EDWARD SWANNACK v. TOWNSHIP OF NEPTUNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2138-10T2

EDWARD SWANNACK,

Plaintiff-Appellant,

v.

TOWNSHIP OF NEPTUNE and

HOWARD O'NEIL, Individually

and in his Capacity as Chief

of Police of the Township

of Neptune,

Defendants-Respondents.

_______________________________

December 9, 2011

Argued October 5, 2011 - Decided

Before Judges Cuff and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2435-09.

Andrew T. Walsh argued the cause for appellant (Chamlin, Rosen, Uliano & Witherington, attorneys; Mr. Walsh, of counsel and on the briefs).

Jonathan F. Cohen argued the cause for respondents (Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys; James L. Plosia, Jr., of counsel; Mr. Cohen and Timothy D. Cedrone, on the brief).

PER CURIAM

Plaintiff Captain Edward Swannack appeals from the dismissal of his action and the denial of the subsequently filed motion for reconsideration. Plaintiff's complaint alleged violations of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, naming as defendants his employer, defendant Township of Neptune, and his superior officer, defendant Police Chief Howard O'Neil. The trial court determined plaintiff had elected to present his claims in an administrative forum, thus denying the Superior Court of jurisdiction. Plaintiff argues the court erred in its analysis, maintaining he dismissed the administrative matter prior to entry of a final decision, allowing him to elect Superior Court review. We disagree and affirm.

Prior to our review of the Superior Court's order, we must consider the agency actions. We begin by reciting the necessary procedural history of plaintiff's discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights (DCR).

On April 1, 2008, plaintiff filed a "Charge of Discrimination" against defendants with the EEOC and the DCR, alleging he experienced age discrimination, retaliatory discrimination, and was "subjected to harassment and a hostile work environment." Plaintiff included an addendum to his EEOC charge, allowing the EEOC submission to additionally serve as a complaint to the DCR.

The charge resulted from events following plaintiff's June 28, 2006 work injury. Plaintiff slipped and fell, causing a fractured right leg and back strain. He was released to return to light duty on August 31, 2006. He returned to work in the same capacity, at his regular duties, in September 2006. Plaintiff filed a workers' compensation claim for the period of July 10, 2006 to September 3, 2006.

Seventeen months following his return to work, plaintiff was ordered to undergo a fitness for duty examination after defendant received a doctor's report concerning plaintiff's medical condition. Pending the examination, plaintiff was placed on an authorized leave of absence with pay and with no impact upon his accumulated sick leave. When plaintiff's cardiologist informed defendants "it was not safe" for him to participate in the examination, his leave of absence was no longer classified as an "on the job injury" and his accumulated sick leave would be charged. Plaintiff characterized this as a forced retirement.

On June 25, 2008, the DCR informed plaintiff the dual-filed complaint would be processed by the EEOC. Further, he was advised:

Once the [EEOC] has made a [d]etermination concerning this charge and closes its file, the [DCR] ordinarily adopts the EEOC's determination. However, upon application, and for good cause shown, the [DCR] will review a no reasonable cause determination by the EEOC to ensure that it comports with standards under the [LAD].

In a February 23, 2009 notice, the EEOC notified plaintiff it had completed an investigation and was "unable to conclude that the information obtained establishes violations of the statutes." Accordingly, plaintiff's discrimination charge was dismissed. On June 1, 2009, the DCR informed plaintiff it was closing its file "on the same basis" stated for closing the EEOC file. Plaintiff appealed the DCR's determination.1

On or about May 20, 2009, plaintiff filed this Superior Court complaint, grounded on the same conduct underlying his agency grievances. In the five count complaint he alleged retaliation, harassment, and intentional and negligent infliction of emotional distress by defendants. Defendants moved to dismiss the complaint, alleging the court lacked subject-matter jurisdiction pursuant to Rule 4:6-2(a). The motion was denied without prejudice pending appellate review of the DCR determination.

On appeal of the agency determination (Docket No. A-5511-08), the DCR filed a motion requesting a limited remand and investigation. In support of the motion, the certification of DCR counsel expressed concern plaintiff "may not have been provided with clear, accurate information about his options under state law following the EEOC's completion of its investigation." Remand was sought "to investigate and conduct further analysis . . . to discern whether the [DCR]'s disposition of th[e] matter was proper." We granted the request for a temporary remand, ordering "[t]he remand proceedings [] to be completed within 90 days of [the date of the order]." On June 21, 2010, plaintiff notified the DCR and EEOC he was formally withdrawing his discrimination charge. In light of the voluntary request for withdrawal, the DCR acknowledged receipt of the notice and officially closed its file. Plaintiff then withdrew his appeal of the DCR determination. We dismissed A-5511-08 on July 15, 2010.

In the Law Division, defendants renewed their motion to dismiss plaintiff's complaint. Following oral argument, the motion judge determined plaintiff's chosen course for disposition of his discrimination claims was administrative and the Appellate Division retained jurisdiction during the temporary remand. Relying on Hermann v. Farleigh Dickinson University, 183 N.J. Super. 500 (App. Div.), certif. denied, 91 N.J. 573 (1982), the court concluded it lacked subject matter jurisdiction to consider the LAD claims and dismissed counts one, two, and five of plaintiff's complaint. Plaintiff's motion for reconsideration was denied. Subsequently, plaintiff executed a consent order which dismissed with prejudice the remaining counts of his complaint alleging tort claims. He then filed this appeal.

