CLARK v. CZECH et al
OPINION file. Signed by Judge Freda L. Wolfson on 11/17/2017. (km)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.:12-7763(FLW)
STATE OF NEW JERSEY,
Department of Health,
Office of Tobacco Control,
Nutrition and Fitness (formerly
Office of Tobacco Control),
WOLFSON, United States District Judge:
Presently before the Court is a Motion for Summary Judgment filed by Defendants
State of New Jersey, New Jersey Department of Health (the “DOH”), and Office of
Tobacco Control, Nutrition and Fitness (the “OTC”) (collectively, the “Defendants”). The
instant action arises out of Pro Se Plaintiff Darren Clark’s (“Plaintiff” or “Clark”)
allegations that Defendants violated the Equal Pay Act of 1963, 29 U.S.C. § 206(d), by
requiring him to perform the same duties as his female co-workers, but with a lower
compensation and a lesser job title. On this motion, Defendants argue that summary
judgment is proper because: (1) Plaintiff’s claim is time-barred, and (2) Plaintiff has failed
to make a prima facie case under the Equal Pay Act, and even if Plaintiff has made such a
showing, Defendants have a proffered an affirmative defense that clearly explains
Plaintiff’s wage disparity. For the reasons set forth below, Defendants’ Motion for
Summary Judgment is GRANTED.
Factual Background 1
Clark is a New Jersey State employee, who, in May 2000, began his employment
with the Department of Health and Senior Services (“DHSS”) under the title, Public Health
Representative in Training within the Division of Addiction Services. Statement of
Uncontested Material Facts on Def.’s Mot. for Summary Judgment, at ¶ 12. Over the next
nine years, Clark received three promotions. Id. at ¶ 13. Clark was promoted from Public
Health Representative in Training to a Public Health Representative 3 in 2000, to a Public
Health Representative 2 in 2001, to a Public Health Representative 1 in 2003 or 2004. Id.
at ¶ 13.
Thereafter, on January 12, 2009, DHSS was reorganized and Clark’s role changed
to that of a grant monitor in the Comprehensive Tobacco Control Program (“CTCP”), but
his title remained the same; he remained a Public Health Representative 1. Id. at ¶¶ 13,
18-19. However, his new duties included monitoring grantees to ensure their compliance
The Court treats Defendants’ version of facts as undisputed, on this motion for
summary judgment, because Plaintiff failed to properly dispute Defendants’ Statement of
Uncontested Material Facts. See Hernandez v. United States, 608 F. App’x 105, 109–10
(3d Cir. 2015) (explaining that the District court did not err in treating the moving party’s
version of the facts as undisputed when deciding its motion for summary judgment because
the nonmoving party failed to properly place those facts in dispute, pursuant to local Rule
56.1, by filing a statement of disputed facts or submitting evidence with his response to the
summary judgment motion); Stringer v. The Pittsburgh Police, 408 F. App’x 578, 580–81
(3d Cir. 2011) (“[T]he District Court deemed defendants’ statement of facts undisputed
because [Plaintiff], in his own statement, did not admit or deny defendants’ averments on
a paragraph-by-paragraph basis or cite evidence of record in support of his own averments
as he was required to do . . . . We find no reversible error in this regard.”). Instead, Plaintiff,
here, submitted a letter in opposition with no evidence to support his conclusory assertions
and opinions that Defendants’ alleged conduct was discriminatory. Accordingly, the
following recitation of the facts is taken from Defendants’ Statement of Uncontested
Material Facts on Defendants’ Motion for Summary Judgment.
with grant requirements. Id. at ¶ 20. The reorganization resulted in Clark being placed in
the Community Partnership sub-group in CTCP, where he worked with Irene Enarusai
(“Enarusai”) and Carla Carter (“Carter”), both of whom were hired under the title of
Community Service Officer 1 (“CSO 1”) and continued to work under the CSO 1 title after
the reorganization. Id. at ¶¶ 22-23. Clark, Enarusai, and Carter were supervised by
LorieAnn Wilkerson-LeConte (“Wilkerson-LeConte”). Id. at ¶ 21.
Another co-worker, Felicia Walton (“Walton”), worked in CPTC in a different subgroup as a Program Officer for the Reaching Everyone by Exposing Lies (“REBEL”)
program. Id. at ¶¶ 25-26. Walton was supervised by Janis Mayer-Obermeier (“MayerObermeier”). Walton was hired, in 2006 or 2007, as a Community Service Officer 3 (“CSO
3”). Id. at ¶ 29. In 2009, Walton filed for a “desk audit” to have her title reclassified. Id.
at ¶ 30. After which, Walton was reclassified as a CSO 1, the same title that Enarusai and
On February 27, 2009, Clark requested a desk audit, through a Position
Classification Questionnaire (“PCQ”), as required by Title 4A of the New Jersey
Administrative Code, seeking to be reclassified from a Public Health Representative 1 to a
CSO 1 (the “First PCQ”). Id. at ¶ 35. The cover letter accompanying Clark’s First PCQ
indicated that Wilkerson-LeConte did not support his request to be reclassified as a CSO
1; rather, she found his Public Health Representative 1 title appropriate. Id. at ¶¶ 36-41.
