www.njcopsmagazine.com ■ JANUARY 2015
Retaliation claims- where to raise them
In the October 2012 issue of NJ COPS Magazine, we discussed
the Supreme Court decision in Winters v. North Hudson Regional
Fire & Rescue District, which held that an officer was barred from
raising claims of retaliation in a separate lawsuit after he had litigated those claims as part of his defense in a disciplinary hearing
before an ALJ in a Civil Service appeal.
The Appellate Division recently issued a decision which further
clarifies the circumstances under which a separate civil lawsuit
may proceed when claims of discrimination have been raised but
not fully litigated in a disciplinary hearing. In Hunt v. Borough of
Wildwood Crest, a police sergeant was terminated and filed an
appeal with the Civil Service Commission alleging that he was terminated in retaliation for engaging in union activities. The officer
also filed a separate civil rights complaint in federal court alleging
a retaliatory discharge.
One day after the administrative hearing began, the Supreme
Court issued its decision in Winters. Shortly thereafter, and before
the conclusion of the hearing, the officer moved to dismiss his
administrative appeal, presumably to litigate his retaliation claims
in his pending federal suit. The Civil Service Commission granted
his request.
The borough appealed the Commission’s decision allowing the
officer to dismiss his administrative appeal. The borough argued
that the Civil Service Commission should have issued a decision
on the underlying merits of the officer’s disciplinary case.
The Appellate Division rejected the borough’s effort to expand
Winters to require that retaliation claims must be litigated in the
discipline case once they are raised there. The court’s rejection of
the borough’s appeal was based in significant part on the fact that
the officer withdrew his administrative appeal shortly after the
Winters decision was issued, and before the presentation of all evidence on any issue. As a result, the court’s decision allowed the officer to pursue his claims of alleged retaliation in federal court.
However, the decision was based significantly on the fact that the
officer could not reasonably have anticipated the requirements
which Winters imposes.
This decision provides some guidance for officers who may wish
to raise retaliation claims in both a disciplinary appeal and in a separate civil action. The combined effect of Winters and Hunt is that
an officer may not now have the luxury of raising the claim in both
forums. In order to avoid the risk that an officer will be barred from
raising the claims in a separate civil action, the officer may have to
make an election early about whether to raise the retaliation claims
in a disciplinary hearing or in a separate civil case. If an officer even
raises the claims during a disciplinary hearing, he or she may be
barred from raising those same claims in a separate civil
proceeding in state or federal court.
As a result of the Winters decision, as refined by the Appellate
Division in Hunt v. Wildwood Crest, officers now should discuss the
strength of the