PUCHAKJIAN v. TOWNSHIP OF WINSLOW
Filing
41
OPINION FILED. Signed by Judge Noel L. Hillman on 6/29/11. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DEBORAH A. PUCHAKJIAN,
Plaintiff,
v.
TOWNSHIP OF WINSLOW,
Defendant.
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Civil Action No.
09-1326-NLH-JS
OPINION
APPEARANCES:
THOMAS MATTHEW BARRON
BARRON & POSTERNOCK, LLP
400 N. CHURCH STREET
SUITE 250
MOORESTOWN, NJ 08057
Attorney for Plaintiff Deborah A. Puchakjian
PATRICK J. MADDEN
MADDEN & MADDEN, PA
108 KINGS HIGHWAY EAST
SUITE 200
PO BOX 210
HADDONFIELD, NJ 08033-0389
Attorney for Defendant Township of Winslow
HILLMAN, District Judge
Plaintiff, Deborah A. Puchakjian, alleges Defendant Township
of Winslow (hereinafter “Defendant” or “Township”) discriminated
against her on the basis of gender because it compensated her
significantly less than it compensated her male predecessor and
male counterparts who performed substantially equal or similar
work.
Defendant denies these claims and moves for summary
judgment [Doc. 28].
In response, Plaintiff filed a cross-motion
for summary judgment [Doc. 34].
For the reasons expressed below,
the Court will grant Defendant’s Motion and deny Plaintiff’s
Cross-Motion.
I.
JURISDICTION
Plaintiff has alleged a violation of the Equal Pay Act, 29
U.S.C. § 206 et seq., as well as several violations of New Jersey
state law.
The Court has jurisdiction over Plaintiff’s Equal Pay
Act claim pursuant to 28 U.S.C. § 1331, and may exercise
supplemental jurisdiction over her state law claims under 28
U.S.C. § 1367.
II.
BACKGROUND
Plaintiff commenced her employment with Defendant in 1980.
After working for the Township in several different capacities,
she was appointed, on February 1, 2002, as the Municipal Clerk,
and received a starting salary of $55,000.00.1
Prior to her
appointment, Ronald C. Nunnenkamp (hereinafter “Mr. Nunnenkamp”)
served as the Township’s Municipal Clerk, a position he occupied
from 1973 until his retirement in 2002.
In addition to serving
as the Municipal Clerk, in 1986, Mr. Nunnenkamp became the
1
In 2004, the Township retroactively increased Plaintiff’s
2003 salary by 14.5% to $63,000.00. None of the male department
heads received an equivalent raise. Defendant increased
Plaintiff’s salary, and the salaries of the other female
department heads, because it recognized that a significant gap in
compensation existed between “traditional male positions of
employment and female positions of employment.” Doc. 28, Exhibit
24.
2
Township’s part-time Business Administrator.
Consequently, at
the time of his retirement, he earned approximately $85,515.00
for his work as Municipal Clerk, and approximately $13,435.00 for
serving as the Business Administrator.2
The Township administration is divided into ten departments,
and each department is managed by a department head.
The
Municipal Clerk is one of these several supervisory positions.
Three departments are headed by females and the remaining seven
by men.3
There is no dispute that all male department heads earn
more than Plaintiff and the two other female department heads.
Although the responsibilities of each department head differ,
Plaintiff views the seven male department heads as comparable to
her position, Municipal Clerk.4
2
This position remained part-time until 2002, when the
Township decided to reorganize and consolidate several positions.
As part of its reorganization, Defendant severed the part-time
Business Administrator and Municipal Clerk positions, eliminated
the job of Office Service Manager and changed the Business
Administrator part-time position into the full-time position of
Township Administrator.
3
Men occupy the positions of Township Administrator, Chief
Financial Officer, Sewer Superintendent/Water Superintendent,
Chief of Police, Construction Official, Municipal Assessor and
Director of Public Works.
4
As discussed in greater detail below, the role,
responsibilities and requirements of each department head vary
significantly. Not only do some of the department heads perform
substantially different tasks, but also the skills and
educational requirements for each position are dissimilar.
3
On March 24, 2009, Plaintiff filed her Complaint in this
case alleging counts for discrimination on the basis of unequal
pay, failure to pay overtime and retaliation.
for summary judgment on Plaintiff’s claims.
Defendant moves
Plaintiff also moves
for summary judgment with respect to Counts I, II and III of her
Complaint.
III. DISCUSSION
A.
Standard for Summary Judgment
Summary judgment is appropriate where the Court is satisfied
that “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.
P. 56(c).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id.
In considering a motion for summary judgment, a
district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the nonmoving party’s
evidence “is to be believed and all justifiable inferences are to
4
be drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d
241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact. Celotex Corp.,
477 U.S. at 323.
Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial.
Id.
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party. Anderson, 477 U.S. at 256-57.
A party opposing summary
judgment must do more than just rest upon mere allegations,
general denials, or vague statements. Saldana v. Kmart Corp., 260
F.3d 228, 232 (3d Cir. 2001).
B.
Equal Pay Act5
The Equal Pay Act (hereinafter “EPA”) provides, in pertinent
part, that:
No employer . . . shall discriminate . . . between
employees on the basis of sex by paying wages to
employees . . . at a rate less than the rate at which
he pays wages to employees of the opposite sex . . .
5
In Count 2 of her Complaint, Plaintiff alleges a
violation of the New Jersey Equal Pay Act (hereinafter “NJEPA”).
This District has recognized the symmetry between discrimination
claims under the Equal Pay Act and the NJEPA. Therefore, the
Court will analyze the claims similarly. See e.g., Dubowsky v.
