               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0473-18T3

JOSEPH DIBUONAVENTURA,

     Plaintiff-Appellant,             APPROVED FOR PUBLICATION

                                             January 31, 2020
v.
                                          APPELLATE DIVISION
WASHINGTON TOWNSHIP,
ROBERT SMITH, and RAFEAL
MUNIZ, in their individual and
official capacities,

     Defendants-Respondents.
____________________________

           Argued December 10, 2019 – Decided January 31, 2020

           Before Judges Accurso, Gilson and Rose.

           On appeal from the Superior Court of New Jersey, Law
           Division, Gloucester County, Docket No. L-1435-13.

           Jacqueline M. Vigilante argued the cause for appellant
           (The Vigilante Law Firm, PC, attorneys; Jacqueline M.
           Vigilante and Kelly Anne Hicks, on the briefs).

           Patrick Joseph Madden argued the cause for
           respondents Washington Township and Rafael Muniz
           (Mark William Strasle, on the brief).

     The opinion of the court was delivered by

GILSON, J.A.D.
      Plaintiff Joseph DiBuonaventura is a former Washington Township police

officer who was terminated for misconduct. He appeals from orders granting

summary judgment to defendants, the Township and two Township officials,

and dismissing with prejudice his claims alleging violations of his constitutional

equal protection rights and the Conscientious Employee Protection Act (CEPA),

N.J.S.A. 34:19-1 to -14. He also appeals from an order denying his motion for

partial summary judgment on his CEPA claims.

      We conclude that our state constitution should be construed consistent

with the federal constitution in that a "class-of-one" equal protection claim

cannot be asserted by a public employee. See Engquist v. Oregon Dep't of

Agric., 553 U.S. 591, 594 (2008). Accordingly, we affirm the dismissal of

plaintiff's equal protection claim. We also affirm the dismissal of plaintiff's

CEPA claims because those claims were precluded when he asserted retaliation

as a defense in the administrative proceedings upholding his termination.

Therefore, plaintiff cannot relitigate the retaliation issue in a CEPA action. See

Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67 (2012).

                                        I.




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      We take the facts from the summary judgment record, viewing them in the

light most favorable to plaintiff. Plaintiff was a police officer in Washington

Township in Gloucester County.

      In 2011 and 2012, plaintiff made several complaints about the conduct of

the Washington Township Police Department and the chief of police, Rafael

Muniz. During that same period of time, plaintiff engaged in activities that

resulted in his suspension and termination as a police officer.

      Plaintiff's complaints about the police department and its chief focused on

two events. First, plaintiff complained about an alleged ticket-fixing incident

related to a traffic stop he made on September 11, 2011. On that date, plaintiff

issued a motorist two tickets for driving with an expired registration and license.

In November 2011, plaintiff filed an internal affairs complaint with the police

department after he learned that the tickets had been dismissed and the motorist

was a relative of a Township police captain. In February 2012, plaintiff was

informed that Internal Affairs had conducted an investigation but had concluded

that plaintiff's allegations of ticket-fixing were unfounded.

      Plaintiff's second complaint concerned Chief Muniz and his alleged

activities to prevent a close relative from being arrested and criminally charged

for theft. Plaintiff contended that in April 2012, he learned that an adult relative


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of Chief Muniz was caught stealing approximately $7000 in jewelry from a

home in Washington Township. According to plaintiff, the investigation was

manipulated so that the chief's relative was never arrested or charged with any

crime. In June 2012, plaintiff reported the incident to the Township's Business

Administrator. In August 2012, he filed a complaint concerning the incident

with the Gloucester County Prosecutor's Office, which later determined that

plaintiff's allegations were unfounded.

      Plaintiff's suspension and termination arose out of a motor vehicle stop on

July 31, 2012.    On that day, plaintiff stopped a motor vehicle driven by

Assemblyman Paul Moriarty, who was the former Mayor of Washington

Township. Plaintiff arrested Moriarty and charged him with driving while under

the influence (DUI), N.J.S.A. 39:4-50, refusal to submit to an alcohol breath

test, N.J.S.A. 39:4-50.4(a), and improper lane change, N.J.S.A. 39:4-88.

Moriarty strongly disputed the charges and filed an internal affairs complaint

and a criminal complaint against plaintiff. In November 2012, plaintiff was

suspended without pay from his position as a police officer. Thereafter, he was

indicted on criminal charges related to the arrest and ticketing of Moriarty, but

in March 2015, a jury acquitted plaintiff of all criminal charges.




