Opinion
CIVIL NO. 00-3942 (JBS).
March 5, 2001
CHRISTIAN A. PEMBERTON, Esquire, Sicklerville, N.J., Attorney for Plaintiff.
Ronald M. Warren, Esquire, KULZER DIPADOVA, Haddonfield, N.J., Attorney for Defendants
OPINION
In the instant lawsuit, plaintiff claims, among other things, sex and race discrimination and violation of his rights under the Thirteenth Amendment to the United States Constitution, by his erstwhile employer. Defendants have moved to dismiss plaintiff's complaint, including amendments made thereto, citing plaintiff's failure to exhaust administrative remedies. Specifically, they allege that plaintiff should have obtained a notice of right to sue from the Equal Employment Opportunity Commission prior to filing suit. This Court grants defendants' motion to dismiss after finding that plaintiff indeed failed to exhaust administrative remedies available to him.
I. BACKGROUND
The facts relevant to deciding this motion, taken in a light most favorable to plaintiff as the non-movant, are as follows.
The Court acknowledges that both plaintiff and defendants have addressed other facts and issues on all aspects of plaintiff's claims in this matter. This Opinion and Order make no ruling on the merits of those issues. The relevant facts, as listed here, do not constitute findings of fact binding on the remainder of this case, nor do they establish the totality of the facts in this case.
Plaintiff, a 24 year-old African-American male, was employed full-time in the production department of DAP, Inc. ("DAP"). (2d Am. Compl. at ¶¶ 2 8.) DAP is a business corporation operating in Gloucester County, New Jersey. (Id. at ¶ 1.) The other defendants are employees of DAP. (Id. at ¶¶ 2-7.)
Several employees at the company, some of whom remain unidentified, allegedly passed jokes with sexual connotations against plaintiff on a continuous basis. (Id. at ¶ 7.) For instance, Donny Mauls, Jason "Doe," and Frank "Doe" allegedly joked that plaintiff's knees were dirty because he was under his boss' desk performing oral sex. (Id.) Further, plaintiff's supervisor, defendant Jim Burgess, did nothing about it despite plaintiff's complaints to him regarding the comments. (Id.)
Plaintiff complains of other incidents, not mentioned here, that he perceived as being sexually offensive. (Am. Compl. at ¶¶ 13 16.)
In one incident, the plant manager, defendant Theresa Honeycutt, allegedly questioned plaintiff and a white co-worker about a police report of an incident in which plaintiff was a victim. (Id. at ¶ 11.) The supervisor allegedly accused plaintiff of being a liar and made him feel like he was the offender in the incident. (Id.) By contrast, the white co-worker was allegedly not spoken to in a rude manner. (Id.)
Plaintiff complains of other incidents, not mentioned here, that he perceived as being racially discriminatory. ( Id . at ¶¶ 11 14.)
On another occasion, the plant manager allegedly asked him how the job in Delaware was going for him, referring to plaintiff's application for a job in Delaware. (Id. at ¶ 12.) She allegedly told plaintiff that he was too small to work as a corrections officer. (Id.) From that day on, plaintiff was allegedly singled out for abusive and disparate treatment, including being falsely accused of irregular attendance, and being refused his promised raises. (Id.) Finally, plaintiff's employment with DAP was terminated on or about January 27, 2000. (Id. at ¶ 17.)
II. PROCEDURAL BACKGROUND
A. Administrative Agency.
On May 1, 2000, plaintiff filed a Complaint of Discrimination and Retaliation with the New Jersey Division of Civil Rights ("NJDCR") alleging sex discrimination and retaliatory discharge. (Def.'s Reply Br. Ex. 1.) The record indicates that NJDCR sent defendants a letter on June 8, 2000 requesting an answer to plaintiff's allegations, and certain documents and information. (Id.) On the same day, defendants received notice of the charge filed simultaneously with the Equal Employment Opportunity Commission ("EEOC"), as per the work sharing agreement between NJDCR and EEOC, which provides for dual filing. (Id.)
Plaintiff claims that, although he complained of race discrimination the NJDCR representative failed to include it in the written complaint, but instead asked plaintiff to mention it to his attorney. (Pl.'s Aff. in Support of Mot. Am. at ¶ 6.)