Stern, Lavinthal, Norgaard & Daly, 922 F.Supp. 985, 996 (D.N.J.
1996) (applying the analysis of an Equal Pay Act claim to a NJEPA
claim).
5
for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and
which are performed under similar working conditions,
except where such payment is made pursuant to (i) a
seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of
production; or (iv) a differential based on any other
factor other than sex . . .
29 U.S.C. § 206(d).
Claims based upon the EPA “follow a two-step
burden-shifting paradigm.” Stanziale v. Jargowsky, 200 F.3d 101,
107 (3d Cir. 2000).
First, a plaintiff must prove a prima facie
case of discrimination.
Then, once a prima facie case is
established, the defendant has the burden to demonstrate the
applicability of one of the statute’s four affirmative defenses.
Id.
If the defendant unequivocally establishes an affirmative
defense, the plaintiff must prove that the nondiscriminatory
justification was merely a pretext for discrimination. Dubowsky
v. Stern, Lavinthal, Norgaard & Daly, 922 F.Supp. 985, 990
(D.N.J. 1996) (citing E.E.O.C. v. State of Del. Dept. of Health
and Social Servs., 865 F.2d 1408, 1414 n.8 (3d Cir. 1989).
To establish a prima facie case of discrimination, a
plaintiff must show that employees of opposite genders were paid
unequally for “‘equal work’ - work of substantially equal skill,
effort and responsibility, under similar working conditions.”
Stanziale, 200 F.3d at 107; Del. Dept. of Health and Social
Servs., 865 F.2d at 1414.
This inquiry, however, does not focus
on “the name under which the position was classified” or on its
job description.
Rather, a plaintiff must prove his case through
6
the “actual job content” and what “was actually done.” Brobst v.
Columbus Servs. Intern., 761 F.2d 148, 155 (3d Cir. 1985).
Thus,
“[t]he crucial finding on the equal work issue is whether the
jobs to be compared have a common core of tasks, i.e., whether a
significant portion of the two jobs is identical.” Id. at 156;
see Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 n. 10 (3d Cir.
1970) (noting that this test does not require that the two jobs
be entirely identical, only that the “different tasks which are
only incidental and occasional would not justify a wage
differential”).
“Factors to be considered in determining whether
tasks are similar include whether they require similar quality
and quantity of production, education, relevant prior work
experience, conduct and skill.” Dubowsky, 922 F.Supp. at 990
(citing 29 C.F.R. § 1620.13).
If a court determines that the jobs share a common core of
tasks, “[t]he inquiry then turns to whether the differing or
additional tasks make the work substantially different.” Brobst,
761 F.2d at 156; see Merillat v. Metal Spinners, Inc., 470 F.3d
685, 695 (7th Cir. 2006) (“Once a plaintiff establishes a common
core of tasks, we ask whether any additional tasks make the jobs
substantially different”) (internal quotations omitted).
To
resolve this issue, courts should only consider the
qualifications and skills necessary to perform the job, not the
specific qualifications of the employees who occupy the
7
positions. Cox v. Office of Attorney Ethics of the Supreme Court
of New Jersey, No. 05-1608, 2006 WL 3833470, at * 6 (D.N.J. Dec.
29, 2006); see Hodgkins v. Kontes Chemistry & Life Scis. Prod.,
No. 98-2783, 2000 WL 246422, at * 15 (D.N.J. Mar. 6, 2000)
(noting that the “comparative skill or quality of work” among the
workers is irrelevant).
In other words, at this stage of the
analysis, the focus of the inquiry is on the job, not on a
comparison of the individual abilities of the employees.
Ultimately, a finding that jobs entail equal work must be decided
on a case-by-case basis. Brobst, 761 F.2d at 156; Heller v.
Elizabeth Forward Sch. Dist., 182 F.App’x. 91, 95 (3d Cir. 2006)
(“Moreover, because of the heavily fact-driven character of the
inquiry, substantial equality must be determined on a case-bycase basis”).
Once a plaintiff establishes her prima facie case, “[t]he
burden of persuasion then shifts to the employer to demonstrate
the applicability of one of the four affirmative defenses
specified in the Act.” Stanziale, 200 F.3d at 107 (citing Del.
Dept. of Health and Social Servs., 865 F.2d at 1414 (citing
Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974))); see
Rhoades v. Young Women’s Christian Ass’n of Greater Pittsburgh,
No. 10-3533, 2011 WL 1447766, at * 3 (3d Cir. 2011) (“If the
plaintiff can establish a prima facie case, the employer may
prevail by establishing that the disparity in pay is due to a
8
differential based on a . . . factor other than sex”) (internal
quotations omitted).
Thus, an employee is exempt from liability
under the EPA if the differential payments were “made pursuant to
(i) a seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or (iv) a
differential based on any other factor other than sex.” 29 U.S.C.
§ 206(d)(1).
“Acceptable factors other than sex include
education, experience, prior salary, or any other factor related
to performance of the job.” Dubowsky, 922 F.Supp. at 990.
At
this stage of the inquiry, the Court may now compare the
abilities and qualifications of the particular employees who
filled the jobs. Id. at 990; Hodgkins, 2000 WL 246422 at * 15.
The Third Circuit has specifically opined that the
employers’ burden in establishing an affirmative defense is
exceptionally heightened. Stanziale, 200 F.3d at 107-08.
“[T]he
employer must prove at least one affirmative defense ‘so clearly
that no rational jury could find to the contrary.’” Id. at 107
(quoting in part Del. Dept. of Health and Social Servs., 865 F.2d
at 1414).
