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Gittens v. Airborne Express

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


February 20, 2001

ROBERTO GITTENS,
PLAINTIFF,
V.
AIRBORNE EXPRESS,
DEFENDANT.

The opinion of the court was delivered by: Simandle, District Judge

NOT FOR PUBLICATION

OPINION

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.

I. BACKGROUND

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 motion will be granted and Count Three of plaintiff's complaint will be dismissed with prejudice.

II. DISCUSSION

A. Motion to Dismiss Standard

A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept as true all well-pleaded allegations in the Complaint and any and all reasonable inferences derived from those allegations. Schanzer v. Rutgers Univ., 934 F. Supp. 669, 673 (D.N.J. 1996)(citing Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987)); Unger v. National Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991). In addition to the Complaint, the court may also consider authenticated documents appended to the submissions of the parties. Schanzer, 934 F. Supp. at 671 n.1 (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1357, at 299 (2d ed. 1990)).It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. Shareholder Litigation, 758 F. Supp. 226, 230 (D.N.J. 1990). The question before the Court is not whether the plaintiff will ultimately prevail; rather, it is whether he can prove any set of facts in support of his claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150 n.3 (1984) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the non-movant, plaintiff's allegations state a cognizable legal claim. Markowitz v. Northeast Land Co., 906 F.2d at 103.

B. Plaintiff's NJLAD Claim

The NJLAD provides two alternative procedures by which a plaintiff may seek redress against or relief from unlawful discrimination. See N.J.S.A. 10:5-13. A plaintiff may seek relief from the New Jersey Division on Civil Rights ("NJDCR") or a plaintiff may file a complaint in an appropriate court. See id. New Jersey law on this issue is clear; if a plaintiff elects to pursue his or her administrative remedy with the NJDCR, then "that chosen remedy is exclusive while [the administrative procedure] is pending" Hermann v. Fairleigh Dickinson Univ., 183 N.J. Super. 500, 504 (App. Div. 1982), and "the final determination [of the NJDCR] 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.

If a plaintiff who has elected to pursue his administrative remedies with the NJDCR is dissatisfied with the decision of that agency, then that plaintiff's proper and only form of recourse is to appeal the decision of the NJDCR to the Appellate Division of the Superior Court of New Jersey. See Thompson v. Mobile Communications, 1999 WL 232018, * 6 (D.N.J. 1999); Christian Bros. Inst. V. North N.J. Interscholastic League, 86 N.J. 409, 415-16 (1981). Subsequent NJLAD actions filed in superior court or federal court are barred. See Thompson, 1999 WL 232018, * 6; Hermann, 183 N.J. Super. at 504-05. The fact that plaintiff received no plenary hearing before the NJDCR is immaterial. See Thompson, 1999 WL 232018, * 6; Hermann, 183 N.J. Super. at 503-04.

On October 30, 1999, Gittens received a finding of no probable cause from the NJDCR in response to his charge, which was filed with the department on September 24, 1997. Rather than appealing that decision to the Appellate Division of the New Jersey Superior Court as directed by the statute, plaintiff filed this action in federal court. Plaintiff argues that this NJLAD action is not barred because 1) he is only seeking relief for discrimination and harassment alleged to have occurred after September, 1997, when his NJDCR charge was first filed, 2) his retaliation charges were not considered by the NJDCR, and 3) because he did not receive a "trial" in this matter. Plaintiff's allegations, as discussed below, do not change this Court's conclusion that his NJLAD claim is barred as a matter of law.

First, plaintiff's assertion that his NJLAD count is not barred as a matter of law because the complaint only alleges wrongful activity occurring after September 5, 1997, which is the date indicated on his NJDCR charge, is without merit. Gittens's present NJLAD claims are barred by that statute's election of remedies provision and New Jersey case law. See N.J.S.A. 10:5-13 and 10:5-27; Tummala v. Merck & Co., Inc., 1995 WL 669220, *11-12 (D.N.J. 1995); Harter v. GAF Corp., 150 F.R.D. 502, 513 (D.N.J. 1993). Gittens, similar to the plaintiff in Harter, elected to pursue "the swifter and less expensive administrative route . . . and never pursued his appeal from the DCR to the Appellate Division." Harter, 150 F.R.D. at 513. Because Gittens elected the administrative remedy provided for by the NJLAD, he is "prohibited by N.J.S.A. 10:5-27 from asserting related . . . claims in an independent court judicial action." Id. Gittens's failure to file any appeal of the decision of the NJDCR does not enable him to seek alternative relief in this Court. See Tummala, 1995 WL 669220, * 11 (citing Harter, 150 F.R.D. at 513).

