STEVEN J. WINTERS v. NORTH HUDSON REGIONAL FIRE AND RESCUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1117-09T31117-09T3

STEVEN J. WINTERS,

Plaintiff-Respondent,

v.

NORTH HUDSON REGIONAL

FIRE AND RESCUE,

JEFFREY C. WELZ,

MICHAEL J. DeORIO, AND

BRION McELDOWNEY,

Defendants-Appellants.

_________________________________

 

Argued March 9, 2010 - Decided

Before Judges Skillman, Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5850-06.

Thomas R. Kobin argued the cause for appellants as to covered claims (Chasan Leyner & Lamparello, PC, attorneys; Mr. Kobin, of counsel and on the joint brief).

David J. Pack argued the cause for appellants as to certain uncovered claims (Thomas B. Hanrahan & Associates, attorneys; Thomas B. Hanrahan, of counsel; Mr. Pack, on the joint brief).

David F. Corrigan argued the cause for individual appellants as to punitive damages (David F. Corrigan, LLC, attorneys; Mr. Corrigan, of counsel; Bradley Tishman, on the joint brief).

Robert L. Herbst (Giskan Solotaroff Anderson & Stewart, LLP) of the New York bar, admitted pro hac vice, argued the cause for respondent (Resnick & Nirenberg, P.C., and Mr. Herbst, attorneys; Jonathan I. Nirenberg, Mr. Herbst, and Sofia Yakren (Beldock Levine & Hoffman, LLP) of the New York bar, admitted pro hac vice, on the brief).

PER CURIAM

On leave granted, defendants North Hudson Regional Fire & Rescue (NHRFR); Jeffrey Welz, and Michael DeOrio, NHRFR's directors; and Brion McEldowney, NHRFR's Fire Chief, appeal from the June 22, 2009 order denying their motion for summary judgment. Defendants also appeal from the September 3, 2009 order that denied their motion for reconsideration. The primary issue presented is whether two Civil Service Commission (Commission) decisions, upholding NHRFR's disciplinary proceedings against plaintiff, collaterally estop plaintiff from pursuing claims against defendants under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and the Federal Constitution. We conclude that plaintiff's claims are not barred by the doctrine of collateral estoppel and affirm.

I.

On January 19, 2007, plaintiff filed an amended four-count complaint against defendants alleging retaliation in violation of CEPA (count one); deprivation of his right to free speech and free association under the New Jersey Constitution, N.J. Const., art. I, 6 (count two); deprivation of his rights to free speech and free association under the United States Constitution, U.S. Const. amend. I and 42 U.S.C.A. 1983 (count three); and retaliation under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 (count four). After the close of discovery, defendants filed a motion for summary judgment.

On June 22, 2009, the trial court entered an order supported by an oral decision of June 15, 2009, that among other things: 1) denied defendants' motion seeking to dismiss plaintiff's retaliation claims under CEPA and the First Amendment on the basis of collateral estoppel; 2) denied defendants' motion seeking to dismiss plaintiff's punitive damage claims under CEPA and the First Amendment, except that it granted the motion as to NHRFR only on count three; 3) pared down plaintiff's alleged instances of protected conduct under CEPA; and 4) dismissed plaintiff's claims for violations of the LAD and the New Jersey Constitution. On September 3, 2009, the trial court entered an order denying defendants' motion for reconsideration. On November 4, 2009, we granted defendants' motion for leave to appeal. The heart of this appeal concerns two disciplinary actions filed against plaintiff that resulted in his demotion, suspension, and subsequent removal from employment.

II-A.

Suspension and Demotion Disciplinary Proceeding

Plaintiff began working as a firefighter in Union City in 1984. After the Union City Fire Department merged with other regional fire departments to form NHRFR in 1999, plaintiff continued in his employment with the new agency, eventually rising to the rank of captain. Between 2002 and 2006, plaintiff engaged in actions critical of NHRFR and of some of its officers. For example, between September 2002 and November 2004, plaintiff submitted several reports complaining about radio communication problems encountered by members of his fire company. Plaintiff also made complaints concerning health and safety issues with some of NHRFR's other firefighting equipment. Additionally, plaintiff sent a letter to the President of the North Hudson Fire Officers Association accusing McEldowney of interfering with a fire investigation.

