                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-0543-13T3

MICHAEL WOLFF,
                                           APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                               January 29, 2015
v.                                             APPELLATE DIVISION

SALEM COUNTY CORRECTIONAL
FACILITY and COUNTY OF SALEM,

     Defendants-Respondents.
_______________________________________

          Argued September 22, 2014 – Decided January 29, 2015

          Before Judges Sabatino, Guadagno and Leone.

          On appeal from the Superior Court of New
          Jersey, Law Division, Salem County, Docket
          No. L-163-11.

          Anthony F. DiMento argued the cause for
          appellant (Elkind & DiMento, attorneys; Mr.
          DiMento and Thomas Connelly, on the brief).

          Matthew  C. Weng argued the cause for
          respondents   (Chance   &   McCann, L.L.C.,
          attorneys; Mr. Weng, on the brief).

     The opinion of the court was delivered by

LEONE, J.A.D.

     In Winters v. North Hudson Regional Fire & Rescue, 212 N.J.

67   (2012),    our   Supreme   Court   held   that    a   plaintiff   who

unsuccessfully raised retaliation as a defense in a disciplinary

proceeding was barred by the principles of collateral estoppel
from    thereafter         raising       a      retaliation        claim        under       the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1

to    -14.      Here,    plaintiff       Michael        Wolff    appeals       from     a   Law

Division       order    granting       summary     judgment       and    dismissing         his

complaint claiming retaliation in violation of the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49.                            The court ruled

that, under Winters, supra, 212 N.J. at 96-97, plaintiff's claim

was    barred    because       he   raised      retaliation       as     an    unsuccessful

defense in a disciplinary proceeding before an Administrative

Law Judge (ALJ).          We hold that Winters applies to plaintiff and

bars     his     retaliation           claims      under        N.J.S.A.        10:5-12(d).

Accordingly, we affirm.

                                              I.

       The     following       facts    can       be    discerned       from    the      ALJ's

opinion, the portion of plaintiff's testimony before the ALJ

plaintiff has provided, and the documentary evidence.                             In 1990,

plaintiff became employed as a corrections officer by defendant

Salem    County        Correctional          Facility      (SCCF),       an     agency       of

defendant       County    of    Salem     (the     County).         In    January        2009,

plaintiff began complaining that Lieutenant Nobles improperly

allowed overtime to an officer.                        Plaintiff is Caucasian, and

both Nobles and the officer are African-American.                                Plaintiff

filed    "operations/incident"            reports       raising     discrimination            in




                                              2                                       A-0543-13T3
overtime       and    complaining          that       he   was     "being      discriminated

against for bringing the problem to light."                                 Plaintiff then

raised the issue with Nobles and with Lieutenant Lape, allegedly

saying    that       there    was    "a    cover      up   about       overtime,     it's   all

racial," and claiming that he had been retaliated against in

various       ways.          Nobles       and     Lape     each        filed    an   Employee

Disciplinary Offense Report (EDOR) against plaintiff, alleging

plaintiff      was     threatening         and    insubordinate.            Plaintiff       then

filed reports claiming this too was retaliation in violation of

N.J.S.A. 34:19-4 of CEPA, which he called the "Whistleblower

Protection       Act."              The    County's            Human     Resources       Office

investigated plaintiff's allegations.

       The warden of SCCF told plaintiff to appear at a post-

investigation meeting on June 15, 2009.                          On that date, plaintiff

met    with    the    sheriff,       the    warden,        a    deputy    warden,    and    the

Deputy County Administrator (DCA).                         The DCA read a letter to

plaintiff which included the following.                          The investigation found

plaintiff's claims against Nobles and Lape were unsubstantiated.

This     was     plaintiff's          third          unsubstantiated           discrimination

complaint, and disciplinary action would be taken if a complaint

was    intentionally          dishonest.             The   investigation          also    found

plaintiff had violated the County's Workplace Violence Policy

during his confrontations with Nobles and Lape.                            The sheriff and




                                                 3                                    A-0543-13T3
the   County     Administration       were     pursuing     disciplinary       action,

including mandatory training.              If plaintiff violated the policy

again,     the   County     would   take     disciplinary       action   that     could

include termination.

      The    warden    then    read    and     gave    plaintiff     a   Preliminary

Notice      of     Disciplinary         Action         (PNDA)       regarding        his

confrontations with Nobles and Lape.                  The PNDA charged plaintiff

with insubordination, conduct unbecoming a public employee, and

other    sufficient       cause.      N.J.A.C.     4A:2-2.3(a)(2),        (6),     (11)

(2009).1    It assessed a 180-hour suspension.

      What happened next was disputed.                 According to the sheriff,

warden, and the DCA, plaintiff became agitated and upset.                             He

claimed the "Whistleblowers Act" protected him and was being

violated by this "repercussion."               He stood up, said they should

contact his lawyer, and started to leave.                    The sheriff, without

using profanity, repeatedly instructed plaintiff to sit down.

Plaintiff refused.           The sheriff warned plaintiff he was being

insubordinate,        and   plaintiff      began      to   return   to   his    chair.

