Winters applied long-standing "general estoppel

principles" that bar the relitigation in judicial proceedings of

issues decided in administrative proceedings. Winters, supra,

212 N.J. at 85. The Court stressed that "[w]e have recognized

that concerns about finality and consistency . . . are

applicable to the intersection of judicial and administrative

proceedings." Id. at 87 (citing Hennessey v. Winslow Twp., 183

N.J. 593, 599-600, 604 (2005)). Indeed, the Court stated: "We

have held that estoppel principles can apply to findings made in

administrative proceedings and affect subsequent judicial

proceedings. We reaffirm that principle in this matter."

Winters, supra, 212 N.J. at 73 (emphasis added) (citing

Hennessey, supra, 183 N.J. at 599-600).

Even the dissenter in Winters agreed that, under existing

law,

if a public employee raises retaliation as a
defense in an administrative disciplinary
proceeding, if he is given a full and fair
opportunity to litigate the defense, and if
the Office of Administrative Law and the
Civil Service Commission adjudicated that
defense on the merits adversely to the
employee, he may be collaterally estopped
from pursuing a CEPA claim.

[Id. at 93 (Albin, J., dissenting).]

13 A-0543-13T3
 The dispute in Winters was whether those things had

happened. Ibid. The Court found they had, despite "Winters's

litigation tactics to avoid the application of estoppel

principles," namely that he "chose not to present proofs to

demonstrate his claim of retaliation." Id. at 87, 90. The

Court ruled that 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,

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." Id. at 72 (citation omitted).

Plaintiff notes that "prospective application is

'particularly appropriate when a court renders a first-instance

or clarifying decision in a murky or uncertain area of the

law.'" Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 587

(2012). However, the principles of collateral estoppel applied

in Winters were not murky or uncertain, but were "well-settled."

Olivieri, supra, 186 N.J. at 521. Winters simply applied those

principles to the scenario of an employee "throttling back on

his claim of retaliation in the administrative proceeding after

having initially raised it." Winters, supra, 212 N.J. at 88.

To show Winters is new law, plaintiff cites the Court's

statement: "We therefore put users of the public employment

14 A-0543-13T3
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." Id. at

74. Defendants argue this means that employees must raise any

retaliation claim in the disciplinary proceeding. We need not

determine the precise import of the Court's statement, because

the Court made clear it did not preclude application of its

holding to plaintiffs who do raise retaliation in the

disciplinary proceedings. The Court explained: "It is because

Winters raised the issue that we differentiate his case from

past disciplinary actions that preceded the notice provided in

this matter, where an employee might have relied on the fact

that retaliation was not an essential part of the employer's

case." Id. at 91 n.6 (citing Scouler v. City of Camden, 332

N.J. Super. 69, 74-75 (App. Div. 2000)). Because plaintiff here

raised retaliation before the ALJ, it is appropriate to apply

the Winters decision.

Furthermore, retrospective application of the Winters

decision will advance its goals to avoid "the spectacle, and

resulting disrepute, of inconsistent litigated matters involving

the same transactional set of facts." Id. at 72-73. It will

also prevent "the confounding wastefulness of such a result,"

and will diminish the "disrespect of the legislatively created

15 A-0543-13T3
forum for supervision over, and resolution of, public employee

discipline in this state." Id. at 73. "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." Id. at 74.

Plaintiff has also failed to show that it would be

substantially inequitable to apply Winters to him. The Court's

decision in Winters is even-handed: if in a disciplinary

proceeding, an "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." Id. at 73. As Winters ruled, "it is not unfair to

require [plaintiff] to present the defense that he raised in the

administrative forum and to accept the consequences of his

strategy." Ibid.

