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Francis Cornacchiulo v. Alternative Investment Solutions

June 19, 2012


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3191-11.

Per curiam.


Argued March 5, 2012

Before Judges A. A. Rodriguez and Ashrafi.

Plaintiff Francis Cornacchiulo appeals from a June 13, 2011 order dismissing his employment discrimination complaint pursuant to N.J.S.A. 10:5-27, the election of remedies and exclusivity provision of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We affirm.


Plaintiff began working as a senior vice president for defendant Alternative Investment Solutions, L.L.C., in July 2008. He was involuntarily terminated from his employment in April 2009. On June 30, 2009, he filed a "Charge of Discrimination" with the Equal Employment Opportunity Commission (EEOC), an agency of the federal government, alleging discrimination on the basis of an unspecified disability.

A day later, on July 1, 2009, plaintiff filed with the EEOC an "Addendum to Charge of Discrimination" by which he elected to file the same claim of disability discrimination simultaneously with the New Jersey Division on Civil Rights (NJDCR). The Addendum stated that the EEOC had a "Worksharing Agreement" with the NJDCR "to provide individuals with an efficient procedure to facilitate the dual filing of charges of employment discrimination with both the EEOC and NJDCR under appropriate New Jersey State and Federal Laws." In a section of the document with the subheading "Verified Addendum to Charge of Discrimination," plaintiff placed an X next to a line indicating that he was filing a claim for discrimination based on disability under New Jersey statutes N.J.S.A. 10:5-4.1 and -29.1. He signed the document, thus adopting statements verifying the accuracy of his allegations of discrimination.

The EEOC notified defendant-employer of the discrimination charge. It subsequently received information from both parties about plaintiff's claims. On October 16, 2009, the EEOC issued a letter stating it had examined plaintiff's claims and was "unable to conclude that the information establishes a violation of federal law . . . ." The EEOC stated it had completed its processing of the charge, and it issued a document entitled "Dismissal and Notice of Rights" to inform plaintiff of his right to file a lawsuit under federal law, such as under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 to 12213, within ninety days of the EEOC notice. Plaintiff did not file a federal lawsuit.

On January 12, 2010, the NJDCR issued a letter stating that it had received the charge of discrimination filed by plaintiff, and that plaintiff's claims would be processed under a "Worksharing Agreement" by the EEOC, not by the NJDCR. The letter also stated:

Once the Equal Employment Opportunity Commission has made a determination concerning that charge and closes its file, the Division on Civil Rights ordinarily adopts the EEOC's determination. However, upon application, and for good cause shown, the Division on Civil Rights will review a no reasonable cause determination by the EEOC to ensure that it comports with standards under the Law Against Discrimination.

No further activity occurred on the matter until plaintiff retained an attorney and filed a complaint and jury demand in the Superior Court on April 8, 2011, claiming violation by defendant of the LAD. The complaint alleged that certain executives of defendant-employer had learned plaintiff had been diagnosed with multiple sclerosis and was suffering with the symptoms of that disease during his several months of employment. The executives had allegedly embarked on and executed a plan to terminate plaintiff for purported inadequate performance when, in fact, he had performed well in his position. Moreover, the motivation of defendant-employer was to facilitate better terms on a key man insurance policy for executives that the employer was seeking to purchase.

On April 29, 2011, the NJDCR issued a letter addressed to the attorney for defendant-employer, which stated: "Please be advised that the Equal Employment Opportunity Commission (EEOC) has informed the Division on Civil Rights of the closing of its file on the above reference[d] charge. Therefore, a determination has been made and the Division on Civil [R]ights is closing its file on the same basis."*fn1

On May 18, 2011, defendant filed a motion in the Law Division in lieu of an answer to plaintiff's complaint to dismiss the lawsuit with prejudice for failure to state a claim upon which relief can be granted. R. 4:6-2(e). In support of its motion, defendant submitted the documents we have described and contended that plaintiff was barred from filing a lawsuit under the LAD because he had filed a charge ...

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