However, plaintiff termed the meeting "sh*t" or "bullsh*t."                          The

warden testified he feared plaintiff would attempt to push past

the sheriff and cause a physical confrontation.                     The sheriff and


1
  "Other sufficient cause" has since been renumbered as N.J.A.C.
4A:2-2.3(a)(12) (2014).



                                           4                                   A-0543-13T3
the DCA testified they felt physically threatened.                         Plaintiff

left the room, calling them "f*cking clowns."

       Plaintiff's     version      of    the   events    differs    as     follows.

When, following his attorney's advice, plaintiff stood up, told

them to contact his attorney, and began to leave, the sheriff

repeatedly told him to "sit the f*ck down."                    Plaintiff began to

comply, but the sheriff screamed profanities at him, got into

his "personal body space," and made physical contact with him

several times.         The sheriff told him he was terminated, and

chased him out of the room.               Plaintiff did not use profanity or

call the sheriff, warden, or the DCA "f*cking clowns" to their

faces.       Rather, in the hallway, plaintiff had a loud telephone

conversation with his wife in which he used profanity and termed

those in the meeting room "f*cking clowns."

       On cross-examination before the ALJ, plaintiff testified

that    he    had   been   retaliated       against.      In    particular,      when

plaintiff was asked why the DCA would testify adversely to him,

plaintiff       replied    that     all    of   his    complaints    had    alleged

violations, not only of overtime policy but also of federal law,

"and I threatened to disclose those violations."                    "[O]nce they

started reprising [sic] against me it also made it a [CEPA]

violation."         Plaintiff elaborated that in all his reports, he

had    listed    not   only   the    overtime     violations,     but     also   "the




                                           5                                A-0543-13T3
violation of the whistle blower policy, . . . whistle blower

retaliation, [and CEPA] violation."                       Plaintiff added that the

County knew that he would "probably file a [CEPA] law suit [and]

I actually believe that is why I was retaliated against."

    Further,         when    asked      about     being    upset     at    the   meeting,

plaintiff testified that he "felt that I was in that meeting for

a reason that they could get a reaction out of me so that they

could get one more insubordination charge because based on the

county policy if you have four of the same charges . . . they

can terminate you."           The insubordination charges regarding Lape

and Nobles had given plaintiff a total of three such charges, so

"they   needed       one    more     insubordination        charge    to    be     able   to

terminate me."             Plaintiff "knew they wanted to get me on an

insubordination        charge      so    I   purposely      kept     my    mouth    shut."

Rather than "give them what they are looking for I wanted to get

out of that office as fast as possible."                      When he attempted to

leave, "they took a desperate attempt to get me to act out."

    After        a     hearing,         defendants         terminated       plaintiff's

employment based on the PNDA.                     Plaintiff requested a hearing

before the Office of Administrative Law.                     The case was assigned

to the ALJ, who heard the testimony set forth above.                                In his

decision the ALJ expressly acknowledged plaintiff's assertions

"that   the   charges         were      brought    against     him    as    retaliation




                                             6                                     A-0543-13T3
because      he   was   going    to     file    a    Whistleblower        suit     and    a

complaint with the Department of Labor," that "the County was

setting him up," and that the sheriff screamed at him to goad

him into committing insubordination so the County could fire

him.

       The ALJ found plaintiff's testimony regarding what was said

in the conference room on June 15, 2009, to be "incredible and

unbelievable."          The ALJ determined that the sheriff did not

scream or use profanity.               Rather, the ALJ found plaintiff lost

emotional control, used profanity during and after the meeting,

and called his superiors "f*cking clowns" as he left the room.

The ALJ ruled that this insult, and plaintiff's actions at the

meeting, "cannot be countenanced."

       Nonetheless,      the     ALJ    found       that     plaintiff's        emotional

outburst was just a "vent," and that he made some effort to

comply    with    the    sheriff's       orders.           The   ALJ    dismissed      the

insubordination charge, sustained the conduct unbecoming charge,

and merged the other sufficient cause charge.                          The ALJ reduced

the penalty from termination to suspension for six months.

       The    County     filed    exceptions          with       the    Civil    Service

Commission.2       The Commission agreed with the ALJ's findings of


2
  Plaintiff filed cross-exceptions, but simply supported                               the
ALJ's decision, which he later termed a "fair resolution."



                                           7                                     A-0543-13T3
fact,    determination       of    the   charges,   and     penalty,        and   also

ordered back pay.           The Commission upheld the reduction of the

penalty,     noting    that       plaintiff's    reaction       at    the      meeting

"stemmed     from      his        perception     that     the        charges      were

'repercussions'       for    filing      his   [overtime]    complaint."             No

appellate review was sought of the Commission's final agency

decision.3

      On May 4, 2011, plaintiff filed a complaint in the Law

Division, alleging that the County violated N.J.S.A. 10:5-12(d)

by retaliating against his complaint of racial discrimination in

the     distribution    of    overtime.         Plaintiff       claimed      he    was

retaliated against when Nobles and Lape filed the EDORs, when

the warden and the DCA filed the PNDA against him, during the

June 15, 2009 meeting, and in the resulting disciplinary action.