On May 27, 2009, a representative from the New Jersey Civil Service Commission
(“CSC”) interviewed Clark and Wilkerson-LeConte regarding Clark’s First PCQ. During
the interview, Clark was advised that his review would be based on his specific duties, not
a comparison to his co-workers. Id. at ¶ 44. Clark, then, described his duties and provided
examples. Id. at ¶ 45. Following the interview, Clark was informed that, based on his
duties, he could be demoted to a title that more properly aligned with his duties. Id. at ¶
46. When asked if he wanted to continue, Clark indicated that he did. Id. at ¶ 47.
On June 3, 2009, at the CSC’s request, Wilkerson-LeConte wrote a memorandum,
wherein she provided more details on Clark’s duties and his time spent on those duties, and
she ultimately expressed her disagreements with Clark’s PCQ. Id. at ¶¶ 48-51. For the
most part, Clark agreed with Wilkerson-LeConte’s assessment of his duties and how much
time he spent on those duties. Id. at ¶¶ 51-52, 64-66. However, Clark disagreed with the
amount of time he spent offering “technical assistance,” id. at ¶ 53, ¶ 56-57, and reviewing
the reports related to the REBEL program—a program that Wilkerson-LeConte did not
supervise, id. at ¶ 56-58, but was instead overseen by Mayer-Obermeier, id. at ¶¶ 69, 71.
According to Clark, Mayer-Obermeier served as his “secondary supervisor.” Id. at ¶ 72.
Notably, Clark omitted from his PCQ his work regarding the REBEL program and that
Mayer-Obermeier was his secondary supervisor, which Clark admits, “probably should
have” been included. Id. at ¶¶ 59, 72-73.
Wilkerson-LeConte explained that her assessment was founded on Clark’s actual
duties that he was expected to perform, based on his performance evaluation from the
previous year, which Clark signed on April 24, 2009. Id. at ¶¶ 74-75. By signing his
performance evaluation, Clark acknowledged and agreed with his duties included in the
evaluation. Id. at ¶¶ 76-77. However, during the desk audit, Clark claimed that the
performance evaluation was inaccurate because the scope of his duties had changed. 2 Id.
The Court notes that Clark signed his performance evaluation on April 24, 2009,
two months after he had submitted his PCQ on February 27, 2009. Id. at ¶ 79.
at ¶¶ 76-78. In the section of the evaluation provided to express a disagreement, Clark did
not indicate that he disagreed with his performance evaluation. Id. at ¶¶ 80-82.
On December 3, 2009, the CSC’s Division of State and Local Operations (“SLO”)
issued its determination based on its earlier desk audit (the “2009 Determination”), finding
that Clark did not perform the duties required of a CSO 1 or a Public Health Representative
1. 3 Id. at ¶¶ 83, 93. Specifically, the determination explained that Clark did not “organize,
coordinate, supervise and evaluate all phase’s . . . of community treatment, rehabilitation,
and prevention education programs for addiction,” as required of a CSO 1. Id. at ¶ 84.
Rather, the determination described Clark’s duties as “significantly descriptive of duties
assigned to the specification for the title Community Service Officer 2,” (“CSO 2”), and
classified Clark as a CSO 2, with an effective date of January 2, 2010. Id. at ¶¶ 96-97.
This change in classification had “[t]he net effect of . . . a reduction of [his] salary and an
elimination of yearly salary increment steps.” Clark v. Czech (Clark I), No. 12-7763, 2015
WL 1117296, at *1 (D.N.J. Mar. 11, 2015).
On December 15, 2009, Clark appealed the 2009 Determination to the CSC’s
Division of Merit System Practices and Labor Relations (the “2009 Appeal”). Id. at ¶ 99.
Clark argued on appeal that his responsibilities were similar to Walton’s responsibilities
and that because she was reclassified as a CSO 1, he, too, should have been reclassified. 4
The Court notes that throughout the Statement of Uncontested Material Facts, the
Public Health Representative title is used interchangeably with “Personnel Health
Representative.” As a matter of consistency in this Opinion, the Court will refer to the
position as Public Health Representative.
Clark, however, has indicated that he knows very little about Walton’s 2009 desk
audit. Id. at ¶¶ 31-34. Clark does not know (1) when Walton’s desk audit was performed,
id. at ¶ 32, (2) what was discussed during the desk audit, id. at ¶ 33, (3) whether Walton
Id. at ¶ 100. Additionally, Clark maintained that, under the Equal Pay Act, he should be
reclassified as a CSO 1. Id. at ¶ 102.
On January 7, 2010, DHSS submitted a revised PCQ on Clark’s behalf, with a cover
letter supporting Clark’s request to allow him to retain his Public Health Representative 1
title. Id. at ¶¶ 103-05. DHSS also indicated that it had assigned new duties to Clark
appropriate with the Public Health Representative 1 title. Id. at ¶ 106. Clark and
Wilkerson-LeConte signed the revised PCQ. Id. at ¶¶ 107-08.
On April 5, 2010, 5 in response to the revised PCQ, the SLO determined that Clark’s
new duties were insufficient to warrant a different classification and that he would
nevertheless be classified as a CSO 2, retroactively, effective January 2, 2010. Id. at ¶¶
109-10. DHSS, in turn, responded with another letter on Clark’s behalf on June 17, 2010,
“strongly oppos[ing] the retroactive demotion penalty” and requesting an effective date of
June 19, 2010. Id. at ¶¶ 111-12. On June 23, 2010, the SLO “corrected” its determination
(the “Corrected Determination”), changing the effective date for Clark’s reclassification to
July 3, 2010, but still finding Clark’s duties commensurate with a CSO 2. Id. at ¶¶ 11315.
Clark appealed the Corrected Determination on July 9, 2010. Id. at ¶ 117. Again,
Clark alleged that Walton was reclassified as a CSO 1 and that their duties were “virtually
the same.” Id. Clark’s appeal also referenced the Equal Pay Act. Id. at ¶ 118.
received a reclassification letter, id. at ¶ 34, or (4) what may have been included in Walton’s
reclassification letter, id.
It is not clear from the Statement of Uncontested Material Facts whether this letter
was dated April 4, 2010 or April 5, 2010. Id. at ¶¶ 109-11.
