The opinion of the court was delivered by: MEANOR
The defendants, Board of Governors and Edward Bloustein, have moved for dismissal of the amended complaints or for summary judgment in both of these civil actions.
On April 6, 1972, the plaintiff, Alfredo Bennun, an associate professor of biochemistry, filed a complaint in the Superior Court of New Jersey, Law Division (No. L-22164-71), naming as defendants three faculty members who, together with the plaintiff, were employed at the Newark College of Arts and Sciences of Rutgers University. The complaint alleged that these three had maliciously interfered with the tenure granting process as a result of which the plaintiff had been denied tenure. In January 1973, plaintiff amended the complaint to add Rutgers as a defendant on the theory that an agent of the University had negligently prepared and presented the plaintiff's personnel papers at the time he was considered for tenure, and that Rutgers had negligently developed regulations and policies for promotion and tenure which denied plaintiff a fair hearing or review. Plaintiff sought compensatory and punitive damages on account of each of these alleged acts.
In May 1972, the plaintiff commenced the first of two federal court actions. Named as defendants in this action were Rutgers, the Board of Governors of Rutgers, Edward Bloustein, the president of Rutgers, and the three individual faculty members joined as defendants in the state case. The amended complaint alleged that Dr. Bennun had been wrongfully denied tenure and sought damages and back pay pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. §§ 1983 and 1985, 28 U.S.C. § 1343(3) and the Fifth and Fourteenth Amendments to the United States Constitution.
On June 9, 1972, the Board of Governors of Rutgers, upon the recommendation of President Bloustein, voted to grant tenure to the plaintiff. Thereafter, on October 1, 1973, the plaintiff filed a second amended complaint. The jurisdictional allegations of this complaint fail to mention 42 U.S.C. § 2000e et seq. Nevertheless, it is clear that the first count, which is similar in many respects to the first count alleged in the previous amended complaint, was intended to make out a claim under Title VII. The essence of the first count is that, in spite of his having received tenure in 1972, the defendants continued to deny Dr. Bennun the rights and privileges of a tenured professor on account of his national origin and his opposition to discriminatory practices. The second count alleges a violation of § 1983 in that the defendants acted to deprive him of his right to tenure on account of his national origin and heavy Spanish accent and did so acting under color of state law in violation of due process and equal protection. The third count of the amended complaint alleges a violation of 42 U.S.C. § 1985. This count involves only the three individual defendants. It alleges that they conspired together to deprive the plaintiff of his right to tenure and that, following the grant of tenure by the Board of Governors, these three continued to deprive the plaintiff of the rights and privileges associated with his status as professor.
A comparison of the original complaint with the second amended complaint reveals that the amendment was made to incorporate events that happened after the filing of the first complaint. In particular, the amendment concerns itself with the alleged delay in granting tenure, not with the failure to grant tenure. The amendment also alleges that the conspiracy to deprive the plaintiff of tenure has become a conspiracy to deprive him of the privileges etc. of a tenured professor. The alleged activities of the defendants are in the nature of a continuing course of conduct.
On September 22, 1975, Dr. Bennun began a second federal suit. An amended complaint was filed and served October 22, 1975. The Board of Governors of Rutgers and Edward Bloustein, the president of the University, were the named defendants. This action is based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Paragraph 8 of the amended complaint alleges that the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission and that, following the exhaustion of his administrative remedies, he received a right to sue letter from the E.E.O.C. Suit was filed within 90 days of the receipt of this letter.
Principles of res judicata are fully applicable to actions brought under the federal Civil Rights Act. Preiser v. Rodriguez, 411 U.S. 475, 497, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973). Thus, where a cause of action which encompasses a claim under the Civil Rights Act reaches judgment in one court, the judgment of that court will be given the ...