Opinion
Civil Action No. 99-817 (NHP).
May 11, 1999
Mr. James T. Wang, North Brunswick, N.J., Plaintiff Pro Se.
Hope M. Pomerantz, Esq., PSEG, Newark, N.J., Attorney for Defendant.
LETTER ORDER ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Litigants:
This matter comes before the Court on defendant Public Service Electric and Gas Company's motion to dismiss plaintiff James J. Wang's Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). This matter was decided without oral argument pursuant to Federal Rule of Civil Procedure 78. Upon careful consideration of all memoranda submitted in connection with this motion and for the reasons stated herein, defendant Public Service Electric and Gas Company's motion to dismiss, which has been construed by this Court as a motion for summary judgment, is GRANTED and plaintiff's Complaint is DISMISSED.
STATEMENT OF FACTS PROCEDURAL HISTORY
On February 24, 1999, plaintiff pro se James J. Wang ("plaintiff") filed a Complaint in the United States District Court, District of New Jersey alleging race and national origin discrimination against defendant Public Service Electric and Gas Company ("PSEG") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-4.
In the Complaint, plaintiff contends that he was working as an "Investment Recovery Manager" at PSEG when he was demoted to a "Coordinator." See Complaint dated February 24, 1999. Plaintiff further asserts that the position of Investment Recovery Manager was not eliminated but, instead, merely underwent a title change and was referred to as the "Asset Management and Recovery Manager." See id. Plaintiff was not offered the position of Asset Management and Recovery Manager. Instead, PSEG hired a white male to fill the position. See id. Plaintiff contends that PSEG's decision to hire a "less qualified white male" to perform the Asset Management and Recovery Manager job instead of offering plaintiff the position was the result of discriminatory animus. See id.
Plaintiff also claims that three months after the unidentified "less qualified white male" entered the picture, plaintiff was required to participate in PSEG's "Performance Improvement Plan" ("PIP"), which was a plan designed to improve the work habits of certain employees. Pursuant to this plan, plaintiff was given three months to improve his work habits. On the last day of the PIP program, plaintiff was told that although he successfully completed PIP, his Coordinator position had been eliminated because of company "reorganization." Plaintiff alleges that he was told that he could apply for an "Investment Recovery Specialist" position and that if he did, he would be assured to get the position. Without articulating whether he did, in fact, apply for the position, plaintiff simply states that another less qualified white male was given the job.See id.
In March 1997, plaintiff was terminated from PSEG. Despite plaintiff's separation from the company, plaintiff contends that, in August 1997, he was offered a job at PSEG in the nuclear division. See id. However, this offer was later rescinded by PSEG on August 14, 1997. Plaintiff states that PSEG told him that the reason the offer was rescinded was because PSEG could not rehire former employees who were "transitioned" twice. Plaintiff contends that the articulated reason is simply not true because he knows of at least four white male employees who were rehired by the company.
The first record of plaintiff having filed any documentation with an administrative agency is on March 15, 1998. On that day, plaintiff filed an Intake Questionnaire with the Equal Employment Opportunity Commission ("EEOC") regarding his discharge from PSEG. See Plaintiff's Brief in Opposition to Defendant's Motion to Dismiss, Exhibit A. On March 16, 1998, plaintiff filed an Intake Questionnaire with the EEOC regarding PSEG's failure to hire him and/or failure to award him a promotion. See id. It appears from the record that both Intake Questionnaires were received by the EEOC on March 18, 1998. See id.
Plaintiff contends that he filed a Complaint with the EEOC on January 16, 1998. See Plaintiff's Brief in Opposition, page 1. There is, however, no record of any such filings.
On July 24, 1998, plaintiff signed a Charge of Discrimination with the EEOC. See Certification of Hope M. Pomerantz dated March 17, 1999, Exhibit A. The Charge clearly provides that the only date of discrimination occurred on August 14, 1997, the date upon which he was told that PSEG could not rehire him because he had been "transitioned" twice. See Certification of Hope Pomerantz, Exhibit A. Plaintiff does not allege that he was discriminated against by PSEG on any other date. Specifically, he does not contend that his March 1997 termination was the result of discriminatory animus.
