(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 7, 1996 -- Decided November 26, 1996
Handler, J., writing for a unanimous Court.
The issue raised in this appeal is whether an individual who received an adverse administrative
determination from the United States Equal Employment Opportunity Commission under the Federal Civil
Rights Act of 1964 is thereafter precluded from filing suit under the New Jersey Law Against Discrimination
in the State Superior Court, Law Division on a claim arising from the same facts.
Region Nine Housing Corporation (Region Nine) suspended its employee, Wilfredo Hernandez, a
United States citizen of Hispanic origin, for speaking Spanish in the lobby of the apartment building where
he worked. In order to return to work, he was required to sign a statement praising the terms of his
employment and was ordered not to speak Spanish in public areas of the building. Three months after his
reinstatement, Region Nine terminated Hernandez for unsatisfactory work performance
Hernandez filed a complaint with the New Jersey Division of Civil Rights (DCR), alleging that he
was unlawfully suspended and terminated because of his national origin. Thereafter, Hernandez filed a claim
with the United States Equal Employment Opportunity Commission (EEOC), alleging that his suspension
and termination violated Title VII of the Federal Civil Rights Act of 1964. The EEOC issued a
“determination” letter, finding that Region Nine's English-only policy was discriminatory and violative of
Title VII. The EEOC failed to find reasonable cause to believe that Hernandez's termination was
discriminatory. The EEOC issued Hernandez a Notice of Right to Sue. Approximately two weeks after the
EEOC issued its determination letter, Hernandez voluntarily withdrew his complaint from the DCR before it
had taken any action on the complaint.
Shortly after the EEOC issued its determination letter, Hernandez filed suit in the Superior Court,
Law Division against Region Nine, alleging that his suspension and discharge violated New Jersey's Law
Against Discrimination (LAD). The Law Division granted Region Nine's motion for summary judgment,
concluding that Hernandez's claim was precluded by the adverse EEOC determination. The Appellate
Division affirmed.
The Supreme Court granted Hernandez's petition for certification.
HELD: An adverse determination by the EEOC does not preclude the filing of suit in Superior Court on a
claim arising from the same facts.
1. The New Jersey Law Against Discrimination embodies this State's strong public policy to fight
discrimination against any of its inhabitants. In order to further this goal, the Legislature has directed that
the LAD be interpreted liberally. (pp. 4-5)
2. Title VII embraces a similar national policy and does not preempt state efforts at anti-discrimination.
(p.5)
3. Under the LAD, a complainant must choose to pursue his remedy for redress either administratively
through the DCR or judicially by filing suit directly in Superior Court. (pp. 5-7)
4. Unlike the LAD, Title VII does not provide for an election between administrative and judicial remedies.
However, a complainant cannot institute suit directly in federal district court but must first file a charge of
discrimination with the EEOC. (p.7 )
5. Although the EEOC has broad investigatory powers, a complainant has the right to sue regardless of
whether or not the EEOC finds reasonable cause to support his or her allegations of discrimination. (pp. 8-9)
6. EEOC determinations are generally admissible at subsequent trials. (pp. 9-10)
7. A final determination under the LAD in either the DCR or the Superior Court precludes the complainant
from bringing any other action based on the same grievance. A plaintiff is permitted to switch forums only
before a final determination has been rendered. (p. 10)
8. An adverse EEOC determination does not bar a complainant from pursuing a Title VII action in either
federal or state court. (p.11-13)
9. Title VII does not provide an election of remedies. Further federal law is explicit that Title VII is a
complement to state anti-discrimination statutes and instituting a Title VII action cannot act as a bar to
bringing a LAD claim. (pp. 13-14)
l0. Although the EEOC determination does have legal significance, it is clear that the EEOC determination
cannot preclude any issue raised by Hernandez's LAD claims in the Superior Court. (pp. 14-17)
11. The entire-controversy doctrine does not bar Hernandez's LAD claim on the basis that he did not raise
it before the EEOC. (p. 17)
Judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
A-
33 September Term 1996
WILFREDO HERNANDEZ,
Plaintiff-Appellant,
v.
