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N.J.S.A. 34:11-56.1 to -56.11, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42."> Original

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2713-04T5 DIANE HESLEY, Plaintiff-Appellant, v. THE CITY OF SOMERS POINT, Defendant-Respondent. ______________________________________

Argued June 7, 2006 - Decided August 30, 2006 Before Judges Winkelstein and Sapp-Peterson. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-625-03. William G. Blaney argued the cause for appellant (Gruccio, Pepper, DeSanto & Ruth, attorneys; Mr. Blaney, on the brief). Michelle J. Douglass argued the cause for respondent (Barker, Douglass & Scott, attorneys; Ms. Douglass on the brief). PER CURIAM Plaintiff Diane Hesley appeals the entry of an order dated March 1, 2005, granting summary judgment, dismissing her gender-based hostile work environment and wage discrimination claims brought against her employer, defendant City of Somers Point. We affirm the dismissal of plaintiff's hostile work environment claim, but we reverse the grant of summary judgment dismissing her wage discrimination claim. We are satisfied that when the facts, together with all favorable inferences, are viewed most favorably towards plaintiff, she has set forth a prima facie

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claim of wage discrimination under both the New Jersey Equal Pay Act (NJEPA), N.J.S.A. 34:11-56.1 to -56.11, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Based upon the discovery exchanged between the parties, the following record was before the motion judge at the time the motion was considered. Plaintiff, a female, is the full-time Tax Assessor for defendant and has held that position since June 1, 1992. Prior to her appointment, the position was part-time and held by F. William Mitchell, a male. On January 9, 1992, the City passed a resolution authorizing the "City Administrator to advertise and hire a full-time Tax Assessor for 1992 to begin as soon as possible with the full-time salary and benefits package not to exceed $35,000." In a memorandum dated March 9, 1992, the position was offered to Mitchell at an annual salary of $43,430. The memo further advised Mitchell that he had until March 16, 1992, to respond to the offer in writing; otherwise, the City would begin advertising to fill the position. Mitchell did not accept the offer and questioned the need for a full-time position. On March 22, 1992, a press release was prepared announcing the availability of a fulltime tax assessor position for the City. The press release did not include a proposed salary for the position. It stated: March 22, 1992 Full Time Position Available City of Somers Point-Atlantic County Certified Tax Assessor Responsibility includes complete management of all Tax Assessment responsibilities for the City of Somers Point. Hours are 9:00[ a.m.] to 5:00[ p.m.] Monday thru Friday. Person must be a certified Tax Assessor by the State of New Jersey and [have] at least five years experience. Must be hands on person capable of performing the day to day operations of a Tax Assessor's Office and having a positive attitude when dealing with the public. Computer experience and performing a revaluation is required. Send resume and salary requirements to City of Somers Point, c/o Judson Moore, City Administrator, City Hall, Shore Road and New Jersey Avenue, Somers Point, New Jersey 08244. Equal Opportunity Employer. Position available May 1st. Plaintiff, who had been employed as a tax assessor in other municipalities, applied for the position. She was interviewed twice; once by the Business Administrator and later by the Business Administrator and the Mayor. The Business Administrator contacted her on April 27, 1992, and offered her the position. That offer was confirmed in a letter dated May 4, 1992, in which plaintiff was advised that her employment would commence June 1, 1992, at an annual salary of $30,000. Sometime in 2000, plaintiff learned that Mitchell had been offered a higher starting salary than the $30,000 offered to her. As a result, she began to survey tax assessors in the surrounding towns and decided she was being underpaid. In late 2000, while renegotiating her contract, plaintiff pointed out to the salary committee that the male department heads were earning more than she was earning. A member of the salary committee, Councilperson Bill

