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DOCKET NO. A-2481-10T1











December 10, 2012


Submitted December 12, 2011 - Decided


Before Judges A. A. Rodr guez and Sabatino.


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-632-07.


Herbert J. Tan, attorney for appellant.


Jeffrey S. Chiesa, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Jacqueline Augustine, Deputy Attorney General, and Eric M. Snyder, Deputy Attorney General, on the brief).


Plaintiff Yuan Fang, an employee of the New Jersey Department of Transportation ("DOT"), appeals the trial court's dismissal of her amended Law Division complaint alleging that defendants, the DOT and two DOT supervisors, retaliated against her in violation of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14. Applying the Supreme Court's recent opinion in Winters v. North Hudson Regional Fire and Rescue, 212 N.J. 67 (2012), and other applicable law, we affirm the dismissal of plaintiff's lawsuit because her allegations of retaliatory conduct substantially have already been raised and rejected in a prior administrative action before the Division on Civil Rights ("DCR"), albeit under a different anti-retaliation statute.

Plaintiff is a certified public accountant. The DOT hired her in January 2001 as an administrative analyst in its Inspector General's Office. In May 2004 plaintiff became a grant manager in the DOT's Division of Aeronautics. A grant manager's duties include ensuring that state and federal funds for airport projects are applied in accordance with applicable regulations.

The discriminatory conduct against plaintiff allegedly started in September 2004 and comprised such actions as yelling at her, denying her upgraded computer equipment, and issuing her poor performance evaluations. On June 27, 2005, plaintiff filed an internal complaint within the DOT, alleging that Thomas Thatcher, the division's director, and Ashwin Patel, an administrative analyst, had discriminated against her on the basis of her Chinese national origin and gender. On July 21, July 27, and September 8, 2005, plaintiff received suspensions totaling thirty-one days, which she characterized as a form of retaliation against her.

On November 22, 2005, plaintiff filed an administrative complaint with the DCR. She specifically alleged that various "acts of retaliation" had been inflicted upon her by the DOT in response to her filing of the internal discrimination charges.

The DCR undertook an investigation of plaintiff's complaint. During that investigation, plaintiff repeated her allegations that she had been unfairly denied an upgrade of her computer equipment, that she had been given unwarranted poor performance evaluations, and that she had been yelled at by her supervisors. She further reiterated that her supervisors had unfairly disciplined her as a method of reprisal.

After completing the interviews, the DCR investigative report recommended that the case be closed, with a finding of no probable cause. The report found no evidence that plaintiff had been treated less favorably than other employees because of her national origin. In addition, the report specifically noted that "the investigation revealed no evidence that [plaintiff's] supervisors spoke to her in an inappropriate manner[.]" Moreover, "the investigation revealed no evidence that [the employer's] articulated reason for issuing the suspensions insubordination was not its true reason."1

With respect to plaintiff's allegation that she had been repeatedly yelled at, the investigative report noted the contrary observations of other employees who said that plaintiff was the only person who yelled during her interactions with Thatcher and Patel. The DCR report further noted that plaintiff had been unable to identify any additional witnesses to corroborate her allegations of being yelled at.

The DCR report adopted the DOT's explanation that it had provided upgraded computers only to field staff in plaintiff's division. Plaintiff consequently had been treated like all other administrative staff members in not receiving an upgrade. Plaintiff could not identify to the DCR a fellow administrative staff member who had received an upgraded computer. The DCR also found no evidence that Thatcher or Patel had a role in deciding which staff members had received them.

As to plaintiff's evaluations, the DCR report noted that plaintiff initially had received satisfactory ratings for October 2002 through September 2003, as well as for October 2003 through September 2004, during which time Patel was briefly her supervisor. For the period from October 2004 through September 2005, however, plaintiff received failing ratings in nine of the eleven sections concerning individual work and the ability to work with others. Her work had what management described in the DCR report as "numerous" errors. According to the DCR report, plaintiff failed to proofread her work adequately. She also delayed projects. The report also noted that plaintiff had repeatedly asked Patel to obtain information that he had directed her to get from other sources, even though she had received three days of training on how to handle such matters.

According to the DCR report, some of plaintiff's failing ratings in working with others reflected her insubordination of Patel, by refusing to follow his instructions and by raising her voice at him. The report found that her inappropriate conduct justified the three suspensions, each of which had been upheld after departmental hearings.

