Wilson v. Wal-Mart Stores

GARIBALDI, J.,

dissenting.

I disagree with the majority, and find that plaintiff, Nancy Wilson, is precluded, pursuant to N.J.S.A. 10:5-27, from filing a civil action under the New Jersey Law Against Discrimination, (“LAD” or the “Law”), N.J.S.A. 10:5-1 to -49, while an action based on the same grievance is pending before the Division of Civil Rights (“Division” or “DCR”). Additionally, I find that plaintiffs complaint against K-Mart is barred by the two-year statute of limitations set forth in Montells v. Haynes, 133 N.J. 282, *279627 A.2d 654 (1993), because any purported reliance by plaintiff on the previous six-year statute of limitations was not reasonable.

I.

Wilson was terminated by Wal-Mart on March 4, 1994. Subsequently, on June 9, 1994, plaintiff filed a pro se complaint against only Wal-Mart with the DCR. In that complaint, plaintiff alleged that Wal-Mart had discriminated against her on the basis of age and sex. Thereafter, she hired her present counsel, who filed an Appearance with the Division in August 1994. A fact-finding hearing was scheduled for October 25, 1994, at which time WalMart requested a postponement. The hearing was rescheduled for April 6, 1995. Due to short notice, however, Wilson’s counsel was unable to appear and requested a continuance that was granted. Although Wilson made numerous telephone calls and sent correspondence to the Division, she heard nothing back regarding a new hearing date. In a letter sent to the Division, which was dated November 13, 1995, her counsel expressed concern that his client might lose her rights because of the applicable statute of limitations. Subsequently, Wilson’s counsel spoke with an individual from the Division who explained that, because of a backlog of cases, he was unable to advise or estimate when a fact-finding conference could be scheduled.

On March 4, 1996, without withdrawing her complaint from the Division, plaintiff filed an action under LAD in the Superior Court. The Law Division Complaint named Wal-Mart, and, for the first time, named Gallo and K-Mart as defendants. Subsequently, defendants K-Mart and Wal-Mart filed motions for summary judgment, seeking dismissal of the court action on the grounds that the exclusivity provision of LAD prohibited dual filings. In addition, K-Mart argued that summary judgment should be granted because Wilson’s claim was barred by the two-year statute of limitations applicable to LAD actions. K-Mart further argued that plaintiffs claim should be dismissed because K-Mart was not her employer at the time of her termination.

*280The two motions were denied by the trial court. Subsequently, both K-Mart and Wal-Mart made separate motions for leave to appeal from the court’s interlocutory order, which were granted. The Appellate Division summarily reversed the trial court’s disposition and remanded this matter to the trial court for entry of judgment in favor of defendants, dismissing Wilson’s complaint on the basis that her DCR complaint had not been dismissed prior to the filing of the Law Division complaint. In addition, citing Montells v. Haynes, supra, 133 N.J. 282, 627 A.2d 654, the Appellate Division found that Wilson’s claims against K-Mart were barred by the applicable two-year statute of limitations. That conclusion was based on the fact that plaintiffs cause of action accrued on January 10, 1994, the last date that plaintiff had contact with K-Mart, and that she had not filed her complaint until March 4, 1996, two years and two months later.

Plaintiff filed two motions for reconsideration that were granted. However, the Appellate Division reaffirmed its prior ruling. Plaintiff filed a petition for certification, which we granted. 153 N.J. 402, 709 A.2d 795 (1998).

II.

Exclusivity Provision of LAD, N.J.S.A. 10:5-27

The LAD establishes a choice of remedies for complainants seeking redress for alleged discrimination. N.J.S.A. 10:5-27; Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 652, 684 A.2d 1385 (1996). Complainants may pursue either an administrative remedy or a Superior Court remedy. Aldrich v. Manpower Temp. Servs., 277 N.J.Super. 500, 504, 650 A.2d 4 (App.Div.1994), certif. denied, 139 N.J. 442, 655 A.2d 445 (1995); Sprague v. Glassboro State College, 161 N.J.Super. 218, 225, 391 A.2d 558 (App.Div.1978). Those remedies “are complementary,” Shaner v. Horizon Bancorp., 116 N.J. 433, 440, 561 A.2d 1130 (1989) (superseded by statute on other grounds as recognized by Milazzo v. Exxon Corp., 243 N.J.Super. 573, 580 A.2d 1107 (Law Div.1990)), *281but “mutually exclusive,” Hernandez, supra, 146 N.J. at 652, 684 A.2d 1385.

