CHARLES E. LYONS, JR v. THE CITY OF CAMDEN

 

(NOTE: The status of this decision is Published.)

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1986-16T4

CHARLES E. LYONS, JR.,

        Plaintiff-Appellant,

v.

THE CITY OF CAMDEN,

        Defendant-Respondent.


              Argued December 13, 2017 – Decided February 27, 2018

              Before Judges Alvarez, Nugent, and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No.
              L-0310-13.

              Jacqueline M. Vigilante argued the cause for
              appellant (Vigilante Law Firm, PC, attorneys;
              Jacqueline M. Vigilante, of counsel and on the
              brief).

              Daniel E. Rybeck argued the cause for
              respondent (Weir & Partners LLP, attorneys;
              John C. Eastlack, Jr., on the brief).

PER CURIAM

        Plaintiff Charles Lyons appeals the December 2, 2016 grant

of summary judgment to his former employer, defendant the City of
Camden, dismissing his complaint.           Lyons had alleged his 2011

layoff violated New Jersey's Law Against Discrimination (LAD),


N.J.S.A. 10:5-1 to -49.       We affirm.

     When laid off, Lyons was the Chief of Planning and Project

Execution in Camden's Department of Planning and Development.               He

became wheelchair-bound three years after his hiring in 1988.             The

County, not Camden, was responsible for the maintenance of the

building in which he worked.         The County twice over the years

replaced an interior chair lift he required to reach his office,

to no avail.   Lyons was forced at times to use a freight elevator,

which also had maintenance problems.            Because of these access

difficulties, he was occasionally unable to work since he could

not get inside his office.        Lyons's supervisors were well aware

of these concerns.

     Lyons's   layoff   was    included    in   a   budget   reduction   plan

submitted by Camden to the Department of Community Affairs in

order to qualify for Transitional Aid to Localities for the 2011

fiscal year.   A total of 383 employees were laid off.

     Lyons did not have lateral or bumping rights.            318 employees

were eventually rehired, and of that number, 213 were employees

of the police department, 67 were employees of the fire department,

and 38 were civilians.    Lyons's job functions were assumed by his

supervisor.    He was not rehired.

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     Lyons appealed his layoff with the Civil Service Commission.

His case, consolidated with three other terminated employees, was

transferred for hearing to the Office of Administrative Law (OAL).

See 
N.J.S.A. 52:14B-10(c).           Camden successfully argued that the

layoffs were "for purposes of economy and efficiency."                    In his

comprehensive 113-page written opinion, the Administrative Law

Judge (ALJ) also concluded that Lyons had failed to prove by a

preponderance of the credible evidence "that his layoff was other

than for good-faith reasons of economy."

     That decision was affirmed by the Civil Service Commission

in a September 16, 2015 letter decision.              The Commission adopted

the ALJ's findings of fact and conclusions of law after its

independent review of the record.

     On     October    30,   2015,    Lyons     appealed    the     Commission's

decision.    That appeal was voluntarily withdrawn on July 22, 2016.

     In   the   interim,     on   January     17,   2013,   Lyons    filed   this

complaint in the Law Division. On the motion for summary judgment,

Camden    argued      that   Lyons    was     collaterally     estopped      from

relitigating the same LAD issue in Superior Court after obtaining

an unfavorable result in the OAL.             The judge concluded, based on

Ensslin v. Township of North Bergen, 
275 N.J. Super. 352 (App.

Div. 1994), and Hennessey v. Winslow Township, 
368 N.J. Super. 443



                                       3                                 A-1986-16T4
(App. Div. 2004), that the issue could not be readdressed in

Superior Court.

       Lyons      had   testified    before     the   ALJ    regarding       his

accommodation problems, and that Camden's layoff was motivated by

a   desire   to    eliminate   him   from     employment    because    of    his

disability.       When questioned whether Lyons was claiming that his

"layoff from the City . . . was causally related to or in any way

connected with the fact that [he was] disabled[,]" Lyons responded

"I do believe that there is a connection."

      In his summary judgment findings, the judge noted that the

ALJ heard testimony, not only regarding Lyons's disability, but

also the grievances he filed regarding access, and the requests

he had made about it to his supervisors over the years.               The judge

opined that the ALJ had "thoroughly examined" the evidence of

discrimination, engaged in the "proper analysis and conclusion[,]"

and decided that neither the layoff nor the failure to offer Lyons

a new position was motivated by any discrimination.

