The opinion of the court was delivered by: Simandle, District Judge
In this racial harassment and discrimination case, plaintiff Roberto A. Gittens ("Gittens") brings suit against his employer, defendant Airborne Express ("Airborne"), alleging that Airborne harassed and discriminated against him based on his race in violation of 42 U.S.C. § 1981 (Count One), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII")(Count Two), and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. ("NJLAD")(Count Three). Defendant now moves to dismiss Count Three of plaintiff's complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., for failure to state a NJLAD claim upon which relief may be granted. For the reasons discussed herein, defendant's motion will be granted and Count Three of plaintiff's complaint will be dismissed with prejudice.
Plaintiff Gittens, an African American male, began his employment as a driver with Airborne at their Absecon, New Jersey facility on June 20, 1994. (Def.'s Mot. to Dismiss at 4.) Airborne is an air express delivery carrier, providing overnight, next-afternoon and second-day express delivery services, as well as same day courier services. Airborne competes with a number of other courier services and their operations are extremely time sensitive. (Def.'s Br. at 2.)
Airborne's drivers are members of the Teamsters Union, Local 331, which, along with the Transport Employers Association, is a party to a National Master Freight Agreement (the "Agreement"). Airborne is a signatory to the Agreement. The Agreement and the Philadelphia, Pennsylvania & Vicinity Local Cartage and Over-the-Road Supplement (the "Supplement") constitute the Collective Bargaining Agreement ("CBA") governing the disciplinary and grievance procedures applicable to Airborne drivers. Gittens became a union seniority driver in 1995. (Def.' Br. at 2.)
In or about September, 1996, Gittens began receiving warnings and discipline letters, as provided for under the CBA, related to his repeated lateness, poor attendance, and work performance problems. (Id.) On April 11, 1997, Airborne suspended Gittens with the intent to terminate his employment as a result of repeated tardiness. (See Def.'s Br., Ex. B, NJDCR Investigation Findings at 1.) Plaintiff's union intervened after this incident and plaintiff was not terminated. On August 2, 1997, after plaintiff's tardiness continued, Airborne again suspended plaintiff and recommended that he be terminated. (Id.) This was reduced to a final warning for plaintiff after his union again intervened. (Id.)
On September 24, 1997, Gittens filed a charge of discrimination against Airborne with the Equal Employment Opportunity Commission ("EEOC")(Pl.'s Opp. Br. at 2 and Ex. B) and with the New Jersey Division on Civil Rights ("NJDCR")(Pl.'s Br. at 2 and Ex. C), both alleging that he was being discriminated against on the basis of his race and that he was exposed to a racially hostile atmosphere. Plaintiff's NJDCR charge alleged:
Complainant alleges he is being unlawfully treated based on his race/Black, in that:
A. Out of approximately twenty-four (24) employees at Respondent facility Complainant is the only Black.
B. Complainant alleges he is constantly being harassed . . . a type of behavior not shown to his similarly situated Caucasian co-workers.
D. Complainant alleges that he alerted Respondent of the racially hostile atmosphere, however Respondent has failed to take any action to alleviate the hostile work environment. (Pl.'s Br., Ex. C.)
On August 30, 1999, after investigating plaintiff's charges, the NJDCR issued a "Finding of No Probable Cause," which closed plaintiff's grievance. *fn1 (Pl.'s Br. 2-3 and Ex. D.) Plaintiff has not appealed the decision of the NJDCR.
On June 7, 2000, plaintiff filed this action. On September 15, 2000, defendant filed a motion to dismiss Count Three of plaintiff's complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief can be granted, arguing that plaintiff's NJLAD claim was barred as a matter of law by the NJDCR action. *fn2 For the reasons discussed below, defendant's ...