EUGENE COLLINS v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EUGENE COLLINS,

Plaintiff-Appellant,

v.

CITY OF NEWARK, SAMAD WASHINGTON

AND ANTONIO DOMINGUES,

Defendants-Respondents.

__________________________________

February 7, 2014

Submitted November 7, 2013 Decided

Before Judges Grall, Waugh and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5322-10.

Zeff Law Firm, LLC, attorneys for appellant (Gregg L. Zeff and Drake P. Bearden, Jr., on the brief).

Hardin, Kundla, McKeon & Poletto, PA, attorneys for respondents (James P. McBarron, on the brief).

PER CURIAM

Plaintiff Eugene Collins, formerly employed as an officer in the City of Newark's Police Department, appeals from a final order of the Law Division. On defendants' motion for summary judgment, the judge dismissed as untimely filed plaintiff's twelve-count complaint charging the City and two of its police officers defendant Samad Washington and Antonio Domingues with violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and Sections 1981, 1983 and 1985 of Title 42 of the United States Code (the federal claims).

On this appeal, the applicable limitations periods are not disputed. Plaintiff acknowledges that those periods are one year for his CEPA claim and two years for his LAD and federal claims.1

Plaintiff's only challenge is to the judge's determination that his claims (none of which rest on allegations of actions taken by a defendant or discovered by plaintiff after he received his second notice of termination) accrued no later than the date of his termination. He urges us to hold that a civil cause of action based on discriminatory or retaliatory termination does not accrue for an employee in his or her career service until the Civil Service Commission (Commission) has rendered a decision on that employee's administrative appeal. See N.J.S.A. 11A:2-6a(1) (requiring that the Commission grant a hearing and render a final administrative decision on appeals concerning career service employees removed from their positions). Finding no legal support for a special rule of accrual in this circumstance, we affirm.2

We owe no deference to the trial judge's decision in this case. McDade v. Siazon, 208 N.J. 463, 473-74 (2011). There is no factual dispute material to the accrual date of plaintiff's claims, and we, like the trial court, must view the undisputed facts and the reasonable inferences they permit in the light most favorable to him. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This appeal presents a question of law. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010).

Plaintiff was served with two preliminary notices of disciplinary action in 2007. Both indicated the Department's intention to remove plaintiff from his position. Plaintiff was served with the first notice on June 11, 2007, and it alleged multiple violations of Department and Civil Service regulations, including conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and neglect of duty, N.J.A.C. 4A:2-2.3(a)(7). The charges were based on allegations that plaintiff failed to take action in response to a civilian's complaint about the conduct of other officers and the civilian's threat to harm one of them, defendant Washington.

Plaintiff told Washington about his conversation with the civilian, but plaintiff did not otherwise report it until March 2007, when he was questioned by defendant Domingues, an officer assigned to the Department's Internal Affairs Bureau. Internal Affairs opened the investigation because Washington filed a report about what plaintiff had told him.

In May 2007, the United States Postal Service delivered a package to plaintiff's home that contained two dead rats and a written note that began with a racial epithet and ended with a warning to keep his "mouth closed or else." Plaintiff, an African-American, claims the Department took no action when he reported the delivery of the package and provided photographs of its contents.

On at least one occasion after May 2007, plaintiff reported for work and later signed out due to sickness that he attributed to stress related to the hostility of fellow officers. In response, the Department had plaintiff meet with its psychologist, which led to his being placed on leave.

The second notice of disciplinary action concerned plaintiff's fitness for duty. In August 2007, the Department referred plaintiff to the "Institute of Forensic Psychology" for an evaluation, and a doctor there concluded that he was "unable to perform his full duties as an officer." Based on that report, the Department served plaintiff with a second preliminary notice of disciplinary action on September 14, 2007. It announced the Department's intention to terminate plaintiff's employment on the ground that he was unable to perform his duties, N.J.A.C. 4A:2-2.3(a)(3).

Plaintiff requested a departmental hearing on both preliminary notices of disciplinary action. The hearing on the first notice was held on February 8, 2008, and following that hearing, the Department issued a final notice of disciplinary action removing plaintiff from his position effective that day. The hearing on the second notice was held on March 10, 2008. At that hearing, the Department determined that plaintiff was unfit for duty and issued another final notice of disciplinary action removing him effective on the date of his original removal, February 8, 2008. Plaintiff was served with the first final notice on February 8 or 18 the date of service of that notice is handwritten and not clear and the second on March 18.

There is no dispute that plaintiff filed timely administrative appeals from the Department's final notices of disciplinary action with the Commission. In conformity with the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -25, and the Commission's regulations, the Commission transferred the contested cases to the Office of Administrative Law (OAL). N.J.S.A. 52:14B-2(b), (d); N.J.S.A. 11A:2-6(a)(1); N.J.A.C. 4A:2-2.9(b). There, the Administrative Law Judge (ALJ) consolidated the cases and took testimony. During that hearing, plaintiff did not testify but presented testimony from a psychologist in mitigation of penalty concerning his stress-related condition attributable to the mail delivery.