Gittens does not claim that the conduct of which he now complains differs from that he allegedly endured prior to the filing of his charge with the NJDCR. Instead, he claims that he was "subjected to additional discriminatory treatment" after the filing of his NJDCR charge and therefore his NJLAD claim related to that additional discrimination is not barred. Plaintiff misunderstands the statute's election of remedy provision. Because he is seeking relief for the same racial discrimination and harassment charged in his NJDCR charge, plaintiff must appeal the decision of the DCR, which considered allegedly discriminatory incidents occurring well after September, 1997 (see Def.'s Ex. B at 3-5), to the Appellate Division of the New Jersey Superior Court. The fact that plaintiff claims he suffered additional incidents of the same allegedly discriminatory conduct does not change the fact that his appeal options are limited due to his initial election to pursue the swifter and more cost effective administrative remedy provided for by the NJLAD.

Second, plaintiff argues that his retaliation charges were not considered by the NJDCR. A review of the findings of the NJDCR's investigation reveals that is not so. (See Def.'s Br., Ex. B.) The NJDCR's investigation findings report details the multiple grievances filed by Gittens with his union, beginning with the one filed on June 16, 1997. (See Def.'s Ex. B at 3-5.) That grievance, filed after Gittens was reprimanded for failing to promptly deliver items, was not pursued by his union. (Def.'s Ex. B at 3, para. 2.) No evidence of retaliation was discovered by the NJDCR and they concluded: Complainant and his Caucasian co-workers have been reprimanded for cause regardless of race. There was no support for Complainant's allegation that the discipline issued created a racially hostile work environment. It was found that Complainant's discipline resulted from his non-adherence to Respondent [sic] rules and regulations. (Def.'s Ex. B at 5.)

Therefore, although Gittens did not specifically allege unlawful retaliation in his NJDCR charge, the related investigation of the harassment and hostile work environment charges considered plaintiff's grievances and revealed no unlawful retaliation on the part of defendant Airborne Express.

Third, that plaintiff did not receive a trial or a hearing before an administrative judge after he filed his charges of discrimination and racial harassment with the NJDCR is irrelevant to his present claim before this Court. It is well-settled New Jersey law that a plaintiff seeking relief under the NJLAD may file an administrative charge with the NJDCR or file a complaint in an appropriate court. If a plaintiff elects to pursue the less expensive and (often) more expedient administrative remedy with the NJDCR, then "that chosen remedy is exclusive while [the administrative procedure] is pending" Hermann v. Fairleigh Dickinson Univ., 183 N.J. Super. 500, 504 (App. Div. 1982), and "the final determination [of the NJDCR] 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. Moreover, it has been found immaterial to a plaintiff's attempt to file a NJLAD claim in state or federal court after receiving an unfavorable determination from the NJDCR where plaintiff received no plenary hearing before the NJDCR. See Thompson, 1999 WL 232018, * 6; Hermann, 183 N.J. Super. at 503-04. Since the NJLAD remedy is created wholly by state law, this federal court is bound to apply the entire body of state-created NJLAD law, including restrictions upon available judicial remedies following an unfavorable NJDCR determination.

Based on the facts alleged in plaintiff's complaint, this Court finds that plaintiff can prove no set of facts that would entitle him to relief under the NJLAD. Because plaintiff elected to file an administrative charge with the NJDCR instead of initiating litigation, plaintiff's only means of challenging the NJDCR's decision was to file an appeal with the Appellate Division of the New Jersey Superior Court. The third count of plaintiff's present complaint, charging violations of the NJLAD based on the same allegedly discriminatory conduct considered by the NJDCR, is therefore barred as a matter of law.

III. CONCLUSION

For the reasons discussed herein, defendant Airborne Express's Rule 12(b)(6) motion to dismiss count three of plaintiff's complaint for failure to state a claim will be granted. The accompanying order is entered.

JEROME B. SIMANDLE U.S. DISTRICT JUDGE

THE ORDER THIS MATTER having come before the Court on defendant's Rule 12(b)(6), Fed. R. Civ. P., motion to dismiss Count Three of plaintiff's complaint for failure to state a claim upon which relief may be granted; and the Court having considered the submissions of the parties; and for the reasons discussed in the accompanying Opinion;

IT IS this 20th day of February, 2001 hereby

ORDERED that defendant's motion to dismiss Count Three be, and hereby is, GRANTED; and

IT IS FURTHER ORDERED that Count Three of plaintiff's complaint, seeking relief under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq., be, and hereby is, DISMISSED WITH PREJUDICE.

JEROME B. SIMANDLE, U.S.D.J.


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