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An Employee Should Choose His Court Well or He Might be Shut Out From Any At All

New Jersey has several “tracks” for a government employee who is in civil service to fight when he believes he was wrongfully fired. The first, is in the Civil Service Commission, which can order reinstatement and back-pay. However, this process goes through the Office of Administrative Law and does not provide for a jury trial. The other way is to challenge the firing in the Superior Court, with the constitutional right to have a jury decide the employee’s case. Some statutes, such as the New Jersey Law Against Discrimination and the Conscientious Employee Protection Acts, provide for the award of punitive damages and attorneys fees.

The Conscientious Employee Protection Act (“CEPA”) is New Jersey’s whistleblower law. It protects whistleblowing employees. Employers may not retaliate in any way, whether through firing, harassment, demotion, or in any other manner because the employee has disclosed, objected to, refused to participate in or threatened to disclose a violation of law or public policy regarding public safety, or fraudulent acts. N.J.S.A. 34:19-1.

The New Jersey law had been that an employee could challenge his termination in the Civil Service Commission on the fact that the employer did not have a basis to discharge him, but not be foreclosed from also filing a whistleblower lawsuit under CEPA in Superior Court if she did not raise the retaliatory action before the Civil Service Commission.

The New Jersey Supreme Court, generally is one of the most protective courts of employees rights in the country, was recently issued an opinion by his employer which should give civil servants concern.

Steven Winters was a firefighter for the North Hudson Regional Fire and Rescue. Winters had, undoubtedly, “blown the whistle” by objecting to various practices by his employer which he reasonably believed to be illegal. Winters went out on sick leave. Thereafter, he was fired. However, his employer had found that during sick leave, he was working two other public sector jobs, and terminated him for conduct unbecoming a public employee for abusing sick leave.

Winters appealed his termination to the Civil Service Commission. The hearing was before an administrative law judge in the Office of the Administrative Law. Early in the case, Winters had advised that he would be raising whistleblower retaliation as the reason, or at least one of the reasons, for his termination. However, in the event he never presented any evidence of retaliation. The administrative law judge found that the employer was justified terminating Winters because he abused sick leave, and the Commission adopted its findings and upheld the determination.

Winters then filed a lawsuit in Superior Court alleging that he was fired for his complaints in violation of CEPA. The employer argued that Winters’ suit should be dismissed based on “collateral estoppel.” Collateral estoppel states that when the same issue is litigated by two parties in one forum, the losing party cannot re-litigate it someone else. The trial judge, relying on the prior law, found that because the administrative law judge never considered the retaliation issue, it was not litigated. It therefore denied the employer’s application. The employer appealed.

The Supreme Court disagreed. It found that Winters suit should be dismissed.

The Court found that because Winters had stated that he would raise the retaliation issue, he would chosen this forum and was precluded from raising the issue later in another court. The finality of administrative decisions loomed large in the Supreme Court’s reasoning. Likewise, “prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts,” also loomed large.

Just as Barry Albin dissented, relying on the Scouler case he reasoned that since the administrative law Judge and Civil Service Commission never considered the retaliation issue, it had not been presented in another forum and determined on its merits. Indeed, Winters had a right to have his suit explored under a “mixed motive” theory which applies to CEPA cases. This means that he might still have a cause of action even if the Board fired him for two reasons: one legitimate, such as the abuse of overtime; and one illegitimate, such as retaliation for his whistleblowing activity. Because of this, Justice Albin argued that Winters had been unjustly denied his day in court.

What this may have been is a case of bad facts making bad law. The majority of the Supreme Court put great emphasis on the fact that abuse of sick time is the legitimate reason to fire Winters. Undoubtedly, Winters is hardly a sympathetic figure. It may be that the Court did not want him to be able to prevail, given the findings the administrative law judge and Civil Service Commission which found unquestionably wrongful conduct by Winters.

However, this puts civil service and government employees such as teachers and tenure cases in an untenable position. any employee must consider what he is giving up before he decides to proceed with a civil service appeal. He must weigh whether a swifter possible reinstatement outweighs the more impartial jury trial governed by a tenured judge with the ability to also recover punitive damages for an employer’s conduct which the employee believes was wrongful. Before proceeding, the employee must be fully cognizant to make an informed decision on this matter.

McLaughlin & Nardi’s attorneys have decades of experience fighting for the rights of civil servants, teachers and other government employees. To discuss if you have been wrongfully fired, e-mail us or call one of our attorneys at (973) 890-0004.