(the "DCR") against Immunomedics alleging she was discharged
because she refused to have sexual relations with George
LaFontaine, Sr., a Research Product Development Manager at
Immunomedics. See DCR Charges; Information Sheet; Interview
Form; Humiliation Questionnaire. Additionally, Pittman alleged
she suffered gender discrimination because Frank Ostello, a
male employee whom she allegedly trained, was hired as her
The DCR issued a Verified Complaint against Immunomedics.
The Verified Complaint alleged Immunomedics subjected Pittman
to sexual harassment and unlawfully discharged her on the
basis of her gender. The Verified Complaint also reiterated
the allegations of Pittman that LaFontaine made sexual remarks
to her and that she believed she was discharged because she
rejected his sexual advances. See Verified Complaint.
Additionally, the DCR issued a document request to
Immunomedics, see Document and Information Request, to which
Immunomedics responded. Parker Aff. ¶ 6.
The DCR held a Fact-Finding Conference on 14 November 1988.
Present at the Fact-Finding Conference were Adlerstein,
Parker, LaFontaine and Pittman. See Conference Notes. The DCR
investigator interviewed Parker, LaFontaine and Pittman. Parker
Aff., ¶ 7. In addition, Pittman questioned Parker and
LaFontaine through the investigator. Id.*fn3 LaFontaine denied
he made any sexual remarks to Pittman and alleged that it was
Pittman who was sexually forward with him. In addition,
LaFontaine denied he was ever the supervisor of Pittman. Id.
Immunomedics contended it was in possession of affidavits
from three witnesses supporting its assertion that it was
Pittman who was sexually forward with LaFontaine. Id. It also
asserted Frank Ostello was hired not as a replacement for
Pittman, but as a Research Assistant, a position requiring a
bachelors degree with a concentration in biology. Id.
Immunomedics asserted Pittman was discharged because her job
was eliminated due to a lack of work and that the positions of
four others, both males and females, were also eliminated.
On 2 May 1989, the DCR notified Pittman it needed additional
substantiation of her charges in order to make a
recommendation on her behalf. See 2 May 1989 DCR Letter to
Pittman. Pittman provided the DCR with the names of additional
witnesses at Immunomedics. See 9 May 1989 Notes. The DCR
contacted the witnesses it was able to locate at Immunomedics
but was unable to elicit information substantiating the
allegations of Pittman. See 12 June 1989 Notes. On 25 July
1989, the DCR issued to Pittman a Finding of No Probable Cause
pursuant to N.J.S.A. 10:5-14 (the New Jersey Law Against
Discrimination, or the "LAD"*fn5) and N.J.A.C. 13:4-6.1(d).
See Finding of No Probable Cause.
On 8 February 1990, the EEOC issued a "right to sue" letter
to Pittman which notified her of its adoption of the findings
of the DCR and of her right to file a federal court action.
See EEOC Determination.
On 9 November 1989, after the time for appeal of the DCR's
findings had passed, Pittman filed a Motion for Leave to File
a Notice of Appeal nunc pro tune. The motion was denied. See
Moving Brief at 3. Pittman's subsequent motion for
reconsideration, filed 12 December 1989, was granted on 11
January 1990. Id. at 4. Pittman submitted several briefs and
extensive written documentation to the Appellate Division in
support of her appeal. Id. In an opinion filed 5 October 1990,
the Appellate Division affirmed the decision of the DCR. In
doing so, it held:
Dr. LaFontaine did not work with plaintiff; he
was not her supervisor and he played no role in
her termination. . . . Plaintiff's employment, as
well as two males and two other females, was
terminated due to a lack of work.
See Appellate Division Opinion at 2-3.
On 28 March 1990, Pittman filed her complaint in this court
against Immunomedics, LaFontaine, Parker and Newman pursuant
to the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5.
Pittman alleged LaFontaine "was responsible for lay
offs in his department of in vitro manufacture. In repraisal
for rebuking his demand for sex occuring on our about April 18,
1988 after subjecting the Plaintiff to public humiliation."