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Rosenberger, accused plaintiff of playing the "sex card." Plaintiff denied using the tactic. Shortly after plaintiff's contract negotiations were completed, the female Tax Collector, Lynn MacEwan, commenced contract negotiations for her position. It was reported to MacEwan that during one such negotiation, Councilperson Patrick Bingham referred to MacEwan and the other female department heads as "glorified secretaries." Plaintiff continued to conduct a survey of the department head salaries and identified two patterns: (1) the female department heads all made the same amount from 2000 to 2003; and (2) the female department heads all made less than every male department head. The present complaint was filed on March 12, 2003. Following the exchange of discovery, defendant moved for summary judgment. Defendant argued procedurally that plaintiff's claims were barred by the statute of limitations and laches. The court, without oral argument, rejected those claims, ruling that the allegations in the complaint, if proven, established a continuing violation, and based upon the record, laches had no application to the matter. As to the merits of plaintiff's claims, defendant contended plaintiff failed to establish a prima facie case of wage discrimination under the NJEPA or the LAD and that she likewise failed to set forth a prima facie case of hostile work environment. The motion judge agreed. He found that while the duties of Mitchell and plaintiff were substantially equal, the positions of part-time and full-time tax assessor were not substantially equal. The judge, relying upon N.J.S.A. 40A:9-165, also found that as an incumbent tax assessor, the City was statutorily required to offer Mitchell the full-time position at an hourly rate no less than the hourly rate he earned in the part-time position. The judge found: [T]he necessary predicate to her claim for this aspect of the matter is that the salary determination differentiating her from that of her predecessor was made by reason of her gender. And the record simply does not permit any fact finder to reach that conclusion. The record is ample and as far as I'm concerned ample as a matter of law that the determination to differentiate the salary was made in the reflection of the differentiation between a full[-]time and a part[-]time position, and in the context of the City's requirement that if they were going to create the [full-]time position initially they had to offer it at what was the higher salary to the then incumbent. To conclude otherwise on these facts would necessarily result -- and no one has argued this and they couldn't -- necessarily result in the conclusion that when the City went from a part[-]time to a full[-]time position and converted the part time salary into a full[]time salary, it would have been required to offer that position to anybody at that salary. That is the necessary conclusion of the plaintiff's position because beyond the fact of her gender there is no explanation for it and there is no reason in this record that would permit a jury to conclude that it was by reason of her gender as opposed for example to the other male applicants that . . . applied for the same position at the same salary and had they been hired would have received the same salary that she received. So, on the first claim under both the first and second counts, that being the wage differential between the plaintiff and Mr. Mitchell, on either claim the Motion for Summary Judgment is granted.

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In a letter memorandum which supplemented the court's oral opinion, the motion judge stated: Specifically, I address the claim of gender discrimination on the basis of the fact that Plaintiff was paid less than her predecessor, and the applicable analytic framework to evaluate that claim in the context of the LAD and the [Equal Pay Act, 29 U.S.C.A. § 206(d) (EPA)]. As made clear in [Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89 (1990)], the McDonnell Douglas standards for comparing "similar" work functions and responsibilities are to be applied flexibly in the context of a claim also cognizable under the EPA. In cases arising under the latter statute, once a claimant has established a prima facie case, the burden of proof shifts to a defendant to establish an affirmative defense, while under the LAD a claimant always retains the ultimate burden of persuasion. Id. at 102-[03]. In this case, the undisputed fact is that Plaintiff's predecessor was offered the position on a full-time basis at the prorated value of his prior part-time compensation, by reason of what Defendant deemed the requirements of the law. Plaintiff has made no assertion that the decision to change the position to a full-time one was in any way motivated by gender issues. Moreover, there is no dispute that had Defendant felt legally free to do so, the position would have been offered to Plaintiff's predecessor at the same compensation level that was offered to Plaintiff. As a matter of law, I believe that these facts establish an affirmative defense under the EPA analysis ("a differential based on a factor other than sex"), because the difference between a part-time and full-time position is legally significant and no reasonable fact-finder could conclude otherwise. Phrased differently, I conclude that the two positions -- full-time and part-time -- are, as a matter of law, not "comparable," "similar" nor "substantially equal," and therefore the necessary facts from which an inference of unlawful discrimination could be drawn to support Plaintiff's assertion of an illegal discriminatory motive do not appear in the record. In this context, then, Plaintiff's claim under the EPA fails because the affirmative defense is established as a matter of law, and her claim under the LAD fails because, as a matter of law, she cannot establish the prima facie case as defined in the McDonnell Douglas analysis. With respect to plaintiff's hostile work environment claim, the motion judge doubted whether "discrimination and compensation is in and of itself an element of the sexual harassment claim[.]" As for the comment attributed to Rosenberger during plaintiff's salary negotiation in 2000, that she should not play the "sex card," and Bingham's alleged comment during the salary negotiations of MacEwan, that female department heads were glorified secretaries, the judge found that the comments, albeit arguably "stupid," "insensitive," and "impolitic," were "in each instance and together isolated comments that in any event were neither pervasive nor severe . . . as a matter of law . . . ." On appeal plaintiff raises the following points for our consideration: POINT I THE COURT BELOW IMPROPERLY ANALYZED MS. HESLEY'S CLAIMS OF WAGE DISCRIMINATION UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION AND THE NEW JERSEY EQUAL PAY ACT. POINT II THE TRIAL COURT ERRED IN DETERMINING THAT MS. HESLEY HAD NOT ESTABLISHED A PRIMA FACIE CASE OF A SEXUALLY HOSTILE WORK ENVIRONMENT UNDER THE LAD.