The ALJ issued an initial decision, which the Commission had the authority to adopt, modify or reject. N.J.S.A. 52:14B-10(c); N.J.A.C. 4A:2-2.9(c)-(d). The ALJ found that the Department failed to establish plaintiff's unfitness for duty. Consequently, the ALJ recommended that the Commission dismiss that charge. In contrast, the ALJ upheld the Department's findings of conduct unbecoming a public employee and neglect of duty. Nevertheless, relying upon plaintiff's otherwise good record and the principle of progressive discipline, West New York v. Bock, 38 N.J. 500, 514-18 (1962), the ALJ recommended that the Commission impose a penalty less severe than termination suspension.

The ALJ issued the written decision on May 15, 2009, and both plaintiff and the Department filed exceptions with the Commission. See N.J.S.A. 52:14B-10(c); N.J.A.C. 1:1-18.4(a). In conformity with its authority to adopt, modify or reject the ALJ's initial decision, the Commission accepted the ALJ's recommendations on liability but determined, as the Department had, that plaintiff's violations were sufficiently egregious to warrant termination of his employment as a police officer despite his prior record of good service. See In Re Herrmann, 192 N.J. 19, 33 (2007) (recognizing that "progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property").

Subsequently, plaintiff appealed the Commission's final decision to this court. See R. 2:2-3(a)(2). We affirmed the Commission's determination in an unpublished opinion. In the Matter of Eugene Collins, No. A-0130-09 (App. Div. July 8, 2011).

If plaintiff were correct that his claims based on termination accrued when the Commission issued its final decision, then all of those claims would have been filed within the applicable one- or two-year limitations period. The Commission's final decision was issued on July 24, 2009, and plaintiff filed this civil complaint on June 29, 2010. That is less than one year after the Commission's final decision.

In our view, however, the date of the Commission's final decision is immaterial to the accrual of plaintiff's civil claims. "Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs." Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). Indeed, plaintiff recognizes that limitations periods for claims involving wrongful termination of employment begin to run when the employee is actually discharged or actually resigns. Henry, supra, 204 N.J. at 334; Holmin v. TRW, Inc., 330 N.J. Super. 30, 46 (App. Div. 2000), aff'd o.b., 167 N.J. 205 (2001); Keelan v. Bell Communications Research, 289 N.J. Super. 531, 541 (App. Div. 1996). The wrongful acts and resulting injury of termination that plaintiff alleges occurred prior to his filing of the administrative appeal.

Plaintiff's claim that he was not discharged from his position until the Commission upheld his removal rests on a misunderstanding of the administrative appeal process available to employees in the career service. The Commission is "charged with responsibility for creating a disciplinary system of fair and consistent application to protect civil service employees at the State and local level." Hennessey v. Winslow Twp., 183 N.J. 593, 603-04 (2005); see N.J.S.A. 11A:2-6. But a public employer does not require the Commission's prior approval to terminate an employee in the career service. Instead, N.J.S.A. 11A:2-6(a)(1) requires the Commission to grant a hearing and render a decision only if the employee files an administrative appeal.

The Commission's role is to provide an independent review and, where appropriate, redress for a termination that is wrongful. Hennessey, supra, 183 N.J. at 603-05. The Commission may grant redress either because the public employer cannot establish grounds warranting removal or because termination is too severe a sanction for the employee's conduct. Id. at 604. Thus, the appeal process is one way in which an employee can obtain a remedy for the employer's wrongful decision to terminate his or her civil service employment.

In terms relevant to the accrual of plaintiff's statutory causes of action under the LAD, CEPA and his federal claims, his alleged wrongs were those of his co-workers and employer and the resulting injuries occurred no later than the date he was terminated. It is important to note that plaintiff's civil complaint does not allege any actionable conduct by the ALJ, the Commission, his employer or co-workers during the administrative proceedings. Moreover, as previously noted, this court addressed plaintiff's objections to the Commission's decision on a prior appeal, which was pending when he filed his complaint against his employer and co-workers in the Law Division.

For the foregoing reasons, we fail to see how the administrative appeal is material to the accrual of his statutory causes of action. Moreover, a career service employee is not required to file an administrative appeal to pursue those causes of action to redress wrongful termination, and plaintiff does not contend that the limitations period should be tolled while an administrative appeal is pending. See W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 556-57 (1989) (discussing a limited rule of equitable tolling applicable where a proceeding in another tribunal prevents enforcement of the remedy and exhaustion of remedies is required).3

In Hennessey, the Supreme Court considered a case in which a civil service employee was removed from her position as unfit for duty after a hearing at the local level. 183 N.J. at 594.4 During that hearing, the employee argued, unsuccessfully, that her employer was required to offer her a reasonable accommodation because her disability would not preclude her from performing light duty. Id. at 594-95. She did not file an administrative appeal. "Instead, she filed her LAD complaint in Superior Court," asserting a violation of the LAD. Id. at 595.