On December 13, 2003, plaintiff prepared a report detailing an anonymous firefighter's allegations that an NHRFR Battalion Chief had sexually harassed him and other firefighters. The report noted the firefighter told plaintiff of the allegations because the firefighter was aware that plaintiff was preparing a report regarding NHRFR's firefighters' concerns. According to plaintiff, he hand-delivered the report in an envelope marked "confidential" to McEldowney's secretary on December 15, 2003.

In late 2004, plaintiff received a telephone call from Teaneck firefighter William Brennan, who was then representing another NHRFR firefighter in a disciplinary proceeding. Brennan informed plaintiff that the represented firefighter alleged the disciplinary charges he faced were in retaliation for objecting to the Battalion Chief's sexual harassment. Brennan, having learned that plaintiff had prepared reports concerning the NHRFR, asked plaintiff if he had written any reports regarding the Battalion Chief. In response, plaintiff provided Brennan with a copy of his December 13, 2003 report without having first received permission from NHRFR to release the report outside of the agency. Brennan subsequently provided the report to a television news reporter whose inquiry into the allegations against the Battalion Chief led to a departmental internal investigation. The investigation failed to disclose evidence supporting the allegations of sexual harassment by the Battalion Chief.

On September 28, 2005, the NHRFR served plaintiff with a Preliminary Notice of Disciplinary Action (PNDA) seeking to suspend him from employment for sixty days and to demote him to the position of firefighter based on charges of incompetency; inefficiency or failure to perform duties; insubordination; conduct unbecoming a public employee; neglect of duty; and other sufficient cause. The PNDA alleged that plaintiff improperly provided a copy of an official report to Brennan without authorization, failed to submit the December 13, 2003 report to McEldowney or any member of his office staff, and failed to pursue the status of the December 13, 2003 report by confirming its receipt by McEldowney. Plaintiff waived a disciplinary hearing; and on December 5, 2005, the NHRFR served plaintiff with a Final Notice of Disciplinary Action (FNDA), suspending plaintiff from employment for sixty days and demoting him to the position of firefighter effective that day.

Plaintiff appealed to the Merit System Board (Board). On March 29, 2006, the Board transferred the matter to the Office of Administrative Law (OAL) as a contested case. The assigned Administrative Law Judge (ALJ) conducted a hearing on the matter over eleven days.

On June 11, 2009, the ALJ issued his initial decision. The ALJ found, among other things, that plaintiff submitted the December 13, 2003 report to McEldowney's secretary on December 15, 2003, bypassing the chain of command; plaintiff failed to follow up on the status of the report; plaintiff did not falsely testify during NHRFR's internal investigation of the allegations; and plaintiff provided a copy of the report to Brennan without having first obtained NHRFR's authorization. Based on these findings, the ALJ concluded that the NHRFR failed to prove plaintiff had either engaged in conduct unbecoming a public employee by not submitting the report to McEldowney, or violated NHRFR's rules or regulations by not following up on the status of the report. However, the ALJ found plaintiff had violated NHRFR's regulation that required all official communications be treated as confidential and not disseminated outside the agency without obtaining the fire chief's approval. Based on this finding, the ALJ determined that plaintiff committed conduct unbecoming a public employee. The ALJ concluded that the demotion and suspension were warranted, determining that plaintiff's "conduct was reckless and egregious" and "[h]e needlessly placed in jeopardy the effective operation of the NHRFR."

On August 20, 2009, the Commission issued its final decision adopting the ALJ's findings and recommendations upholding the demotion and suspension. Plaintiff's appeal from this decision is pending.

II-B.