On July 23, 2010, the CSC issued its Final Administrative Action (the “2010
FAA”), finding that Clark was properly classified as a CSO 2 based on his duties as
outlined in the revised PCQ and his appeal. Id. at ¶¶ 119-22. The 2010 FAA also
specifically rejected Clark’s Equal Pay Act claim, citing to state administrative decisions
that purportedly addressed similar claims that were denied. Id. at ¶ 126. Lastly, the 2010
FAA addressed Clark’s claims regarding Walton, finding that Walton performed different
duties than Clark. Id. at ¶ 130. Clark was informed that any review of the 2010 FAA was
to be pursued in a judicial forum; Clark, however, chose not to appeal further. Id. at ¶¶
On January 19, 2011, as a result of organizational restructuring, which, Clark
claimed altered his duties in the OTC,6 Clark submitted a second PCQ to have his position
reclassified as a CSO 1 (the “Second PCQ”). Id. at ¶¶ 135-36. Unlike Clark’s First PCQ,
this time, Clark’s supervisor (who had changed to Mayer-Obermeier during the
restructuring) supported his request. Id. at ¶¶ 137-39.
On October 25, 2011, a desk audit was conducted with Clark, and MayerObermeier was interviewed. Id. at ¶¶ 144-45. At that time, Mayer-Obermeier indicated
that Clark’s current title of CSO 2 was neither appropriate for his duties nor appropriate
based on the OTC’s goals. Id. at ¶ 152.
On December 9, 2011, the SLO issued its determination (the “2011
Determination”), finding that Clark was properly classified as a CSO 2. Id. at ¶ 153. On
December 23, 2011, Clark filed an appeal of the 2011 Determination (the “2011 Appeal”),
As a result of this organizational restructuring, the CTCP became the OTC.
claiming that Walton, Carter, and Enarusai worked under the CSO 1 title and that his duties
were “substantially equal to” and “exceeded” their duties. Id. at ¶¶ 161-62. Again, Clark
referred to the Equal Pay Act in his appeal. Id. at ¶ 163.
On August 20, 2012, the CSC issued its Final Administrative Action regarding the
2011 Appeal (the “2012 FAA”). Id. at ¶ 164. In the 2012 FAA, the CSC recounted Clark’s
Second PCQ and reviewed the 2011 Determination. Id. at ¶¶ 165, 171. Clark’s duties were
examined—through a “job analysis”—and compared to the duties of a CSO 1, CSO 2, and
Program Development Specialist 1. 7 Id. at ¶ 167. Again, the CSC determined that Clark
was properly classified as a CSO 2, notwithstanding his additional duties. Id. at ¶¶ 166,
169, 171. The CSC also rejected Clark’s Equal Pay Act claim and cited state administrative
decisions as its basis for doing so. Id. at ¶ 175. Once more, Clark was informed that review
of the 2012 FAA must be pursued in a judicial forum. Id. at ¶ 176. But, Clark chose not
to appeal the CSC’s 2012 FAA. Id. at ¶¶ 176-77.
Procedural History 8
On December 20, 2012, Plaintiff filed his initial complaint, alleging employment
discrimination against Robert Czech, acting Chairperson of the CSC (“Czech”), Henry
Maurer, acting Director of the CSC Merit System Practices & Labor Relations Written
Record Appeals Unit (“Maurer”), Joe Hill, Jr., acting Assistant Director of the CSC
During the October 25, 2011 desk audit, Clark mentioned that his duties could
match the duties of a Program Development Specialist 1. Id. at ¶ 159.
Unless otherwise noted, the following procedural history is taken from Clark I,
2015 WL 1117296; Clark v. State of New Jersey Dep’t of Health Office of Tobacco Control
(Clark II), No. 12-7763, 2015 WL 8160579 (D.N.J. Dec. 7, 2015); and Clark v. State of
New Jersey Dep’t of Health (Clark III), No. 12-7763, 2016 WL 4265724, at *1 (D.N.J.
Aug. 12, 2016).
Division of State and Local Government Operations (“Hill”), and the OTC in violation of
the Equal Pay Act, 29 U.S.C. § 206 et seq. After discovery, Czech, Maurer, Hill, and the
OTC moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c), arguing that (1) Plaintiff failed to state a claim under the Equal Pay Act; (2) Czech,
Maurer, Hill, and the OTC are immune from suit pursuant to the Eleventh Amendment of
the U.S. Constitution; (3) the Czech, Maurer, and Hill are entitled to qualified immunity
and there is no individual liability for public officials under the Equal Pay Act; and (4)
there was a legitimate business reason for the CSC’s decision to not reclassify Plaintiff
and/or such a merit-based decision is exempt from the Equal Pay Act. Plaintiff opposed
Subsequently, on March 10, 2015, the Court held (1) Plaintiff sufficiently stated a
prima facie case under the Equal Pay Act against the OTC, and (2) Congress had abrogated
New Jersey’s immunity from suit with respect to the Equal Pay Act, and as such, Plaintiff’s
claim was not barred on sovereign immunity grounds. However, due to a lack of specific
allegations against Czech, Maurer, and Hill, the Court granted Plaintiff leave to file an
Amended Complaint to clarify the capacity in which he wished to bring suit against Czech,
Maurer, and Hill.
On March 31, 2015, pursuant to the Court’s Opinion, Plaintiff filed an Amended
Complaint against the OTC and CSC. Notably, Plaintiff omitted Czech, Maurer, and Hill
from the Amended Complaint, and thereby, these individuals were dismissed from the case.
In his Amended Complaint, Plaintiff again alleged a violation of the Equal Pay Act. On
May 26, 2015, the OTC and CSC moved to dismiss Plaintiff’s Amended Complaint for
failure to state a claim, failure to exhaust administrative remedies, as well as issue
preclusion and collateral estoppel. Plaintiff opposed the motion.
