The opinion of the court was delivered by: Robert B. Kugler United States Magistrate Judge
HONORABLE JEROME B. SIMANDLE
KUGLER, United States Magistrate Judge
Plaintiffs Erika Bair and Sandra Taylor move, in these companion cases, *fn1 to amend their complaints to withdraw their Title VII claims and substitute claims under 42 U.S.C. §1983, based on the same conduct and occurrences that formed the basis for their Title VII claims. Defendant City of Atlantic City opposes the motions to amend and cross-moves to dismiss the complaints in their entirety. For the following reasons, plaintiffs' motions to amend are granted, and defendant's cross-motions to dismiss are dismissed.
I. FACTUAL and PROCEDURAL BACKGROUND
Plaintiffs Erika Bair and Sandra Taylor filed separate complaints on November 9, 1999, naming the City of Atlantic City as a defendant. The allegations in their complaints are very similar. According to the complaints, Plaintiff Bair had been employed by Atlantic City as a clerk-secretary in the construction division department from February 28, 1997, to December 4, 1997. (Bair Complaint, ¶4). Plaintiff Taylor had been employed by Atlantic City as a clerk-secretary in the construction division department from 1992 until November 14, 1997. (Taylor Complaint, ¶4).
During their employment, the plaintiffs allegedly were subjected to "sexually offensive language and conduct, intimidation, ridicule and insult that was both severe and pervasive." (Bair Complaint, ¶¶5-7; Taylor Complaint, ¶¶5-7). Both plaintiffs made repeated complaints to "representatives of the Defendant," but Atlantic City "failed to take any appropriate remedial action toward eliminating the hostile work environment" until Plaintiff Taylor was transferred out of the construction division department on November 14, 1997, and Plaintiff Bair was transferred out of the construction division department on December 4, 1997. (Bair Complaint, ¶¶8-9; Taylor Complaint, ¶¶8-9). Plaintiffs allege that Atlantic City knew or should have known of the sexual harassment and hostile work environment because of the complaints that the plaintiffs made to the defendant, and also because "Defendant's supervisors repeatedly engaged in and encouraged such conduct." (Bair Complaint, ¶¶10-11; Taylor Complaint, ¶¶10-11).
Count One of the complaints alleged a sexually offensive and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e), et seq. ("Title VII"). Count Two alleged a violation of the New Jersey Law Against Discrimination, N.J.S.A. §10:5-1 et seq. ("NJLAD").
Defendant Atlantic City filed answers to the Bair and Taylor complaints on January 7, 2000, raising as an affirmative defense that plaintiffs failed to exhaust their administrative remedies with respect to their Title VII claims. (Bair Answer, Sixteenth Defense; Taylor Answer, Sixteenth Defense).
Conceding that they did not exhaust their administrative remedies, both plaintiffs now move to amend their complaints to withdraw their Title VII claims in Count One and replace them with claims under 42 U.S.C. §1983 ("Section 1983"), based on the same conduct and occurrences that formed the basis of their Title VII claims.
The factual allegations of the proposed amended complaints remain the same as in the original complaints. Instead of alleging a violation of Title VII, plaintiffs allege that the "sexually offensive language and conduct described herein created a sexually hostile work environment in violation of the plaintiff's right to equal protection under the 14th Amendment to the United States Constitution." (Bair Proposed Amended Complaint, ¶12; Taylor Proposed Amended Complaint, ¶12). Plaintiffs further claim that "defendant's aforesaid actions constituted a pattern of conduct which established a policy of acceptance and toleration of discrimination against women and the promotion of sexually hostile work environments in the construction department and throughout the municipal government." (Bair Proposed Amended Complaint, ¶14; Taylor Proposed Amended Complaint, ¶14). Plaintiffs further allege that the "aforesaid actions by defendant were taken under color of law and deprived the plaintiff of her equal protection right to be free from sex discrimination and a sexually hostile work environment under the 14th Amendment to the United States Constitution and constituted a violation of 42 U.S.C. §1983 for which the defendant is liable." (Bair Proposed Amended Complaint, ¶15; Taylor Proposed Amended Complaint, ¶15). *fn2
Defendant Atlantic City opposes the motions to amend and cross-moves to dismiss the complaints in their entirety for failure to state a claim. Defendant argues that plaintiffs' motions to amend are merely an obvious attempt to bypass the administrative prerequisites to filing a Title VII claim, and that plaintiffs may not circumvent Title VII's exhaustion requirements by using Section 1983 to allege a Title VII violation.
A. PLAINTIFFS' MOTIONS ...