LYNDERIA MANSFIELD v. NEWARK PUBLIC SCHOOLS

NOT FOR PUBLICATION WITHOUT THE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-1704-16T1


LYNDERIA MANSFIELD,

        Plaintiff-Appellant,

v.

NEWARK PUBLIC SCHOOLS, a
corporation or business
organization or body politic,

        Defendant-Respondent,

and

ROGER LEON, MR. CEPERO a/k/a
ARMANDO CEPERO, DR. KARR, MRS.
MILLER a/k/a SHAKIRAH C.
MILLER-HARRINGTON, and MICHELLE
TAKYI a/k/a MS. TAKYI,

     Defendants.
___________________________________

              Submitted October 30, 2017 – Decided December 8, 2017

              Before Judges Ostrer, Whipple, and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-1588-
              16.

              Freeman & Bass, PA, attorneys for appellant
              (Randall Bass, on the brief).
          Adams Gutierrez & Lattiboudere, LLC, attorneys
          for respondent (Jerrold J. Wohlgemuth, of
          counsel and on the brief; Leslie F. Prentice,
          on the brief).

PER CURIAM

     Plaintiff appeals from a November 18, 2016 order dismissing

her complaint with prejudice for failure to state a claim under

Rule 4:6-2(e).    We affirm.

     Plaintiff worked for the Newark Public School District (the

District) as a tenured teacher until the 2015-2016 school year.

In February 2016, the District brought charges against plaintiff

under the Tenure Employees Hearing Law, 
N.J.S.A. 18A:6-10 to -

18.1, seeking her dismissal for inefficiency, conduct unbecoming,

or good cause following an investigation on charges that plaintiff

had engaged in inappropriate physical contact and abusive behavior

towards students. The charges were certified, pursuant to 
N.J.S.A.

18A:6-11, to the Commissioner of Education, who referred the matter

to arbitration.

     During the arbitration proceeding, the District produced

witnesses who testified about plaintiff's conduct.        The arbitrator

found   their    testimony   credible,   supported   by   corroborating

evidence, and sufficient to satisfy the District's burden.        Though

plaintiff testified on her own behalf, she produced no credible

evidence to rebut the witness testimony.


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       As affirmative defenses to the tenure charges, plaintiff

asserted retaliation and denial of her due process rights.                          She

argued the District was retaliating against her and attempting to

re-litigate      previously     dismissed          charges      from   2013.         The

arbitrator rejected those arguments, stating "regardless of the

2013 charges or arbitration outcome . . . no one can be immune to

or immunized against fresh charges[.]"                   Furthermore, he found,

"there was no evidence or proof of retaliation."

       The   arbitrator    determined        the    District      proved     its    case

against      plaintiff   for   conduct       unbecoming       and   terminated      her

employment with the District.         In March 2016, plaintiff filed an

order to show cause in the Chancery Division, seeking to vacate

the   arbitration    award.      On   April        3,   2016,    the   court    denied

plaintiff's motion to vacate and confirmed the award.

       During the pendency of the tenure proceedings, and prior to

Chancery Division order, plaintiff filed a complaint1 alleging

violations of the New Jersey Law Against Discrimination, 
N.J.S.A.

10:5-1 to -49 (LAD), violations of public policy, breach of

contract, wrongful attempted discharge, tortious interference with

an    employment    contract,    retaliation,           and     violations     of   due


1
   The District moved to dismiss plaintiff's initial complaint,
and on August 4, 2016, the court denied the District's motion
without prejudice and permitted plaintiff to file an amended
complaint.

                                         3                                     A-1704-16T1
process.      The   District     moved    to   dismiss    plaintiff's     amended

complaint for failure to state a claim pursuant to Rule 4:6-2(e).

     On November 18, 2016, the court granted the District's motion,

relying upon Shepherd v. Hunterdon Development Center, 
174 N.J.
 1, 26 (2002), for the proposition that an employer's filing of a

disciplinary action alone cannot sustain a discrimination claim

under the LAD.      Moreover, the court found because the arbitrator

had considered the evidence presented and found no pre-textual

reason for the District's action, dismissal of the LAD claim

preempted plaintiff's common law claims.               Lastly, the court found

collateral    estoppel    barred       plaintiff's     claims    of   retaliatory

discharge    and    violations    of     her   due   process    rights,   because

plaintiff     unsuccessfully      raised       those   arguments      before   the

arbitrator.    This appeal followed.

     We review an order granting a motion to dismiss de novo.