Thereafter, on December 7, 2015, the Court held that (1) Plaintiff was not afforded
a full and fair opportunity to litigate his claims, so issue preclusion and collateral estoppel
did not prevent Plaintiff from bringing his Equal Pay Act claim; (2) Plaintiff’s failure to
appeal the CSC’s decision in state court did not prevent him from bringing his claims under
the Equal Pay Act in federal court; (3) Plaintiff failed to allege a cause of action against
the OTC; and (4) the CSC was not within the definition of an employer under the Equal
Pay Act. Accordingly, the Court granted the motion to dismiss filed by the OTC and CSC,
and dismissed Plaintiff’s claims. However, the Court gave Plaintiff the option to amend
his Amended Complaint to cure its pleading deficiencies and reopen the case. In so doing,
the Court tolled the statute of limitations on Plaintiff’s claims against the OTC and CSC.
On January 4, 2016, Plaintiff filed the Second Amended Complaint bringing an
employment sex discrimination suit against Defendants in the instant matter, i.e., the DOH
and the OTC, alleging a violation of the Equal Pay Act and the Fair Labor Standards Act
(the “FLSA”), 29 U.S.C. § 201 et seq. The DOH and OTC moved to dismiss Plaintiff’s
Second Amended Complaint for failure to state a claim and Eleventh Amendment
sovereign immunity, as well for summary judgment, pursuant to Federal Rule of Civil
Procedure 56, for the same reasons. Plaintiff opposed both motions.
On August 12, 2016, the Court granted Defendants’ motion to dismiss as to
Plaintiff’s FLSA claim and denied Defendants’ motion to dismiss as to Plaintiff’s Equal
Pay Act claim.
Specifically, the Court found that Eleventh Amendment sovereign
immunity barred Plaintiff’s FLSA claim. As to Plaintiff’s Equal Pay Act claim, the Court
found that Defendants’ motion to dismiss was premature because factual determinations
were necessary to determine the merits of Defendants’ affirmative defense under the Equal
Pay Act 9 and therefore the Court denied Defendants’ motion to dismiss. With respect to
Defendants’ “motion to dismiss” under Rule 56, the federal rule governing motions for
summary judgment, the Court denied the motion without prejudice for failure to adhere to
Local Rule 56.1(a)—failure to submit a motion for summary judgment accompanied by a
statement of material facts not in dispute.
Presently before the Court is Defendants’ renewed motion for summary judgment,
under Federal Rule of Civil Procedure 56, on Plaintiff’s Equal Pay Act claim, the only
remaining cause of action in the case. And, Defendants have now submitted a Statement
of Uncontested Material Facts in accordance with Local Rule 56.1(a). In response, Plaintiff
has submitted a letter “affidavit/affirmation in opposition to [Defendants’] motion”
(“Affidavit”). Pl.’s Aff./Affirmation in Opp. to Def.’s Mot. for Summ. J., at p. 2, ¶ 1. The
highlights of Plaintiff’s fifteen-page letter Affidavit are:
“This is a flawed system as it relates to job duties evaluation.” Id. at ¶ 19.
“If Janis Mayer was interviewed she would have agreed with the fact that
my [sic] position was substantially equal to the duties of Felicia Walton as
As discussed more fully below, claims based upon the Equal Pay Act follow a twostep burden-shifting paradigm: first plaintiff must establish a prima facie case under the
Act, Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000) (citing E.E.O.C. v. Delaware
Dep’t. of Health and Soc. Services, 865 F.2d 1408, 1413–14 (3d Cir. 1989), and second,
the employer has the burden of demonstrating the applicability of one of the four
affirmative defenses identified in the Act. See 29 U.S.C. § 206(d)(1); see
also Stanziale, 200 F.3d at 107. To prevail on an affirmative defense, an employer must
submit evidence to explain the employer’s proffered reasons for the alleged wage disparity.
Stanziale, 200 F.3d at 107–08.
she stated to me in the fall of 2010 when she became my immediate
supervisor.” Id. at ¶ 21.
“The Department of Health at the time was aware of this flawed dual
supervisor system and only allowed for the support of female coworker
Felicia Walton and failed to support my audit despite knowing that my
duties were substantially equal as confirmed by Felicia’s primary supervisor
and my secondary supervisor Janis Mayer.” Id. at ¶ 22.
“The facts are Felicia did not supervise anyone. . . . Felic[i]a also did not
coordinate the REBEL program.” Id. at ¶ 24.
“The Department of Health [had a] flawed dual supervisor system at the
time, and the closed Civil Service process did not afford me the opportunity
to compare [my] duties . . . to female coworkers.” Id. at ¶ 29.
“These facts can only be determined by a fair trial not a closed process that
makes determination[s] based on one supervisor’s interview in which I have
no idea what was stated nor have the opportunity to dispute any
inconsistencies in such statements.” Id. at ¶ 31.
“Thus, the . . . Department of Health . . . willingly demoted me on July 10,
2010[,] despite [my] contention that one of [my] supervisors[,] Janis
Mayer[,] disagreed with the conclusion as stated in the fall of 2010 and I
[am] the only male [that] was adversely affected as [a] result of the flawed
dual supervisor system and the closed Civil Service System that does not
allow for a fair determination of duties in respect to female coworkers.” Id.
“To date I have not received any evidence that Felicia Walton, Carla
Carter[,] or Irene Enarusai supervised anyone or coordinate any program.”
Id. at ¶ 118.
In sum, Plaintiff’s letter Affidavit did not include admissible evidence to dispute
material facts contained in Defendants’ Statement of Uncontested Material Facts. Indeed,
there was no evidence supporting his assertion of female co-workers’ duties, or any
evidence regarding deviations from the prescribed reclassification process.