Defendants moved for summary judgment, which Judge Robert J.

Malestein denied without prejudice on July 27, 2012.                     Defendants

renewed the motion after discovery ended, and the judge again

denied summary judgment.

      Defendants sought reconsideration, claiming for the first

time that plaintiff's suit was barred by issue preclusion under


3
  Plaintiff did not return to               his position as a corrections
officer.   Instead, he went on             special leave, settled separate
litigation against the County              involving a prior injury, and
received a disability retirement           pension.



                                          8                                  A-0543-13T3
Winters, which had been decided September 13, 2012.                              On August

27, 2013, Judge Malestein granted reconsideration and dismissed

plaintiff's complaint.              The judge's written opinion explained

that "[b]asic principles, as elucidated by the Winters Court,

would preclude relitigation" of plaintiff's retaliation claim.

The   judge       found    that    plaintiff     had     "a    full        and    complete

opportunity" to present his retaliation claim to the ALJ, that

the issue of retaliation "was clearly raised and considered" in

the ALJ proceeding, and that the ALJ implicitly found plaintiff

"failed    to     establish    that    the     discipline      was    the        result    of

retaliation."        The judge also found that the Law Division suit

involved        "exactly     the    same      parties    and     the        exact       same

arguments."

      As    the    judge     recognized,       Winters    reaffirmed             that   "our

courts will accord administrative rulings that otherwise satisfy

collateral        estoppel        standards     preclusive       effect            if     the

proceedings       provide     'significant       procedural          and     substantive

safeguards,' similar to those that are provided to litigants in

courts     of    law."      Winters,    supra,     212    N.J.       at     87    (quoting

Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 524 (2006)).

Winters noted that civil service proceedings have been held to

meet that standard.          See id. at 88 (citing Ensslin v. Twp. of N.




                                           9                                       A-0543-13T3
Bergen,   275    N.J.   Super.   352,    371   (App.    Div.    1994),     certif.

denied, 142 N.J. 446 (1995)).

    Winters       reiterated     the      factors      required      for      issue

preclusion.      Id. at 85 (quoting Olivieri, 186 N.J. at 521).                  The

judge applied those factors to plaintiff's complaint:

           (1) the issue to be precluded is identical
           to the issue decided in the prior proceeding
           (retaliation); (2) the issue was actually
           litigated in the prior proceeding (raised as
           a defense); (3) the court in the prior
           proceeding issued a final judgment on the
           merits (6 months suspension plus payment of
           backpay); (4) the determination of the issue
           was essential to the prior judgment (if the
           [ALJ] believed that the discipline was
           imposed   by   employer   as    a   result   of
           retaliation for filing complaints about
           discrimination there would have been no
           discipline); and (5) the party against whom
           the doctrine is asserted was a party or in
           privity   with   a  party    to   the   earlier
           proceeding.

Therefore,      the   judge   concluded      that,   "just     as   in   Winters,

[p]laintiff herein should be prevented from using two separate

forums to litigate the same set of facts[.]"                 The judge granted

defendants' motion for summary judgment.             Plaintiff appeals.

                                       II.

    Summary judgment must be granted if "there is no genuine

issue as to any material fact challenged and that the moving

party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c).         The court must "consider whether the competent




                                        10                                 A-0543-13T3
evidential materials presented, when viewed in the light most

favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party."            Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995).            As "appellate courts 'employ

the same standard that governs the trial court,'" we review

these determinations de novo, and the "trial court rulings 'are

not entitled to any special deference.'"             Henry v. N.J. Dept. of

Human Servs., 204 N.J. 320, 330 (2010) (citation omitted).                    We

must hew to that standard of review.

      We   agree   with   the    reasons     given   in    Judge   Malestein's

written opinion.     We add the following.

                                      A.

      Plaintiff contends that the 2012 Winters decision cannot be

applied    retroactively,       because     his   disciplinary       proceeding

before the ALJ was in 2009.          However, plaintiff's action in the

Law Division was pending when Winters was decided.                   Thus, the

issue before us is whether the Law Division properly looked to

the   Supreme   Court's   decision    in    deciding      the   reconsideration

motion.4


4
  Because the Law Division case was pending when Winters was
decided, we consider only "pipeline retroactivity."    Harrison
Redev. Agency v. DeRose, 398 N.J. Super. 361, 420 (App. Div.
2008).  We have no occasion to consider whether Winters should
                                                    (continued)


                                      11                               A-0543-13T3
       Generally, a court resolving a legal issue must apply the

case law in existence at the time of its decision.                              "'[T]he

general rule applied in civil cases [is] that a new ruling shall

apply to all matters that have not reached final judgment.'"

Kibble    v.   Weeks       Dredging    &    Constr.     Co.,    161    N.J.    178,   192

(1999).        Thus,       "the     'traditional        rule'    is    that    judicial

decisions are presumed to apply retroactively" in civil cases.

In re Contest of Nov. 8, 2011 Gen. Election of Office of N.J.

