NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3149-09T1 MARCO NEAD, Plaintiff-Appellant, v. UNION COUNTY EDUCATIONAL SERVICES COMMISSION, Defendant-Respondent. ______________________________

Submitted November 17, 2010 - Decided Before Judges Axelrad, R. B. Coleman, and J. N. Harris. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1753-09. DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C., attorneys for appellant (Lisa M. Fittipaldi, Thomas Basta, and Matthew A. Sacharoff, on the brief). Wiley, Malehorn, Sirota & Raynes, attorneys for respondent (James M. McCreedy, of counsel; Kristin V. Hayes, on the brief).

PER CURIAM

Plaintiff Marco Nead was a physical education teacher

employed by defendant Union County Educational Services

Commission (UCESC) from 1992 until 2006. He appeals from the

January 20, 2011

A-3149-09T1 2

dismissal of his six-count complaint that sought remedies

against his former employer pursuant to the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49;1 the Conscientious

Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and the

common law.2 We reverse, reinstate the entire complaint, and

remand for further proceedings.

I.

A.

The Law Division was not the first forum to address Nead's

grievances. In March 2007, Nead filed a civil rights complaint

against UCESC in the United States District Court for the

District of New Jersey, which foreshadowed the allegations in

1 The LAD-based claims include a failure to accommodate and constructive discharge (count one); discrimination (count two); and retaliation (count four). All of Nead's LAD claims are denominated as relating to his handicapped status, but under the LAD his status is that of a disabled person. N.J.S.A. 10:5-4.1; Victor v. State, 203 N.J. 383, 398 n.3 (2010) (noting the interchangeability of the terms handicapped and disabled in LAD jurisprudence). 2 The common law claims include (1) tortious infliction of emotional distress for the failure to accommodate (count three) and (2) tortious infliction of emotional distress for acts of retaliation that resulted in a constructive discharge (count five). We are unsure whether Nead intended these claims to be free-standing tort claims or just surplus descriptions of emotional harm mirroring one or more of his statutory causes of action. In like vein, if Nead was pursuing these tort claims as independent causes of action divorced from the LAD and CEPA, we are unaware of whether he complied with the notice requirements of the Tort Claims Act. See N.J.S.A. 59:8-8.

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his state action. Nead's federal complaint contained two counts

pursuant to the Federal Civil Rights Act of 1871, 42 U.S.C.A. §

1983 (Section 1983), as well as the state claims that are the

subject of this appeal.

Nead alleged that UCESC retaliated against him in violation

of his freedom of speech as guaranteed by the First Amendment,

and further contended that his rights under the Fourteenth

Amendment were violated because UCESC failed to protect his

safety, health, and welfare. As a threshold requirement, "a

suit under [Section] 1983 requires the wrongdoers to have

violated federal rights of the plaintiff . . . while acting

under color of state law." Groman v. Twp. of Manalapan, 47 F.3d

628, 638 (3d Cir. 1995).

After extensive discovery in the federal forum, UCESC

successfully moved for summary judgment. In April 2009, the

District Court found, among other things, that most of the

allegedly retaliatory acts were trivial for First Amendment

purposes; that is, they were not significant enough to

constitute actionable adverse employment consequences pursuant

to Section 1983's First Amendment jurisprudence. Furthermore,

the court held that Nead had failed to demonstrate that his

speech was a motivating factor in defendant's actions. Finally,

the court determined that for Fourteenth Amendment purposes,

A-3149-09T1 4

Nead could not demonstrate that UCESC had misused its authority

—— as opposed to just failing to use it —— to create

opportunities for Nead to be exposed to harm.

In dismissing all claims over which it had jurisdiction,

the District Court expressly declined to assert supplemental

jurisdiction over Nead's state claims. See 28 U.S.C.A. §

1367(c)(3). Accordingly, in its written opinion granting

UCESC's motion for summary judgment, the federal court did not

address the LAD, CEPA, or common law theories of liability. In

rapid succession, Nead sought review in the Court of Appeals for

the Third Circuit, and filed this action in the Law Division in

May 2009.

Soon after it was served, UCESC moved to dismiss the Law

Division complaint for failure to state a claim upon which

relief may be granted. R. 4:6-2(e). On December 8, 2009,

following several months in which the parties researched and

briefed the numerous issues, the Law Division denied UCESC's

motion, issuing a well-reasoned and comprehensive twenty-four

page written opinion explaining its rationale. We deem it

unnecessary to explicate this first opinion because UCESC

immediately applied "for an Order for Reconsideration

A-3149-09T1 5

pursuant to R[ule] 1:7-4 and R[ule] 4:49-2."3

On January 22, 2010, after a second round of briefing and

oral argument, the Law Division issued a detailed fourteen-page

written opinion, which reversed its initial determination,

dismissing Nead's entire complaint with prejudice. This appeal

followed in early March 2010.4

B.