REGION NINE HOUSING CORP., NEW
BRUNSWICK UAW ASSOCIATES, AND
JOAN WILK,
Defendants-Respondents.
Argued October 7, 1996 -- Decided November 26, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
286 N.J. Super. 676 (1996).
Jeffrey E. Fogel argued the cause for
appellant.
Thomas J. Giblin argued the cause for
respondents Region Nine Housing Corp and New
Brunswick UAW Associates (Giblin & Lynch,
attorneys).
James A. Tarella argued the cause for
respondent Joan Wilk (Tarella & Liftman,
attorneys).
Jennifer S. Goldstein, a member of the
California bar, argued the cause for amicus
curiae The U.S. Equal Employment Opportunity
Commission (C. Gregory Stewart, General
Counsel, attorney; Mr. Stewart and Ms.
Goldstein, on the brief).
Denise Reinhardt submitted a brief on behalf
of amicus curiae New Jersey Employment
Lawyers' Association (Reinhardt & Schachter,
attorneys; Ms. Reinhardt, Nancy M. Macirowski
and Susan Kraham, on the brief).
The opinion of the Court was delivered by
HANDLER, J.
The issue raised in this appeal is whether an individual who
under the Federal Civil Rights Act of 1964 received an adverse
administrative determination from the United States Equal
Employment Opportunity Commission on a claim of discrimination
based on national origin is thereafter precluded from filing suit
under the New Jersey Law Against Discrimination in the State
Superior Court, Law Division, on a claim arising from the same
facts.
Region Nine Housing Corporation/New Brunswick
UAW Associates (Region Nine), hired plaintiff Wilfredo Hernandez, a United States citizen of Hispanic origin, as a maintenance worker in February 1991. On July 30, 1991, Region Nine, reportedly acting in response to tenant complaints, suspended Hernandez along with three other Hispanic workers for two days, with pay, for speaking Spanish in the lobby of the apartment building where they worked. In order to return to work, Hernandez was required to submit a letter praising the terms and condition of his employment. On reinstatement, Region Nine ordered Hernandez not to speak Spanish in public areas of the
building during work hours. Subsequently, on October 28, 1991,
Region Nine terminated Hernandez for unsatisfactory work
performance.
On November 4, 1991, Hernandez filed a complaint with the
New Jersey Division of Civil Rights (DCR) alleging that he was
unlawfully suspended and terminated because of his national
origin. On February 26, 1992, plaintiff filed a claim with the
United States Equal Employment Opportunity Commission (EEOC)
alleging his suspension and termination violated Title VII of the
Federal Civil Rights Act of 1964.
42 U.S.C.A.
§§2000e to 2000e-17 (Title VII). On June 4, 1992, before the DCR had taken any
action on his complaint, Hernandez voluntarily withdrew his
complaint from the DCR.
The EEOC investigated Hernandez's claim and issued a
"determination" letter on May 19, 1993. The EEOC found that
Region Nine's English-only policy was discriminatory and
violative of Title VII because such a prohibition could not be
justified as a business necessity. However, the EEOC failed to
find reasonable cause to believe that Hernandez's termination was
discriminatory; it found that Region Nine terminated Hernandez
for poor work performance in accordance with Region Nine's
warning/termination system. On January 21, 1994, the EEOC issued
Hernandez a Notice of Right to Sue, which informed Hernandez that
he had ninety (90) days from receipt of the notice to bring suit
in federal district court; if he failed to sue within that time
he would be barred from pursuing his Title VII claim in the
district court.
On May 24, 1994, Hernandez filed suit in the Superior Court,
Law Division against his employer, Region Nine, and its regional
manager, Joan Wilk, alleging that his suspension and discharge
violated New Jersey's Law Against Discrimination (LAD). N.J.S.A.
10:5-1 to -42. The Law Division granted Region Nine's motion for
summary judgment concluding that plaintiff's claim was precluded
by the adverse EEOC determination. The Appellate Division
affirmed.
286 N.J. Super. 676 (1996). This Court granted
plaintiff's petition for certification.