The exclusivity provision of LAD, N.J.S.A. 10:5-27, provides in pertinent part:

[T]he procedure herein provided shall, while pending, he exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.
[ (Emphasis added).]

See also N.J.S.A. 10:5-13 (mandating that “[p]rosecution of such suit in Superior Court under [LAD] shall bar the filing of a complaint with the division or any municipal office during the pendency of such suit”).

I conclude that the plain language of the statute as well as the legislative intent underlying the exclusivity provision compels the dismissal of Wilson’s discrimination action. It is well-established that in construing a statute, one must first consider its plain language. Merin v. Maglaki, 126 N.J. 430, 434, 599 A.2d 1256 (1992). In light of that canon of statutory construction and looking solely to the language of N.J.S.A. 10:5-27, Wilson’s Law Division complaint should have been dismissed. New Jersey courts have long recognized that a case is pending, in accordance with the ordinary meaning of that term, from “ ‘its inception until the rendition of final judgment.’ ” State v. Duswalt, 153 N.J.Super. 399, 405, 379 A.2d 1278 (App.Div.1977) (citation omitted); see also Black’s Law Dictionary 1134 (6th ed.1990) (same); cf. State v. Blazanin, 298 N.J.Super. 221, 228, 689 A.2d 196 (App.Div.1997) (finding case, in criminal context, is pending from “initial prosecution of the offense up until final disposition on appeal”).

Moreover, we have already interpreted the exclusivity provision at N.J.S.A. 10:5-27 to bar a judicial proceeding while an administrative proceeding is pending. Fuchilla v. Layman, 109 N.J. 319, 537 A.2d 652 (1988). The Fuchilla Court explained:

[A]n aggrieved person may either file an administrative complaint with the Director of the Division on Civil Eights or file a civil action in the Superior Court. Once the aggrieved party files a Superior Court action, however, he or she may not file an administrative complaint with the Division during the pendency of the suit. *282Likewise, if the complainant first files with the Division, he or she may not file a complaint with the Superior Couri while the administrative action is pending.
[109 N.J. at 336, 537 A.2d 652 (citations omitted, emphasis added).]

This Court reiterated that conclusion in Shaner, supra, stating that “an aggrieved victim of discrimination [has] the option of either filing an administrative complaint with the Director of the Division on Civil Rights or filing a civil action with the Superior Court.... [A] claimant may pursue only one remedial route at a time....” Id. at 440, 561 A.2d 1130. Lower courts have reached similar conclusions in other LAD cases. See Aldrich, supra, 277 N.J.Super. at 505, 650 A.2d 4 (“Once a forum is chosen, then, and while the procedure is pending another forum may not be pursued.”); Hermann v. Fairleigh Dickinson Univ., 183 N.J.Super. 500-04, 444 A.2d 614 (App.Div.), certif. denied, 91 N.J. 573, 453 A.2d 884 (1982)(“Plaintiff could have elected to seek relief in the courts in the first instance. However, having chosen to pursue her grievance administratively, that chosen remedy is exclusive while it is pending and when it has been concluded.”) (citations omitted); Gray v. Serruto Builders, Inc., 110 N.J.Super. 297, 300, 265 A.2d 404 (Ch.Div.1970) (noting that statutory language of LAD’s exclusivity provision “makes the jurisdiction conferred by the act exclusive ... when an administrative proceeding [either] is pending or has been concluded”).

The courts’ interpretation of the exclusivity provision, under the facts of the preceding cases, comports with the legislative intent underlying the 1979 amendment to LAD, which provided complainants with the alternative judicial forum to pursue discrimination claims. Assembly Judiciary, Law, Public Safety, and Defense Committee, Statement to Senate Bill No. 3101, at 1 (December 17, 1979) (“The bill makes explicit the right of complainants to initiate a suit alleging discrimination in Superior Court without the filing of a complaint with the Division of Civil Rights. If such a suit is filed, the complainant may not also file with the division while the suit is pending.”) (emphasis added); see also Shaner, supra, 116 N.J. at 442-43, 561 A.2d 1130 (noting “the available legislative history shows that the primary reason for ... the 1979 amend*283ment of LAD [ ] was to reduce the agency backlog congestion and at the same time provide a judicial alternative that would be comparable to the administrative action so that the society’s war against discrimination would not slacken”).