Consequently, in an EPA claim, “an employer must
submit evidence from which a reasonable factfinder could conclude
that the proffered reasons actually motivated the wage
disparity.” Id. at 108.
In other words, evidence that merely
“could explain the wage disparity” is insufficient, rather “the
proffered reasons” must “explain the wage disparity.” Id. at 107-
9
08.
1. Plaintiff’s EPA claim with Respect to Her
Predecessor
Plaintiff contends she was paid less than her predecessor,
Mr. Nunnenkamp, for substantially equal work.
In response,
Defendant opines that their work was not substantially equal and,
even if it was, reasons other than gender accounted for the
disparity in pay.
a. Prima Facie Case
Plaintiff submitted sufficient evidence to establish a prima
facie case of unequal pay based upon gender.
In her affidavit
and deposition testimony, Plaintiff detailed the common core of
tasks shared between herself and Mr. Nunnenkamp.6
Defendant
seemingly concedes the similarity between their tasks, but claims
Mr. Nunnenkamp’s higher salary was justified because he performed
additional duties.
In addition to serving as the Municipal
Clerk, he was also the Township’s part-time Business
Administrator, and, according to Defendant, this added
responsibility made Mr. Nunnenkamp’s job substantially different,
thus accounting for the compensation difference.7
6
The duties of municipal clerks are statutorily mandated
and defined. Consequently, there is little room for a township
to alter or amend a municipal clerk’s responsibilities. See
N.J.S.A. 40A:9-133(e) (stating that “[t]he municipal clerk shall
. . .”).
7
Shortly before Plaintiff’s appointment, the Township
severed the part-time Business Administrator and Municipal Clerk
10
The Court, however, finds it difficult to accept this
characterization of Mr. Nunnenkamp’s employment responsibilities.
Although he performed additional tasks as Business Administrator,
Mr. Nunnenkamp was separately compensated for that position.8
Since both his compensation and work as Business Administrator
were distinct from his duties as Municipal Clerk, the Court
cannot conclude that the extra tasks Mr. Nunnenkamp performed as
Business Administrator constituted additional tasks that made his
work as Municipal Clerk substantially different from Plaintiff’s
work as Municipal Clerk.
Recognizing this deficiency in their argument, Defendant
postulates that the Township artificially inflated Mr.
Nunnenkamp’s Municipal Clerk salary in order to provide him with
additional compensation for his duties as Business Administrator.
In support of this contention Defendant relies upon the
deposition testimony of Sue Ann Metzner (hereinafter “Ms.
Metzner”), the Township’s Mayor, and Mr. Nunnenkamp.
Both
individuals testified that Mr. Nunnenkamp’s Municipal Clerk
salary reflected compensation for the added tasks and
positions.
8
The Township’s salary ordinances clearly indicate Mr.
Nunnenkamp received a salary for both the Municipal Clerk and
Business Administrator positions. Furthermore, Defendant does
not dispute that Mr. Nunnenkamp received compensation for both
positions.
11
responsibilities he performed as Business Administrator.9
The
evidence in the record, however, does not support this
conclusion.
According to Defendant’s records, Mr. Nunnenkamp received
yearly raises between approximately $2,500.00 and $3,500.00.
These raises, however, were not in recognition for work as
Business Administrator.
statute.
Rather, they were required by state
New Jersey law, N.J.S.A. 40A:9-165, mandates that
municipal clerks shall receive the same increases in salary
“given to all other municipal officers and employees.” N.J.S.A.
40A:9-165.
Thus, whenever Defendant raised another employee’s
salary by a particular percent, it was required, absent good
cause, to raise equivalently Mr. Nunnenkamp’s Municipal Clerk
salary.
Consequently, Mr. Nunnenkamp’s raises were not
9
Ms. Metzner specifically stated that she thought Mr.
Nunnenkamp’s high salary was “really more” of a reimbursement for
his work as Business Administrator because “you don’t
administrate towns even tiny towns let alone a big town like this
for $13,435.00.” Doc. 28, Exhibit 4, Dep. Tr. 126-27. She
further expressed her belief that his salary was not really a
“clerk’s salary. It was more am administrator’s salary.” Id.
Ms. Metzner and Mr. Nunnenkamp believed that the raises were
directed into Mr. Nunnenkamp’s Municipal Clerk salary because he
had tenure as Municipal Clerk. The Township’s documents reveal
that the position of Municipal Clerk is afforded tenure, while
the Business Administrator serves at the pleasure of the
Township’s counsel. Consequently, Mr. Nunnenkamp’s Municipal
Clerk salary was, more or less, guaranteed, but his salary of
Business Administer was not. Therefore, it was advantageous for
all salary increases, including those for his duties as Business
Administrator, to be reflected in his salary as Municipal Clerk
because if his services as Business Administrator terminated, he
would still have continued to receive a higher salary.
12
reflective of his increased responsibilities as Business
Administrator.
law.
The annual increases occurred because of state
The Court, therefore, concludes Plaintiff established a
prima facie case of unequal pay because Mr. Nunnenkamp and
Plaintiff performed substantially equal work as Municipal Clerk,
and Mr. Nunnenkamp’s responsibilities as Business Administrator
were not additional tasks that made his work substantially
different.
b. Affirmative Defenses
After a plaintiff establishes a prima facie case of unequal
pay, the defendant may avoid liability if it demonstrates the
applicability of one of the statute’s affirmative defenses.
Stanziale, 200 F.3d at 107.
Presently, Defendant claims that any
difference in pay between Plaintiff and Mr. Nunnenkamp was based
upon factors other than Plaintiff’s gender.