144 N.J. 377 (1996).
The LAD embodies this State's strong public policy to fight "discrimination against any of its inhabitants, because of race, creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, or nationality." N.J.S.A. 10:5-3. This Court has described the goal of the LAD as being "nothing less than the eradication `of the cancer of discrimination.'" Fuchilla v. Layman, 109 N.J. 319, 334 (quoting Jackson v. Concord Co., 54 N.J. 113, 124 (1969)), cert. denied 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed.2d 51 (1988). In order to further this goal and afford the greatest protection to the victims of discrimination, the Legislature has
directed that the LAD be interpreted liberally. Montells v.
Haynes,
133 N.J. 282, 298 (1993).
Title VII embraces a similar national policy to combat
discrimination.
42 U.S.C.A.
§§2000e to 2000e-17. Title VII,
though, does not preempt state efforts at anti-discrimination
legislation.
42 U.S.C.A.
§2000e-7. Title VII "was designed to
supplement, rather than supplant, existing laws" outlawing
discrimination in the workplace. Alexander v. Gardner-Denver
Co.,
415 U.S. 36, 48-49,
94 S. Ct. 1011, 1019-20,
39 L. Ed.2d 147, 158 (1974). Congress specifically intended to permit "an
individual to pursue independently his rights under both Title
VII and other applicable state . . . statutes." Ibid. State
courts have jurisdiction to adjudicate Title VII claims. Yellow
Freight System, Inc. v. Donnelly,
494 U.S. 820, 821,
110 S. Ct. 1566, 1567,
108 L. Ed.2d 834, 835 (1990).
There are, however, marked differences between the state and
federal statutory schemes. The LAD provides a complainant with a
choice of remedies in seeking redress for alleged discrimination.
Persons may pursue their claims either administratively, by
filing a verified complaint with the DCR, or judicially, by
directly instituting suit in the Superior Court. N.J.S.A. 10:5-13. These remedy choices are "complementary," Shaner v. Horizon
Bancorp.,
116 N.J. 433, 440 (1989) (superseded by statute on
other grounds as recognized by Milazzo v. Exxon Corp.
243 N.J. Super. 573 (Law Div. 1990)), but mutually exclusive.
Hermann v. Fairleigh Dickinson Univ.,
183 N.J. Super. 500 (App.
Div.), certif. denied,
91 N.J. 573 (1982).
The LAD provides the Director of the DCR with broad remedial
authority to cure unlawful discrimination in cases brought before
the Division. Shaner, supra, 116 N.J. at 438; Castellano v.
Linden Bd. of Educ.,
79 N.J. 407, 417 (1979) (Handler, J.,
concurring in part and dissenting in part); Sprague v. Glassboro
State College,
161 N.J. Super. 218, 226 (App. Div. 1978); see
also Zahorian v. Russell Fitt Real Estate Agency,
62 N.J. 399,
409 (1973) ("[S]tatute vests the Director with remedial powers
which have been broadly expressed legislatively . . . and have
been broadly applied judicially.").
In addition to having the power to enjoin further
discriminatory practices by an employer, N.J.S.A. 10:5-17, the
Director can award incidental monetary relief in the form of
compensatory damages, Jackson v. Concord Co., supra, 54 N.J. at
124-25, as well as damages for pain and suffering or personal
humiliation. Zahorian, supra, 62 N.J. at 409. The Director also
has the power to award attorney fees. N.J.S.A. 10:5-27.1. A
determination by the DCR is a "final order" and is appealable to
the Appellate Division. N.J.S.A. 10:5-21; N.J.A.C. 13:4-15.3.
The provision for an election of remedies conferring the
right to bring a LAD claim directly in the Superior Court as an
alternative to administrative relief was expressly authorized by
a 1979 amendment to the LAD. L. 1979, c. 404; N.J.S.A. 10:5-13.
A court's remedial power under the LAD is similar to that vested
in the DCR. Shaner, supra, 116 N.J. at 440. Judicial and
administrative actions brought under the LAD are intended to be
of similar purpose and effect. Id. at 441. In addition, the
court may award complete compensatory damages and punitive
damages. N.J.S.A. 10:5-13.