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      Following his criminal acquittal, the Township's police department

conducted an internal affairs investigation of plaintiff's conduct and continued

his suspension. In April and May 2015, plaintiff was charged with misconduct

for two separate matters. First, he was charged with misconduct related to his

stop and arrest of Moriarty. Specifically, plaintiff was charged with making

false statements and omitting material facts about the stop and about his prior

encounters with Moriarty. Second, he was charged with falsely reporting that

he issued numerous warnings for motor vehicle violations. An investigation

found that those warnings were never given to the motorists. The false reports

allegedly occurred between May 2012 and October 2012.

      Based on those misconduct charges, the Township sought to fire plaintiff.

In accordance with his rights as an employee of a non-civil service jurisdiction,

plaintiff sought an administrative disciplinary hearing before a neutral hearing

officer. N.J.S.A. 40A:14-150. Evidentiary hearings on both misconduct charges

were conducted, and the hearing officer found plaintiff guilty of the charges.

Regarding the charges related to the Moriarty stop and arrest, the hearing officer

found that plaintiff had falsified his arrest reports and lied about his prior

encounters with Moriarty.      Concerning the charges of reporting fictitious

warnings, the hearing officer also found plaintiff guilty of misconduct.


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Accordingly, the hearing officer upheld plaintiff's termination as a police

officer.

      As was his right in connection with his disciplinary remedies, plaintiff

sought review by a Superior Court judge. N.J.S.A. 40A:14-150. Following oral

argument, the Law Division judge conducted a de novo review of the extensive

administrative record and issued a sixty-one-page written decision finding

plaintiff had engaged in misconduct and upholding plaintiff's termination.   The

Law Division judge based the termination decision on plaintiff's misconduct

concerning the Moriarty stop and arrest and held that, taken on their own, the

fictitious warnings did not warrant termination.      In assessing the fictitious

warning case, the Law Division judge also considered plaintiff's disparate

treatment argument that another police officer who had also issued fictitious

warnings had only received a one-day suspension. The Law Division judge

rejected that as a viable defense and noted that the disparate treatment argument

was only relevant to the issue of the appropriate discipline.

      Plaintiff appealed from the Law Division order, but we rejected his

arguments and affirmed that order in an unpublished opinion. DiBuonaventura

v. Washington Twp., No. A-2212-17 (App. Div. Mar. 25, 2019).




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      Meanwhile, in October 2013, before the disciplinary charges were filed,

plaintiff filed this action against the Township, Chief Muniz, and the Township's

Business Administrator. In his complaint, which was later amended, he alleges

violations of his equal protection rights and of CEPA. 1 The complaint also

alleged common law slander, libel, and defamation. Those common law claims,

however, were dismissed and plaintiff is not appealing from those dismissals.

      The parties to the civil action engaged in and completed discovery.

Defendants then moved for summary judgment, contending that plaintiff did not

have a viable equal protection claim because such claims were not available to

public employees. See Engquist, 553 U.S. at 594. Defendants also argued that

plaintiff's CEPA claims were precluded under principles of collateral estoppel

as applied by our Supreme Court in Winters. In response, plaintiff opposed

defendant's motions and cross-moved for partial summary judgment contending

that he had established a prima facie case under CEPA.

      The trial court heard oral argument and, on September 4, 2018, issued

orders (1) granting summary judgment to defendants and dismissing with

prejudice plaintiff's constitutional and CEPA claims; (2) denying plaintiff's



1
  Plaintiff only provided us with the second amended complaint and the record
does not include the original complaint.
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cross-motion for partial summary judgment on his CEPA claims; and (3)

granting summary judgment to defendants and dismissing with prejudice

plaintiff's slander, libel, and defamation claims.

      The trial court explained the reasons for its ruling in a seventeen-page

written opinion issued with its orders. The court adopted the reasoning of the

United States Supreme Court in Engquist and held that a class-of-one equal

protection claim is not available in the public employment context. The court

also found that plaintiff raised retaliation as a defense in the administrative

disciplinary proceedings and, therefore, was estopped from relitigating the

retaliation issue in his CEPA action. In that regard, the trial court found that our

Supreme Court's decision in Winters controlled. The trial court also went on to

evaluate the merits of plaintiff's CEPA claim. The court found that plaintiff had

not established a prima facie case under CEPA because the Township had

established that it had terminated plaintiff for misconduct.