Plaintiff failed to properly dispute any of the facts Defendants submitted as required by
local Rule 56.1. See Hernandez, 608 F. App’x at 109–10; Stringer, 408 F. App’x at 580–
Rather, Plaintiff’s letter affidavit included nothing more than his opinions and
conclusory assertions regarding the process that New Jersey prescribes, under Title 4A of
the New Jersey Administrative Code, for state service employees seeking reclassification.
Summary judgment is appropriate “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.”
Fed. R. Civ. P. 56(a); see also Garges v. People’s Light & Theatre Co., 529 F. App’x 156,
160 (3d Cir. 2013), judgment entered, No. 13-1160, 2013 WL 3455818 (3d Cir. June 28,
2013) (“Summary judgment is proper where there is no genuine issue of material fact to be
resolved and the moving party is entitled to judgment as a matter of law” (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986))). If a fact is capable of affecting the substantive
outcome of the litigation, it is “material.” See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute is “genuine” if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007)
(“Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial’” (internal citations omitted));
Anderson, 477 U.S. at 248. In deciding a motion for summary judgment, a court must draw
all inferences from the underlying facts in the light most favorable to the party opposing
the motion. Garges, 529 F. App’x at 160. The party moving for summary judgment bears
the burden of establishing that no genuine issue of material fact remains. See Celotex
Corp., 477 U.S. at 322–23.
“Once the moving party has properly supported its motion for summary judgment,
the nonmoving party must ‘do more than simply show there is some metaphysical doubt
as to the material facts.’” Garges, 529 F. App’x at 160 (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)). Indeed, the party opposing the motion may
not rest on mere allegations or denials in his pleading, see id. at 160; rather, the nonmoving
party must present actual evidence that creates a genuine issue as to a material fact for trial,
Anderson, 477 U.S. at 248–49; see also Fed. R. Civ. P. 56(c)(1)(A) (explaining that in
order for the party opposing summary judgment to show “that a fact cannot be or is
genuinely disputed,” he must cite “to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” to support his factual position). “[W]ith respect
to an issue on which the nonmoving party bears the burden of proof . . . the burden on the
moving party may be discharged by ‘showing’—that is, pointing out to the district court—
that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477
U.S. at 325. “[U]nsupported allegations . . . and pleadings are insufficient to repel summary
judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). After
discovery, if the nonmoving party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial, . . . there can be ‘no genuine issue of material fact,’ since a complete
failure of proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.
1992) (quoting Celotex, 477 U.S. at 322–23); see also Giles v. Kearney, 571 F.3d 318, 322
(3d Cir. 2009) (“The mere existence of some evidence in support of the nonmovant is
insufficient to deny a motion for summary judgment; enough evidence must exist to enable
a jury to reasonably find for the nonmovant on the issue” (citing Anderson, 477 U.S. at
249)). Importantly, in circumstances where the nonmoving party is pro se, such as here,
“the court has an obligation to construe the complaint liberally.” Giles, 571 F.3d at 322
(citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Gibbs v. Roman, 116 F.3d 83, 86
n.6 (3d Cir. 1997)).
Equal Pay Act
“The Equal Pay Act prohibits employers from discriminating based on sex ‘by
paying wages to employees . . . at a rate less than the rate at which [the employer] pays
wages to employees of the opposite sex . . . for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are performed under similar
working conditions . . . .” Fairclough v. Wawa, Inc., 412 F. App’x 465, 468–69 (3d Cir.
2010) (quoting 29 U.S.C. § 206(d)(1)). “[C]laims based upon the Equal Pay Act . . . follow
a two-step burden-shifting paradigm.” Stanziale, 200 F.3d at 107 (citations omitted). First,
the plaintiff must establish a prima facie “case by demonstrating that employees of the
opposite sex were paid differently for performing ‘equal work’—work of substantially
equal skill, effort and responsibility, under similar working conditions.” Id. at 107 (citing
Delaware Dept. of Health and Soc. Services, 865 F.2d at 1413–14). Once the plaintiff
makes out a prima facie case, the burden of persuasion shifts to the employer to
demonstrate one of the four affirmative defenses enumerated in the Act:
a bona fide seniority system,
a merit system,
a system which measures earnings by quantity or quality of
a differential based on any factor other than sex.
Id. at 107 (citing 29 U.S.C. § 206(d)(1)). “[T]o prevail at the summary judgment stage, the
employer must prove at least one affirmative defense ‘so clearly that no rational jury could
find to the contrary.’” Id. at 107 (quoting Delaware Dept. of Health and Soc. Services, 865
F.2d at 1414). In so doing, an employer must “submit evidence from which a reasonable
factfinder could conclude not merely that the employer’s proffered reasons could explain
the wage disparity, but that the proffered reasons do in fact explain the wage disparity.” Id.
Defendants in this case argue that summary judgment is appropriate for two
primary reasons. First, Defendants contend that Plaintiff’s Equal Pay Act claim is timebarred. 10 Second, Defendants argue that Plaintiff has failed to make a prima facie case
In regard to Defendants’ first argument, the Court notes that “[v]iolations of the
Equal Pay Act are subject to a two-year, three-year if allegedly willful, statute of
limitations.” Bullock v. City of Philadelphia, 250 F. App’x 512, 514 (3d Cir. 2007) (citing
29 U.S.C. § 255(a)). A determination of the accrual of Plaintiff’s cause of action is based
on whether the alleged discrimination constitutes a “discrete” act or a “continuing
under the Equal Pay Act, and, even if Plaintiff has made a prima facie case, Defendants
can demonstrate an affirmative defense that clearly explains Plaintiff’s wage disparity.