Termination Disciplinary Proceeding

Plaintiff began psychiatric care in April 2006, for an alleged "overwhelming" work related stress disorder. In June 2006, after plaintiff was disciplined for his actions when fighting a fire during which he was injured, his psychiatrist "felt it was imperative [plaintiff] go out on a stress leave as he now had symptoms of a severe clinical depression and was in need of medication." Plaintiff's application for sick leave was supported by a certification of his psychiatrist, indicating plaintiff suffered from a panic disorder and was "unable to work in any capacity in the fire dep[artment]" for three to six months. Plaintiff commenced sick leave on June 13, 2006. During sick leave, plaintiff worked per diem as an electrical inspector for the Township of Old Bridge from June to November 2006, working a total of 192.25 hours, and as an electrical inspector or construction official for the City of Long Branch from September to November 2006, working a total of 84.5 hours. On July 12, 2006, the NHRFR sent plaintiff to Dr. Robert Weiss for a fitness-for-duty exam. Dr. Weiss diagnosed plaintiff with anxiety and recommended plaintiff return to full duty as soon as possible, subject to undergoing an independent psychiatric evaluation. In September 2006, while still on sick leave, plaintiff publicly spoke against NHRFR's practices which he believed played a part in the death of an NHRFR firefighter. In so doing, plaintiff sent a letter to the Mayor of Union City, letters to local newspapers, and appeared on a major television news channel. Following plaintiff's television appearance on September 29, 2006, the NHRFR released a statement impugning plaintiff's credibility, and began scrutinizing plaintiff's sick leave.

On October 5, 2006, NHRFR ordered plaintiff to submit to an examination on October 12, 2006, by Dr. Nancy B. Gallina, a psychologist. Dr. Gallina issued a report dated the same day expressing her opinion that plaintiff was psychologically "capable of performing all the usual duties for which he has been trained with no psychological restrictions." Dr. Nancy Gallina also recommended that plaintiff be examined by her husband, Dr. David Gallina, a psychiatrist. On October 16, 2006, the NHRFR ordered plaintiff to report to Dr. David Gallina on October 17, 2006. After plaintiff failed to appear for the appointment, NHRFR again ordered plaintiff to see Dr. David Gallina on November 15, 2006. Plaintiff did not attend this appointment. In the interim, on October 24, 2006, the NHRFR directed plaintiff to return to modified duty against the recommendation of his psychiatrist. Plaintiff did not report for modified duty as directed.

On November 30, 2006, the NHRFR served plaintiff with a PNDA seeking his removal from employment, charging plaintiff with ten counts of misconduct related to abuse of sick leave, which included failure to be at home while on sick leave, failure to properly call in while sick, refusal to report for scheduled doctor visits, working a second job while on sick leave, untruthfulness, failure to report for duty, resignation not in good standing, feigning sickness and defrauding the public, failure to notify the Department of Personnel of physician visits and upon returning from such visits. Plaintiff failed to appear for the administrative hearing on the charges. On January 2, 2007, the NHRFR served plaintiff with an FNDA, sustaining all charges and removing him from employment, effective November 30, 2006.

Plaintiff appealed his removal to the Board. On April 12, 2007, the Board transferred the matter as a contested case to the OAL. The ALJ commenced the hearing on September 26, 2007. On October 3, 2007, before plaintiff began to present his case, the NHRFR filed a motion for partial summary decision on count four, the charge of engaging in outside employment while on sick leave, in violation of a work rule under its collective bargaining agreement (CBA) with the North Hudson Firefighters' Association. Plaintiff filed a cross-motion for summary decision on the same count, arguing that the OAL lacked jurisdiction to interpret the terms of the CBA.

On February 5, 2008, the ALJ entered an order granting NHRFR's motion for partial summary decision, sustaining the charge that plaintiff had engaged in outside employment while on sick leave. After sustaining the charge pertaining to outside employment while on sick leave, the ALJ affirmed the sanction of removal from employment, deferring to the standard of review of an administrative agency's disciplinary sanctions, concluding that plaintiff had not presented any evidence to prove that the sanction was "so disproportionate to the offense that it shocks one's sense of fairness." On October 10, 2008, the Commission accepted and adopted the ALJ's findings, conclusions, and recommendation to grant NHRFR's motion for partial summary decision upholding plaintiff's removal from employment. Plaintiff's appeal from this decision is also pending.

