On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication January 26, 1996.
Before Judges King, Landau and Kleiner. The opinion of the court was delivered by King, P.j.a.d.
The opinion of the court was delivered by: King
The opinion of the court was delivered by KING, P.J.A.D.
This case involves election of remedies for discrimination in the workplace. The issue is whether plaintiff's election to initially pursue his federal remedy to an administrative decision but then forego his right to bring a federal lawsuit precludes this Superior Court action for damages based on state law.
Plaintiff Wilfredo Hernandez appeals from the grant of a summary judgment on his claim for damages against his employer for violation of this State's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Plaintiff claims that he was wrongfully discharged by defendants from his job as a lead maintenance person for reasons of national origin in violation of the LAD. The plaintiff initially was suspended with pay for two days for speaking Spanish in the lobby of the apartment building where he worked and he was ordered not to speak Spanish again in public areas. He was later terminated in October 1991. He claimed he was suspended and then finally terminated for discriminatory reasons of national origin. The defendant employer claimed plaintiff was legitimately disciplined and later fired for poor job performance.
The Law Division Judge granted summary judgment on the ground that plaintiff had irrevocably elected a federal remedy and could not later pursue an alternative judicial remedy under state law. On this appeal, plaintiff claims that he should not be barred from suing under New Jersey's LAD simply because he had initially pursued his remedy under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e to § 2000e-6, before the EqualEmployment Opportunities Commission (EEOC) to an administrative determination.
Plaintiff originally filed a complaint with the Division on Civil Rights (DCR) on November 4, 1991. Before the DCR had taken any action, plaintiff voluntarily withdrew that complaint on June 4, 1992. Several months before this DCR withdrawal, on February 26, 1992, plaintiff had filed a complaint with the EEOC pursuant to Title VII, 42 U.S.C.A. § 2000e-5(b). After conducting an investigation, the EEOC issued a two-page written "DETERMINATION" on May 19, 1993. The determination issued "on behalf of the EEOC" by Area Director Corrado Gigante concluded that the defendants' "prohibition of Hispanics from speaking their native language during working hours operated to deny [plaintiff] a term and condition of his employment." This policy was found discriminatory on the basis of national origin because not "required as a matter of business necessity." The Area Director concluded this part of his determination by stating that "based on the evidence in the file, the Commission finds reasonable cause to believe [defendants] discriminated against [plaintiff] in violation of Title VII." However, the Area Director reached a contrary Conclusion on the claimed unlawful discharge aspect of the complaint. On this point, the determination recited:
With respect to Charging Party's allegation of unlawful discharge, evidence reveals that Charging Party was discharged on October 28, 1991 after receiving his third Letter of Warning for performance in accordance with Respondent's warning system.
The evidence obtained did not support Charging Party's allegation of unlawful discrimination with respect to his discharge. Charging Party has been informed of the evidence upon which this determination is based. The Charging Party may pursue this matter by filing a private suit against the Respondent as set forth in the enclosed Information Sheet.
The determination concluded with the instruction that: "This determination does not conclude the processing of this charge. EEOC will begin conciliation efforts to resolve all matters where there is a reason to believe that violations occurred." The determination also noted an "Enclosure -- Information Sheet on FilingSuit in the Federal District Court" which contained this information:
This determination becomes effective upon receipt. Some or all of Charging Party's allegations of illegal employment discrimination have been dismissed. If Charging Party wishes to pursue this matter(s), Charging Party must file a private lawsuit against the respondent named in the charge in U.S. District Court under the applicable statute(s), as set forth below. The determination letter and this notice will be the only notice of the Charging Party's right to sue by the Commission.
Filing this notice with the court is not sufficient. A court complaint must contain a short statement of the facts of the case which shows that Charging Party is entitled to relief. Generally, suits are brought in the State where the alleged unlawful practice occurred, but in some cases can be brought where relevant employment records are kept, where the employment would have been, or where the respondent has its main office.
After this determination, plaintiff refused to sign a "conciliation agreement" tendered by the EEOC. We understand from oral argument that this conciliation tender had no monetary significance to the plaintiff but looked to mediation and resolution of the parties' dispute, by then moot because of the discharge. On January 21, 1994 the EEOC issued a somewhat belated "Notice of Right ...