      Now on appeal, Lyons presents the following issues for our

consideration:

             POINT I
             THE JUDGMENT OF THE TRIAL COURT SHOULD            BE
             REVERSED AND REMANDED FOR A NEW TRIAL ON         THE
             ISSUE OF DISCRIMINATION BECAUSE IT WAS           NOT
             FULLY AND FAIRLY LITIGATED AND DECIDED BY        THE
             ALJ (Raised Below).


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POINT II
THE ISSUE DECIDED BY THE ALJ WAS WHETHER THE
CITY'S 2011 LAYOFFS WERE MOTIVATED BY GOOD
FAITH REASONS OF ECONOMY AND EFFICIENCY
(Raised Below).

POINT III
LYONS DID NOT RAISE DISCRIMINATION           AND
RETALIATION AS A CENTRAL THEME OF            HIS
ADMINISTRATION APPEAL (Raised Below).

    A.   The    City     Omitted    Critical
    Information that Pertained to the City's
    Financial Condition.

    B.   There were Irregularities      in   the
    City's Layoff Process.

    C.   The   City   Failed     to    Consider
    Alternatives to Layoffs     and   Implement
    Pre-Layoff Actions.

    D.   The Appointing Authority Wanted to
    Protect Certain Employees from Layoffs.

POINT IV
THE ALJ DID NOT DECIDE WHETHER LYONS WAS A
VICTIM OF DISCRIMINATION UNDER THE NJLAD
(Raised Below).

    A.   Disparate Treatment.

    B.   Disparate Impact.

POINT V
THE CSC'S DECISION DOES NOT PRECLUDE A TRIAL
ON THE MERITS OF THE CLAIM OF DISCRIMINATION
(Raised Below).

    A.   The Issue Sought to Be Precluded is
    Not Identical to the Issue Decided in the
    First Proceeding.




                     5                             A-1986-16T4
                 B.   There   Was   No  Full   and   Fair
                 Opportunity to Litigate the Issue in the
                 Prior Proceeding.

                 C.   A Final Judgment on The Merits Was
                 Issued in The Prior Proceeding.

                 D.   Determination of the Issue of
                 Discrimination Was Not Essential to The
                 Prior Judgment.

                 E.   The   Party  Against   Whom   Issue
                 Preclusion is Asserted Was a Party.

          POINT VI
          WINTERS DOES NOT MANDATE COLLATERAL ESTOPPEL
          IN LAD DISCRIMINATION CASES (Raised Below).

                                 I.

     We review a grant of summary judgment employing the same

standard as the trial court.   Rowe v. Mazel Thirty, LLC, 
209 N.J.
 35, 41 (2012) (citing Henry v. N.J. Dep't of Human Servs., 
204 N.J. 320, 330 (2010)).   Summary judgment is proper where there is

no genuine issue of material fact, considering the evidence in the

light most favorable to the non-moving party, and the moving party

is entitled to prevail as a matter of law.    Id. at 38, 41 (citing

Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 529 (1995);

R. 4:46-2(c)).   "When no issue of fact exists, and only a question

of law remains, [an appellate court] affords no special deference

to the legal determinations of the trial court."     Cypress Point

Condo. Ass'n v. Adria Towers, L.L.C., 
226 N.J. 403, 415 (2016)



                                  6                         A-1986-16T4
(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995)).

                                II.

      Lyons asserts that the issues tried before the ALJ were not

the same as those raised in his complaint, and that, therefore,

summary judgment should not have been granted to Camden.         His

position is that since his disability was not the "central theme"

in the administrative forum, it should not bar him from pursuing

the claim here.

      The doctrine of collateral estoppel, or issue preclusion,

prohibits "the relitigation of an issue that has already been

addressed in a prior matter," where

           (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.1

           [Bondi v. Citigroup, Inc., 423 N.J. Super.
           377, 423 (App. Div. 2011) (citing First Union
           Nat'l Bank v. Penn Salem Marina, Inc., 190
           N.J. 342, 352 (2007)).]




1
    Plaintiff concedes that elements three and five are met.


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To avoid duplicative litigation and inconsistent decisions, our

Supreme Court has held that collateral estoppel applies even to

"findings made in administrative proceedings and [will] affect

subsequent judicial proceedings."         Winters v. N. Hudson Reg'l Fire

& Rescue, 
212 N.J. 67, 73 (2012) (citing Hennessey v. Winslow

Twp., 
183 N.J. 593, 599-600, 604 (2005)).          So long as the agency

litigation provided procedural and substantive safeguards similar

to those in the trial court, and the parties were afforded a full

and fair opportunity to litigate, collateral estoppel precludes

re-litigation of an issue decided in administrative proceedings

arising from the same set of operative facts.          Hennessey, 
183 N.J.

at 600; Ensslin, 
275 N.J. Super. at 369-71.