It is against the background of these two disciplinary proceedings that defendants filed a motion for summary judgment seeking to dismiss plaintiff's claims based on the principle of collateral estoppel. Defendants argued, among other things, that plaintiff was barred from attempting to prove that defendants' employment actions were retaliatory, as the Commission and the two ALJs had determined the disciplinary proceedings proper. Defendants contended that collateral estoppel prohibited plaintiff from establishing a causal connection between his alleged whistle-blowing activities and the adverse employment actions. Additionally, defendants asserted that the administrative decisions precluded plaintiff from attempting to establish that defendants' proffered reasons in instituting the disciplinary proceedings were pretextual.

The court denied defendants' motion seeking to bar plaintiff's CEPA and First Amendment claims based on collateral estoppel. In so doing, the court reasoned that the ALJ had not decided the issue of "whether retaliatory discrimination was more likely than not a determining factor in the employer decision which is the critical issue under CEPA."

On their motion for reconsideration, defendants argued that the trial court erroneously ignored "the merit and fitness principles" governing disciplinary proceedings of civil service employees. They also asserted that the trial court erred in denying their motion to dismiss plaintiff's punitive damage claim in total. On November 5, 2009, the court entered an order denying the motion.

III.

On appeal, defendants argue, as they did in the trial court, that application of collateral estoppel to the determinations in the OAL proceedings prevents plaintiff from establishing a causal connection between his whistle-blowing activities and the adverse employment actions. Defendants also contend that giving preclusive effect to the determinations in the administrative actions prevents plaintiff from demonstrating that defendants' proffered legitimate reasons in instituting the disciplinary actions were pretextual. In other words, defendants contend that the two ALJs and the Commission found plaintiff's actions "required severe discipline," and, therefore, plaintiff cannot establish that the adverse employment actions were brought for retaliatory reasons. Lastly, defendants assert that the trial court erroneously denied their motion to dismiss the punitive damage claim as to all defendants.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that 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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2010). Appellate courts "employ the same standard when reviewing summary judgment orders." Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

We first address defendants' primary argument that the trial court erred in denying their motion to dismiss plaintiff's CEPA and First Amendment retaliatory claims based on collateral estoppel.

"CEPA is 'remedial legislation, designed to expand employee protection.'" Notte v. Merchs. Mut. Ins. Co., 386 N.J. Super. 623, 627 (App. Div. 2006) (quoting Crusco v. Oakland Care Ctr., Inc., 305 N.J. Super. 605, 610 (App. Div. 1997)). "CEPA prohibits an employer from retaliating against an employee who engages in protected whistleblower conduct." Stomel v. City of Camden, 192 N.J. 137, 153 (2007). "Its purpose is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994).

A CEPA "retaliatory action" is defined as "discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). To establish a prima facie case of a CEPA retaliatory action by an employer, an employee must demonstrate that: (1) the employee reasonably believes the employer's conduct violated either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) the employee performed a whistle-blowing activity described in CEPA; (3) the employer took adverse employment action against the employee; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003); Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999).

Like in a CEPA action, an employee's retaliation claim under 42 U.S.C.A. 1983 and the First Amendment contains an element of causation, that is, the plaintiff must establish that his or her protected speech or activity "was a substantial or motivating factor in the alleged retaliatory action." Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir. 2001).

