ZULAUF v. STOCKTON UNIVERSITY et al

Filing 24

OPINION FILED. Signed by Judge Renee Marie Bumb on 2/22/17. (js)

[Docket No. 14]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

KEVIN ZULAUF,
Plaintiff,

Civil No. 15-3526 (RMB/JS)
OPINION

v.
STOCKTON UNIVERSITY, et al.,
Defendants.

APPEARANCES:
William G. Blaney, Jr., Esq.
Blaney & Donohue, PA
3200 Pacific Avenue, Suite 200
Wildwood, NJ 08260
Attorney for Plaintiff Kevin Zulauf
Christie Ann Pazdzierski, Deputy Attorney General
Office of the New Jersey Attorney General, Division of Law
25 Market Street
Trenton, NJ 08625
Attorney for Defendants Stockton University and
Lonnie Folks
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Summary Judgment [Docket No. 14] by Defendants Stockton
University (“Stockton”) and Lonnie Folks, in his individual and
corporate capacity as Stockton’s Director of Athletics
(together, the “Defendants”).

Defendants seek the dismissal of

the Complaint filed by Plaintiff Kevin Zulauf (the “Plaintiff”)
in its entirety with prejudice.

Having considered the parties’

1

submissions, for the reasons set forth herein, Defendants’
Motion for Summary Judgment will be granted, in part, and
denied, in part.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was hired by Stockton as a part-time assistant

coach for the men’s lacrosse team in 2007.
[Docket No. 14-2].

Defs. SOMF ¶ 11

He worked as the part-time assistant coach

for the 2007-2008 and 2008-2009 lacrosse seasons.

Id.

He was

paid $4,200 for the 2007-2008 season and $4,500 for the 20082009 season.

Id. ¶ 12.

As the assistant coach, he was

responsible for assisting in practices, contests, trips to other
schools, and recruitment.

Id. ¶ 13.

Plaintiff became the head coach for the men’s lacrosse team
beginning in the 2009-2010 season.

Id. ¶ 14.

He continues to

be employed in this position at the present time.

Id. ¶ 17.

Throughout this time, he has been classified as a part-time head
coach.

However, Plaintiff contends that he has been

misclassified as such because he performs essentially the same
work as the head coaches who are classified as full-time.
Resp. to Defs. SOMF ¶¶ 14-17 [Docket No. 20].

Pl.

As head coach,

Plaintiff’s salary was $13,500 for the 2012-2013 season, $13,500
for the 2013-2014 season, $14,000 for the 2014-2015 season, and
$15,000 for the 2015-2016 season.
No. 21].

2

Pl. SOMF ¶ 87 [Docket

According to Linda Yost, Plaintiff’s direct supervisor and
Stockton’s Associate Director of Intercollegiate Sports,
Plaintiff’s job responsibilities are “very similar” to that of
the female full-time women’s lacrosse coach and “substantially
similar” to all the other full-time head coaches.
49:24-50:24, 51:4-5 [Docket No. 14-7].

Yost Dep. Tr.

Per Plaintiff’s

contract, he is limited, as a part-time head coach, to working
944 hours per year.

Defs. SOMF ¶ 18.

Plaintiff, however,

disputes that this limitation is enforced.
SOMF ¶ 18.

Pl. Resp. to Defs.

Ms. Yost testified that Plaintiff regularly worked

significantly longer hours and that this was necessary for him
to adequately perform his job responsibilities.

Yost Dep. Tr.

33:22-24; 66:10-67:2.
Full-time head coaches are required to work thirty-five
hours per week, hold office hours, keep timesheets, and attend
quarterly and weekly staff meetings.
57.

Defs. SOMF ¶¶ 49, 52, 54,

Full-time head coaches are also assigned to department

committees.

Pl. SOMF ¶¶ 38-39.

While Plaintiff, as a part-time

coach, was not required by contract to do so, Plaintiff
routinely performed similar responsibilities.

For example, as

head coach, Plaintiff has organized and run a summer lacrosse
clinic at Stockton for several years.
234:10 [Docket No. 14-6].

Folks Dep. Tr. 232:23-

He earned $2,000 for running the

clinic during the 2013-2014 school year.

3

Pl. SOMF ¶ 51.

Plaintiff also attended the regular meetings of the head
coaches, which was mandatory for full-time coaches and
encouraged for part-time coaches.

Yost Dep. Tr. 41:19-42:5.

also participated on the student disciplinary committee.
111:16-112:11.

He

Id.

During the off-season, Plaintiff arranged study

hall sessions for his players twice per week.
25:18-26:9 [Docket No. 14-18].

Zulauf Dep. Tr.

Plaintiff also worked as the

open house manager and ticket sales manager.
these duties on an hourly basis.

He was paid for

For the 2013-2014 school year,

Plaintiff earned $2,550 for these duties.

Pl. SOMF ¶ 51.

In May 2013, Stockton hired its first women’s lacrosse head
coach, Kimberly Williams.

Id. ¶ 49.

Ms. Williams was

classified as a full-time head coach and her starting salary was
$49,783, while Plaintiff’s salary at that time was $13,500.
¶ 50.

Ms. Williams served as the head coach for the women’s

lacrosse team for the 2013-2014 and 2014-2015 seasons.
¶ 53.

Id.

Id.