Unlike the LAD, Title VII does not provide for an election
between administrative and judicial remedies. Claimants under
Title VII proceed on a single track. A complaining employee
cannot institute suit directly in federal district court; rather,
he or she must first file a charge of discrimination with the
EEOC.
42 U.S.C.A.
§§2000e-5(b), (c), (e); Alexander, supra, 415
U.S. at 47, 94 S. Ct. at 1019, 39 L. Ed.
2d at 157. The
complainant must then await either the outcome of the EEOC
investigation, or the expiration of 180 days, before being given
notice of the right to sue in federal district court.
42 U.S.C.A.
§§2000e-5(b), (c), (e). On receipt of the notice of
the right to sue, the plaintiff has ninety (90) days in which to
file suit.
42 U.S.C.A.
§2000e-5(b). Title VII's exhaustion-of-administrative-remedies requirement is an essential component of
the federal statutory scheme because it provides the EEOC the
first opportunity to investigate discriminatory work practices
and enables the EEOC to perform its statutory role of obtaining
voluntary compliance and promoting conciliatory efforts.
Patterson v. McLean Credit Union,
491 U.S. 164, 180-81,
109 S.
Ct. 2363, 2374-2375,
105 L. Ed.2d 132, 153 (1989).
The Code of Federal Regulations enumerates the powers vested
in the EEOC to investigate claims of discrimination. C.F.R. §§
1601.15-.17. The EEOC may investigate the complainant's charges
and require the complainant to submit a statement detailing the
practices alleged to be unlawful and the harm he or she has
suffered. C.F.R. § 1601.15. The EEOC may also convene a fact-finding conference with the parties in order to define the issues
and ascertain whether there exists a basis for a negotiated
settlement of the charge. Ibid. The EEOC is also empowered to
issue subpoenas and call witnesses. C.F.R. §§ 1601.16-.17.
Complainants have no right to a formal hearing and the EEOC has
no power to fashion remedies or enforce its determinations.
A complainant has the right to sue regardless of whether or
not the EEOC finds reasonable cause to support his or her
allegations of discrimination. See C.F.R. § 1601.19 (providing
that the EEOC shall inform complainant who received a "no cause
determination" of his or her right to sue in district court);
C.F.R. § 1601.28(b) (providing that the EEOC shall issue notice
of right to sue to complainant who received a "reasonable cause"
determination). The consequences of a "reasonable cause"
determination by the EEOC are that the agency may then try to
obtain voluntary compliance by the offending employer, to effect
a conciliation between the parties, or to institute suit itself
against the employer. 42 U.S.C.A. §§ 2000e-5(b), (f). Although
the EEOC may, on its own initiative, reconsider its
determinations, C.F.R. §§ 1601.19, .21, parties have no right to
appeal an EEOC determination. See Georator Corp. v. E.E.O.C.,
592 F.2d 765 (4th Cir. 1979). The complainant retains the right
to a de novo trial in the district court on the merits of his or
her Title VII claim regardless of whether or not the EEOC
concludes that "reasonable cause" exists to support the
allegations of employment discrimination. See Alexander, supra,
415 U.S. at 48 n.8, 94 S. Ct. at 1019 n.8, 39 L. Ed.
2d at 158
n.8 (noting that "an individual's cause of action is not barred
by a Commission finding of no reasonable cause to believe that
the Act has been violated"); McDonnell Douglas Corp. v. Green,
411 U.S. 792, 799,
93 S. Ct. 1817, 1822,
36 L. Ed.2d 668, 676
(1973) (holding that an EEOC finding of no-probable-cause does
not restrict an individual's right to a de novo trial on the
merits particularly "in view of the large volume of complaints
before the Commission and the nonadversarial character of many of
its proceedings").
