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Bitsko v. Main Pharmacy

April 4, 1996

BLODWEN BITSKO, PLAINTIFF-APPELLANT,
v.
MAIN PHARMACY, INC. AND DENIS CAMPBELL, J/S/A, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court, Law Division, Monmouth County.

Approved for Publication April 4, 1996.

Before Judges Skillman, P.g. Levy and Eichen. The opinion of the court was delivered by Eichen, J.A.D.

The opinion of the court was delivered by: Eichen

The opinion of the court was delivered by EICHEN, J.A.D.

This is an employment discrimination case. Plaintiff, a registered pharmacist, contends she suffered unlawful gender and age discrimination because she was paid less than younger male pharmacists performing comparable work. The appeal presents issues under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), concerning the proper methodology for determining gender and age discrimination claims based on unequal pay when brought in the same litigation.

The jury rendered a verdict in favor of defendants on both the age and gender discrimination claims. The jury found "by the preponderance of the evidence" that plaintiff was paid less than the younger, male pharmacists "with substantially similar job descriptions," but concluded that defendants had "a legitimate nondiscriminatory reason" for the wage disparity. On this appeal, plaintiff maintains the trial Judge should have granted a directed verdict in her favor as a matter of law at the close of plaintiff's proofs, because defendants' purportedly "legitimate nondiscriminatory reasons" amounted to no more than subjective evaluations of plaintiff's performance which, she argues, are legally insufficient as a basis for exempting defendants from the equal pay requirements under the LAD. Plaintiff further asserts that the Judge's rejection of her motion for a directed verdict inevitably led to further error in the form of improper evidentiary rulings, jury instructions, and verdict sheets and, ultimately, to the wrongful denial of her motions for judgment n.o.v. or a new trial, from which she now appeals. We disagree and affirm.

In Grigoletti v. Ortho Pharmaceutical, 118 N.J. 89, 109-10, 570 A.2d 903 (1990), our Supreme Court held that in a wage disparity case brought under the LAD on the basis of gender-discrimination, the methodology and standards of the Equal Pay Act, 29 U.S.C.A. § 206(d) (EPA), should be followed rather than the methodology and standards established under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2 (Title VII). Hence, to make out a prima facie case of unequal pay based on gender discrimination under the LAD, a complainant "must show that an employer pays different wages to employees of opposite sexes 'for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.'" Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S. Ct. 2223, 2228, 41 L. Ed. 2d 1, 10 (1974) (quoting 29 U.S.C.A. § 206(d)(1)). See Grigoletti, supra, 118 N.J. at 102. Once a complainant makes out such a prima facie case, the burden then shifts to the employer to prove by the preponderance of the evidence that the difference in pay is justified by one of four affirmative defenses under the EPA: "(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." Grigoletti, supra, 118 N.J. at 102-03 (quoting the EPA, 29 U.S.C.A. § 206(d)).

By contrast, an age-discrimination case involving unequal pay for equal work asserted under the LAD is governed by the "broader approach" of Title VII, id. at 98; see Shaner v. Horizon Bancorp, 116 N.J. 433, 437, 561 A.2d 1130 (1989), and imposes a "less exacting" burden on the complainant to prove a prima facie case of job similarity. Grigoletti, supra, 118 N.J. at 101. On the other hand, the defense of an age discrimination case based on allegations of unequal pay for equal work under Title VII is less onerous for the employer than under the EPA because, under Title VII, the employer need only come forward, without "any particular evidential showing," and "articulate a legitimate reason" for the disparate treatment, id. at 103, leaving the ultimate burden of proof on the complainant to show age discrimination by the preponderance of the evidence. Id. at 98.

In this case, it is undisputed that plaintiff established a prima facie case of unequal pay for comparable work based on age and gender under the LAD. Accordingly, the burden shifted to defendants to demonstrate they were exempt from paying plaintiff an equal wage. On appeal, as below, defendants claim they met their burden under the EPA, as to plaintiff's gender-based claim, by showing by the preponderance of the evidence that the pay differential was based on "factor[s] other than sex" (the fourth affirmative defense). Likewise, as to plaintiff's age-based claim under Title VII, defendants claim they met their burden of coming forward to articulate legitimate reasons for the disparity. Implicit in defendant's position is the assertion that factors other than sex under the EPA are substantially equivalent to "legitimate reasons" under Title VII and that the evidence presented was sufficiently objective to overcome plaintiff's motion for a directed verdict and to support the jury's ultimate verdict in their favor.

These are the relevant facts. Plaintiff Blodwen Bitsko, a registered pharmacist, filed a complaint against defendant Main Pharmacy, Inc. and Denis Campbell, the manager and sole shareholder of the company, alleging that the younger, male pharmacists earned higher salaries than she did for the same work in violation of the LAD and that defendants' conduct amounted to a constructive discharge.

Plaintiff began her employment at Main Pharmacy as a part-time pharmacist in September 1977 at age forty-eight shortly before her former employer, Squan Drugs, closed and defendants acquired its prescription files. Plaintiff had been a pharmacist since 1958. In 1979, Campbell hired a full-time male pharmacist and, one year later, in August 1980, plaintiff assumed full-time duties as a pharmacist at Main Pharmacy. Between 1983 and 1988, Campbell added two more full-time male pharmacists, Nicholas DiBenedetto and Glen Rassas, and three additional part-time female pharmacists, and expanded the operation such that the pharmacy employed a total of forty to fifty employees, including clerical and sales help. All the pharmacists had the same duties, which included dispensing prescribed medications, advising customers about medications, and performing other necessary duties. Campbell, as the sole owner of Main Pharmacy, made all employment decisions and worked in the pharmacy approximately sixty hours per week.

In November 1988, the plaintiff learned that she was paid less than the full-time, younger, male pharmacists. It would appear that in 1988, plaintiff earned $34,881.20 in wages whereas DiBenedetto earned $39,331.20. *fn1 Plaintiff testified that upon learning of the disparity, she felt "shocked, hurt, ... and betrayed," because she had considered Campbell a friend. Plaintiff also testified that she was particularly shocked by the disparity because she had never received any criticism of her work from Campbell, only compliments. She further testified that she was never put on any type of probation, reprimanded, or disciplined, nor was she ever given advice or comments on improving productivity or care during her tenure at Main Pharmacy. After learning of the salary differential between herself and the younger, male pharmacists, plaintiff decided to seek other employment and obtained a pharmacist position at Thrift Drug, earning an additional $10,000 per year. On February 10, 1989, she left her employment at Main Pharmacy, claiming constructive discharge. Thereafter, plaintiff filed the complaint culminating in this appeal.

At trial, Campbell testified that his criteria in assessing employees for salary increases consisted of his personal impression of their economic benefit to the store at that time and in the future. His testimony was drastically different than plaintiff's concerning the value of her work. Campbell testified that plaintiff's performance was not equal to that of her peers in customer service or general speed. He further testified that he often helped her and later was forced to keep a part-time pharmacist on duty to assist at times because of the backlogs created when she was working. While he conceded he did not ever specifically reprimand her about her performance, he did make comments to her suggesting that she needed to increase the pace.

Campbell worked long hours in the store, frequently side-by-side with plaintiff and the other pharmacists, and thus had an ample basis upon which to compare their performances. While the results of Campbell's assessment of plaintiff were not communicated to her, Campbell testified that this was because he believed confrontation was not beneficial and that ...


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