CARR v. DEPARTMENT OF HUMAN SERVICES et al
Filing
39
MEMORANDUM AND ORDER that Defendant's 27 Motion for Summary Judgment is granted. The Clerk is directed to close the file. Signed by Judge Peter G. Sheridan on 1/23/2019. (mps)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KATHLEEN CARR
Civil Action No.: 13-cv-5478
(PGS)(LHG)
Plaintfj
MEMORANDUM
AND ORDER
v.
STATE OF NEW JERSEY DEPARTMENT OF
HUMAN SERVICES, et a!.,
Defendants.
SHERIDAN, U.S.D.J.
This 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”). (ECF No. 27).
I.
Generally, Defendants argue that the case should be dismissed because there was an
ongoing state court process wherein an Administrative Law Judge (AU) 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.
More 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 AU had not yet rendered a decision. The AU’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. (ECFN0. 35-1).
II.
Presented below are the facts from Defendant’s Statement of Uncontested Material
Facts, and within same, Plaintiff’s responses are set forth in footnotes.
Plaintiff Kathleen Carr (“Plaintiff’) is a former Personnel Assistant for Defendant
1)
Trenton Psychiatric Hospital (“TPH”). She transferred to TPH from the Ancora
Psychiatric Hospital (“APH”) in approximately November 2010.
2)
This 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 misconduct, including:
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 incorrect
information;
d.
failing to delete a former employee’s access to the Time Keeping System
after they were no longer employed by TPH;
e.
attempting to return two employees to work who had been on extended
leaves of absence without following proper TPH procedures;
2
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 employees;
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).
4)
On 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. E)’.
5)
Plaintiff appealed that determination and the matter was transmitted to the New
Jersey Office of Administrative Law (“OAL”) by the Civil Service Commission (“CSC”).
6)
On February 23, 2012, TPH filed an Amended FNDA regarding Plaintiffs
suspension. (See Certification of Counsel, Ex. F).
7)
On 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 performance;
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)2.
Plaintiff responded that she “contested the FNDA, and
after a departmental hearing, Plaintiff was
suspended and demoted” (Plaintiff’s response, ¶ 4).
2
Plaintiff disputes this fact and argues that “Plaintiff contested the PDNA (preliminary notice of
disciplinary action) and after a departmental hearing, Plaintiff was issued a Final Notice of Disciplinary
Action removing her from employment.” (Plaintiff response, ¶ 8).
3
TPH prepared a FNDA on February 24, 2014, removing Plaintiff from
8)
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.
10)
Plaintiff’s 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.
11)
The 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. 3435)4•
12)
Judge Futey held that Plaintiff advanced her claims through the statutory
framework of CEPA at her OAL proceeding. (See id., p. 30).
13)
Judge Futey determined that Plaintiff “totally failed to carry her burden” under
CEPA. (See id., p. 34-35).
14)
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 id.)6.
15)
Judge Futey determined that TPH had shown legitimate, non-discriminatory
reasons to demand her compliance with its orders and directives. (See id., p. 38).
16)
Judge Futey found that “Plaintiff’s 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)8.
Plaintiff admits this, except to state that Plaintiff challenged her discipline and the matters were
joined, but not consolidated.
Plaintiff disputes this contention; and argues that Plaintiff was “discriminated against, harassed,
and subject to a hostile work environment due to gender, age, and her own disability.
(Plaintiff’s
Response ¶ 12).
Plaintiff disagrees ((Plaintiff’s Response ¶ 15).
.
6
.“
Plaintiff admits same, except with regard to the cat’s paw theory. (Plaintiff’s Response ¶ 15).
Plaintiff admits same except for the impropriety of the timing of both levels of discipline, and the
cat’s paw theory. (Plaintiff’s Response ¶ 16).
8
Plaintiff disputes same because “Lorraine Miller testified that although she eventually did
approve the leave for Carr, the problem was that it was unethical for Carr to have done so in the first place
by approving leave for herself. (Plaintiff’s Response ¶ 16).
4
17)
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.).
18)
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).
19)
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., ¶J 17-130).
b.
Plaintiff was subject to retaliation in violation of the CEPA when she was
issued her suspension and discharge. (Id., ¶J 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).
