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DUBOWSKY v. STERN

April 9, 1996

BARI M. DUBOWSKY, PLAINTIFF,
v.
STERN, LAVINTHAL, NORGAARD & DALY, a Partnership of the State of New Jersey, BENNETT M. STERN, FREDERIC L. LAVINTHAL, EDWIN M. LAVINTHAL, GARY K. NORGAARD and JOSEPH T. DALY, DEFENDANTS.



The opinion of the court was delivered by: LIFLAND

 LIFLAND, District Judge

 Plaintiff's complaint charges defendants, her previous employer and individual partners thereof, with employment discrimination in violation of the Equal Pay Act, the New Jersey Law Against Discrimination, and the New Jersey equal pay statute. Plaintiff also brings supplemental state contract claims. Presently before the Court is defendants' motion for partial summary judgment on plaintiff's three employment discrimination claims. For the reasons set forth below, defendants' motion will be denied.

 Background

 Plaintiff, an attorney, was employed by defendant law firm from February 26, 1990 through July 10, 1992. Plaintiff's Brief Ex. 1. She was hired at a yearly salary of $ 42,000 and received an increase on August 12, 1991, making her yearly salary $ 46,200. Id. She voluntarily left her employment with defendant, still earning $ 46,200 yearly. Dubowsky Cert. P 3. Her claims are based primarily on differences in salary that existed between her and various male associates of the firm during and after her tenure.

 The parties have stipulated to the starting and ending employment dates, salaries and increases, and years of bar admission of the firm's associates from 1985 through 1994. See Plaintiff's Brief, Ex. 1 ("Chart"). Plaintiff was paid less than all other associates at the firm at all times during her employment there, with the exception of Richard Kapner, who earned $ 3,300 less than plaintiff from the time of plaintiff's August 1991 raise until she left the firm in July 1992. Id. Nor do the parties dispute that certain male associates were granted greater profit sharing on clients whose business they brought to the firm. Frederic Lavinthal Dep. 9-30-93 ("F. Lav. I") at 89, 91; Stern Dep. at 82-83. Plaintiff also contends that her raise was delayed by six months whereas males' raises were implemented in a speedy manner. Dubowsky Cert. P 10-11. Defendants do not deny the delay in implementing plaintiff's pay increase but counter that other employees' raises were not implemented according to any particular time frame. F. Lav. I at 82-83.

 Defendants deny other of plaintiffs' allegations. Plaintiff claims that she was told by Frederic Lavinthal that associate Richard Panitch received a higher rate of pay because he was married and had concomitant responsibilities. Dubowsky Cert. P 23. See also Stern Dep. at 83:23-84:7, 90:13-25 (commenting that greater profit sharing granted to male associate with young children). Defendants deny this allegation. F. Lav. I at 117. Plaintiff also swears that a partner at the firm, Bennett Stern, frequently made comments about women's "hormonal problems," and requested that she wear a short skirt to a meeting with persons from outside the firm and cross her legs so as to distract them. Dubowsky Cert. P 24. She further alleges that Edwin Lavinthal encouraged her to wear short skirts and dresses (id. at P 25), and that she overheard a partner in a meeting state that "females are cheaper than males." Dubowsky Dep. 3-10-94 at 98, 116-17, 123. Furthermore, plaintiff claims that she was never invited to lunch by the partners, who were all male, whereas the male associates were regularly invited. Dubowsky Cert. P 26.

 In summary, defendants testify that they had no set criteria for establishing salaries. See, e.g., Stern Dep. at 25:16-17. Salary decisions were made in meetings of the entire partnership. F. Lav. I at 7, 31. Testimony of various partners presents inconsistent accounts of important salary setting criteria, reflecting that defendants themselves do not agree as to the basis of the salaries they paid. Testimony from the partners refers to pedigree (F. Lav. I at 19-23), longevity at the bar (F. Lav. I at 83, 107), prior experience, references, previous salary, and other factors. F. Lavinthal Dep. 3-9-94 ("F. Lav. II") at 59-60. However, there is also testimony from various partners, and sometimes from the same partners, that these were not important factors. F. Lav. II at 59 (longevity at bar not important); Stern Dep. at 49 (previous salary not important). Overall, defendants have testified that each potential associate was evaluated on his or her own merits (F. Lav. I at 104), without comparison to other associates at the firm, and that the firm then offered whatever it thought the employee was worth. Stern Dep. at 25-27, F. Lav. II at 59. In the words of defendant Stern: "We don't have guidelines. I mean there's no measure." Stern Dep. at 27:17-19.

 Defendants' Motion for Partial Summary Judgment

 Defendants move for partial summary judgment. Rule 56(c) of the Federal Rules of Civil Procedure directs a district court to grant summary judgment:

 
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 and that the moving party is entitled to a judgment as a matter of law.