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In our appellate review of a trial court's grant or denial of summary judgment, we employ the same standard of review as the trial court. Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)). As the Supreme Court stated more than ten years ago in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995): [W]hen deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. This assessment of the evidence is to be conducted in the same manner as that required under Rule 4:372(b). [Id. at 523.] I. Our analysis of plaintiff's claims requires that we review the Supreme Court's seminal decision in Grigoletti, supra, where the Court set out the standards for pursuing wage discrimination claims. 118 N.J. 109-10. In Grigoletti, the plaintiffs were female employees at Ortho Pharmaceuticals. Id. at 93. In 1983, the company implemented an allinclusive computerized system. Ibid. Two males were hired to work with the plaintiffs to implement the system, and they were paid higher salaries than the plaintiffs. Id. at 93-94. Problems started from the outset and the plaintiffs lodged several complaints against the project's team leader. Ibid. About a year after the project's inception, one of the plaintiffs received an average evaluation and was removed from the project. Id. at 95. She was reassigned to a position she had held five years earlier. Ibid. The other plaintiff left shortly thereafter, primarily due to the first plaintiff's demotion. Ibid. The plaintiffs filed a complaint alleging wage discrimination and wrongful discharge. Ibid. Following a bench trial, the court dismissed the plaintiffs' wage discrimination claims, finding that although the team members performed essentially the same tasks for two years, there was no unlawful discrimination. Id. at 96. We reversed in a reported opinion, ruling that the preponderance of the evidence demonstrated gender discrimination based on the payment of unequal salaries to plaintiffs for comparable work performed by male co-workers on the team. Grigoletti v. Ortho Pharm. Corp., 226 N.J. Super. 518, 529 (App. Div. 1988). The Supreme Court reversed and modified our decision, noting that while there was ample evidence that demonstrated the substantial equality of the work, "nowhere in the trial court's opinion [were] any applicable legal standards proffered"; and, "[t]he trial court did not structure the case in a fashion that was consistent with any

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identifiable approach." Grigoletti, supra, 118 N.J. at 113. The Court reasoned that the "[t]he predicate of discrimination under each statute involves the degree of similarity of the jobs held by female and male employees." Id. at 100. The Court also recognized that an analysis under Title VII generally results in a broader analytical approach to determining whether a prima facie case of discrimination has been met in any given situation and therefore "requires a less-exacting degree of job similarity than is necessary to bring an EPA action, with its sharper focus on employment and wage discrimination against females." Id. at 101. The Court reiterated the long standing principle that there is no rigid application of the federal standards governing discrimination cases, and instead stated that courts are required to use a flexible approach in resolving such disputes, consistent with the overall goal to liberally construe discrimination statutes in order to afford victims of discrimination the fullest relief available under the law. Id. at 98-99. Thus, utilizing this flexible approach, the Court held: [I]n 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 should be followed. These encompass the elements that comprise both a prima facie case and the corresponding transfer of the burden of proof. We also determine that a prima facie case is established 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. We further determine that if such complainant in an action brought under the LAD based on gender-discrimination 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. [Id. at 109-10.] Applying this analysis to plaintiff's claims, in order to survive summary judgment, plaintiff must establish that she was paid less as the Tax Assessor than the salary offered to her male predecessor, who would have performed "substantially equal" work had he accepted the offer, or that she was paid less than the compensation offered to her male predecessor for performing duties similar to those that he would have performed had he accepted the fulltime position. Id. at 102. The motion judge determined that Mitchell's position and plaintiff's position were not substantially equal
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because one position was part-time and the other position was full-time. Defendant, however, conceded that the positions were the same. Thus, to the extent this remains an issue, it is a question for the jury to address. Also, apparently based upon an affidavit of Judson Moore, the former City Business Administrator at the time the full-time position was created, the judge found that had "defendant felt legally free to do so, the position would have been offered to [Mitchell] at the same compensation level that was offered to plaintiff." While a jury may ultimately conclude that Moore's statement is credible, when the record is viewed in a light most favorable to plaintiff, a reasonable jury could conclude otherwise. That record includes evidence that when the tax assessor position was initially advertised, the salary was not indicated and prospective applicants were directed to submit their salary requirements. In addition, plaintiff presented evidence from which a jury could reasonably infer that the position may have been offered to her before the City Council voted on the salary for the position. Plaintiff also presented evidence that all of the male department heads were compensated at salaries higher than the female department heads. Finally, plaintiff presented evidence that during contract negotiations, certain council members made remarks that a jury could reasonably conclude reflect gender bias by the very persons involved in setting salaries. Thus, in our view, genuinely disputed issues of fact have been presented sufficient to submit the resolution of plaintiff's claims to a jury for ultimate disposition. Brill, supra, 142 N.J. at 523. Moreover, because plaintiff has established a prima facie case of unequal pay for the performance of substantially equal work, "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." Grigoletti, supra, 118 N.J. at 110. Nevertheless, plaintiff concedes that the duties she performs as Tax Assessor are not similar to the duties performed by the male department heads. Id. at 113. Consequently, she has no separate claim of wage discrimination based upon wage differentials between male and female department heads under either the classic EPA approach or the McDonnell Douglas approach. Id. at 110. Therefore, consideration of the wage differentials between female and male department heads is only relevant to rebut defendant's contention that factors other than gender explain the wage differentials offered, as between plaintiff and her predecessor. West v. Philadelphia Elec. Co., 45 F.3d 744, 748 (3rd Cir. 1995) (holding statutory limitations period which precluded certain claims did not necessarily preclude consideration of pre-statute acts bearing on work environment and on employer's awareness of that environment). II.
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Plaintiff's hostile work environment claim is premised upon three allegations: (1) the "sex card" comment made by Councilperson Rosenberger; (2) the "glorified secretaries" comment made by Councilperson Bingham; and (3) the difference in pay between the male department heads and the female department heads. She argues the trial court relied on the wrong standard by requiring plaintiff to show the complained-of actions were severe and pervasive instead of severe or pervasive. Plaintiff further argues that the situation was exacerbated by the City's failure to properly investigate her sexual harassment complaints. In Lehmann v. Toys 'R' Us, 132 N.J. 587 (1993), the Supreme Court set forth the prerequisite for establishing a prima facie case of hostile work environment: the complained of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. Id. at 603-04. The "sex card" comment, although offensive to plaintiff, does not rise to the level of severity required under the LAD. Ibid. At best, Rosenberger's comment was an unfair or incorrect accusation in response to plaintiff's claim of disparate treatment between female and male department heads rather than an unwelcome comment directed to plaintiff because of her gender. Likewise, the comment that female department heads were "glorified secretaries," which was not made directly to plaintiff, does not rise to the required level of severity or pervasiveness. We agree with the motion judge's findings that the two comments were, "in each instance and together isolated comments that in any event were neither pervasive nor severe nor could create as a matter of law in any reasonable employee any sense of hostile work environment as that is defined in the law." Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999). Finally, in the absence of other evidence of sexual harassment hostile work environment, plaintiff points to no authority that stands for the principle that a wage discrimination claim, which typically involves a discrete claim and for which there is a separate remedy under the EPA or the LAD, may also, standing alone, form the basis of a hostile work environment claim. Caggiano v. Fontoura, 354 N.J. Super. 111, 128 (App. Div. 2002) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S. Ct. 2061, 2077, 153 L. Ed.2d 106, 128 (2002)); see also Clay v. Quartet Mfg. Co., 644 F. Supp. 56, 60 (N.D. Ill. 1986) (finding sexual harassment is not reasonably related to a wage discrimination claim). Affirmed in part, reversed in part, and remanded for trial on plaintiff's wage discrimination claim. We do not retain jurisdiction.

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Defendant has not appealed these rulings. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973). In light of the motion judge's ultimate findings, we are satisfied that his use of the word "and" rather than "or" between the words "severe" and "pervasive" in his oral decision was inadvertent. (continued) (continued) 18 A-2713-04T5 August 30, 2006 0x01 graphic

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