According to
Defendant, Mr. Nunnenkamp received a higher salary because of his
approximate thirty-year tenure as Municipal Clerk.
From his
appointment in 1972 until his retirement in 2002, Mr. Nunnenkamp
received yearly raises between approximately $2,500.00 and
$3,500.00.
Plaintiff argues, in response, that because these
raises were not the result of a bonafide seniority or longevity
payment system, Defendant cannot utilize seniority or length of
tenure as justification for the wage disparity.
The Court,
however, does not agree with this interpretation of the EPA.
13
Neither the statute’s language nor case law require a defendant
to officially implement a seniority or longevity payment system
as a prerequisite to asserting seniority as an affirmative
defense to an EPA claim.10
Consequently, Defendant’s lack of a
seniority or longevity payment system will not bar it from
asserting a seniority or length of tenure based affirmative
defense.
After a thorough review of the record, the Court concludes
that Mr. Nunnenkamp’s raises were not the result of gender
discrimination, but rather were reflective of his long tenure as
Municipal Clerk.11
As discussed above, New Jersey law mandates
that municipal clerks receive the same increases in salary “given
to all other municipal officers and employees.” N.J.S.A.
40A:9-165.
Thus, whenever a municipal employee received a raise,
10
Plaintiff fails to cite any cases in support of her
interpretation of the EPA.
11
Both the statute and numerous Courts have recognized that
seniority may serve as an affirmative defense to an EPA claim.
See e.g., Markel v. Bd. of Regents of Univ. of Wis. Sys., 276
F.3d 906, 913 (7th Cir. 2002)(noting that an employer may use
length of service as justification for paying an employee a
higher salary); Hutchins v. Int’l Bhd. of Teamsters, 177 F.3d
1076, 1082 (8th Cir. 1999) (“Length of service is a factor other
than sex upon which an employer may base decisions regarding pay
increases”); Allen v. Sulzer Chemtech USA, Inc., 289 F.App’x.
278, 281 (10th Cir. 2008) (“Because seniority is a valid basis
for a salary variance, the district court correctly granted
summary judgment on this claim”); E.E.O.C. v. Affiliated Foods,
Inc., No. 81-6066, 1984 WL 980, at * 16 n.6 (W.D. MO. April 5,
1984) (“Courts have approved of legitimate seniority systems even
when they were informally administered and de facto”).
14
Mr. Nunnenkamp’s Municipal Clerk salary, absent good cause, had
to proportionally increase.
Over the course of his thirty-year
tenure with Defendant, Mr. Nunnenkamp received yearly salary
increases because other employees of the Township received
raises.12
disparity.
These mandatory raises explain any compensation
The Court, therefore, finds that if a reasonable
factfinder reviewed this evidence, it would conclude that Mr.
Nunnenkamp’s length of tenure as Municipal Clerk both explained
and motivated the wage disparity.13
After a defendant successfully raises an affirmative
defense, the plaintiff must provide evidence that the defendant’s
explanations were pretextual.
provide such evidence.
Presently, Plaintiff failed to
Therefore, summary judgment will be
entered in favor of Defendant with respect to this claim.14
12
The salary ordinances on the record clearly reflect that
Mr. Nunnenkamp’s yearly raises were proportional to the yearly
raises other Township employees received.
13
The Court additionally notes that Mr. Nunnenkamp’s thirty
years of experience as Municipal Clerk provided further
justification for his salary. See e.g., Gaujacq v. EDF, Inc., 601
F.3d 565, 575 (D.C. Cir. 2010) (holding that a male employee’s
receipt of salary higher than a comparable female’s did not
violate the EPA when the salary was justified upon the employee’s
greater experience); Balmer v. HCA, Inc., 423 F.3d 606, 612 (6th
Cir. 2005) (“A wage differential based on education or experience
is a factor other than sex for purposes of the Equal Pay Act.”);
Knadler v. Furth, 253 F.App’x. 661, 664 (9th Cir. 2007) (holding
similarly).
14
The Court notes that adopting Plaintiff’s argument would
lead to an absurd result. According to Plaintiff, she is
entitled to the salary Mr. Nunnenkamp received when he retired,
15
2. Plaintiff’s EPA Claim with Respect to the Male
Department Heads
Plaintiff also asserts that her compensation as Municipal
Clerk was less than that received by the male department heads15
who performed substantially equal work.16
In response, Defendant
opines that the work of the other department heads was not
substantially equal.
a. Prima Facie Case
To establish a prima facie case of discrimination, a
plaintiff need only prove that because of her gender she received
less pay than a male employee who performed substantially equal
work. Dubowsky, 922 F.Supp. at 990.
Presently, Plaintiff fails
to establish a prima facie case of unequal pay.
In particular,
$80,515.00. If Plaintiff received that salary at the
commencement of her employment as Municipal Clerk, and retired
after twenty years in that position, her salary, in 2022, would
be $172,968.00. Then, applying Plaintiff’s logic, her successor
would be appointed with a starting salary of $172,968.00. Such a
salary scheme not only defies logic, but also would surely amount
to a substantial financial hardship on Defendant. The Court
additionally notes that Plaintiff’s compensation was comparable
to the salaries of other municipal clerks in New Jersey,
information considered by the Township when it established her
salary.
15
The Municipal Clerk is one of ten department head
positions in the Township. Out of the ten positions, men
currently occupy seven: Township Administrator, Chief Financial
Officer, Sewer Superintendent/Water Superintendent, Chief of
Police, Construction Official, Municipal Assessor and Director of
Public Works. Plaintiff views all seven department head
positions as comparable to her job.
16
There is no dispute that all male department heads earned
more than Plaintiff.