Plaintiff also notes that prospective application is

appropriate "when the affected party 'reasonably relied on a

plausible, although incorrect, interpretation of the law,' or 'a

member of the public could reasonably have relied on a different

conception of the state of the law.'" Selective, supra, 208

N.J. at 587. Plaintiff argues that he and his counsel relied on

16 A-0543-13T3
the allegedly different conception of the law before Winters.

However, plaintiff has not cited any prior published opinion

holding that collateral estoppel would not apply where an

employee raised and testified to retaliation at the disciplinary

hearing.5 Nor has plaintiff pointed to anything in the record

indicating any such reliance, such as express preservation of a

subsequent retaliation lawsuit. Indeed, the sequence of events

here — defendant's failure to challenge the rulings of the ALJ

and the Commission, his retirement on disability, and then,

after more than a year, his filing of this LAD suit — suggests

the decision to file the suit occurred long after the ALJ's

hearing. Finally, plaintiff has not explained what additional

testimony or exhibits he would have presented to the ALJ to

prove retaliation had Winters been decided before the

disciplinary hearing. "Nothing prevented plaintiff from

presenting his defense more fully than he did." Winters, supra,

212 N.J. at 73.

5
Plaintiff cited Thornton v. Potomkin Chevrolet, 94 N.J. 1
(1983), but Thornton involved the different issue of whether the
entire controversy doctrine barred presentation before the
Division on Civil Rights of a discrimination claim the plaintiff
failed to raise in a grievance arbitration. Id. at 3, 5 ("The
entire controversy doctrine is not applicable here because there
is no comparability between private contractual arbitration and
court or administrative adjudications.").

17 A-0543-13T3
 Plaintiff does not assert he would have abandoned any

defense of retaliation. Such an assertion would be dubious. As

plaintiff's brief admits, the ALJ "could have easily have found

that [plaintiff's] reference to [the sheriff, the warden, and

the DCA] as 'f[*]cking clowns' constituted insubordination," and

thus the grounds for termination. If plaintiff's version of the

events at the meeting was disbelieved, as it largely was, his

only defense would have been retaliation — the argument that

others had not been as severely disciplined, and that severe

discipline was sought against him because of his protected

conduct. Further, as the Commission noted, plaintiff's

misperception of retaliation was viewed as a genesis for his

misconduct and a basis to reduce the punishment to suspension.

Therefore, plaintiff has failed to show it was

substantially inequitable for the Law Division to apply the law

existing at the time of its decision, including the Supreme

Court's pertinent opinion in Winters, to decide the pre-trial

motion pending before it.

B.

Plaintiff would have us distinguish Winters because it

precluded a claim under CEPA, which provides "relief from

retaliatory adverse employment action by an employer." Id. at

72. He argues Winters has no application to his complaint under

18 A-0543-13T3
the LAD. He notes the LAD is much broader than CEPA, because it

prohibits discrimination, not merely retaliation.

We need not address whether Winters applies to all LAD

claims, because it plainly applies to plaintiff's claim, which

is brought under the LAD provision most akin to CEPA.

Plaintiff's complaint alleges retaliation in violation of

N.J.S.A. 10:5-12(d), the provision of the LAD which makes it

unlawful "[f]or any person to take reprisals against any person

because that person has opposed any practices or acts forbidden

under this act[.]" We see no reason why Winters would not apply

to a retaliation claim under N.J.S.A. 10:5-12(d) when it applies

to a retaliation claim under CEPA.

Plaintiff stresses that the LAD is remedial legislation.

However, CEPA is similarly remedial legislation. The Supreme

Court in Winters expressly noted its "clear understanding of the

important public policy enshrined in CEPA," which is "a very

important remedy against wrongful employment practices."

Winters, supra, 212 N.J. at 88-89. The Court acknowledged that

public employees were protected by CEPA, and by disciplinary

procedures including review by an ALJ and the Commission. Ibid.

Nonetheless, the Court emphasized that those two protective

systems "can and must be reconciled, and not made duplicative

of, irrelevant to, or worst, inconsistent with, one another."

19 A-0543-13T3
Id. at 89. "In the interest of promoting the public interest in

finality and consistency in judicial and quasi-judicial

proceedings involving the same transaction," the Court held that

Winters was "estopped from proceeding with his CEPA action."

Id. at 92. The Court reversed our ruling that collateral

estoppel should not apply because "CEPA is remedial

legislation." Id. at 84. The same needs for finality,

consistency, and reconciliation of the judicial and quasi-

judicial systems exists here. Therefore, as the judge ruled,

whether the retaliation claim is under CEPA or the LAD, the end

result should be the same.

C.

Finally, plaintiff tries to distinguish Winters factually.

