Alan Schorr’s Case of The Week ending January 25, 2013

Cornacchiulo v. Alternative Investment Solutions, Inc., 2013 WL 238189 (App. Div. January 23, 2013) (unpublished)

This week’s case, Cornacchiulo v. Alternative Investment Solutions, Inc., provides a good example of some of the problems that plaintiffs can encounter when they decide to file a claim with the Division on Civil Rights and then decide to file suit.

Francis Cornacchiulo alleges that he was a vice president of the defendant beginning July 2008 and was terminated April 2009. He suffered from symptoms of multiple sclerosis during part of his time of employment. Cornacchiulo alleges that management executed a plan to terminate plaintiff for purported inadequate performance when, in fact, he had performed well in his position.

He filed, pro se, an EEOC charge on June 20, 2009, and a day later, signed an addendum dual filing his claim with the NJ Division on Civil Rights (“DCR”). The EEOC returned a decision in October 2009, which is remarkably quick. The EEOC concluded that it was “unable to conclude that the information establishes a violation of federal law….” It has been my experience that EEOC claims are rarely resolved inside of a year, and DCR claims often take two years or more. In fact, the DCR did not even get around to notifying Mr. Cornacchiulo that it has received a charge filed with the EEOC until three months after the EEOC had already made its decision and issued a Right to Sue Notice.

Mr. Cornacchiulo did nothing else until April 2011, when he retained an attorney who filed suit on April 8, 2012, just under the two year statute of limitations deadline. Apparently his counsel was either unaware or was under the misapprehension that the DCR had issued a determination or that they would not be making one. On April 29, 2011, the DCR sent a letter, which appears not to have been copied to the plaintiff or counsel, advising that a determination had been made and the DCR was closing its file. The defendant filed a motion to dismiss, arguing that the EEOC finding coupled with the letter from the DCR was equivalent to a “No Probable Cause” ruling from the DCR. The Plaintiff tried to withdraw the claim from the DCR by letter in May 2011, but in June, the Superior Court dismissed the Complaint on that basis.

The plaintiff appealed, and on June 19, 2012, the Appellate Division affirmed the dismissal. Cornacchiulo v. Alternative Investment Solutions, Inc., 2012 WL 2285185 (App. Div. 2012) (unpublished). The Appellate Division ruled that “because the NJDCR issued a final determination before plaintiff withdrew his administrative charge, plaintiff’s lawsuit was barred by N.J.S.A. 10:5–27. Plaintiff’s recourse was a right to appeal the NJDCR’s final determination pursuant to N.J.S.A. 10:5–21.” The plaintiff had already filed that appeal with the DCR and it was pending while the Appellate Division made its ruling. The Appellate Division does not explain why it did not simply combine the two appeals, since they were clearly related and the App. Div. clearly knew about the second appeal.

In any event, this week, the Appellate Division reaffirmed, again explaining that the decision to go to the DCR constituted an election of remedies, and having made a determination which the Court found to be equivalent to a Finding of No Probable Cause, the Plaintiff’s claims were barred. This case is instructional for some important practice pointers.

Unlike the EEOC, New Jersey plaintiffs are not required to file with the DCR prior to filing suit. This is a huge advantage of New Jersey law. But also unlike the EEOC, which is not required to make a Finding, and can instead issue a Right to Sue letter stating that it is unable to make a determination, the DCR must either find Probable Cause, in which case it must offer to represent the claimant, or make a “Finding of No Probable Cause” which is a final determination which permanently extinguishes the right to sue under the LAD. I have always found this trade-off to be quite fair and very workable. If a claimant does not want to risk a Finding of No Probable Cause, simply do not dual file with the DCR, or better yet, don’t file at all. The DCR simply does not have the funding or resources to properly investigate to conclusion every case it gets.

In the event that a client has filed pro se with the EEOC or the DCR, plaintiffs’ counsel should be very careful to get a letter from the DCR stating that they have dismissed or withdrawn the claim without making a Finding. Once they actually make a Finding, it is too late. I have found the DCR very easy to work with, and a simple phone call to the Director or an Assistant Director, followed by a letter, is usually enough to assure that your client will be protected from the dreaded “Kiss of Death” of a Finding of No Probable Cause. Just make sure to quiz your client very carefully about administrative claims they may have made, and if plaintiffs’ counsel has chosen to file with the EEOC for some reason, make sure that the DCR letter of withdrawal without Finding is safely in possession before bringing suit.

This case should not be taken as bad law, but as a warning that, while we have a workable system administrative system in New Jersey, plaintiffs’ counsel must take great care in protecting claims from the Kiss of Death.

Plaintiff’s counsel: James E. Burden and Neil Mullin, Smith Mullin, LLC

DCR Counsel: Charles S. Cohen, DAG (on second appeal only)

Defendants’ counsel: James H. Forte, Saiber, LLC (First Appeal); Sean R. Kelly on the second appeal.

Appellate Judges: A.A. Rodriguez and Ashrafi (on first appeal); Fuentes and Ashrafi on the second appeal.