      Plaintiff now appeals from the orders granting summary judgment to

defendants, dismissing his constitutional and CEPA claims, and denying him

partial summary judgment on his CEPA claims. As already noted, plaintiff is

not appealing the order dismissing his claims of slander, libel, and defamation.




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                                        II.

      On appeal, plaintiff raises three arguments. He contends that the trial

court erred in (1) granting summary judgment and dismissing his class-of-one

equal protection claim; (2) granting summary judgment and dismissing his

CEPA claims; and (3) denying his motion for partial summary judgment as to

his prima facie case under CEPA.        We are not persuaded by any of these

arguments. We analyze his constitutional equal protection claim and then his

CEPA claims. Because we conclude that plaintiff is estopped from relitigating

his retaliation claims, we need not reach plaintiff's contention that he established

a prima facie case under CEPA.

      Initially, we identify our scope of review. We review a grant of summary

judgment de novo, using the same standard that governed the trial court's

decision. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018)

(citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Summary judgment will be

granted when "the evidential materials submitted by the parties," viewed in the

light most favorable to the non-moving party, show that there are no "genuine

issues of material fact," and that "the moving party is entitled to summary

judgment as a matter of law." Grande v. Saint Claire's Health Sys., 230 N.J. 1,

23-24 (2017) (quoting Bhagat, 217 N.J. at 38); accord R. 4:46-2(c).


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      A.      Plaintiff's Class-of-One Equal Protection Claim

      In count one of his complaint, plaintiff asserts that defendant Muniz

violated his equal protection rights under the New Jersey Constitution. In that

regard, plaintiff contends that while he is not part of a protected class, he was

treated differently from other police officers in retaliation for his "protected"

activities.

      In some circumstances, an equal protection claim can be asserted even

when the plaintiff has not alleged discrimination on the basis of membership in

a protected class. Engquist, 553 U.S. at 598. Such "class-of-one" claims require

that a plaintiff show that he or she was (1) intentionally treated differently from

other people who are similarly situated, and (2) there is no rational basis for the

difference in treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000); accord Paul Kimball Hosp., Inc. v. Brick Twp. Hosp., Inc., 86 N.J. 429,

448 (1981); Radiation Data, Inc. v. N.J. Dep't of Envtl. Prot., 456 N.J. Super.

550, 562 (App. Div. 2018).

      Plaintiff concedes, as he must, that the United State Supreme Court has

ruled that Fourteenth Amendment class-of-one claims do not apply to public

employment. Engquist, 553 U.S. at 594. In Engquist, the Court interpreted the

equal protection clause of the federal Constitution, as applied to the states


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through the Fourteenth Amendment, and held that a public employee cannot

state a claim under the Equal Protection Clause by alleging that she was fired

from her job for arbitrary and malicious reasons that essentially singled her out

as a class-of-one. Ibid. Specifically, plaintiff argued that she was denied a

promotion, and ultimately laid-off because of a grudge held by a supervisor.

Ibid. The Court reasoned that the Equal Protection Clause is not implicated in

circumstances where "government employers are alleged to have made an

individualized, subjective personnel decision in a seemingly arbitrary or

irrational manner." Id. at 605. The Court went on to reason that the class-of-

one theory of equal protection is simply a "poor fit in the public empl oyment

context" and that to treat employees differently is not to "classify them in a way

that raises equal protection concerns," but rather is "simply to exercise the broad

discretion that typically characterizes the employer-employee relationship."

Ibid.

        Plaintiff argues that New Jersey should adopt a different rule when

applying the equal protection concepts embodied in New Jersey's Constitution.

See N.J. Const. art. I, ¶ 1. In making that argument, plaintiff cites to our

Supreme Court's decision in Greenberg v. Kimmelmann, 99 N.J. 552 (1985). In

Greenberg, the Court stated, that in certain circumstances, "analysis of


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fundamental rights under the New Jersey Constitution differs from analysis of

those rights under the United States Constitution." Id. at 567. Neither our

Supreme Court nor this court has yet to address in a published opinion whether

New Jersey will apply the Engquist holding to the equal protection concepts

protected by New Jersey's Constitution.

