On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Before Judges Pressler, Landau and Conley.
The opinion of the court was delivered by CONLEY, J.A.D.
In 1991 plaintiff filed a LAD*fn1 complaint with the Division on Civil Rights which, in 1993 and before the commencement of any administrative hearings before an Administrative Law Judge, she withdrew. Shortly thereafter plaintiff filed a LAD complaint in the Superior Court. She now appeals a summary judgment dismissing that complaint based upon her initial, but uncompleted, selection of the administrative forum. We reverse.
Plaintiff has been employed by defendant since August 1980. In her Superior Court complaint, she alleges discrimination against her on the basis of her age and gender "with respect to compensation, promotions, working conditions, responsibilities and other conditions of employment." She also alleges retaliation. Prior to filing this complaint, in July 1991 plaintiff filed her
administrative complaint. After eighteen months had elapsed without any action being taken by the agency, and pursuant to N.J.S.A. 10:5-13 and N.J.A.C. 13:4-12.1, plaintiff requested to have the matter transferred to the Office of Administrative Law for a hearing before an administrative law Judge.
Thereafter both parties engaged in discovery. A pre-hearing conference was scheduled for May 21, 1993; on May 14, 1993, however, plaintiff withdrew her complaint and request for a hearing pursuant to N.J.A.C. 1:1-19.2. That regulation provides:
(a) A party may withdraw a request for a hearing or a defense raised by notifying the Judge and all parties. Upon receipt of such notification, the Judge shall discontinue all proceedings and return the case file to the Clerk. If the Judge deems it advisable to state the circumstances of the withdrawal on the record, the Judge may enter an initial decision memorializing the withdrawal and returning the matter to the transmitting agency for appropriate Disposition.
(b) When a party withdraws, the Clerk shall return the matter to the agency which transmitted the case to the Office of Administrative Law for appropriate Disposition.
(c) After the Clerk has returned the matter, a party shall address to the transmitting agency head any motion to reopen a withdrawn case.
On June 1, 1993, plaintiff filed her Law Division complaint based on the same facts and alleging the same LAD claims. In granting defendant's motion to dismiss, the trial Judge concluded that the Superior Court lacked jurisdiction and said:
Now the defendant does not get a choice of remedy or forum. The plaintiff gets the choice. The plaintiff's position is that the plaintiff should get a number of choices. Theoretically, the plaintiff could file an administrative law complaint, withdraw it as was done in this case, file a complaint in the Law Division, withdraw it, and go back to the Administrative Law, provided you could get all these changes done within the statute of limitations, although nowadays, an ...