He notes Winters "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," and also raised it in his administrative

pleadings and argument. Id. at 73, 91. Plaintiff contends that

did not occur here. However, plaintiff has not presented us

with the transcripts of any portion of the administrative

proceeding other than his testimony on the second day of the

hearing.6 Nor has plaintiff supplied us with his administrative

6
Indeed, it does not appear that plaintiff has even presented us
with his whole testimony before the ALJ. The transcript
(continued)

20 A-0543-13T3
pleadings.7 Plaintiff has failed to provide us with a factual

basis to evaluate his contention.

In any event, plaintiff went further in raising a

retaliation defense than Winters had. Plaintiff testified

before the ALJ that the disciplinary charge served on him at the

June 15, 2009 meeting, the allegedly provocative meeting itself,

and the subsequent discipline, were all retaliation for his

complaints of overtime discrimination. See id. at 91 (finding

that "everything Winters pointed to, or at, was supposedly

evidence of overall animosity and retaliatory bias").8 Thus,

plaintiff offered far more testimony to support a retaliation

defense in the administrative proceeding than Winters, who

"chose not to present proofs to demonstrate his claim of

retaliation." Id. at 90.

(continued)
provided is from the second day of the hearing, appears to start
midstream, and does not clearly identify which party's counsel
questions plaintiff. Thus, it may omit some or all of
plaintiff's direct testimony.
7
Plaintiff cites the ALJ's prehearing order, which listed the
issues to be resolved as the sufficiency of the evidence to
sustain the charges, and the appropriate penalty. However, the
prehearing order did not address the defenses.
8
Moreover, plaintiff's testimony was echoed in the evidence
before the ALJ that he claimed at the meeting the discipline was
a "repercussion," and that his reports claimed retaliation.

21 A-0543-13T3
 Plaintiff argues that retaliation was not a "central theme"

of his defense. He refers to the Court's remark about Winters:

"Retaliation was a central theme of his argument and that he

chose not to present there his comprehensive proof of that claim

does not afford him a second bite at the apple in this matter."

Ibid. The Court did not state that retaliation had to be a

central theme where an employee does present testimonial proof

of a retaliation claim, rather than "throttling back" as Winters

did. Ibid. The principles of issue preclusion are not limited

to the central issue or the only issue in a case, but apply to

any issue that "'was actually litigated in the prior

proceeding'" if "'the determination of the issue was essential

to the prior judgment.'" Id. at 85 (quoting Olivieri, supra,

186 N.J. at 521).

In any event, by presenting testimony to show retaliation,

plaintiff made retaliation a more central part of his defense

than Winters's unsupported argument. Indeed, if plaintiff's

version of events was rejected, retaliation was his only

remaining defense for his unacceptable comments. We see no

reason why Winters would permit plaintiff a second bite after a

more substantial first bite.

Plaintiff claims that he did not "raise" the retaliation

defense, because his retaliation testimony came on cross-

22 A-0543-13T3
examination. However, plaintiff affirmatively raised

retaliation in response to neutral questions asking why the DCA

would testify adversely to him, and why he was upset at the

meeting.9 After plaintiff thus volunteered a retaliation

defense, his counsel did not interpose an objection or move to

strike his answers that the employer was retaliating against

him. There is no indication in the record supplied to us that

plaintiff's counsel requested the ALJ to disregard plaintiff's

retaliation testimony. Nor is there any indication plaintiff

would have complained if the ALJ had found plaintiff's testimony

asserting retaliation to be credible and dismissed the

disciplinary charges on that basis. Here, it is sufficient that

the retaliation defense was raised in the disciplinary hearing

by plaintiff himself, for his own attempted advantage.

Plaintiff contends it was improper to apply Winters because

there was no factual basis that "'(1) the issue to be precluded

is identical to the issue decided in the prior proceeding; [or]

9
Thus, we are not faced with the situation where an employer
unilaterally and strategically injects retaliation into a
disciplinary proceeding by asking the employee on cross-
examination: "Do you think that you were retaliated against?"
We do not decide whether such a direct query can itself
manufacture collateral estoppel barring a future retaliation
suit under CEPA or the LAD, particularly where the employee is
not represented by counsel, who presumably would be attuned to
the legal implications of retaliation testimony. See Serrano v.
Underground Utils. Corp., 407 N.J. Super. 253 (App. Div. 2009).