20)
Plaintiff subsequently appealed the decision of Judge Futey to the Superior Court
of New Jersey, Appellate Division. (See Certification of Counsel, Ex. C).
21)
In a decision dated August 7, 2017, the Appellate Division affirmed the CSC’s
final agency decisions. (See id.).
All of the allegations in the Complaint occurred prior to the CSC issuing its final
administrative decisions.
22)
23)
All of the allegations in the Complaint occurred prior to the OAL’s decision.
24)
All of the allegations in the Complaint occurred prior to the Appellate Division’s
affirmation of the CSC’s final agency decisions.
III.
Plaintiffs counterstatement of facts are presented below.
1.
Plaintiff, Kathleen Carr, (“Plaintiff) was a Civil Service employee who was
employed by the New Jersey Department of Human Services, first at Defendant Ancora
Psychiatric Hospital (“Ancora”) and then at Defendant Trenton Psychiatric Hospital
(“TPH”).
2.
Plaintiff was disciplined and ultimately discharged as a result of an investigation!
disciplinary charges by Defendant Adam Stevens.
5
3.
Plaintiff administratively challenged her discipline and discharge under the Civil
Service Act at the Office of Administrative Law (the “OAL”) and the matters were joined
for trial but not consolidated. (Burns Cert., Exhibit B at p. 2-3).
4.
On August 5, 2013, Plaintiff filed the instant Complaint alleging inter alia
retaliation by TPH in response to her failure to participate/objections that Defendants
were discriminating against African American females and illegally denying federal
Family and Medical Leave Act (the FMLA) leave to employees. (Bums Cert., Exhibit A).
Plaintiff also asserts, however, that Defendants illegally discriminated against,
5.
harassed her and subjected her to a hostile work environment, due to her gender, age and
her own disability in violation of the LAD. (Burns Cert., Exhibit A at 17, 18, 41, 72, 122,
123, 124, 125 and 130).
Plaintiffs action in the case at bar relates both to her employment at Ancora and
6.
at TPH. (Bums Cert., Exhibit A).
7.
Plaintiff also asserts discrimination claims separate and apart from her wrongful
termination claims. (Id.).
8.
In particular, Plaintiff claims that she was subjected to a hostile work environment
and discriminated against at both Ancora and TPH. (Id.).
9.
These claims were not part of the administrative appeal. (Bums Cert., Exhibit B;
Bratti Cert., Exhibit F).
10.
In the case at bar, Plaintiff claims that her accuser, Defendant Adam Stevens, was
discriminatorily biased against her and instigated and influenced others to discipline and
ultimately discharge Plaintiff for engaging in protected activity. (Bratti Cert., ¶2).
11.
Plaintiff also asserts that Defendant Stevens’ conduct was a pretext for
discrimination!retaliation. (Bratti Cert., ¶3).
12.
Cross-examination at the administrative hearing revealed evidence of this
bias/discrimination on the part of Defendant Adam Stevens, which even the AU found in
his opinion to raise concern regarding potential ethical conflicts of which he [Mr.
Stevens] may have been a part. (Burns Cert., Exhibit B at p. 31).
13.
The AU issued his Initial Decisions on August 16, 2013 affirming Plaintiffs
suspension/demotion and her removal. (Bums Cert., Exhibit B; Bratti Cert., Exhibit F).
14.
In so holding, the AU specifically declined to make any findings regarding the
pretextual conduct of Plaintiffs accuser, Defendant Adam Stevens, who investigated and
pressed charges against Plaintiff. (Bums Cert., Exhibit B at p. 31 and Bratti Cert., Exhibit
Fatp. 20).
6
15.
The AU ruled that it would be for “another tribunal to directly assess any such
adverse impact [by Mr. Stevens in the decision to terminate Plaintiff]”, and did not rule
as to the Cat’s Paw theory of liability. (Id.).
16.
The AU then found that “absent such findings [of another tribunal] to either
diminish or discount his role,” neither Mr. Stevens’ potentially improper role in the
discipline nor his investigation or analysis of Plaintiff would be addressed by the AU.
(Id.).
17.
The AU relied upon the testimony of the decision-makers themselves which he
allegedly found -credible even without the testimony of Stevens.” (Id.).