Complaint, ¶ 2. As to Parker, Pittman alleged: "Coherse Phillis
Parker, the personnel manager to take the plaintiff out of her
department of in vivo studies and her protected position of
Research Assistant in biological research to demote her from
position of Research Assistant and fire her along with the in
vitro manufactoring staff that had been targeted for lay
off[.]" Id. As to Newman, Pittman alleged: "The Plaintiff was
subjected to intentional discrimination by Ed Newman who hired
her with some research experience and no background in Nuclear
Medicine and at a lower salary then he would have been
compelled to pay to Ellen Rubin who also interviewed for the
position of Research Assistant." Id., ¶ 13.
In addition, Pittman appeared to reiterate her claim that
Research Assistant Frank Ostello, a male employee whom she
allegedly trained, was discriminatorily hired to replace her.
Pittman alleged she "was subjected to disparate treatment with
regards to training requirements and salary in that she was
trained to do the duties of a Research Assistant under the
false title of animal technician . . .," complaint, ¶ 14, that
she "was subjected to intentional discrimination and disparate
treatment when her assistant a male with no background in
Nuclear Medicine relying on her training to do the work was
employed at a higher starting salary . . .," complaint, ¶ 15,
and that she was "subjected to disparate treatment in salaries"
in that her "male assistants" received a higher starting salary
than she did. Complaint, ¶ 16.
Pittman apparently also asserted common law causes of
action, including the intentional infliction of emotional
distress and a claim that she suffered work-related injuries.
Complaint, ¶¶ 17-20, 25-27. She also apparently alleged
defamation. Complaint, ¶¶ 22-23.
A. Standard of Review
To prevail on a motion for summary judgment, the moving
party must establish "there is no genuine issue as to any
material fact and that [it] is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). The district court's task
is to determine whether disputed issues of fact exist, but the
court cannot resolve factual disputes in a motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). All
evidence submitted must be viewed in a light most favorable to
the party opposing the motion. See Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also Todaro v.
Bowman, 872 F.2d 43 (3d Cir. 1989); Joseph v. Hess Oil,
867 F.2d 179, 182 (3d Cir. 1989).
Although the summary judgment hurdle is a difficult one to
overcome, it is by no means insurmountable. As the Supreme
Court has stated, once the party seeking summary judgment has
pointed out to the court the absence of a fact issue,
its opponent must do more than simply show that
there is some metaphysical doubt as to the
material facts. . . . In the language of the
Rule, the non-moving party must come forward with
`specific facts showing that there is a
genuine issue for trial.' . . . Where the record
taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no
`genuine issue for trial.'
Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (emphasis in
original, citations and footnotes omitted).
The court elaborated on the standard in Anderson: "If the
evidence [submitted by a party opposing summary judgment] is
merely colorable . . . or is not significantly probative . . .
summary judgment may be granted." 477 U.S. at 249-50, 106 S.Ct.
at 2511 (citations omitted). The Supreme Court went on to note
in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986): "One of the principal purposes of the
summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses, and we think it should be
interpreted in a way that allows it to accomplish this
purpose." Id. at 323-24, 106 S.Ct. at 2553 (footnote omitted).
Thus, once a case has been made in support of summary judgment,
the party opposing the motion has the affirmative burden of
coming forward with specific facts evidencing the need for
trial. See Fed.R.Civ.P. 56(e). See also Aronow Roofing
Co. v. Gilbane Building Co., 902 F.2d 1127, 1128 (3d Cir. 1990)
("summary judgment will be granted where the non-moving party
fails to `establish the existence' of an element essential to
While pro se litigants are held to the above summary
judgment standards, it is recognized that pro se submissions
"must be held to `less stringent standards than formal
pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97,
106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), reh'g denied,
429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2
L.Ed.2d 80 (1957)); see also Haines v. Kerner, 404 U.S. 519,
520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 reh'g denied,
405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972).
B. Claim and Issue Preclusion
Congress has provided that "judicial proceedings shall have
the same full faith and credit in every court within the
United States . . . as they have by law or usage in the courts
of [the] State . . . from which they are taken."
28 U.S.C. § 1738.*fn6 Based upon this statutory direction, federal
courts are to raise the issue of the preclusive effect of prior
state court rulings whenever the courts of the state "from
which the judgments emerged would do so." Kelley v. TYK
Refractories Co., 860 F.2d 1188, 1193 (3d Cir. 1988) (quoting
Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415-16, 66
L.Ed.2d 308 (1980)); see also Van Dissel v. Jersey Cent. Power
& Light, Co., 194 N.J. Super. 108, 121-122, 476 A.2d 310
(App. Div.), cert. denied, 99 N.J. 186, 491 A.2d 690 (1984).
Accordingly, the preclusive effect under 28 U.S.C. § 1738, if
any, of the proceedings resulting from the Verified Complaint
will be determined with reference to New Jersey law. See Migra
v. Warren City School District Board of Education, 465 U.S. 75,
104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Towers, Perrin, Forster
& Crosby, Inc. v. Brown, 732 F.2d 345 (3d Cir. 1984).
Res judicata and collateral estoppel are "related but
independent preclusion concepts." Gregory v. Chehi,
843 F.2d 111, 115 (3d Cir. 1988). These doctrines generally prohibit
relitigation of claims and issues decided in a prior
proceeding. As summarized by the Supreme Court in Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649
n. 5, 58 L.Ed.2d 552 (1979):
Under the doctrine of res judicata, a judgment
on the merits in a prior suit bars a second suit
involving the same parties or their privies based
on the same cause of action. Under the doctrine
of collateral estoppel, on the other hand, the
second action is upon a different cause of action
and the judgment in the prior suit precludes
relitigation of issues actually litigated and
necessary to the outcome of the first action.
(citing 1B J. Moore, Moore's Federal Practice ¶ 0.405(1) at
622-624 (2d ed. 1974)).
The term res judicata has been given a variety of meanings,
some of which incorporate the distinct concept of collateral
estoppel. See Gregory, 843 F.2d at 115 (citing A. Vestal, Res
Judicata/Preclusion, V-13 to 14 (1969)). "To reduce the
confusion that resulted from the interchangeable use of these
terms, the courts have refined the nomenclature used in the
preclusion doctrine." Id. (citing Wade v. City of Pittsburgh,
765 F.2d 405, 408 (3d Cir. 1985)). The terms "claim preclusion"
and "issue preclusion" will be used in this opinion. See Migra,
465 U.S. at 77, n. 1, 104 S.Ct. at 894, n. 1;
Electro-Miniatures Corp. v. Wendon Co., 889 F.2d 41, 44 (3d
cir. 1989); Gregory, 843 F.2d at 115-116. The term claim
preclusion replaces res judicata; the term issue preclusion
replaces collateral estoppel. Electro-Miniatures, 889 F.2d at
44; Gregory, 843 F.2d at 116.
Although issue and claim preclusion are similar, they have
different consequences. "Claim preclusion refers to the effect
of a judgment in foreclosing litigation of a matter that never
has been litigated, because of a determination that it should
have been advanced in an earlier suit." McNasby v. Crown Cork
and Seal Co., 888 F.2d 270, 275 (3d Cir. 1989), cert. denied,
___ U.S. ___, 110 S.Ct. 1783, 108 L.Ed.2d 784 (1990) (citing
Migra, 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894 n. 1). "`Issue
preclusion refers to the effect of a judgment in foreclosing
relitigation of a matter that has been litigated and decided.'"
Id., n. 7 (citing Migra, 465 U.S. at 77 n. 1, 104 S.Ct. at 894
The claim preclusion rules formulated by courts are
"designed to draw a line between the meritorious claim[s] on
the one hand and the vexatious, repetitious and needless
claim[s] on the other hand." Purter v. Heckler, 771 F.2d 682,
689-90 (3d Cir. 1985). Litigation should not be renewed after a
case has been fully presented before a court and the issue has
been decided against a litigant. Id.
Federal courts must look to state law in determining the
preclusive effect of an earlier state court or administrative
proceeding. McNasby, 888 F.2d at 271. For the assertion of
issue preclusion the burden of proof in the earlier action must
be commensurate with the standard in the present action. In Re
Braen, 900 F.2d 621, 624, 626 (3d Cir. 1990). In addition, the
litigant against whom issue preclusion is invoked must have had
a full and fair opportunity to litigate the issue in the
previous tribunal. Id. at 628.