16
she did not provide any evidence on how her job is substantially
equal to those of the other department heads.
During her
deposition, Plaintiff admitted that her responsibilities as
Municipal Clerk were neither similar or equal to the
responsibilities of the other department heads.
She further
testified that the only similarity between her job and the male
department heads was supervision of employees.
Supervision of
employees and a title of department head, however, are not
sufficient to render positions substantially equal. See Wheatley
v. Wicomico Cnty., Md., 390 F.3d 328, 332 (4th Cir. 2004)
(“To
support their theory, the women relied on evidence that all
managers-regardless of department subject matter-ultimately
perform the same supervisory duties.
They all, for instance,
prepare budgets, monitor employees, and conduct meetings.
We
decline to accept the argument . . . that employees with the same
titles and only the most general similar responsibilities must be
considered ‘equal’ under the EPA.
In actuality, plaintiffs
present a classic example of how one can have the same title and
the same general duties as another employee, and still not meet
two textual touchstones of the EPA-equal skills and equal
responsibility”); see also Lemke v. Int’l Total Servs., Inc., 56
F. Supp.2d 472, 490 (D.N.J. 1999) (noting that although all
persons at issue were “district managers . . . the inquiry [of
whether the EPA was violated] centers around actual job content
17
as opposed to job titles or descriptions”).
Courts have found
these types of admissions as sufficient evidence that compared
jobs are not substantially equal. See Hesley v. City of Somers
Point, No. L-625-03, 2006 WL 2482839, at * 7 (N.J. Super. Ct.
App. Div. Aug. 30, 2006) (holding that the plaintiff, a female
department head, failed to produce sufficient evidence of a wage
discrimination claim “based upon wage differentials between male
and female department heads under . . . the classic EPA approach”
when she conceded that her duties were not similar to the duties
performed by the male department head).
The Court will,
therefore, enter summary judgment in favor of Defendant with
respect to this claim.17
17
In support of its decision to enter summary judgment in
favor of Defendant, the Court also relies upon its analysis in
part C(2)(a) of this Opinion. In that section the Court
differentiates the Municipal Clerk from each male department
head, and concludes that Plaintiff’s work was not similar to any
of their work. As discussed in greater detail in footnote
nineteen, if a plaintiff fails to establish a prima facie case of
discrimination under the New Jersey Law Against Discrimination
(hereinafter “NJLAD”), then her EPA claim also fails because the
burden to prove a prima facie case under the NJLAD is
substantially less onerous then the burden to prove a prima facie
case under the EPA. Consequently, since the Court concluded
below that Plaintiff could not establish that her work was
similar to the work of the male department heads, neither can she
meet the more demanding standard for a prima facie case under the
EPA and prove that her job was substantially equal to the male
department heads’ positions. See Grigoletti v. Ortho Pharm.
Corp., 570 A.2d 903, 909 (N.J. 1990) (“It is generally
acknowledged that Title VII, with its broader approach to
discrimination, requires a less-exacting degree of job similarity
than is necessary to bring an EPA action. . . . The Supreme Court
has observed that under Title VII, the burden of proving a prima
facie case is not onerous. . . . In contrast, under the EPA, a
18
C.
New Jersey Law Against Discrimination
In Count III of her Complaint Plaintiff alleges Defendant
violated the New Jersey Law Against Discrimination (hereinafter
“NJLAD”) because, for equal work, it paid her less than Mr.
Nunnenkamp, her predecessor, and the male department heads.
A
plaintiff establishes a prima facie case of discrimination in the
form of unequal wages when she (1) proves a claim under the EPA
or (2) can demonstrate that her work is similar under Title VII
standards.18 Grigoletti v. Ortho Pharm. Corp., 570 A.2d 903, 913
(N.J. 1990).
Under the Title VII analysis, a plaintiff must
first demonstrate that her work was “similar” to a comparable
employee’s work.
Once the similarity between the jobs is
established, the burden of production shifts to the defendant,
and he must “articulate a legitimate non-discriminatory reason
for the treatment of the plaintiff.” Id.
Unlike EPA claims, “the
ultimate burden of persuasion shall remain on the plaintiff.”19
claimant must meet a more exacting prima facie case standard”)
(internal citations and quotations omitted).
18
Otherwise known as the McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) framework.
19
The Court pauses to reiterate the distinctions between
the analysis of a claim for unequal wages under the EPA and
NJLAD. To establish a prima facie case of discrimination under
the EPA, a plaintiff must prove that employees of opposite
genders were paid unequally for substantially equal work. Once
the prima facie case is established, the burden of persuasion
shifts to the defendant who must prove an affirmative defense “so
clearly that no rational jury could find to the contrary.”
Stanziale, 200 F.3d at 107 (internal quotations omitted). This
19
Id.
In the present matter, the Court already concluded Plaintiff
failed to establish an EPA claim.
Therefore, we will only apply
the second part of the NJLAD analysis.
1. Plaintiff’s NJLAD claim with Respect to Her
Predecessor
As discussed above, the Court concluded Defendant
successfully established an affirmative defense to Plaintiff’s
EPA claim.