18.
It was Stevens who conducted the investigation and drafted the disciplinary action
notices against Plaintiff. (Bratti Cert. Exhibit I).
19.
Mr. Stevens admitted that he started his investigation of Plaintiff immediately
after she complained that TPH employee (Ms. Astorino) was improperly targeting black
females for discipline. (Bratti Cert., Exhibit G).
20.
Indeed, Ms. Astorino admitted that Plaintiff accused her of targeting black
females. (T157:16 to 158:21).
21.
Within a short time thereafter, Stevens created a draft Preliminary Notice of
Disciplinary Action disciplining Plaintiff for being insubordinate to Ms. Astorino. (Bratti
Cert., Exhibit H). In so doing, Stevens never asked Plaintiff for her side of the story. (T.
191:20 to 193:17).
22.
Stevens did not take into consideration that alleged insubordination as to Astorino
was the result of Plaintiffs complaining about (and refusal to participate in) Astorino’s
improper targeting of black females. (Ti 86:1 to 10).
23.
(Id.).
He considered any such inquiry beyond the scope of his investigation/authority.
24.
In including discipline in the PNDA related to family leave issues, Mr. Stevens
did not consider issues related to Plaintiffs Complaint of improper conduct with respect
to FMLA leave. (5T 235:10 to 16).
25.
Mr. Stevens actively withheld from the decision-makers information which would
have militated against disciplining Plaintiff for these infractions and/or which would have
revealed his discriminatory bias. (Burns Cert., Exhibit D; 2T 157:22 to 160:23; 2 1179:18
to i80:8; 5 123:4 to 22).
26.
The PNDA did not contain any information regarding Plaintiffs complaint that
Ms. Astorino was targeting black females. (Burns Cert., Exhibit D).
7
27.
With respect to allegedly improper FMLA emails, Mr. Stevens failed to disclose
that he was aware of Plaintiffs emails since February 2011 or to explain why discipline
was not proposed earlier. (2T 157:22 to 160:23).
28.
When asked why by the AU if he had an ethical duty to report the issue sooner if
he truly believed there was an issue, Mr. Stevens responded that he had not done so
because he “was afraid of retaliation.” (2T 157:22 to 160:23).
29.
There are indications that Stevens believed that he was acting to impress his
superiors by helping to limit! reduce the amount of family leave being taken by
employees. (7T 24:23 to 26:1).
30.
As to the discipline of Plaintiff for allegedly improperly sending letters to benefits
recipients, Stevens failed to disclose to the decision-makers that it was in fact he that had
sent the letters. (2T 179:18 to 180:8).
31.
Mr. Stevens instead drafted the disciplinary notice to state that Plaintiff”.. took
it upon [herself] to direct staff to draft letters for [her) signature.” (Burns Cert., Exhibit D
at Carr OAL 51).
.
32.
He never advised the decision-makers that it was he who drafted the letters or that
he in believed the conduct to be proper at the time. (2T 179:18 to 180:8).
33.
Stevens also withheld from the decision-makers the fact that Plaintiffs supervisor
had authorized certain conduct for which she was being disciplined even though he knew
that to be the case. (5T 23:4 to 22).
34.
If Stevens had disclosed these facts, Plaintiff may not have been terminated.
(ST 96:2 1 to 98:8).
35.
Mr. Stevens denies any influence in the decision-making process. Instead, he
claims that it was Plaintiffs supervisor, Ms. Maher who was responsible for Plaintiffs
discipline. (5T 152:12 to 153:13).
36.
Ms. Maher did not request that Plaintiff be terminated. (1T190:4 to 191:17) and,
in fact, did not believe that Plaintiff was “incompetent” as alleged in the PNDA drafted
by Mr. Stevens. (iT 134: Ito 136: 13).
37.
Mr. Morrison (the person Maher believed to be responsible for the discipline of
Plaintiff) did not believe Plaintiff should have been disciplined as to certain conduct
included in the PNDA. (ST 69:20 to 71:5; 5T 71:23 to 72:15).
38.
Mr. Stevens’ charges included these charges as well as a charge of incompetence
which were accepted by the ultimate decision-makers without review of the alleged
underlying facts. (iT 134:1 to 136:13; 5T 9:22 to 10:3).