Because CEPA is a civil rights statute, the McDonnell Douglas burden-shifting analysis applicable under Title VII of the federal Civil Rights Act and the LAD has been applied to retaliation claims under CEPA. See, e.g., Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App. Div. 2008); Kolb, supra, 320 N.J. Super. at 479. Thus, once a plaintiff establishes a prima facie case of retaliation, "the defendants must come forward and advance a legitimate, nondiscriminatory reason for the adverse conduct against the employee." Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 38 (App. Div.), certif. denied, 185 N.J. 39 (2005). "If such reasons are proffered, plaintiff must then raise a genuine issue of material fact that the employer's proffered explanation is pretextual." Id. at 39. For the pretextual analysis, a plaintiff need not rely on direct evidence of the employer's discriminatory reason for the adverse employment action; rather, the plaintiff can point to "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' and hence infer 'that the employer did not act for [the asserted] non-discriminatory reasons.'" Kolb, supra, 320 N.J. Super. at 478 (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)).

Alternatively, a plaintiff asserting a CEPA retaliation claim can proceed under the mixed-motive theory of discrimination. Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100 (2000). In a mixed-motive case, "if a plaintiff [can] demonstrate that an impermissible or discriminatory reason was a motivating factor for the adverse employment decision, the burden . . . shift[s] to the employer to prove that it would have made the same decision even without the unlawful motive." Myers v. AT&T, 380 N.J. Super. 443, 457 (App. Div. 2005) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S. Ct. 1775, 1787-88, 104 L. Ed. 2d 268, 284-85 (1989)), certif. denied, 186 N.J. 244 (2006).

"The doctrine of collateral estoppel, or issue preclusion, 'bars re-litigation of any issue [that] was actually determined in a prior action, generally between the same parties [or their privies], involving a different claim or cause of action.'" Zirger v. Gen. Acc. Ins. Co., 144 N.J. 327, 337 (1996) (quoting State v. Gonzalez, 75 N.J. 181, 186 (1977)).

To foreclose re-litigation of an issue under the doctrine,

the party asserting the bar must show 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 prior 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.

[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-21 (1994)).]

"[E]ven where these requirements are met, the doctrine, which has its roots in equity, will not be applied when it is unfair to do so." Id. at 521-22 (quoting Pace v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)).

The Olivieri Court put to rest any questions concerning the applicability of preclusive doctrines to administrative decisions. Id. at 522. Specifically, as to collateral estoppel, the Court held:

matters or facts which the party actually litigated and which were determined in a prior action, involving a different claim or cause of action, and which were directly in issue between the parties. Adjudicative determinations by administrative tribunals are entitled to preclusive effect if rendered in proceedings meriting that deference.

[Ibid. (quoting Zoneraich v. Overlook Hosp., 212 N.J. Super. 83, 93-94 (App. Div.), certif. denied, 107 N.J. 32 (1986)).]

It is against these principles that we consider defendants' argument that the determinations in the two administrative disciplinary proceedings -- that plaintiff committed conduct unbecoming a public employee -- prevents plaintiff under the collateral estoppel doctrine from establishing a causal connection between plaintiff's whistle-blowing activities and the adverse employment actions, and from demonstrating defendants' proffered legitimate reasons for the actions were pretextual. The determinations in the administrative proceedings relevant to plaintiff's retaliation claims are the conclusions that defendants were justified in disciplining plaintiff for providing the confidential report alleging the Battalion Chief had engaged in sexual harassment to a source outside NHRFR, and for engaging in outside employment while on sick leave.

We conclude that these determinations, although found to be legitimate in the administrative proceedings, do not foreclose a finding that defendants' actions in disciplining plaintiff were the result of retaliatory animus toward plaintiff for engaging in protected whistle-blowing activities. In neither administrative proceeding did the ALJ or Commission make findings or conclusions regarding defendants' motivation or intent in instituting the disciplinary actions against plaintiff. Additionally, while those administrative determinations provide defendants' with reasons for disciplining plaintiff under the burden-shifting analysis, they do not preclude plaintiff from demonstrating that those reasons were pretextual.