Stockton then hired Cristina Maurizi as the full-time

head coach for the women’s lacrosse team for the 2015-2016
season.

Her starting salary was $54,079.

Id. ¶ 58.

Ms. Maurizi’s first collegiate head coach position.

It was
Id.

In

contrast, Plaintiff’s salary at that time was $15,000, after
working for seven years as a head coach.

Id.

According to Defendant Folks, the Director of Athletics at
Stockton, the head coach for the women’s lacrosse team was made

4

a full-time position because of the value he wanted to place on
the sport, the expectation of overall success, and “trying to
balance out our staff alignment.”

Id. ¶ 54.

Plaintiff

testified that when he asked Defendant Folks why he could not be
classified as full-time, Defendant Folks indicated that it was
because he was a male, but that if he had been female he could
have been hired as full-time.

Plaintiff further testified that

Defendant Folks explained that Stockton would have to hire more
full-time female coaches before he could hire Plaintiff as
full-time because Plaintiff is a male.

Id. ¶ 55 (citing Folks

Dep. Tr. 16:8-17:13).
In June 2013, Plaintiff’s union filed a grievance against
Stockton, asserting that Plaintiff performed full-time work and
should, therefore, be classified and paid as a full-time head
coach.

Id. ¶ 60.

As of 2014, Plaintiff was no longer permitted

to work as open house and ticket sales managers.

Id. ¶ 62.

According to Stockton, the removal of these duties from
Plaintiff was part of a restructuring of job duties, whereby
certain responsibilities were redistributed from part-time
coaches to full-time coaches.

Id. ¶¶ 63, 70.

In Ms. Yost’s

view, the removal of these duties from Plaintiff was
retaliatory, as Defendants did not begin considering a
restructuring of job duties “in earnest” until after the union
grievance.

Yost Dep. Tr. 83:10-84:3.

5

Based upon these facts, Plaintiff alleges that he has been
unlawfully paid less than his female counterpart and that he was
retaliated against after he complained about the pay
differential.

On April 1, 2015, Plaintiff filed the instant

litigation in the Superior Court of New Jersey, Law Division,
Atlantic County, setting forth the following counts: sex
discrimination in violation of the New Jersey Law Against
Discrimination (“NJLAD”) (Count One); retaliation in violation
of NJLAD (Count Two); sex based discrimination in violation
of the New Jersey Wage and Hour Law (“NJWHL”), N.J.S.A.
§ 34:11-56.1(b) (Count Three); and violation of the Equal Pay
Act, 29 U.S.C. § 206(d)(1) (Count Four) [Docket No. 1-2].
Defendants removed the action to federal court on May 22, 2015
[Docket No. 1].

Defendants now move for summary judgment and

the dismissal of Plaintiff’s Complaint in its entirety.
II.

SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A fact is “material” if it will “affect the

outcome of the suit under the governing law[.]”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

6

Id.

When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”

Meyer v. Riegel Prods.

Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983).

However, a mere

“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.

Anderson, 477 U.S. at 252.

Furthermore, a court need not adopt the version of facts
asserted by the nonmoving party if those facts are “so utterly
discredited by the record that no reasonable jury” could believe
them.

Scott v. Harris, 550 U.S. 372, 380 (2007).

In the face

of such evidence, summary judgment is still appropriate “where
the record . . . could not lead a rational trier of fact to find
for the nonmoving party[.]”

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ.
P. 56(c)).

Then, “when a properly supported motion for summary

judgment [has been] made, the adverse party ‘must set forth

7

specific facts showing that there is a genuine issue for
trial.’”

Anderson, 477 U.S. at 250 (citing Fed. R. Civ.

P. 56(e)).

The nonmovant’s burden is rigorous: he “must point

to concrete evidence in the record”; mere allegations,
conclusions, conjecture, and speculation will not defeat summary
judgment.

Orsatti v. New Jersey State Police, 71 F.3d 480, 484

(3d Cir. 1995); accord Jackson v. Danberg, 594 F.3d 210, 227
(3d Cir. 2010) (citing Acumed LLC v. Advanced Surgical Servs.,
Inc., 561 F.3d 199, 228 (3d Cir. 2009) (“[S]peculation and
conjecture may not defeat summary judgment.”)).
“Summary judgment is to be used sparingly in employment
discrimination cases[.]”

Doe v. C.A.R.S. Protection Plus, Inc.,

527 F.3d 358, 369 (3d Cir. 2008).

“[T]he plaintiff’s burden at

this stage is not particularly onerous.”

Id.

The Third Circuit

has also advised that, “[i]n an employment discrimination case a
trial court must be cautious about granting summary judgment to
an employer when, as here, its intent is at issue.”

Goosby v.

Johnson & Johnson Med., Inc., 228 F.3d 313, 321 (3d Cir. 2000)
(internal citations and quotations omitted).
III.

ANALYSIS
A. New Jersey Wage and Hour Law
Defendants contend that Plaintiff’s NJWHL claim must be

dismissed because the State and branches of the State are not
considered “employers” as defined by the NJWHL.

8

Defendants rely

largely upon Allen v. Fauver, in which the New Jersey Supreme
Court affirmed the Appellate Division’s determination that “the
Wage and Hour Law did not apply to the State because that
statute does not include the State of New Jersey in the
definition of ‘employer.’”