Gen. Assembly, 210 N.J. 29, 68 (2012).                          A party seeking to

escape     that        presumption     must      show    the     judicial      decision

"establish[ed]         a   new    principle      of   law,    either    by    overruling

clear past precedent on which litigants may have relied, . . .

or by deciding an issue of first impression whose resolution was

not    clearly    foreshadowed."            Ibid.     (internal       quotation    marks

omitted).         The      court    then    considers        whether    retrospective

application       of    the   new    rule   will      further    its    operation,     or

produce substantial inequitable results.                     Ibid.

       Plaintiff argues that Winters established a new rule of

law.     However, Winters did not overrule past precedent or decide


(continued)
be   granted  complete  retroactivity,   which  would  make   it
applicable to cases "'where final judgments have been entered
and all avenues of direct review exhausted.'" State v. Colbert,
190 N.J. 14, 23 (2007).     That "potentially would expose the
judicial system to the undue burden of resolving numerous
concluded matters." Olds v. Donnelly, 150 N.J. 424, 450 (1997).



                                            12                                  A-0543-13T3
an issue of first impression not foreshadowed by prior cases.

See Malinowski v. Jacobs, 189 N.J. 345, 352 (2007).                 Rather, as

set forth above, Winters applied long-standing "general estoppel

principles" that bar the relitigation in judicial proceedings of

issues decided in administrative proceedings.                 Winters, supra,

212 N.J. at 85.         The Court stressed that "[w]e have recognized

that    concerns     about    finality     and   consistency    .     .    .    are

applicable to the intersection of judicial and administrative

proceedings."      Id. at 87 (citing Hennessey v. Winslow Twp., 183

N.J. 593, 599-600, 604 (2005)).             Indeed, the Court stated: "We

have held that estoppel principles can apply to findings made in

administrative       proceedings     and     affect   subsequent          judicial

proceedings.       We    reaffirm    that    principle   in    this       matter."

Winters,    supra,      212   N.J.   at     73   (emphasis    added)       (citing

Hennessey, supra, 183 N.J. at 599-600).

       Even the dissenter in Winters agreed that, under existing

law,

           if a public employee raises retaliation as a
           defense in an administrative disciplinary
           proceeding, if he is given a full and fair
           opportunity to litigate the defense, and if
           the Office of Administrative Law and the
           Civil Service Commission adjudicated that
           defense on the merits adversely to the
           employee, he may be collaterally estopped
           from pursuing a CEPA claim.

           [Id. at 93 (Albin, J., dissenting).]




                                      13                                  A-0543-13T3
      The    dispute      in     Winters         was       whether     those    things      had

happened.      Ibid.      The Court found they had, despite "Winters's

litigation        tactics       to    avoid          the    application        of     estoppel

principles," namely that he "chose not to present proofs to

demonstrate his claim of retaliation."                            Id. at 87, 90.            The

Court     ruled    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 (as plaintiff did here), and then

hold back on the defense in an attempt to save it for later

duplicative litigation."             Id. at 72 (citation omitted).

      Plaintiff        notes         that         "prospective          application          is

'particularly appropriate when a court renders a first-instance

or   clarifying      decision        in    a    murky      or    uncertain     area    of   the

law.'"      Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 587

(2012).      However, the principles of collateral estoppel applied

in Winters were not murky or uncertain, but were "well-settled."

Olivieri, supra, 186 N.J. at 521.                      Winters simply applied those

principles to the scenario of an employee "throttling back on

his claim of retaliation in the administrative proceeding after

having initially raised it."                   Winters, supra, 212 N.J. at 88.

      To show Winters is new law, plaintiff cites the Court's

statement:     "We    therefore           put   users       of   the   public       employment




                                                14                                    A-0543-13T3
system    of   employee   discipline    on   notice    that     integration    of

employer-retaliation claims should be anticipated and addressed

where raised as part of the discipline review process."                  Id. at

74.   Defendants argue this means that employees must raise any

retaliation claim in the disciplinary proceeding.                  We need not

determine the precise import of the Court's statement, because

the Court made clear it did not preclude application of its

holding    to    plaintiffs    who     do    raise     retaliation      in    the

disciplinary proceedings.       The Court explained: "It is because

Winters raised the issue that we differentiate his case from

past disciplinary actions that preceded the notice provided in

this matter, where an employee might have relied on the fact

that retaliation was not an essential part of the employer's

case."     Id. at 91 n.6 (citing Scouler v. City of Camden, 332

N.J. Super. 69, 74-75 (App. Div. 2000)).              Because plaintiff here

raised retaliation before the ALJ, it is appropriate to apply

the Winters decision.

      Furthermore,    retrospective         application    of     the   Winters

decision will advance its goals to avoid "the spectacle, and

resulting disrepute, of inconsistent litigated matters involving

the same transactional set of facts."             Id. at 72-73.         It will

also prevent "the confounding wastefulness of such a result,"

and will diminish the "disrespect of the legislatively created




                                       15                               A-0543-13T3
forum for supervision over, and resolution of, public employee

discipline in this state."              Id. at 73.          "It is unseemly to have

juries second-guessing major public employee discipline imposed

after litigation is completed before the Commission to which the

Legislature has entrusted review of such judgments."                              Id. at 74.

