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MURPHY v. HOUSING AUTHORITY

January 27, 1999

TODD MURPHY, AND ROSEANN MURPHY, PLAINTIFFS,
v.
HOUSING AUTHORITY AND URBAN REDEVELOPMENT AGENCY OF THE CITY OF ATLANTIC CITY, A NEW JERSEY MUNICIPAL CORPORATION, JOHN GLOWACKI; JOHN J. MCAVADDY, JR., JOHN P. WHITTINGTON, AND JOHN DOES 1 THROUGH 15, DEFENDANTS.



The opinion of the court was delivered by: Orlofsky, District Judge.

  OPINION

This case requires this Court to examine and apply the appropriate legal standard to allegations of "reverse discrimination" on the basis of race and gender, brought by a white male employee who claims to have been victimized by his employer because of his "majority status." Plaintiffs, Todd and Roseann Murphy, his wife, have filed an Amended Complaint against Defendants, Housing Authority and Urban Redevelopment Agency of the City of Atlantic City, John Glowacki, John J. McAvaddy, Jr., and John P. Whittington, alleging three counts of unlawful reverse employment discrimination on the basis of race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq., and one count for per quod damages for loss of care, comfort, society and consortium. Defendants moved for summary judgment, contending that Plaintiffs have failed to establish a prima facie case of reverse employment discrimination, and that per quod damages are not cognizable in employment discrimination cases. Plaintiffs oppose the motion, contending that genuine issues of material fact preclude the entry of summary judgment. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331,*fn1 and 28 U.S.C. § 1367.*fn2

I. BACKGROUND

On March 27, 1997, Todd Murphy ("Murphy") and his wife, Roseann Murphy, filed a complaint against the Defendants, Housing Authority and Urban Redevelopment Agency of the City of Atlantic City (the "Authority"); John Glowacki ("Glowacki"), the Director of Administration for the Authority; John J. McAvaddy, Jr. ("McAvaddy"), the Executive Director for the Authority; and John P. Whittington ("Whittington"), the Chairman of the Authority's Board of Commissioners (collectively, the "Defendants"), alleging causes of action for employment discrimination, as well as a per quod cause of action for loss of care, comfort, society, and consortium. See Complaint (filed Mar. 27, 1997). Subsequently, on December 31, 1997, Murphy amended the complaint to allege four counts: (1) Count I, unlawful reverse employment discrimination based on race and sex; (2) Count II, unlawful reverse employment discrimination in violation of the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq.;*fn3 (3) Count III, a per quod cause of action by Roseann Murphy for loss of companionship, society, comfort, care, service and consortium; and (4) Count IV, unlawful reverse employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").*fn4 See Amended Complaint (filed Dec. 31, 1997).

On February 13, 1991, Murphy, a white male, applied for an accounting position with the Authority. See Plaintiff's Amended Certification in Opposition to Summary Judgment ("Pl.Cert."), Exh. O (Employment Application, dated Feb. 13, 1991). Murphy, a graduate of Stockton State College with a major in Accounting, requested a minimum starting salary of $21,000. See id. After interviewing with Glowacki and the Authority's Personnel Officer, the Authority hired Murphy on March 1, 1991, as an Accounting Assistant, with a starting salary of $16,040. See Defendants' Brief in Support of Summary Judgment ("Def.Brief"), Exh. B (Deposition of Todd Murphy at 5, 40 (dated Jan. 31, 1998)), Exh. A (Authority Pay-Roll Records at 1). Shortly after being hired, in April, 1991, the Authority raised Murphy's salary by five percent. See Def. Brief, Exh. A at 1; Murphy Dep. at 9. Subsequently, in November, 1991, Murphy received an additional $1000 raise. See Def. Brief, Exh. A at 1; Murphy Dep. at 10.

The Authority has promulgated policies governing the amount of a raise which can be awarded when an existing employee is promoted. See Pl. Cert., Exh. A (Deposition of James Walsh, at 25-29, dated Feb. 17, 1998), Exh. F (Transcript of Authority Board Meeting, Executive Session, at 2-8, dated Sept. 28, 1995). At all times relevant to this case, the Authority had a policy stating that all existing employees who were promoted would receive a raise of ten percent of their present salary, or a raise bringing the promoted employee's salary to the entry level salary of the new position. See id.; Pl. Cert., Exhs. T (Deposition of John Glowacki, at 13, Feb. 19, 1998), and Q (Transcript of Authority Board Meeting, Closed Session, at 2, dated March 27, 1997); see also Def. Brief, Exh. C (Memorandum from Murphy to McAvaddy, dated Sept. 1, 1995); Murphy Dep. at 35, 49. A promoted employee could obtain a larger raise by petitioning the Personnel Committee of the Board of Commissioners for an exception to the ten percent salary increase policy. See Def. Brief, Exh. C; see also id. Exh. D (Affidavit of John Glowacki, dated June 12, 1998); Pl. Cert., Exh. F at 2-8.

