SHERRY GILKIN v. BOARD OF CHOSEN FREEHOLDERS FOR GLOUCESTER COUNTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4248-07T14248-07T1

SHERRY GILKIN,

Plaintiff-Appellant,

v.

BOARD OF CHOSEN FREEHOLDERS FOR

GLOUCESTER COUNTY,

Defendant-Respondent.

______________________________________

 

Submitted January 6, 2009 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, Docket

No. L-2016-03.

Law Offices of Dennis J. Crawford, attorneys

for appellant (Robert G. Feldman, on the brief).

Brown & Connery, attorneys for respondent

(Susan M. Leming, William F. Cook and Diane S.

Kane, on the brief).

PER CURIAM

Plaintiff Sherry Gilkin filed a complaint against defendant Board of Chosen Freeholders For Gloucester County alleging employment discrimination. After engaging in motion practice, plaintiff filed an amended complaint alleging in Count One gender discrimination in the form of unequal pay, in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-12; the Discrimination In Wages Act, N.J.S.A. 34:11-56.2; and the Equal Pay Act, 29 U.S.C.A. 206(d). In Count Two, plaintiff alleged sexual employment discrimination, again in violation of the LAD. In Count Three, she alleged retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. In Count Four, she alleged breach of contract.

The matter came before the trial court by way of defendant's motion for summary judgment. After hearing the arguments of counsel, and relying on the record made available by the parties, the trial court granted partial summary judgment dismissing what the court framed as "Count I Equal Pay, [and] Count II Discrimination." Although not individually pled as a separate count in the complaint, the court also dismissed what it labeled "Punitive Damages." The court denied summary judgment on what it denoted "Count III Retaliation."

Thereafter, the court denied the parties' cross-motions for reconsideration. We dismissed as interlocutory plaintiff's initial appeal from this order. On March 23, 2007, the trial court entered an order denoted as a Final Order and Judgment. From this order plaintiff now appeals, arguing that the motion judge failed to duly consider the evidence of wage discrimination. We agree and therefore reverse.

I

Plaintiff began working for Gloucester County in 1992 as a clerk typist. In 2002, the County received funding to establish a Tobacco Age of Sale Program and a Tobacco Control Program. Plaintiff's supervisor at that time was Donald Benedik. Although Benedik wanted plaintiff to manage these program immediately upon her appointment, the County declined to do so because it was required to comply first with Civil Service guidelines.

To accomplish this, the County needed to designate a Civil Service job title that would correspond with plaintiff's duties, then submit plaintiff's appointment, along with her Civil Service title, for review and approval by the New Jersey Department of Personnel (DOP). The County's first proposal, to give plaintiff the title of Health Aide, was rejected by the DOP because the position was a competitive one, requiring the employee to qualify by taking a civil service examination.

According to plaintiff, she was never notified that she was denied the Health Aide position due to the Civil Service, competitive-test requirement. Although she claimed that defendant could have appointed her to the non-competitive position of Field Representative Health Educator, there is no evidence in the record to support this assertion.

To overcome this Civil Service impediment, the County appointed plaintiff to the position of program manager for the Tobacco Age of Sale and Tobacco Control programs. This position did not have to meet civil service requirements because plaintiff was paid "out-of-title" for her work. For plaintiff, this amounted to an increase in salary of $21.12 for each pay period. Although out-of-title placements are intended to be a temporary arrangement, plaintiff worked in this capacity for approximately two years, from July 1, 2000 until November 28, 2002.

In December of 2001, Benedik met with Lisa Kricum, the state Tobacco Control Unit Manager, to discuss plaintiff's compensation. At Benedik's request, Kricum performed a statewide survey of salaries for county Tobacco Program coordinators. The survey revealed that plaintiff was being paid the lowest salary in the state for someone in her position. While her salary was approximately $27,145 annually, the range for all other Tobacco Program Coordinators was between $36,000 and $48,000 per year.

In response to this finding, Benedik testified at his deposition that he had a hearing with Kricum in Trenton. At this hearing, he made "an appeal for a grant extension" to increase plaintiff's compensation. Although Benedik claimed to have seen in writing "something to the effect that either $6,000 or $8,000 would be appropriated" to fund the increase, plaintiff salary was not increased.

On November 4, 2002, defendant hired Jack DeAngelo as a Public Information Officer for the County Department of Health. DeAngelo had an undergraduate degree in business administration. According to his employment application, he had been previously employed as an assistant golf professional. His duties included public relations, sales and marketing.

