Opinion
DOCKET NO. A-3270-09T1
03-01-2012
IN THE MATTER OF MICHAEL STOECKER, NORTH HUDSON REGIONAL FIRE AND RESCUE.
Catherine M. Elston argued the cause for appellant Michael Stoecker (C. Elston & Associates, LLC, attorneys; Ms. Elston, on the briefs). Ramon E. Rivera argued the cause for respondent North Hudson Regional Fire and Rescue (Scarinci & Hollenbeck, LLC, attorneys; Mr. Rivera, of counsel and on the brief; Christina M. Michelson, on the brief). Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Waugh.
On appeal from the Civil Service Commission, Docket No. 2010-1677.
Catherine M. Elston argued the cause for appellant Michael Stoecker (C. Elston & Associates, LLC, attorneys; Ms. Elston, on the briefs).
Ramon E. Rivera argued the cause for respondent North Hudson Regional Fire and Rescue (Scarinci & Hollenbeck, LLC, attorneys; Mr. Rivera, of counsel and on the brief; Christina M. Michelson, on the brief).
Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
In this matter we examine whether a terminated government employee, who withdrew his Civil Service Commission (Commission) administrative appeal challenging the validity of his firing in order to file a Superior Court complaint alleging a discriminatory termination as prohibited by the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, may reopen the administrative disciplinary action following the summary dismissal of the LAD action. The Commission denied petitioner Michael Stoecker's request to reopen the agency matter. Stoecker appeals from that determination, claiming the denial was arbitrary and capricious. We disagree and affirm.
A review of Stoecker's challenges requires a recital of the facts surrounding his employment as a firefighter with North Hudson Regional Fire and Rescue (the Department), his termination, and the allegations underpinning his claims of discrimination based on sexual harassment and a hostile work environment. We take these facts from our unreported opinion Stoecker v. North Hudson Regional Fire & Rescue, No. A-0337-08T1 (App. Div. Nov. 6, 2009), filed in the related matter reviewing the dismissal of the LAD action. In that factual recital, Stoecker is designated as plaintiff and the Department is designated as defendant. Any additional facts related to the administrative proceeding are taken from the pleadings before the Office of Administrative Law (OAL).
Plaintiff was . . . assigned to Engine 12, Battalion 3, under the command of Captain James Stelman and directly supervised by Battalion Chief Charles Severino. On May 9, 2001, plaintiff's first day of active service, Severino allegedly said, "How would
you like to be my driver and when I ask you to blow me, you do it[?]" "Moments later" plaintiff saw Severino touch Firefighter Dean Manion's "groin and then rub his genitals against [Manion's] buttocks . . . ." Afterwards, Manion approached plaintiff and stated Severino "like[d plaintiff] because he likes big guys." Plaintiff "very loudly" said to Manion that "if anyone touched [him, he] would break that old man - nobody touches me." Plaintiff claims that "Stelman was present throughout [the events] and witnessed everything, and [he] could not have missed hearing" plaintiff's statements.
On May 29, 2001, while at work, plaintiff suffered a calf injury. Plaintiff was examined by a doctor, who cleared him to return to duty. Plaintiff objected and the doctor stated: "You are not getting a free day off[,] you're going back to work." Plaintiff believes he was forced to return to work, although injured, because the physician and a safety officer "discussed [him and his] condition . . . outside of [his] presence" prior to his examination. Plaintiff supports his assertion by pointing to a June 2001 progress report authored by Severino, which said: "[a]t no time did [plaintiff] appear to be injured while at the incident."
Plaintiff returned to work and Stelman ordered him to engage in training, which "no other member of the company was required to perform," aggravating his "excruciating pain." The injury worsened, and plaintiff was diagnosed with a torn calf muscle, necessitating a one-month disability leave.
. . .
When plaintiff returned from disability leave, he avers he "was repeatedly and relentlessly harassed by Stelman in the form
of a hostile work environment" and "continued to witness Severino making homosexual references and overt contact with subordinates." These statements stand unaccompanied by specific examples.
On July 15, 2002, plaintiff became involved in a verbal altercation with Company Officer Thomas Teta, Jr., who found plaintiff sitting at the Captain's desk. Teta told plaintiff to move and commence his firehouse chores. Plaintiff reacted by cursing and screaming. Teta reported plaintiff was "insubordinate, disrespectful," and refused to follow "a direct order." Plaintiff's version of the incident differed. Plaintiff stated Teta, without provocation, verbally abused him, called him a liar, and lied in his statement of the incident . . . . Plaintiff also claims he reported his version of the events "complain[ing] about retaliatory treatment," but the report was not in his employee file.