8
39. The ultimate decision-makers relied unquestionably upon Mr. Stevens” analysis.
(5T 9:22 to 10:3).
40.
The ultimate decision-maker, CEO, Ms. Teresa McQuade, did not make any
effort to independently evaluate the substance or sufficiency of the charges or the
underlying facts/specifications upon which they were based. (5T 9-22 to 10-3).
41.
Instead, she relied upon those who had -investigated” the matter, that is, Mr.
Stevens. (5T 9:22 to 10:3)
42.
Although Teresa McQuade was responsible for issuing the discipline as to
Plaintiff, she claimed that it was actually Mr. Stevens who was responsible for Plaintiffs
discipline. (Id.; 5T 41:5 to 19).
43.
According to Ms. McQuade, she did not know anything about Plaintiffs conduct
or even what Mr. Stevens was authorized to investigate. (5T 15:13 to 17:22).
44.
Ms. McQuade simply reviewed the discipline presented by Mr. Stevens and
assumed it was accurate. (5T 17:23 to 18:9).
45.
Mr. Morrison also was not involved in drafting the preliminary notice of
disciplinary action or in disciplining Plaintiff. (3T 171:6 to 172:14).
46.
According to Mr. Morrison, the Employment Relations Office (that is, Mr.
Stevens) was “in charge of discipline.” (3T 172:20 to 174:9).
47.
TPH decision-makers did not make any effort to independently evaluate the
substance or sufficiency of the charges presented by Stevens or his analysis. (5T 9:22 to
10:3; 3T 171:6 to 172:18).
48.
The AU left questions regarding the influence and motivations of Mr. Stevens in
the discipline of Plaintiff to “another tribunal.” (Bums Cert., Exhibit B at p. 31).
In the course of the state proceedings, the disciplinary charges were, as noted above,
forwarded to the Office of Administrative Law (OAL) for a trial.
Administrative Law Judge
Futey (“AU”) issued a lengthy opinion on August 16, 2013, finding against Ms. Carr. During the
proceedings, Judge Futey heard testimony from several witnesses, and reviewed numerous charges
of misconduct, insubordination, neglect of duty and incompetency against Carr. (Op. pg. 26). In
addition, Judge Futey found the charges credible. (Id.) He opined,
9
After having considered the testimony adduced from the witnesses who appears I
FIND that, although appellant [Carr] attempted to discredit the testimony of all of
those TPH witnesses through cross-examination, the absence of any direct
testimony by either appellant (who, it is noted, did not testify) or any witnesses on
her behalf as it applied to the plethora of charges and specifications which were
generated in the suspension/demotion discipline caused the bulk of the testimony
of the TPH witnesses to remain intact, viable and credible at the conclusion of the
matter.
(Op. pg. 31). Further, Judge Futey found the defendant’s witnesses to be forthright.
He stated:
Each of those witnesses presented cogent, relevant testimony regarding the
respective roles they played in this matter. This even applied to the investigation by
Adam Stevens, despite some concerns raised by this tribunal during the hearing
about potential ethical conflicts of which he may have been part of.
(Op. pg. 33). Judge Futey found that,
The relevant testimony presented further demonstrates that Carr violated numerous
policies and procedures regarding her handling of her own personal matters. In
particular, I FIND that the proofs demonstrate that she was not authorized to
schedule her own fingerprinting at TPH since she was still an Ancora employee
pending a transfer to TPH.
(Op. pg. 33). Similarly, Judge Futey found Plaintiff’s actions regarding the completion of her
FMLA application to have been “blatant, flagrant, overt, and clear example of falsification. It also
speaks ill to her role as a supervisor, since accuracy and completeness should be the two hallmarks
of people who are charged with a responsibility to lead others at the agency.” (Op. pg. 34). Judge
Futey concluded that “Carr’s actions were wrong when she disclosed the reasons for her medical
leave requests and that she should be held accountable for her malfeasance.” (Op. pg. 35). In
addition, AU Futey addressed Carr’s claims of retaliation under CEPA, NJLAD, and the FMLA.
