BOROUGH OF BOGOTA v. REGINA TASCA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BOROUGH OF BOGOTA,

Plaintiff-Appellant,

v.

REGINA TASCA,

Defendant-Respondent/

Third-Party Plaintiff,

v.

POLICE CHIEF JOHN C. BURKE,

INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY, POLICE CAPTAIN JAMES

L. SEPP, INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY, POLICE

SERGEANT ROBERT PITERSKI,

INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY, PATROLMAN JAMES FOWLER,

INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY, MAYOR PAT MCHALE,

INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY, COUNCILMAN TITO JACKSON,

INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY, COUNCILWOMAN WANDA UCETA,

INDIVIDUALLY AND IN HER OFFICIAL

CAPACITY, COUNCILMAN EVARISTO

BURDIEZ, JR., INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY, COUNCILMAN

MICHAEL BROPHY, INDIVIDUALLY AND

IN HIS OFFICIAL CAPACITY, COUNCILMAN

JORGE M. NUNEZ, INDIVIDUALLY AND

IN HIS OFFICIAL CAPACITY, and

COUNCILMAN ARTHUR KONISBERG,

INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY,

Third-Party Defendants.

____________________________________________

April 27, 2015

Argued February 4, 2015 Decided

Before Judges Fuentes, Ashrafi, and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No.

L-9178-12.

Robert J. Mancinelli argued the cause for appellant (Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A., attorneys; Mr. Mancinelli, of counsel and on the brief; Douglas M. Bern, of counsel; Beth L. Barnhard and Andrew P. Bolson, on the brief).

Jonathan I. Nirenberg argued the cause for respondent (Rabner, Allcorn, Baumgart & Ben-Asher, P.C., attorneys; Mr. Nirenberg, on the brief).

PER CURIAM

This appeal pertains to N.J.S.A. 40A:14-150, which establishes a right to a trial de novo in the Superior Court from disciplinary measures taken against police officers who are not subject to civil service laws.1 Plaintiff Borough of Bogota appeals from an interlocutory order of the Law Division that a trial de novo of the borough's charges against former police officer Regina Tasca will be held jointly with her jury trial on claims of discrimination or retaliation for whistleblowing. We affirm.

Tasca was a patrol officer employed by the Bogota Police Department from 2001 until she was terminated from that position in October 2012. In May 2011, the police department charged her with violations of police department rules and regulations as a result of her conduct on two police calls on April 3 and 29, 2011.

The first call involved the transportation of a drunken, disorderly woman to a local hospital. The police department accused Tasca of standing by and failing to assist a fellow officer as the woman damaged property at the hospital and tried to flee.

In the second incident, Tasca was the first officer to respond to a call requesting assistance with a young man who was emotionally disturbed and uncooperative with his parents' efforts to get him to a hospital for mental health treatment. A police sergeant and a detective from the Ridgefield Park Police Department also responded to the scene. When the young man refused to go to the hospital and walked away from the police, the Ridgefield Park sergeant tackled him to the ground, and the detective then punched him in the head. Tasca believed the force was excessive. She engaged in physical and verbal conduct against the Ridgefield Park officers. She was charged with assaulting the detective, cursing and screaming at both fellow officers, otherwise engaging in improper conduct at the scene rather than taking control of the situation, and subsequently providing false information to her superiors about what happened.

On May 18, 2011, the police department suspended Tasca from duty but with pay and benefits. See N.J.S.A. 40A:14-149.1.

Bogota engaged the services of a retired Superior Court judge as a hearing officer to adjudicate the charges against Tasca and to make a recommendation of disciplinary action. The retired judge conducted a hearing over twelve days at which many witnesses testified and video recordings of both incidents were entered in evidence. By a written decision issued on August 10, 2012, the retired judge concluded "there were clear violations of department rules and regulations by Officer Tasca" and recommended her dismissal as a police officer.

On September 20, 2012, the Bogota Borough Council passed a resolution adopting the retired judge's decision and terminating Tasca's employment. The effective date of termination was set at October 18, 2012. During the seventeen months of her suspension, from May 18, 2011 until her termination, Tasca received her full salary as well as medical, dental, and pension contribution benefits.

While she was suspended, Tasca filed a complaint in the United States District Court for the District of New Jersey alleging that Bogota and members of the police force and borough council had discriminated and retaliated against her in violation of federal and State laws.