 The burden of showing that no genuine issue of material fact exists rests initially with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party shows that there is an absence of evidence to support the non-moving party's case, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P, 56(e); Celotex, 477 U.S. at 323-25; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-moving party may establish that the case presents a genuine issue for trial by showing that there is sufficient evidence favoring the non-moving party to enable a reasonable fact finder to return a verdict in that party's favor. Anderson, 477 U.S. at 249. In evaluating a motion for summary judgment, the court must view the facts, and the reasonable inferences therefrom, in the light most favorable to the non-moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).

 Plaintiff's Equal Pay Act Claim

 Plaintiff claims that defendants paid her less than male employees for substantially equal work on account of her gender, in violation of the Equal Pay Act ("EPA"). 29 U.S.C. § 206(d)(1). In order to establish a prima facie case under the EPA, plaintiff 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 (1974) (citation omitted); see also Brobst v. Columbus Service Int'l, 824 F.2d 271, 274 (3d Cir. 1987), cert. denied, 484 U.S. 1043, 98 L. Ed. 2d 863, 108 S. Ct. 777 (1988); 29 U.S.C. § 206(d)(1) (1987). The claimant must show that she and the male comparator(s) were paid unequally for "substantially equal" work, that is "work of substantially equal skill, effort and responsibility, under similar working conditions." E.E.O.C. v. State of Del. Dept. of Health and Social Services, 865 F.2d 1408, 1413-14 (3d Cir. 1989). The main determining factor in the "substantial equality" of the jobs is whether the jobs involve "a common core of tasks." Factors to be considered in determining whether tasks are similar include whether they require similar quality and quantity of production, education, relevant prior work experience, conduct and skill. 29 C.F.R. § 1620.13.

 For purposes of establishing a prima facie case, it is the jobs, and not the individuals who held the jobs, that the Court must compare. See Mulhall v. Advance Sec., Inc., 19 F.3d 586, 592 (11th Cir. 1994), cert. denied, 115 S. Ct. 298 (1994). Plaintiff need only establish that she was paid differentially because of her sex with respect to a single male employee to prove her EPA claim. See Mulhall, 19 F.3d at 590, citing, Mitchell v. Jefferson County Bd. of Ed., 936 F.2d 539, 547 (11th Cir. 1991).

 If plaintiff establishes a prima facie case, the burden of persuasion shifts to defendants to establish one of four exceptions under the EPA. 29 U.S.C. § 206(d)(1). The employer may exempt itself from liability only by showing that the differential payments were made pursuant to: (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex. Id. Acceptable factors other than sex include education, experience, prior salary, or any other factor related to performance of the job. At this stage of the analysis, in contrast with the prima facie stage, it is appropriate to compare the employees who filled the jobs, inasmuchas the differences in their qualifications related to the jobs they performed.

 If defendants succeed in proving an affirmative defense, plaintiff may still prove her case by establishing that the nondiscriminatory justification offered by the defendants is a pretext for discrimination. E.E.O.C., 865 F.2d at 1414, n.8. Plaintiff need not prove that defendants intentionally discriminated against her. Id.; Mitchell, 936 F.2d at 547. However, proof of discriminatory intent would serve as evidence that the employer's espoused non-discriminatory explanation is pretextual. E.E.O.C., 865 F.2d at 1414, n.8.

 Thus, by moving for summary judgment under the EPA, defendants thrust before the Court for scrutiny not only the merits of plaintiff's evidence, but the strength of their own defense, and must establish that there is an absence of any issue for jury resolution. Mulhall, 19 F.3d at 594.

 Plaintiff's Prima Facie Case

 Unequal Pay

 Plaintiff utilizes three different Stern, Lavinthal associates as comparators for purposes of her EPA claim: Marc Alster, Richard Panitch, and Daniel Nider. There is no dispute that all three earned more money than plaintiff. See Chart.

 Defendants ask the Court to compare all of their associates' salaries and tenures at the bar, in an attempt to show that the associates' salaries, on the whole, were "all over the lot." In an EPA case, however, it is entirely appropriate for plaintiff to compare herself to individual male employees. See, e.g., Mulhall, 19 F.3d at 596. Plaintiff need not establish a pattern and practice of sex discrimination. To the contrary, she need only establish that she was paid less than a single male employee for equal work on the basis of sex to prevail on her claim. See Mulhall, 19 F.3d at 590, citing, Mitchell, 936 F.2d at 547. As the parties agree that plaintiff was paid less than her male co-workers, the Court must determine if the record evidences a dispute as to the substantial equality of the jobs performed by plaintiff and her comparators.

 Substantially Equal ...


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