With respect to the employee's failure to take an administrative appeal, the Court observed: "That was her right. Her decision to forego an administrative remedy at that stage and to seek instead a judicial forum for her LAD claim was hers to make." 183 N.J. at 604. Thus, the administrative appeal authorized by the Civil Service Act and the civil action authorized by the LAD are two separate avenues available to an employee seeking redress for a termination that is wrongful because it is discriminatory. See also Henry, supra, 204 N.J. at 333 n.4 (describing alternative administrative procedures that the plaintiff in that LAD action could have pursued by appealing "the denial of her reclassification to the Merit System Board in the Department of Personnel (now the Civil Service Commission)").

The Supreme Court has also recognized that a civil service employee alleging retaliatory discipline has two ways to seek redress an administrative appeal of the discipline and a civil cause of action for unlawful retaliation provided for in CEPA. In Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 72-73 (2012), the Court held that an employee who raised a retaliation defense on his administrative appeal but then "h[e]ld back on the defense in an attempt to save it for later duplicative litigation," would be barred from re-litigating the issue in his subsequent CEPA suit. Nothing in the Court's opinion suggests that the employee's wrongful termination is not effective until it is upheld by the Commission or that an employee in the career service must pursue an administrative appeal before filing a civil action.

Here, plaintiff was terminated effective February 8, 2008 and was fully aware of all grounds for termination asserted by his employer no later than March 18, 2008. Nevertheless, he opted to seek relief in an administrative forum and failed to preserve his independent statutory actions by filing a timely civil complaint alleging his statutory causes of action. In short, he elected to proceed in the administrative forum and delay pursuit of his civil action beyond the limitations period.

In our view, a special rule governing accrual of causes of action for career service employees would undermine the purposes served by limitations periods. Those purposes are: 1) "creat[ing] desirable security and stability in human affairs," Galligan v. Westfield Ctr. Serv., 82 N.J. 188, 191-92 (1980); 2) encouraging plaintiffs to diligently pursue their claims, id. at 192; 3) providing defendants a "fair opportunity to defend," ibid.; and 4) promoting the quality and efficiency of justice by preventing litigation of stale claims and conserving judicial resources for timely claims, ibid.

Plaintiff raises two additional claims that warrant no more than a brief comment. Arguing that the date of the Commission's decision should be viewed as his last day of work, he attempts to bring this case within a rule this court established in Holmin where an employer gives advance notice of a termination effective on a later date, the last date of work controls. Holmin, supra, 330 N.J. Super. at 36-37. In Holmin, the panel reasoned that while the employee remained on the job, the employer still had an opportunity to alter its decision. Id. at 46. The comparison is not apt, because plaintiff's employer made its final decision to terminate him when it issued the final notice of termination after conducting a hearing and his civil causes of action for termination are against his employer, not the Commission. It is the date of wrongful conduct and injury by his employer that determines the accrual of his claim against the employer.

Plaintiff also urges us to use the date of the Commission's decision on the ground that the ALJ's initial decision recommended suspension, not termination. This claim has no merit because, as previously discussed, the ALJ's decision is an initial, not a final, decision, which has no legal force unless adopted by the Commission.

For all of the foregoing reasons, we find no basis for disturbing the Law Division's determination that plaintiff's civil complaint was untimely filed.

Affirmed.

1 With respect to the limitations periods: for a CEPA claim, see N.J.S.A. 34:19-5 and Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 106 (2008); for an LAD claim, see Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 324 (2010) and Montells v. Haynes, 133 N.J. 282, 285 (1993); and for claims under 42 U.S.C.S. 1981, 1983 and 1985, see Freeman v. State, 347 N.J. Super. 11, 21-22 (App. Div.), certif. denied, 172 N.J. 178 (2002) and Assocs. Home Equity Servs., Inc. v. Troup, 343 N.J. Super. 254, 271 n.4 (App. Div. 2001).

2 Plaintiff does not argue that the limitations periods should be tolled while an administrative appeal of a career service employee's removal is pending before the Commission. We point that out only to indicate that the issue is not raised, not to suggest any view on the merits.

3 Nor does plaintiff allege that the limitations period for his claim asserting that his termination based on unfitness violated the LAD's prohibition of discrimination against the disabled was tolled until March 18, 2008, when he was terminated for unfitness. See Henry, supra, 204 N.J. at 338-39. That is not surprising, because this LAD claim was untimely filed even if that claim was tolled until March 18, 2008.

4

The question presented in Hennessey claim preclusion did not involve the running of the limitations period. Nevertheless, Hennessey is instructive on the question whether an administrative appeal is essential to pursuit of a civil cause of action involving termination of civil service employment.