staying this action while plaintiff returns to the EEOC for
administrative investigation and conciliation efforts during the
requisite 180-day window would serve no useful purpose.
2. Statutory Election of Remedies under NJLAD
Moving to the administrative scheme surrounding plaintiff's
NJLAD claim — a scheme which plaintiff also fails to address in
her brief*fn7 — defendants argue that plaintiff's NJLAD claim
fails as a matter of law because she admittedly never withdrew
the administrative complaint she filed with the NJDCR and the
complaint was still pending when she filed this lawsuit.
Accordingly, defendants argue, plaintiff's NJLAD claim is barred
because N.J.S.A. § 10:5-27 provides that the administrative
process with the NJDCR shall be exclusive while pending.
The administrative requirements for a NJLAD claim differ
greatly from the procedural requirements under Title VII — most
notably, exhaustion of administrative remedies is not required.
Indeed, N.J.S.A. § 10:5-13 provides that an aggrieved party may
either file a discrimination claim with the NJDCR or initiate a
formal civil action. See N.J.S.A. § 10:5-13 (1993). Those
alternate remedies, however, are mutually exclusive and N.J.S.A.
§ 10:5-27 provides that: "the [administrative] procedure herein
provided shall, while pending, be exclusive; and the final
determination therein shall exclude any other action, civil or
criminal, based on the same grievance of the individual
concerned." N.J.S.A. § 10:5-27 (1993). This does not mean,
however, that plaintiff's NJLAD claim is barred.
Plaintiff filed a charge of discrimination with the NJDCR on
August 8, 1997. See Pl.Dep. at 117. As defendants point out,
plaintiff admitted during her deposition that she never withdrew
the complaint and that the NJDCR did not issue a determination or
a decision on her charge of discrimination. See id. at 117-18.
What defendants fail to acknowledge, however, is that during her
deposition, plaintiff also testified — and defendants do not
dispute — that she received a letter from "the State" within
sixty days of the November 23, 1998 deposition, saying that the
New Jersey Division on Civil Rights had closed her case. Id.
Defendants gloss over this portion of the deposition arguing,
rather, that plaintiff's NJLAD claim is barred because her
administrative complaint "was still pending before the NJDCR as
of the time that she filed her lawsuit in this case." Def.Br. at
34 (emphasis added).
Although defendants' argument may have been plausible at one
time, see Aldrich v. Manpower Temp. Services,
277 N.J. Super. 500, 505, 650 A.2d 4 (App. Div. 1994) (holding that N.J.S.A. §
10:5-27 does not jurisdictionally prevent plaintiff from filing a
civil action "after withdrawing the administrative complaint
before final disposition") (emphasis added), certif. denied,
139 N.J. 442, 655 A.2d 445 (1995), it is undeniably foreclosed by
the recent opinion of the Supreme Court of New Jersey in Wilson
v. Wal-Mart Stores, 158 N.J. 263, 729 A.2d 1006 (1999). In
Wilson, the Court rejected what it deemed to be the "arbitrary
result" that a plaintiff who withdrew his or her NJDCR
complaint before filing a civil action in Superior Court could
proceed, while a plaintiff who withdrew his or her NJDCR
complaint after the civil action was filed could not. Id. at
270-71, 729 A.2d 1006. The Court held that the exclusivity
provision of NJLAD, namely N.J.S.A. § 10:5-27, did not bar a
NJLAD action brought in state court even though the plaintiff
failed to withdraw her NJDCR complaint until after the
complaint was filed in Superior Court.
Id. at 271, 729 A.2d 1006. The Court reasoned that because the
NJDCR was not actively investigating the case, the parties were
not involved in discovery, and the NJDCR had not rendered an
administrative ruling, the purpose of the exclusivity provision
was not thwarted by allowing the plaintiff to proceed with her
civil action even though her NJDCR complaint was withdrawn after
the action was filed. Id.
Likewise, here, there is no evidence that extensive, or even
any, discovery or investigation took place at the NJDCR, the
NJDCR has "closed" plaintiff's case, and it is undisputed that no
final determination was ever reached. Thus, plaintiff is not
running afoul of the exclusivity provision of N.J.S.A. § 10:5-27
and her NJLAD claim is properly before this court.
3. Merits of Plaintiff's Title VII and NJLAD Claims
Defendants also argue that, even if properly before this court,
plaintiff's Title VII and NJLAD claims must fail on the merits.
Both sides acknowledge that this case involves discrimination
claims based upon circumstantial, rather than direct, evidence
and, therefore, that the burden shifting approach set forth in
McDonnell Douglas applies.*fn8 The Supreme Court in McDonnell
Douglas enunciated the three-step process by which to analyze
the shifting burdens applicable to such employment discrimination
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to
the defendant `to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection.' Third, should the defendant carry this
burden, the plaintiff must then have an opportunity
to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for
Texas Dep't of Community Affairs v. Burdine,