On or about August 17, 1998, PSEG received the Charge of Discrimination from the New Jersey Division on Civil Rights ("NJDCR").See Certification of Hope M. Pomerantz dated March 17, 1999, Exhibit A. The cover letter provided that the NJDCR was forwarding a copy of its Addendum and Charge of Discrimination to PSEG pursuant to the current Worksharing Agreement between the NJDCR and the EEOC. See id., Exhibit A. The Addendum explained that the Worksharing Agreement "provides 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." See id., Exhibit A. The letter also provided that the processing of the Complaint would be conducted by the EEOC and not the NJDCR. See id.
In August 1998, PSEG wrote to both the NJDCR and the EEOC contending that since plaintiff had failed to file his claim within the required statutory period, the Charge should be dismissed. See id., Exhibit B.
On November 23, 1998, the NJDCR wrote back to PSEG and affirmed that "because the complaint in this matter was transmitted for filing beyond the 180 day statute of limitations, the Division never accepted this matter for filing, and no complaint is currently pending with the Division." See id., Exhibit C.
On November 30, 1998, the EEOC forwarded a Dismissal and Notice of Rights letter to plaintiff, with a copy to PSEG, indicating that it was closing its file on the pending charge because "the EEOC is unable to conclude that the information obtained establishes violations of the statutes . . ." See id., Exhibit B. Although the EEOC closed its file, PSEG contends that the initial issuing of the Charge for Discrimination was in error, as well as, the Dismissal and Notice of Rights letter which ultimately followed. See Certification of Hope M. Pomerantz, ¶ 10.
On February 24, 1999, plaintiff filed the subject Complaint alleging race and national origin discrimination.
On March 19, 1999, defendant PSEG filed the subject motion to dismiss in lieu of an Answer contending that plaintiff's Title VII claim is barred by plaintiff's failure to file a timely claim with the EEOC. Assuming arguendo, that the Court dismisses plaintiff's Title VII claim, PSEG also requests that the Court refrain from exercising pendent jurisdiction over plaintiff's state law claim for discrimination pursuant to the NJLAD.
DISCUSSION
Although PSEG has filed a motion to dismiss in lieu of an Answer, this Court will treat the within motion as one for summary judgment since both parties have directed the Court's attention to both factual allegations and documents beyond the scope of the Complaint.
The standard governing a summary judgment motion is set forth in Fed.R.Civ.P. 56(c), which provides, in pertinent part, that:
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Procedurally, the movant has the initial burden of identifying evidence that it believes shows an absence of genuine issues of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When the movant will bear the burden of proof at trial, the movant's burden can be discharged by showing that there is an absence of evidence to support the non-movant's case. Id. at 325. If the movant establishes the absence of a genuine issue of material fact, the burden shifts to the non-movant to do more than "simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In this matter, there are no genuine issues of material fact and, therefore, summary judgment is appropriate.
A plaintiff seeking to file an employment discrimination claim pursuant to Title VII of the Civil Rights Act of 1964 must follow the administrative procedures set forth in 42 U.S.C. § 2000e-5(e).Ditzel, III v. University of Medicine and Dentistry of New Jersey, 962 F. Supp. 595, 602 (D.N.J. 1997). 42 U.S.C. § 2000e-5 provides, in pertinent part:
(e) Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency; seniority system
(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier . . . .42 U.S.C. § 2000e-5.
Essentially, Title VII requires an aggrieved party to file a charge setting forth all alleged acts of discrimination with the EEOC within 180 days of the alleged discriminatory practice. 42 U.S.C. § 2000e-5. However, if the complainant initiates proceedings with a state or local employment discrimination agency, the filing period is extended to 300 days. 42 U.S.C. § 2000e-5.
