Mustafa Bostanci v. NEW JERSEY CITY UNIVERSITY On Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2540
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MUSTAFA BOSTANCI,
Appellant
v.
NEW JERSEY CITY UNIVERSITY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 08-04339)
District Judge: Honorable Stanley R. Chesler
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 13, 2012
Before: AMBRO, FISHER and NYGAARD, Circuit Judges
(Opinion filed: January 20, 2012 )
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OPINION
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PER CURIAM
Mustafa Bostanci, proceeding pro se, appeals from the District Court’s orders that
dismissed claims raised in his complaint, granted defendant’s motion for summary
judgment, and denied his motion to amend. For the reasons that follow, we will affirm
the District Court’s judgment.

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The record reflects that Bostanci had been working for the Information
Technology Services Department at New Jersey City University (“NJCU”) since 2001.
He received satisfactory and commendable evaluations from his supervisors. In April
2007, however, Bostanci was charged with insubordination, failure to carry out an order,
and conduct unbecoming of a state employee, and was suspended from NJCU. After a
hearing was held on May 8, 2007, the charges against Bostanci were sustained and
Bostanci’s employment with NJCU was terminated.
In May 2007, Bostanci filed complaints with the Equal Employment Opportunity
Commission (“EEOC”) and the New Jersey Division of Civil Rights (“DCR”) against
NJCU. Bostanci’s DCR complaint alleged discharge, retaliation, and harassment based
on his age in violation of the New Jersey Law Against Discrimination (“LAD”), N.J. Stat.
Ann. § 10:5 et seq., the Age Discrimination in Employment Act (“ADEA”), 28 U.S.C. §
621 et seq., and Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq.1
Bostanci asserted that his supervisor harassed him, telling him that he was too old. He
also alleged that his disciplinary action and termination were a result of his complaining
to NJCU’s human resources department on March 30, 2007 about his supervisor’s
discriminatory practices towards him.
After conducting an investigation of the allegations, DCR closed the case in
March 2008, with a finding of no probable cause. In May 2008, the EEOC adopted the
no probable cause finding of DCR, closed its file, and issued Bostanci a right to sue
1 It is unclear what claims were raised and the date the charge was filed with the
EEOC because the record contains only one page of Bostanci’s intake questionnaire.

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letter. Bostanci appealed DCR’s decision, which the Superior Court of New Jersey
affirmed.
While his appeal to the Superior Court was pending, Bostanci filed in the District
Court a complaint, which was essentially identical to the complaint he filed with DCR.
NJCU filed a motion to dismiss the complaint, which the District Court granted as to
Bostanci’s Title VII claims. NJCU then filed a motion for summary judgment.2 The
District Court granted NJCU’s motion for summary judgment, finding Bostanci’s ADEA
claims were barred by issue preclusion.3 Bostanci filed a motion for reconsideration and
for leave to amend his complaint, which the District Court denied. Bostanci timely
appeals.
II. Jurisdiction and Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review district court
decisions regarding both summary judgment and dismissal for failure to state a claim
under the same de novo standard of review.” Barefoot Architect, Inc. v. Bunge, 632 F.3d
822, 826 (3d Cir. 2011). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
2 NJCU had also filed a motion to dismiss, arguing that it was entitled to sovereign
immunity. The District Court converted the motion into a motion for summary judgment
and denied the motion.
3 Bostanci does not appeal the District Court’s granting NJCU summary judgment
as to his claims under LAD. Therefore, we will not address these claims. See Mitchell v.
Cellone, 389 F.3d 86, 92 (3d Cir. 2004) (issue not argued in appellate brief is abandoned
and waived).

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face.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (internal quotations
omitted). Summary judgment is granted when, viewing the evidence in the light most
favorable to the nonmoving party, there is no genuine dispute as to any material fact and
the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a); Beers-
Capitol v. Whetzel, 256 F.3d 120, 130 n.6 (3d Cir. 2001). We review an order denying a
motion to file an amended complaint for abuse of discretion. See Alvin v. Suzuki, 227
F.3d 107, 121 (3d Cir. 2000).
III. Discussion
A. Dismissed Claims
In his complaint, Bostanci alleged that NJCU violated Title VII by retaliating and
terminating his employment after he complained to human resources regarding
discrimination based on his age. Title VII prohibits discrimination on the basis of an
“individual's race, color, religion, sex, or national origin.” 42 U.S.C.A. § 2000e-2. Age
is not a protected class under Title VII. Kremer v. Chem. Constr. Corp., 456 U.S. 461,
466 n.4 (1982). Therefore, Bostanci’s Title VII claims fail to state a claim for relief and
the District Court properly dismissed these claims.4
4 In his appeal brief, Bostanci alleges religious discrimination under Title VII, and
notes that he alleged religious discrimination on the second page of his EEOC complaint.
We cannot consider this argument, however, because Bostanci did not include this claim
in his complaint and the second page of the EEOC complaint was not included in the
record below. See Webb v. City of Phila., 562 F.3d 256, 261 n.4 (3d Cir. 2009) (citation
omitted).

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B. Summary Judgment
Under 28 U.S.C. § 1738, a federal court is required to give the same preclusive
effect to state court judgments that those judgments would be given in that state’s own
courts.5 Kremer, 456 U.S. at 466. In New Jersey, issue preclusion is appropriately
invoked when: (1) the issue is identical to an issue decided in a prior proceeding; (2) the
issue was actually litigated in a prior proceeding; (3) the prior court issued a final
judgment on the merits; (4) the determination of the issue was essential to the prior
judgment; and (5) the party against whom issue preclusion is asserted was a party or in
privity with a party to the earlier proceeding. Del. River Port Auth. v. Fraternal Order of
Police, 290 F.3d 567, 573 (3d Cir. 2002) (citations omitted). Additionally, the prior
proceedings must have satisfied the minimum procedural requirements of the Due
Process Clause, which requires notice and an opportunity to be heard. See Kremer, 456
U.S. at 481-82; Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 635 F.3d 87, 100 (3d
Cir. 2011).
Bostanci asserts that the District Court improperly granted summary judgment to
NJCU on his ADEA claims. He argues that issue preclusion does not apply to his ADEA
claims because DCR’s investigation only involved his LAD claims, not his ADEA
claims, and DCR’s no probable cause determination was merely an investigation, not an
adjudication on the merits. He also argues that he did not have a full and fair opportunity
to litigate the issue. Bostanci’s arguments fail.
5 Section 1738 has long been understood to encompass the doctrine of issue
preclusion. San Remo Hotel v. City & Cnty. of S.F., 545 U.S. 323, 336 (2005).

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Although DCR reviewed Bostanci’s age discrimination claims pursuant to LAD,
the elements of a successful employment discrimination claim under LAD are virtually
indistinguishable to those under ADEA. A claim of age discrimination under LAD
requires a claimant to show that: (1) he was a member of a protected group; (2) his job
performance met the “employer's legitimate expectations”; (3) he was terminated; and (4)
the employer replaced, or sought to replace, him with “a candidate sufficiently younger to
permit an inference of age discrimination.” Zive v. Stanley Roberts, Inc., 867 A.2d 1133,
1141 (N.J. 2005); Bergen Commercial Bank v. Sisler, 723 A.2d 944, 956 (N.J. 1999).
Similarly, a claim under ADEA requires a claimant to show that: (1) he was a member of
the protected age class; (2) he suffered an adverse employment decision; (3) he was
qualified to hold the position; and (4) he was replaced by a significantly younger
employee. Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009). Thus, the legal
issues in Bostanci’s ADEA claims are identical to those DCR decided under LAD. See
Kremer, 456 U.S. at 479-80 (employment discrimination claims under New York state
law and Title VII virtually identical).
Bostanci also argues that issue preclusion does not apply because DCR only
conducted an investigation of his age discrimination claims and the claims were not
brought before any court. The record shows otherwise. Bostanci pursued his age
discrimination claims with the responsible state authority, DCR, before filing an ADEA
complaint with the federal court. See 29 U.S.C. § 633(b); Astoria Fed. Savs. & Loan
Ass’n v. Solimino, 501 U.S. 104, 110-11 (1991). DCR then conducted an investigation,

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in which it reviewed workplace records and conducted interviews with Bostanci’s former
union representatives and individuals Bostanci identified as similarly situated to him. As
a result of the investigation, DCR determined that there was a lack of probable cause that
Bostanci was discriminated against due to his age or was a victim of reprisal. Bostanci
appealed DCR’s finding, which was a final order, see N.J. Stat. Ann. §10:5-21; N.J.
Admin. Code § 13:4-10.2, and the Superior Court affirmed DCR’s finding of no probable
cause. Thus, the Superior Court’s judgment upholding DCR’s no probable cause finding
precludes Bostanci’s from re-litigating in federal court the employment discrimination
claims he pursued with DCR. See Kremer, 456 U.S. at 477-82.
Bostanci’s argument that he was not afforded due process also fails. Bostanci
alleges that DCR procedures violated due process because DCR did not conduct a
hearing during its investigation and because it excluded evidence and witness testimonies
in its decision analyzing his age discrimination claims. This argument, however, does not
suggest that DCR did not meet the minimum due process requirements of notice and an
opportunity to be heard. See Disabled in Action, 635 F.3d at 100. Bostanci does not
contend that he was unable to present evidence. He merely disagrees with DCR’s
expedited process6 and DCR’s decision not to include evidence he believes was material
in its report supporting its no probable cause determination. Accordingly, the District
6 A claimant choosing to file a complaint with DCR over the Superior Court of
New Jersey, “avail[s] himself of a means of redress normally swifter and less expensive
than formal litigation.” Sprague v. Glassboro State College, 391 A.2d 558, 562 (N.J.
Super. Ct. 1978); see N.J. Stat. Ann. § 10:5-13.

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Court properly granted summary judgment on Bostanci’s ADEA claims, as they were
barred by issue preclusion.
C. Motion to Amend
The District Court did not abuse its discretion in denying Bostanci’s motion for
leave to amend his complaint because amendment would have been futile. See Grayson
v. Mayview State Hosp., 293 F. 3d 103, 108 (3d Cir. 2002). Bostanci sought to amend
his complaint to include newly discovered evidence that demonstrated that his supervisor
was unqualified and that NJCU replaced him with an employee 15 years younger than
him. An amended complaint that included this evidence could not withstand a renewed
motion for summary judgment, as the Superior Court’s affirmance of DCR’s no probable
cause finding would still preclude Bostanci from raising his ADEA claims in federal
court. See Kremer, 456 U.S. at 477-81
For the foregoing reasons, we will affirm the District Court’s judgment.

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