HASAN v. ASBURY PARK BOARD OF EDUCATION et al
Filing
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MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 5/21/2014. (kas)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DENINE HASAN,
Plaintiff,
v.
ASBURY PARK BOARD OF
EDUCATION, et al.,
Defendants.
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CIVIL ACTION NO. 13-3721 (MLC)
MEMORANDUM OPINION
THE PLAINTIFF, who is a public employee, brings this action to recover
damages for employment discrimination pursuant to 42 U.S.C. § 1981, the New Jersey
Law Against Discrimination (“NJLAD”), and the Federal Pregnancy Discrimination Act
(“PDA”). (See dkt. entry no. 1, Compl.) The Court ordered the plaintiff to show cause
why either (1) the complaint should not be dismissed, or (2) the action should not be
administratively terminated. (See dkt. entry no. 3, Order to Show Cause.) As to the
NJLAD claims, the Court is concerned that the plaintiff has pursued or is pursuing
administrative remedies (“NJLAD Remedies”) before the New Jersey Division on Civil
Rights (“NJDCR”), thereby barring the NJLAD claims here. (Id. at 1.) As to the PDA
claims, the Court is concerned that the plaintiff has failed to exhaust administrative
remedies (“PDA Remedies”) and be notified of the right to sue (“Right To Sue Notice”)
by the Equal Employment Opportunity Commission (“EEOC”) or NJDCR. Such failure
would bar the PDA claims. (Id. at 2.) As to the plaintiff’s public employment, the Court
is concerned that the underlying dispute has been, is, or will be the subject of grievance or
disciplinary proceedings before the New Jersey Civil Service Commission, the New
Jersey Office of Administrative Law, or a similar entity (“State Administrative
Proceedings”), thereby requiring the Court to abstain. (Id. at 2-3.)
THE PLAINTIFF initially stated in response that she (1) waived any available
NJLAD Remedies, and (2) would withdraw any PDA claims, in an apparent concession
that the PDA Remedies had not been exhausted. (See dkt. entry no. 5, Pl. Response at 1.)
The plaintiff also stated that she “intends to pursue her other claims against the
defendants as set forth the [sic] in the Complaint”. (Id.) However, the plaintiff failed to
address whether the underlying dispute has been, is, or will be the subject of State
Administrative Proceedings, and the defendants offered no assistance on that issue.
THE PLAINTIFF’S COUNSEL thereafter advised that the plaintiff herself filed:
a Charge Of Discrimination . . . with the EEOC raising the claims of sex
discrimination and retaliation that are based upon the same facts set forth in
her Complaint. These claims filed with the EEOC were filed subsequent to
the Federal Complaint and the Order to Show Cause withdrawing of the
claims under the PDA and NJLAD as it relates to her pregnancy
discrimination. . . . Plaintiff filed her EEOC complaint after the filing of her
Complaint in the District Court and without the knowledge of counsel.
(Dkt. entry no. 11, Pl. Further Response at 1-2.) The plaintiff’s counsel submitted a copy
of the charge (“Charge”), which was indeed filed after this action was commenced. (See
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dkt. entry no. 11-1 at ECF p.35, Charge.) Apparently, the plaintiff now intends to
proceed with the PDA claims. (See Pl. Further Response at 3-4.)
AS THE CHARGE was “filed . . . after the initiation of this suit[, and thus] . . .
the EEOC was not given an opportunity to settle the dispute between [the parties] before
it reached this Court”, and as the plaintiff has not shown that she “has ever received a
right to sue letter from the EEOC”, the Court “must conclude that [the] claims under [the
PDA] cannot proceed”. Longoria v. New Jersey, 168 F.Supp.2d 308, 315 (D.N.J. 2001)
(barring claims brought under Title VII of the Civil Rights Act of 1964 for failure to
exhaust remedies).
BUT THE COURT will not dismiss the PDA claims with prejudice or
administratively terminate the action. Rather, the Court will follow “the better course” of
(1) dismissing the entire complaint without prejudice, and (2) directing the plaintiff “to
file a new action”, pay a new fee, and “file a new complaint” under a new civil action
number when she receives a Right to Sue Notice as to the PDA claims. McIntyre v. City
of Wilmington, 360 Fed.Appx. 355, 356 (3d Cir. 2010) (addressing situation wherein
district court dismissed complaint for plaintiff’s failure to exhaust remedies, but plaintiff
was notified of right to sue after that dismissal).
UPON RECEIVING a Right to Sue Notice, the plaintiff may reassert all of the
claims, as long as the plaintiff brings the new action in a timely manner after she receives
the Right to Sue Notice. Furthermore, for the new action to be deemed a continuation of
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the claims brought under the above-captioned docket number for the purposes of the
statute of limitations, the plaintiff must note in the civil cover sheet and the complaint
for the new action that the claims are related to the action brought under the abovecaptioned docket number. In addition, in any new action, the plaintiff must (1) allege
the exhaustion of the PDA Remedies, and (2) clarify whether the underlying dispute
insofar as it relates to her status as a public employee has been, is, or will be the subject
of State Administrative Proceedings.
The Court will issue an appropriate order and judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: May 21, 2014
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