Consequently, this determination renders any further
analysis of Plaintiff’s NJLAD claim moot.20
The Court,
therefore, will enter summary judgment in favor of Defendant.
heightened standard requires that defendant’s affirmative defense
“explain the wage disparity.” Id. at 107-08. On the other hand,
to establish a prima facie case under the NJLAD, a plaintiff need
only prove that her work is similar to an employee of the
opposite gender’s work. This is a significantly lesser burden
than the EPA requires. Grigoletti, 570 A.2d at 909. However, in
turn, defendant’s burden to establish an affirmative defense is
also lowered. Id. at 910 (“Thus, ‘the Equal Pay Act standard
which requires an employer to rebut a prima facie case of
compensation discrimination with a preponderance of the evidence,
differs substantially from the evidentiary burden a defendant
must shoulder in a Title VII case”) (quoting Schulte v. Wilson
Indus., 547 F.Supp. 324 (D. Tex. 1982)). The burden of
production, as opposed to the burden of persuasion, shifts to the
employer, and it need only “articulate a legitimate reason for
the apparent discriminatory treatment” of Plaintiff. Id.
20
As delineated in greater detail in footnote nineteen, if
a defendant establishes an affirmative defense under the EPA, the
plaintiff’s NJLAD claim also fails because the burden to prove a
defense to a NJLAD claim is lower than the burden of proving a
defense to an EPA claim.
20
2. Plaintiff’s NJLAD Claim with Respect to the Male
Department Heads
Similar to her claim under the EPA, Plaintiff also contends
that her compensation as Municipal Clerk was less than that
received by the male department heads who performed similar work.
In support of this claim, she specifically views the Construction
Official and Municipal Assessor as positions similar to the
Municipal Clerk.21
21
In early 2004, the Township Administrator analyzed the
levels of compensation paid to department heads in the Township.
As part of this review, he created a salary matrix based upon a
variation of the Hay Point System, a point factoring system that
calculates an employees’ compensation through the assignment of
points based upon skills and qualifications valued to the
employer. The more points assigned to a particular position, the
higher the compensation for that position. See Lord v. Pa. Nat’l.
Mut. Cas. Ins. Co., No. 07-1229, 2009 WL 2242364, at * 2 (M.D.
Pa. July 23, 2009) (“The Hay Point System calculates an
employee’s salary using several variables, including the
employee’s job description”); Engelmann v. Nat’l Broad. Co.,
Inc., No. 94-5616, 1996 WL 76107, at * 8 (S.D.N.Y. Feb. 22, 1996)
(“The Hay management system uses surveys and industry-wide salary
data, as the basis for recommended rate ranges, and minimum,
maximum and midpoint salaries for specific positions”).
Consequently, jobs assigned an equal number of points should
receive the same level of compensation. Although Defendants
never implemented this system or adopted the matrix, Plaintiff,
nonetheless, relies upon it and claims it evidences the disparity
in pay between female and male department heads.
The matrix created by the Township Administrator recognized
eleven grades, and each position in the Township was assigned a
grade. Under this system, the Municipal Clerk, Municipal
Assessor and Construction Official all received the same grade,
ten. According to Plaintiff, since the Construction Official and
Municipal Assessor were assigned the same grade as the Municipal
Clerk, the positions are similar and should all receive the same
amount of compensation. Although Plaintiff relies upon this
matrix as prima facie evidence of job similarity, the Township
Administrator’s unused point system does not alter the Court’s
own analysis of the similarity among the positions after applying
21
a. Prima Facie case
To establish a prima facie case of discrimination based upon
unequal pay, a plaintiff need only prove that because of her
gender she received less compensation than a male employee who
performed similar work. Grigoletti, 570 A.2d at 913.
Plaintiff fails to establish her prima facie case.22
Presently,
The
responsibilities of the Municipal Clerk are not similar to the
duties of the Township Administrator, Chief Financial Officer,
Director of Public Works, Chief of Police and Sewer/Water
Superintendent.23
Neither is her work similar to the work of the
the appropriate legal standard.
22
In support of her claim, Plaintiff relies upon several
statements made in 2004 by various Township officials concerning
a disparity in pay among male and female department heads. We
pause to note that these statements are not relevant to the
Court’s analysis because they do not provide any insight into
whether the position of Municipal Clerk is similar to the other
department head positions. As already discussed in great detail,
to establish a prima facie case under the NJLAD, a Plaintiff must
prove job similarity, not merely a perceived disparity in
compensation. Furthermore, even if the disparity statements were
somehow relevant, they occurred in 2004, and were made in
reference to Plaintiff’s $55,000.00, not $63,000.00 salary.
Additionally, they were also made as justification to raise her
compensation by approximately $8,880.00.
23
With respect to the other male department heads,
Plaintiff cannot argue that her responsibilities as Municipal
Clerk are similar to their duties. First, the positions of
Township Administrator, Chief Financial Officer and Director of
Public Works are not similar to the Municipal Clerk because the
former all require advanced degrees, while the latter does not.
See e.g., Soble v. Univ. of Md., 778 F.2d 164, 167 (4th Cir.
1985) (noting that differences in academic degrees render
positions unequal for comparison under the EPA). With respect to
the Chief of Police and Sewer/Water Superintendent, these
22
Construction Official and Municipal Assessor.24
As already
discussed above, Plaintiff admitted during her deposition that
her responsibilities as Municipal Clerk were neither similar or
equal to the responsibilities of the other department heads. See
Hesley, 2006 WL 2482839 at * 7 (holding that the plaintiff, a
female department head, failed to produce sufficient evidence of
a wage discrimination claim “based upon wage differentials
between male and female department heads under . . . the
McDonnell Douglas approach” when she conceded that her duties
were not similar to the duties performed by the male department
head).
Thus, on that basis alone, Defendant would be entitled to
summary judgment.25
Even absent Plaintiff’s admissions, the evidence on record
positions involve the supervision of substantially more
employees, demand substantial work experience in the relevant
field or require technical knowledge. See Rhoades, 2011 WL
1447766 at * 4 (opining that positions are not substantially
equal when one requires different or greater skills). Thus, none
of the aforementioned positions are comparable to the Municipal
Clerk because they do not involve similar work.