In his Complaint, Plaintiff alleges that three of his female co-workers, Walton,
Enarusai, and Carter, performed equal duties to him. All three of these co-workers were,
at the time Plaintiff filed his Complaint, classified as CSO 1 and paid more than Plaintiff,
who was classified as CSO 2. Plaintiff further alleges that, after a second reorganization
within the DOH, he took over the same grant duties as the same three female co-workers,
and even acted in a higher capacity than his female co-workers in creating program grant
agreements and coordinating the majority of the functions of the Tobacco Age of Sale
program. Despite alleging that his duties were, at the least, equal to his female co-workers,
Plaintiff has remained classified as a CSO 2. Plaintiff alleges that his initial reclassification
as a CSO 2, and continued classification in that role, has resulted in a reduction in salary
violation.” See id. “Under the continuing violation theory, discriminatory acts that are not
individually actionable may survive the limitations time bar.” Id. (emphasis added) (citing
O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)). Whereas, “discrete acts
that are individually actionable must be raised within the applicable limitations period,
even if they relate to claims otherwise raised in a timely complaint.” Id. (citing O’Connor,
440 F.3d at 127; see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).
Here, Defendants argue that Plaintiff’s reclassification was not willful and was a
“discrete act,” which is individually actionable only when it is raised within the two-year
limitations period. O’Connor, 440 F.3d at 127. In that regard, because Plaintiff was
effectively demoted on July 3, 2010, and Plaintiff filed his initial Complaint on December
20, 2012—more than two years from the reclassification—Defendants argue that his Equal
Pay Act claim is time-barred. However, “[i]n this Circuit, sex based discriminatory wage
payments constitute a ‘continuing violation’ of the Equal Pay Act, [and] the timeliness of
an Equal Pay Act claim is measured from the date of an aggrieved employee’s last
paycheck.” White v. Cleary, No. 09-4324, 2012 WL 924338, at *12 (D.N.J. Mar. 19,
2012), aff’d, 513 F. App’x 224 (3d Cir. 2013) (citing Carenas v. Massey, 269 F.3d 251,
257 (3d Cir. 2001); Miller v. Beneficial Mgmt. Corp., 977 F.2d 834, 843–44 (3d Cir.
1992)). Moreover, Plaintiff argues that he was aggrieved by the reclassifications process,
which did not conclude until the 2012 FAA, which was issued on August 20, 2012.
Accordingly, I find that Plaintiff’s action is not time-barred, but instead, his claims are
subject to dismissal on the merits.
and certain salary increments. Thus, Plaintiff contends that Defendants committed a
violation of the Equal Pay Act.
While these allegations were sufficient to survive Defendants’ motion to dismiss,
see Clark I, 2015 WL 1117296, at *4, the bar for summary judgment is higher due to the
opportunity for discovery. Compare Fed. R. Civ. P. 12(b)(6), with Fed. R. Civ. P. 56; e.g.,
Atl. City Assocs. LLC v. Carter & Burgess Consultants, Inc., No.05-3227, 2007 WL
2705149, at *4 (D.N.J. Sept. 14, 2007) (explaining that the standard for a motion to dismiss
is more lenient than the standard for summary judgment); Seidman v. Minnesota Mut. Life
Ins. Co., 40 F. Supp. 2d 590, 596 (E.D. Pa. 1997) (finding that although the plaintiff’s
allegation was sufficient for “the more lenient requirements of a motion to dismiss,”
plaintiff was required to present evidence to support the same allegation to survive a motion
for summary judgment).
To establish a prima facie case under the Equal Pay Act at the summary judgment
phase, “plaintiff[ ] will have to sustain [his] burden of proving that [his] work and
[Walton’s, Enarusai’s, and Carter’s] work entailed substantially equal skill, effort, and
responsibility and was performed under similar working conditions.” Brobst v. Columbus
Servs. Int’l, 761 F.2d 148, 155 (3d Cir. 1985) (citations omitted). To do so, “Plaintiff[ ]
must establish [his] case by proving actual job content; by the same token the employer
may not rely merely on the job description.” Id. Indeed, the relevant focus is on whether
the work that was actually done was “substantially equal.” Id. Ordinarily, due to “the fact
intensive nature of the inquiry, summary judgment [is] often . . . inappropriate.” Id. at 156.
In this case, however, Plaintiff has proffered no evidence—except his own version
of the facts. In that regard, Plaintiff has failed to provide details on the duties and tasks of
Walton, Enarusai, and Carter. Although discovery has completed, Plaintiff has failed to
take their depositions or submit admissible evidence to support his contentions. Instead,
Plaintiff has submitted his opinions about his co-worker’s duties and self-serving
assertions, such as, he performed grant monitoring and that his female co-workers did as
well, or neither Plaintiff nor his co-workers supervised anyone. Moreover, Plaintiff’s letter
Affidavit complains that the desk audit process is unfair and that he was never allowed to
show that his “duties were substantially equal to [his] female coworkers.”
Aff./Affirmation in Opp. to Def.’s Mot. for Summ. J., at ¶ 32. However, on this motion,
this is precisely what Plaintiff needed to do, but he has not done so. Thus, the Court is left
with no basis to determine whether the female co-workers’ duties were “equal” to
Plaintiff’s work. See id. Accordingly, Plaintiff has not sustained his burden of proof to
establish a prima facie case of an Equal Pay Act claim. Therefore, summary judgment is
appropriate on this basis alone.
Even if Plaintiff had sufficiently made a prima facie case under the Equal Pay Act,
Defendants have satisfied their burden in proffering an affirmative defense to explain
Plaintiff’s wage disparity resulting from his classification as a CSO 2. Stanziale, 200 F.3d
at 107. Defendants argue that Plaintiff’s classification was based upon “a merit system”
and “a differential based on . . . factor[s] other than sex.” 29 U.S.C. § 206(d)(1).
First, Defendants argue that the system set forth under the Civil Service Act,
N.J.S.A. 11A:1-1 et seq., which governs the CSC, is a merit system. And, importantly,
Defendants contend that Plaintiff’s title was classified in accordance with its prescribed
procedures. Hence, the Court finds it necessary to provide some background on the Civil
Service Act, as well as the functions and procedures of the CSC.