167 N.J. 69, 72 (2001) (affirming

Allen v. Fauver, 327 N.J. Super. 14, 20-21 (App. Div. 1999)).
The Appellate Division in Allen held that the State is not
an “employer” under the definition set forth in N.J.S.A.
§ 34:11-56a1(g), reasoning as follows:
The definition of employer as set forth in the Wage
and Hour statute ‘includes any individual,
partnership, association, corporation or any person or
group of persons acting directly or indirectly in the
interest of an employer in relation to an employee.’
N.J.S.A. 34:11–56a1(g). On its face, the State is not
within that definition. Plaintiffs argue that the
word ‘includes’ in a statutory definition is typically
a word of enlargement, not limitation, thereby
allowing expansion of the enumerated members of the
group, as appropriate. We have no quarrel with that
general proposition, but an expansive definition is
not synonymous with an exhaustive definition. Had the
Legislature intended to include all employers both
public and private, it most certainly would have done
so explicitly as it has in the Employer–Employee
Relations Act (N.J.S.A. 34:13A–3(c)) and the Law
Against Discrimination (N.J.S.A. 10:5–5(e)). We also
note there are statutes applicable only to public
employees that parallel the entitlements provided
under the Wage and Hour Law. Compare N.J.S.A. 11A:6–
24 and N.J.S.A. 52:14–17.13 with N.J.S.A. 34:11–56a4.
If state government as employer was subject to the
Wage and Hour Law, these other statutes would be
largely unnecessary.
Allen, 327 N.J. Super. at 21 (emphasis added).

9

Plaintiff does not quarrel with Allen’s holding.

Rather,

Plaintiff argues that Allen only addressed the overtime
provisions set forth in N.J.S.A. § 34:11-56a1, et seq., not the
discrimination in wages provisions set forth in N.J.S.A.
§ 34:11-56.1, et seq.

The latter provisions include a separate

definitional section, which, in Plaintiff’s view, should be
interpreted to encompass State entities and actors.

The

definition of “employer” in N.J.S.A. § 34:11-56.1(b) “includes
any person acting directly or indirectly in the interest, or as
agent, of an employer in relation to an employee and further
includes one or more individuals, partnerships, corporations,
associations, legal representatives, trustees, trustees in
bankruptcy, or receivers, but such term shall not include
nonprofit hospital associations or corporations.”1

1

In their reply brief, Defendants argue that Plaintiff has
not properly pled a New Jersey Equal Pay Act claim under
N.J.S.A. § 34:11-56.1, et seq., but rather Plaintiff has pled a
NJWHL claim under N.J.S.A. § 34:11-56a1, et seq. Defendants
note that “[t]he [NJWHL], N.J.S.A. 34:11-56a1 to -56a38, and the
[New Jersey Equal Pay Act], N.J.S.A. 34:11-56.1 to -56.12, are
separate titles and provide for different causes of action.”
Defs. Reply Br. at 5 [Docket No. 22]. Accordingly, Defendants
contend, “Count Three of Plaintiff’s Complaint alleges a
violation of the WHL, does not mention the NJEPA, and should be
dismissed.” Id. The Court disagrees. However titled, the
Complaint makes abundantly clear, through its factual
allegations and statutory citations, that Plaintiff is pursuing
a discrimination in wages claim under N.J.S.A. 34:11-56.1,
et seq., not an overtime or minimum wage claim under N.J.S.A.
§ 34:11-56a1, et seq. See, e.g., Compl. ¶¶ 1 (“This is an
action pursuant to the . . . New Jersey Wage and Hour Law
N.J.S.A. § 34.11-56.1 . . . to remedy unlawful sexual
10

The Court disagrees with Plaintiff.

The definitional

sections set forth N.J.S.A. § 34:11-56a1(g) and N.J.S.A.
§ 34:11-56.1(b) are materially the same.

Both include “any

person” “acting directly or indirectly in the interest” “of an
employer in relation to an employee,” as well as “individuals,
partnerships, corporations, [and] associations.”

Compare

N.J.S.A. § 34:11-56a1(g) with N.J.S.A. § 34:11-56.1(b).

Most

importantly, neither definition includes public entities or
actors on its face.
Neither the New Jersey Supreme Court nor the Third Circuit
Court of Appeals has had the opportunity to specifically address
whether the State is properly considered an “employer” under
N.J.S.A. § 34:11-56.1(b).2

Nonetheless, the Court is persuaded

that, if the New Jersey Supreme Court were to address this
issue, it would extend its reasoning in Allen to this provision.

discrimination in the workplace”), 3, 5, 32 (“Defendants’
actions, as detailed in this complaint were sex based and
constitute illegal sex based discrimination in wages in
violation of the New Jersey Wage and Hour Law, N.J.S.A.
§ 34:11-56.1(b).”).
2 While the provisions set forth in N.J.S.A. § 34:11-56.1,
et seq., have been applied against public entities and officials
on occasion, the issue of whether those State defendants were
“employers” under the relevant statutory definition was not
raised on appeal. See, e.g., Puchakjian v. Twp. of Winslow,
520 F. App’x 73, 76-77 (3d Cir. 2013); Stanziale v. Jargowsky,
200 F.3d 101, 107-08 (3d Cir. 2000); Gilkin v. Bd. of Chosen
Freeholders for Gloucester Cty., 2009 WL 972824, at *4 (N.J.
Super. Ct. App. Div. Apr. 13, 2009); Hesley v. City of Somers
Point, 2006 WL 2482839, at *5-7 (N.J. Super. Ct. App. Div. Aug.
30, 2006).
11

Just as in Allen, “[o]n its face, the State is not within” the
definition set forth in N.J.S.A. § 34:11-56.1(b).
327 N.J. Super. at 21.