Although this case was decided in the context of UCESC's

Rule 4:6-2(e) motion (and subsequent motion for

reconsideration), both parties unflinchingly appended a wealth

of discovery materials to their respective moving papers, going

far beyond the four corners of Nead's complaint. The motion

court readily considered all of these data, and therefore we are

obliged to treat its disposition as if it were decided as a

motion for summary judgment. See R. 4:6-2 ("If, on a motion to

3 We note that Rule 1:7-4 —— not Rule 4:49-2 —— governs applications for reconsideration of interlocutory orders, stating: "[m]otions for reconsideration of interlocutory orders shall be determined pursuant to R[ule] 4:42-2." According to Rule 4:42-2, orders that do not terminate the litigation "shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice." 4 On May 4, 2010, the Court of Appeals for the Third Circuit affirmed the dismissal of Nead's federal complaint. Nead v. Union Cnty. Educ. Servs. Comm'n, 378 Fed. Appx. 175 (3rd Cir. 2010). Thus, the only avenue of redress for Nead's grievances is through this pending appeal.

A-3149-09T1 6

dismiss based on the defense numbered (e), matters outside the

pleading are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and disposed

of as provided by R[ule] 4:46."). Accordingly, we consider the

facts in the light most favorable to plaintiff. Henry v. N.J.

Dep't of Human Servs., ___ N.J. ___, ___ (2010) (slip op. at 3);

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995); R. 4:46-2.

C.

Nead began his teaching career with UCESC in 1992. After

initially spending one year assigned to Hillcrest High School,

Nead served as a physical education teacher at Beadleston High

School5 in Westfield —— an alternative school for students with

emotional and behavioral challenges —— for the balance of his

fourteen-year employment. Throughout this term, Nead repeatedly

complained to administrators about physical threats and abuse by

students against teachers and other students, and railed against

what he perceived as a general disregard for school policies and

5 Beadleston High School has since been renamed Lamberts Mills Academy and taken on a new direction. See http://www.ucesc.k12.nj.us/ucesc/Parent%20Info,%20News,%20Clearinghouse/Newsletters/ServiceScope%20Winter%202008.pdf.

A-3149-09T1 7

regulations by the administration.6 Notwithstanding his repeated

expressions of discontent, Nead received tenure during the 1995-

1996 school year.

Throughout the 1999-2000 school year, Nead served as the

union representative for the local teachers association. In

this capacity, he often brought to the principal's attention

what he believed were discordances with UCESC's educational

policies and the inaction of the school's administration in

response. Cited examples of noncompliance with UCESC policies

included tolerance for on-campus drug and tobacco use, as well

as ignoring physical assaults by students against faculty,

staff, and other students.

In 2000, one of Nead's colleagues filed a lawsuit against

UCESC, asserting retaliation for reporting student abuse of

teachers and students. Nead testified as a witness at a

deposition in the case although he claims that the school's

administration tried to discourage his participation.

Nead also alleged that he was repeatedly victimized by

students throughout his time at Beadleston, who either

6 Nead submitted a certification in opposition to UCESC's summary judgment motion in federal court, which was also appended to his opposition to UCESC's motion to dismiss in the Law Division, asserting that he maintained "a log . . . during [his] employment of incidents, retaliation and a chronology of what happened during my time employed by [UCESC]" that listed "hundreds of incident[s]."

A-3149-09T1 8

physically assaulted him or threatened him with physical

violence. When he reported one particular incident to the

school principal, he was "verbally attacked" and told instead

that he had threatened the student.

In June 2005, Nead informed Beadleston's then-principal of

his multiple myeloma diagnosis. Later that year, Nead advised

the replacement principal of his condition and asserted that he

could not take any chances with physical assaults, and may need

to leave work early on some days once his cancer treatment

started. When such treatment began, however, the principal

refused to provide timely coverage for Nead's classes, causing

him to miss transportation connections and become overly worried

about being late.

Soon thereafter, an affiliated educational facility ——

Centennial High School —— closed. Nead claimed that this caused

"an influx of students with criminal records to be transferred

to Beadleston." In October 2005, Nead was punched in the head

and "wrenched his back" while attempting to break up a fight

between two students, one of whom was a suspected gang member.

That same month, another student punched Nead in the face

through a glass window, causing shattered glass to enter Nead's

eye.

A-3149-09T1 9

Nead further claimed that UCESC retaliated against him for

whistle blowing activities. Specifically, he asserted that

UCESC (1) denied his requests to attend professional development

classes, (2) refused to provide him with a paraprofessional

(teacher's assistant) even though he was the only full-time

teacher without one, (3) initially refused to give him a desk

due to professed financial constraints, (4) neglected to order

him needed school supplies, including a classroom telephone, (5)

prohibited plaintiff from attending a school field trip he had

organized, and (6) assigned him to thirty-classes, which he

maintains was "more than any other teacher."