One commentator explains that such a procedural system, employed in a minority of jurisdictions,1

is designed to streamline the adjudication process and to remove at least some of the burdens imposed on courts and state ... agencies alike. The central assumption underlying this approach is that a claimant will weigh the associated costs, available remedies, speed of disposition, procedural hurdles, and other considerations such as limitations periods, and will choose the path best suited to his or her type of claim under the specific circumstances. As a result, ... the plaintiff in the election of remedies system will appear before only one body.
[46 Case W. Res. L.Rev. at 147-48 (footnotes omitted).]

All of the parties concede that at the time that Wilson filed her Law Division complaint, the matter was still pending, but unheard, in the DCR. Nevertheless, Wilson contends that because there was no dispositive ruling at the administrative level, she was not restrained from filing a Law Division complaint. In support of her contention, Wilson relies on Aldrich, supra, 277 N.J.Super. 500, 650 A.2d 4, and Hernandez, supra, 146 N.J. 645, 684 A.2d 1385. Her reliance on both cases, however, is misplaced.

In Aldrich, supra, the plaintiff initially filed her discrimination complaint with the DCR. After eighteen months had elapsed without any action on the part of the agency, however, the plaintiff withdrew her complaint and filed a Law Division complaint based on the same acts and alleging the same LAD claims. Aldrich, supra, 277 N.J.Super. at 503, 650 A.2d 4. In response, the defendant moved for summary judgment, asserting that plaintiff chose the administrative remedy and was barred from pursuing a *284subsequent action in Superior Court. The trial judge granted the defendant’s motion. The Appellate Division reversed. Aldrich, supra, 277 N.J.Super. at 506, 650 A.2d 4. In its reversal, the court emphasized:

[W]e cannot agree [with the trial judge] that the Legislature has mandated that the mere exercise of a choice of forum to pursue a LAD complaint, is preclusive. The focus, in terms of preclusive.effect, is upon the “pendency” of a proceeding in the chosen forum and, critically, a final detemination.
[Id. at 504, 650 A.2d 4 (emphasis added).]

Plaintiff relies upon the emphasized language above to support her argument that she was not barred from filing a Law Division complaint in this case because the DCR never made a final determination regarding her LAD claim. In Aldrich, however, the defendant contested the court’s jurisdiction to consider the plaintiffs claim merely because she had filed a prior complaint with the Division. Unlike this case, the plaintiff in Aldrich withdrew that complaint before filing a civil action based upon the same grievance. The Aldrich court noted, “[tjhere is nothing in the statute, then, which jurisdictionally prevented plaintiff here from filing her Law Division complaint after withdrawing the administrative complaint before final disposition.” 277 N.J.Super. at 505, 650 A.2d 4 (emphasis added). Moreover, the court recognized that preclusive effect attached upon the “pendency” of a proceeding in addition to a final determination. Id. at 504, 650 A.2d 4.

Likewise, the Hernandez Court addressed the preclusive language of N.J.S.A. 10:5-27. 146 N.J. at 657, 684 A.2d 1385. There, an employee brought an action against his employer, claiming national origin discrimination in violation of LAD. Prior to bringing that action, the employee received an adverse determination from the federal Equal Employment Opportunity Commission (EEOC) on his Title VII national origin discrimination claim. Id at 651, 684 A.2d 1385. The employer sought summary judgment, which the Law Division granted, reasoning that the employee’s claim was barred by the adverse EEOC determination. Ibid. The employee appealed and the Appellate Division affirmed. This *285Court granted certification and reversed. Ibid. The issue in that case, however, is inapposite to the one presented here. In Hernandez, supra, this Court held that the preclusive language of N.J.S.A. 10:5-27 did not apply because there was no prior DCR determination on the merits. Id. at 657, 684 A.2d 1385. By relying on Aldrich, supra, and Hernandez, supra, plaintiff “has confused the issue of claim preclusion with the issue of a bar by an election of remedies statute.” Harter v. GAF Corp., 150 F.R.D. 502, 515 n. 20. (D.N.J.1993). Although there was no final determination of plaintiffs claim by the DCR in this case, she did not comply with the procedural requirement of withdrawing her DCR complaint before filing an action in Superior Court.