As Murphy's responsibilities increased at the Authority, his salary also increased. In early 1992, Murphy was promoted from Accounting Assistant to Full-time Accountant. See Def. Brief, Exh. A at 1; Murphy Dep. at 10. He received a ten percent raise. See Def. Brief, Exh. A at 1; Murphy Dep. at 10. In addition, in April, 1992, the Authority raised Murphy's salary by an additional five percent. See Def. Brief, Exh. A at 1. Eight months later, in December, 1992, the Authority gave Murphy another raise in the amount of $2,200 for taking on additional responsibilities. See Murphy Dep. at 12; see also Def. Brief, Exh. A at 1. Subsequently, in April, 1993, Murphy received an annual raise of 5.9 percent. See Murphy Dep. at 12.

In February, 1994, the Authority promoted Murphy to Senior Accountant; and he received a ten percent raise with the promotion. See id. Two months later, in April, 1994, Murphy received an annual raise of five percent. See id. In March, 1995, the Authority made Murphy a permanent Senior Accountant. See id. at 12-13.

In September, 1995, the Authority promoted Murphy once again to Supervising Accountant. See id. at 13. With the promotion, Murphy received a ten percent increase in salary. See id.

Prior to being promoted to Supervising Accountant, on September 1, 1995, Murphy sent a memorandum to the Executive Director of the Authority, McAvaddy, requesting the promotion to Supervising Accountant and also requesting an exception to the ten percent salary increase policy. See Def. Brief, Exh. C. Under the existing policy, upon his promotion to Supervising Accountant, Murphy's salary would be increased from $30,823.48 to $33,905.76. See Def. Brief, Exh. A at 1. In his memorandum, Murphy requested a raise in excess of $19,550, to a salary level of $50,375. See Def. Brief, Exh. C. The requested raise equaled more than 60% of Murphy's existing salary of $30,823.48. See id., Exhs. A, C. The raise would have placed Murphy at the mid-range of the salary scale for the position of Supervising Accountant. See id., Exh. C. The requested raise would also have placed Murphy at a salary level above his immediate supervisor, the Authority's Comptroller, Robert Lawless, who received a salary of $40,180. See Murphy Dep. at 17-21; see also Def. Brief, Exh. D (Glowacki Aff.).

In his memorandum of September 1, 1995, Murphy listed his reasons for seeking such a large salary increase. See id. First, Murphy presumed that the Authority would not renew the services contract of an outside certified public accountant. See id. He surmised that the outside fee accountant's duties would fall to him as Supervising Accountant for the Authority. See id. Second, Murphy wrote:

  I am also requesting to be brought up to the Mid
  Range of the position which is $50,375. This request
  would be a calculation based on the following
  factors:
    Prior Board Resolutions regarding Mid Range Salary
    Adjustments

Compensation for added responsibility

Past Inequities in starting salaries

Credit for prior years of experience

  I have come up with a formula which follows not only
  the current policy, but in fact incorporates several
  prior actions taken by the Board of Commissioners.
  These include salary adjustments for added
  responsibility and past inequities in starting
  salaries. . . . I am requesting an exception to the
  personnel policy which would allow me the opportunity
  to seek equity in this new position for the added
  responsibility and past inequities in the starting
  salary for my current title. The formula I have come
  up with is as follows.
  Current Salary                   $30,794.14
  Promotion 10%                    $3,079.41
                                   __________
                                   $33,873.55
  Prior Years of Experience
  (4 years at 5%)                   $6,774.71
  (Per Personnel Policy)
  Value of Added Responsibilities  $9,726.74
                                   __________
  (Past Inequities)
  Mid Range of Position            $50,375.00

See Def. Brief, Exh. C. To support his request, Murphy listed five examples in which the Board of Commissioners approved salary increases in excess of 10% for other employees:

  Resolution # 4866 granted Ronald Coleman[, an
  African-American male,] an increase in his starting
  salary of his new position based on past inequities.
  Resolution 4836 granted Deborah Mitchell[, an
  African-American female,] . . . compensation to bring
  her up to Mid Range of the Director of Management
  title[,] . . . based on "Compensation for added
  responsibility." Resolution # 5050 granted Charles
  Hargrove[, an African-American male,] a positive
  salary adjustment beyond the Mid Range . . . based on
  performance and prior experience. . . . Rhega
  Taylor[, an African-American female,] not only
  [received] a $6,000.00 increase but then an
  additional $2,000.00 bonus. . . . Sharon Miller[, an
  African-American female, was granted] a $5,000.00
  increase for added responsibility. . . .

See Def. Brief, Exh. C. In concluding the memorandum, Murphy wrote: "[T]he information I have provided in the previous examples allows me to be brought up to the Mid Range of the Supervising Accountant position. This is based on exceptions that I have set forth. Therefore, my request for a promotion and adjustment to the Mid Range is not uncommon." See id.