When the local education association wrote a letter to the

superintendent regarding safety issues at the school in February

2000, Nead asserted that the school principal retaliated against

him by refusing to give him a key to a classroom he used,

forcing him and his students to congregate in the hallway before

each class until someone unlocked the door and allowed them in.

Nead also contended that he was given undesirable assignments

such as supervising smoke breaks and being put on back-to-back

lunch duty.

The final indignity, according to Nead, occurred on March

20, 2006, when UCESC reported to the Department of Human

Services Institutional Abuse Investigation Unit (IAIU)

A-3149-09T1 10

allegations that Nead had assaulted a student. Four days later,

Nead ceased being a teacher at Beadleston. He gave notice in a

written letter to UCESC, stating "I regret to say that I am

resigning my position due to disability retirement effective

immediately."7

After its investigation, the IAIU concluded that the

reported incident involved "some sort of horseplay," resulting

in the student being kicked "on the rib cage area using minimal

force." More importantly, the IAIU found that "[p]hysical abuse

was unfounded in accordance with N.J.S.A. 9:6-8.21."

On May 1, 2006, Nead applied for ordinary disability

retirement benefits from the Public Employees' Retirement System

and Teachers' Pension and Annuity Fund. In his application, he

indicated that he was incapacitated for further service as a

teacher due to "multiple myeloma (blood cancer)." Three

physicians —— Dr. Sundar Jagannath, M.D.; Dr. Hen-Vri Wu, M.D.;

and Dr. Myron Gessner, M.D. —— endorsed the application, noting

that Nead's condition of multiple myeloma, coupled with

depression and anxiety, rendered Nead "totally and permanently

disabled and no longer able to perform his or her job duties."

Nead's application was approved and he has been receiving

disability retirement benefits since approximately July 2006.

7 Nead's letter is dated July 24, 2006.

A-3149-09T1 11

D.

The main thrust of UCESC's motions to dismiss and for

reconsideration was that Nead was "precluded from seeking

redress of the claims set forth in his complaint pursuant to the

findings" of the District Court. Specifically, UCESC relied

upon the District Court's determination that Nead "has not

adduced sufficient evidence from which a reasonable jury could

find either that he suffered an actionable, adverse employment

action or that his speech was a motivating factor in [UCESC's]

actions." From this conclusion —— self-limited to Nead's First

Amendment claim —— UCESC argued that pursuant to the

preclusionary effects of collateral estoppel, all of Nead's

state claims must fail. In other words, because Nead could not

surmount the First Amendment's "adverse employment action"

threshold, he similarly cannot vault the LAD's and CEPA's

supposed higher bar. We disagree and remand for further

proceedings.

II.

A.

We first address Nead's claim that the Law Division erred

when it reconsidered UCESC's initially-unsuccessful motion to

dismiss. Because we find that the Law Division did not abuse

A-3149-09T1 12

its discretion by engaging in the process of reconsideration, we

are unpersuaded that its actions are subject to rebuke.8

Courts should not begrudge parties the right to partake in

motions for reconsideration. This method of error correction

is, after all, an inherent —— as well as a rule-based —— adjunct

to the decisional process of dispute resolution. Nevertheless,

in the interest of conserving increasingly scarce judicial

resources, judges must deploy principled standards to resolve

such motions. Those standards are found in cases such as

Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J.

Super. 299 (App. Div.) (reviewing standards of reconsideration

to be applied to what was an interlocutory order), certif.

denied, 195 N.J. 521 (2008) and Fusco v. Bd. of Educ. of Newark,

349 N.J. Super. 455, 462 (App. Div.) (noting that

"reconsideration should be used only for those cases which fall

into that narrow corridor in which either (l) the Court has

expressed its decision based upon a palpably incorrect or

irrational basis, or (2) it is obvious that the Court either did

8 The phenomenon of abusive reconsideration motions has not gone unnoticed by the courts. See Glass v. Suburban Restoration Co., Inc., 317 N.J. Super. 574, 579 (App. Div. 1998); Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996); Polidori v. Kordys, Puzio & DiTomasso, 228 N.J. Super. 387, 393-94 (App. Div. 1988); Michel v. Michel, 210 N.J. Super. 218 (Ch. Div. 1985). As presented, UCESC's motion fell squarely outside of this trend.

A-3149-09T1 13

not consider, or failed to appreciate the significance of

probative, competent evidence.") (citations omitted), certif.

denied, 174 N.J. 544 (2002).

Furthermore, in order to maintain a consistent methodology

for all motions seeking reconsideration, we believe that the

same modes of thought and methods of analysis should apply to

applications for reconsideration of both interlocutory (Rule

4:42-2) and final (Rule 4:49-2) orders. At its core, the

guiding principle for all such reviews will always be the

furtherance of the interests of justice. Cummings v. Bahr, 295

N.J. Super. 374, 384 (App. Div. 1996) (noting that

"[r]econsideration is a matter within the sound discretion of

the Court, to be exercised in the interest of justice"

(citations omitted)). We believe that this uniform approach

will also enhance predictability and serve to fortify our

observance of precedent.

