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ROBERT SCOULER,
Appellant, v. CITY OF CAMDEN, Respondent. A-4512-98T5 SUPERIOR COURT OF NEW
JERSEY, APPELLATE DIVISION 332 N.J. Super. 69;
752 A.2d 828; 2000 N.J. Super. LEXIS 237; 16 I.E.R. Cas. (BNA) 707 May 2, 2000, Submitted June 15, 2000, Decided SUBSEQUENT HISTORY: [*1] Approved for Publication June 15, 2000. PRIOR HISTORY: On appeal from New Jersey Department of Personnel,
Merit System Board. COUNSEL:
Law Offices of Igor Sturm, attorneys for appellant (William C.
MacMillan, on the brief). John A. Misci, Jr., City Attorney, attorney for respondent (Lloyd
D. Henderson, Assistant City Attorney, on the brief). John J. Farmer, Jr.,
Attorney General, filed a statement in lieu of brief on behalf of the Merit
System Board (Elizabeth M. Laufer, Deputy Attorney General, on the statement). JUDGES:
Before Judges Skillman, D’Annunzio and Fall. The opinion of the
court was delivered by SKILLMAN, P.J.A.D. OPINIONBY:
SKILLMAN OPINION:
The opinion of the court was delivered by SKILLMAN, P.J.A.D. The Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1
to -8, includes a provision that “the institution of an action [under
CEPA] shall be deemed a waiver of the rights and remedies available under any
other contract, collective bargaining agreement, State law, rule or regulation
or under the common law.” N.J.S.A. 34:19-8. [*2]
The Merit System Board (Board) held that this provision precludes a
career civil service employee who has filed a CEPA action against his employer
from appealing to the Board from a disciplinary action that is also one of the
grounds of the employee’s CEPA claim. We conclude that a career civil
service employee who has filed a CEPA action is not precluded from appealing a
disciplinary action to the Board simply because the employee alleges that his
employer instituted disciplinary charges against him for the same retaliatory
reasons alleged in the CEPA action. Appellant Robert Scouler is employed by respondent City of Camden
(City) in the career civil service position of construction official. On
November 24, 1997, the City served Scouler with a preliminary notice of
disciplinary action for insubordination, neglect of duty and misuse of public
property. The notice indicated that the alleged insubordination consisted of Scouler
ignoring repeated requests by the Director of Development and Planning for
information and reports, and that the alleged neglect of duty consisted of
Scouler’s failure to produce and deliver monthly reports. At a
departmental hearing, the charge of misuse of [*3]
public property was dismissed, but Scouler was found guilty of
insubordination and neglect of duty, and suspended for thirty days. Scouler
appealed this disciplinary action to the Board, which referred the matter to
the Office of Administrative Law (OAL). While Scouler’s civil service appeal was still pending,
he filed an action in the Superior Court against the City and various City
officials, alleging that they had retaliated against him, in violation of CEPA,
because he had objected to and refused to participate in violations of the
Uniform Construction Code and other laws and had reported those violations to
the Department of Community Affairs. One of the retaliatory acts alleged in
Scouler’s CEPA complaint was the City’s disciplinary action
that was the subject of his appeal to the Board. n1 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n1 Scouler also alleged that defendants had retaliated against him
by undertaking to eliminate his position by “privatizing” his
job responsibilities and by a course of “threatening, intimidation,
hostile, abusive and humiliating” conduct. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*4] Subsequently, an Administrative Law Judge (ALJ), relying upon
N.J.S.A. 34:19-8, issued a recommended initial decision which concluded that “where
. . . a civil service employee elects to file a superior court complaint
against the appointing authority, citing the CEPA and involving the same or
substantially the same issues as are involved in the civil service case, . . .
the CEPA action is the exclusive means of determination of the parties’
rights and duties and a civil service administrative case involving the same
subject matter must be dismissed.” The Board adopted this recommended
decision and dismissed Scouler’s appeal of the thirty-day suspension
imposed upon him by the City. Scouler appeals the dismissal of his civil
service disciplinary appeal, and we now reverse. In Young v. Schering Corp., 141 N.J. 16, 660
A.2d 1153 (1995), the Supreme Court addressed the scope of the CEPA waiver
provision involved in this appeal. The issue in Young was whether this
provision precludes an employee who has filed a CEPA action from pursuing not
only related common-law claims but also other claims that are substantially
independent of the retaliation [*5] claim. The Court found that the purpose
of the waiver provision is solely to “prevent an employee from
pursuing both statutory and common-law retaliatory discharge causes of action”
based on the same operative facts. Id. at 27. For this
reason, the Court rejected “the overly literal reading of the waiver
provision urged by defendants,” id. at 25, and decided
that this provision should be construed “narrowly,” id. at 27.
