NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0473-18T3
JOSEPH DIBUONAVENTURA,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
January 31, 2020 v. APPELLATE DIVISION WASHINGTON TOWNSHIP, ROBERT SMITH, and RAFEAL MUNIZ, in their individual and official capacities,
Defendants-Respondents. ____________________________
Argued December 10, 2019 – Decided January 31, 2020
Before Judges Accurso, Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1435-13.
Jacqueline M. Vigilante argued the cause for appellant (The Vigilante Law Firm, PC, attorneys; Jacqueline M. Vigilante and Kelly Anne Hicks, on the briefs).
Patrick Joseph Madden argued the cause for respondents Washington Township and Rafael Muniz (Mark William Strasle, on the brief).
The opinion of the court was delivered by
GILSON, J.A.D. Plaintiff Joseph DiBuonaventura is a former Washington Township police
officer who was terminated for misconduct. He appeals from orders granting
summary judgment to defendants, the Township and two Township officials,
and dismissing with prejudice his claims alleging violations of his constitutional
equal protection rights and the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14. He also appeals from an order denying his motion for
partial summary judgment on his CEPA claims.
We conclude that our state constitution should be construed consistent
with the federal constitution in that a "class-of-one" equal protection claim
cannot be asserted by a public employee. See Engquist v. Oregon Dep't of
Agric., 553 U.S. 591, 594 (2008). Accordingly, we affirm the dismissal of
plaintiff's equal protection claim. We also affirm the dismissal of plaintiff's
CEPA claims because those claims were precluded when he asserted retaliation
as a defense in the administrative proceedings upholding his termination.
Therefore, plaintiff cannot relitigate the retaliation issue in a CEPA action. See
Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67 (2012).
I.
A-0473-18T3 2 We take the facts from the summary judgment record, viewing them in the
light most favorable to plaintiff. Plaintiff was a police officer in Washington
Township in Gloucester County.
In 2011 and 2012, plaintiff made several complaints about the conduct of
the Washington Township Police Department and the chief of police, Rafael
Muniz. During that same period of time, plaintiff engaged in activities that
resulted in his suspension and termination as a police officer.
Plaintiff's complaints about the police department and its chief focused on
two events. First, plaintiff complained about an alleged ticket-fixing incident
related to a traffic stop he made on September 11, 2011. On that date, plaintiff
issued a motorist two tickets for driving with an expired registration and license.
In November 2011, plaintiff filed an internal affairs complaint with the police
department after he learned that the tickets had been dismissed and the motorist
was a relative of a Township police captain. In February 2012, plaintiff was
informed that Internal Affairs had conducted an investigation but had concluded
that plaintiff's allegations of ticket-fixing were unfounded.
Plaintiff's second complaint concerned Chief Muniz and his alleged
activities to prevent a close relative from being arrested and criminally charged
for theft. Plaintiff contended that in April 2012, he learned that an adult relative
A-0473-18T3 3 of Chief Muniz was caught stealing approximately $7000 in jewelry from a
home in Washington Township. According to plaintiff, the investigation was
manipulated so that the chief's relative was never arrested or charged with any
crime. In June 2012, plaintiff reported the incident to the Township's Business
Administrator. In August 2012, he filed a complaint concerning the incident
with the Gloucester County Prosecutor's Office, which later determined that
plaintiff's allegations were unfounded.
Plaintiff's suspension and termination arose out of a motor vehicle stop on
July 31, 2012. On that day, plaintiff stopped a motor vehicle driven by
Assemblyman Paul Moriarty, who was the former Mayor of Washington
Township. Plaintiff arrested Moriarty and charged him with driving while under
the influence (DUI), N.J.S.A. 39:4-50, refusal to submit to an alcohol breath
test, N.J.S.A. 39:4-50.4(a), and improper lane change, N.J.S.A. 39:4-88.
Moriarty strongly disputed the charges and filed an internal affairs complaint
and a criminal complaint against plaintiff. In November 2012, plaintiff was
suspended without pay from his position as a police officer. Thereafter, he was
indicted on criminal charges related to the arrest and ticketing of Moriarty, but
in March 2015, a jury acquitted plaintiff of all criminal charges.
