The opinion of the court was delivered by: Mary L. Cooper United States District Judge
THIS IS AN ACTION brought on August 23, 2010, to recover damages for (1) violations of Title VII ("Title VII Claims") and the New Jersey Law Against Discrimination ("NJLAD Claims"), and
(2) breaches of the duty of fair representation, and of the covenant of good faith and fair dealing. (Dkt. entry no. 1, Compl.; dkt. entry no. 24, Am. Compl.)
THE PLAINTIFF "dual-filed" a charge ("Charge") with the United States Equal Employment Opportunity Commission ("EEOC") and the New Jersey Division on Civil Rights ("DCR") complaining of violations of Title VII and the NJLAD by his employer, the defendant Waste Management of New Jersey, Inc. (improperly pleaded under other names) ("WMI"). (Dkt. entry no. 17, Pl. Br. at 3 (stating "Plaintiff filed a charge with the EEOC and with the DCR"); dkt. entry no. 13, Affrunti Decl., Ex. B, Charge & Addendum.) The Charge was, in turn, processed by the EEOC under a "Worksharing Agreement". (Affrunti Decl., Ex. B, DCR Notice.)
The EEOC then issued a Dismissal and Notice of Rights. (Id., Ex. C.)
WMI and the defendants Lawrence Faschan and Robert Snyder, Sr., who are WMI employees (collectively, "WMI Defendants") now move to dismiss certain claims ("Motion"). (Dkt. entry no. 13, Notice of Mot. & 10-7-10 Defs. Br.) This Court will determine the Motion without oral argument. See Fed.R.Civ.P. 78(b).
THE WMI DEFENDANTS argue that the Title VII Claims concerning disparate impact asserted against them ("Impact Claims") should be dismissed, as the plaintiff did not raise the Impact Claims in the Charge and thus failed to exhaust the administrative remedies for the Impact Claims as required. (Am. Compl. at 10-11; 10-7-10 Defs. Br. at 7-10.) The Charge states that the plaintiff (1) is "Hispanic/Puerto Rican", (2) was "indefinite[ly] suspen[ded]" for "driving a truck with a broken axle", and was "instructed to review and sign a Last Chance Agreement in order to return to work", and (3) is "aware of other non-Hispanic Drivers that have been involved in the same, similar or worse situations. They were not issued discipline or suspension. None of them were required to sign a Last Chance Agreement". (Charge.)
THE STATEMENT that "non-Hispanic" employees were not as harshly disciplined for similar infractions permits the plaintiff's disparate treatment claims to proceed. (Compl. at 8.)*fn1 But that statement does not permit the Impact Claims to proceed, as it does not concern an "employment practice" such as an exam, a physical requirement, or a background check. See 42 U.S.C. § 2000e-2(k) (disparate-impact claim must allege particular employment practice (1) causes disparate impact based on race or national origin, and (2) is neither job related nor necessary for business); Lewis v. City of Chicago, 130 S.Ct. 2191, 2198 (2010) (examining statute where job applicants excluded for not achieving certain exam score); Lanning v. Se. Pa. Transp. Auth., 181 F.3d 478, 484-93 (3d Cir. 1999) (concerning claim that women excluded due to distance-running requirement); Levine v. Walmart Stores, No. 08-114, 2008 WL 203658, at *2 (M.D. Pa. Jan. 23, 2008) (concerning claim of exclusion of sex offenders). Disparate-treatment claims and disparate-impact claims are not "coextensive", and "the effect of applying Title VII's text is that some claims that would be doomed under one theory will survive under the other". Lewis, 130 S.Ct. at 2199. This Court will grant the part of the Motion seeking dismissal of the Impact Claims.
THE WMI DEFENDANTS argue that any remaining Title VII Claims asserted against Faschan and Snyder should be dismissed because there is no individual liability under Title VII. (10-7-10 Defs. Br. at 6-7.) The argument is correct; no further analysis is required. See N'Jai v. Floyd, 386 Fed.Appx. 141, 144 (3d Cir. 2010). This Court will grant that part of the Motion.*fn2
THE WMI DEFENDANTS argue that the NJLAD Claims asserted against them should be dismissed because the plaintiff (1) included NJLAD violations in the Charge under the Worksharing Agreement, (2) elected to exercise administrative remedies afforded under the NJLAD itself, and he is barred from pursuing the NJLAD Claims here, and (3) can only pursue the NJLAD Claims by seeking review in the New Jersey Appellate Division. (10-7-10 Defs. Br. at 4-6.) See N.J.S.A. § 10:5-21 (person aggrieved by DCR decision concerning NJLAD may appeal therefrom as an appeal from a state administrative agency); N.J.S.A. § 10:5-27 (stating DCR decision "shall exclude any other [civil] action . . . based on the same grievance of the individual concerned").
THAT ARGUMENT could have merit, see Chugh v. W. Inventory Serv., 333 F.Supp.2d 285, 290-91 (D.N.J. 2004), but the plaintiff - (1) on the same day that he opposed the Motion, (2) two months after he brought this federal action, and (3) more than one year after filing the Charge - withdrew the Charge insofar as it concerned the NJLAD allegations and elected to pursue this federal action ("Withdrawal"). (Dkt. entry no. 17, Pl. Certif., Ex. A, 10-18-10 Withdrawal; see dkt. entry no. 23, Pl. Supp'l Certif., Ex. A, 10-20-10 DCR Withdrawal Acknowledgment.) The Withdrawal is permitted, even at this juncture, and thus the NJLAD Claims can proceed here. See Lemke v. Int'l Total Servs., 56 F.Supp.2d 472, 482-83 (D.N.J. 1999), aff'd, 225 F.3d 649 (3d Cir. 2000); McKeever v. Ironworker's Dist. Council, No. 96-5858, 1997 WL 109569, at *4-5 (E.D. Pa. Mar. 7, 1997).
A CASE that would appear to direct a different result - Metzler v.
American Transportation Group, No. 07-2066, 2008 WL 413311 (D.N.J.
Feb. 13, 2008), wherein a NJLAD claim was held to be barred by
N.J.S.A. § 10:5-27 - is factually
distinct. As has occurred here, (1) the Metzler
plaintiff filed a dual charge with the EEOC and DCR under Title VII
and the NJLAD, and (2) the EEOC investigated, and then issued a
right-to-sue letter. Id. at *1. In Meltzer, however, both agencies
explicitly closed their files. Id. at *3; see Metzler v. American
Transportation Group, No. 07-2066, dkt. entry no. 5-1, Mem. of Law,
Ex. B, DCR Letter (stating DCR was informed that EEOC's file had been
closed, and DCR would do same). Thus, the Metzler court
dismissed the NJLAD claim as barred by the election of remedies
provision of N.J.S.A.
§ 10:5-27. Here, there has been no showing that the DCR closed its
file before the Withdrawal. Indeed, the DCR acknowledged the
Withdrawal. (10-20-10 DCR Withdrawal Acknowledgment.)*fn3
This Court will deny that part of the Motion.*fn4
THE MOTION will be granted in part and denied in part, as discussed above. This Court will issue ...