       In Winters, the Court held that the plaintiff was collaterally

estopped    from    litigating   a       retaliation   claim   under    the

Conscientious Employee Protection Act (CEPA), 
N.J.S.A. 34:19-1 to

-14.    
212 N.J. at 92.    In the OAL, Winters unsuccessfully argued

that his termination was retaliation for his "whistleblowing"

activities.    Id. at 81.     The ALJ found the termination was not

retaliatory, but was legally justified in light of his conduct in

the workplace.     Ibid.   Winters filed a CEPA complaint in Superior

Court, arguing that his activism was the basis for his termination.

Id. at 82.     He also argued that retaliation was not expressly

adjudicated in the administrative proceeding, and that therefore,

                                     8                             A-1986-16T4
the issue of retaliation was not fully and fairly litigated.                 Id.

at 84.      The Court disagreed, stating that Winters's decision not

to fully develop his retaliation claim before the ALJ did not

entitle him to a second bite of the apple in the trial court.                Id.

at 88.

      The Court observed that Winters "was justifiably removed for

reasons that were independently proven and have no taint of

retaliation."     Ibid.     The ALJ fully:

             assessed his claim of retaliation, to the
             extent that it was supported, when he rendered
             his findings and conclusion. That it was not
             addressed specifically is not fatal to the
             analysis in this particular case, where
             everything Winters pointed to, or at, was
             supposedly evidence of overall animosity and
             retaliatory bias by [his employer].

             [Id. at 91.]

"In the interest of promoting the public interest in finality and

consistency in judicial and quasi-judicial proceedings involving

the same transaction," the agency determination estopped Winters

from bringing a CEPA retaliation claim.          Id. at 92.

      Winters precludes Lyons's NJLAD retaliation claim.            The ALJ

heard evidence of disability discrimination and retaliation in the

agency   proceeding.        However,   Lyons   maintains   that   his     NJLAD

discrimination complaint survives summary judgment because the ALJ

did   not    specifically    address   disparate    treatment,    disparate


                                       9                                A-1986-16T4
impact, and pretext.        However, even if these issues were not

specifically raised, the argument makes a distinction lacking in

real difference.

     Lyons had the opportunity at the administrative law hearing

to fully develop the allegation that his layoff was discriminatory.

When asked directly, he acknowledged2 that he had not proffered

testimony connecting his disability with his termination, but he

also said that it was his contention, and that in his mind it was

the reason he was laid off.    The issue of his disability was raised

by counsel before, during, and after the hearing.           It is clear

from the ALJ's decision that he weighed and rejected Lyons's

argument that he was terminated solely because of his disability,

and because of his need for reasonable accommodation.

     In   his   decision,   the   ALJ   described   in   detail   Lyons's

complaints regarding the wheelchair lift, his refusal to take the

freight elevator, and that the chain of command was aware of his

complaints about unreliable access.

     Even prior to Winslow, Ensslin barred this action.                  In

Ensslin, a plaintiff appealed from entry of summary judgment in

favor of Bergen Township dismissing his Law Division complaint.



2
 We do not have available the full transcripts of that proceeding,
and are basing our summary of facts from excerpts contained in the
appendices and in the ALJ's findings.

                                   10                             A-1986-16T4

275 N.J. Super. at 357.          Ensslin, like Lyons, alleged he was

dismissed because of his disability, in violation of the LAD.

Ibid. We held that the administrative hearing previously conducted

regarding his termination adequately addressed the LAD claim.            Id.

at 369.      Ensslin had requested the administrative process and

raised the LAD issues in that forum, like Lyons did here.            Id. at

358.    Ensslin was estopped from trying the matter twice.

       The argument that some other aspect — disparate treatment,

impact, and pretext — of Camden's alleged discriminatory conduct

towards Lyons warrants continuation of this litigation in Superior

Court simply lacks merit.          The core issue was identical, and

addressed    by    the   ALJ,   whose    decision   was   adopted   in   the

Commission's final decision.       That determination, that Camden did

not discriminate against Lyons because of his disability, was

essential to the ALJ's ultimate conclusion Camden did not act in

bad faith.

       The motion judge's decision to grant summary judgment was not

error.    Looking at the evidence, even in the light most favorable

to Lyons, Camden prevails as a matter of law.

       Affirmed.




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