A-0473-18T3 4 Following his criminal acquittal, the Township's police department
conducted an internal affairs investigation of plaintiff's conduct and continued
his suspension. In April and May 2015, plaintiff was charged with misconduct
for two separate matters. First, he was charged with misconduct related to his
stop and arrest of Moriarty. Specifically, plaintiff was charged with making
false statements and omitting material facts about the stop and about his prior
encounters with Moriarty. Second, he was charged with falsely reporting that
he issued numerous warnings for motor vehicle violations. An investigation
found that those warnings were never given to the motorists. The false reports
allegedly occurred between May 2012 and October 2012.
Based on those misconduct charges, the Township sought to fire plaintiff.
In accordance with his rights as an employee of a non-civil service jurisdiction,
plaintiff sought an administrative disciplinary hearing before a neutral hearing
officer. N.J.S.A. 40A:14-150. Evidentiary hearings on both misconduct charges
were conducted, and the hearing officer found plaintiff guilty of the charges.
Regarding the charges related to the Moriarty stop and arrest, the hearing officer
found that plaintiff had falsified his arrest reports and lied about his prior
encounters with Moriarty. Concerning the charges of reporting fictitious
warnings, the hearing officer also found plaintiff guilty of misconduct.
A-0473-18T3 5 Accordingly, the hearing officer upheld plaintiff's termination as a police
officer.
As was his right in connection with his disciplinary remedies, plaintiff
sought review by a Superior Court judge. N.J.S.A. 40A:14-150. Following oral
argument, the Law Division judge conducted a de novo review of the extensive
administrative record and issued a sixty-one-page written decision finding
plaintiff had engaged in misconduct and upholding plaintiff's termination. The
Law Division judge based the termination decision on plaintiff's misconduct
concerning the Moriarty stop and arrest and held that, taken on their own, the
fictitious warnings did not warrant termination. In assessing the fictitious
warning case, the Law Division judge also considered plaintiff's disparate
treatment argument that another police officer who had also issued fictitious
warnings had only received a one-day suspension. The Law Division judge
rejected that as a viable defense and noted that the disparate treatment argument
was only relevant to the issue of the appropriate discipline.
Plaintiff appealed from the Law Division order, but we rejected his
arguments and affirmed that order in an unpublished opinion. DiBuonaventura
v. Washington Twp., No. A-2212-17 (App. Div. Mar. 25, 2019).
A-0473-18T3 6 Meanwhile, in October 2013, before the disciplinary charges were filed,
plaintiff filed this action against the Township, Chief Muniz, and the Township's
Business Administrator. In his complaint, which was later amended, he alleges
violations of his equal protection rights and of CEPA. 1 The complaint also
alleged common law slander, libel, and defamation. Those common law claims,
however, were dismissed and plaintiff is not appealing from those dismissals.
The parties to the civil action engaged in and completed discovery.
Defendants then moved for summary judgment, contending that plaintiff did not
have a viable equal protection claim because such claims were not available to
public employees. See Engquist, 553 U.S. at 594. Defendants also argued that
plaintiff's CEPA claims were precluded under principles of collateral estoppel
as applied by our Supreme Court in Winters. In response, plaintiff opposed
defendant's motions and cross-moved for partial summary judgment contending
that he had established a prima facie case under CEPA.
The trial court heard oral argument and, on September 4, 2018, issued
orders (1) granting summary judgment to defendants and dismissing with
prejudice plaintiff's constitutional and CEPA claims; (2) denying plaintiff's
1 Plaintiff only provided us with the second amended complaint and the record does not include the original complaint. A-0473-18T3 7 cross-motion for partial summary judgment on his CEPA claims; and (3)
granting summary judgment to defendants and dismissing with prejudice
plaintiff's slander, libel, and defamation claims.
The trial court explained the reasons for its ruling in a seventeen-page
written opinion issued with its orders. The court adopted the reasoning of the
United States Supreme Court in Engquist and held that a class-of-one equal
protection claim is not available in the public employment context. The court
also found that plaintiff raised retaliation as a defense in the administrative
disciplinary proceedings and, therefore, was estopped from relitigating the
retaliation issue in his CEPA action. In that regard, the trial court found that our
Supreme Court's decision in Winters controlled. The trial court also went on to
evaluate the merits of plaintiff's CEPA claim. The court found that plaintiff had
not established a prima facie case under CEPA because the Township had
established that it had terminated plaintiff for misconduct.
Plaintiff now appeals from the orders granting summary judgment to
defendants, dismissing his constitutional and CEPA claims, and denying him
partial summary judgment on his CEPA claims. As already noted, plaintiff is
not appealing the order dismissing his claims of slander, libel, and defamation.
A-0473-18T3 8 II.
On appeal, plaintiff raises three arguments. He contends that the trial
court erred in (1) granting summary judgment and dismissing his class-of-one
equal protection claim; (2) granting summary judgment and dismissing his
CEPA claims; and (3) denying his motion for partial summary judgment as to
his prima facie case under CEPA. We are not persuaded by any of these
arguments. We analyze his constitutional equal protection claim and then his
CEPA claims. Because we conclude that plaintiff is estopped from relitigating
his retaliation claims, we need not reach plaintiff's contention that he established
a prima facie case under CEPA.
Initially, we identify our scope of review. We review a grant of summary
judgment de novo, using the same standard that governed the trial court's
decision. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018)
(citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Summary judgment will be
granted when "the evidential materials submitted by the parties," viewed in the
light most favorable to the non-moving party, show that there are no "genuine
issues of material fact," and that "the moving party is entitled to summary
judgment as a matter of law." Grande v. Saint Claire's Health Sys., 230 N.J. 1,
23-24 (2017) (quoting Bhagat, 217 N.J. at 38); accord R. 4:46-2(c).
A-0473-18T3 9 A. Plaintiff's Class-of-One Equal Protection Claim
In count one of his complaint, plaintiff asserts that defendant Muniz
violated his equal protection rights under the New Jersey Constitution. In that
regard, plaintiff contends that while he is not part of a protected class, he was
treated differently from other police officers in retaliation for his "protected"
activities.
In some circumstances, an equal protection claim can be asserted even
when the plaintiff has not alleged discrimination on the basis of membership in
a protected class. Engquist, 553 U.S. at 598. Such "class-of-one" claims require
that a plaintiff show that he or she was (1) intentionally treated differently from
other people who are similarly situated, and (2) there is no rational basis for the
difference in treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000); accord Paul Kimball Hosp., Inc. v. Brick Twp. Hosp., Inc., 86 N.J. 429,
448 (1981); Radiation Data, Inc. v. N.J. Dep't of Envtl. Prot., 456 N.J. Super.
550, 562 (App. Div. 2018).
Plaintiff concedes, as he must, that the United State Supreme Court has
ruled that Fourteenth Amendment class-of-one claims do not apply to public
employment. Engquist, 553 U.S. at 594. In Engquist, the Court interpreted the
equal protection clause of the federal Constitution, as applied to the states
A-0473-18T3 10 through the Fourteenth Amendment, and held that a public employee cannot
state a claim under the Equal Protection Clause by alleging that she was fired
from her job for arbitrary and malicious reasons that essentially singled her out
as a class-of-one. Ibid. Specifically, plaintiff argued that she was denied a
promotion, and ultimately laid-off because of a grudge held by a supervisor.
Ibid. The Court reasoned that the Equal Protection Clause is not implicated in
circumstances where "government employers are alleged to have made an
individualized, subjective personnel decision in a seemingly arbitrary or
irrational manner." Id. at 605. The Court went on to reason that the class-of-
one theory of equal protection is simply a "poor fit in the public empl oyment
context" and that to treat employees differently is not to "classify them in a way
that raises equal protection concerns," but rather is "simply to exercise the broad
discretion that typically characterizes the employer-employee relationship."
Ibid.
Plaintiff argues that New Jersey should adopt a different rule when
applying the equal protection concepts embodied in New Jersey's Constitution.
See N.J. Const. art. I, ¶ 1. In making that argument, plaintiff cites to our
Supreme Court's decision in Greenberg v. Kimmelmann, 99 N.J. 552 (1985). In
Greenberg, the Court stated, that in certain circumstances, "analysis of
A-0473-18T3 11 fundamental rights under the New Jersey Constitution differs from analysis of
those rights under the United States Constitution." Id. at 567. Neither our
Supreme Court nor this court has yet to address in a published opinion whether
New Jersey will apply the Engquist holding to the equal protection concepts
protected by New Jersey's Constitution.
Contrary to plaintiff's contention, we perceive no need, and indeed a
substantial downside to adopting under the New Jersey Constitution the class -
of-one theory. As the United States Supreme Court held under the federal
Constitution, we hold under the New Jersey Constitution that the class-of-one
theory is a "poor fit" for analyzing public employment decisions. See Engquist,
553 U.S. at 605. Our Legislature has enacted a comprehensive umbrella of
protections for public employees, including the review of public employee
disciplinary decisions by a Superior Court judge or the Civil Service
Commission. See N.J.S.A. 40A:14-150; N.J.S.A. 11A:2-6. In addition, CEPA,
the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and
public employee union contracts all serve to protect the interests of public
employees in fair treatment.
Constitutionalizing employee grievances would interfere with the
discretion required when the government acts as an employer. As Chief Justice
A-0473-18T3 12 Roberts explained in Engquist, recognizing the sort of claim plaintiff presses
"could jeopardize the delicate balance governments have struck between the
rights of public employees and 'the government's legitimate purpose in
promot[ing] efficiency and integrity in the discharge of official duties, and [in]
maintain[ing] proper discipline in the public service.'" 553 U.S. at 607
(alterations in original) (quoting Connick v. Myers, 461 U.S. 138, 150-51
(1983)).
Moreover, the complaint that plaintiff seeks to redress – alleged unequal
treatment – is better addressed as a question of progressive discipline in the
employee grievance proceedings. In other words, if, as here, a public employee
has engaged in misconduct, it is not a defense to claim other employees also
engaged in misconduct. Instead, the only relevant issue is whether the employee
should be subject to similar or different discipline for the misconduct.
Though we need not reach the merits of plaintiff's class-of-one argument,
plaintiff's allegations of disparate treatment illustrate why the remedy is a "poor
fit." Engquist, 553 U.S. at 605. Persons are similarly situated under the Equal
Protection Clause when they are alike in "all relevant aspects." Radiation Data,
456 N.J. Super. at 562 (citations omitted). Here, plaintiff contends that he was
treated differently from two police detectives when he was charged with
A-0473-18T3 13 misconduct related to the Moriarty stop and arrest. At his disciplinary hearing,
plaintiff also argued that he was treated differently from another officer who
issued fictitious warnings and received only a one-day suspension. In fact,
plaintiff was treated differently because his conduct was different both in kind
and degree from the conduct of the two detectives and the other police officer.
Regarding the stop of Moriarty, plaintiff alleges that one of the detectives
reported to the other detective that Moriarty was intoxicated at a car dealership.
The second detective then passed that information on to plaintiff. It is
undisputed, however, that neither of those detectives was involved in the stop
and arrest of Moriarty. Accordingly, those detectives were not similarly situated
with regard to plaintiff's misconduct arising out of his stop and arrest of
Moriarty. As already summarized, plaintiff was found to have lied both in the
arrest reports he prepared and in denying that he had had prior encounters with
Moriarty.
Regarding the fictitious warnings, plaintiff was not similarly situated to
the other officer. While both officers issued a similar number of fictitious
warnings, plaintiff also falsified the number of traffic stops he made to improve
his apparent performance. The other officer also cooperated fully with the
A-0473-18T3 14 department's investigation and admitted to all of the charges against him. Thus,
that officer's conduct was different from plaintiff's conduct.
B. Plaintiff's CEPA Claims
In Winters, our Supreme Court held that a plaintiff who unsuccessfully
raised retaliation as a defense in a disciplinary proceeding was barred by
principles of collateral estoppel from relitigating retaliation claims under CEPA.
212 N.J. at 88. Plaintiff contends that Winters does not apply because he did
not raise retaliation as a defense to the misconduct charges in his disciplinary
proceedings. Moreover, plaintiff argues that to the extent that retaliation was
raised, it was raised in connection with the Moriarty stop and arrest, which is
different and distinct from his whistleblower claims. We disagree and hold that
Winters applies and bars his CEPA claims.
In Winters, the Court embraced a broad view of estoppel in employee
discipline cases. Id. at 86. The Court emphasized that New Jersey has "taken
an expansive and flexible approach in the application of equitable defenses."
Ibid. (quoting O'Keefe v. Snyder, 83 N.J. 478, 517 (1980) (Handler, J.,
dissenting)). The Court held that a plaintiff who unsuccessfully raised
retaliation as a defense in the opening statement of his disciplinary proceeding
was estopped from thereafter bringing a retaliation claim under CEPA even
A-0473-18T3 15 though the administrative proceeding did not explicitly decide the case based on
retaliation and the defense was not fully litigated during the administrati ve
proceeding. Id. at 71, 92.
In reaching that conclusion, the Court in Winters determined that a
"litigant should not be permitted to participate in the administrative system
designed to promote a fair and uniform statewide system of public employee
discipline, raise a retaliation defense . . . and then hold back on the defense in
an attempt to save it for later duplicative litigation." Id. at 72-73 (internal
citation omitted). Instead, the Court noted that if the employee raises the
retaliation defense, both the employee and the employer "must live with the
outcome, including its potential preclusive effect on related employment-
discrimination litigation as a matter of equitable application of estoppel
principles." Id. at 73.
In connection with his CEPA allegations, plaintiff identified two
whistleblowing activities: (1) his complaints about ticket-fixing; and (2) his
complaints about the manipulation of the investigation of Chief Muniz's relative.
The CEPA complaint also makes extensive allegations about the "Moriarty
Traffic Stop" and the fictitious warning charges and contends that those two
charges resulted from retaliation.
A-0473-18T3 16 Before both the hearing officer and the Law Division judge on de novo
review, the plaintiff argued that his discipline was the result of retaliation. The
central theme of his defense was that Moriarty was a powerful political figure
and plaintiff was being treated unfairly to protect Moriarty and Chief Muniz,
who was allegedly closely associated with Moriarty. In making that retaliation
claim, plaintiff also raised his complaints about Chief Muniz's relative and the
ticket-fixing.
For example, in her opening statement in the misconduct hearing
addressing the Moriarty stop, plaintiff's counsel argued that Chief Muniz had a
conflict of interest in light of the whistleblowing complaints against him and the
chief's connections to Moriarty. During the hearing, plaintiff's counsel also
asked questions related to the whistleblowing activity. In that regard, plaintiff's
counsel asked Muniz about plaintiff's internal affairs complaints against the
police department and him. On de novo review, plaintiff again raised arguments
about retaliation contending that Moriarty's status as a prominent assemblyman
created a "politically-charged and conflicted backdrop" to the misconduct
charges.
These examples illustrate that plaintiff made retaliation a central part of
his defense to the disciplinary charges. Even if he did not fully develop those
A-0473-18T3 17 contentions, as in Winters, he nonetheless had the opportunity for a full hearing
on his retaliation claims. Consequently, this is not a situation where plaintiff
asserted CEPA claims and then expressly reserved his right to pursue those
claims in court as opposed to the administrative disciplinary proceedings. See
Wolff v. Salem Cty. Corr. Facility, 439 N.J. Super. 282, 301-02 (App. Div.
2015) (Sabatino, P.J.A.D., concurring) (noting that an employee need not raise
a retaliation defense in an administrative disciplinary proceeding, but if he
voluntarily did, then Winters applies and controls).
We specifically reject plaintiff's argument that he can raise one type of
retaliation and preserve his claims as to other types of retaliation. A review of
the proceedings both before the hearing officer and on de novo review before
the Law Division judge confirms that plaintiff vigorously argued that his
misconduct charges were the result of retaliation for arresting and charging
Moriarty for DUI. No matter how that argument is cloaked, it is a retaliation
claim because plaintiff is contending that he was only being disciplined in
retaliation for ticketing a prominent political figure. When read in the light most
favorable to plaintiff, his CEPA claim does not necessarily rely on the Moriarty
stop as a whistleblowing activity. Nevertheless, the Moriarty stop and the
A-0473-18T3 18 misconduct that arose from it, is clearly a fundamental part of plaintiff's CEPA
claims.
In Winters, the Court expressly rejected this type of throttle-back
litigation tactic. The Court also noted that it would be "unseemly" to ask a jury
to second-guess the results of an employee discipline hearing after the employee
has had a full and fair hearing in administrative proceedings accorded by the
Legislature. Winters, 212 N.J. at 74. Indeed, the Court put such employees on
notice "that integration of employer-retaliation claims should be anticipated and
addressed where raised as part of the discipline review process." Ibid.
In summary, the trial court's decision to grant summary judgment to
defendants was correct both on the constitutional and CEPA claims. Because
the CEPA claims were precluded from being relitigated, we need not address
plaintiff's argument that he established a prima facie case under CEPA.
Nevertheless, we note that such an argument would be hard to sustain given the
finding that plaintiff had been discharged for engaging in misconduct.
Affirmed.
A-0473-18T3 19