Castello v. Wohler, 
446 N.J. Super. 1, 14 (App. Div.), certif.

denied, 
228 N.J. 39 (2016).            A motion to dismiss a complaint for

failure to state a cause of action must be denied if, giving

plaintiff the benefit of all her allegations and all favorable

inferences, a cause of action has been made out.                R. 4:6-2(e); see

Burg v. State, 
147 N.J. Super. 316, 319-20 (App. Div.), certif.

denied, 
75 N.J. 11 (1977).         Based upon our review of the record,

we discern no error by the motion judge.

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       In   Shepherd,    our    Supreme       Court    held    "without     more,       an

employer's filing of a disciplinary action cannot form the basis

of    an    LAD   complaint."      Shepherd,          supra,   
174 N.J.    at       26.

Plaintiff's complaint sets forth no facts supporting her claim she

was   subjected     to   a   hostile   work      environment,        and    no     other

allegations except that her employment contract was terminated,

an action upheld by the arbitrator and confirmed by the court.

       Moreover, decisions by an arbitrator are "given collateral

estoppel effect by reviewing courts."                  Barcon Assocs., Inc. v.

Tri-County Asphalt Corp., 
86 N.J. 179, 187 (1981) (citing Ukrainian

National Urban Renewal Corp. v. Muscarelle, Inc., 
151 N.J. Super.
 386, 398 (App. Div.), certif. denied, 
75 N.J. 529 (1977)).                            The

decision of the arbitrator is "subject to judicial review limited

to the narrow grounds of arbitrator partiality or corruption,

fraud, undue means, conduct prejudicial to the rights of a party

or failure to make a 'mutual, final and definite award,' or

'evident' mistakes by the arbitrators."                 Id. at 187-88; 
N.J.S.A.

2A:24-8; 
N.J.S.A. 2A:24-9.

       The record herein is devoid of allegations of partiality,

corruption, fraud, or conduct unbecoming by the arbitrator or that

the arbitrator made an "evident miscalculation."                       Thus, under

Shepherd, and with the preclusive effect of the arbitrator's

findings under Barcon, plaintiff's termination does not satisfy

                                          5                                      A-1704-16T1
the elements of a discriminatory discharge claim, and dismissal

of the claims under the LAD for failure to state a claim was

appropriate.

     We review the dismissal of the common law claims asserted in

plaintiff's    complaint     under       the   same   plenary     standard.

"[S]upplementary common law causes of action may not go to the

jury when a statutory remedy under the LAD exists."             Catalane v.

Gilian Instrument Corp., 
271 N.J. Super. 476, 492 (App. Div.),

certif. denied, 
136 N.J. 298 (1994).           Thus, common law claims of

employment discrimination in violation of public policy do not

continue.   See ibid.; Bosshard v. Hackensack Univ. Med. Ctr., 
345 N.J. Super. 78, 90 (App. Div. 2001).           If a claim "does not 'seek

to vindicate interests independent of those protected by the

LAD[,]' it is barred."     A.D.P. v. ExxonMobil Research & Eng'g Co.,


428 N.J. Super. 518, 545 (App. Div. 2012) (quoting Bosshard, supra,


345 N.J. Super. at 90).

     Throughout the complaint, plaintiff's alleged damages stem

from the same conduct by the District, during the same time period.

Plaintiff seeks the same remedy for each count, namely, "judgment

against the defendants . . . for money damages together with costs

of suit."      Thus, because plaintiff's LAD claims failed, her

additional common law claims were properly dismissed as preempted.

Catalane, supra, 
271 N.J. Super. at 492.

                                     6                              A-1704-16T1
    Plaintiff argues the motion judge erred in determining her

retaliation    and   due   process   rights      claims   were    collaterally

estopped.    The doctrine of collateral estoppel "bars relitigation

of issues previously litigated and determined adversely to the

party against whom [it] is asserted."             Barker v. Brinegar, 
346 N.J. Super. 558, 566 (App. Div. 2002) (quoting Kortenhaus v. Eli

Lilly   &   Co.,   
228 N.J.    Super.   162,    164   (App.    Div.    1988)).

Plaintiff's   retaliatory       discharge   claim   was   fully    and    fairly

litigated in a proceeding where she received the benefit of

"'significant procedural and substantive safeguards,' similar to

those that are provided to litigants in courts of law."                  Winters

v. N. Hudson Reg'l Fire & Rescue, 
212 N.J. 67, 87 (2012) (quoting

Olivieri v. Y.M.F. Carpet, Inc., 
186 N.J. 511, 524 (2006)).

    All additional arguments introduced by plaintiff are without

sufficient merit to warrant discussion in a written opinion.                    R.

2:11-3(e)(1)(E).

    Affirmed.




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