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Tuesday, February 10, 2015

WOLFF VS. SALEM COUNTY CORRECTIONAL FACILITY AND COUNTY OF SALEM A-0543-13T3

MICHAEL WOLFF VS. SALEM COUNTY CORRECTIONAL FACILITY AND COUNTY OF SALEM 
A-0543-13T3 
In Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67 (2012), the Supreme Court held that a plaintiff who unsuccessfully raised retaliation as a defense in an administrative disciplinary proceeding was barred by collateral estoppel from thereafter raising a retaliation claim under the Conscientious Employee Protection Act. We hold that Winters has pipeline retroactivity, and bars plaintiff's retaliation claim brought under N.J.S.A. 10:5-12(d) of the Law Against Discrimination. We rule that plaintiff raised the retaliation defense in his administrative disciplinary proceeding when he testified in response to neutral questions on cross-examination, and that the ALJ necessarily rejected that defense. 
Judge Sabatino has issued a concurring opinion, stating that an employee has no obligation to raise a defense of retaliation in the administrative disciplinary proceeding and that an employee's failure to raise the issue should not have res judicata (claim preclusion) effects.