    Plaintiff          has     also   failed       to   show      that       it     would    be

substantially inequitable to apply Winters to him.                                The Court's

decision     in   Winters        is    even-handed:         if    in     a    disciplinary

proceeding,       an     "employee          raises      a     claim      that        employer

retaliation at least partially motivated the decision to bring

the charge or the level of discipline sought, then both the

employee and employer must live with the outcome, including its

potential preclusive effect on related employment-discrimination

litigation."      Id. at 73.          As Winters ruled, "it is not unfair to

require [plaintiff] to present the defense that he raised in the

administrative         forum    and    to    accept     the      consequences         of    his

strategy."    Ibid.

    Plaintiff          also     notes       that     prospective       application          is

appropriate "when the affected party 'reasonably relied on a

plausible, although incorrect, interpretation of the law,' or 'a

member of the public could reasonably have relied on a different

conception of the state of the law.'"                         Selective, supra, 208

N.J. at 587.      Plaintiff argues that he and his counsel relied on




                                             16                                      A-0543-13T3
the allegedly different conception of the law before Winters.

However, plaintiff has not cited any prior published opinion

holding     that   collateral   estoppel     would    not   apply   where    an

employee raised and testified to retaliation at the disciplinary

hearing.5     Nor has plaintiff pointed to anything in the record

indicating any such reliance, such as express preservation of a

subsequent retaliation lawsuit.          Indeed, the sequence of events

here — defendant's failure to challenge the rulings of the ALJ

and   the   Commission,   his   retirement    on     disability,    and   then,

after more than a year, his filing of this LAD suit — suggests

the decision to file the suit occurred long after the ALJ's

hearing.     Finally, plaintiff has not explained what additional

testimony or exhibits he would have presented to the ALJ to

prove     retaliation     had   Winters    been       decided   before      the

disciplinary       hearing.     "Nothing     prevented      plaintiff      from

presenting his defense more fully than he did."             Winters, supra,

212 N.J. at 73.




5
  Plaintiff cited Thornton v. Potomkin Chevrolet, 94 N.J. 1
(1983), but Thornton involved the different issue of whether the
entire controversy doctrine barred presentation before the
Division on Civil Rights of a discrimination claim the plaintiff
failed to raise in a grievance arbitration.   Id. at 3, 5 ("The
entire controversy doctrine is not applicable here because there
is no comparability between private contractual arbitration and
court or administrative adjudications.").



                                    17                                A-0543-13T3
      Plaintiff     does    not     assert      he   would   have       abandoned       any

defense of retaliation.            Such an assertion would be dubious.                  As

plaintiff's brief admits, the ALJ "could have easily have found

that [plaintiff's] reference to [the sheriff, the warden, and

the DCA] as 'f[*]cking clowns' constituted insubordination," and

thus the grounds for termination.                If plaintiff's version of the

events at the meeting was disbelieved, as it largely was, his

only defense would have been retaliation — the argument that

others had not been as severely disciplined, and that severe

discipline   was    sought     against       him     because      of    his    protected

conduct.         Further,     as     the     Commission        noted,     plaintiff's

misperception of retaliation was viewed as a genesis for his

misconduct and a basis to reduce the punishment to suspension.

      Therefore,      plaintiff        has       failed      to        show     it      was

substantially inequitable for the Law Division to apply the law

existing at the time of its decision, including the Supreme

Court's pertinent opinion in Winters, to decide the pre-trial

motion pending before it.

                                           B.

      Plaintiff     would    have     us   distinguish       Winters          because    it

precluded    a    claim     under    CEPA,      which   provides        "relief      from

retaliatory adverse employment action by an employer."                            Id. at

72.   He argues Winters has no application to his complaint under




                                           18                                    A-0543-13T3
the LAD.    He notes the LAD is much broader than CEPA, because it

prohibits discrimination, not merely retaliation.

     We need not address whether Winters applies to all LAD

claims, because it plainly applies to plaintiff's claim, which

is   brought    under   the    LAD    provision    most    akin     to   CEPA.

Plaintiff's     complaint     alleges      retaliation    in   violation    of

N.J.S.A. 10:5-12(d), the provision of the LAD which makes it

unlawful "[f]or any person to take reprisals against any person

because that person has opposed any practices or acts forbidden

under this act[.]"      We see no reason why Winters would not apply

to a retaliation claim under N.J.S.A. 10:5-12(d) when it applies

to a retaliation claim under CEPA.

     Plaintiff stresses that the LAD is remedial legislation.

However, CEPA is similarly remedial legislation.                  The Supreme

Court in Winters expressly noted its "clear understanding of the

important public policy enshrined in CEPA," which is "a very

important      remedy   against      wrongful     employment      practices."

Winters, supra, 212 N.J. at 88-89.            The Court acknowledged that

public employees were protected by CEPA, and by disciplinary

procedures including review by an ALJ and the Commission.                Ibid.

     Nonetheless, the Court emphasized that those two protective

systems "can and must be reconciled, and not made duplicative

of, irrelevant to, or worst, inconsistent with, one another."




