COSIMANO v. TOWNSHIP OF UNION et al
OPINION. Signed by Chief Judge Jose L. Linares on 4/18/18. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 10-cv-5710 (JLL)
TOWNSHIP OF UNION,
LINARES, Chief District Judge
On April 4, 2018, outside the presence of the jury, Defendant Township of Union moved
for judgment as a matter of law (“JMOL”) pursuant to federal Rule of Civil Procedure 50(a). The
Court then heard oral argument on Defendant’s motion.
The Court reserved judgment on
Defendant’s motion, and Defendant renewed its motion for JMOL at the conclusion of trial, after
the jury returned a verdict against Defendant. Neither party requested supplemental briefing, and
this matter is now ripe for the Court’s adjudication. For the reasons stated below, Defendant’s
motion for JMOL is denied.
Both the parties and this Court are quite familiar with the facts of this case. Accordingly,
the Court will only discuss the facts herein to the extent necessary to resolve Defendant’s motion.
The second trial in the above-captioned matter commenced on April 2,2018. (ECF No. 370). On
April 6,2012, the jury returned a verdict finding the Township of Union liable for a violation of
New Jersey’s Law Against Discrimination (“NJLAD”) and in favor of Ms. Cosirnano in the
amount of $341,804.00. (ECF No. 377).
A court may grant a motion for JMOL under Rule 5 0(a) oniy if, after hearing the plaintiffs
case in full, the “the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). The Court must make
this assessment viewing the evidence in the light most favorable to the nonmoving party and giving
the nonmovant the advantage of every fair and reasonable inference. Wittekamp v. Gulf & W.,
Inc., 991 F.2d 1137, 1141 (3d Cir. 1993). “Although judgment as a matter of law should be granted
sparingly,” a scintilla of evidence is not enough to sustain a verdict of liability. Walter v. Holiday
Inns, Inc., 985 F.2d 1232, 123$ (3d Cir. 1993). “The question is not whether there is literally no
evidence supporting the party against whom the motion is directed but whether there is evidence
upon which the jury could properly find a verdict for that party.” Patzig v. O’Neil, 577 F.2d $41,
$46 (3d Cir. 197$). “Thus, although the Court draws all reasonable and logical inferences in the
nonmovant’s favor,” an order granting judgment as a matter of law is appropriate if, “upon review
of the record, it is apparent that the verdict is not supported by legally sufficient evidence.”
Lighting Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).
In light of the above standard, the issue before the Court is whether JMOL is appropriate
as to Defendant’s liability under NJLAD. The Court must determine whether, based upon the
evidence presented in Plaintiffs case in chief, a reasonable jury could have found that the
Defendant violated NJLAD by discriminating against Plaintiff based on her gender.
Claims under NLAD follow the burden-shifting test laid out in McDonnell Dottgtas Corp.
v. Green, 411 U.S. 792 (1973). Under that analysis, a plaintiff has the initial burden of setting
forth a prima fade case of sex discrimination. Id. at $02. To make out a prima facie case of
disparate treatment for a denial of health benefits under NJLAD, Plaintiff must demonstrate (1)
that she is a member of a protected class, and (2) that she was treated less favorably by the
Township of Union with respect to her entitlement to retiree health benefits than similarly situated
male police officers. See lovanella v. Genentech Inc., No. 09-1024 (KSH), 2010 WL 11527386,
at *7 (D.N.J. Dec. 31, 2010), aff’d 452 F. App’x $5 (3d Cir. 2011); see also Peper v. Princeton
Univ. 3d. of Trs., 77 N.J. 55, 83 (1978) (noting that the factors making out a prima fade case of
discrimination vary according to the relevance of the factors to the facts of the case and the type
of discrimination at issue).
Once Plaintiff satisfies the above prima facie showing, the burden of production (but not
persuasion) then shifts to Defendant. Specifically, a defendant in an NJLAD case is required to
articulate a legitimate, non-discriminatory reason for its adverse employment action against
Plaintiff. Peper, 77 N.J. at 83. During trial, the Court found that Defendant had satisfied this
burden of production as a matter of law. (Trial Tr. vol. 4, 29). Thus, the burden shifts back to
Plaintiff, who must show that the reason articulated by Defendant for denying her health benefits
was merely a pretext for discrimination. Peper, 77 N.J. at $3.
