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NINAL v. EVANGELISTA

October 20, 2005.

MAXIMO A. NINAL, JR., Plaintiff,
v.
JODI EVANGELISTA, DEBORAH HEINZ, AND THE NEW JERSEY DEP'T OF COMMUNITY AFFAIRS, Defendants.



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

OPINION

Plaintiff, Maximo Ninal, brings this action against the New Jersey Department of Community Affairs (the "Department"); Deborah Heinz, Supervising Program Development Specialist at the Department; and Jodi Evangelista, Director of Human Resources at the Department. Plaintiff alleges that the Defendants engaged in employment discrimination against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2005), and N.J.S.A. §§ 10:5-4 and 10:5-12 when they allegedly refused to re-hire Plaintiff as a field representative.*fn1 Defendants submitted a motion for summary judgment or, in the alternative, for dismissal of Plaintiff's complaint for lack of subject matter jurisdiction. For the following reasons, Defendants motion to dismiss for lack of subject matter jurisdiction is granted.*fn2

  I. Background

  Plaintiff was employed as a field representative in the Department's Section 8 housing assistance program from 1994 through April, 2001. In his capacity as a field representative, Plaintiff was responsible for determining eligibility and meeting the housing needs of clients in the Section 8 program.

  The Department filed two Notices of Disciplinary Action against the Plaintiff. First, on December 5, 2000, the Department charged Plaintiff with falsifying his time sheet for the afternoon of September 27, 2000. Plaintiff filed an untimely appeal of this charge with the Merit System Board on January 5, 2001. In support of his appeal, Plaintiff submitted a field appointment schedule dated September 27, 2000. The Department realized that the field appointment schedule submitted to the Merit System Board was inconsistent with the field appointment schedule for the same day that Plaintiff previously submitted to the Department.*fn3 As a result of this inconsistency, the Department filed a second Notice of Disciplinary Action against the Plaintiff on March 2, 2001. The Department charged Plaintiff with falsifying a field appointment schedule and soliciting statements from other persons to support his falsified field appointment schedule.

  The Department sanctioned Plaintiff by (1) suspending him for ten days for his initial act of falsifying time records, the subject of the December 5, 2000 disciplinary action; and (2) removing Plaintiff from his position as a field representative as of April 19, 2001 because of the March 2, 2001 disciplinary action.

  Plaintiff appealed the Department's disciplinary actions to the Merit System Board. In addition, Plaintiff filed an Unfair Practice Charge with the State of New Jersey Public Employment Relations Committee ("PERC") alleging that the Department improperly engaged in retaliation, harassment, and discrimination against the Plaintiff in his workplace.

  Plaintiff's appeals of the disciplinary actions and his Unfair Practice Charge were all consolidated before the Office of Administrative Law for a hearing before Administrative Law Judge Robert J. Giordano. Judge Giordano conducted a plenary hearing in this matter on October 16, 2003. During this hearing, the parties engaged in significant settlement negotiations and ultimately reached a settlement agreement.

  The parties agree that under the settlement agreement discussed on October 16, 2003, the Plaintiff would do the following: (1) withdraw his appeals from the two disciplinary actions as well as his Unfair Labor Charge; and (2) waive any claims for back pay, vacation pay, or any other "emolument of employment." The parties concur that the Department agreed to do the following in return: 1) withdraw the disciplinary charges against the Plaintiff; (2) remove any references to the disciplinary charges from Plaintiff's personnel file and instead include in the file a reflection of Plaintiff's resignation in good standing; (3) issue a "to whom it may concern" departmental acknowledgment letter stating that Plaintiff resigned from employment in good standing; and (4) pay Plaintiff $35,000.00.

  Defendants assert that the Plaintiff also agreed that he would: (1) release the Department from "any and all claims that may arise out of the within incidents;" and (2) not seek employment in the future with the Department. Although Plaintiff's opposition brief fails to list these conditions as terms of the settlement agreement discussed on October 16, 2003, the record of the proceedings before Judge Giordano clearly indicate that these terms were conditions of the agreement.*fn4 Thereafter, the Plaintiff refused to sign a written agreement memorializing these settlement terms. The parties appeared for another hearing before Judge Giordano on March 24, 2004. Plaintiff argued that he did not want to sign the agreement because he did not understand its terms. Plaintiff claimed that he thought that the discussions were merely a settlement offer and that there was no agreement until a written document was actually signed. Judge Giordano found that Plaintiff understood the terms of the agreement and entered into it freely and voluntarily at the October 16, 2003 hearing and, therefore, that the agreement was enforceable. The Merit System Board and PERC, in a joint decision, affirmed Judge Giordano's decision.

  Plaintiff did not appeal Judge Giordano's ruling to the New Jersey Appellate Division. Instead, on July 21, 2004, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff alleged that he was discriminated against because he applied for re-hire with the Department in October, 2003 and March, 2004 and was denied re-hire. The EEOC found that Plaintiff did not establish a statutory violation and dismissed Plaintiff's action. Subsequently, on August 31, 2004, Plaintiff cashed the $35,000.00 check that the Department sent to him pursuant to its obligations under the settlement agreement. Plaintiff then filed suit in this Court on November 19, 2004.

  In the instant suit, Plaintiff alleges that the Defendants discriminated against him in violation of both federal and New Jersey law by refusing to re-hire him as a field representative on October 16, 2003. Plaintiff states that Heinz and Evangelista both spoke to Plaintiff's counsel, Robert H. Jaffe, Esq., on October 16, 2003, and informed him that they did not want to re-hire Plaintiff as an employee of the Department. However, Plaintiff offers no evidence that he specifically spoke to Heinz or Evangelista about being re-hired for a position at the Department outside of the context of the settlement discussions and hearing on October 16, 2003. Further, both Heinz and Evangelista submitted affidavits stating that they had not spoken with Plaintiff since the October 16, 2003 hearing before Judge Giordano. Both Heinz and Evangelista further stated in their respective affidavits that to their knowledge Plaintiff had not reapplied for a position at the Department.

  Thus, the only possible interpretation of Plaintiff's claims that he was discriminated against because the Department refused to re-hire him must stem from the settlement reached at the hearing before Judge Giordano on October 16, 2003. Plaintiff now apparently claims that because the Department sought Plaintiff's agreement that he would not seek re-employment with the Department as part of the settlement discussed on October 16, 2003, ...


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