Opinion
DOCKET NO. A-1448-13T2
06-17-2016
ANDREW BALIK, Plaintiff-Appellant/Cross-Respondent, v. CITY OF BAYONNE, CHARLES M. D'AMICO, and STEPHEN J. GALLO, Defendants-Respondents/Cross-Appellants.
Cresci Law Firm LLC, attorneys for appellant/cross-respondent (Peter J. Cresci, on the brief). Chasan Leyner & Lamparello, attorneys for respondents/cross-appellants (Anthony V. D'Elia, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1521-13. Cresci Law Firm LLC, attorneys for appellant/cross-respondent (Peter J. Cresci, on the brief). Chasan Leyner & Lamparello, attorneys for respondents/cross-appellants (Anthony V. D'Elia, of counsel and on the brief). PER CURIAM
The cross-appeal was not briefed; therefore, the court considers it abandoned. Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).
Plaintiff Andrew Balik filed a complaint in federal court, alleging federal causes of action as well as state claims based on the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and other state statutory and common law grounds, against his employer, the City of Bayonne, and others, stemming from his contention that defendants retaliated against him because he engaged in protected whistleblowing activity. A district judge granted summary judgment in favor of defendants on the federal claims but chose not to consider Balik's state claims, which were dismissed without prejudice. Balik promptly reasserted his state law claims in a complaint filed in the Law Division, and a motion judge properly determined that all state law claims were precluded because critical elements of those remaining claims were adjudicated in the federal proceedings. We agree and affirm.
42 U.S.C.A. § 1983; Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 to 219.
Wage Payment Law, N.J.S.A. 34:11-4.1 to -4.14; wrongful discharge; breach of contract; and breach of the implied covenant of good faith and fair dealing. --------
Balik was employed as a purchasing agent for Bayonne for approximately fifteen years when, on August 11, 2010, defendant Charles D'Amico, Bayonne's corporation counsel, met with Balik to discuss improprieties and irregularities about three contracts. D'Amico offered Balik, who was then sixty-nine years old, the option of retiring or the alternative of an investigation. Balik originally invited the investigation, but ultimately retired, effective September 1, 2010.
Balik filed a complaint in the United States District Court for the District of New Jersey. Later, District Judge Hochberg dismissed plaintiff's § 1983 claim by way of summary judgment, finding Balik's voluntary resignation in the face of an unpleasant alternative — remaining employed during an internal investigation — did not constitute a "discharge" that could sustain a § 1983 claim. See Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1998). Judge Hochberg found Balik's deposition testimony left no doubt that his resignation was voluntary and not induced by duress or coercion. The judge also found no merit in Balik's FLSA claim because he provided no evidence for his assertion that he "was never paid for all sick time he accrued"; Balik had previously admitted to receiving all payment due for unused sick and vacation time. After dismissing these federal claims, Judge Hochberg declined to exercise jurisdiction over Balik's state law claims pursuant to 28 U.S.C.A. § 1367(c)(3), and dismissed those claims without prejudice.
Balik thereafter reasserted his state law claims in a complaint filed in the Law Division. In dismissing pursuant to Rule 4:6-2(e), the motion judge found plaintiff's remaining state law claims were collaterally estopped by the previous adjudication of his federal law claims.
Balik appeals, arguing the judge erred in finding his claims barred by the doctrine of collateral estoppel. We find insufficient merit in Balik's arguments regarding his common law claims or his claim under the Wage Payment Law to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments regarding Balik's CEPA and LAD claims.
The doctrine of collateral estoppel, also known as issue preclusion, "bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action." State v. Gonzalez, 75 N.J. 181, 186 (1977); see also Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 337-38 (1996). The doctrine of collateral estoppel applies to bar a second action, even if it asserts a different cause of action, when "the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5, 99 S. Ct. 645, 649 n.5, 58 L. Ed. 2d 552, 559 n.5 (1979). In examining collateral estoppel's applicability, a court must determine whether: "(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding." In re Estate of Dawson, 136 N.J. 1, 20 (1994) (citations omitted).
In short, "collateral estoppel applies whenever an action is sufficiently firm to be accorded conclusive effect." In re Brown, 951 F.2d 564, 569 (3d Cir. 1991). Its firmness may be demonstrated by examining "whether the parties were fully heard, whether a reasoned opinion was filed, and whether that decision could have been, or actually was, appealed." Ibid. Here, plaintiff's arguments were heard and considered in federal court on related causes of action, Judge Hochberg issued a well-reasoned opinion detailing her findings and conclusions, and plaintiff's appeal has since been affirmed. See Balik v. City of Bayonne, 567 Fed. Appx. 86 (3d Cir. 2014). There is no question the district court decision upon which defendants based their motion to dismiss here was final for collateral estoppel analysis.
Balik's CEPA and LAD claims are barred because Balik failed to establish in the prior proceeding that he was actually or constructively discharged from his position. Both CEPA and LAD require proof that the employee was subjected to an adverse employment action, Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 166 (App. Div. 2005); Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999), which has been characterized as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment," Victor v. State, 401 N.J. Super. 596, 615 (App. Div. 2008), aff'd in part, modified in part, 203 N.J. 383 (2010). A constructive discharge requires proof that the employee suffered from conduct "so intolerable that a reasonable person would be forced to resign rather than continue to endure it," Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 28 (2002), a standard that evokes a sense of outrage, coercion or unconscionability, Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 428 (App. Div. 2001). The district judge's determination that Balik did not resign out of coercion or duress — findings essential to Balik's § 1983 action — were equally critical to his CEPA and LAD claims. Those questions were decided against him by a federal district judge, affirmed on appeal, and, consequently, are not to be revisited here.
Affirm. Cross-appeal dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION