court case, concluded that the two year statute is applicable and two appellate division cases have stated in dicta, and without explanation, that the six year statute is applicable.
Lautenslager, 252 N.J. Super. at 665. Finding a split in authority, the court undertook an independent analysis of the statute of limitations question. Looking to the common law concepts of "action on the case" and "trespass vi et armis," the court attempted to trace the roots of New Jersey's two tort statutes of limitations, N.J.S.A. 2A:14-1 and N.J.S.A. 2A:14-2. The court concluded that an action of trespass was historically to redress injuries caused by the direct application of force, and that the language of N.J.S.A. 2A:14-2, the two-year statute, was intended to apply to this type of action. Id. The court also concluded that the six-year limitation of N.J.S.A. 2A:14-1 was intended to cover indirect injuries in the nature of actions on the case. Id. Finding that employment discrimination is an indirect injury consisting of "the deprivation of the right to employment," and therefore most akin to a common law action on the case, the court determined that the six-year statute of limitations of N.J.S.A. 2A:14-1 should apply to NJLAD claims. Id. at 669. Although the court did not so state explicitly, it in effect rejected the reasoning that the Supreme Court of the United States employed in Wilson and Goodman to apply state personal injury statutes of limitation to employment discrimination claims brought under § 1981.
Thus, the question which presents itself, reduced to its simplest form, is this: Would the New Jersey Supreme Court, when faced with the issue of which statute of limitations to apply to NJLAD claims, follow the change in federal law and adopt a two-year statute of limitations as the Supreme Court did for § 1981 claims in Goodman, or continue to use the six-year statute that has been applied by lower New Jersey courts by making an assessment of the nature of employment discrimination claims independent of federal case law? In rendering a decision as to the proper statute of limitations, it must be remembered that it is not the place of this court to indulge its preferences as to how the state's common law ought to develop, Adams v. Madison Realty & Development, Inc., 853 F.2d 163, 168 (3d Cir. 1988), but rather to apply the substantive law of the state, including the statutes of limitations. McGowan v. University of Scranton, 759 F.2d 287, 290 (3d Cir. 1985).
With this caveat in mind, the choice is clear. No New Jersey case has held that NJLAD claims are subject to a two-year statute of limitations; every New Jersey case to consider the issue, whether directly or implicitly, whether with exhaustive analysis or bluntly stated, has applied a six-year statute of limitations. See, Fisher v. Quaker Oats Co., 233 N.J. Super. 319, 559 A.2d 1 (App. Div.), certification denied, 117 N.J. 628 (1989); Nolan v. Otis Elevator Co., 197 N.J. Super. 468, 485 A.2d 312 (App. Div. 1984), rev'd on other grounds, 102 N.J. 30, 505 A.2d 580, cert. denied, 479 U.S. 820, 93 L. Ed. 2d 38, 107 S. Ct. 84 (1986); Lautenslager v. Supermarkets General Corp., 252 N.J. Super. 660, 600 A.2d 525 (Law Div. 1991); Leese v. Doe, 182 N.J. Super 318, 440 A.2d 1166 (Law Div. 1981). Although New Jersey's first statement on the issue, in Leese, relied on the prevailing federal law at the time, that court also characterized the employment discrimination claim as an "injury to plaintiff's property rights." Leese, 182 N.J. Super. at 321. This conclusion was echoed more recently by the Law Division in Lautenslager, as that court declined to follow White's analogy to federal law.
Even more persuasive, however, is the fact that the only Appellate Division cases to speak on the subject have applied the six-year limitations period. These decisions are deemed to be presumptive evidence of state law. See Commercial Union Insurance Co. v. Bituminous Casualty Corp., 851 F.2d 98, 100 (3d Cir. 1988); White, 712 F. Supp. at 37. Unless this court is convinced that the New Jersey Supreme Court would rule otherwise, it is bound to follow the decisions of New Jersey's lower appellate courts. I agree with the court in Carrington that there is nothing to indicate that the New Jersey Supreme Court would exhibit a "slavish devotion" to federal law. Quite the contrary, the New Jersey courts have consistently treated employment discrimination as an injury to property rights within the scope of the six-year limitations period of N.J.S.A. 2A:14-1. This court concludes, therefore, that Taxman's NJLAD claims are subject to a six-year statute of limitations and are not time barred.
IV. Motion for Applicable Legal Standards under Title VII
The Board seeks "a ruling that the evidence in this case will be judged solely by Title VII standards as reflected in Weber and Johnson, and not the 'strict scrutiny' equal protection analysis of Croson." Def. Br. at 5. Conceding that the litigation is at an early stage, the Board nonetheless attempts to justify its request on the basis of "the substantial expense of developing statistical data and, also, some confusion about the applicability of equal protection cases like [Croson]." Id. at 2. To say that the ruling requested by the Board would be premature would be an understatement given that discovery is in its early stages and the issues that must be decided are not yet focused. Federal courts must refrain from rendering "such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests . . . ." See United States v. Fruehauf, 365 U.S. 146, 157, 5 L. Ed. 2d 476, 81 S. Ct. 547 (1961). In short, the court will not give an advisory opinion as to the legal standards which it may apply in the future, if called on to do so, to yet-to-be gathered evidence.
V. Relitigation of Taxman's Seniority Rights
The Board argues that the New Jersey Commissioner of Education's determination of Taxman's seniority rights should be dispositive and that relitigation of the issue of seniority rights should be barred under the doctrine of res judicata (now referred to as claim preclusion) or collateral estoppel (now referred to as issue preclusion). See Migra v. Warren City School District Board of Education, 465 U.S. 75, 77, 79 L. Ed. 2d 56, 104 S. Ct. 892 n.1 (1984) (discussing new terminology). The United States, citing University of Tennessee v. Elliott, 478 U.S. 788, 92 L. Ed. 2d 635, 106 S. Ct. 3220 (1986), counters that state agency determinations which have not been reviewed by a state court are not to be given preclusive effect in a Title VII action.
The Supreme Court in Elliott began its preclusion analysis with 28 U.S.C. § 1738, which governs the preclusive effects of state court judgments.
Finding that § 1738, by its terms, applies only to judgments and records of state courts and not to unreviewed state administrative factfindings, the Court framed the question before it as whether it should, as it had done before, fashion a federal common law rule of preclusion in the absence of a statute. Elliott, 478 U.S. at 794; Kremer v. Chemical Construction Corp., 456 U.S. 461, 470, 72 L. Ed. 2d 262, 102 S. Ct. 1883 n.7 (1982). In considering the question with regard to Title VII claims, the Court noted that Title VII contains an express mandate that the EEOC give "substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local [employment discrimination] law." Elliott, 478 U.S. at 795 (quoting 42 U.S.C. § 2000e-5(b)). Because this provision would be senseless if state agency determinations were to be accorded full faith and credit in Title VII actions, and because the legislative history of Title VII indicates congressional intent to ensure a Title VII plaintiff a trial de novo on Title VII claims, the Court concluded that "Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims." Elliott, 478 U.S. at 795-96.
The Board does not dispute that Elliott stands for the proposition that ordinary preclusion principles do not apply to administrative determinations in Title VII actions. Rather, it attempts to distinguish Elliott's holding, arguing that it applies "only when the prior administrative adjudication involves civil rights-type issues within the EEOC's expertise." Def. Reply Br. at 3. In support of this argument, the Board cites Elliott and states that it is unaware of any authority freeing the EEOC from preclusion where discrimination was not an issue in the administrative proceeding. The Board's reasoning is flawed for several reasons.
First, the proposition for which the Board cites Elliott, i.e. that the preclusive effect of state administrative determinations applies only with respect to civil rights-type issues, is nowhere to be found in Elliott. The holding in that case is plainly stated and straightforward, not narrowly confined as the Board's reading suggests. There is not so much as a hint in Elliott that administrative determinations would be given preclusive effect if not of a certain type. The Board's failure to cite any authority on this point is, indeed, telling.
Moreover, this unconstrained reading of Elliott is supported by the case law following Elliott. See, e.g., McInnes v. California, 943 F.2d 1088, 1093 (9th Cir. 1991) ("The clear teaching of Elliott is that in a Title VII action a prior state decision enjoys issue preclusive effect only if rendered or reviewed by a court."); De Cintio v. Westchester County Medical Center, 821 F.2d 111, 114-15 & 116 n.11 (2d Cir.) (giving no preclusive effect to state administrative determinations not reviewed by a court with respect to Title VII claims), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 395, 108 S. Ct. 455 (1987).
There appears to be only one circuit case in which the issue of whether administrative findings unrelated to civil rights-type issues should be given preclusive effect in a Title VII action was considered, and even then the issue was only indirectly addressed. In Delgado v. Lockheed-Georgia Co., the Eleventh Circuit was faced with the question of whether to extend Elliott's holding to ADEA claims. 815 F.2d 641, 646 (11th Cir. 1987). The plaintiffs in Delgado, who had been terminated by Lockheed, filed claims for unemployment benefits with the Georgia Employment Security Agency (GESA). Benefits were denied because the GESA found that the employees had engaged in willful misconduct involving falsification of employer records. In considering whether the GESA's findings should have preclusive effect in the subsequent ADEA action, the court used as its starting point Elliott's holding that unreviewed state agency determinations are not given preclusive effect in Title VII actions, assuming that if the case at bar had been a Title VII action, Elliott would govern and the GESA's findings would not be given preclusive effect. The court found persuasive the EEOC's likening of the ADEA to Title VII with regard to administrative preclusion, but found it "unnecessary to determine whether the finding of a state administrative agency should be denied preclusive effects in all cases," because even if preclusion could be applied, it would be inappropriate under the circumstances presented because plaintiffs did not have an adequate opportunity to litigate their claims. Id. at 646-47. Implicit in the court's opinion, however, is the conclusion that had the action been one under Title VII, the GESA's findings, unrelated to civil rights though they were, would have been denied preclusive effect under Elliott.
Thus, it is clear from a plain reading of Elliott, from an examination of the policies extolled by the Court in that case, and from the case law after Elliott that the New Jersey agency's findings should not be given preclusive effect in this Title VII case.
The Board also urges this court to abstain under both the Burford and Pullman abstention doctrines. The court need not tarry long on the abstention question, as neither theory is applicable here. First, it bears mention that abstention is "an extraordinary and narrow exception to the district court's duty to adjudicate a controversy properly before it, justified only in the exceptional circumstances where resort to state proceedings clearly serves an important countervailing interest." Biegenwald v. Fauver, 882 F.2d 748, 750 (3d Cir. 1989) (quoting United Services Automobile Ass'n v. Muir, 792 F.2d 356, 360 (3d Cir. 1986), cert. denied, 479 U.S. 1031, 107 S. Ct. 875, 93 L. Ed. 2d 830 (1987)). Abstention is to be the exception, rather than the rule. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976).
is appropriate where a state creates a complex regulatory scheme that is supervised by the state courts and central to state interests and federal review of state law questions will disrupt a state's efforts "to establish a coherent policy with respect to a matter of substantial public concern." Colorado River, 424 U.S. at 814. The presence of federal law issues, however, though not dispositive, will weigh against abstention. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 26, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983); Lac D'Amiante Du Quebec, Ltee v. American Home Assurance Co., 864 F.2d 1033, 1044 (3d Cir. 1988); Izzo v. River Edge, 843 F.2d 765, 768 (3d Cir. 1988). The Third Circuit in Izzo noted that in considering Burford abstention in a case with a federal question, three criteria should be present: (1) the subject of the regulation be of significant and special concern to the state; (2) the state regulatory scheme be detailed and complex; and (3) the federal issues be unresolvable without requiring the district court to immerse itself in the technicalities of the state's scheme. Izzo, 843 F.2d at 769. Even assuming that the seniority rights of public teachers is of some significant and special concern to the state, the state's regulatory scheme is not so complex and highly technical that it would counsel against a federal court's involvement to resolve a federal concern. Furthermore, the Title VII claims at issue here may well be resolvable without the court ever entangling itself in the seniority rights issue at all. Burford abstention is wholly inappropriate and must be rejected out of hand.
Pullman abstention is also clearly inapplicable. In order for Pullman abstention to apply, three special circumstances must be present: (1) uncertain issues of state law underlying the federal constitutional claims brought in federal court; (2) state law issues amenable to a state court interpretation that would obviate the need for, or substantially narrow, the scope of the adjudication of the constitutional claims; and (3) disruption of important state policies by a federal court's erroneous construction of state law. Chez Sez III Corp. v. Union, 945 F.2d 628, 631 (3d Cir. 1991), cert. denied, 117 L. Ed. 2d 493, 112 S. Ct. 1265 (1992) If all three circumstances are present, the district court must determine whether to exercise its discretion in favor of abstention. Id.
The court need not make any discretionary determination here, for the facts of the case do not present even a colorable case for Pullman abstention. First, and fatally, there is no constitutional issue in this case. Although the Board recites the applicable law as relating to a "substantial federal question," a mere federal question is insufficient under Pullman and subsequent cases invoking the doctrine. See Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 498-501, 85 L. Ed. 971, 61 S. Ct. 643 (1941) (discussing plaintiffs' "substantial constitutional claim"); Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984) (abstention appropriate where unsettled state law questions must be resolved before "a substantial federal constitutional question can be decided");
Colorado River, 424 U.S. at 814 (abstention appropriate "in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of state law") (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959)); Chez Sez III, 945 F.2d at 631 ("when a federal court is presented with both a federal constitutional issue . . ."); Biegenwald v. Fauver, 882 F.2d 748, 750 (3d Cir. 1989) (federal constitutional claim). Because this action does not involve a federal constitutional claim, Pullman abstention is inapplicable.
This court holds that Taxman's NJLAD claims are not time barred because the appropriate limitations period for such claims is six years. The Board's motion for a ruling on the legal standards to be applied is denied, as is its motion for an order barring relitigation of Taxman's seniority rights under New Jersey law.
An appropriate order shall issue.
MARYANNE TRUMP BARRY
Dated July 31, 1992
ORDER - August 4, 1992, Filed
This matter having come before the court upon the motion of defendant to dismiss the claims of plaintiff-intervenor Taxman under the New Jersey Law Against Discrimination, and upon the motion of defendant for an order determining the applicable legal standards for determining defendant's liability and barring relitigation of the seniority rights of plaintiff-intervenor Taxman; and the court having considered the submissions of the parties both in support of and in opposition to the motions without oral argument, pursuant to Fed. R. Civ. P. 78;
IT IS on this 31st day of July, 1992, for the reasons expressed in the court's opinion of even date, hereby
ORDERED that defendant's motion to dismiss the NJLAD claims of plaintiff-intervenor Taxman is denied; and it is further
ORDERED that defendant's motion for an order determining the applicable legal standards for defendant's liability and barring relitigation of the seniority rights of Taxman is denied.
MARYANNE TRUMP BARRY