Although administrative procedures must be exhausted prior to seeking judicial relief, the United States Supreme Court has held that the filing of a timely Charge of Discrimination with the EEOC is not a jurisdictional prerequisite to bringing a lawsuit in federal court. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). See also Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997); Bishop v. Okidata, Inc., 864 F. Supp. 416, 424 (D.N.J. 1994). Accordingly, the failure to comply with the statutory pronouncement on timeliness is not an absolute bar to bringing an action. Hart v. J.T. Baker Chemical Co., 598 F.2d 829, 830 (3d Cir. 1979). Instead, the timely filing provision is "a requirement that, similar to a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Id. Nonetheless, courts are less likely to extend the time period limitations when there is a discrete triggering event leading to an alleged act of discrimination as opposed to an ongoing pattern of discrimination. West v. Philadelphia Electric Company, 45 F.3d 744, 754 (3d Cir. 1995).
In this matter, plaintiff specifically alleged, via the Charge of Discrimination, that the discriminatory act by PSEG took place on August 14, 1997, the date upon which he was told that PSEG could not hire him because he had been "transitioned" twice. See Certification of Hope Pomerantz, Exhibit A. The Charge reveals that plaintiff signed the Charge on July 24, 1998; 343 days after the alleged act of discrimination. Clearly, plaintiff's filing of the Charge of Discrimination is outside of the 180-day and 300-day time period limitations.
In the Charge of Discrimination, plaintiff did not allege any other dates upon which he was discriminated nor did he allege an ongoing pattern of discrimination. It is only in hindsight that plaintiff now alleges that PSEG discriminated against him prior to August 1997. When analyzing the issue of timeliness, such deficiencies in the Charge preclude this Court from considering any allegations beyond those actually set forth in the Charge because the omission of such complaints from the Charge are tantamount to never filing a Charge on those claims. Therefore, the Court will only look to the allegations set forth in the Charge of Discrimination to determine if such Charge was timely pursuant to the statutory pronouncement set forth in 42 U.S.C. § 2000e-5 .
Moreover, even if the Court were to look at the first record of a filing by plaintiff in an attempt to extend the period of limitations,i.e., the March 15th and 16th Intake Questionnaires filed with the EEOC, plaintiff is still outside of the 180-day time limit. Since the EEOC is not a state or local agency and there is no record of the NJDCR receiving any direction from the EEOC to institute proceedings at that time, the 300-day extension is simply inapplicable.
In a final attempt to extend the time limitations period, if this Court were to construe the forwarding of the Charge by the EEOC to the NJDCR in August 1998 as a referral, thereby, satisfying the requirement that state proceedings be initiated by a local or state agency (and in effect, affording plaintiff the 300-day time period) plaintiff would still be beyond the 300-day time period. See generally Love v. Pullman, 404 U.S. 522, 523 (1972).
The Court may extend itself only so far in an attempt to remedy plaintiff's deficiencies before unfair prejudice results to the defendant. See Howze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) (recognizing that delay alone is an insufficient ground upon which to deny plaintiff the option of making a motion to amend the complaint, rather the district court must consider whether the nonmoving party will be prejudiced if the amendment is allowed). It appears from the record that plaintiff simply slept on his rights. In fact, plaintiff has articulated no reason for the significant delay in filing the Charge of Discrimination. Furthermore, plaintiff has failed to provide this Court with sufficient reasons why it should exercise the equitable tolling function. This Court is persuaded that defendant would be prejudiced if plaintiff was allowed to reap the benefits of the inexcusable delay in filing the Charge. For the foregoing reasons, this Court declines to exercise its discretion and will not toll the limitations period.
In the Complaint, plaintiff alleges a second cause of action pursuant to the NJLAD. Since this Court has barred plaintiff's Title VII claim and both parties are citizens of New Jersey, this Court declines to exercise supplemental jurisdiction over the pendent state law claims. 28 U.S.C. § 1367(c)(3).
Therefore, defendant PSEG's motion to dismiss, which has been construed by the Court as a motion for summary judgment, is GRANTED and plaintiff's First Cause of Action based upon Title VII is DISMISSED WITH PREJUDICE. Furthermore, plaintiff's Second Cause of Action is hereby DISMISSED WITHOUT PREJUDICE TO PLAINTIFF'S RIGHT TO LITIGATE THE STATE LAW DISCRIMINATION CLAIMS IN STATE COURT. It is further ORDERED that this case is CLOSED.