EEOC determinations are generally admissible at subsequent
trials, absent a showing that a specific finding is particularly
untrustworthy. Abrams v. Lightolier, Inc.,
841 F. Supp. 584, 592
(D.N.J. 1994), aff'd,
50 F.3d 1204 (3d Cir. 1995). District
courts, though, retain the discretion to exclude EEOC
determinations if the courts conclude that the probative value of
the agency reports are substantially outweighed by the danger of
unfair prejudice. Fed. R. Evid. 403; Walton v. Eaton Corp.,
563 F.2d 66, 75 (3d Cir. 1977); accord Cortes v. Maxus Exploration
Co.,
977 F.2d 195 (5th Cir. 1992). When admitted at trial, an
EEOC determination carries no precedential value. See Gilchrist
v. Jim Slemons Imports, Inc.,
803 F.2d 1488, 1500 (9th Cir. 1986)
("A finding of probable cause does not suggest to the jury that
the EEOC has already determined that there has been a violation.
Rather it suggests that preliminarily there is reason to believe
that a violation has taken place."); E.E.O.C. v. Chesapeake &
Ohio Ry. Co.,
577 F.2d 229, 232 (4th Cir. 1978) ("The reasonable
cause determination is not designed to adjudicate an employer's
alleged violations of the Act but to notify an employer of the
commission's finding and to provide common ground for
conciliation.").
As earlier stated, the LAD requires a complainant to make an
election of remedies between either the DCR or the Superior
Court. N.J.S.A. 10:5-13. A "final determination" in either the
DCR or the Superior Court precludes the complainant from bringing
"any other action, civil or criminal, based on the same
grievance." N.J.S.A. 10:5-27; Christian Bros. Inst. v. Northern
New Jersey Interscholastic League,
86 N.J. 409, 415 (1981);
Aldrich v. Manpower Temp. Services,
277 N.J. Super. 500, 505
(1994); Giammario v. Trenton Bd. of Educ.,
203 N.J. Super. 356
(App. Div.), certif. denied,
102 N.J. 336 (1985), cert. denied,
475 U.S. 1141,
106 S. Ct. 1791,
90 L. Ed.2d 337 (1986); Hermann,
supra, 183 N.J. Super. at 504. A plaintiff is permitted to
switch forums only before a final determination has been
rendered. Aldrich, supra, 277 N.J. Super. at 505.
The Appellate Division viewed plaintiff's LAD suit as an attempt "to switch forums after an adverse administrative ruling." 286 N.J. Super. at 682. It held that plaintiff "should be precluded under our State law from bringing his LAD claim in state court after an adverse administrative determination by the EEOC." Id. at 681.
The preclusive language of N.J.S.A. 10:5-27, cited by the Appellate Division, does not demand the result the court reached. As earlier explained, the consequences of determinations from the respective federal and state agencies are radically different. DCR determinations are explicitly given final, preclusive, and enforceable effect by state law. EEOC determinations, on the other hand, are explicitly rendered non-final and non-binding by federal statute. An adverse EEOC determination does not bar a complainant from pursuing a Title VII action in either federal or state court. Rather, an EEOC determination is a prerequisite to the filing of a Title VII action.
The Appellate Division treated as controlling the holding of Hermann, supra, 183 N.J. Super. 500. The plaintiff in Hermann pursued a LAD claim before the DCR, which found that her complaint was without merit and issued a final determination of "No Probable Cause." Id. at 503. The plaintiff then filed an identical claim in the Law Division, which dismissed her suit. The Appellate Division affirmed, concluding that under N.J.S.A. 10:5-27, a final DCR determination precludes a subsequent Law
Division suit based on the same set of facts. Id. at 503-05.
Here, however, there exists no DCR determination on the merits.
The preclusive language of N.J.S.A. 10:5-27 does not apply.
Parallel analysis of Pittman v. LaFontaine,
756 F. Supp. 834
(D.N.J. 1991), also relied on by the Appellate Division, does not
support its conclusion. In Pittman, a plaintiff's federal Title
VII claim was barred on the basis of a prior, adverse
administrative determination by the DCR. The district court
conducted a Full-Faith-and-Credit analysis to discern the impact
of the DCR decision on plaintiff's case. Finding that the DCR
proceeding satisfied due process, and the DCR's determination was
preclusive under state law, the district court concluded that the
adverse determination was entitled to Full Faith and Credit and
accordingly dismissed the plaintiff's suit. Id. at 840-46.