Based upon the record presented to the Law Division, and

notwithstanding that summary judgment principles should have

informed its analysis, we cannot conclude that the motion court

followed an ill-chosen path. It was confronted with a

complicated jurisprudential landscape littered with difficult

legal principles, many dependent upon subtle questions of

federal law. In an abundance of caution, the court did not

A-3149-09T1 14

simply reassert its earlier comprehensive opinion, and instead

took the time to review many of the federal cases that the

parties bandied about. This emblemized an attempt to further

the interests of justice, and plainly was not an abuse of

discretion. The circumstance that such process resulted in an

imperfect application of law does not detract from the motion

court's proper methods of attempting to accord substantial

justice to the parties.

B.

We next turn to the collateral estoppel issue because it

was the centerpiece of UCESC's motions, and formed the basis of

the Law Division's decision to dismiss the complaint. To apply

the doctrines of collateral estoppel or res judicata, an issue

or claim between the parties must have been fairly litigated and

determined, preventing relitigation of the same matter. First

Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352

(2007). This serves the important policy goals of "'finality

and repose; prevention of needless litigation; avoidance of

duplication; reduction of unnecessary burdens of time and

expenses; elimination of conflicts, confusion and uncertainty;

and basic fairness[.]'" Ibid. (quoting Hackensack v. Winner, 82

N.J. 1, 32-33 (1980)).

A-3149-09T1 15

The Supreme Court has articulated a five-element test to

foreclose relitigation of an issue. Id. at 352; Hennessey v.

Winslow Twp., 183 N.J. 593, 599 (2005); In re Estate of Dawson,

136 N.J. 1, 20-21 (1994). The party asserting application of

collateral estoppel must show that: "(1) the issue to be

precluded is identical to the issue decided in the prior

proceeding; (2) the issue was actually litigated in the prior

proceeding; (3) the court in the prior proceeding issued a

final judgment on the merits; (4) the determination of the issue

was essential to the prior judgment; and (5) the party against

whom the doctrine is asserted was a party to or in privity with

a party to the earlier proceeding." First Union, supra, 190

N.J. at 352.

We are satisfied that the primary issue upon which UCESC

relies, which was resolved in the federal litigation (Nead's

failure to demonstrate that he suffered an adverse employment

consequence for First Amendment purposes), is not identical to

the issue of what constitutes an adverse employment consequence

under either the LAD or CEPA. Moreover, the Supreme Court's

decision in Victor v. State, 203 N.J. 383 (2010), involving a

claim of failure to accommodate, makes the federal

determinations even more attenuated for collateral estoppel

purposes. Accordingly, Nead is not foreclosed from pursuing his

A-3149-09T1 16

state statutory causes of action as a result of the federal

case. Whether other principles of law may bar or truncate his

claims is a different question.

As determined by the Third Circuit in Nead's federal

appeal,

The test for determining whether an alleged act of retaliation is sufficient to give rise to a retaliation claim is whether it would be 'sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.' McKee v. Hart, 436 F. 3d 165, 170 (3d Cir. 2006).

Agreeing with the District Court "that most of the allegedly

retaliatory acts are trivial," and "[o]ther acts alleged by Nead

are unsupported by the record," Nead's First Amendment

retaliation claims were dismissed on appeal. This may end our

inquiry insofar as Section 1983 is concerned, but it does not

suffice for the purposes of Nead's LAD and CEPA claims.

We do not share UCESC's view that the federal court

determinations presage mandatory dismissal of the unresolved

state claims under the LAD and CEPA. Notwithstanding the

argument that the First Amendment demands only a very low

threshold for actualized claims in Section 1983 litigation, we

believe that this State's anti-discrimination statutes promote

and validate different purposes than Section 1983's gloss on the

A-3149-09T1 17

First Amendment, making its adverse employment consequence

threshold immaterial for purposes of collateral estoppel.

For example, the Supreme Court recently noted that although

the LAD generally follows federal anti-discrimination

legislation, the LAD has its own "long and rich history" of

protecting employees from discrimination. Victor, supra, 203

N.J. at 398. Thus, we remain unconvinced that for issue

preclusion purposes the elements of a prima facie case under

Section 1983 are either (1) identical to the elements of an LAD

or CEPA claim or (2) in any other way significant for comparison

purposes.

In order to establish a prima facie case of retaliation or

discrimination under the LAD, an employee must prove that he

suffered an adverse employment consequence. Jamison v. Rockaway

Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990).

The Supreme Court cataloged the nature of such proofs as

follows:

There is no single prima facie case that applies to all employment discrimination claims. Instead, the elements of the prima facie case vary depending upon the particular cause of action. For example, the prima facie elements for a complaint arising from the failure to hire, regardless of whether that claim is based on race, sex or handicap, are: (1) that plaintiff falls within a protected class; (2) that plaintiff was qualified for the work for which he or she

A-3149-09T1 18

applied; (3) that plaintiff was not hired; and (4) that the employer continued to seek others with the same qualifications or hired someone with the same or lesser qualifications who was not in the protected status. Anderson v. Exxon Corp., 89 N.J. 483, 492 (1982). If the claim is based upon discriminatory discharge, the prima facie case is similar, in that plaintiff must demonstrate: (1) that plaintiff is in a protected class; (2) that plaintiff was otherwise qualified and performing the essential functions of the job; (3) that plaintiff was terminated; and (4) that the employer thereafter sought similarly qualified individuals for that job. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596-97 (1988).

On the other hand, the prima facie elements of a retaliation claim under the LAD requires plaintiff to demonstrate that: (1) plaintiff was in a protected class; (2) plaintiff engaged in protected activity known to the employer; (3) plaintiff was thereafter subjected to an adverse employment consequence; and (4) that there is a causal link between the protected activity and the adverse employment consequence. Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996); cf. Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 371-73 (2007) (construing element four to include proving original complaint was made reasonably and in good faith). A hostile environment claim, first recognized by this Court as a variety of LAD discrimination, has as its prima facie elements: (1) that plaintiff is in a protected class; (2) that plaintiff was subjected to conduct that would not have occurred but for that protected status; and (3) that it was severe or pervasive enough to alter the conditions of employment. See Lehmann, supra, 132 N.J. at 603-04.

As these examples demonstrate, there is no single prima facie case that applies to

A-3149-09T1 19

all discrimination claims. Instead, the prima facie elements of a claim vary depending upon the particular employment discrimination claim being made. What they traditionally share, however, is the requirement that plaintiff endure an adverse employment consequence as a result of the discriminatory act.

[Victor, supra, 203 N.J. at 408-10 (footnote omitted).]

Although there are no bright-line rules defining an adverse

employment consequence, New Jersey has admittedly looked for

guidance to federal law to determine what constitutes an adverse

employment decision in the context of an LAD claim. Mancini v.

Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002)

(citing Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d

Cir. 1997)). The factors to be considered include an

"employee's loss of status, a clouding of job responsibilities,

diminution in authority, disadvantageous transfers or

assignments, and toleration of harassment by other employees."

Ibid. "In order to constitute 'adverse employment action' for

the purposes of the LAD, 'retaliatory conduct must affect

adversely the terms, conditions, or privileges of the

plaintiff's employment or limit, segregate or classify the

plaintiff in a way which would tend to deprive her of employment

opportunities or otherwise affect her status as an employee.'"

Marrero v. Camden Cnty. Bd. of Soc. Servs., 164 F. Supp. 2d 455,

A-3149-09T1 20

473 (D.N.J. 2001).9 However, as noted in Cokus v. Bristol Myers

Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), "'not

everything that makes an employee unhappy is an actionable

adverse action.'" Ibid. (quoting Montandon v. Farmland Indus.,

116 F.3d 355, 359 (8th Cir. 1997)), aff'd, 362 N.J. Super. 245

(App. Div.), certif. denied, 178 N.J. 32 (2003).

Additionally, whether an employment consequence is

"adverse" must be assessed objectively. An employee's

subjective feelings are irrelevant in making that analysis. See

Klein v. Univ. of Med. and Dentistry of N.J., 377 N.J. Super.

28, 46 (App. Div. 2005) ("Although plaintiff feels that

performing his [assignment] . . . was demeaning, . . . [a]n

employer's actions are not [adverse] merely because they result

in a bruised ego or injured pride on the part of the

employee."), certif. denied, 185 N.J. 39 (2005).

Our disagreement with the Law Division is two-fold: first,

the court decided the reconsideration motion by cabining itself

within the confines of the federal courts' statements about the

First Amendment, without giving due regard to the independent

9 We appreciate that Marrero stated, "the definition of 'adverse employment action' under the LAD and Title VII differs from the broader definition applicable to First Amendment claims," ibid, but we remain satisfied that such correct statement of law does nothing to inform or advance UCESC's collateral estoppel defense.

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purposes of the LAD and CEPA; and second, it neglected to

properly analyze the application as a motion to dismiss for

failure to state a claim. Although the court was clearly

operating in summary judgment territory, its opinion expressly

referred to the principles of law governing Rule 4:6-2(e).