B. New Jersey Superior Court.
While the charge was pending before the NJDCR and EEOC, and before plaintiff had received consent to sue from either agency, plaintiff filed an eight-count complaint against defendants on June 23, 2000, in the Superior Court of New Jersey, Gloucester County, alleging:
1. Race discrimination, in violation of Title VII, and violation of the Thirteenth Amendment to the U.S. Constitution (Compl. at ¶¶ 9-22);
2. Race discrimination in violation of New Jersey Law Against Discrimination (NJLAD) (Id. at ¶¶ 23-27);
3. Race discrimination in violation of New Jersey's public policy (Id. at ¶¶ 28-31);
4. Retaliatory discharge in violation of the public policy of New Jersey (Id. at ¶¶ 32-34);
5. Race discrimination, in violation of his constitutional right under article I, paragraph 1 of the New Jersey State Constitution (Id. at ¶¶ 35-39);
6. Breach of contract and/or covenant of good faith and fair dealing (Id. at ¶¶ 40-45);
7. Intentional infliction of emotional distress (Id. at ¶¶ 46-50); and
8. Negligent failure to educate and/or enforce training relative to race and sex discrimination (Id. at ¶¶ 51-52).
Plaintiff also sought punitive damages, among other damages, stating that defendants' race and sex discrimination were wanton, reckless and/or malicious. (Id. at ¶ 17.)
C. Federal District Court.
1. Original complaint
On August 14, 2000, DAP removed the case to federal court pursuant to 28 U.S.C. § 1441, on the basis of this Court's federal question jurisdiction over plaintiff's constitutional and Title VII claims. On the same day, defendants also filed a Motion to Dismiss Plaintiff's Complaint arguing, among other things, that plaintiff had failed to fulfill Title VII's requirement that plaintiffs must exhaust available administrative remedies. Defendants argue that these remedies include obtaining a right-to-sue letter from the EEOC or, alternatively, waiting for the passage of 180 days, prior to filing suit.
Plaintiff opposed defendants' motion to dismiss stating that neither a right-to-sue letter nor the expiration of 180 days was a prerequisite to filing suit in the Superior Court of New Jersey. Defendants reply that plaintiff was bound by the procedural mandates of Title VII because EEOC had jurisdiction over the complaint even if plaintiff had not filed his complaint with the EEOC or federal court.
2. Amended Complaint
After defendants moved to dismiss, plaintiff cross-moved to amend his complaint in order to perfect it and more specifically allege facts supporting his federal claims. Finally, plaintiff filed a second amended complaint on October 3, 2000, seeking to include two more employees of DAP as defendants, and to add additional facts.
Defendants filed a second motion to dismiss as against plaintiff's amended complaint on November 14, 2000, reiterating their reasons for seeking dismissal of plaintiff's complaint. In response, plaintiff claims that he should be allowed to file suit in state court where he could allege violations of federal law without having to abide by its procedural prerequisites. Defendants, in turn, reply that plaintiff's pleadings are still insufficient despite the amendments made to the complaint.
III. DISCUSSION
For the reasons explained below, plaintiff's Title VII claim against defendants must be dismissed, even if all of his factual allegations are true and backed by admissible evidence, because he has failed to exhaust statutorily mandated administrative remedies. Further, he has not stated a claim under the Thirteenth Amendment to the U.S. Constitution based on which relief can be granted since he has not alleged slavery or involuntary servitude. Consequently, this complaint will be remanded to the New Jersey Superior Court, pursuant to 28 U.S.C. § 1367(c)(3), for resolution of the state law claims.
A. STANDARD OF REVIEW FOR MOTION TO DISMISS.
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) ("Rule (12)(b)(6)"), for failure to state a claim upon which relief can be granted, does not attack the merits of the case, but merely tests the legal sufficiency of the complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 628-29 (D.N.J. 1994), aff'd, 70 F.3d 291 (3d Cir. 1995). A court may not dismiss the complaint "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A court, at this stage, does not consider evidence (other than that attached to the complaint itself), but rather decides if a plaintiff would be entitled to relief if there was evidence to back up every factual allegation made.