The CSC acts as an independent commission within the Department of Labor and
Workforce Development, N.J.S.A. 11A:2-1, with the responsibility, among others, of
assigning “titles among the career service, the senior executive service, and the unclassified
service for positions in State service and political subdivisions.” In re Johnson, 215 N.J.
366, 376 (2013) (citing N.J.S.A. 11A:3–1).
In addition, the CSC “has broad
reclassification powers.” Id. In that regard, its “authority to assign and reassign titles
includes the duty to ‘[e]nsure the grouping in a single title of positions with similar
qualifications, authority and responsibility.’” Id. (quoting N.J.S.A. 11A:3–1).
Additionally, the CSC may “reassign titles to appropriate positions.” Id. (quoting N.J.S.A.
Relevant here is the New Jersey Administrative Code—New Jersey’s
administrative regulations, which define the CSC’s authority regarding job title
classification, by specifying jobs’ duties and prescribing the CSC’s power to reclassify
positions through “job analysis.” Id. (citing N.J.A.C. 4A:3–3.2(b)(2); N.J.A.C. 4A:3–
3.3(a)(1)). These regulations also provide the process for job audits to ensure accurate
classification, id. (citing N.J.A.C. 4A:3–3.3(d)), and specifically set forth the process by
which a state service employee may seek reclassification of his or her title through the
submission of a PCQ desk audit. See N.J.A.C. 4A:3-3.5; N.J.A.C. 4A:3-3.9.
First, to be reclassified, a state service employee shall complete a PCQ and specify
the title that he believes is appropriate for his duties, including an explanation for his
The PCQ requires the employee’s immediate
supervisor to indicate whether he or she agrees or disagrees with the employee’s
description of his duties, the amount of time he spends on each duty, and the title the
employee proposes as appropriate to his duties. Id. If the supervisor disagrees, the
supervisor is required to explain in writing the nature of the disagreement. Id. The PCQ
must be signed by the employee and his supervisor. Id. Then, the supervisor shall forward
the PCQ to the program manager/division director and, if necessary, he or she shall indicate
his or her disagreement, explaining in writing the nature of the disagreement. Id. at 4A:33.9(c)(2). The program manager/division director shall also sign the PCQ. Id.
Next, an agency representative shall review the PCQ and, depending on the title the
employee seeks, indicate whether the employee’s existing title is proper, whether some of
the employee’s duties are inappropriate, or whether the employee should be placed at a
different title. Id. at 4A:3-3.9(c)(4). If the employee seeking reclassification disagrees
with the determination, he may file a grievance.
Id. at 4A:3-3.9(c)(6).
representative from the CSC shall review the grievance and “request additional information
if needed, order a desk audit where warranted, and issue a written decision letter.” Id. at
Where there is a disagreement with the proposed title, the CSC
representative shall “include a summary of the duties of the position, findings of fact,
conclusions, a notice to an employee or authorized employee representative of appeal rights
to the [CSC], and a determination that” the employee’s position is classified properly, some
of the employee’s duties are inappropriate, or the employee’s position should be
reclassified. Id. at 4A:3-3.9(c)(8)(ii).
In the event that the employee wishes to appeal the CSC’s decision, the employee
may do so within twenty “days of receipt of the decision letter and include copies of all
materials submitted, the determination received from the lower level, statements as to
which portions of the determination are being disputed, and the basis for appeal.” Id. at
4A:3-3.9(e). New information or arguments that were previously not presented shall not
be considered. Id. The CSC may render its decision on the written record or appoint an
independent classification reviewer to conduct an informal review. Id. at 4A:3-3.9(e)(1).
Finally, “[t]he decision by the [CSC] is the final administrative determination.” Id.
at 4A:3-3.9(e)(4). Indeed,
[w]hen the [CSC] exercises its authority to prescribe the qualifications for
a position, courts are loathe to interfere. Gloucester Cnty. Welfare Bd. v.
N.J. Civil Serv. Comm’n, 93 N.J. 384, 390 (1983). In examining
determinations made by the [CSC], courts will not interfere with
reclassification decisions in the absence of “an affirmative showing of
arbitrariness.” 11 Mullin v. Ringle, 27 N.J. 250, 256 (1959); accord Carls v.
Civil Serv. Comm’n, 17 N.J. 215, 221 (1955).
In re Johnson, 215 N.J. at 377 (footnote added). Notably, however, “deference to the
expertise and discretion of an administrative agency, such as the [CSC], does not extend to
a reclassification decision that does not demonstrate a thorough understanding of the duties
of the incumbent or consultation with relevant employers.” Id. at 380. Significantly, “[t]he
[CSC’s] task is ‘to assure the continuance of the merit system and to provide a modern
personnel system, thereby promoting efficiency in the conduct of public business and
assuring fair and impartial treatment for all applicants for employment and all employees
in the classified service.’” Gloucester Cnty. Welfare Bd., 93 N.J. at 392 (quoting N.J.A.C.
Here, according to Defendants, the provisions of Title 4A of the New Jersey
Administrative Code and the Civil Service Act, as described above, demonstrate that the
“[W]hen the [CSC] undertakes an audit of a position in the course of a classification
or reclassification review, it must also account for all, not just some, of the tasks assigned
to an employee. When it picks and chooses some of the tasks performed by the employee
but ignores or mischaracterizes others, the decision takes on attributes of an arbitrary and
unreasonable action.” In re Johnson, 215 N.J. at 383–84.