Motions to dismiss pursuant to Rule 4:6-2(e) "should be

granted in only the rarest of instances" and generally without

prejudice. Printing Mart-Morristown v. Sharp Elecs. Corp., 116

N.J. 739, 772 (1989). The court must read the complaint

liberally and afford plaintiff every reasonable inference of

fact to determine if the facts alleged "suggest[]" a cause of

action. Id. at 746. A judge shall convert a Rule 4:6-2(e)

motion to dismiss into a Rule 4:46 motion for summary judgment

and consult "matters outside the pleading," if "all parties

[have been] given reasonable opportunity to present all material

pertinent to such a motion." R. 4:6-2. Without such a

conversion, the court must limit its inquiry to the face of the

complaint and not concern itself with plaintiff's ability to

prove the allegations asserted. Printing Mart-Morristown,

supra, 116 N.J. at 746. Nevertheless, a court may consider

documents referenced in the complaint without converting a

motion to dismiss into one for summary judgment. See E.

Dickerson & Son, Inc. v. Ernst & Young, LLP, 361 N.J. Super.

A-3149-09T1 22

362, 365 n.1 (App. Div. 2003), aff'd, 179 N.J. 500 (2004); N.J.

Sports Prod. Inc. v. Bobby Bostick Promotions, LLC, 405 N.J.

Super. 173, 178 (Ch. Div. 2007).

The court's dismissal of Nead's complaint was accomplished

at a stage at which this ought not to have been done. Even

though the submissions by the parties on the motions

automatically transformed them into motions for summary

judgment,10 the Law Division hewed to the jurisprudence of Rule

4:6-2(e), but misapplied it. Instead, at this early stage of

the proceedings —— where the movant had not explicitly moved for

summary judgment —— the motion court should have looked only to

the face of the complaint to determine whether Nead had alleged

sufficient facts to state a claim upon which relief could be

granted. Nead's ability to prove those allegations was of no

concern since a Rule 4:6-2(e) motion to dismiss requires the

court to accept all the pleadings as true. Heavner v. Uniroyal,

Inc., 63 N.J. 130, 133 (1973).

The Law Division —— for collateral estoppel purposes ——

focused upon whether the LAD and CEPA had a "higher" or "lower"

burden for establishing an adverse employment consequence than

10 "The rule expressly provides that if any material outside the pleadings is relied on [i]n a [Rule] 4:6-2(e) motion, it is automatically converted into a summary judgment motion." Pressler & Verniero, Current N.J. Court Rules, comment 4.1.2 on R. 4:6-2 (2011).

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required by the First Amendment. As noted, we believe that this

is a false comparison as the separate jurisprudential frameworks

protect different interests and are not readily comparable. We

do not foreclose, in a proper application (such as summary

judgment or at trial), the Law Division's consideration of

whether —— independent of the federal courts' exposition of

Section 1983's First Amendment burden —— Nead actually

surmounted New Jersey's definitional threshold of an adverse

employment consequence.

We also leave to a future determination the still

unresolved question of whether in a failure to accommodate case,

a plaintiff must demonstrate an adverse employment consequence.

In Victor, the Supreme Court addressed this issue at great

length, and strongly suggested that such a claim may not

necessarily require anything more than the failure to engage in

an interactive dialogue with the employee. Id. at 421 ("The

LAD's purposes suggest that we chart a course to permit

plaintiffs to proceed against employers who have failed to

reasonably accommodate their disabilities or who have failed to

engage in an interactive process even if they can point to no

adverse employment consequence that resulted."). However, the

Court itself noted that this comment was dicta, and left for

another day the ultimate determination. Id. at 422 ("[W]e are

A-3149-09T1 24

constrained to refrain from resolving today the question of

whether a failure to accommodate unaccompanied by an adverse

employment consequence may be actionable . . . because, in the

end, this record is a poor vehicle in which to find the

definitive answer to that important question.").

C.

1.

Nead also appeals the Law Division's determinations that

(1) UCESC's referral of the striking incident of March 20, 2006,

to the IAIU was not actionable because of the statutory immunity

of N.J.S.A. 9:6-8.13 ("[a]nyone acting pursuant to this act in

the making of a report under this act shall have immunity from

any liability, civil or criminal, that might otherwise be

incurred or imposed") and (2) Nead was estopped from pursuing

LAD claims because of statements made in his application for

disability retirement benefits. We note that both of these

determinations were improvidently decided as if they were

considered in a summary judgment modality because significant

information beyond the complaint was provided by the parties and

considered by the court.

Nead's complaint alleged the following:

[The principal of Beadleston] then attempted to ruin [p]laintiff's professional career and his health by calling the [IAIU] where he fabricated a report regarding a student's

A-3149-09T1 25

assault upon the [p]laintiff. The principal never asked the plaintiff what happened, but instead reported him to [the IAIU]. That agency launched an investigation into the false allegations made by [the principal]. The false claims caused [p]laintiff [to] suffer debilitating stress which affected the plaintiff's health. Although the incident was deemed to be unfounded by [the IAIU], the [p]laintiff had to seek emergency medical attention for his blood pressure and discovered that test results for his cancer skyrocketed as a result. The principal engaged in this behavior with full knowledge of [p]laintiff's diagnosis.