      Contrary to plaintiff's contention, we perceive no need, and indeed a

substantial downside to adopting under the New Jersey Constitution the class -

of-one theory. As the United States Supreme Court held under the federal

Constitution, we hold under the New Jersey Constitution that the class-of-one

theory is a "poor fit" for analyzing public employment decisions. See Engquist,

553 U.S. at 605. Our Legislature has enacted a comprehensive umbrella of

protections for public employees, including the review of public employee

disciplinary decisions by a Superior Court judge or the Civil Service

Commission. See N.J.S.A. 40A:14-150; N.J.S.A. 11A:2-6. In addition, CEPA,

the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and

public employee union contracts all serve to protect the interests of public

employees in fair treatment.

      Constitutionalizing employee grievances would interfere with the

discretion required when the government acts as an employer. As Chief Justice


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                                     12
Roberts explained in Engquist, recognizing the sort of claim plaintiff presses

"could jeopardize the delicate balance governments have struck between the

rights of public employees and 'the government's legitimate purpose in

promot[ing] efficiency and integrity in the discharge of official duties, and [in]

maintain[ing] proper discipline in the public service.'"        553 U.S. at 607

(alterations in original) (quoting Connick v. Myers, 461 U.S. 138, 150-51

(1983)).

      Moreover, the complaint that plaintiff seeks to redress – alleged unequal

treatment – is better addressed as a question of progressive discipline in the

employee grievance proceedings. In other words, if, as here, a public employee

has engaged in misconduct, it is not a defense to claim other employees also

engaged in misconduct. Instead, the only relevant issue is whether the employee

should be subject to similar or different discipline for the misconduct.

      Though we need not reach the merits of plaintiff's class-of-one argument,

plaintiff's allegations of disparate treatment illustrate why the remedy is a "poor

fit." Engquist, 553 U.S. at 605. Persons are similarly situated under the Equal

Protection Clause when they are alike in "all relevant aspects." Radiation Data,

456 N.J. Super. at 562 (citations omitted). Here, plaintiff contends that he was

treated differently from two police detectives when he was charged with


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misconduct related to the Moriarty stop and arrest. At his disciplinary hearing,

plaintiff also argued that he was treated differently from another officer who

issued fictitious warnings and received only a one-day suspension. In fact,

plaintiff was treated differently because his conduct was different both in kind

and degree from the conduct of the two detectives and the other police officer.

      Regarding the stop of Moriarty, plaintiff alleges that one of the detectives

reported to the other detective that Moriarty was intoxicated at a car dealership.

The second detective then passed that information on to plaintiff.           It is

undisputed, however, that neither of those detectives was involved in the stop

and arrest of Moriarty. Accordingly, those detectives were not similarly situated

with regard to plaintiff's misconduct arising out of his stop and arrest of

Moriarty. As already summarized, plaintiff was found to have lied both in the

arrest reports he prepared and in denying that he had had prior encounters with

Moriarty.

      Regarding the fictitious warnings, plaintiff was not similarly situated to

the other officer. While both officers issued a similar number of fictitious

warnings, plaintiff also falsified the number of traffic stops he made to improve

his apparent performance. The other officer also cooperated fully with the




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department's investigation and admitted to all of the charges against him. Thus,

that officer's conduct was different from plaintiff's conduct.

      B.    Plaintiff's CEPA Claims

      In Winters, our Supreme Court held that a plaintiff who unsuccessfully

raised retaliation as a defense in a disciplinary proceeding was barred by

principles of collateral estoppel from relitigating retaliation claims under CEPA.

212 N.J. at 88. Plaintiff contends that Winters does not apply because he did

not raise retaliation as a defense to the misconduct charges in his disciplinary

proceedings. Moreover, plaintiff argues that to the extent that retaliation was

raised, it was raised in connection with the Moriarty stop and arrest, which is

different and distinct from his whistleblower claims. We disagree and hold that

Winters applies and bars his CEPA claims.

      In Winters, the Court embraced a broad view of estoppel in employee

discipline cases. Id. at 86. The Court emphasized that New Jersey has "taken

an expansive and flexible approach in the application of equitable defenses."

Ibid. (quoting O'Keefe v. Snyder, 83 N.J. 478, 517 (1980) (Handler, J.,

dissenting)).   The Court held that a plaintiff who unsuccessfully raised

retaliation as a defense in the opening statement of his disciplinary proceeding

was estopped from thereafter bringing a retaliation claim under CEPA even


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                                       15
though the administrative proceeding did not explicitly decide the case based on

retaliation and the defense was not fully litigated during the administrati ve

proceeding. Id. at 71, 92.