Defendants' contention that plaintiff cannot establish retaliatory motivation because the administrative decisions determined that plaintiff's actions required severe discipline does not give sufficient recognition to the purpose of CEPA. Recognized as remedial legislation and "construed liberally to effectuate its important social goal," Dzwonar, supra, 177 N.J. at 463 (quoting Abbamont, supra, 138 N.J. at 431 (1994)), CEPA's purpose in protecting employees from being retaliated against by their employers for reporting illegal or unethical workplace activities would be undermined if employers, motivated solely or partially by retaliation, could discipline an employee and rely on the Commission's decision that finds legitimate reasons exist for the discipline but which does not examine the motivating reason in bringing the disciplinary action. Defendants' argument would effectively do away with the burden-shifting and mixed-motive frameworks in this context, frameworks that have been implemented to compensate for the difficulty employees have in proving discriminatory intent at the summary judgment stage of a case. See Myers, supra, 380 N.J. Super. at 452-53, 456-57.

Defendants assert that if plaintiff prevails on this appeal, "[t]he message sent to public employers and employees is that if an employee complains about his employer, the employer will be second guessed by a jury, even where the State agency with the expertise in civil service employment has determined the employee engaged in egregious conduct and where a severe penalty was warranted," thus discouraging "public employers from disciplining employees." Again, this argument fails to recognize the importance of the purpose behind CEPA, because it does not touch upon whether the employer, in seeking to discipline an employee, had an improper retaliatory motivation. A decision in favor of plaintiff will not discourage public employers from disciplining employees; it will only discourage them from retaliating against employees for engaging in protected whistle-blowing conduct under the pretext of discipline. Accordingly, we conclude that the trial judge correctly denied defendants' motion seeking summary judgment on plaintiff's CEPA and federal constitutional retaliatory claims based on the principle of collateral estoppel.

Defendants also contend that contrary to the trial court's determination, plaintiff had raised retaliation as a defense in the termination proceeding, and retaliation "was implicitly considered [and rejected] by both [the ALJ] and the Commission." In support of this argument, defendants cite to plaintiff's opening statement in the termination proceeding, and to plaintiff's initial appellate brief filed in support of his appeal from the Commission's decision affirming plaintiff's removal from employment, which initial brief was later withdrawn by plaintiff. We disagree.

The decisions in the administrative appeals did not require a consideration of retaliatory conduct. The suspension and demotion action did not even mention retaliation. Although plaintiff raised retaliation as a defense in the termination proceeding during his opening statement, the ALJ merely noted it in the recitation of undisputed facts, stating that plaintiff "claims that [NHRFR's] charges are retaliatory for his attacks against [NHRFR] arising out of the September 2006 fire fatality. None of the ten charges against [plaintiff] relates to his actions regarding that event." The lone statement in the ALJ's decision concerning retaliation does not support a finding that "the issue was actually litigated in the prior proceeding," Olivieri, supra, 186 N.J. at 521, or that "there was a full and fair opportunity to litigate the issue," Perez v. Rent-A-Center, Inc., 186 N.J. 188, 199 (2006) (quoting Fama v. Yi, 359 N.J. Super. 353, 359 (App. Div.), certif. denied, 178 N.J. 29 (2003)), cert. denied, 549 U.S. 1115, 127 S. Ct. 984, 166 L. Ed. 2d 710 (2007). We are satisfied that the issue of whether the disciplinary action instituted for retaliatory reasons was never fully presented in the administrative proceedings before the ALJ granted defendants' motion for summary decision.

Lastly, the individual defendants argue that the trial court erred in denying their motion to dismiss plaintiff's punitive damage claims. Defendants argue that plaintiff's claim for punitive damages should be dismissed because a jury could not find that their conduct was especially egregious or that they acted with malice.

Under CEPA, punitive damages can be awarded against public entities "only if the conduct of managerial or supervisory government officials is particularly egregious and involves willful indifference or actual participation." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 444 (2003) (quoting Abbamont, supra, 138 N.J. at 429). The right to receive punitive damages depends upon the "wrongfulness" of the defendant's act. Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984). "[T]he defendant's conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an 'evil-minded act' or an act accompanied by wanton and willful disregard of the rights of another." Id. at 49. This showing of willfulness or wantonness "may be satisfied upon a showing that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences." Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962).