Indulgently distilled to their essence, these allegations

contend that UCESC's agent retaliated against plaintiff by

filing a bad faith report of child abuse. Notwithstanding this

characterization, UCESC argues that immunity shields it for what

actually occurred.

Pursuant to N.J.S.A. 9:6-8.10, "[a]ny person having

reasonable cause to believe that a child has been subjected to

child abuse or acts of child abuse shall report the same

immediately to the Division of Youth and Family Services." A

person "acting pursuant to this act in the making of a report

under this act shall have immunity from any liability, civil or

criminal, that might otherwise be incurred or imposed."

N.J.S.A. 9:6-8.13. This provision "affords a qualified immunity

by protecting those who report in good faith." F.A. by P.A. v.

W.J.F., 280 N.J. Super. 570, 580 (App. Div. 1995).

A-3149-09T1 26

Nead's allegations, which must be credited at this stage,

are precisely that an agent of UCESC did not report in good

faith. As we have recognized, such a qualified immunity may be

decided at the summary judgment stage more easily than at the

motion to dismiss stage, see id. at 581; however, we expected

that "immunity issues will be addressed and determined speedily

without extensive and burdensome discovery and trial

preparation." Ibid.

Under the paradigm created in F.A. by P.A.,

we liberally construe the statutory grant of immunity as follows: (1) An objective test will be used to determine whether a report of suspected child abuse is made pursuant to the statute. The test will be whether a reasonable person would have reasonable cause to believe that a child has been abused. (2) Immunity will attach if an investigation by DYFS shows that there was a reasonable basis to suspect child abuse and the report was made immediately. (3) Immunity will not be withheld merely because the reporter did not act "immediately." The requirement of reporting "immediately" was intended to protect children from the potentially serious consequences of delay. We glean no legislative intent that the failure to act immediately will necessarily strip immunity from the reporter. [Id. at 578.]

In this case, the Law Division explicated these principles, but

then relied upon the federal court's determination "that

defendant had a right to call DYFS" in finding that UCESC's

A-3149-09T1 27

reporting was "not retaliatory." In fact, what the District

Court found was the following:

Plaintiff has not adduced any evidence that his protected conduct [under the First Amendment] was a motivating factor in the adverse employment decision. To the contrary, the evidence adduced clearly demonstrates actions that would have occurred regardless of whether [p]laintiff engaged in protected conduct, i.e., [d]efendant was required by law to report allegations of abuse to DYFS.

In similar vein, the Third Circuit echoed the lack of causality

between Nead's protected conduct and the alleged retaliatory

acts, noting "Nead claims the school retaliated against him by

reporting a student's abuse allegation, but the school was

required by law to report it."

None of these federal findings address the objective test

outlined in F.A. by P.A. In this case, no court has determined

"whether a reasonable person would have reasonable cause to

believe that [the] child has been abused" in deciding whether

"[i]mmunity will attach." Id. at 578. Thus, the Law Division's

reliance upon federal expressions of federal law did not

properly consider the specific question presented. On remand,

UCESC is free to move for summary judgment on the immunity

issue, and we express no opinion here as to the outcome of such

a motion.

A-3149-09T1 28

2.

The motion judge also applied principles of estoppel

against Nead because of contradictory statements between his

complaint and disability retirement application. Initially, the

court recognized that "such statements are not determinative,

and plaintiff may explain the reason for the filing." On the

motion for reconsideration, however, the court changed course.

In partial reliance upon information provided (outside the

complaint) from Nead's three medical providers, none of which

"indicat[ing] that plaintiff could work with an accommodation,"

the Law Division determined —— in summary judgment fashion ——

that Nead had utterly failed to show any evidence that he could

continue to work with reasonable accommodations.

Given that the motion court treated this motion as one to

be decided under Rule 4:6-2(e), it is plain that the court erred

in analyzing evidence outside of the complaint. However, even

under the appropriate lens of Rule 4:46, the court did not give

plaintiff the benefit of all reasonable inferences concerning

his explanation for what he provided on the disability

retirement application.

Although the receipt of disability retirement benefits is

not dispositive of plaintiff's disability-related claims under

the LAD, Nead is obliged to proffer a sufficient explanation why

A-3149-09T1 29

his multiple assertions of an inability to work, set forth in

his disability retirement application, his letter of

resignation, as well as his sworn deposition in the federal

litigation, did not reflect an accurate view of his physical

condition at the time he resigned. See Cleveland v. Policy

Mgmt. Sys. Corp., 526 U.S. 795, 806, 119 S. Ct. 1597, 1603, 143

L. Ed. 2d 966, 977 (1999); Ramer v. N.J. Transit Bus Operations,

Inc., 335 N.J. Super. 304, 317-18 (App. Div. 2002). In this

regard, notwithstanding any perceived weakness in Nead's proofs,

because he has offered an explanation of his capacity to work

with reasonable accommodations in the period immediately

following his resignation, his LAD claims cannot be dismissed

outright. We cannot say that it is inevitable that a reasonable

juror will find only in favor of UCESC on this issue, and

accordingly, the grant of summary judgment was improper. See

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.

Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608

(1998).

D.

Without filing a cross-appeal, UCESC has raised the

argument that the Law Division erred in not dismissing Nead's

LAD and CEPA claims on the basis of being barred by the

A-3149-09T1 30

applicable statute of limitations and by laches.11 It maintains

that its position takes into account the timing of the federal

action, which it asserts was filed beyond the applicable

limitations periods. See Montells v. Haynes, 133 N.J. 282, 292

(1993) (two years for the LAD claims12); N.J.S.A. 34:19-5 (one

year for the CEPA action).

In fact, in the two motions decided by the Law Division,

the court expressly only considered the CEPA one-year bar,13 and

did not explicitly explain how the commencement of the federal

action in May 2007 was timely, except for its recitation of the

11 UCESC also argues that some of Nead's claims have been abandoned, and that his "tort-based, work-related injuries" are compensable only pursuant to the Workers Compensation Act, N.J.S.A. 34:15-1 to 128. We are not confident that these assertions hold water, but because of our remand for further proceedings, we will permit UCESC to preserve these contentions for resolution in the Law Division through motion practice or trial. 12 See N.J.S.A. 2A:14-2(a) ("Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued[.]"); Alexander v. Seton Hall Univ., ___ N.J. ___ (2010). 13 We assume that the Law Division did not spend much time on the LAD limitation of actions issue because Nead's claims of discrimination, retaliation, hostile work environment, and failure to accommodate related to the disability that was only brought to the attention of UCESC in June 2005. Thus, any unlawful conduct under the LAD logically must have occurred after June 2005, all within the two-year look-back period commencing on the date of the filing of the federal action, which was in March 2007.

A-3149-09T1 31

date of Nead's resignation (July 24, 2006) as being within one

year of such filing. Although it analyzed the principles of the

continuing violation doctrine and its applicability to CEPA

actions, the court did not specifically review any of the

hundreds of alleged acts of discrimination and retaliation

spanning fourteen years as asserted by Nead to see if such

evidence brought him within the "equitable exception" for a

"continuing violation," which requires proof of a pattern of

discriminatory acts one of which occurred "within the statutory

limitations period." Shepherd v. Hunterdon Developmental Ctr.,

174 N.J. 1, 6-7 (2002).

Although we harbor few concerns that the Law Division erred

in refusing to bar Nead's claims on limitation of actions

grounds (including laches), we nevertheless are troubled by the

lack of a full explication of (1) Nead's entitlement to the

benefits of the continuing violation doctrine and (2) why laches

is not an effective defense. R. 1:7-4. Because this matter

will be remanded for further proceedings, we will permit UCESC

to renew its application to bar or limit Nead's claims pursuant

to the applicable statute of limitations and laches. Nead will

be likewise permitted to contend that he is entitled to the

benefits of the continuing violation doctrine and argue why

laches is inapplicable. In so doing, we express no opinion

A-3149-09T1 32

about the vitality of any or all of the parties' postions, and

are content to leave it to the sound discretion of the Law

Division to dispose of the issues.

III.

The main focus of the parties and the motion court in the

Law Division was a comparative analysis of the federal courts'

Section 1983 determinations under the lens of the paradigms

established pursuant to the LAD and CEPA. The fundamental error

was to treat the concept of adverse employment consequences on

the same scale, regardless of which statutory framework applied.

We require a much more particularized scrutiny for collateral

estoppel purposes and eschew the use of a metaphorical

thermometer of adverse employment consequences to reveal whether

plaintiff's LAD or CEPA temperature is higher or lower than his

First Amendment heat. That relativistic approach neglects to

give due regard to the distinctive salutary goals of our LAD14

14 "The 'overarching goal of the [LAD] is nothing less than the eradication of the cancer of discrimination.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005) (quoting Fuchilla v. Layman, 109 N.J. 319, 334, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)).

A-3149-09T1 33

and CEPA,15 without diminishing the important purposes of Section

1983. Upon the remand to the Law Division, the parties remain

free to seek all appropriate remedies and utilize all suitable

defenses with respect to all of the revived claims, but without

regard to collateral estoppel vis-à-vis the federal litigation.

Reversed and remanded for further proceedings in accordance

with this opinion.

15 "The essential purpose of CEPA is to provide 'broad protections against employer retaliat[ion] for workers whose whistle blowing activities benefit the health, safety and welfare of the public.'" Racanelli v. County of Passaic, ___ N.J. Super. ___, ___ (App. Div. 2010) (slip op. at 5) (quoting Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 239 (2006).