24
Besides her reliance on the salary matrix discussed in
footnote twenty-one, Plaintiff fails to discuss or cite any
evidence that the Construction Official and Municipal Assessor’s
work was similar to hers.
25
The Court notes that in August 2010, Defendant hired an
independent investigator to examine the alleged disparity in
wages between male and female department heads. The investigator
concluded that Plaintiff’s salary was comparable to other
Municipal Clerk’s salaries and that the duties of the Municipal
Clerk were neither similar or equal to the work performed by any
of the male department heads. See Exhibit 41. Plaintiff does not
submit any evidence to refute these findings.
23
confirms the dissimilarity among the work of the Municipal Clerk,
Construction Official and Municipal Assessor.
With respect to
the Construction Official,26 he must possess a very technical
skill set.
The licenses and certifications required for the job
take substantially more time to obtain, and require vastly more
experience and training than the certifications for the Municipal
Clerk.
For example, the Construction official must have
considerable experience in code enforcement and the construction
industry even before he or she may receive any licenses.27
The
Municipal Clerk, on the other hand, only needs to complete a
certification program offered through Rutgers University, and can
then be appointed with no prior experience.
In addition to the
different skill set required for each position, the additional
supervisory duties of the Construction Official further
differentiate the positions.
The Construction Official is also
Director of the Department of Community Services.
Consequently,
26
Shortly after the Township Administrator developed the
salary matrix Plaintiff relies upon, the Township assigned the
Construction Official several additional duties that would impact
the grade he was assigned. Thus, the Court’s analysis of the
similarity of work between Plaintiff and the Construction
Official will include the additional duties he was assigned
because any violation that occurred before the change in duties
would be barred by the statute of limitations.
27
Before an individual may become a Construction Official,
usually some combination of code enforcement and construction
industry experience is mandatory. The independent investigator’s
report noted that this experience equates to a salary
commensurate with the possession of a bachelor’s degree.
24
five different departments report to him, making his managerial
responsibilities more similar to the duties of the Chief
Financial Officer.28
The Court, therefore, concludes that the
positions of Construction Official and Municipal Clerk do not
involve similar work.
The similarity between the work of the Municipal Assessor29
and Municipal Clerk is a much closer question.
however, are still paramount.
The differences,
The Municipal Assessor examines
and assesses property, which requires substantial travel
throughout the Township.
The Municipal Clerk, on the other hand,
works in an office and is not required to travel.
Since the
Municipal Assessor’s main job is to assess property for taxing
purposes, he must be acutely aware of the value of homes and
assessment methodology.
The Municipal Clerk does not need to
possess this type of knowledge.
Thus, after an examination of
their duties, the Court concludes that the work of Municipal
Assessor and Municipal Clerk are not similar.
b. Affirmative Defenses
Assuming that the Municipal Assessor is a job similar to the
Municipal Clerk, Defendant claims that any disparity in pay
between their salaries was based upon factors other than
28
In fact, five properly licensed and certified sub-code
officials report to the Construction Official.
29
Although not required for the position, Plaintiff
believes the Municipal Assessor holds a bachelor’s degree.
25
Plaintiff’s gender.
According to Defendant, the Municipal
Assessor received a higher salary because of his approximate
thirty-eight-year length of service.
From his appointment in
1972 through the commencement of this lawsuit, the Municipal
Assessor received yearly raises between approximately $2,500.00
and $3,500.00.
New Jersey law mandates that municipal assessors
receive the same increases in salary “given to all other
municipal officers and employees.” N.J.S.A. 40A:9-165.
Thus,
whenever a municipal employee received a raise, the Municipal
Assessor’s salary, absent good cause, had to proportionally
increase.
Over the course of his tenure with Defendant, the
Municipal Assessor received yearly salary increases because other
employees of the Township received raises.30
Consequently, these
raises were not the result of gender discrimination, but rather
were reflective of the Municipal Assessor’s long tenure.31
Thus,
30
The salary ordinances on the record clearly reflect that
the Municipal Assessor’s yearly raises were proportional to the
yearly raises other Township employees received. In fact, the
raises Mr. Nunnenkamp received as Municipal Clerk, and the raises
the Municipal Assessor received were almost identical.
Furthermore, throughout their shared tenure with the Township,
the Municipal Assessor’s salary was always only a few thousand
dollars lower than the Municipal Clerk’s salary.
31
The Court additionally notes the Municipal Assessor’s
thirty years of experience provides further justification for his
salary. See e.g., Gaujacq, 601 F.3d at 575 (holding that a male
employee’s receipt of salary higher than a comparable female’s
did not violate the EPA when the salary was justified upon the
employee’s greater experience); Balmer, 423 F.3d at 612 (“A wage
differential based on education or experience is a factor other
than sex for purposes of the Equal Pay Act.”); Knadler, 253
26
the Court will enter summary judgment32 in favor of Defendant
because the raises explain any compensation disparity and satisfy
Defendant’s burden of production.33
D.
Violation of Township Ordinance
Plaintiff contends she is entitled to the receipt of
overtime pursuant to Winslow Township Code § 52-6A & § 52-7
(hereinafter “Code”).
The Code provides that Township employees
are entitled to overtime compensation for hours worked in excess
of their normally assigned workday hours.34
In 2006, Defendant
amended the Code to specifically exempt all department heads,
including Plaintiff, from the receipt overtime pay.35
Consequently, after 2006, she was not entitled to receive
F.App’x. at 664 (holding similarly).
32
The Court also enters summary judgment in favor of
Defendant with respect to Plaintiff’s New Jersey Constitution and
Civil Rights Act claim, Count IV of her Complaint, because she
failed to provide any evidence that she was discriminated against
on the basis of her gender.
33
Plaintiff failed to provide any evidence that Defendant’s
nondiscriminatory reason was merely a pretext for its actions.
34
There is no dispute that during some weeks Plaintiff
worked in excess of her normally assigned workday hours.
35
Plaintiff is not entitled to the receipt of overtime
pursuant to the New Jersey minimum wage law or the Fair Labor
Standards Act. See Dimiro v. Twp. of Montclair, 676 A.2d 627, 629
(N.J. Super. Ct. Law Div. 1996) (finding that former municipal
court administrator was a bona fide executive capacity within
purview of FLSA overtime exception requirement); McDowell v.
Cherry Hill Twp., No. 04-1350, 2005 WL 3132192, at * 6 (D.N.J.
Nov. 21, 2005) (holding similarly).
27
overtime.
After a review of the record, the Court concludes
Plaintiff failed to provide any evidence that Defendant owes her
unpaid overtime compensation.36
Neither did Plaintiff provide
any evidence that any male department heads continued to receive
overtime payment when she did not. See Doc 34, Exhibit 6, Dep.
Tr. 85 (Plaintiff stating that she believes the practice of
paying overtime wages stopped and that no Department head
currently receives overtime compensation).
The Court, therefore,
will enter summary judgment in favor of Defendant.37
E.
Reprisal
Plaintiff asserts a retaliation claim in Count VI of her
Complaint.
She contends that in response to a letter from her
attorney seeking her unpaid overtime, the Township Administrator
issued a memorandum that stated Defendants would no longer pay
employees overtime compensation.
Several weeks later, Defendant
adopted a resolution formalizing the policy that Department Heads
were not eligible to receive overtime pay.
According to
Plaintiff, the memorandum and resolution were acts of retaliation
against her for making a claim of employment discrimination.
36
Although Plaintiff alleges in her Complaint that she
failed to receive overtime since 2003, she admitted during her
deposition that the payment of overtime to her ceased in 2007 or
2008.
37
As further justification for entering summary judgment,
the Court notes that the Code does not provide Plaintiff with a
private right of action.
28
Claims of retaliation under the NJLAD are analyzed under the
well-established burden shifting framework of McDonnell Douglas.
411 U.S. at 803-05; See McKenna v. Pac. Rail Serv., 32 F.3d 820,
827 (3d Cir. 1994) (“The New Jersey Supreme Court has generally
looked to standards developed under federal anti-discrimination
law for guidance in construing the LAD.”); Grigoletti, 570 A.2d
at 912 (“We have recognized a . . . need to harmonize our LAD
with Title VII and have borrowed heavily from the federal
experience to assure some reasonable degree of symmetry and
uniformity.”).
Under that framework, a plaintiff must first
establish a prima facie case by showing that: (1) she engaged in
protected employee activity; (2) the employer took adverse action
against her after, or contemporaneous with, her activity; and (3)
a causal link exists between her activity and the employer’s
action against her. Muzslay v. City of Ocean City, 238 F.App’x.
785, 789 (3d Cir. 2007) (citing Abramson v. William Paterson
Coll., 260 F.3d 265, 286 (3d Cir. 2001)).
Should the plaintiff
establish a prime facie case, a presumption of discrimination is
created and the burden of production shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for its
actions. McDonnell Douglas, 411 U.S. at 803.
Once the employer
answers its relatively light burden by articulating a legitimate,
nondiscriminatory reason for the unfavorable employment decision,
the burden of production rebounds to the plaintiff, who must show
29
by a preponderance of the evidence that the employer’s
explanation was merely a pretext for its actions, thus meeting
the plaintiff’s burden of persuasion. Id.
Here, assuming Plaintiff established a prima facie case of
retaliation, her claim fails because Defendant articulated a
legitimate nondiscriminatory reason for its actions.
The record
indicates Defendant terminated its overtime policy for financial
reasons. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d
Cir. 1997) (“The defendant’s burden at this stage is relatively
light: it is satisfied if the defendant articulates any
legitimate reason . . .” for the adverse action).
According to
Ms. Metzner, the Township’s Mayor, abuses in overtime and the
necessity to “look[] at every penny” were the reasons behind the
change in policy. See Doc. 28, Exhbit 4, Dep. Tr. 64-65
(“[D]epartment heads are the top paid people . . . . And that it
was conveyed to us . . . that there had been an accumulation of
significant comp time accrued” by these individuals “[a]nd this
is now at an age were the governing bodies . . . are looking at
every penny, and . . . how it is spending and being legitimately
spent”).
This nondiscriminatory reason is further bolstered by
the broad applicability of the resolution.
Consequently, every
department head was no longer eligible to receive overtime
30
compensation, Plaintiff was not singled out.38
It applied
equally to all department heads and no exceptions were granted
regarding eligibility for overtime.
The Court, therefore, will
enter summary judgment in favor of Defendant.39
IV. CONCLUSION
For the reasons expressed above, Defendant’s Motion for
Summary Judgment [Doc. 28] will be granted, and Plaintiff’s
Cross-Motion for Partial Summary Judgment [Doc. 34] will be
denied.
An appropriate order will be entered.
Date: June 29, 2011
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
38
Nor was Plaintiff the only department head adversely
affected. By her own admission both the Chief of Police and Head
of Public Works Department work significant overtime hours and,
are no longer eligible to receive overtime pay.
39
Plaintiff failed to provide any evidence that Defendant’s
nondiscriminatory reason was merely a pretext for its actions.
31
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