Curtis reported the incident . . . [and a]s a result, plaintiff was moved to Engine 13. Following [its] review, [defendant] "determined that there was reasonable individualized suspicion that [plaintiff] was using controlled dangerous substances" and "ordered [him] to undergo a medical evaluation and drug testing." Plaintiff declined the request for a blood sample. As a result of his refusal to obey an order, he was suspended. . . . On July 25, 2002, plaintiff was issued a [PNDA], pursuant to N.J.A.C. 4A:2-2.5(a)(1).
Plaintiff sought review by the New Jersey Department of Personnel (NJDOP). The matter was settled prior to a hearing: plaintiff agreed to submit to a drug test, and defendant agreed to reinstate him if the test was negative. Plaintiff was reinstated
on August 15, 2002, nevertheless, he demanded a hearing before the NJDOP because the settlement "in no way resolved the violation of [his] rights." The NJDOP concluded [the suspension was proper, but awarded back pay because of defendant's violation of notice procedures.] . . .
Thereafter, plaintiff requested a transfer. McEldowney counseled him and initially denied his request but later reassigned plaintiff to Battalion 3, Engine 12, under the command of Severino and Stelman. Stelman's January 31, 2003 progress report again noted, "although [plaintiff] has improved a little in the last year and a half, not much has changed. . . .
. . . .
Plaintiff requested a transfer "off the 4th platoon and out of engine 12" due to "personality differences" with Stelman that were "causing tension in the [fire]house." On that same day, McEldowney forwarded plaintiff's transfer request to Chief Flood, noting it was plaintiff's "second request for a transfer, again citing personality problems." Plaintiff was subsequently transferred to Engine 6, 2nd Battalion, under Battalion Chief Michael Cranwell and Captain Raymond Leahy.
. . . .
On June 24, 2003, plaintiff slipped and fell during an assignment and injured his knee. Plaintiff, suggesting he was unaware that department rules designated the hospital for treatment, directed the ambulance to take him to a different hospital. While plaintiff was on medical leave, Cranwell telephoned his residence. When plaintiff did not answer, Cranwell left a message. Additional calls to plaintiff's
residence went unanswered and plaintiff "failed to report for a scheduled physician's appointment" on July 3, 2003. Plaintiff never returned the "telephone call[s] or contact[ed] the Department in any way[,]" claiming he never received any message. [Plaintiff was charged for these violations.]
. . . .
On August 15, 2003, plaintiff returned from medical leave and suffered an asthma attack. He then learned his grandfather had passed away and requested bereavement leave. Plaintiff suggests he was "ordered to attend a mandatory employee health evaluation" on the date of his grandfather's wake. The evaluation, held on August 19, 2003, was conducted by Nurse Annette Plaza. Plaza notified the Department that in the course of the evaluation, plaintiff spoke of "a couple of stressful events in his life and at work" and stated, "I have nothing to live for"[;] "I can go to work and while riding on the fire truck at speed [sic] I can jump out of the truck"[;] and "I can go to work and blow everybody up. I'm not afraid to die." Plaza recommended mental health counseling "to ensure [plaintiff was] fit to return to work (mentally)."
Plaintiff denied he made these comments to Plaza. McEldowney advised plaintiff he would be required to submit to a psychological examination before returning for duty. Two days after Plaza issued her report, plaintiff was injured in a car accident and placed on medical leave. Plaintiff missed a hospital appointment for treatment of his physical injuries and telephone calls to his residence went unanswered. Plaintiff again was charged with violating the Department's rules and regulations for these lapses.