See Allen,

The Court agrees that, “[h]ad the

Legislature intended to include all employers both public and
private, it most certainly would have done so explicitly,” as it
has in other laws, such as NJLAD, and as the United States
Congress did in the federal Equal Pay Act, see 29 U.S.C.
§ 203(d).

Allen, 327 N.J. Super. at 21.

Accordingly, in light

of the New Jersey Supreme Court’s determination in Allen and the
statutory text, the Court finds that the Defendants, as arms of
the State, are not “employers” under N.J.S.A. § 34:11-56.1(b)
for purposes of Plaintiff’s discrimination in wages claim.3
Summary judgment on Count Three of the Complaint is granted.

3

As the Court finds that Defendants are not “employers”
subject to suit under N.J.S.A. § 34:11-56.1, et seq., the Court
does not reach Defendants’ argument that sovereign immunity
under the Eleventh Amendment bars Count Three of the Complaint,
as Defendants do not raise sovereign immunity as a defense
against any other claims. The Court nonetheless notes that when
a state voluntarily removes a state action to federal court, as
Defendants have here, it waives its immunity under the Eleventh
Amendment as it has “voluntarily invoked the federal court’s
jurisdiction.” Lapides v. Bd. of Regents of Univ. Sys. of
Georgia, 535 U.S. 613, 620 (2002); accord Lombardo v.
Pennsylvania, Dep’t of Pub. Welfare, 540 F.3d 190, 198 (3d Cir.
2008) (holding “that the Commonwealth’s removal of federal-law
claims to federal court effected a waiver of immunity from suit
in federal court.”).
12

B. Equal Pay Act
The Equal Pay Act provides, in relevant part, that:
No employer . . . shall discriminate . . . between
employees on the basis of sex by paying wages to
employees in such establishment at a rate less than
the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on
jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed
under similarly 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)(1).
“An Equal Pay Act case involves shifting burdens.”
E.E.O.C. v. State of Del. Dep’t of Health & Soc. Servs.,
865 F.2d 1408, 1413 (3d Cir. 1989).

First, a plaintiff must set

forth a prima facie case “by showing that employees of opposite
sex were paid differently for performing ‘equal work’; that is,
work of substantially equal skill, effort and responsibility,
under similar working conditions.”

Id. at 1413-14 (citing

Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)).

Once

the plaintiff establishes a 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.”

Id. at 1414.

Importantly, “[t]o prevail on an

Equal Pay Act claim, a plaintiff need not prove that the
employer intended to discriminate.

13

Such a showing, however, may

be used to establish that an employer’s reliance on an
affirmative defense is merely a pretext for discrimination.”
Id. at 1414 n. 8.
Defendants argue that the undisputed facts establish that
Plaintiff and the female full-time women’s lacrosse head coach
did not perform “equal work” and, therefore, that Plaintiff
cannot establish a prima facie case under the Equal Pay Act.
“The 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.

The inquiry

then turns to whether the differing or additional tasks make the
work substantially different.”

Rhoades v. Young Women’s

Christian Ass’n, 423 F. App’x 193, 197 (3d Cir. 2011) (quoting
Brobst v. Columbus Servs. Int’l, 761 F.2d 148, 156 (3d Cir.
1985)).

“The equal work standard does not require that compared

jobs be identical, only that they be substantially equal.”
29 C.F.R. § 1620.13(a).
The Court disagrees with Defendants’ contention that the
undisputed record establishes that “the ‘different or additional
tasks’ completed by the full-time Women’s Lacrosse Coach ‘make
the work substantially different.’”
No. 14-4].

Defs. Br. at 9 [Docket

There are clearly factual disputes as to whether

Plaintiff and the female women’s lacrosse head coach performed
“equal work.”

14

For example, the record demonstrates that there are factual
disputes as to the number of hours Plaintiff worked.

Ms. Yost,

Stockton’s Associate Director of Intercollegiate Sports and
Plaintiff’s direct supervisor, testified that Plaintiff’s job
responsibilities as performed were “very similar” to those of
the female full-time women’s lacrosse coach and that Plaintiff
attended the same meetings as the full-time female coach.
Dep. Tr. 49:24-50:24.

Yost

Ms. Yost further noted that “[a]ll of the

jobs of our coaches are substantially similar.”

Id. 51:4-5.

Additionally, she testified that Plaintiff regularly worked more
than 25 hours per week, even though part-time coaches were
supposed to be capped at 25 hours per week, and that this was
necessary for him to properly perform his job responsibilities.
Id. 33:22-24; 66:10-67:2.
Likewise, the record establishes that Plaintiff
participated on committees, ran clinics, and arranged study hall
sessions for his players, even though he, unlike the full-time
head coaches, was not contractually required to do so.4

4

Until

The Court notes that the relevant regulations state that
the Equal Pay Act “prohibits discrimination by employers on the
basis of sex in the wages paid for ‘equal work on jobs the
performance of which requires equal skill, effort and
responsibility and which are performed under similar working
conditions.’ The word ‘requires’ does not connote that an
employer must formally assign the equal work to the employee;
the EPA applies if the employer knowingly allows the employee to
perform the equal work.” 29 C.F.R. § 1620.13(a) (emphasis
added).
15

2014, for instance, Plaintiff participated on the student
disciplinary committee.

