PAULA ALEXANDER, JOAN COLL and CHERYL THOMPSON-SARD v.
State: New Jersey
Docket No: none
Case Date: 12/07/2009
(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1251-08T3
PAULA ALEXANDER, JOAN COLL,
and CHERYL THOMPSON-SARD,
Plaintiffs-Appellants,
v. APPROVED FOR PUBLICATION
December 7, 2009
SETON HALL UNIVERSITY, JOHN J.
MYERS, Archbishop of Newark,
APPELLATE DIVISION
President of Board of Regents,
and Chair of Board of Trustees,
and individually, ROBERT SHEERAN,
President and individually,
PAULA BULEY,1 Executive Vice
President and individually,
KAREN E. BOROFF, Dean of Stillman
School of Business, and JOSEPH
DEPIERRO, Dean of College of
Education and Human Services,
Defendants-Respondents.
September 16, 2009 - Decided: December 7, 2009
Argued:
Before Judges Stern, Graves and J.N. Harris.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket
No. L-6089-07.
1
This name was incorrectly identified in original caption as
"Beuhle."
Patricia Breuninger argued the cause for
appellants (Breuninger & Fellman, attorneys;
Ms. Breuninger, on the brief).
Rosemary S. Gousman argued the cause for
respondents (Fisher & Phillips, LLP,
attorneys; Ms. Gousman, of counsel; David J.
Treibman, on the brief).
The opinion of the court was delivered by
STERN, P.J.A.D.
This is a pay discrimination case based on sex and age.
Plaintiffs appeal from a "consent amended final order of
dismissal,"2 dismissing the balance of their complaint after the
motion judge had previously, on May 2, 2008, dismissed "the
allegations of [p]laintiffs' [c]omplaint that relate to wage
decisions made prior to July 27, 2005, or the impact of those
decisions upon plaintiffs' salaries following July 27, 2005,"
two years prior to the filing of the complaint on July 27, 2007.
Plaintiffs argue "the refusal of the trial court to recognize
the 'continuing violation' doctrine in plaintiffs' allegations
of pay disparities was contrary to New Jersey law" and that the
2
Plaintiffs moved to dismiss the balance of the complaint
because the order "effectively dismisses the entire [c]omplaint
since nothing remains to be pursued. No 'discrete acts' of
discrimination are alleged during the statute of limitations
period." The order therefore states the "[c]omplaint []
relate[s] to wage decisions made prior to July 27, 2005, or have
been remedied by wage adjustments made at or after the filing of
the complaint." Thus, there is no issue of finality caused by
the voluntary dismissal of part of the complaint. Cf. Grow Co.,
Inc. v. Chokshi,
403 N.J. Super. 443, 457-61 (App. Div. 2008).
A-1251-08T3
2
trial court "erred in holding that [the United States Supreme
Court's opinion in] Ledbetter [v. Goodyear Tire & Rubber Co.,
550 U.S. 618,
127 S. Ct. 2162,
167 L. Ed. 2d 982 (2007)] is
controlling in the present case."
The suit was commenced by three long-time female Seton Hall
University professors who alleged age and sex discrimination in
pay in violation of the New Jersey Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 et. seq. As noted, the trial court
dismissed all claims arising two or more years before July 27,
2005, the date on which the complaint was filed. Plaintiffs
allege that, because discovery was not completed, they do not
know when the disparity commenced, but believe it "continued"
until within two years of the complaint. However, defendant
Seton Hall,3 in essence, contends that any pay discrimination was
based on a "discrete act" as of the time any disparity
commenced, which was outside the statute of limitations (that is
more than two years before the complaint was filed), that the
"continuing violation" doctrine is inapplicable, and that
Ledbetter controls. We agree, and affirm the judgment
substantially for the reasons stated by Judge Alfonse J. Cifelli
in his oral opinion of May 2, 2008, as supplemented herein.
3
Because the individual defendants are all Seton Hall officials,
we refer to all defendants as Seton Hall or defendant.
A-1251-08T3
3
Because the dismissal, on statute of limitations grounds,
was entered pursuant to R. 4:6-2(e), we treat the plaintiffs'
See Banco
allegations as true for purposes of this opinion.
Popular v. Gandi,
184 N.J. 161, 165-66 (2005). Plaintiff
Alexander began her employment at Seton Hall in 1976, has been a
tenured Associate Professor in the Management Department of the
Stillman School of Business since 1981, and was sixty-two years
old at the time the complaint was filed. Plaintiff Coll began
her employment at the University in 1981, became a tenured Full
Professor, the highest rank at the University, in the Management
Department of the Stillman School of Business in 1994, and was
sixty-five at the time the complaint was filed. Plaintiff
Thompson-Sard began her employment with Seton Hall in 1987,
became a tenured Associate Professor in the College of Education
and Human Services, Department of Professional Psychology and
Family Therapy in 1991, and was sixty-one at the time the
complaint was filed.
In the fall of 2004 and fall of 2005, Seton Hall compiled
summaries of faculty information arranged by college, gender,
rank, and salary. Plaintiffs obtained copies of these
summaries. In their complaint plaintiffs claimed that, although
they had "always suspected that men earned more" than women in
the same position, they learned in August 2005, when they
A-1251-08T3
4
obtained the summaries, that this was true. They alleged that
their salaries were disproportionately lower than male, "newer
[and] [] younger faculty members," holding similar positions for
the same or shorter periods: "[p]laintiffs claim discriminatory
discrepancies between their salaries and those earned by younger
and by male employees" and that "the older, tenured, higher
ranking professors have suffered lost income in order for the
University to finance the salaries of younger, less experienced,
newer professors----many even before becoming tenured."
Plaintiffs argue that their discrimination allegations are
timely under the "continuing violations" doctrine, and that the
doctrine applies to cases alleging discriminatory pay disparity.
They further contend that Ledbetter, supra,
550 U.S. at 618,
127 S. Ct. at 2162,
167 L. Ed. 2d at 982, a pay discrimination case
arising under Title VII, 42 U.S.C.A.
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