The State litigation that is the subject of this appeal was initiated in December 2012 in the Law Division when Bogota filed a complaint under N.J.S.A. 40A:14-149.3 for reimbursement of Tasca's salary and the value of the benefits she received while suspended. Tasca responded with a nine-count counterclaim and third-party complaint against members of the police force and borough council. The first eight counts alleged violations of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; the United States and the New Jersey Constitutions; New Jersey's Civil Rights Act, N.J.S.A. 10:6-1, -2; and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.2 Count nine of the counterclaim sought a de novo hearing pursuant to N.J.S.A. 40A:14-150 of the administrative charges that resulted in Tasca's termination. After filing her claims in State court, Tasca dismissed her federal lawsuit without prejudice.

Bogota moved to sever count nine and to conduct the trial de novo of the disciplinary matter as a bench trial before Tasca's discrimination and retaliation claims are tried before a jury. Initially, the trial court granted Bogota's motion to sever count nine. The court reasoned that it is necessary to reach a final judicial decision on Tasca's termination before her allegations of discrimination and retaliation on the other counts are presented to a jury.

Tasca filed a motion for reconsideration, arguing that the severance will result in essentially her entire case being tried twice, once before the judge under N.J.S.A. 40A:14-150 and a second time before a jury on her discrimination and retaliation claims. She argued that the entire controversy doctrine requires all the counts of her pleading to be tried in a single trial and that she will be deprived of her right to a jury if the de novo bench trial is conducted before her other claims.

The trial court reconsidered its severance decision and reversed its ruling. The court stated it had mistakenly believed that a de novo trial under N.J.S.A. 40A:14-150 is mandatory but subsequently realized it is only an optional remedy available to a terminated police officer. The court stated that holding two similar, lengthy trials will be a waste of judicial resources. The court determined that it can and will decide the statutory trial de novo matter in conjunction with the evidence presented at the jury trial. By order dated July 28, 2014, the court rescinded its earlier severance ruling and directed that "[t]his case shall proceed to a single trial at which a jury will be permitted to render a verdict before the Court rules with respect to Officer Tasca's hearing de novo . . . ."

We granted Bogota's motion for leave to appeal from the July 28, 2014 order.3

We reject without discussion, see R. 2:11-3(e)(1)(E), Bogota's argument that the trial court abused its discretion in reconsidering its initial severance ruling. Simply stated, a trial court is free to reconsider its own interlocutory decisions. See Lombardi v. Masso, 207 N.J. 517, 539 (2011); Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257, 263-64 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988).

By the same token, we reject Tasca's argument that the entire controversy doctrine and its application through Rule 4:30A require that her statutory right to de novo review of the disciplinary action be tried jointly with her other claims. The entire controversy doctrine expresses the judicial preference that "related claims and matters arising among related parties be adjudicated together rather than in separate, successive, fragmented, piecemeal litigation." Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 443 (2011). The obligation of a party is to plead all known related claims jointly. See Aetna Ins. Co. v. Gilchrist Bros., Inc., 85 N.J. 550, 556-57 (1981). Once a claim is pleaded, the court rather than the litigants has the discretion to decide whether the claim should be tried jointly with other related claims or separately. Lake Lenore Estates, Assocs. v. Twp. of Parsippany-Troy Hills Bd. of Educ., 312 N.J. Super. 409, 427 (App. Div. 1998); Perretti v. Ran-Dav's County Kosher, Inc., 289 N.J. Super. 618, 624 (App. Div. 1996).

Tasca makes a more persuasive argument that the potential for collateral estoppel of her discrimination and retaliation claims, and her right to a jury trial on those claims, supports the trial judge's decision not to sever count nine and not to conduct the non-jury disciplinary trial first.

The Supreme Court addressed the collateral estoppel effect of administrative disciplinary hearings in Winters v. North Hudson Regional Fire and Rescue, 212 N.J. 67 (2012). In that case, the employee challenged his termination through an appeal to the Civil Service Commission. Id. at 71. An Administrative Law Judge (ALJ) heard testimony for several days and then granted the employer's motion for partial summary decision because the evidence supported the disciplinary charges and the employee had alleged unlawful retaliation but had not presented evidence to support that defense. Ibid. The Commission adopted the ALJ's findings and terminated the employee. Id. at 71-72, 81.

The employee then filed an action in the Law Division alleging his termination was retaliatory in violation of CEPA, the LAD, and constitutional provisions. Id. at 82. The Supreme Court held the employee was collaterally estopped from pursuing his retaliation claims under those laws as a result of the administrative proceedings. Id. at 72, 92. The Court stated that "[f]indings made as part of the discipline process will have preclusive impact in later employment-discrimination litigation raising allegations of employer retaliation based on the same transactional set of facts." Id. at 74. Because the employee's retaliation claims were "necessarily considered" by the ALJ and "litigated as part of the final judgment in the administrative action," further presentation of the same claims was estopped. Id. at 88, 92.