He did not find “any actual animus or effort to retaliate against her by TPH in any of its charges
against her attendant to this matter.” Given the circumstances and after having considered all the
evidence, AU Futey
“was not satisfied that Carr [had] sufficiently demonstrated that her
protected activities were substantial or motivating factor in the
10
alleged retaliatory actions taken by TPH against her. Rather TPH
has shown legitimate, non-discriminatory reasons to demand her
compliance with its various orders and directive...” (Op. pg. 38).
The decision was adopted by the Civil Service Commission (“Commission”).
Plaintiff appealed the Commission’s adoption of AU’s Futey’s decision to the New Jersey
Superior Court of New Jersey, Appellate Division. On August 7, 2017 the Appellate division
affirmed the Commission’s final agency decisions, substantially for the same reasons expressed
by AU Futey and by the Commissioner. (See Burns Cert. Ex. C ECF No. 27-8).
Iv.
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non
movant, and it is material if, under the substantive law, it would affect the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary
judgment, a district court may not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party’s evidence “is to be believed and all justifiable
inferences are to be drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
11
Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations.
.
.
and pleadings
are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912 F.2d 654,
657 (3d Cir. 1990); see also Fed. R. Civ. P. 5 6(e) (requiring nonmoving party to set forth specific
facts showing that there is a genuine issue for trial”). Moreover, only disputes over facts that might
affect the outcome of the lawsuit under governing law will preclude the entry of summary
judgment. Anderson, 477 U.S. at 247-48. If a court determines, after drawing all inferences in
favor of [the non-moving partyj, and making all credibility determinations in his favor “that no
reasonable jury could find for him, summary judgment is appropriate.” Alevras v. Tacopina, 226
Fed. App’x. 222, 227 (3d Cir. 2007).
V.
Defendant now brings a motion for summary judgment arguing that Plaintiff’s claims
should be dismissed because they are barred by the Commission’s decision and the Appellate
Division’s affirmance under the doctrines of collateral estoppel, res judicata, and the entire
controversy doctrine. Moreover, Defendant argues two points. First, the issues were adjudicated,
and there is no reason to relitigate them. Secondly, even if the issues were not adjudicated, Plaintiff
is barred because she had the opportunity to raise them before AU Futey, but she failed to do so.
Plaintiff counters that her claims under CEPA, NJLAD, and the FMLA could not have been raised
before the Commission because the Commission lacked jurisdiction to hear them. The Plaintiff’s
argument lacks merit. The Court will initially address the CEPA, NJLAD and FMLA causes of
action, and then discuss the racial discrimination claim.
Generally, “a federal court may give collateral estoppel effect to a state administrative
agency determination if two requirements are met.” Initially, it must find the administrative agency
acted in ajudicial capacity and resolved disputed issues of fact; and second, the full faith and credit
12
clause requires that the state decision be given preclusive effect. 28 U.S.
§ 1738.
See, O’Hara v.
Board of Education, 590 F. Supp. 696, 701 (D.N.J.1984), affd O’Hara v. Board of Educ., 760
F.2d 259 (3d Cir. 1985) (internal citations omitted); See also, Peterson v. Holmes, 2017 U.S. Dist.
LEXIS 66327, *17 (D.N.J. May 2, 2017). Upon the Court’s review, the hearing and the opinion
of Judge Futey were conducted and decided fairly, and in a very professional manner. The issue
here is whether the doctrine of preclusion bars this action.
Defendant initially argues that collateral estoppel precludes this action. Under New Jersey
law, a party invoking the doctrine of collateral estoppel must demonstrate 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 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. Wildoner v. Borough ofRamsey, 316 N.J. Super. 487, 506, 720 A.2d 645 (App. Div.
1998) (citing In re Dawson, 136 N.J. 1, 20, 641 A.2d 1026 (1994)). Here, Plaintiff argues that the
AU did not review her claims under CEPA, NJLAD and FLMA. This assertion is incorrect. AU
Futey considered retaliation claims under CEPA, NJLAD, and FLMA and noted that he found no
animus or effort to retaliate against her. See, AU Futey’ s decision discussed on pages 9-10 above.