On August 23, 2004, plaintiff's treating physician "cleared [him] to return to modified duty." Plaintiff was told he was required to undergo "a medical fitness for duty examination" before returning to active duty. The exam was scheduled for September 8, 2004. McEldowney also reminded plaintiff he remained obligated "to submit to a psychological evaluation, as previously ordered on August 27, 2003, before being permitted to return to duty." That evaluation was scheduled for September 9, 2004, at the Institute of Forensic Psychology. Plaintiff appeared for the psychological examination but refused to sign the psychologist's waiver form, claiming the psychologist issued "a mandate that [plaintiff] sign a waiver releasing the Doctor from any liability." [The waiver stated in pertinent part:
I agree to hold harmless the Examiners from any liability or action that may result from this evaluation. In agreeing to this, I understand that the Examiners do not make any personnel decisions, which are entirely the responsibility of the employer. I also understand that signing this form does not affect my right to pursue any available administrative remedy against the agency.]Plaintiff was ordered to sign the "[r]elease and take the examination" but refused. Plaintiff then spoke with his union counsel, who advised plaintiff his rights were not in jeopardy by execution of the release. Plaintiff still refused. The psychologist would not commence the exam based on plaintiff's failure to execute the waiver.
[Stoecker, supra, slip op. at 2-13.]
On October 14, 2004, the Department issued a Preliminary Notice of Disciplinary Action (PNDA) charging plaintiff with fifteen counts, including insubordination and job abandonment. Id. at 13. A departmental hearing was held. Stoecker appeared on the first day and a continuation was permitted to allow him to obtain representation. However, on the final hearing date, May 10, 2005, Stoecker did not attend. Instead, he submitted a letter to his former Department supervisor alleging discrimination based on his "refusal to acquiesce in the sexual advances of . . . Severino[]." This was the first time Stoecker alleged sexual harassment. Id. at 31-32.
After considering the Department's evidence, the hearing officer recommended Stoecker's termination. Id. at 16-17. Accordingly, the Department issued a Final Notice of Disciplinary Action (FNDA) terminating Stoecker's employment, effective September 9, 2004.
Stoecker appealed to the Commission which, on August 9, 2005, transmitted the case to the OAL, where it was listed as a contested case. Prior to the hearing, Stoecker moved to stay the OAL proceedings "in contemplation of pursuing any and all remedies available . . . as [a p]laintiff in [a] Superior Court matter brought under" the LAD, because "the remedies available . . . [in the Superior Court] are in fact more expansive than those remedies available in this [a]dministrative [a]ppeal." Stoecker in fact filed an LAD complaint on July 12, 2006. Id. at 17.
At the time matter was pending it was before the Merit System Board (MSB). On June 30, 2008, the MSB was replaced by the Commission, which assumed all functions, powers, and duties previously exercised by the MSB. L. 2008, c. 29; § 77 (amending N.J.S.A. 11A:11-1). In our opinion, we refer to all matters as if they occurred before the Commission.
In his written opinion denying the request for stay, the administrative law judge (ALJ) noted "Stoecker has represented that the Superior Court matter encompasses elements of the appeal pending before the OAL as well as other aspects of his employment. In essence, the Superior Court complaint alleges that the disciplinary matter . . . pending before the OAL was in violation of the LAD." The ALJ found it was noteworthy "Stoecker acknowledge[d] that all of the issues pending before the OAL [we]re contained within his LAD complaint and that all of the remedies available before the [Commission], such as reinstatement, back pay and benefits[,] and counsel fees, [we]re also sought in his LAD complaint in addition to other remedies not available before the [Commission]." The ALJ concluded the OAL had no basis to maintain "independent jurisdiction . . . despite the Superior Court filing" and found no "unique or special remedies available" in the OAL. Further, the ALJ found no support for a claim of irreparable harm or an overriding public interest necessitating the stay and denied the request. See N.J.A.C. 4A:2-1.2(c).
Thereafter, Stoecker sought withdrawal of his administrative appeal. The Commission accepted Stocker's withdrawal and issued a "Withdrawal of Appeal" as the "final administrative determination in this matter." The case was "removed from the hearing calendar and considered closed" as of November 15, 2006.
Stoecker's LAD action proceeded in the Superior Court. At the close of discovery, the Department moved for summary judgment. Stoecker, supra, slip op. at 17. Following argument, the motion judge granted defendant's motion and dismissed Stoecker's complaint with prejudice on August 12, 2008. Ibid. The trial judge found there were no genuine issues of material fact in dispute regarding the Severino-Stoecker incident on the first day of work. Id. at 17. As to Stoecker's claims that he faced discrimination because of a handicap or disability and the Department failed to accommodate his physical needs, the trial judge found there was no evidence presented to support Stoecker's claim that he was forced back to work after his injuries. Id. at 17-18.