The DCR investigation also found that plaintiff's substandard ratings in customer service were supported by complaints from airports and consultants about her lack of respect and her reluctance to answer questions. By way of example, the manager of one airport stated in the investigation that plaintiff did not use appropriate industry terminology, that she had raised her voice at him, and that he had complained about her to the DOT because she was its only employee with whom he did not have a good experience.

The DCR report specifically recounted several incidents in which plaintiff had refused to obtain information needed for her projects, had refused to perform other work that she believed not to be her responsibility, and had raised her voice to Patel. As the report found, those incidents led to the suspensions, which were of increasing duration consistent with the DOT's policy of progressive discipline.

The investigative report concluded that the timing of the DOT's disciplinary charges against plaintiff did not support a "reasonable suspicion" of "a causal connection" between them and her internal complaint of discrimination. This conclusion flowed from the DCR's findings that each disciplinary charge followed "a distinct incident," that there was no evidence that the DOT failed to discipline other employees who engaged in similar conduct, and that there was no other basis to suggest a retaliatory motive.

On December 15, 2008, the Director of the DCR issued a final agency decision, concluding that there was "no probable cause to credit the allegations of [plaintiff's] complaints[.]" The decision relied upon the results of the investigation.

Notably, plaintiff did not file an appeal with this court, even though she was entitled to do so, of the DCR's adverse final agency decision pursuant to Rule 2:2-3(a)(2). Instead, while the DCR matter was still under investigation, she filed a complaint in the Law Division against the DOT, Thatcher, Patel, and Robert Salman, once again alleging retaliation against her. This time, however, plaintiff couched her allegations of retaliation under CEPA, asserting that she had been subjected to reprisals after complaining to her supervisors about the perceived mishandling of funds by the DOT in violation of applicable regulations.

Defendants moved to dismiss the lawsuit. They argued, among other things, that the lawsuit had not been filed within the applicable statute of limitations, that it was duplicative of allegations of wrongful treatment that plaintiff had failed to substantiate before the DCR, and that it was barred under the CEPA statute's waiver provision, N.J.S.A. 34:19-8.

On August 17, 2007, the Law Division partially granted defendants' motion for summary judgment. The court dismissed plaintiff's specific claims that defendants had violated CEPA by retaliating against her for reporting violations of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. The court also dismissed plaintiff's claims against Robert Salman. The court did, however, grant plaintiff leave to "amend her complaint in an effort to set forth a viable CEPA claim related to the alleged conduct of [d]efendants . . . Thatcher and . . . Patel."

In July 2008, plaintiff filed an amended CEPA complaint, which omitted Salman as a defendant. In her amended Law Division complaint, plaintiff alleged that after she had reported to her supervisors about perceived misappropriation of funds, they had interfered with her job functions and subjected her to unjustified discipline. She claimed that defendants retaliated against her by "[r]epeatedly subjecting [her] to unwarranted disciplinary actions and suspensions;" "[r]emoving her from her job position as Grants Manager;" "[t]ransferring her to other job positions [so as to] undermine her job title and cause her humiliation among her subordinate co-workers;" "[a]llocating her far less space than that provided to [others] in her pay scale and job title range;" "[r]efusing to upgrade her computer . . . and [m]onitor as was done with all other members of her employee peer group;" "[f]orcing her to accept work assignments generally assigned to employees far below her pay scale status and seniority;" and "[i]gnoring her written request for a transfer to a different office in the same Division."

Defendants moved to dismiss the amended complaint, again arguing that it was untimely and otherwise barred as a matter of law. Plaintiff filed opposing papers, contending that her lawsuit was timely and consistent with the governing law.

At a motion hearing on November 21, 2008, the trial court first ruled that plaintiff's CEPA action was timely because she had filed it within one year of the last of the acts that she alleged as a pattern of retaliation. However, the court found that the lawsuit was duplicative and improper, due to the fact that plaintiff had presented the same or similar allegations to the DCR. As part of his analysis, the motion judge observed that "[t]he facts and incidents prompting both the LAD and CEPA claims are distilled to be fundamentally the exact same complaints." The court therefore dismissed the action.

Plaintiff belatedly moved for reconsideration, which the trial court denied. This appeal2 followed.

The pivotal issue before us is whether plaintiff is free to litigate her claims of retaliation in the Law Division, on an alternative legal theory founded upon substantially overlapping factual allegations, having already failed to prove retaliation before the DCR. We agree with the trial court that she is not entitled to do so.

The DCR is an administrative agency. It was created by the Legislature to investigate and resolve claims of discrimination and retaliation arising under the LAD. N.J.S.A. 10:5-6. As an administrative forum, the DCR often can provide claimants with a faster and less expensive means as compared with a lawsuit in the courts for adjudicating their claims of unlawful conduct and for obtaining a remedy when such unlawful conduct is substantiated.

As the Supreme Court has long recognized, "administrative tribunals can and do provide a full and fair opportunity for litigation of an issue[.]" Hennessey v. Winslow Twp., 183 N.J. 593, 600 (2005); Winters, supra, 212 N.J. at 87. Given that important function, the decisions made by administrative tribunals on the same matters which are thereafter presented to a court may trigger application of the doctrine of issue preclusion, otherwise known as collateral estoppel. Winters, supra, 212 N.J. at 85; see also Restatement (Second) of Judgments 27 (1982). Under that doctrine, the first determination made by the initial forum can bind the parties in a subsequent proceeding in a different forum. See Winters, supra, 212 N.J. at 85. Such preclusive treatment promotes many societal values, including "finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness." Hennessey, supra, 183 N.J. at 599; Winters, supra, 212 N.J. at 85; Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522 (2006).

In order for such preclusion to result from an administrative tribunal's decision, the tribunal must have afforded the parties with "'significant procedural and substantive safeguards,'" comparable to those accorded to litigants in the courts. Winters, supra, 212 N.J. at 87 (quoting Olivieri, supra, 186 N.J. at 524); see also Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 369 (App. Div. 1994), certif. denied, 142 N.J. 446 (1995). The formalized administrative processes for investigating and resolving complaints filed with the DCR3 are designed to provide such fairness, both to complainants and the respondents alike. Indeed, plaintiff does not contend that the DCR's procedures are institutionally deficient.

The statute which created the DCR, i.e., the LAD, specifies that the processes authorized by that law "shall, while pending, be exclusive[.]" N.J.S.A. 10:5-27. Furthermore, a "final determination therein shall exclude any other action, civil or criminal, based upon the same grievance of the individual concerned." Ibid.

In considering here whether the DCR's findings of a lack of retaliation should have preclusive impact upon plaintiff's subsequently-pleaded claims of retaliation under CEPA, the Court's recent opinion in Winters is instructive. Winters, like plaintiff in this case, was a government employee, specifically a firefighter. Winters, supra, 183 N.J. at 74. Also like plaintiff, Winters was disciplined on multiple occasions by his employer, culminating with his discharge for an alleged abuse of his sick leave. Id. at 78-80. Similar to plaintiff, Winters maintained that the discipline was unjustified, comprising an illegal attempt by his employer to retaliate against him for engaging in certain protected conduct. Id. at 81. In particular, Winters asserted that the retaliation was for his reporting of various acts of alleged impropriety occurring in the fire department, culminating in the death of a fellow firefighter. Ibid.

After Winters objected to his discharge, the dispute was presented to the Civil Service Commission. Id. at 80. The employer moved for partial summary decision, which was granted by an administrative law judge and sustained by the Commission. Id. at 81. Both the judge and the Commission found ample factual justification to warrant the discipline imposed upon Winters, including his proven abuse of sick leave. Ibid.

Apparently for strategic reasons, Winters elected not to present all of the supposed evidence of his employer's retaliation in his defense before the Commission. Id. at 88. After losing in the Commission, Winters then filed a CEPA action in the Law Division, claiming that he had been the victim of retaliation by his employer stemming from his whistle-blowing activities. Id. at 82.

Presented with these circumstances subsequently on appeal, the Supreme Court concluded that Winters was precluded from bringing a CEPA action alleging retaliatory conduct because the Commission had already concluded that the discipline his employer had imposed upon him was justified. Id. at 88. The Court recognized that retaliation was "a central theme" of his position before the Commission, regardless of his tactic of "throttling back" on that theme after having initially raised it. Id. at 88. The Court was satisfied that "retaliation was necessarily considered, and decided, as part of the [agency's] overall determination." Id. at 92. Consequently, the Court held that Winters was estopped from proceeding with his CEPA claim in the Law Division, "[i]n the interest of promoting the public interest in finality and consistency in judicial and quasi-judicial proceedings involving the same transaction[.]" Ibid. In doing so, the Court acknowledged the important remedial policies underlying CEPA, but nevertheless ruled that those policies do not justify the re-litigation of retaliation issues in two successive proceedings before two different tribunals. Id. at 88-89. "No efficient and respected system of justice can permit the spectacle, and resulting disrepute, of inconsistent litigated matters involving the same transactional set of facts[.]" Id. at 72-73. "The public will neither understand nor appreciate the confounding wastefulness of such a result[.]" Id. at 73.