23 A-0543-13T3
(2) the issue was actually litigated in the prior proceeding.'"

Ibid. The judge properly rejected this contention, pointing out

that plaintiff, like Winters, raised retaliation as a defense

that the ALJ specifically discussed and "necessarily considered"

and rejected. See id. at 91-92.

Like the Court in Winters, we "are fully convinced that the

ALJ assessed his claim of retaliation, to the extent it was

supported, when he rendered his findings and conclusion," even

though "it was not addressed specifically" in the ALJ's

conclusions of law. Id. at 91.10 A "claim that the disciplinary

charge was brought in retaliation for [protected conduct] is

solely a matter of defense" in a disciplinary proceeding.

Scouler, supra, 332 N.J. Super. at 75. In "weigh[ing] the

credibility of the employer's allegations of misconduct," the

ALJ must consider an employee's allegation that "the supervisor

may have had a motive other than the faithful performance of his

public duties for filing the charge and testifying against the

employee." Ibid. Thus, "evidence of retaliation at a civil

service disciplinary hearing" is "critical to a fair and

10
Judge Malestein concluded that the ALJ "did not believe
[plaintiff] and clearly did not believe that the defense of
retaliation in relationship to the discipline warranted
discussion."

24 A-0543-13T3
reliable evaluation of the credibility of the witnesses

testifying in support of the charge." Ibid.

Here, plaintiff initially raised retaliation as a defense

response to questions about why defendants' witness would

testify contrary to plaintiff's testimony. By asserting

retaliation, plaintiff attempted to influence the fact-finding

and credibility determinations of the ALJ. As Judge Malestein

stressed, the ALJ "did not believe the discipline was

retaliatory, [or] he would not have ordered such discipline."

Plaintiff did not appeal the aspects of the ALJ or the

Commission's decisions that were adverse to him. In light of

that history, Judge Malestein appropriately accepted — and did

not second-guess — the ALJ's factual assessments. Those

assessments included, at least implicitly, a finding that the

employer's witnesses were credible about plaintiff's unbecoming

conduct and that they had not disciplined plaintiff for improper

retaliatory reasons as he had contended.

The Commission's discussion of retaliation was more

limited. That is understandable, as plaintiff did not seek to

overturn the ALJ's decision. To the extent plaintiff "did not

fully present his defense before the Commission and is now

barred from a more expansive presentation of his claim of

25 A-0543-13T3
[retaliation in a subsequent judicial] action is a consequence

with which he must live." Id. at 73.

Plaintiff claims Scouler, not Winters, is the pertinent

precedent here. To the contrary, Scouler involved a different

statutory provision, and applied it to a different scenario. In

Scouler, we held that under the CEPA provision waiving other

rights, N.J.S.A. 34:19-8, an "employee who has filed a CEPA

action is not precluded from appealing a disciplinary action to

the Board simply because the employee alleges that his employer

instituted disciplinary charges against him for the same

retaliatory reasons alleged in the CEPA action." Scouler,

supra, 332 N.J. Super. at 72. Scouler did not consider the

application of the principles of collateral estoppel to the

scenario of a plaintiff who files a retaliation lawsuit after

not appealing a disciplinary ruling in which he unsuccessfully

raised retaliation. The Supreme Court subsequently applied

those principles to that scenario in Winters. In this case, the

judge applied those same principles to an essentially similar

scenario. Therefore, Winters, not Scouler, is the controlling

precedent here. Id. at 91 n.6.

Affirmed.

26 A-0543-13T3
SABATINO, P.J.A.D., concurring.

I join with my colleagues in affirming summary judgment and

the dismissal of plaintiff's retaliation claims under the Law

Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, based

upon principles of collateral estoppel expressed by the Supreme

Court in Winters v. North Hudson Regional Fire & Rescue, 212

N.J. 67 (2012).

I write briefly to emphasize that our decision hinges on

the fact that plaintiff voluntarily chose to assert retaliation

in the course of his testimony in the administrative

disciplinary proceedings brought against him by his employer.

Neither Winters nor our decision in this case should be

construed as signifying that an employee who believes that he or

she has been the victim of retaliation is obligated to raise

those retaliation claims as a defense in such disciplinary

cases. More specifically, I reject this discrete aspect of

respondents' argument interpreting Winters to impose such a

requirement.