                                      19                             A-0543-13T3
Id. at 89.        "In the interest of promoting the public interest in

finality      and     consistency          in      judicial        and     quasi-judicial

proceedings involving the same transaction," the Court held that

Winters was "estopped from proceeding with his CEPA action."

Id.    at   92.      The    Court      reversed       our    ruling       that   collateral

estoppel      should        not      apply         because        "CEPA     is     remedial

legislation."             Id.   at   84.        The      same   needs      for    finality,

consistency,        and    reconciliation           of    the     judicial       and    quasi-

judicial systems exists here.                   Therefore, as the judge ruled,

whether the retaliation claim is under CEPA or the LAD, the end

result should be the same.

                                              C.

       Finally, plaintiff tries to distinguish Winters factually.

He notes Winters "raised his retaliation-themed defense in an

opening session with the ALJ and was told to present it as part

of his case in chief," and also raised it in his administrative

pleadings and argument.              Id. at 73, 91.          Plaintiff contends that

did not occur here.               However, plaintiff has not presented us

with    the   transcripts         of    any     portion      of    the     administrative

proceeding other than his testimony on the second day of the

hearing.6     Nor has plaintiff supplied us with his administrative


6
  Indeed, it does not appear that plaintiff has even presented us
with his whole testimony before the ALJ.          The transcript
                                                      (continued)


                                              20                                       A-0543-13T3
pleadings.7         Plaintiff has failed to provide us with a factual

basis to evaluate his contention.

       In     any    event,      plaintiff      went        further      in    raising     a

retaliation         defense    than     Winters      had.        Plaintiff      testified

before the ALJ that the disciplinary charge served on him at the

June 15, 2009 meeting, the allegedly provocative meeting itself,

and    the    subsequent       discipline,      were       all   retaliation     for     his

complaints of overtime discrimination.                      See id. at 91 (finding

that    "everything         Winters    pointed       to,    or   at,     was   supposedly

evidence of overall animosity and retaliatory bias").8                               Thus,

plaintiff offered far more testimony to support a retaliation

defense      in     the    administrative       proceeding        than    Winters,       who

"chose       not    to    present     proofs    to    demonstrate        his    claim     of

retaliation."            Id. at 90.




(continued)
provided is from the second day of the hearing, appears to start
midstream, and does not clearly identify which party's counsel
questions plaintiff.     Thus, it may omit some or all of
plaintiff's direct testimony.
7
  Plaintiff cites the ALJ's prehearing order, which listed the
issues to be resolved as the sufficiency of the evidence to
sustain the charges, and the appropriate penalty. However, the
prehearing order did not address the defenses.
8
  Moreover, plaintiff's testimony was echoed in the evidence
before the ALJ that he claimed at the meeting the discipline was
a "repercussion," and that his reports claimed retaliation.



                                           21                                     A-0543-13T3
       Plaintiff argues that retaliation was not a "central theme"

of his defense.        He refers to the Court's remark about Winters:

"Retaliation was a central theme of his argument and that he

chose not to present there his comprehensive proof of that claim

does not afford him a second bite at the apple in this matter."

Ibid.     The Court did not state that retaliation had to be a

central theme where an employee does present testimonial proof

of a retaliation claim, rather than "throttling back" as Winters

did.    Ibid.   The principles of issue preclusion are not limited

to the central issue or the only issue in a case, but apply to

any     issue   that     "'was      actually   litigated      in     the      prior

proceeding'" if "'the determination of the issue was essential

to the prior judgment.'"            Id. at 85 (quoting Olivieri, supra,

186 N.J. at 521).

       In any event, by presenting testimony to show retaliation,

plaintiff made retaliation a more central part of his defense

than    Winters's   unsupported      argument.    Indeed,     if     plaintiff's

version    of   events     was     rejected,   retaliation     was    his      only

remaining defense for his unacceptable comments.                     We see no

reason why Winters would permit plaintiff a second bite after a

more substantial first bite.

       Plaintiff claims that he did not "raise" the retaliation

defense,    because      his     retaliation   testimony     came    on     cross-




                                        22                                 A-0543-13T3
examination.           However,     plaintiff        affirmatively    raised

retaliation in response to neutral questions asking why the DCA

would testify adversely to him, and why he was upset at the

meeting.9      After    plaintiff    thus    volunteered     a   retaliation

defense, his counsel did not interpose an objection or move to

strike his answers that the employer was retaliating against

him.    There is no indication in the record supplied to us that

plaintiff's counsel requested the ALJ to disregard plaintiff's

retaliation testimony.       Nor is there any indication plaintiff

would have complained if the ALJ had found plaintiff's testimony

asserting    retaliation     to     be    credible     and   dismissed     the

disciplinary charges on that basis.          Here, it is sufficient that

the retaliation defense was raised in the disciplinary hearing

by plaintiff himself, for his own attempted advantage.