The majority relies upon the public policy that LAD be interpreted liberally in favor of complainants in finding that Wilson’s complaint should not be dismissed on a technicality. As this Court stated in Hernandez, “[t]he LAD embodies this State’s strong public policy to fight ‘discrimination against any of its inhabitants....’” 146 N.J. at 651, 684 A.2d 1385 (quoting N.J.S.A. 10:5-3); see also Shaner, supra, 116 N.J. at 438, 561 A.2d 1130 (noting remedial nature of LAD and its “overarching purpose of eradicating discrimination”).

I agree that “[t]he [LAD] is remedial and should be read with an approach sympathetic to its objectives.”. National Org. for Women v. Little League Baseball, Inc., 127 N.J.Super. 522, 530, 318 A.2d 33 (App.Div.), aff'd, 67 N.J. 320, 338 A.2d 198 (1974). Nevertheless, this Court has also recognized that although “liberality of construction of remedial legislation is desirable, [the Court] cannot ignore the plain meaning of the language employed by the Legislature.” Singleton v. Consolidated Freightways Corp., 64 N.J. 357, 362, 316 A.2d 436 (1974); see also Wormack v. Howard, 33 N.J. 139, 142-43, 162 A.2d 846 (1960) (same); In re Sussex County Mun. Utils. Auth., 198 N.J.Super. 214, 218, 486 A.2d 932 (App.Div.) (“It is clear, at least in New Jersey, that beneficence in the purposes of a remedial statute does not warrant liberality in construction which ignores the plain meaning of the *286language employed by the Legislature.”), certif. denied, 101 N.J. 267, 501 A.2d 934 (1985).

It was certainly understandable that-plaintiff turned to a judicial action after her case lingered in the Division for nearly two years. “In choosing the alternative administrative mechanism by filing the complaint with the Division on Civil Rights, [complainants are] availing [themselves] of a means of redress normally swifter and less expensive than formal litigation.” Hermann, supra, 183 N.J.Super. at 504-05, 444 A.2d 614; see also Harter, supra, 150 F.R.D. at 513. Nevertheless, to allow plaintiff to circumvent the procedural requirement of withdrawing her DCR complaint before filing a civil action will open the door to all other applicants who may jump from the agency to the court system in an attempt to accelerate their cases.

Plaintiffs filing an action before the DCR was not a prerequisite to her filing a civil action. Rather, such filing constituted an election by plaintiff to proceed administratively rather than judicially. Fuchilla supra, 109 N.J. at 336, 537 A.2d 652. Therefore, plaintiffs initial DCR complaint created the procedural prerequisite that she discontinue the administrative proceeding before instituting an action in Superior Court. Although plaintiff made that election before she had secured counsel and may not have completely understood the ramifications of her decision, even after plaintiff retained an attorney, her counsel did not withdraw the matter from the DCR until after filing the Law Division complaint.

Although there may be some exceptional cases where a plaintiffs filing a complaint while her actions is pending before the Division should be allowed, this is not one. This is just a run-of-the-mill case where plaintiff and her attorney did not read the clear wording of the statute. Plaintiff was aware of the statute of limitations running and had ample time to withdraw her complaint before the Division. Unfortunately, however, plaintiffs counsel did not withdraw the DCR complaint before filing the Law Division complaint.

*287III.

Statute of Limitations

This Court established a two-year statute of limitations applicable to all LAD actions in Montells v. Haynes, supra, 133 N.J. 282, 627 A.2d 654 (1993). However, recognizing that the state of the law regarding the applicable statute of limitations under LAD was “sufficiently murky,” the Court held that the two-year limitation period applied only to cases in which the “operative facts” arose after July 27, 1993, the date of the Montells decision. Id. at 298, 627 A.2d 654. In contrast, those actions based on operative facts that arose before July 27, 1993, fall under the general six-year statute of limitations, N.J.S.A. 2A:14-1. Montells, supra, 133 N.J. at 297-98, 627 A.2d 654. Although I agree with Justice Pollock’s dissent, ante at 276-78, 729 A.2d at 1013-14, that the operative facts did not arise prior to the date of the Montells decision, I find that even if the operative facts arose prior to the date of the Montells decision, any purported reliance by Wilson on the previous six-year statute of limitations was no longer reasonable more than two years after that decision. See Standard v. Vas, 279 N.J.Super. 251, 256, 652 A.2d 746 (App.Div.1995).