Moreover, when comparing the complaint to the administrative hearing, all of the issues were
presented (factor 1) and litigated (factor 2) by the same parties (factor 5). The AU recommended,
the CSC approved, and Appellate Division affirmed, so the decision was final (factor 3) and were
essential to the final judgment (factor 4). As such, the doctrine of collateral estoppel bars this case.
13
In this case, Plaintiff did not testify at the administrative hearing before AU Futey; and
now she seeks to present such testimony. In an analogous case, the Supreme Court of New Jersey
held that an employee could not withhold defenses before an administrative agency in order to
bring them in subsequent litigation. The Supreme Court held:
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... defense, 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 wasteftilness of such a result[.j
See, Winters v. North Hudson Regional Fire and Rescue, 212 NJ 67, 72-73 (2012). Rather, once
the issues are presented before the administrative tribunals, “both the employer and employee must
live with the outcome, including its potential preclusive effect on related employmentdiscrimination litigation.” Id., at 73. (See also Morris v. City of Trenton, 2 U.S. Dist. LEXIS
136003, *12 (D.N.J. Sept. 26, 2014). Moreover, “collateral estoppel applies to prevent a party in
the subsequent litigation from engaging in factfinding in the hopes of proving previous factfinding
incorrect.” See also Morris v. City of Trenton, 2 U.S. Dist. LEXIS 136003, *13. Here, Plaintiff is
swimming against the tide. She argues for more fact finding; but she did not testify at the hearing
before AU Futey where she could have presented other evidence. Plaintiff is now looking for a
second opportunity to litigate the same issues (see AU Futey’s decision as noted on p. 10-11
supra.). As noted above, AU Futey’s opinion addressed the CEPA, NJLAD and FMLA claims
as well as the retaliation claim and he dismissed them based on the evidence. He stated:
I reject the arguments of appellant that somehow any discipline
sought against Carr was motivated by animus or somehow in
violation of her rights under the Conscientious Employee
Protection Act, the New Jersey Law Against Discrimination, and
the Family and Medical Leave Act.” (Op. pg. 34)
14
In conclusion, the doctrine of collateral estoppel precludes the Plaintiff from relitigating the same
facts on CEPA, NJLAD and FMLA as are presented in this case when AU Futey had already
done so.
Another one of Plaintiff’s claims is based upon racial discrimination. Although the facts
and analysis for determining a NJLAD claim and a racial discrimination claim under federal law
similar, it is not clear whether AU Futey considered a racial discrimination claim.
Within
Plaintiff’s counterstatement of facts, she alleges that Mr. Stevens was the source of the racial
discrimination, and that he forced others to implement his racial bias. To raise such claims here
may invoke the doctrine of res judicata and collateral estopped.
Generally, a litigant may be
barred from raising claims of racial discrimination that could have been brought before an AU by
the doctrine of res adjudicata. The Third Circuit has stated:
The doctrine of res judicata bars not only claims that were brought
in a previous action, but also claims that could have been brought.
It protects litigants from the burden of relitigating an identical issue
with the same party or his privity and promotes judicial economy by
preventing needless litigation. Both New Jersey and federal law
apply res judicata or claim preclusion when three circumstances are
present: (1) a final judgment on the merits in a prior suit involving
(2) the same parties or their privies and (3) a subsequent suit based
on the same cause of action.
In re Mullarkey, 536 F.3d 215,225 (3d Cir. 2008) (further citation and internal quotations omitted).
Here there was a hearing before AU Futey with the same parties, presenting the same facts, as
well as a final judgment on the merits. Although AU Futey’s decision does not specifically
reference racial discrimination, he discussed the testimony of Stevens noting the testimony as a
whole presented “cogent” testimony to fire Plaintiff. As such, the three factors are met here. Since
the collateral estoppel issue was discussed above, it suffices to say AU Futey discussed Stevens
15
testimony and made findings based on same. In short, Plaintiff should have raised them before
AU Stevens. See, Winters, 212 N.J. at 72-7; Morris at 2 Lexis at 136003 *12.
In addition, “New Jersey’s entire controversy doctrine, ‘compels the parties, when possible,
to bring all claims relevant to the underlying controversy in one legal action,’ including defenses
and counterclaims. It does so by barring parties from raising, in a subsequent proceeding, any
claims it knew, or should have known about, during a prior proceeding.