Plaintiff argues our limited remand to the DCR changes the status of the administrative matter such that while the matter was pending on remand, a final decision had not been entered, allowing him to withdraw his previous request for agency review in favor of presenting his claims in the Superior Court. See N.J.S.A. 10:5-13 (providing an aggrieved party may choose to present discrimination claims to the DCR or the Superior Court). "Because this case arises on a motion for dismissal, we must accept the facts as alleged by plaintiff." Wilson v. Wal-Mart Stores, 158 N.J. 263, 267 (1999). Whether the court has jurisdiction is a legal question. We afford no deference to the motion court's conclusion as our review is de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (holding a trial court's interpretation of the law is not entitled to any special deference); Hoffman v. Supplements Togo Mgmt., LLC, 419 N.J. Super. 596, 605 (App. Div. 2011).

The LAD seeks to redress instances of race-, gender-, and age-based discrimination. N.J.S.A. 10:5-3. The Legislature allows remedies to be pursued by providing an "alternative enforcement mechanism" that affords a plaintiff "a choice of forum." Wilson, supra, 158 N.J. at 269. An aggrieved party is permitted to file suit in the New Jersey Superior Court or with the DCR to seek redress for actions prohibited by the statute. N.J.S.A. 10:5-13. The remedies are "complementary" but "mutually exclusive." Wilson, supra, 158 N.J. at 270.

In choosing the DCR as a forum, a complainant is "availing himself [or herself] of a means of redress normally swifter and less expensive than formal litigation." Sprague v. Glassboro State College, 161 N.J. Super. 218, 226 (App. Div. 1978). When that means of redress fails to achieve those goals, an injured party is entirely free to proceed in Superior Court. Once a plaintiff elects the administrative remedy, however, that proceeding "shall, while pending, be exclusive. . . ." N.J.S.A. 10:5-27. . . . [A] pending complaint before the DCR may be withdrawn at any time provided that the DCR has not made a final determination.

[Ibid. (emphasis added)].

Most recently, the Court in Wilson reviewed the meaning attached to the legislative exclusivity directive set forth in N.J.S.A. 10:5-27, which states "the procedure herein provided shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned." (emphasis added). The court concluded "N.J.S.A. 10:5-27 basically seeks to prevent parties from having 'a second bite at the apple' by pursuing the alternative route to relief. It seeks to prevent duplication of efforts and forum shopping." Wilson, supra, 158 N.J. at 271 (internal citation omitted).

In Wilson, a divided Court concluded the purposes of the statutory provision were not thwarted by permitting the plaintiff to pursue claims before the Superior Court stated in a complaint filed prior to the withdrawal of a docketed DCR action but before the DCR had rendered a decision. Ibid. The Court noted:

The DCR had done nothing other than docket the case; it was not actively investigating the complaint or expending resources. More importantly, . . . no administrative ruling had been rendered. Similarly, defendants have not expended additional resources or conducted discovery and, more importantly, would not be unfairly disadvantaged by being required to litigate this matter in Superior Court. Had plaintiff not promptly withdrawn the DCR action, the familiar common-law defense of other action pending would have quickly confined the dispute to one forum. This interpretation is faithful to the words of the Act. It construes the LAD "fairly and justly with due regard to the interests of all the parties." N.J.S.A. 10:5-27. To hold otherwise would deprive [plaintiff] of a single bite at the apple.

[Ibid. (internal quotations marks and citations omitted).]

Viewed in this light, plaintiff is incorrect when he maintains "there has been no final determination made by the DCR." Here, the DCR entered a final judgment, which plaintiff timely appealed. N.J.A.C. 13:4-10.2(e) (stating a finding of no probable cause shall be considered a final order). The entry of the DCR's final determination "shall exclude any other action, . . . based on the same grievance of the individual concerned." N.J.S.A. 10:5-27. Plaintiff then chose to abandon our review of the DCR's finding of no probable cause2 and attempted to commence a separate proceeding before the Superior Court.

The limited remand permitted by our May 17, 2010 order did not devolve jurisdiction to the DRC. See R. 2:9-1(a) (stating "the supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal is taken or the notice of petition for certification is filed"); see also Bowen v. Angle, 85 N.J. 503, 503 (1981) (ordering the Appellate Division to retain jurisdiction during a temporary remand to the Chancery Division). This court retained jurisdiction and permitted the DCR, for a discrete time period, to review its procedures to enable full resolution of the controversy. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:9-1 (2012). See also Special Care v. Bd. of Review, 327 N.J. Super. 197, 204 (App. Div), certif. denied, 164 N.J. 190 (2000) (stating agency must comply with terms of limited remand). The requested "investigation" was designed to review whether appropriate processes and procedures were followed. Plaintiff's suggestion that the DCR's request demonstrated a desire to start the administrative review anew is unfounded. See R. 2:5-5(b) (permitting appellate court to require supplementation of administrative record "by the taking of additional evidence and the making of findings of fact thereon by the agency").

We determine plaintiff opted for the swift determination by the administrative agency. Hermann, supra, 183 N.J. Super. at 504-05. Further, the issues raised in his Superior Court complaint were precisely the same as those already presented in the DCR review, which were deemed devoid of statutory violations. Following the unfavorable agency determination, plaintiff's dismissal of the agency action in favor of judicial remedies amounts to impermissible forum shopping. Accordingly, N.J.S.A. 10:5-27 bars plaintiff from litigating the matter in the Superior Court. Hermann, supra, 183 N.J. Super. at 503-04.

Finally, the motion judge's denial of a plaintiff's motion for reconsideration did not represent an abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Plaintiff has not demonstrated an injustice occurred, warranting relief pursuant to Rule 4:50-1.

1 Plaintiff amended his notice of appeal on July 17, 2009.

2 A determination of no probable cause is set forth in the regulations as follows:

If the Director determines based upon a review of the investigative findings that there is not a reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious person in the belief that the Law Against Discrimination or Family Leave Act has been violated, he or she shall issue a finding of no probable cause.

[N.J.A.C. 13:4-10.2(c).]