Venezia v. Equitable Life Assurance Soc. of the U.S.

Full title: Re: Jeffrey B. Venezia v. Equitable Life Assurance Society of the United…

Court: United States District Court, D. New Jersey

Date published: Jul 19, 1999

Civil Action No. 98-5050 (NHP) (D.N.J. Jul. 19, 1999)

Opinion

Civil Action No. 98-5050 (NHP).

July 19, 1999.

Mr. Jeffrey B. Venezia, Edison, N.J., Plaintiff Pro Se.

Robert B. Nussbaum, Esq., SAIBER, SCHLESINGER, SATZ GOLDSTEIN Newark, N.J., Attorneys for Defendant, Equitable Life Assurance.

LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT

NICHOLAS H. POLITAN JUDGE

Dear Litigants:

This matter comes before the Court on defendants' motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). The Court heard oral argument on May 24, 1999. For the reasons explained below, defendants' motion is GRANTED.

FACTUAL BACKGROUND

Defendant Equitable Life Assurance Company sells insurance, annuity contracts, and other equity products. Defendant hired plaintiff Venezia as a probationary sales agent during August of 1996. Plaintiff's employment was terminated on November 14, 1996. According to the defendants, Venezia was fired because: (1) he failed to meet productivity requirements; (2) he was belligerent; and (3) he had serious credit problems that would require defendants to provide closer supervision. Plaintiff Venezia's Complaint alleges that he was terminated because, among other things, he was perceived to be a homosexual.

On November 26, 1996, plaintiff filed a complaint with the New Jersey Department of Law and Public Safety, Division on Civil Rights (the "DCR"), alleging discrimination on the basis of perceived sexual orientation, in violation of the New Jersey Law Against Discrimination (the "NJLAD"). The DCR issued a finding of no probable cause on August 5, 1998. Plaintiff's appeal of that finding was denied on November 18, 1998.

DISCUSSION

A motion to dismiss under Rule 12(b)(6) should be granted only if it is 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). Because plaintiff Venezia is proceeding pro se, this Court construes his Complaint liberally.

Turning first to plaintiff's claim of discrimination on the basis of his sexual orientation, or his perceived orientation, such claims are not cognizable under Title VII. See Caldwell v. KFC Corp., 958 F. Supp. 962, 967 n. 2 (D.N.J. 1997) (citing Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 751 (4th Cir. 1996); see also Hicks v. Arthur, 891 F. Supp. 213, 215 (E.D.Pa. 1995), aff'd without op., 91 F.3d 123 (3d Cir. 1996). To the extent that such a claim is actionable under the New Jersey Law Against Discrimination ("NJLAD"), plaintiff's lawsuit is barred because he has already pursued his administrative remedies in the Division of Civil Rights. See Ferrara v. Tappan Co., 722 F. Supp. 1204, 1205 (D.N.J. 1989) (holding that "pursuant to the NJLAD, when parties seek administrative redress for their claims they are banned from then seeking relief via the courts"); see also Christian Bros. Inst. v. Northern N.J. Interschool League, 86 N.J. 409, 415 (1981).

With regard to plaintiff's claims of disability discrimination under the Americans with Disabilities Act, which are based upon plaintiff's alleged mental and emotional disabilities, these claims are barred because plaintiff did not file a complaint with the EEOC, and also because the allegations are not fairly within the scope of the sexual orientation claims that plaintiff pursued in the DCR. See Ditzel v. University of Med. Dentistry, 962 F. Supp. 595, 602 (D.N.J. 1997). The time for filing an EEOC complaint has now lapsed.

To the extent that plaintiff alleges that he has been the victim of same-sex sexual harassment, plaintiff has not exhausted his administrative remedies, and the time for pursuing such remedies has now passed.

Finally, plaintiff cannot prevail on his claim that the defendants violated his First Amendment right to freely exercise his religion because the defendants are not state actors.

For these reasons, plaintiff can prove no set of facts that would entitle him to relief. The time for Venezia to pursue his administrative remedies has now lapsed, and there is no basis for equitable tolling. Repleading the complaint would therefore be futile.

CONCLUSION

For the reasons explained above, defendants' motion to dismiss the Complaint is GRANTED. The Complaint is DISMISSED WITH PREJUDICE.

An appropriate Order accompanies this Letter Opinion.