With respect to Stoecker's claims of retaliation, the trial judge found no evidence he engaged in protected activity until he notified McEldowney in his Tort Claims Notice. Id. at 18. The trial judge found "[p]laintiff never alluded to wrongful suspension and subsequent termination in the complaint" and concluded the allegations were discrete rather than a continuing violation. Ibid. Accordingly, the complaint was dismissed as time barred. Ibid.
Plaintiff appealed, we affirmed, id. at 1-33, and Stoecker's petition for certification was denied. Stoecker v. N. Hudson Reg'l Fire & Rescue, 201 N.J. 440 (2010).
On September 8, 2008, Stoecker requested to reinstate his administrative appeal, arguing his voluntary dismissal had been without prejudice. Additionally, he maintained the merits of his challenge had not been adjudicated in the Superior Court so that he was entitled to present a defense asserting "the charges filed against him were . . . in bad faith as they were retaliatory for his failure to accept the sexual advances of . . . Severino." In this regard, he suggested his "claims of bad faith in defense of the [termination] charges ha[d] not been [dismissed along with his LAD claims], and, therefore, remain, viable." The Department opposed the request to reopen. On January 29, 2010, the Commission issued a written statement denying Stoecker's request. This appeal ensued.
Our review of a final administrative determination is limited. In re Carter, 191 N.J. 474, 482 (2007). An agency determination will not be vacated "'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence[.]'" Ibid. (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Under this standard, appellate review is limited to
"(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."
[Karins v. City of Atl. City, 152 N.J. 532, 540 (1998) (quoting George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994)).]
Stoecker maintains the Commission's denial of his application to reopen his administrative appeal is arbitrary and capricious and, because he was denied "an opportunity to adjudicate the disciplinary charges[,]" he contends he was denied due process. More specifically, Stoecker claims N.J.S.A. 40A:14-19, addressing the suspension or removal of firefighters, confers a property right in his employment and he suggests he is "entitled to be heard before he is permanently terminated from his employment and his career in firefighting ended."
The Fourteenth Amendment of the United States Constitution and Article 1, Paragraph 1 of the New Jersey State Constitution provide "every person possesses the 'unalienable rights' to enjoy life, liberty, and property, and to pursue happiness." Lewis v. Harris, 188 N.J. 415, 442 (2006). Whether a right is recognized as a property right subject to due process protection is a question of State law. See Capua v. City of Plainfield, 643 F. Supp. 1507, 1520 (D.N.J. 1986) (looking to N.J.S.A. 40A:14-19 and finding due process is required prior to the termination of a full-time firefighters). If one has a property right in continued employment, the State cannot deprive him or her of this property without due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 1491, 84 L. Ed. 2d 494, 501 (1985); see also Mosca v. Cole, 384 F. Supp. 2d 757, 767 (D.N.J. 2005) ("When protected interests are implicated, the right to some kind of prior hearing is paramount." (internal quotation marks and citations omitted)), aff'd, 217 Fed. Appx. 158 (3d. Cir. 2007).
We also note that a party alleging a violation of procedural due process, must show he or she was deprived "of a protected property interest and that the local and state procedures for challenging the deprivation were inadequate." Plemmons v. Blue Chip Ins. Servs., Inc., 387 N.J. Super. 551, 566 (App. Div. 2006). "Consequently, '[a] state cannot be held to have violated due process requirements when it has made procedural protections available and the plaintiff has simply refused to avail himself of them.'" Id. at 567 (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Finally, due process does not afford the "right to litigate the same question twice." Baldwin v. Iowa State Traveling Men's Assoc., 283 U.S. 522, 524, 51 S. Ct. 517, 518, 75 L. Ed. 1244, 1246 (1931). Overall, this inquiry is a fact sensitive one.
Stoecker's firing entitled him to challenge the termination by appealing to the Commission. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 332 n.4 (2010) (explaining a plaintiff with an LAD claim pending in the Superior Court may also appeal the denial of her reclassification to the Commission); see also N.J.S.A. 11A:2-14, -15; N.J.A.C. 4A:2-2.13(d) (explaining a firefighter or police officer subject to major discipline who already received an adverse determination following a departmental hearing and was issued a FNDA, may appeal within twenty days with the OAL and the Commission).
By a rule adopted June 10, 2009, but similar in substance to N.J.A.C. 4A:2-2.8 and -2.9 which was in effect at the time of the present appeal.