In Standard, supra, the plaintiff appealed after the Law Division entered summary judgment in favor of the defendants on limitations grounds. Id. at 252, 652 A.2d 746. That case involved the prospective application of the age-of-majority statute, which had lowered the age to eighteen. This Court held that the modified age applied prospectively in Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 606 A.2d 1093 (1992), which was decided on June 3, 1992. The plaintiff was injured at the age of nineteen in February 1991, and he commenced a personal injury suit when he was twenty-one in November 1993. The Appellate Division reversed the grant of summary judgment, finding that plaintiff filed his action well within the two-year limitations period. In dicta, however, the court noted that “in the future, we see no equitable or sound policy reason why youthful litigants who were injured prior to June 3, 1992 [the date of Green ], must invariably be given *288until two years from their twenty-first birthday to commence suit if, in fact, they have two years notice of Green.” 279 N.J.Super. at 256, 652 A.2d 746 (emphasis added).

Based on that reasoning, the court suggested that the proper limit be “two years from the date of Green, two years from the date of the accident, or two years from attaining the age of eighteen, whichever is later.” Ibid. Applying an analogous rationale, I find that Wilson was time-barred in this ease because she had more than two years notice of this Court’s decision in Mon-tells. An examination of the law at the time of Wilson’s filing of her DCR complaint would have revealed the Montells decision and the applicable two-year statute of limitations.

Furthermore, it is evident from the record that plaintiffs counsel knew about the two-year limitations period. In his letter, which was dated November 13, 1995, plaintiffs counsel stated: “I am getting concerned that my client may lose her other rights because of the statute of limitations if this matter goes on much longer. My client was terminated on or about March 4, 1994.” Moreover, plaintiffs counsel noted plaintiffs termination date as the crucial date that his client’s cause of action accrued. In addition, plaintiffs filing of her Law Division complaint on the two-year anniversary of her termination indicates that she was trying to file her complaint within that limitations period.

Nevertheless, Wilson now contends that the general six-year statute of limitations should apply because her case may involve operative facts that occurred prior to the date of the Montells decision. The reasoning of the Appellate Division in Standard, supra, resonates in this case, where there appears to be “no equitable or sound policy reason” why plaintiff or others in her position should continue to rely on the six-year statute of limitations where it is clear that plaintiff had notice of the Montells decision in plenty of time to ensure that her rights were preserved.

I find that a two-year statute of limitations applies to this case. That finding is equitable, given that the .record establishes that it *289is not plausible that plaintiffs counsel erroneously relied on the general six-year statute of limitations rather than the two-year period enunciated in Montells. Moreover, even if the Court declines to apply the two-year statute because of plaintiffs unreasonable reliance on the six-year statute of limitations, I recommend that the Court for the reasons stated by Justice Pollock in his dissent, ante at 276 - 78, 729 A.2d at 1013 - 14, find that the operative facts in this case occurred after the date of decision in Montells.

I would affirm the summary judgment in favor of K-Mart and Wal-Mart.

For reversal and remandment in Part II — Chief Justice PORITZ, and Justices HANDLER, POLLOCK, O’HERN, STEIN, and COLEMAN — 6.

For affirmance in Part II — Justice GARIBALDI — 1.

For reversal and remandment in Part III — Justices HANDLER, O’HERN, STEIN, and COLEMAN — 4.

For affirmance in Part III — Chief Justice PORITZ and Justices POLLOCK and GARIBALDI — 3.

Included in this category of jurisdictions are New Jersey, New York, Ohio (for age discrimination only) and the District of Columbia. See N.Y. EXEC. LAW § 297(9) (McKinney 1993); OHIO REV. CODE ANN. § 4112.05 (Baldwin 1994); D.C. CODE ANN. § 1-2556(a) (1992); see also David C. Belt, Election of Remedies in Employment Discrimination Law: Doorway Into the Legal Hall of Mirrors, 46 Case W. Res. L.Rev. 145. 191 n. 97 (1995) [hereinafter Election of Remedies].