      In reaching that conclusion, the Court in Winters determined that a

"litigant should not be permitted to participate in the administrative system

designed to promote a fair and uniform statewide system of public employee

discipline, raise a retaliation defense . . . and then hold back on the defense in

an attempt to save it for later duplicative litigation." Id. at 72-73 (internal

citation omitted). Instead, the Court noted that if the employee raises the

retaliation defense, both the employee and the employer "must live with the

outcome, including its potential preclusive effect on related employment-

discrimination litigation as a matter of equitable application of estoppel

principles." Id. at 73.

      In connection with his CEPA allegations, plaintiff identified two

whistleblowing activities: (1) his complaints about ticket-fixing; and (2) his

complaints about the manipulation of the investigation of Chief Muniz's relative.

The CEPA complaint also makes extensive allegations about the "Moriarty

Traffic Stop" and the fictitious warning charges and contends that those two

charges resulted from retaliation.


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      Before both the hearing officer and the Law Division judge on de novo

review, the plaintiff argued that his discipline was the result of retaliation. The

central theme of his defense was that Moriarty was a powerful political figure

and plaintiff was being treated unfairly to protect Moriarty and Chief Muniz,

who was allegedly closely associated with Moriarty. In making that retaliation

claim, plaintiff also raised his complaints about Chief Muniz's relative and the

ticket-fixing.

      For example, in her opening statement in the misconduct hearing

addressing the Moriarty stop, plaintiff's counsel argued that Chief Muniz had a

conflict of interest in light of the whistleblowing complaints against him and the

chief's connections to Moriarty. During the hearing, plaintiff's counsel also

asked questions related to the whistleblowing activity. In that regard, plaintiff's

counsel asked Muniz about plaintiff's internal affairs complaints against the

police department and him. On de novo review, plaintiff again raised arguments

about retaliation contending that Moriarty's status as a prominent assemblyman

created a "politically-charged and conflicted backdrop" to the misconduct

charges.

      These examples illustrate that plaintiff made retaliation a central part of

his defense to the disciplinary charges. Even if he did not fully develop those


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contentions, as in Winters, he nonetheless had the opportunity for a full hearing

on his retaliation claims. Consequently, this is not a situation where plaintiff

asserted CEPA claims and then expressly reserved his right to pursue those

claims in court as opposed to the administrative disciplinary proceedings. See

Wolff v. Salem Cty. Corr. Facility, 439 N.J. Super. 282, 301-02 (App. Div.

2015) (Sabatino, P.J.A.D., concurring) (noting that an employee need not raise

a retaliation defense in an administrative disciplinary proceeding, but if he

voluntarily did, then Winters applies and controls).

      We specifically reject plaintiff's argument that he can raise one type of

retaliation and preserve his claims as to other types of retaliation. A review of

the proceedings both before the hearing officer and on de novo review before

the Law Division judge confirms that plaintiff vigorously argued that his

misconduct charges were the result of retaliation for arresting and charging

Moriarty for DUI. No matter how that argument is cloaked, it is a retaliation

claim because plaintiff is contending that he was only being disciplined in

retaliation for ticketing a prominent political figure. When read in the light most

favorable to plaintiff, his CEPA claim does not necessarily rely on the Moriarty

stop as a whistleblowing activity. Nevertheless, the Moriarty stop and the




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misconduct that arose from it, is clearly a fundamental part of plaintiff's CEPA

claims.

      In Winters, the Court expressly rejected this type of throttle-back

litigation tactic. The Court also noted that it would be "unseemly" to ask a jury

to second-guess the results of an employee discipline hearing after the employee

has had a full and fair hearing in administrative proceedings accorded by the

Legislature. Winters, 212 N.J. at 74. Indeed, the Court put such employees on

notice "that integration of employer-retaliation claims should be anticipated and

addressed where raised as part of the discipline review process." Ibid.

      In summary, the trial court's decision to grant summary judgment to

defendants was correct both on the constitutional and CEPA claims. Because

the CEPA claims were precluded from being relitigated, we need not address

plaintiff's argument that he established a prima facie case under CEPA.

Nevertheless, we note that such an argument would be hard to sustain given the

finding that plaintiff had been discharged for engaging in misconduct.

      Affirmed.




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