Adverse Ruling by Civil Service Commission Precluded Employee From Bringing CEPA Lawsuit

Winters v. North Hudson Regional Fire & Rescue, 212 N.J. 67 (2012).  When a public employee who is the subject of a disciplinary proceeding before the Civil Service Commission (“the Commission”) asserts retaliation as a defense, but then does not offer proofs in support of that defense, and the Commission finds against the employee, can the employee bring a CEPA (Conscientious Employee Protection Act) claim based on the same claimed retaliation?  After hearing an oral argument and a re-argument, the Supreme Court said no by a 5-1 vote.  The majority opinion was per curiam.  Justice Albin dissented.

The majority recognized the importance of CEPA to the protection of employees’ rights.  But the Court held that plaintiff could not raise the retaliation defense before the Commission and then decline to support that defense with evidence “in an attempt to save it for later duplicative litigation.  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,” even though one forum is an administrative agency and the other forum is a court.

The majority opinion contains discussion of both collateral estoppel and equitable estoppel.  But the opinion also partakes of another concept that the majority did not mention expressly:  the entire controversy doctrine.  Having had available and in fact having raised a retaliation defense before the Commission, the employee was not permitted to withhold that defense and use it in another proceeding, thus making the Commission proceeding into “merely one inning of the whole ball game,” as Judge Pressler famously said in Wm. Blanchard Co. v. Beach Concrete Co., Inc., 150 N.J. Super. 277, 294 (App. Div. 1977), one of the leading entire controversy cases.  The Court’s point, though, is the same:  having had one bite, or the right to one bite, at the apple, the employee could not strategically maneuver to obtain a second bite, at least not on these facts.