2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-26-2010

Mohamed El-Hewie v. Bergen County

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1284

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Recommended Citation

"Mohamed El-Hewie v. Bergen County" (2010). 2010 Decisions. Paper 704.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1284

___________

MOHAMED F. EL-HEWIE,

Appellant

v.

BERGEN COUNTY; BOARD OF EDUCATION OF THE BERGEN COUNTY

VOCATIONAL SCHOOL DISTRICT; DENNIS McNERNEY, Bergen County

Executive; JACK DRAKEFORD, President of BOE; AARON R. GRAHAM, BCTS

Board Member and Bergen County Superintendent; BERNI LYNN KOCH, BCTS Board

Vice President; LAZARO CARVAJAL, BCTS Board Member; ANGELA TAYLOR,

BCTS Board Member; ROBERT J. ALOIA, Superintendent; THOMAS KLEMM,

Director of Human Resources; RAYMOND J. VOLPE, Supervisor; RICHARD

PANICUCCI, Supervisor; PATRICIA T. COSGROVE, Ex-School principal; RUSSELL

DAVIS, Vice Principal; DENNIS MONTONE, Supervisor; JOSEPH HOLBROOK,

Teacher; LINDA EICKMEYER, Teacher; LINDA THEOS, Manager; BRADLEY M.

WILSON, Board Attorney, and; WILLIAM C. SOUKAS, Board Attorney; ROBERT R.

HIGGINS; NEW JERSEY OFFICE OF ADMINISTRATIVE LAW; HON.

MARGARET M. MONACO; LUCILLE E. DAVY; DEPARTMENT OF LAW PUBLIC

SAFETY DIVISION OF LAW; NEW JERSEY DEPARTMENT OF EDUCATION

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

D.C. Civil Action No. 08-cv-01760

(Honorable Faith S. Hochberg)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 13, 2010

Before: SCIRICA, JORDAN and VANASKIE, Circuit Judges.

(Filed: August 26, 2010)
2

___________

OPINION OF THE COURT

___________

PER CURIAM.

While Mohamed El-Hewie was challenging the termination of his employment as

a provisional teacher with the Board of Education of the Bergen County Vocational

School District (“the Board”) in state administrative proceedings, he also filed a

complaint in the United States District Court for the District of New Jersey raising

essentially the same claims. The District Court granted the defendants’ motions to

dismiss. On appeal, we affirmed the dismissal of the majority of claims, but vacated that

portion of the District Court’s order that dismissed El-Hewie’s 42 U.S.C. § 1981 claims

on res judicata grounds because they had been litigated before the Administrative Law

Judge (“ALJ”). See El-Hewie v. Bergen County, C.A. No. 08-4900, 348 Fed. Appx. 790

(3d Cir. Sept. 17, 2009). In particular, we concluded that the District Court failed to

address whether New Jersey courts would give preclusive effect to the decision of the

Commissioner of Education (“the Commissioner”) to adopt the ALJ’s dismissal of ElHewie’s employment discrimination claims. See Univ. of Tenn. v. Elliott, 478 U.S. 788,

799 (1986) (“[W]hen a state agency ‘acting in a judicial capacity . . . resolves disputed

issues of fact properly before it which the parties have had an adequate opportunity to

litigate,’ . . . federal courts must give the agency’s factfinding the same preclusive effect
 We have jurisdiction pursuant to 28 U.S.C. § 1291, and may affirm the District Court 1

on any basis supported by the record. See Fairview Twp. v. EPA, 773 F.2d 517, 525 n.15

(3d Cir. 1985); see also McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)

(stating that the “court may take judicial notice of a prior judicial opinion.”). 

3

to which it would be entitled in the State’s courts.”) (quoting United States v. Utah

Constr. & Mining Co., 384 U.S. 394, 422 (1966))). 

Following our remand, the District Court dismissed the § 1981 claims, finding

“that New Jersey courts would give preclusive effect to the ALJ’s determination that [ElHewie] did not perform his job satisfactorily and that there was no evidence that the

Board discriminated against him.” El-Hewie appealed again. In the meantime, however,

the New Jersey Superior Court affirmed the decision of the Commissioner. See El-Hewie

v. Board of Educ., No. A-6310-07T3, 2009 WL 4981212 (N.J. Super. Ct. App. Div., Dec.

24, 2009), and the Supreme Court of New Jersey denied El-Hewie’s petition for

certification. See El-Hewie, v. Board of Educ., 992 A.2d 792 (N.J. 2010). Consequently,

we must now determine whether the Superior Court’s decision is entitled to preclusive

effect.1

“The Full Faith and Credit Act, 28 U.S.C. § 1738, . . . requires the federal court to

‘give the same preclusive effect to a state-court judgment as another court of that State

would give.’” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005)

(citing Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523 (1986)). In New

Jersey, claim preclusion has three basic elements: (1) the judgment in the prior action
 Contrary to El-Hewie’s assertions, the state court judgment in his case constituted a 2

full and fair adjudication of his employment discrimination claims. See Kelley v. TYK

(continued...)

4

must be valid, final, and on the merits; (2) the parties in the later action must be identical

to or in privity with those in the prior action; and (3) the claim in the later action must

grow out of the same transaction or occurrence as the claim in the earlier one. See

McNeil v. Legislative Apportionment Comm’n, 828 A.2d 840, 859 (N.J. 2003). These

elements are satisfied by the facts of this case.

The Superior Court concluded, inter alia, that “the ALJ properly found that [ElHewie] failed to sustain his burden under the burden-shifting framework applicable to

discrimination claims.” El-Hewie, 2009 WL 4981212, at *7. This is a valid decision on

the merits, which became final when the Supreme Court of New Jersey denied ElHewie’s petition for certiorari. See Davis v. U.S. Steel Supply, 688 F.2d 166, 172-73 (3d

Cir. 1982) (en banc) (holding that there was a merits adjudication for res judicata

purposes where the state court found that “‘none of the [administrative] (Commission’s)

findings is sufficient to support the Commission’s conclusion’” that the employer

discriminated against the employee because of her race). Moreover, the Board – the

respondent in the state court action – was named in El-Hewie’s federal complaint and is

in privity with the other defendants against whom El-Hewie raised allegations of

discrimination. Finally, El-Hewie’s § 1981 claims and the discrimination claims at issue

in state court both stem from the Board’s termination of his employment. 

2
 (...continued) 2

Refractories Co., 860 F.2d 1188, 1197-98 (3d Cir. 1988) (recognizing that in Davis “we

held that a state court judgment reversing on the merits a finding of employment

discrimination by the Pittsburgh Commission on Human Relations constituted full and

fair adjudication of Davis’s race discrimination claim, so that her federal action under

§ 1981 was barred by res judicata.” (citing Davis, 688 F.2d at 173)).

 The Motion for Leave to File Brief Out of Time filed on behalf of the “Education 10- 3

1284 Defendants,” and submitted on August 6, 2010, is denied. See L.A.R. 31.4.

5

For the foregoing reasons, we will affirm the judgment of the District Court.3