Stoecker maintained his firing was discriminatory. In that instance, a complainant has a choice of remedies to seek redress for alleged discrimination. "Persons may pursue their claims either administratively, by filing a verified complaint with the [Division on Civil Rights (DCR)], or judicially, by directly instituting suit [under the LAD] in the Superior Court. N.J.S.A. 10:5-13. These remedy choices are complementary, but mutually exclusive." Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 652 (1996) (internal quotation marks and citations omitted). However, a party pursuing relief in the Superior Court or the DCR, may recover only in one forum and must elect which to pursue so that a final determination rendered by one forum precludes the other. See, e.g., Aldrich v. Manpower Temp. Servs., 277 N.J. Super. 500, 505 (App. Div. 1994) (permitting withdrawal of a DCR claim before final determination was rendered in order to file an action in Superior Court), certif. denied, 139 N.J. 442 (1995).
Finally, the Supreme Court has recognized that dual jurisdiction can arise between the Commission and the DCR. Hennessey v. Winslow Twp., 183 N.J. 593, 601 (2005) (citing Hackensack v. Winner, 82 N.J. 1, 31-33 (1980)); see also N.J.A.C. 1:1-17.1 to -17.8 (providing rules of hearing procedure for multiple agency jurisdiction claims, including standards for determining predominant interest as among multiple agencies).
The question presented is whether an aggrieved party who initiates but then abandons available administrative relief can turn the clock back and reinstate the claim years later after the pursuit of relief in other forums has run its course. In other words, did Stoecker make an irrevocable election to present all claims resulting from his termination to the Superior Court, thus barring further review of those issues by the Commission.
Stoecker suggests the summary judgment dismissal of the Superior Court action denied him "an opportunity to adjudicate the disciplinary charges against him on the merits." He concludes the Commission's denial of his request to reopen is arbitrary, capricious and unreasonable because it denied him the opportunity to be heard. We reject each of these propositions.
The due process procedures allowing for the appeal from the imposition of major discipline, in this case termination, are clearly set forth:
Specifically, prior to the imposition of major discipline, an employee must be served with a form Preliminary Notice of Disciplinary Action that sets forth the charges and a succinct statement of the underlying facts. N.J.A.C. 4A:2-2.5(a). The employee has five days to request a departmental hearing. N.J.A.C. 4A:2-2.5(c).
If the employee fails to request a hearing, the right is waived and the employer may issue a Final Notice of Disciplinary Action and impose the discipline. N.J.A.C. 4A:2-2.5(c). The [Commission] rules do not contain many specifics about the nature of the hearing other than to permit the hearing to be conducted either by the appointing authority or its designated representative, N.J.A.C. 4A:2-2.6(a), and to set forth some rudimentary process requirements. The employee may be represented either by an attorney or a non-lawyer union representative. N.J.A.C. 4A:2-2.6(b). The parties have the opportunity to present evidence and examine witnesses, N.J.A.C. 4A:2-2.6(c), and if the employee testifies, he or she must submit to cross-examination. N.J.A.C. 4A:2-2.6(c). Within twenty days of the hearing's conclusion, the appointing authority must issue a decision and furnish the employee with a Final Notice of Disciplinary Action. N.J.A.C. 4A:2-2.6(d). Plainly, the hearing afforded at this level is designed to give the employee a fair and efficient opportunity to change the employer's mind about the appropriateness of the disciplinary action. It may serve that purpose well, but it does not afford other important procedural protections that are available on appeal to the [Commission].
[Hennessey, supra, 183 N.J. at 603.]
Each of these steps was scrupulously followed and Stoecker appealed his termination to the Commission. The Commission directed the matter for full plenary review before an ALJ. Again, all necessary procedural process was extended to Stoecker for administrative review. See State v. DeMarco, 107 N.J. 562, 582 (1987) (explaining administrative remedies, identical to the ones at issue, provide "meticulous procedural due process rights").
Stoecker obtained independent counsel and made a reasoned decision to forego administrative review, choosing instead to air his claims in Superior Court. Borrowing a statement from Hennessey, supra, 183 N.J. at 604, "That was h[is] right. H[is] decision to forego an administrative remedy at that stage and to seek instead a judicial forum for h[is] LAD claim[s] was h[is] to make." The exercise of that right, foreclosing administrative review, does not result in a conclusion that he was denied due process.