CSC’s classification procedure is part of a merit system. Defendants argue that in assessing
Plaintiff’s PCQs, they followed the prescribed procedures in (1) reclassifying Plaintiff as a
CSO 2, (2) the appeals process, and (3) the manner in which the CSC issued its final
administrative actions. Thus, because Plaintiff’s reclassification was a result of the CSC’s
classification system—the merit system as set forth in Title 4A of the New Jersey
Administrative Code—Defendants should be entitled to summary judgment. The Court
Here, the record shows that both of Plaintiff’s classification requests followed the
procedures in Title 4A. See N.J.A.C. 4A:3-3.9. Indeed, Plaintiff filed two PCQs—the first
in 2009 and the second in 2011. The First PCQ was signed by Wilkerson-LeConte and
Plaintiff; Wilkerson-LeConte submitted a cover letter indicating that she did not support
Plaintiff’s reclassification based on Clark’s performance evaluation from the previous year.
See N.J.A.C. 4A:3-3.9(c)(1)-(3). The Second PCQ was signed by Mayer-Obermeier and
Plaintiff; Mayer-Obermeier indicated in her cover letter that she did support Plaintiff’s
reclassification. See id. In both PCQs, Plaintiff indicated that he sought to be reclassified
as a CSO 1. Both times, Plaintiff’s respective supervisors were interviewed and desk audits
See N.J.A.C. 4A:3-3.9(c)(8).
During the 2009 appeal, the CSC
determined that Plaintiff should be placed at a different title level, i.e., CSO 2. See id.
During the 2011 appeal, the CSC determined that Plaintiff’s position was properly placed
at the existing title level, CSO 2. See id. The focus of both reviews was on Plaintiff’s
duties and whether they matched those duties described in the job descriptions of a CSO 1,
CSO 2, Public Health Representative 1, or Program Development Specialist 1, as well as
the percentage of time Plaintiff spent on each duty. See N.J.A.C. 4A:3-3.9(c)(2). After
each desk audit, the CSC’s SLO issued its determination. See N.J.A.C. 4A:3-3.9(c)(8).
Both times, the determination found that Plaintiff did not “organize, coordinate, supervise
and evaluate all phase’s . . . of community treatment, rehabilitation, and prevention
education programs for addiction,” Statement of Uncontested Material Facts on Def.’s
Mot. for Summary Judgment, at ¶ 84, as required of a CSO 1, and it found that Plaintiff
performed the duties of a CSO 2. After both determinations, Plaintiff filed appeals. See
N.J.A.C. 4A:3-3.9(e). Subsequently, the CSC performed a “job analysis” and found that
Plaintiff was properly categorized as a CSO 2. See N.J.A.C. 4A:3-3.9(e)(2). Finally, the
CSC issued two final administrative determinations consistent with N.J.A.C. 4A:33.9(e)(4).
Indeed, Plaintiff’s reclassification process tracked the procedures as set out in Title
4A of New Jersey’s Administrative Code. Plaintiff, however, argues that the CSC should
compare co-workers in its classification appeals process. Because the procedure does not
involve side-by-side employee comparisons, Plaintiff believes the classification process is
“flawed” and not fair. 12 From the record before the Court, I find that this process
constitutes a merit-based system and Plaintiff has not shown that this statutorily prescribed
process is flawed.
During discovery, Plaintiff failed to obtain admissible evidence to show that his
reclassification was not based on the merit system set forth in Title 4A of the New Jersey
Administrative Code. Instead, Plaintiff submitted unsupported arguments, containing
Plaintiff also contends that the “dual supervisor system” is flawed. See Pl.’s
Aff./Affirmation in Opp. to Def.’s Mot. for Summ. J., at ¶¶ 20, 22. This contention,
however, bears no relation on Plaintiff’s Equal Pay Act claim and therefore will not be
discussed in this Opinion.
unsubstantiated opinions. In fact, Plaintiff failed to submit evidence that may prove his
claim, such as: (1) affidavits or depositions of his female co-workers with descriptions of
their duties, (2) records from his desk audit or Walton’s desk audit, (3) depositions of
Wilkerson-LeConte or Mayer-Obermeier, (4) or any evidence that would show that the
CSC failed to follow its prescribed procedures. In that regard, Plaintiff failed to rebut
Defendants’ motion for summary judgment with facts in the record and chose to rest solely
on conclusory and self-serving assertions. Thus, Plaintiff’s submission does not create a
genuine dispute of material fact. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990) (“Rule 56(e) provides that judgment ‘shall be entered’ against the nonmoving party
unless affidavits or other evidence ‘set forth specific facts showing that there is a genuine
issue for trial.’ The object of this provision is not to replace conclusory allegations of the
complaint or answer with conclusory allegations of an affidavit”); Jiminez v. All Am.
Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (“[I]f it is clear that an affidavit is
offered solely for the purpose of defeating summary judgment, it is proper for the trial
judge to conclude that no reasonable jury could accord that affidavit evidentiary weight
and that summary judgment is appropriate”); Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d
195, 201 (3d Cir. 2006) (“In this respect, summary judgment is essentially ‘put up or shut
up’ time for the non-moving party: the non-moving party must rebut the motion with facts
in the record and cannot rest solely on assertions made in the pleadings, legal memoranda,
or oral argument”).
Thus, based on the record before the Court, the classifications process applied to
Plaintiff’s PCQs was a merit-based system that was properly implemented. Plaintiff’s
classification was based on “valid, non-sex-based reasons justifying the salary differential
. . . and since there is no evidence of pretext, [Plaintiff] cannot establish
an Equal Pay Act violation.” Rhoades v. Young Women’s Christian Ass’n, 423 F. App’x
193, 198 (3d Cir. 2011). Accordingly, the Court finds no need to address Defendants’
second affirmative defense—that Plaintiff’s classification was founded upon a differential
based on factors other than sex.
For the foregoing reasons, Defendants’ motion for summary judgment is
GRANTED and Plaintiff’s complaint is DISMISSED.
DATED: November 17, 2017
/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. District Judge
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