Id. 111:16-112:11.

He also ran a

summer lacrosse clinic at Stockton for several years.
Dep. Tr. 232:23-234:10.

Additionally, Plaintiff held study

halls for his players twice per week.
26:9.

Folks

Zulauf Dep. Tr. 25:18-

Moreover, John Heck, the Director of Athletic Operations,

testified that the additional duties that full-time coaches are
required to perform involve a time commitment of approximately
one hour per week and that committee participation involves a
time commitment of roughly three to ten hours per year.
Dep. Tr. 41:14-42:1, 42:24-43:18 [Docket No. 14-9].

Heck

The record

demonstrates various genuine issues of material fact as to
whether Plaintiff and the female full-time lacrosse coach
performed “equal work” or whether the different or additional
tasks completed by the female lacrosse coach made their jobs
substantially different.

These factual disputes must be

resolved by the jury.
In the alternative, Defendants argue, even if Plaintiff can
establish a prima facie case, summary judgment is appropriate
because the pay differential is based on factors other than sex.
Defendants claim that Plaintiff was paid less than the female
women’s lacrosse head coach, not because of his gender, but
because Stockton was attempting to comply with Title IX of the
Education Amendments of 1972, which prohibits discrimination on

16

the basis of sex in athletic programs, and to encourage female
students’ participation in athletic programs.
13-18.

See Defs. Br. at

To succeed on this argument, Defendants must demonstrate

that this was the actual reason for the pay differential.
Stanziale, 200 F.3d at 107-08.

In Stanziale, the Third Circuit

explained that:
unlike an ADEA or Title VII claim, where an employer
need not prove that the proffered legitimate
nondiscriminatory reasons actually motivated the
salary decision, in an Equal Pay Act claim, an
employer must submit evidence from which a reasonable
factfinder could conclude that the proffered reasons
actually motivated the wage disparity. More to the
point, where, as here, employers seek summary judgment
as to the Equal Pay Act claim, they must produce
sufficient evidence such that no rational jury could
conclude but that the proffered reasons actually
motivated the wage disparity of which the plaintiff
complains.
Id. at 108 (internal citation omitted, emphasis added).
Defendants have not met this burden.

Plaintiff testified

in his deposition that Defendant Folks told him that “because
[he’s] male [he] wouldn’t be able to be hired full time,” but
that “[i]f [he] was female, he could be hired full time.”
Zulauf Dep. Tr. 16:21-17:1.

A rational jury could rely upon

this testimony to conclude that Defendants’ proffered
nondiscriminatory reason is pretext.

The Court reiterates that

the Plaintiff is not required to prove that Defendants intended
to discriminate against him; rather, he must demonstrate that

17

the Defendants paid him less than female employees for equal
E.E.O.C., 865 F.2d at 1414 n. 8.5

work.

As there are factual disputes as to whether Plaintiff and
the female women’s lacrosse head coach performed equal work and
whether the pay differential was based on factors other than
sex, the Court finds that summary judgment as to Plaintiff’s
Equal Pay Act claim is inappropriate.
C. NJLAD Sex Discrimination
Under New Jersey law, NJLAD claims based upon sex
discrimination in wages are analyzed under the framework of
either the Equal Pay Act or Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2, depending on the circumstances.

The

New Jersey Supreme Court has explained:
. . . in a case brought under the LAD presenting a
gender-discrimination claim based on the payment of
unequal wages for the performance of substantially
equal work, the standards and methodology of the EPA
[Equal Pay Act] should be followed. These encompass
the elements that comprise both a prima facie case and
the corresponding transfer of the burden of proof.
. . . If the complainant establishes a case of
‘substantially equal’ work that is compensated at
5

The Court also questions the legitimacy of Defendants’
proffered nondiscriminatory reason. Title IX specifically
states that it shall not be “interpreted to require any
educational institution to grant preferential or disparate
treatment to the members of one sex on account of an imbalance
which may exist with respect to the total number or percentage
of persons of that sex participating in or receiving the
benefits of any federally supported program or activity, in
comparison with the total number or percentage of persons of
that sex in any community, State, section, or other area.”
20 U.S.C. § 1681(b).
18

different rates of pay, then the defendant has the
burden of proof to establish by a preponderance of the
evidence the affirmative defenses delineated under the
EPA and incorporated into Title VII to overcome the
charge of unlawful discrimination.
We further determine that if such a complainant in an
action brought under the LAD based on genderdiscrimination fails to satisfy the standards of a
prima facie case of ‘substantially equal’ work, as
prescribed by the EPA, but the evidence demonstrates a
lesser degree of job similarity that would nonetheless
satisfy the less-exacting standards of a prima facie
case under Title VII, the burden that shifts to the
defendant should be only the burden of production or
explanation. Thus, if such a complainant is able to
show only that the work is ‘similar,’ then the
defendant will be required to articulate a legitimate
non-discriminatory reason for the treatment of the
plaintiff, and the ultimate burden of persuasion shall
remain on the plaintiff.
Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 109–10 (1990).
The Court has already denied summary judgment as to
Plaintiff’s Equal Pay Act claim because of disputed issues of
material fact as to whether Plaintiff and the female lacrosse
coach performed substantially equal work and whether the pay
differential was based on factors other than sex.