Here, the Township contends that Plaintiff has not come forward with any evidence that a
similarly situated male police officer was treated more favorably with regard to the receipt of
lifetime health benefits at retirement. (Trial Tr. vol. 3, 153). Defendant further argues that there
is no evidence that Plaintiffs gender played any role in how she was treated or in the decision
whether to award her those lifetime health benefits. (Trial Tr. vol. 3, 153). Defendant maintains
that Donald Garretson is a similarly situated male officer who was not awarded lifetime health
benefits at retirement, because the Township applied the terms of the collective bargaining
agreement to Mr. Garretson as it did to Ms. Cosimano. (Trial Tr. vol. 3, 154). As to Paul Bruno—
the officer that Plaintiff claims is similarly situated to Plaintiff but was awarded lifetime health
benefits at retirement—Defendant argues that Mr. Bruno is not similarly situated to Plaintiff as a
matter of law. (Trial Tr. vol. 3, 154). finally, the Township contends that even if Ms. Cosimano
established a prima fade case of gender discrimination, she did not set forth sufficient evidence as
a matter of law by which a reasonable jury could determine that the Township’s stated reason for
denying her lifetime health benefits was a pretext. (Trial Tr. vol 3, 15$).
A. Ms. Cosimano’s Prima Fade Case of Gender Discrimination
The Court finds that a reasonable jury had a sufficient basis to determine that Ms. Cosimano
established a prima facie case of gender discrimination under NJLAD.
As to Defendant’s
contention that Mr. Baino was not similarly situated to Plaintiff, this Court has twice rejected this
very same argument and sees no reason to depart from its prior reasoning here. In this Court’s
April 17, 2017 Opinion resolving the Township’s motion to exclude evidence relating to Paul
Bruno, the Court found:
that the most critical points of comparison are (1) whether the retired male officer
was subject to the same relevant language of the collective bargaining agreement
as plaintiff, and (2) whether the male was not entitled to benefits but nevertheless
received them. The Court finds that the existence of identical contract language
eliminates a significant amount of the subjective decision-making ofien at issue in
cases involving employment decisions, such as, for example, decisions to demote
employees based on a myriad of underlying considerations that would go into that
type of decision-making.
(ECF No. 295 at 2). In its August 31, 2017 Opinion addressing Defendant’s motion for JMOL at
the end of the first trial in this matter, the Court noted that “the Court [had already] rejected
that Paul Bruno was not similarly situated because he was subject to a
different decision-maker than Ms. Cosimano and because the eight-year gap between Pactl Batno’s
and Ms. Cosimano’s retirement renders the Bruno retirement irrelevant.” (ECF No. 337 at 6).
Defendant raises the very same argument in the instant motion. (Trial Tr. vol. 3, 154—55).
However, in addition to the two factors discussed above, Defendant now argues that there is a third
factor that renders Paul Bruno dissimilar to Ms. Cosimano: that Kathleen Green, the decisionmaker, did not know of Paul Bruno, the relevant comparator. (Trial Tr. vol. 3, 155—56). However,
the cases Defendant cites in support of the application of that factor specifically discuss the need
for a known comparator in the context of a disciplinary employment action. E.g., Landry v.
Lincare, Inc., 579 F. App’x 734, 737 (11th Cir. 2014); Glass v. Armstrong Utils., No. 13-1 173,
2014 WL 7015966, at *7 (W.D. Pa. Dec. 11, 2014).
Whether or not two people are similarly situated “requires a court to undertake a factintensive inquiry on a case-by-case basis.” Monaco v. Am. Gen. Assttrance Co., 359 F.3d 296, 305
(3d Cir. 2004). As mentioned above, the Court finds that the existence of the same contract
language in the collective bargaining agreements for Mr. Bnino and Ms. Cosimano renders moot
the many subjective determinations that might be aided by the decision-maker’s knowledge of a
comparator. As such, the Court does not find that a known comparator is a necessary factor in the
similarly situated analysis here and sees no reason to alter its prior determination that Mr. Bruno
is similarly situated to Ms. Cosirnano. Because Mr. Bnmo is similarly situated to Ms. Cosimano,
the Court finds that a reasonable jury could determine that Plaintiff established a prima facie case
of employment discrimination. The parties have stipulated that Ms. Cosirnano is a member of a
protected class, and the evidence shows that Mr. Bruno, a similarly situated male officer, received
lifetime health benefits that he was not entitled to under the collective bargaining agreement upon
retirement, whereas Ms. Cosimano did not. (Trial Tr. vol. 2, 152—53; vol. 3, 74—75).
B. Proof of Pretext
Defendant next argues that Plaintiff has set forth no evidence that its stated reason for
terminating Ms. Cosirnano was a pretext for gender discrimination.