Before the Law Division, the parties were permitted to develop their cases, engaging in complete discovery. The Department's motion for summary judgment included the records developed not only from the departmental hearing, but also depositions of Stoecker as well as persons intended to be called as witnesses, Stoecker's commanding officers, and fellow firefighters. Further, voluminous documents were introduced including Stoecker's personnel file, medical treatment records, and documents produced during the Department's separate investigation of the claims against Severino. The record fully fleshed out Stoecker's claims of wrongful termination.
Following the Law Division's dismissal, we examined this extensive record and considered Stoecker's assertion that material factual disputes were presented obviating the summary judgment dismissal of his claims. Our opinion analyzed allegations advanced by Stoecker against possible bases of recovery. Each was rejected. We repeat a portion of those findings which summarize our determination, again noting Stoecker is delineated as the plaintiff:
We disagree with plaintiff's analysis that, when viewed in a light most favorable to him, material factual disputes are presented. We determine Severino's coarse, sexually explicit remark, uttered on plaintiff's first day of work in May 2001, does not serve as a thread weaving four years of various, seemingly unrelated events or demonstrate a pattern of retaliatory conduct or a hostile work environment. Further, we discern the "facts" contained in plaintiff's certification do not meet the evidential requirements to defeat summary judgment.
Generally, plaintiff's certification is fraught with hearsay, speculation, self-serving assertions or unsubstantiated conjecture. Plaintiff's suggestion that the various disciplinary actions, work assignments, or negative progress reports resulted from discrimination and retaliation, rather than being exactly what they purport to be -- an attempt to train a firefighter who is resistant to authority and chain of command -- lacks material basis. An objective reading of the evidential record reflects plaintiff was untrained when assigned to the Department and his personality rankled superiors. Yet,
he was given ample opportunity to learn his job satisfactorily, modify his resistant, confrontational behavior, and adjust to the militaristic chain of command of the Department. . . . [Plaintiff]'s termination resulted from his unfounded refusal to comply with an order to obtain a psychological examination, not from his a rebuff of Severino's 2001 overture. The order necessitating a psychological review was well-grounded on Plaza's evaluation, not, as plaintiff intimates, on a conspiratorial collusion between the medical professionals and the Department. Overall, plaintiff's suggested inferences are unfounded and thus, insufficient to necessitate a jury's determination. James Talcott v. Shulman, 82 N.J. Super. 438, 443 (App. Div. 1964); Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999).
[Stoecker, supra, slip op. at 24-26.]
Although the litigation did not reach a jury, Stoecker nonetheless received a thorough judicial review of all evidence unearthed in discovery. See Velasquez v. Franz, 123 N.J. 498, 511 (1991) (stating a summary judgment dismissal with prejudice "represents a decision on the merits of the claim"); R. 4:37-2(d). This record supports our conclusion that Stoecker was afforded all process he was due. He presented his claims and lost. He is not entitled to again restart in the administrative forum.
Stoecker's remaining arguments presented on appeal lack sufficient merit to warrant extended discussion in our opinion. R. 2:11-3(e)(1)(E). We briefly note we reject Stoecker's suggestion that the OAL action was dismissed without prejudice. Stoecker's dismissal was the result of a reasoned decision, aided by the advice of counsel to proceed before the court. Stoecker could have participated in the administrative hearing, but chose to end that action. The facts in this matter distinguish this result from the Court's determination in Hennessey, supra, 183 N.J. at 604, where the Court concluded the abandonment of an administrative review of a disciplinary action prior to its disposition did not preclude the employee's right to file an LAD action, and our conclusion in Scouler v. City of Camden, 332 N.J. Super. 69, 75 (App. Div. 2000), where we held the waiver provision of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, did not preclude a career civil service employee who filed a CEPA action from appealing a disciplinary charge to the Commission.
Finally, we agree with the Department's argument that it would suffer prejudice were Stoecker permitted to now reopen his administrative appeal -- a request, made over four years following Stoecker's temination and more than two years after he withdrew his administrative appeal. The resumption of the previously terminated litigation simply because Stoecker's Superior Court litigation did not end favorably is neither arbitrary nor capricious.
We recognize the Commission took over one year to respond to Stoecker's request to reopen the administrative appeal, however, we did not consider this additional delay in weighing the prejudice to the Department.
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For all of these reasons, we find no due process deprivation has occurred and the Commission's denial of Stoecker's application to reopen the administrative review did not display a misapplication of its discretion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION