Alan Schorr’s Employment Case of The Week ending March 1, 2013

May v. Borough of Pine Hill, 2013 WL 663702 (D.N.J. 2013) (not approved for publication)

Since the Supreme Court’s decision in Winters v. North Hudson Regional Fire and Rescue, 212 N.J. 67 (2012) (read blog article here), several State Appellate panels have dismissed cases based upon previous administrative hearings that relate to the some of the same issues being litigated. One Federal Judge has now directly addressed the effect of Winters, and has afforded it a more narrow scope. In May v. Borough of Pine Hill, Judge Irenas of the Camden vicinage of the District Court of New Jersey, denied a motion for reconsideration directly based upon the application of the Winters case.

Diana May was the tax collector for the Borough of Pine Hill. She filed a Law Against Discrimination claim alleging that she had been sexually harassed by the mayor. The Complaint also contained CEPA counts relating to May’s discovery that an employee friendly to the mayor had misappropriated tax funds. May alleges that she was terminated in retaliation for her complaints. She also alleged that Pine Hill had violated COBRA after her termination with regard to providing proper notice.

In August 2012, Judge Irenas denied summary judgment on the sexual harassment count and also denied summary judgment against the Borough and an individual defendant, finding that there was a material dispute of fact with regard to the employers’ reasons for termination. Employer claimed that May had falsified that she had attended continuing education classes. May had testified that she did attend the classes, but failed to properly register the attendance due to the fact that she was unfamiliar with the registration technology. The Court dismissed the CEPA claim against one of the individual defendants and dismissed the COBRA claim. The Defendants then moved for reconsideration of the denial of the CEPA claim based upon the argument that Winters was an intervening change in the controlling law. They argued that May had been afforded an administrative hearing at which time the issue of her termination was fully litigated.

The Court declined to apply the Winters standard to this case, finding it to be factually different, and this provides us with an excellent argument as to why Winters should be narrowly applied. Judge Irenas ruled:

Unlike the employee in Winters, May did not make retaliation a central part of her defense during her administrative hearing. Although Defendants have pointed to several instances in the hearing proceedings that suggest a retaliation theme (Defs.’ Supp. Br. 3–4), there is nothing in the record to suggest that May asked the ALJ to rule on the question of retaliation, nor did she ever make an explicit retaliation argument. Neither did May raise a retaliation defense then fail to fully litigate it as Winters did. While May included elements of retaliation in her arguments during the administrative hearing, the Court is reluctant to find that her claim is precluded where retaliation was not the central element of her defense. Indeed, the Winters Court was careful to note its “clear understanding of the important public policy enshrined in CEPA, which [its] holding [wa]s not intended, in any way, to denigrate.” Id. This Court cannot see how barring May’s CEPA claim on this record would further CEPA’s public policy goals. As such, the Court will not hold that May’s CEPA is claim precluded.

The Court denied reconsideration on summary judgment even after conceding that the Administrative Court had ruled that May was terminated for good cause.

Although unpublished, practitioners representing employees should file this case away because, to date, it is the only opinion holding that the Winters decision is limited in its application to cases where discrimination or retaliation were the “central element” of the administrative claim.

Plaintiff’s counsel: Richard F. Klineburger, III, Klineburger & Nussey

Defendants’ counsel: Christine P. O’Hearn, Brown & Connery, LLP

District Court Judge: Joseph E. Irenas, U.S.D.J.