B. PLAINTIFF'S INDIVIDUAL CLAIMS.
1. Violation of the Thirteenth Amendment to the United States Constitution.
Plaintiff first alleges that defendants have violated the Thirteenth Amendment to the United States Constitution. (2d Am. Compl. at ¶ 18.)
In order to state a claim under the Thirteenth Amendment, a plaintiff alleging racial discrimination must also allege that the discrimination involved involuntary servitude or compulsory labor. See Atta v. Sun Co., 596 F. Supp. 103, 105 (E.D.Pa. 1984). Specifically, the plaintiff must allege that the employer imposed a condition of enforced compulsory labor, or that the employer asserted control over the employee's person and labor either through physical force or coercive threats. Id. The essential ingredient of such a claim is the "inability to avoid continued service." Id. citing Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695, 705 (D.C. Cir. 1984).
Here, plaintiff merely claims that defendants discriminated against him on the basis of his race. He has not made any allegation of force by which defendants compelled him to continue services at DAP. On the contrary, the facts, as pleaded, suggest that defendants sought to terminate plaintiff's services without just cause. Consequently, the claim based on the Thirteenth Amendment will be dismissed for failure to state a claim upon which relief can be granted.
2. Violation of Title VII Right Against Discrimination Based on Race and Sex.
Defendants claim that plaintiff cannot file a suit under Title VII without first exhausting the administrative remedy available with the EEOC. (Def.'s Br. at ¶ 4.) Specifically, defendants argue that the EEOC has not issued plaintiff a notice of right to sue, without which plaintiff is barred from filing suit. (Id.) Alternatively, defendants claim that 180 days had not expired from the date of filing of the charge with the EEOC and prior to filing suit, as required by 29 C.F.R. § 1601.28(a)(2). (Id. at ¶¶ 5-6.)
In response, plaintiff contends that he does not have to exhaust administrative remedies mandated by Title VII since he did not himself file complaint with the EEOC or move his suit to the federal court. (Pl.'s Opp'n to Def.'s Mot. Dismiss Am. Compl. at ¶ 8.) Further, he claims that a right to sue letter is not a prerequisite to filing suit in the Superior Court of New Jersey. (Id.)
Defendants correctly note, however, that EEOC procedures are a necessary prerequisite since filing of plaintiff's charge with NJDCR resulted in a dual filing with the EEOC, as per the work-sharing agreement between EEOC and NJDCR, and because plaintiff has himself asserted a claim under federal law, making the removal of his complaint to federal court possible.
Here, as pointed out by defendants, plaintiff made a federal claim by alleging age and sex discrimination under Title VII and the Thirteenth Amendment of the U.S. Constitution. As a result, defendant was entitled to remove the case to this court, thereby making plaintiff subject to this court's jurisdiction. The issue that now remains is whether plaintiff may seek relief in this court despite failing to exhaust his administrative remedies under 42 U.S.C. § 2000e.
The EEOC has been created as a preliminary stop for plaintiffs prior to their recourse to courts. See 42 U.S.C. § 2000e-5(f)(1). The initial step of the filing of the EEOC charge and the receipt of the right to sue notification are "essential parts of the statutory plan, designed to correct discrimination through administrative conciliation and persuasion if possible, rather than by formal court action." See Anjelino v. New York Times Co., 200 F.3d 73, 93 (3d Cir. 1999), (citing Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976)). Because the aim of the statutory scheme is to resolve disputes by informal conciliation, prior to litigation, suits in the district court are limited to matters of which the EEOC has had notice and a chance, if appropriate, to settle.Id. Accordingly, permitting plaintiff to file suit in this court prior to an initial examination by the EEOC would undermine the efficiencies on which the doctrine of exhaustion of administrative remedies is based. Further, the requirement of exhaustion applies irrespective of which party brings the complaint before the federal court.