Here, Bogota concedes that Tasca did not plead or present a claim of retaliation in the departmental hearing before the retired judge. Nevertheless, it seeks to compel Tasca to present her defenses in the de novo proceeding in the Law Division and to have that matter decided first, presumably so that she will be collaterally estopped from presenting the same claims to the jury on the other eight counts of her counterclaim. Such ordering of the proceedings would interfere with Tasca's right to present her claims for decision by the jury.

In circumstances like this case, where the police officer has filed both a request for a trial de novo under N.J.S.A. 40A:14-150 and statutory and constitutional claims of discrimination and retaliation, the trial court must strive to accommodate all viable claims and the officer's right to a trial by jury. Unless the parties agree that the trial de novo should be conducted separately and before a trial of the other claims, the court should allow the jury to make the requisite factual determinations that are within its province on the jury trial claims. We see no reason that the jury's decision on claims that can be presented to it under normal rules of procedure could not also control that aspect of the trial court's de novo decision.

If the jury finds the employer liable for discrimination and retaliation, the court can determine whether the officer is entitled to be reinstated to her position as a remedy available under N.J.S.A. 40A:14-150. On the other hand, if the jury reaches a verdict in favor of the employer, the trial court's de novo review will be limited to any other basis besides the claims of discrimination and retaliation that either supports or negates the disciplinary charges.

We recognize that the joint trial ordered by the court does not promote the "design" of N.J.S.A. 40A:14-147 to -151 "to bring police disciplinary actions to a swift, efficient, and final resolution." Ruroede, supra, 214 N.J. at 344. However, that objective was thwarted long before the trial court's ruling on a joint trial. The administrative hearing required twelve days of testimony, and Tasca subsequently filed a counterclaim alleging multiple causes of action for discrimination and retaliation along with her request for a trial de novo.

We do not decide here that a de novo review under N.J.S.A. 40A:14-150 must be conducted simultaneously with other claims in every case. We only conclude that the procedure ordered by the trial court makes good sense in the circumstances of this case, where the de novo trial will essentially duplicate the jury trial. Tasca estimates that she would present eighty-five to ninety percent of her evidence on all her claims at the de novo trial. The trial court reasonably took into consideration the interest of judicial economy and the importance of consistent decisions on similar issues.

The court had discretion to decide whether any counts of the counterclaim should be severed and tried separately. See Rendine v. Pantzer, 141 N.J. 292, 310 (1995); Lech v. State Farm Ins. Co., 335 N.J. Super. 254, 260 (App. Div. 2000). It did not abuse its discretion in ruling that all counts of Tasca's counterclaim will be tried jointly.

Affirmed.

1 N.J.S.A. 40A:14-150 states in part

Any member or officer of a police department or force in a municipality wherein Title 11A of the New Jersey Statutes is not in operation, who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court . . . . The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction. If the applicant shall have been removed from his office, employment or position the court may direct that he be restored to such office, employment or position and to all his rights pertaining thereto, and may make such other order or judgment as said court shall deem proper.

Either party may supplement the record with additional testimony subject to the rules of evidence.

See also Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 353-55 (2013) (explaining the statutory framework of N.J.S.A. 40A:14-147 to -151 for disciplinary hearings against police officers in non-civil service municipalities).

2 Tasca's allegations ranged far beyond the two incidents of April 2011 and the resulting disciplinary charges. We note that under the election of remedies or exclusivity provision of CEPA, Tasca's pursuit of a CEPA claim is "deemed a waiver of the rights and remedies available under any other . . . State law . . . ." N.J.S.A. 34:19-8. In Young v. Schering Corp., 141 N.J. 16, 29 (1995), the Court construed the CEPA waiver provision as applicable to "retaliatory conduct" of the employer and not to "those causes of action that are substantially independent of the CEPA claim." We leave it for the trial court to determine which counts of Tasca's counterclaim, if any, survive if she continues to pursue her CEPA claim.

3 The parties continued to litigate the matter in the Law Division while this appeal was pending, apparently unaware of the jurisdictional restrictions once we granted leave to appeal. See R. 2:9-1(a); McNair v. McNair, 332 N.J. Super. 195, 199 (App. Div. 2000) ("[A]s a general rule, once an appeal is filed, the trial court loses jurisdiction to make substantive rulings in the matter."). In December 2014, Tasca moved for summary judgment on count nine based on alleged conflicts of interest of the mayor and a councilman who had participated in the resolution terminating her employment. The trial court granted Tasca's motion by order dated March 12, 2015, also ordering that Tasca be reinstated as a Bogota police officer with full back pay, benefits, and seniority. By order dated April 8, 2015, we vacated the trial court's order for partial summary judgment and the reinstatement of Tasca on the ground that the court lacked jurisdiction to issue its decision and order. We did not consider the merits of the conflicts issue.