Accordingly, the Court held that “the waiver provision applies only to
those causes of action that require a finding of retaliatory conduct that is
actionable under CEPA.” Young, 141 N.J. at 29. The civil service disciplinary action instituted by the City
against Scouler does not involve a “cause[] of action that requires a
finding of retaliatory conduct that is actionable under CEPA.” Scouler
is a permanent employee in the career civil service. n2 The City may suspend or
take other disciplinary action against such an employee only for neglect of
duty or other good cause. N.J.A.C. 4A:2-2.3. The Civil Service Act entitles a
career civil service employee to a departmental hearing before the employer can
impose [*6] a suspension of more than five days,
N.J.S.A. 11A:2-13, and if the employer sustains a disciplinary charge at a
departmental hearing, the employee is entitled to appeal to the Board, N.J.S.A.
11A:2-14, which may refer the matter for a hearing before an ALJ in accordance
with N.J.A.C. 4A:2-2.9(b). At that hearing, the employer has the burden of
proving that the employee is guilty of misconduct warranting disciplinary
action. N.J.S.A. 11A:2-21. Moreover, if the Board concludes that the charge has
been sustained, it must make a de novo determination of the appropriate
disciplinary action. Henry v. Rahway State Prison, 81 N.J.
571, 576-80, 410 A.2d 686 (1980). Thus, the “cause of action”
at a civil service disciplinary hearing is not the employee’s claim
that the employer has taken “retaliatory action,” but rather the
employer’s claim that the employee was guilty of misconduct. Any claim
that the disciplinary charge was brought in retaliation for conduct protected
by CEPA is solely a matter of defense, which the employee has no burden to
prove in order to be exonerated. Therefore, the CEPA [*7] waiver
provision does not preclude a career civil service employee who has filed a
CEPA action from appealing a disciplinary charge to the Board simply because
the employee alleges that the charge was instituted for the same retaliatory
reasons alleged in the CEPA action. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n2 Only a career civil service employee has the right to appeal a
disciplinary action to the Board. N.J.S.A. 11A:2-6; N.J.A.C. 4A:2-2.1(a). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Furthermore, the CEPA waiver provision does not require the
exclusion of evidence of retaliation in a civil service disciplinary hearing.
N.J.S.A. 34:19-8 was only intended “to curtail essentially cumulative
remedial actions.” Young, supra, 141 N.J. at 27. It
is not an evidentiary rule which requires exclusion of evidence with obvious
probative value. When an employee denies the factual allegations underlying a
disciplinary charge, the ALJ must weigh the credibility of the employer’s
allegations of misconduct, which frequently consist of a supervisor’s [*8] testimony, against the employee’s
denials. In making this credibility determination, one obvious consideration is
whether the supervisor may have had a motive other than the faithful
performance of his public duties for filing the charge and testifying against
the employee. Consequently, if N.J.S.A. 34:19-8 were construed to preclude an
employee who had filed a CEPA action from presenting evidence of retaliation at
a civil service disciplinary hearing, it could result in the exclusion of
evidence critical to a fair and reliable evaluation of the credibility of the
witnesses testifying in support of the charge. We also note that neither N.J.S.A. 34:19-8 nor any other section
of CEPA precludes an employee who alleges a retaliatory motive for the
institution of a civil service disciplinary charge from subsequently filing a
CEPA action. Thus, if the OAL had scheduled a hearing on Scouler’s
civil service appeal prior to the expiration of the one-year period for filing
a CEPA action, see N.J.S.A. 34:19-5, Scouler could have pursued his civil
service appeal, and presented evidence of the City’s alleged
retaliatory [*9] motive for bringing the disciplinary
charges, and then initiated a CEPA action after the civil service appeal was
concluded. An employee’s right to appeal a disciplinary charge and
present evidence of retaliation in defense of the charge should not turn on the
fortuitous circumstance of whether the OAL and Board complete the proceedings
in a civil service disciplinary appeal before expiration of the limitations
period for filing a CEPA action. Therefore, consistent with the intent of
N.J.S.A. 34:19-8 to only “prevent an employee from pursuing both
statutory and common-law retaliatory discharge causes of action,”
Young, supra, 141 N.J. at 27, we conclude that a career civil service employee
who files a CEPA action is not precluded from pursuing an appeal of a related
disciplinary charge to the Board, and that the employee may present evidence of
retaliation at the hearing on the charge. Accordingly, the Board’s decision dismissing Scouler’s
appeal is reversed and the case is remanded for a hearing on the merits. |