Accordingly,

considering Plaintiff’s NJLAD claim under the Equal Pay Act
framework, as directed by Grigoletti, for the same reasons,
the Court finds that summary judgment as to Plaintiff’s sex
discrimination claim under NJLAD is also inappropriate.
Even considered under the Title VII framework, summary
judgment as to the NJLAD sex discrimination claim is
unwarranted.

Where there is no direct evidence of

19

discrimination, NJLAD and Title VII claims are “evaluated using
the familiar three-step, burden-shifting framework articulated
in McDonnell Douglas[.]”

Arenas v. L’Oreal USA Prods., Inc.,

461 F. App’x 131, 133 (3d Cir. 2012) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)).

Under this framework, a

plaintiff must first establish a prima facie case of gender
discrimination.

Scheidemantle v. Slippery Rock Univ. State Sys.

of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006).
To establish a prima facie case of sex discrimination under
NJLAD or Title VII, a plaintiff must establish that (1) he or
she is in a protected class; (2) he or she was qualified for the
position in question; (3) he or she suffered an adverse
employment action; and (4) that the adverse employment action
gives rise to an inference of unlawful discrimination.
Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 842 (3d Cir.
2016).

“[A] plaintiff who brings a ‘reverse discrimination’

suit under Title VII should be able to establish a prima facie
case in the absence of direct evidence of discrimination by
presenting sufficient evidence to allow a reasonable fact finder
to conclude (given the totality of the circumstances) that the
defendant treated plaintiff ‘less favorably than others because
of [his] race, color, religion, sex, or national origin.’”
Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir. 1999) (quoting
Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978)).

20

Once the plaintiff has established a prima facie case, “the
burden then shifts to the employer to articulate a legitimate,
nonretaliatory or nondiscriminatory reason for its actions.

If

the employer produces such a reason, the burden then shifts back
to the plaintiff to prove that the employer’s nonretaliatory or
nondiscriminatory explanation is merely pretext for the
discrimination or retaliation.”
842.

Tourtellotte, 636 F. App’x at

A plaintiff can demonstrate pretext and, therefore,

withstand a motion for summary judgment by “point[ing] to some
evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.”
Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

Fuentes v.

This “burden-shifting

analysis applies with equal force to claims of ‘reverse
discrimination.’”

Iadimarco, 190 F.3d at 158.

Defendants contend that Plaintiff has failed to establish a
prima facie case because he has produced no evidence of any
background circumstances that suggest that Stockton is the
unusual employer who discriminates against the male majority.
The Third Circuit specifically rejected this requirement in
Iadimarco, reasoning that “all that should be required to
establish a prima facie case in the context of ‘reverse

21

discrimination’ is for the plaintiff to present sufficient
evidence to allow a fact finder to conclude that the employer is
treating some people less favorably than others based upon a
trait that is protected under Title VII.”
Plaintiff has done so.

190 F.3d at 161.

For example, Plaintiff testified that

Defendant Folks told him that Plaintiff could not be considered
a full-time coach because he was male, but that if he were
female he could be classified as such.

If credited, that

testimony is sufficient evidence from which a reasonable jury
could conclude that the Defendants paid Plaintiff less than his
female counterpart for similar work because of his sex.6
Defendants do not genuinely dispute that Plaintiff has
established the remaining elements of the prima facie case.7

6

Even if Plaintiff were required to establish background
circumstances that support an inference that Stockton is the
unusual employer who discriminates against the majority, as
Defendants argue, this testimony would suffice. Indeed, such
testimony, if believed by the jury, could constitute direct
evidence of sex-based discrimination.
7 In their reply brief, Defendants claim for the first time
that Plaintiff has not suffered an adverse employment action.
Defs. Reply Br. at 13-14. The Court need not consider this
argument, as it was raised for the first time in Defendants’
reply brief, to which Plaintiff had no opportunity to respond.
Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler
Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is
waived unless a party raises it in its opening brief, and for
those purposes ‘a passing reference to an issue . . . will not
suffice to bring that issue before this court.’”) (quoting
Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir.
1991)). In any case, Defendants’ decision to pay Plaintiff less
than his female counterpart for substantially similar work, if
established at trial, would constitute an adverse employment
22

Defendants then argue that, even if Plaintiff can establish
a prima facie case, Stockton has a legitimate nondiscriminatory
reason for the pay differential, namely that the female women’s
lacrosse head coach is a full-time employee with additional job
responsibilities and requirements, such as serving on
committees, holding study halls, running camps, and working
thirty-five hours per week.

The burden next shifts to Plaintiff

to demonstrate that this reason is pretext.

He can do so by

identifying direct or circumstantial evidence from which a
reasonable jury could “(1) disbelieve the employer’s articulated
legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.”

Fuentes, 32 F.3d

at 764.
Plaintiff testified at his deposition that he spoke with
Defendant Folks about why he could not be considered a full-time
head coach.

He explained that Defendant Folks responded “that

because I’m a male I wouldn’t be able to be hired full time.