These principles similarly justify the dismissal of plaintiff's CEPA lawsuit. Not only were her allegations of retaliation already considered and found wanting by the DCR, but plaintiff herself affirmatively chose to place issues of retaliation before that agency. The impetus for preclusion therefore is even stronger here than in Winters, for unlike Winters, plaintiff pressed her contentions of retaliation, without reservation, in the prior administrative forum.

Plaintiff's factual contentions of retaliation that she placed before the DCR substantially and inextricably overlap with the allegations of retaliation that she thereafter set forth in her amended Law Division complaint. She still complains, for instance, that her employer treated her disparately, denied her an upgraded computer and subjected her to discipline, without any justification but rather as a means of reprisal. We recognize that plaintiff has now amplified and updated her allegations to include several other specific acts of retaliation, but the overlap remains very substantial. We discern no reason to afford plaintiff a "second bite at the apple" that the Court similarly denied to the CEPA plaintiff in Winters. Id. at 88.

We are mindful that plaintiff has now couched her claims of retaliation as having been triggered by her alleged acts of whistleblowing, instead of her act of filing an internal complaint alleging nationality-based4 discrimination. Despite the reformulation of her pleadings, plaintiff cannot escape the conclusive fact that the DCR not only rejected her claims of nationality-based discriminatory animus, but also specifically found that her employer had legitimate reasons for assigning new computers first to other workers, giving her poor reviews, disciplining her, and so on. These findings, which plaintiff never appealed, should not be disturbed in this collateral proceeding.

Nor is it important to the analysis that the DCR lacks jurisdiction over CEPA claims. The Civil Service Commission likewise is not a forum for filing CEPA claims, yet that did not bear upon the Court's ruling in Winters that barred his CEPA action after the Commission had upheld the bona fides of the employer's actions. As the Court in Winters rightly acknowledged, such duplicative litigation is to be discouraged, regardless of the important public policies set forth in CEPA. Id. at 88-89.

The trial court's recognition that plaintiff should not be allowed to relitigate the retaliation issues was therefore appropriate. Although the motion judge incorrectly alluded in his oral decision to the "waiver" provision in CEPA, N.J.S.A. 34:19-8, the fundamental logic of his rationale is a sound one: that plaintiff should not be permitted to bring successive overlapping claims of retaliation in multiple proceedings, in the hopes that eventually one of those tribunals will attain an opposite result. Winters clearly instructs that such repetitive filings cannot be condoned.

Because the dismissal of plaintiff's lawsuit was warranted by Winters, we need not reach the statute-of-limitations issues, and any other points raised on appeal.


1 The report also made various other discrete findings relating to the lack of sufficient proof that plaintiff had been discriminated against because of her national origin.

2 Although the appeal was clearly untimely, this court granted plaintiff leave to file it out of time. Defendants do not seek in their brief to revisit that determination.

3 The Legislature created the DCR to administer and enforce the State's civil rights laws. See N.J.S.A. 10:5-6. The Division has authority and experience in investigating and determining the presence or absence of violations of our State's anti-discrimination statutes. See, e.g., Hermann v. Fairleigh Dickinson Univ., 183 N.J. Super. 500, 503-05 (App. Div.), certif. denied, 91 N.J. 573 (1982); Sprague v. Glassboro State Coll., 161 N.J. Super. 218, 226 (App. Div. 1978). The agency's delegated functions include determining if there is probable cause strong enough "to warrant a cautious person in the belief that the [anti-discrimination law] has been violated[.]" N.J.A.C. 13:4-10.2(b).

After the DCR conducts an investigation, its Director must determine whether probable cause of discriminatory conduct exists. N.J.A.C. 13:4-10.2(a). If the DCR Director finds such probable cause, and conciliation does not eliminate the alleged discrimination or the Director determines conciliation would not be feasible, then the Director shall order a hearing. N.J.A.C. 13:4-11.1(b). Following such a hearing, if the Director concludes that discrimination occurred, then the Director has several remedial options at his or her disposal, including the issuance of a cease-and-desist order, N.J.S.A. 10:5-17; an award of treble damages, ibid.; counsel fees, N.J.S.A. 10:5-27.1; and statutory penalties, N.J.S.A. 10:5-14.1a.


4 Plaintiff appears to have abandoned her original additional claim of gender-based discrimination.

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