The doctrine does not
bar claims that “accrued after the pendency of the original action.” Napoli v. HSBC Mortg. Servs.,
2012 U.S. Dist. LEXIS 121204, *8..1O, (D.N.J. 2012) (internal citations omitted).
As noted above, Plaintiff argues that the entire controversy doctrine does not apply to this
case because this is not an appeal of the AU’s decision and the AU did not have jurisdiction over
the claims in the case. Paskett v. Southern State Corr. Facility, 2016 N.J. Super. Unpub. LEXIS
1675, *100 (N.J. Super. Ct. July 18. 2016). Similar to collateral estoppel, “when a state agency
‘acting in a judicial capacity
.
.
.
resolves disputed issues of fact properly before it in which the
parties have had an adequate opportunity to litigate,’ federal courts must give the agency’s
factfinding the same preclusive effect to which it would be entitled in the State’s courts.” Morris
at 2014 US. Dist. LEXIS 136003,
*
14 (quoting University of Tennessee v. Elliott, 478 U.S. 788,
799 (1986). Here, as previously mentioned, Judge Futey was acting in a judicial capacity, thus the
Court finds that the entire controversy doctrine applies. The claims raised by Plaintiff are based on
the same facts discussed in the administrative proceedings. If Plaintiff had other facts or other
arguments against Stevens she could have raised same before the AU as defense. Since she failed
to do so, she is now barred from bringing these claim before this Court under the entire controversy
doctrine. More specifically, in Morris Judge Bongiovanni stated,
The Third Circuit has definitively stated that a “federal court hearing a federal cause
of action is bound by New Jersey’s entire controversy doctrine, an aspect of the
16
substantive law ofNew Jersey, by virtue ofthe Full Faith and Credit Act.” [Rycoline
Prods. v. C & W Unlimited, 109 F.3d 883, 887 (3d Cir. 1997)]; Peduto v. City of
North Wildwood, 878 F.2d 725, 728 (3d Cir. 1989). However, as explained above,
the Full Faith and Credit Clause does not apply to unreviewed administrative
decisions. In conjunction with the New Jersey Supreme Court’s pronouncement that
the doctrine is at least roughly analogous to res judicata, logically then, the
doctrine’s application in a case like this would have to be mandated by the same
general federal common law rules that govern claim preclusion.
Morris, 2014 U.S. Dist. LEXIS 136003, at *20..21. Here, the Appellate Division affirmed the
recommendation of Judge Futey and the adoption of the opinion by the CSC, as such, the entire
controversy doctrine applies.
Stevens Testimony
There is one last issue that must be addressed in this case. Plaintiff alleges that Stevens
conducted an investigation, and he “was discriminatory biased against Plaintiff and/or retaliated
against her for engaging in protected conduct.” Accordingly, Plaintiff argues that “this civil action
is based upon a cat’s paw theory of liability.
.
.
[and] the factual and legal issues related to cat’s
paw liability were specifically carved out of the administrative proceedings. Instead, AU Futey’s
decision noted his finding would be for “another tribunal to more directly assess any such adverse
impact.”
Plaintiff argues that AU Futey excluded the cat’s paw theory of liability by stating
“another tribunal” as opposed to himself would be reviewing that cause of action. This argument
appears to be taken out of context. During the hearing, AU Futey raised some concerns about
ethical conflicts of Stevens. Despite the ethics conflict, AU Futey found the testimony to be
“cogent and relevant”. And all of the evidence “was credible even without the testimony of
Stevens.” AU Futey’s reference to “another tribunal” was not referring to subsequent litigation
as Plaintiff suggests, but an acknowledgement that the Appellate Division may review Stevens’
17
testimony differently. AU Futey’s opinion does not carve out the cat’s paw theory of liability. In
fact, AU Futey considered all of the evidence.
ORDER
This matter, having been brought before the Court by Defendants’ motion for Summary
Judgment [ECF No. 27], and the Court having considered the briefs and submissions of the parties,
and having heard oral argument;
IT IS on this).3 day of January, 2019;
ORDERED that Defendant’s motion for summary judgment (ECF No. 27) is GRANTED.
The Clerk is directed to close the file.
PETER G. SHERIDAN, U.S.D.J.
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?