If

I was a female, I could be hired as full time. . . . He would
actually need to have more female full-time coaches before he

action. See Mieczkowski v. York City Sch. Dist., 414 F. App’x
441, 446 (3d Cir. 2011) (“an unwarranted salary disparity can
constitute an adverse employment action”) (citing Stanziale, 200
F.3d at 105-06); Sherrod v. Philadelphia Gas Works, 57 F. App’x
68, 73 (3d Cir. 2003) (“paying an individual a lower salary for
discriminatory reasons can be an adverse employment action.”).
23

can hire me as full time because I am male.”
16:21-17:10.

Zulauf Dep. Tr.

This testimony directly contradicts Defendants’

proffered legitimate, nondiscriminatory reason.

Additionally,

as set forth in detail above, there is evidence in the record
that Plaintiff’s job responsibilities were substantially similar
to those of the full-time female lacrosse coach.

For example,

Plaintiff ran a lacrosse clinic, served on the disciplinary
committee, and held study hall sessions.

See, e.g., Folks Dep.

Tr. 232:23-234:10; Yost Dep. Tr. 111:16-112:11; Zulauf Dep.
Tr. 25:18-26:9.

Plaintiff’s direct supervisor, Ms. Yost, also

testified that he worked more than part-time hours and that such
a time commitment was necessary to perform his job properly.
Yost Dep. Tr. 33:22-24; 66:10-67:2.

Moreover, it is undisputed

that certain of the additional job responsibilities now
performed by the full-time coaches used to be performed by
Plaintiff.

For example, Plaintiff acted as the open house and

ticket sales managers and still was paid significantly less than
his female counterparts.

Pl. SOMF ¶ 51.

This is sufficient evidence from which a reasonable jury
could disbelieve Defendants’ proffered legitimate reasons or
believe that unlawful discrimination was more likely than not a
motivating cause of Defendants’ actions.

Accordingly, for these

reasons, summary judgment as to Plaintiff’s NJLAD sex
discrimination claim must be denied.

24

D. NJLAD Retaliation
NJLAD makes it unlawful “[f]or any person to take reprisals
against any person because that person has opposed any practices
or acts forbidden under” NJLAD.

N.J.S.A. § 10:5-12(d).

A

retaliation claim under NJLAD is analyzed under the familiar
McDonnell Douglas burden-shifting framework.

Michaels v. BJ’s

Wholesale Club, Inc., 604 F. App’x 180, 182 (3d Cir. 2015).

To

establish a prima facie claim for retaliation under NJLAD, a
plaintiff must demonstrate that he “engaged in a protected
activity that was known to the employer, that [he] was subjected
to an adverse employment decision, and that there is a causal
link between the activity and the adverse action.”

LaPaz v.

Barnabas Health Sys., 634 F. App’x 367, 369 (3d Cir. 2015)
(citing Battaglia v. United Parcel Serv., Inc., 214 N.J. 518,
547 (2013)).
“If the plaintiff is able to make such a showing, the
burden of production shifts to the employer to ‘articulate some
legitimate, nondiscriminatory reason for its decision.’”
Michaels, 604 F. App’x at 182 (quoting Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)).

“If

the employer ‘meets this minimal burden, the plaintiff ‘must
point to some evidence, direct or circumstantial, from which a
factfinder could reasonably either (1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe that an invidious

25

discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.”

Id. (quoting

Fuentes, 32 F.3d at 764).
Plaintiff claims that certain of his job responsibilities,
such as those of open house manager and ticket sales manager,
were taken away from him in retaliation for his union grievance
regarding wage inequity.

Defendants apparently concede that

Plaintiff has established a prima facie case of NJLAD
retaliation.8

Instead, Defendants argue that Stockton “made a

legitimate business decision to remove these responsibilities
from part-time employees so that these responsibilities could be
absorbed by full-time personnel and the University no longer had
to pay additional monies to part-time employees to ensure that
these jobs were completed.”

Defs. Br. at 29-30.

8

Additionally,

Although the section addressing this claim in Defendants’
moving brief is titled “Plaintiff cannot prove a prima facie
case of retaliation in violation of NJLAD,” the sole argument
advanced in this section of the brief as to this claim is that
Defendants made a legitimate nondiscriminatory business decision
to remove certain responsibilities from Plaintiff and “[t]here
is no evidence in the record that this decision was pretext for
discrimination.” Defs. Br. at 29-30. In their reply brief, for
the first time, Defendants argue that Plaintiff cannot establish
a prima facie case for NJLAD retaliation because there is no
evidence of a causal connection between Plaintiff’s alleged
protected activity and the alleged adverse employment action.
Defs. Reply Br. at 14-15. Accordingly, the Court will not
consider this argument as it was raised for the first time in
Defendants’ reply brief and Plaintiff has not had an opportunity
to respond. Foster Wheeler, 26 F.3d at 398 (quoting Simmons,
947 F.2d at 1066).
26

Defendants contend that “[t]here is no evidence in the record
that this decision was pretext for discrimination.”

Id. at 30.

In turn, Plaintiff points to the testimony of Ms. Yost,
Stockton’s Associate Director of Intercollegiate Sports and
Plaintiff’s direct supervisor.

Ms. Yost testified that she

believes Stockton acted with retaliatory intent in removing the
job responsibilities from Plaintiff.

Yost Dep. Tr. 83:10-84:3.

She also testified that Defendants did not begin considering a
restructuring of job duties “in earnest” until “after Mr. Zulauf
made his initial complaint with the Union.”