Here, the individual defendants do not dispute that, while acting in their managerial roles, they participated in the alleged retaliatory conduct. Defendants contend that their actions cannot be deemed "egregious" because their job responsibilities required them to discipline plaintiff, and "the neutral and expert administrative agency charged with reviewing the appropriateness of their conduct determined that their actions were appropriate."

We are satisfied that the record contains sufficient evidence creating a genuine issue of fact as to whether the individual defendants' conduct was especially egregious. This includes, but not by way of limitation, defendants' attack on plaintiff's credibility in the press, defendants' attempt to demote plaintiff for speaking at a management committee meeting, and defendants' successful attempts in demoting, suspending and terminating plaintiff. There can be little doubt a reasonable factfinder could find that intentionally seeking an employee's termination for protected whistle-blowing conduct is a "deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences." Rendine v. Pantzer, 141 N.J. 292, 314 (1995) (quoting Berg, supra, 37 N.J. at 414).

In support of their argument that the trial court erred in not dismissing the punitive damage claim in total, the individual defendants cite Quinlan v. Curtiss-Wright Corp., 409 N.J. Super. 193, 216-17 (App. Div.), certif. granted, 200 N.J. 504 (2009) (holding that the question of punitive damages should not have been submitted to the jury in an LAD case because the trial record did not support a finding of the especially egregious conduct). Defendants' reliance on Quinlan is misplaced. In Quinlan, we concluded that the trial record did not support a finding of "actual malice" on part of the defendant. Id. at 2165. In reaching that conclusion, we noted that the "plaintiff remained in her same position and received a bonus and a raise even after she filed suit alleging discrimination," the plaintiff "admitted that her actions breached her duty to her employer and breached the employer's code of conduct," and the termination letter accusing her of stealing company property had not been made available to anyone other than herself. Id. at 216-17.

Here, plaintiff did not remain in his position; rather he was initially demoted and then removed from employment. Contrary to defendants' contention, plaintiff has never admitted that his actions breached a duty to his employer; and although he has admitted that he engaged in the actions complained of, he has maintained that those actions did not warrant the disciplinary charges. Moreover, unlike the defendant in Quinlan, defendants made a number of disparaging comments about plaintiff to third parties, and publicly attacked his credibility after the sexual harassment allegations became public and plaintiff appeared on television criticizing NHRFR's policies.

Lastly, the individual defendants assert that they are entitled to qualified immunity as to plaintiff's 1983 claim. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, __ U.S. __, __, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565, 573 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). Taken in the light most favorable to plaintiff, a jury could find that the evidence demonstrates defendants violated plaintiff's First Amendment right to speak on matters of public concern by retaliating against him for exercising that right. See Baldassare, supra, 250 F.3d at 194-95. Thus, the trial court was correct in denying the individual defendants' claim for qualified immunity.

 
Affirmed.

NHRFR is a public entity comprised of five Hudson County municipal fire departments: Township of Weehawken, City of Union City, Township of North Bergen, Town of West New York, and Town of Guttenberg.

Effective June 30, 2008, the Civil Service Commission replaced the Merit System Board. N.J.S.A. 11A:2-1.

At time of oral argument on the summary judgment motion, the parties argued and the court considered the OAL's hearing and the ALJ's initial decision, but not the Commission's final decision as it had not then yet been rendered. However, the Commission's final decision was made known to and considered by the trial court during the August 31, 2009 argument on defendants' motion for reconsideration.

As discussed supra, although the trial court was primarily addressing the ALJ's decision in the termination proceeding as the Commission had issued a final decision in that matter, the court also stated that its ruling equally applied to the suspension/demotion disciplinary administrative determination. The court stated, "let's make the record clear so we don't have to face this motion down the road, also [the ALJ's decision in the suspension and demotion proceeding] did not cite any issues before this [c]ourt involving the CEPA complaint and the underlying constitutional claims."

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

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August 30, 2010