       Plaintiff contends it was improper to apply Winters because

there was no factual basis that "'(1) the issue to be precluded

is identical to the issue decided in the prior proceeding; [or]


9
  Thus, we are not faced with the situation where an employer
unilaterally and strategically injects retaliation into a
disciplinary proceeding by asking the employee on cross-
examination: "Do you think that you were retaliated against?"
We do not decide whether such a direct query can itself
manufacture collateral estoppel barring a future retaliation
suit under CEPA or the LAD, particularly where the employee is
not represented by counsel, who presumably would be attuned to
the legal implications of retaliation testimony. See Serrano v.
Underground Utils. Corp., 407 N.J. Super. 253 (App. Div. 2009).



                                     23                              A-0543-13T3
(2) the issue was actually litigated in the prior proceeding.'"

Ibid.     The judge properly rejected this contention, pointing out

that plaintiff, like Winters, raised retaliation as a defense

that the ALJ specifically discussed and "necessarily considered"

and rejected.      See id. at 91-92.

     Like the Court in Winters, we "are fully convinced that the

ALJ assessed his claim of retaliation, to the extent it was

supported, when he rendered his findings and conclusion," even

though     "it    was    not    addressed         specifically"    in       the     ALJ's

conclusions of law.           Id. at 91.10      A "claim that the disciplinary

charge was brought in retaliation for [protected conduct] is

solely    a    matter    of    defense"      in    a   disciplinary         proceeding.

Scouler,      supra,    332    N.J.   Super.      at   75.   In   "weigh[ing]         the

credibility of the employer's allegations of misconduct," the

ALJ must consider an employee's allegation that "the supervisor

may have had a motive other than the faithful performance of his

public duties for filing the charge and testifying against the

employee."       Ibid.        Thus, "evidence of retaliation at a civil

service       disciplinary      hearing"     is     "critical     to    a    fair    and




10
   Judge Malestein concluded that the ALJ "did not believe
[plaintiff] and clearly did not believe that the defense of
retaliation  in  relationship to  the   discipline warranted
discussion."



                                           24                                  A-0543-13T3
reliable     evaluation           of     the      credibility      of        the   witnesses

testifying in support of the charge."                     Ibid.

      Here, plaintiff initially raised retaliation as a defense

response     to    questions            about     why   defendants'          witness     would

testify     contrary        to     plaintiff's          testimony.            By   asserting

retaliation, plaintiff attempted to influence the fact-finding

and credibility determinations of the ALJ.                         As Judge Malestein

stressed,     the      ALJ        "did     not       believe     the        discipline       was

retaliatory, [or] he would not have ordered such discipline."

      Plaintiff did not appeal the aspects of the ALJ or the

Commission's decisions that were adverse to him.                               In light of

that history, Judge Malestein appropriately accepted — and did

not     second-guess        —     the     ALJ's      factual     assessments.            Those

assessments included, at least implicitly, a finding that the

employer's witnesses were credible about plaintiff's unbecoming

conduct and that they had not disciplined plaintiff for improper

retaliatory reasons as he had contended.

      The    Commission's              discussion       of     retaliation         was      more

limited.     That is understandable, as plaintiff did not seek to

overturn the ALJ's decision.                    To the extent plaintiff "did not

fully    present      his       defense    before       the    Commission      and     is    now

barred    from    a    more       expansive       presentation         of    his   claim      of




                                                25                                   A-0543-13T3
[retaliation in a subsequent judicial] action is a consequence

with which he must live."          Id. at 73.

    Plaintiff      claims    Scouler,       not    Winters,    is   the   pertinent

precedent here.      To the contrary, Scouler involved a different

statutory provision, and applied it to a different scenario.                         In

Scouler, we held that under the CEPA provision waiving other

rights, N.J.S.A.     34:19-8, an "employee who has filed a CEPA

action is not precluded from appealing a disciplinary action to

the Board simply because the employee alleges that his employer

instituted    disciplinary         charges       against    him     for   the      same

retaliatory    reasons      alleged    in    the    CEPA    action."         Scouler,

supra, 332 N.J. Super. at 72.                Scouler did not consider the

application   of   the   principles         of    collateral      estoppel    to   the

scenario of a plaintiff who files a retaliation lawsuit after

not appealing a disciplinary ruling in which he unsuccessfully

raised   retaliation.        The    Supreme       Court    subsequently      applied

those principles to that scenario in Winters.                  In this case, the

judge applied those same principles to an essentially similar

scenario.     Therefore, Winters, not Scouler, is the controlling

precedent here.     Id. at 91 n.6.

    Affirmed.




                                        26                                   A-0543-13T3
SABATINO, P.J.A.D., concurring.

     I join with my colleagues in affirming summary judgment and

the dismissal of plaintiff's retaliation claims under the Law

Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, based

upon principles of collateral estoppel expressed by the Supreme

Court in Winters v. North Hudson Regional Fire & Rescue, 212

N.J. 67 (2012).

     I write briefly to emphasize that our decision hinges on

the fact that plaintiff voluntarily chose to assert retaliation

in   the    course     of    his    testimony        in        the     administrative

disciplinary proceedings brought against him by his employer.