Aldrich v. Manpower Temp. Services, supra, 277 N.J. Super.
at 500, also does not support the Appellate Division's decision
here. The plaintiff in Aldrich was allowed to sue in the Law
Division after withdrawing her complaint from the DCR before a
determination had been entered. Id. at 506. The Aldrich court
rejected defendant's argument that plaintiff's initial choice of
an administrative forum should bar her from suing in the Law
Division under N.J.S.A. 10:5-27. Id. at 505. The court held
that "[i]t is the finality in the forum selected that raises the
bar," not the initial selection of a forum. Ibid. Because no
final determination had been entered by the DCR, Aldrich was free
to abandon her DCR claim and file in the Law Division. Id. at
506.
The Appellate Division distinguishes Hernandez's case from
Aldrich on the basis that Hernandez received an adverse agency
determination whereas Aldrich withdrew from the DCR before a
determination was issued. 286 N.J. Super. at 683. That
distinction is not material. The Appellate Division believed
that an EEOC determination is a "final" order. Ibid. However,
plaintiff was never subject to a final determination on his
federal claim, see Francis-Sobel v. University of Maine,
597 F.2d 15, 18 (1st Cir.) (characterizing EEOC determination as
"nonbinding and nonfinal"), cert. denied,
44 U.S. 949,
100 S. Ct. 421,
62 L. Ed.2d 319 (1979). Under federal law plaintiff was
free to file suit in federal district court.
In summary, Title VII does not provide an "election" of
remedies. Hernandez had to go through the EEOC before he could
litigate his Title VII claim; he did not elect or choose to
settle his grievance through an exclusive administrative
procedure. Further, federal law is explicit that Title VII is a
complement to state anti-discrimination statutes and instituting
a Title VII action cannot act as a bar to bringing a LAD claim.
See
42 U.S.C.A.
§2000e-7. Plaintiffs regularly join LAD and
Title VII claims in federal employment discrimination cases.
See, e.g., Pollock v. American Telephone & Telegraph Long Lines,
794 F.2d 860 (3d Cir. 1986); Martinez v. NBC,
877 F. Supp. 219
(D.N.J. 1994); Domm v. Jersey Printing Co.,
871 F. Supp. 732
(D.N.J. 1994). Thus, N.J.S.A. 10:5-27 does not bar this action.
The EEOC determination, although not final and enforceable,
nevertheless does have legal significance. Supra at __ (slip op.
at 9-10). That such a determination may be admitted in a
subsequent district court litigation suggests that the doctrine
of collateral estoppel or issue preclusion may be implicated in
determining whether the adverse EEOC determination forecloses the
adjudication of any subsequent LAD claims. See Ensslin v.
Township of North Bergen,
275 N.J. Super. 352, 369 (App. Div.
1994) (holding doctrine of collateral estoppel precluded
terminated police officer from filing a LAD suit in the Law
Division after he had received an adverse administrative decision
from the Merit System Board, which was upheld by an
administrative law judge), certif. denied,
142 N.J. 446 (1995);
see also Parklane Hosiery Co. v. Shore,
439 U.S. 322, 326 n.5,
99 S. Ct. 645, 649 n.5,
58 L. Ed.2d 552, 559 n.5 (1979) ("Under the
doctrine of collateral estoppel, . . . the second action is upon
a different cause of action and the judgment in the prior suit
precludes relitigation of issues actually litigated and necessary
to the outcome of the first action."). This issue was not
addressed by the Appellate Division.
New Jersey courts follow the doctrine of collateral estoppel
or the rule of issue preclusion described in the Restatement of
Judgments. See Zoneraich v. Overlook Hosp.,
212 N.J. Super. 83,
94 (App. Div.), certif. denied,
107 N.J. 32 (1986); Colucci v.
Thomas Nicol Asphalt Co.,
194 N.J. Super. 510, 515 (App. Div.
1984); Jalil v. Avdel Corp.,
873 F.2d 701, 704 (3d Cir. 1989),
cert. denied,
493 U.S. 1023,
110 S. Ct. 725,
107 L. Ed.2d 745
(1990). The Restatement provides:
When an issue of fact or law is actually
litigated and determined by a valid and final
judgment, the determination is conclusive in
a subsequent action between the parties,
whether on the same or a different claim.