DeAngelo was also a close friend of Chad Bruner's nephew, the County's Director of Health and Senior Services and chairman of the Mantua Township Democrats. DeAngelo frequently socialized with Bruner, including attending the christening of Bruner's son; Bruner was also a guest at DeAngelo's wedding. Politically, DeAngelo assisted Bruner in local Democratic Party activities such as "hanging door knockers."

DeAngelo was paid an annual salary of $37,424 as public information officer (PIO). By contrast, plaintiff's salary was at the time $27,545. In his deposition, Bruner testified that DeAngelo was "essentially handling the same duties" that plaintiff was performing as a Tobacco Control Coordinator. Furthermore, under Civil Service guidelines, the position of PIO required an undergraduate degree in journalism, communications, advertising or public relations, as well as three years work experience in one of those fields. DeAngelo's educational and professional background did not meet these requirements.

In 2002, Gloucester County received State funding to establish a Bioterrorism Unit. The funding grant provided for the new position of a LINCS Coordinator, which required a college degree in health education, community health or a related field with two years experience in health education. Benedik recommended plaintiff for this position. According to plaintiff, Benedik believed that her undergraduate degree in English was sufficient to qualify her for the position.

Gloucester County offered the position to plaintiff, and she accepted. The offer was contingent, however, upon the State's determination that plaintiff was qualified for the position. Plaintiff received an additional $2,429.52 in out-of-title pay for her work as LINCS Coordinator.

The State rejected plaintiff's appointment, finding her unqualified to serve as the LINCS Coordinator. According to the deposition testimony of DOP representative Laurie Pyrch, she reached this conclusion after reviewing plaintiff's resume and comparing it against the DOP's requirements as stated in the grant's specification.

This rejection was not made known to plaintiff in writing. Benedik refuted Pyrch's account of this event. According to Benedik, Pyrch agreed with him that plaintiff's qualifications were sufficient. When asked in the course of her deposition to accept as true that Benedik had so testified, Pyrch replied that she had no recollection of this alleged conversation with Benedik.

After plaintiff was rejected as LINCS Coordinator, the County appointed DeAngelo to the position. However, he was also rejected for lack of qualifications. On August 4, 2003, Bruner wrote a letter to Pyrch strongly supporting DeAngelo's appointment. He did not write a similar endorsement on behalf of plaintiff. The County eventually hired a woman, Jennifer Lenik, who met the minimum qualifications of the position of LINCS Coordinator. This person's appointment is not challenged here.

Thereafter, defendant hired DeAngelo as Assistant LINCS Coordinator, a position that did not demand the same level of qualifications. This required the splitting of the Bio-Terrorism Preparedness Grant funding between DeAngelo and Lenik's salaries, and covering the remainder of their salaries with county funds. DeAngelo was subsequently rejected from this position as well, because he did not meet civil service requirements for this title. He was then transferred to the position of Deputy Emergency Management Coordinator.

By contrast, after she was rejected as LINCS Coordinator, plaintiff was assigned to the position of senior clerk typist in the County's ElderCare Division, where she still works. According to plaintiff, this resulted in a $10,000 annual reduction in her salary. She was also moved from an office that she occupied since 1996 into "a 4 foot by 2 foot workspace in [a] new building." She regarded this transfer as a demotion.

II

We begin our analysis by noting that, in addressing allegations of unlawful discrimination based on sex, courts in this state have looked to federal law as a key source of interpretive authority. Thus, both substantive and procedural standards developed under the LAD "have been markedly influenced by the federal experience." Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990). Plaintiff alleges that defendant discriminated against her on the basis of sex by paying her less than DeAngelo, her male colleague who performed substantially similar duties. Here, plaintiff's cause of action arises under both the EPA and the LAD. Because both statutes are intended to remedy gender-based discrimination, we look to the standards and methodology developed under the EPA for guidance.

[A] prima facie case is established [under the EPA] if a female complainant can demonstrate that unequal pay was given for the performance of work that is substantially equal to that performed by male employees. If the complainant establishes a case of "substantially equal" work that is compensated at 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.

[Id. at 110.]

The four affirmative defenses available to a defendant are to "prove that the wage disparity is the result of (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 factor other than sex." Id. at 102-03 (citing Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S. Ct. 2223, 2229, 41 L. Ed. 2d 1, 11 (1974)).

