NJ Cops | Page 11

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