Neither    Winters     nor   our   decision     in    this           case    should     be

construed as signifying that an employee who believes that he or

she has been the victim of retaliation is obligated to raise

those    retaliation    claims     as   a   defense       in    such        disciplinary

cases.     More specifically, I reject this discrete aspect of

respondents'   argument      interpreting      Winters          to    impose     such   a

requirement.

     Repeatedly, the Court was very clear in Winters to confine

its preclusionary holding to circumstances in which the employee

actually "raised" or "posited" retaliation in the administrative
forum.11    The Court did not state or even suggest that it would

have applied preclusionary consequences if Winters had not, in

fact,    raised    the   issue       of    retaliation       in   his    disciplinary

proceeding.

     Indeed, it would be inequitable and contrary to the strong

anti-discriminatory          public       policies      of    the   LAD     and          the

Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1

to -14, to impose such an obligation upon an employee.                                   To

deprive an employee of that choice and mandate that he or she

assert     and    litigate     his    or        her   retaliation       claims      in     a

disciplinary proceeding brought by the employer would severely

curtail the employee's rights under the LAD and CEPA to the

important benefits of a Superior Court forum.                       Those benefits

11
   See, e.g., id. at 71 ("after positing a claim of employer
retaliation")   (emphasis  added);   ibid.   (noting   plaintiff's
"defensive theme of employer retaliation") (emphasis added); id.
at 72 (a litigant should not be permitted to "raise a
retaliation defense" and then "save it later for duplicative
litigation") (emphasis added); id. at 73 (where "the employee
raises a claim that employer retaliation at least partially
motivated the [employer's disciplinary] decision") (emphasis
added);   ibid.   (plaintiff   "raised   his    retaliation-themed
defense") (emphasis added); id. at 74 ("integration of employer-
retaliation claims should be anticipated and addressed where
raised as part of the discipline review process) (emphasis
added); id. at 84 ("Winters raised a retaliation defense before
the Commission") (emphasis added); id. at 90 (Winters "could not
fold his arms . . . on a [retaliation] claim that he has
raised") (emphasis added); id. at 90 n.6 ("[i]t is because
Winters raised the [retaliation] issue that we differentiate his
case from past disciplinary actions that preceded the notice
provided in this matter") (emphasis added).



                                            2                                    A-0543-13T3
include more expansive discovery, a trial by jury, and the full

panoply of remedies available in civil actions brought under

those statutes.

       In   essence,    respondents    advocate    that    Winters    should    be

extended from a precedent that enforces principles of collateral

estoppel     (or    "issue    preclusion")    as    to    matters     that   were

actually raised and litigated in an administrative forum, to a

precedent that imposes the far more extensive consequences of

res judicata (or "claim preclusion") to matters that were not

raised and litigated, but which could have been.                      See First

Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 351-

52 (2007) (noting the distinctions between res judicata and the

"less demanding" concept of collateral estoppel).                    In my view,

it would be inconsistent with the public policies established by

the Legislature in the LAD and CEPA to make that doctrinal leap.

       To be sure, if the employee elects to raise retaliation as

a   defense        to   a    disciplinary    action      and   persuades       the

administrative tribunal that his or her claims of such employer

misconduct are credible, that finding of fact may work to the

employee's advantage in a subsequent LAD or CEPA action, based

on principles of "offensive" collateral estoppel.                     See, e.g.,

Kortenhaus v. Eli Lilly & Co., 228 N.J. Super. 162, 164-65 (App.

Div.   1988)    (explaining      the   concept     of    offensive    collateral




                                        3                                A-0543-13T3
estoppel).        However,         if     the      employee     fails      to    convince      the

administrative         tribunal         that       retaliation      occurred,      he    or    she

will presumptively be stuck with that finding later in court.

The   employee,         for         whose          protection       the        State's      anti-

discrimination laws were drafted, should maintain the ability to

weigh the risks of these possible outcomes and choose whether or

not to raise retaliation in the administrative proceeding.

      I agree with my colleagues, for the detailed reasons set

forth in Judge Leone's thorough analysis of the record, that

plaintiff     Wolff      in        this      case       sufficiently       and    voluntarily

"raised"    in    the     administrative                proceeding       his     long-standing

contentions of retaliation.                     I am mindful that the retaliation

testimony     emerged         in     Wolff's           cross-examination         rather       than

during     his    direct       examination.                However,        as    Judge      Leone

carefully     points     out,        plaintiff           asserted    his       contentions      of

retaliation      in    response         to     a    generic     question        from    opposing

counsel, and his counsel did not move to strike his testimony or

seek to have the administrative law judge ("ALJ") disregard it.

Plaintiff was not manipulated, coaxed, or fooled into presenting

claims that he did not want the fact-finding ALJ to consider.

      Under      the     circumstances                 presented,    I     agree       with     my

colleagues that the collateral estoppel principles of Winters

should be enforced here.                  That said, I would go further than my




                                                   4                                     A-0543-13T3
colleagues do in footnote nine of the majority opinion, ante at

23,   and   state   my   view   that   more   pointed   questioning   from

opposing counsel — strategically designed to inject retaliation

issues into the administrative case unilaterally — should not be

countenanced.




                                       5                         A-0543-13T3