A Title VII plaintiff must exhaust his administrative remedies by obtaining a right-to-sue letter from the EEOC prior to instituting court proceedings. See Tori v. Shark Information Services, No. CIV.A.95-5171, 1995 WL 764578 at *2 (E.D.Pa. Dec. 18, 1995). The issuance of a right-to-sue letter "is not a `jurisdictional' requirement in the constitutional sense, but rather a statutory requirement designed to give the administrative process an opportunity to proceed before a lawsuit is filed." Id., (citing Gooding v. Warner-Lambert Co., 744 F.2d 354, 358 (3d Cir. 1984)). The EEOC is required to issue a notice of right to sue upon finding no merit in the plaintiff's case, or, alternatively, upon request by the plaintiff after the expiry of 180 days prior to filing complaint with the federal court. See 29 C.F.R. § 1601.28(a)(1) (2). The plaintiff need not plead the issuance of a right-to-sue letter to maintain a suit in federal court; the mere issuance of one will fulfill the statutory requirement. See Tori, No. CIV.A.95-5171, 1995 WL 764578 at *2.
In Tori v. Shark Information Services , the Eastern District of Pennsylvania held that plaintiff's federal claim did not survive defendant's Rule 12(b)(6) motion to dismiss despite plaintiff's assertion that a right-to-sue letter was anticipated from the EEOC. No. CIV.A.95-5171, 1995 WL 764578 at *2 (E.D.Pa. Dec. 18, 1995). It held that only the actual issuance of a right-to-sue letter could validate the plaintiff's Title VII suit. Id .
Finally, the fact that a charge of employment discrimination has been filed with a state agency does not eliminate the need for exhaustion of the EEOC remedy. The work-share agreement between the EEOC and the state agency merely serves to avoid duplicity of proceedings. In the case of filing with either agency, a right to sue letter is required before a plaintiff may file suit.
Here, it appears that plaintiff filed charges against defendants with the NJDCR, an FEP agency, with which the EEOC shares work to enable an effective and integrated resolution of complaints. See 29 C.F.R. § 1601.80. However, the record does not indicate the result of investigations, if any, by either the NJDCR or the EEOC. Further, no right to sue was issued by the EEOC prior to the filing of this suit. Plaintiff has had ample time and opportunity to obtain a right-to-sue letter from the EEOC since the time when this deficiency was first pointed out, and has not done so. This failure has not been remedied during the pendency of this action.
An FEP agency has been defined as a state or local agency which the EEOC has determined satisfies the criteria stated in 42 U.S.C. § 2000e(5) . See 29 C.F.R. § 1601.3.
Consequently, this Court will dismiss plaintiff's Title VII claim for failure to exhaust the administrative remedy available to him.
3. Other New Jersey State Law Claims.
A federal district court may decline to exercise supplemental jurisdiction over claims over which it does not have original jurisdiction once it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Having dismissed all the claims upon which this Court has original jurisdiction, namely those relating to the Thirteenth Amendment of the U.S. Constitution and Title VII, this Court declines to exercise supplemental jurisdiction over plaintiff's state law claims.
IV. CONCLUSION
Having found that plaintiff has failed to assert facts that indicate involuntary servitude, this Court dismisses plaintiff's Thirteenth Amendment claim for failure to state a claim based on which relief can be granted. Further, since plaintiff has not obtained a notice of right-to-sue from the EEOC prior to bringing his Title VII claim, this Court dismisses such employment discrimination claim without prejudice pending exhaustion of administrative remedies in accord with 42 U.S.C. § 2000e.
Finally, having dismissed all claims over which it has original jurisdiction, this Court hereby declines to exercise supplemental jurisdiction over the remaining state law claims asserted by plaintiff. The Court instead will remand the complaint to the Superior Court of New Jersey, Gloucester County, for further proceedings pursuant to 28 U.S.C. § 1447(c).
The accompanying Order is entered.
O R D E R
THIS MATTER having come before the Court upon defendants' motions to dismiss plaintiff's complaint, including amendments thereto; and the Court having considered the submissions of the parties; and for the reasons stated in the Opinion of today's date;
IT IS on this day of February, 2001 hereby
ORDERED that defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) be, and is hereby, GRANTED; and IT IS FURTHER ORDERED as follows:
1. Plaintiff's Thirteenth Amendment claim is DISMISSED WITH PREJUDICE;
2. Plaintiff's Title VII claims are DISMISSED WITHOUT PREJUDICE;
3. The Court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims; and
4. This case is hereby REMANDED to the Superior Court of New Jersey, Gloucester County, Law Division at Docket No. ATL-L-2768-98, for further proceedings upon plaintiff's claims arising under state law.