To invoke preclusion, it is required that the subsequent
action must involve substantially similar or identical causes
of action, issues, parties and relief as were involved in the
prior action. Culver v. Insurance Co. of North America,
115 N.J. 451, 460, 559 A.2d 400 (1989). A final judgment by a court
of competent jurisdiction is also required. Id.
To characterize two causes of action as the same for claim
preclusion purposes, a court must analyze (1) whether the
wrong for which redress is sought is the same in both actions
(that is, whether the acts complained of and the demand for
relief are the same), (2) whether the theory of recovery is
the same, (3) whether the witnesses and documents necessary at
trial are the same and (4) whether the material facts alleged
are the same. Id. at 461-462, 559 A.2d 400 (citations omitted).
Issue preclusion, on the other hand, requires only that an
issue of fact or law be determined in a valid proceeding and
that final judgment on that issue was necessary to the
decision. The decision on that issue is conclusive in any
subsequent action between the parties on either the
same or different claim. Alfone v. Sarno, 87 N.J. 99, 112 n. 9,
432 A.2d 857 (1981); Taylor v. Engelhard Industries, 230 N.J. Super. 245,
253, 553 A.2d 361 (App. Div. 1989).*fn7
C. Gender Discrimination Claims Under New Jersey Law
The LAD prohibits employers from terminating or
discriminating against employees on the basis of gender.
See N.J.S.A. 10:5-12(a). The statute permits any individual who
believes he or she was the victim of gender discrimination to
either file a verified complaint with the DCR or to bring suit
in the Superior Court of the State of New Jersey. N.J.S.A.
10:5-13. A final determination in either of these two avenues
of redress precludes the claimant from bringing any other
action based upon the same grievance. See N.J.S.A. 10:5-27;
Ferrara v. Tappan Co., 722 F. Supp. 1204, 1205 (D.N.J. 1989). If
a party to the complaint objects to the determination of the
DCR, that party may appeal to the Appellate Division of the
Superior Court under N.J.S.A. 10:5-21. Thus, once a claimant
takes advantage of the administrative route which is swifter
and less expensive than the alternative route of pursuing a
claim in superior court, N.J.S.A. 10:5-27 prohibits other
The claimant's election to pursue a grievance before the DCR
serves to waive the claimant's right to pursue in state court
other avenues of relief for the same grievance, except through
the appellate process. See Ferrara, 722 F. Supp. at 1205 (citing
Christian Bros. Inst. of N.J. v. Northern N.J. Interscholastic
League, 86 N.J. 409, 415, 432 A.2d 26 (1981) ("Christian
Bros."); Hermann v. Fairleigh Dickinson University, 183 N.J. Super. 500,
444 A.2d 614 (App. Div.), cert. denied, 91 N.J. 573,
453 A.2d 884 (1982) (citations omitted)).
In Christian Bros., the supreme court of New Jersey was
presented with a claim brought pursuant to the LAD concerning
the exclusion of a parochial high school ("Bergen Catholic")
from membership in a public high school athletic league. Bergen
Catholic filed a complaint with the DCR against the League.
After a series of conferences and discussions, the parties
expressed their desire to settle the matter and entered into an
agreement to effectuate settlement. Thereafter, Bergen Catholic
was not admitted to the League and did not attempt to challenge
the denial of admission as violative of the agreement. Instead,
it thereafter filed a suit in the law division of the New
Jersey superior court charging unlawful discrimination in
violation of its rights under the Constitutions of the United
States and the State of New Jersey as well as the LAD and
42 U.S.C. § 1981. The supreme court of New Jersey concluded:
[S]ince Bergen Catholic elected to seek relief in
the [DCR], rather than file a suit in Superior
Court, and agreed that the Conciliation Agreement
entered into before the [DCR] was to operate as
"a complete and final disposition of the matter"
subject only to fulfillment pursuant to the
enforcement provisions of the Law Against
Discrimination, N.J.S.A. 10:5-17, it was barred
by the exclusive jurisdiction language in
N.J.S.A. 10:5-27, . . ., from filing this suit.
Christian Bros., 86 N.J. at 415,