Repeatedly, the Court was very clear in Winters to confine

its preclusionary holding to circumstances in which the employee

actually "raised" or "posited" retaliation in the administrative
forum.11 The Court did not state or even suggest that it would

have applied preclusionary consequences if Winters had not, in

fact, raised the issue of retaliation in his disciplinary

proceeding.

Indeed, it would be inequitable and contrary to the strong

anti-discriminatory public policies of the LAD and the

Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1

to -14, to impose such an obligation upon an employee. To

deprive an employee of that choice and mandate that he or she

assert and litigate his or her retaliation claims in a

disciplinary proceeding brought by the employer would severely

curtail the employee's rights under the LAD and CEPA to the

important benefits of a Superior Court forum. Those benefits

11
See, e.g., id. at 71 ("after positing a claim of employer
retaliation") (emphasis added); ibid. (noting plaintiff's
"defensive theme of employer retaliation") (emphasis added); id.
at 72 (a litigant should not be permitted to "raise a
retaliation defense" and then "save it later for duplicative
litigation") (emphasis added); id. at 73 (where "the employee
raises a claim that employer retaliation at least partially
motivated the [employer's disciplinary] decision") (emphasis
added); ibid. (plaintiff "raised his retaliation-themed
defense") (emphasis added); id. at 74 ("integration of employer-
retaliation claims should be anticipated and addressed where
raised as part of the discipline review process) (emphasis
added); id. at 84 ("Winters raised a retaliation defense before
the Commission") (emphasis added); id. at 90 (Winters "could not
fold his arms . . . on a [retaliation] claim that he has
raised") (emphasis added); id. at 90 n.6 ("[i]t is because
Winters raised the [retaliation] issue that we differentiate his
case from past disciplinary actions that preceded the notice
provided in this matter") (emphasis added).

2 A-0543-13T3
include more expansive discovery, a trial by jury, and the full

panoply of remedies available in civil actions brought under

those statutes.

In essence, respondents advocate that Winters should be

extended from a precedent that enforces principles of collateral

estoppel (or "issue preclusion") as to matters that were

actually raised and litigated in an administrative forum, to a

precedent that imposes the far more extensive consequences of

res judicata (or "claim preclusion") to matters that were not

raised and litigated, but which could have been. See First

Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 351-

52 (2007) (noting the distinctions between res judicata and the

"less demanding" concept of collateral estoppel). In my view,

it would be inconsistent with the public policies established by

the Legislature in the LAD and CEPA to make that doctrinal leap.

To be sure, if the employee elects to raise retaliation as

a defense to a disciplinary action and persuades the

administrative tribunal that his or her claims of such employer

misconduct are credible, that finding of fact may work to the

employee's advantage in a subsequent LAD or CEPA action, based

on principles of "offensive" collateral estoppel. See, e.g.,

Kortenhaus v. Eli Lilly & Co., 228 N.J. Super. 162, 164-65 (App.

Div. 1988) (explaining the concept of offensive collateral

3 A-0543-13T3
estoppel). However, if the employee fails to convince the

administrative tribunal that retaliation occurred, he or she

will presumptively be stuck with that finding later in court.

The employee, for whose protection the State's anti-

discrimination laws were drafted, should maintain the ability to

weigh the risks of these possible outcomes and choose whether or

not to raise retaliation in the administrative proceeding.

I agree with my colleagues, for the detailed reasons set

forth in Judge Leone's thorough analysis of the record, that

plaintiff Wolff in this case sufficiently and voluntarily

"raised" in the administrative proceeding his long-standing

contentions of retaliation. I am mindful that the retaliation

testimony emerged in Wolff's cross-examination rather than

during his direct examination. However, as Judge Leone

carefully points out, plaintiff asserted his contentions of

retaliation in response to a generic question from opposing

counsel, and his counsel did not move to strike his testimony or

seek to have the administrative law judge ("ALJ") disregard it.

Plaintiff was not manipulated, coaxed, or fooled into presenting

claims that he did not want the fact-finding ALJ to consider.

Under the circumstances presented, I agree with my

colleagues that the collateral estoppel principles of Winters

should be enforced here. That said, I would go further than my

4 A-0543-13T3
colleagues do in footnote nine of the majority opinion, ante at

23, and state my view that more pointed questioning from

opposing counsel — strategically designed to inject retaliation

issues into the administrative case unilaterally — should not be

countenanced.

5 A-0543-13T3