Because the trial court decided these questions in the context of deciding plaintiff's motion for summary judgment, we will first articulate the relevant standard of review. A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). A reviewing court must determine whether

the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

On appeal, we use the same standards employed by the trial court to conduct our own de novo review. Mango v. Pierce-Coombs, 370 N.J. Super. 239, 249 (App. Div. 2004).

Here, plaintiff presented evidence that her salary while serving as Tobacco Control coordinator was $27,545, while DeAngelo's salary was $37,424 when he was essentially performing the same duties as the Tobacco Control coordinator. The trial court found this was permissible because the County "operates pursuant to a pay scale depending upon the employee's position. Here, [p]laintiff was hired for a position on a pay scale inferior to that of DeAngelo. . . . While they shared responsibility for certain grant coordinator positions, both [p]laintiff and [d]efendant performed a different civil-service position."

In our view, the trial court conclusion is not supported by the evidence presented by the parties. Here, the record shows that, while holding different titles, (DeAngelo as a PIO and plaintiff as a Tobacco Control Coordinator), they were performing the same duties. Despite this, DeAngelo received a higher salary than plaintiff. Under these circumstances, plaintiff has made out a prima facie case of gender discrimination under both the LAD and EPA. If defendant is not able to establish a nondiscriminatory reason for this disparate treatment, a rational jury could find in plaintiff's favor.

We reach the same conclusion with respect to the position of LINCS Coordinator. Although neither DeAngelo nor plaintiff were deemed qualified for this position by the DOP, Bruner took extraordinary measures to assist DeAngelo in the latter's attempt at securing this job. When considered together with the previously discussed disparate treatment, a jury may find that these measures show a pattern of gender-based discrimination in favor of a male employee, at the expense of an otherwise equally qualified female.

Finally, we address the question of punitive damages. There are "two distinct conditions that must be met as prerequisites to the award of punitive damages in a discrimination suit under the LAD." Rendine v. Pantzer, 141 N.J. 292, 313 (1995). First, plaintiff must show "'actual participation [in the discriminatory conduct] by upper management or willful indifference.'" Id. at 314 (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 625 (1993)). Second, plaintiff must show "'intentional wrongdoing in the sense of an "evil-minded act" or an act accompanied by a wanton and willful disregard of the rights of another. . . . The key to the right to punitive damages is the wrongfulness of the intentional act.'" Id. (quoting Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49-50 (1984)).

Here, plaintiff satisfied the first condition because Bruner, who was responsible for her appointments and transfers, held an upper management position as the Director of the County's Department of Health and Senior Services, and the Deputy County Administrator. To satisfy the second prong, the showing of intentional or reckless malice, plaintiff argues that the County "siphon[ed] of[f] funds earmarked for Gilkin's salary increase during her tenure in the Tobacco Control position" and that Bruner "misrepresented under oath that he did not write to the State on behalf of DeAngelo, [and] he misrepresented the fact that DeAngelo never took a Civil Service examination."

Because these material allegations dealing with punitive damages are disputed, such as whether defendant wrongfully diverted funds intended to augment plaintiff's salary, they are not ripe for summary judgment and remain issues to be addressed by the trial judge at the time of trial, following the procedures outlined in the Punitive Damages Act. N.J.S.A. 2A:15 5.9 to -5.17.

 
Reversed and remanded.

Although plaintiff's complaint denotes the retaliation claim based on CEPA, the memorandum of opinion attached to the summary judgment order reflects that the court analyzed the retaliation claim under the LAD. There is nothing in the record that explains this discrepancy.

This order also provided that if the trial court's decision was affirmed, plaintiff retained the right to reinstate the retaliation claim in a separate cause of action, under a different docket number. Defendant agreed to waive the statute of limitations defense in that potential action. In light of Rule 4:30A, we express no opinion on plaintiff's ability to preserve in this fashion the legal viability of this count. We further note that this consent order was entered after plaintiff's previous notice of appeal was dismissed as interlocutory. We continue to caution litigants that attempts to create finality as a means of circumventing the provisions in Rule 2:2-3 are disfavored. Grow Co. v. Chokshi, 403 N.J. Super. 443, 458 n.3, (App. Div. 2008).

'Door knockers" refers to a form of campaigning where individuals canvas a given area to solicit support for a particular candidate or political party by hanging an informational flyer on the doorknob of the front door of the targeted home.

(continued)

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A-4248-07T1

April 13, 2009