Id. 83:19-23.

According to Ms. Yost, Plaintiff was the only part-time coach
that lost duties in this restructuring, as he was the only
part-time coach who had previously had these responsibilities.
Id. 27:13-17.

This is sufficient evidence from which a rational

jury could reasonably either disbelieve Defendants’ proffered
reason or believe that Defendants removed the additional duties
from Plaintiff for an unlawful retaliatory motive.
must make these determinations.

The jury

Accordingly, summary judgment

on Plaintiff’s NJLAD retaliation claim must be denied.
E. Individual Liability
Defendants argue that Defendant Folks cannot be held liable
for aiding and abetting any NJLAD violations because there is no
evidence that he knowingly and substantially assisted in any
NJLAD violation or that he intended to facilitate

27

discrimination.

Defendants also contend that “an alleged aider

or abettor cannot aid or abet his or her own wrongful conduct.”
Defs. Br. at 32.
outright.

The Court rejects the latter argument

See, e.g., Mann v. Estate of Meyers, 61 F. Supp. 3d

508, 529-30 (D.N.J. 2014) (“It may seem awkward, or even a legal
fiction, to say that a person can aid and abet his own conduct.
The case law, however, finds it at least as awkward to say that
a person can be held liable for aiding and abetting another
individual’s discrimination, but cannot be held liable for his
own. . . . courts in this district have held that a supervisor
can be personally liable for his own conduct under the aiding
and abetting provision of the LAD.”) (collecting cases); Rowan
v. Hartford Plaza Ltd., 2013 WL 1350095, at *7 (N.J. Super. Ct.
App. Div. Apr. 5, 2013) (“a supervisor can be individually
liable for his or her own affirmative LAD violations” under
aiding and abetting theory).
It is undisputed that Defendant Folks has been the Director
of Athletics at Stockton since 2008 and that he “oversees
Stockton’s athletics and recreation programs, which includes
management, budgeting, and administrative responsibilities.”
Defs. SOMF ¶¶ 8-9.

Furthermore, the evidence establishes that

Defendant Folks was directly involved in the restructuring of
job duties that forms the basis of Plaintiff’s NJLAD retaliation
claim.

See, e.g., Yost Dep. Tr. 23:11-21; Folks Dep.

28

Tr. 180:13-181:7.

The record, including Defendant Folks’s own

deposition testimony, also demonstrates that he was involved in
determining which coaches would be considered “full-time” and in
setting new coaches’ starting salaries.
Tr. 21:21-25:4; 70:24-75:6.

See, e.g., Folks Dep.

He made the recommendation to make

the women’s lacrosse head coach position full-time.
23.

Id. 75:16-

He was also directly involved in setting the salaries for

the part-time coaches.

Id. 97:15-98:4.

Moreover, according to

Plaintiff’s deposition testimony, Defendant Folks specifically
told Plaintiff that he could not be classified as “full-time”
“because [he] is male” and that, “[i]f [he] was female, he could
be hired full time.”

Zulauf Dep. Tr. 16:21-17:1.

This is sufficient evidence from which a reasonable jury
could determine that Defendant Folks is liable for aiding and
abetting Stockton’s alleged NJLAD violations, as well as his own
allegedly violative conduct.

There are questions of fact that

must be resolved by the jury as to whether Defendant Folks
participated in or facilitated NJLAD violations.

Accordingly,

summary judgment in favor of Defendant Folks on any aiding and
abetting claims must be denied.
F. Punitive Damages
Finally, Defendants seek the dismissal of Plaintiff’s
requests for punitive damages.

Punitive damages are recoverable

against a public employer under NJLAD under certain

29

circumstances.

See Gares v. Willingboro Twp., 90 F.3d 720, 730

(3d Cir. 1996).

To recover punitive damages, a plaintiff must

establish: (1) “actual participation in or willful indifference
to the wrongful conduct on the part of upper management” and
(2) “proof that the offending conduct [is] ‘especially
egregious.’”

Cavuoti v. New Jersey Transit Corp., 161 N.J. 107,

113 (1999) (quoting Rendine v. Pantzer, 141 N.J. 292, 313
(1995)); accord Muzslay v. City of Ocean City, 238 F. App’x 785,
791 (3d Cir. 2007).
As the Court explained above, see supra Section III.E,
there are disputed issues of fact as to whether a member of
upper management, namely Defendant Folks, actually participated
in or was willfully indifferent to the wrongful conduct that
Plaintiff alleges.

Defendants contend that there is “no

evidence of especially egregious conduct by upper management.”
Defs. Reply Br. at 16.

While the Court sees little to support a

punitive damages award, the issue of punitive damages is
generally a question of fact for the jury.

Elmiry v. Wachovia

Corp., 2007 WL 4117260, at *16 (D.N.J. Nov. 16, 2007) (quoting
Fisher v. Volz, 496 F.2d 333, 347 (3d Cir. 1974)).

Therefore,

summary judgment is denied without prejudice as to Plaintiff’s
requests for punitive damages.

Defendants may revisit the issue

at the appropriate time at trial, if they so choose.

30

IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for

Summary Judgment is granted, in part, and denied, in part.
Summary judgment is granted as to Count Three of the Complaint.
Summary judgment is denied as to the remaining counts.

An

appropriate Order shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: February 22, 2017

31