In making this point,
Defendant argues that: (1) Kathleen Green, the Human Resources director who denied Ms.
Cosimano her benefits, made the correct decision under the collective bargaining agreement; (2)
Mr. Garretson, a male officer, was also denied lifetime health benefits at the time of retirement;
(3) the fact that Ms. Green was female undercuts any inference that discrimination was the real
reason for denying Ms. Cosirnano benefits; and (4) one comparator is not sufficient at the pretext
phase under Ray v. Pinnacle Health Hospitals, 416 F. App’x 157 (3d Cir. 2010). (Trial Tr. vol. 3,
Notwithstanding the fact that Pinnacle Health Hospitals is not a precedential opinion from
the Third Circuit, it does rely on Simpson v. Kay Jewelers, 142 F.3d 639, 645—46 (3d Cir. 1998),
for the proposition that one comparator is not enough at the pretext stage of the burden shifting
analysis. Pinnacle Health Hosps., 416 F. App’x at 164. Simpson came before the Third Circuit
on appeal from the grant of summary judgment for the defendant in an Age Discrimination in
Employment Act case. 142 F.3d at 642. The Third Circuit wrote that “[t]his is not to say that the
evidence of the more favorable treatment of a single member of a non-protected group is never
relevant, but rather that the evidence can not be viewed in a vacuum.” Id. at 645. The Court
further explained that an inference of discrimination “anytime a single member of a non-protected
group was allegedly treated more favorably than one member of the protected group” is “not
necessarily” acceptable at the pretext stage, “where the factual inquiry into the alleged
discriminatory motives of the employer” rises to a new level of specificity. Id. at 646.
In Simpson, the plaintiff relied on one comparator where there were 34 members of the
non-protected class who were similarly situated to the plaintiff and treated the same. Id. Simpson
clearly left open the possibility that one comparator might be sufficient in different scenarios, as
the Third Circuit qualified its holding by stating that one comparator was not “not necessarily”
sufficient at the pretext stage. The specific factual inquiry espoused as necessary at the pretext
stage in Simpson shows that this case is one of those scenarios. Here, there was no large field of
potential comparators from the non-protected class. There were two similarly situated male police
officers in this case. Plaintiff points to Mr. Baino, who received lifetime health benefits at the
time of his retirement, and Defendant points to Mr. Garretson, who did not receive benefits. Thus,
the Court does not view this case as a scenario where one comparator is deficient at the pretext
stage as a matter of law.
While Defendant may make valid points regarding Ms. Green’s decision-making.
including her decision to deny Mr. GalTetson lifetime health benefits at retirement, it is Plaintiffs
burden to prove that Defendant’s stated reason for denying Ms. Cosirnano lifetime health benefits
was a pretext. Plaintiff has done so. Plaintiff has put forward sufficient evidence such that a
reasonable jury could find that Defendant’s reliance on the collective bargaining agreement was
pretextual. Plaintiff has put forward evidence that Paul Bruno, a similarly situated male police
officer, received lifetime health benefits despite the fact that he was not entitled to them under the
collective bargaining agreement. (Trial Tr. vol. 2, 152—53; vol. 3, 74—75). Plaintiff also introduced
into evidence an email chain featuring Ms. Green, Captain Landolfi, and Director Zieser in which
they discuss Officer Nicholas Ardito’s entitlement to benefits. (Ex. P-70). Giving every fair and
reasonable inference to Plaintiff, a reasonable jury could conclude that, based on this email, the
Township applied a different standard to Ms. Cosimano.
Furthermore, it is within the jury’s province to assess the credibility of the witnesses that
testified in this case.
The jury heard testimony from Ms. Green, Director Zieser, and Ms.
Cosirnano regarding the interactions that took place surrounding Ms. Cosirnano’s retirement and
her entitlement to lifetime health benefits. Based on the testimony that each witness gave on direct
and on cross-examination, a reasonable jury could conclude that such testimony supported
Plaintiffs dali-n that Defendant’s stated reason for denying Ms. Cosimano lifetime health benefits
was a pretext. In summary, viewing the evidence in the light most favorable to Plaintiff, she has
presented more than a mere scintilla of evidence on which a reasonable jury could have found in
Plaintiffs favor with respect to her NJLAD claim.
For the reasons stated herein, Defendant’s renewed motion for JMOL is DENIED. An
appropriate Order accompanies this Opinion.
SE L. LINARES
i//Chief Judge, United States District Court
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