[Restatement (Second) of Judgments
§ 27 at 250 (1982) (emphasis
added).]
New Jersey law also requires that the issue presented in the
later action must be identical to the issue decided in the
earlier adjudication. Morristown Trust Co. v. Thebaud,
43 N.J. Super. 209, 217 (Ch. Div. 1957). The Restatement adds,
however, that issue preclusion cannot be invoked when:
(1) The party against whom preclusion is
sought could not, as a matter of law, have
obtained review of the judgment in the
initial action; or
(3) A new determination of the issue is
warranted by differences in the quality or
extensiveness of the procedures followed in
the two courts or by factors relating to the
allocation of jurisdiction between them; or
(5) There is a clear and convincing need for
a new determination of the issue . . .
because of the potential adverse impact of
the determination on the public interest or
the interests of persons not themselves
parties in the initial action, . . . .
[Restatement (Second) of Judgments,
supra, § 28 at 273.]
The determinations made by administrative agencies are
entitled to preclusive effect "if rendered in proceedings which
merit such deference." Ensslin, supra, 275 N.J. Super. at 369;
accord City of Hackensack v. Winner,
82 N.J. 1, 31-33 (1980).
It is clear that the EEOC determination cannot preclude any
issue raised by plaintiff's LAD claims in the Superior Court.
First, EEOC determinations cannot be considered "final"
judgments. See Restatement (Second) of Judgments, supra, at §
27; see also Ward v. E.E.O.C.,
719 F.2d 311, 313 (9th Cir. 1983)
(holding EEOC determination is not a "final agency action" under
the APA because it "has no determinate consequences" and is
"merely preparatory to a lawsuit"), cert. denied,
466 U.S. 953,
104 S. Ct. 2159,
80 L. Ed.2d 544 (1984); Georator Corp., supra,
592 F.
2d at 768 ("No such finality exists with respect to the
EEOC's determination of reasonable cause. Standing alone, it is
lifeless, and can fix no obligation nor impose any liability on
the plaintiff."). Second, Hernandez could not have obtained
review of the EEOC determination. See Restatement (Second) of
Judgments, supra, at § 28(1). As earlier discussed, there is no
avenue of appeal from an EEOC determination; a subsequent
district court suit on the Title VII claim will be de novo and on
the merits. Supra at __ (slip op. at 8-9). Third, collateral
estoppel is not appropriate because there exist significant
differences in the quality and extensiveness of the proceedings
followed in the EEOC as compared to proceedings in the Law
Division. See Restatement (Second) of Judgments, supra, at §
28(3). As already described, proceedings before the EEOC are
less formal than in a civil court. Supra at __ (slip op. at 7-8). In conclusion, an adverse EEOC determination should not
collaterally estop a plaintiff from being able to litigate the
issue of employment discrimination under the LAD in the Law
Division.
The Appellate Division also observed that the entire-controversy doctrine, which "encourages prompt, efficient
disposition of claims in one proceeding and in one forum," serves
to bar Hernandez's Law Division suit. 286 N.J. Super. at 684.
However, in Perry v. Tuzzio,
288 N.J. Super. 223 (1996), the
Appellate Division recently explained that "application of the
[entire-controversy] doctrine requires equality of forum, that
is, the first forum must have been able to provide all parties
with the same full and fair opportunity to litigate the issues
and with the same remedial opportunities as the second forum."
Id. at 230. As discussed earlier, the informal and flexible
nature of the EEOC administrative forum does not afford a
complainant the ability to litigate a claim to the same extent
that he or she would be able in the Superior Court. Further, the
EEOC cannot render a final, enforceable judgment. The entire-controversy doctrine does not bar Hernandez's LAD claim on the
basis that he did not raise it before the EEOC.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE HANDLER's opinion.
NO. A-33 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
WILFREDO HERNANDEZ,
Plaintiff-Appellant,
v.
REGION NINE HOUSING CORP., NEW
BRUNSWICK UAW ASSOCIATES, AND
JOAN WILK,
Defendants-Respondents.
DECIDED November 26, 1996
Chief Justice Poritz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY