                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 11-2540
                                     ___________

                                 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 )
                                     ___________

                                      OPINION
                                     ___________

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.
       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.

                                             2
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).


                                                3
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).

                                             4
       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).

                                              5
        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,



                                             6
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.

                                             7
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.




                                           8