On September 28, 1995, the Authority's Board of Commissioners considered Murphy's request for promotion and request for an exception to the ten percent salary increase policy. See Pl. Cert., Exh. F (Transcript of the Authority's Board Meeting, Executive Session, dated Sept. 28, 1998). At the meeting, regarding Murphy's requests, Glowacki informed the members of the Board of Commissioners:

  There is no question about this man's competence, or
  ability, or interest. He's one of the best employees
  I have. The problem is that there's — he's asking for
  additional money beyond what the personnel policy
  permits. [The][p]ersonnel policy now says, that when
  you're promoted you get a 10 percent increase, or,
  you move to the lowest [salary] level of the next
  job. In his case, he'll get a 10 percent increase. He
  was asking for consideration to take him beyond that.
  And, he was using as a precedent the item in our
  personnel policy that permits us to take new
  employees, when we hire them, and consider their
  experience and where it exceeds the minimum
  requirement, to give five percent for each year,
  beyond which, you know, their experience takes them.
  We never put a provision in there to enable that for
  people getting a promotion. . . . I think it's a bad
  move. I think as long as we have the provision in
  there that takes into consideration the experience at
  the time of hire, if a person moves on and gets
  promoted, that's already been considered. And, at the
  time of promotion there would be no need to consider
  it a second time. That's my opinion.
  I'm afraid . . . that if you do this in one instance
  you're going to have a rash of incidents. And every
  time somebody comes up for promotion, you're going to
  have to go through heart rendering [sic] discussion.
  And, you know, I like this guy. I would love to do
  and I've already promoted

  him several times in recognition of his good work.
  But I don't want to recommend it as a whole salary
  change and in his case I think we have to draw the
  line there. I know he's going to be angry but I think
  that's what we have to do. That's my opinion.

See Pl. Cert., Exh. F at 3-4.

In agreement with Glowacki, at the September 28, 1995, meeting, McAvaddy stated:

  [Murphy] was using the calculations that we use for
  new hires. . . . And he was using that into his
  calculations which would have brought him up to
  $37,000 or $38,000. But, on top of that, he was
  using, for example, the things that we cited before,
  Mr. Hargrove's promotion[, Deborah Mitchell's]
  assuming other responsibilities, Rhega Taylor. . . .
  We knew and we mentioned it before, at some point in
  time, we were going to catch hell for this. We should
  take a stand now and say this is — you know. Again, I
  think, if John [Glowacki] thought that the job in
  this particular case . . . warrant[ed] . . .
  additional monies, then I think we would go — we
  would fight for it. But, [Glowacki] thinks that for
  the time that [Murphy has] been here, for the work
  that's involved, and . . . his supervisor[,] . . .
  [w]ho is not of the greatest health. If he should
  leave, then [Murphy] would more than likely have an
  opportunity to be promoted. . . . My point is: At
  some point, in the future, [Murphy] may be there
  where we can [increase his salary to the Mid Range].
  But, to do this now — and, now I think is the time to
  take a stand. . . . [T]here is no objective way,
  mechanism in place for us to do this.

See Pl. Cert., Exh. F at 5-6.

In addition, on the issue of objective criteria, Glowacki added:

  [The Authority has] never really come up with a good
  valid way to handle [merit increases]. And I don't
  believe that this is the way to do it. If at some
  time, we do come up with a good way, he could be
  considered. But, I wouldn't recommend it now.

See id. at 6. Finally, McAvaddy stated: "[Murphy is] a good employee. He's a hard worker. Do anything you ask him to do. Take on additional work, but . . . it's hard for us to come up with a justification that's within the purview [of the policies] that you[, the Board of Commissioners,] have given us." See id.

After discussing the issue of merit increases in general, and additional, unrelated personnel issues, the Board of Commissioners voted to close the executive session. See id. at 8-29. Subsequently, during the open session of the Board of Commissioners meeting, the Board denied Murphy's request for an exception to the ten percent salary increase policy.

Subsequent to the Board of Commissioners' denial of Murphy's request for an exception to the personnel policy, the Board renewed the contract of the outside certified public accountant. See Murphy Dep. at 17-18. Consequently, as the Supervising Accountant, Murphy was not required to assume the duties performed by the outside fee accountant. See id.

After being denied the exception to the personnel policy, Murphy talked with a number of officials at the Authority. See Murphy Dep. at 44-46, 55, 67. Murphy discussed the denial of the exception with James Walsh, a member of the Board of Commissioners. See Murphy Dep. at 55; see also Pl. Cert., Exh. B (Deposition of James Walsh, at 23-24, dated Feb. 17, 1998). Murphy testified that Walsh stated that "if [the Board members] were not [going to give Murphy an exception, like they had given to the other employees referenced in Murphy's memorandum], then [the Authority] was, basically, discriminating against [him]." See Murphy Dep. at 63. Walsh, however, testified:

  Q. [I]t's your understanding that Todd Murphy was
  supposed to be receiving the mid range salary [for
  the position of Supervising Accountant]?

A. No.

  . . . [Murphy] thought[] that he was supposed to be
  at the mid range of the new title.
  Q. Did you agree with that from what you understood
  the policy to be?

A. No.

. . . The policy didn't address ...


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