The opinion of the court was delivered by: Orlofsky, District Judge.
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
For the reasons set forth below, I shall grant the Defendants'
motion for summary judgment on Counts I, II and IV of the Amended
Complaint, because Murphy cannot establish a prima facie case of
unlawful reverse employment discrimination in violation
of Title VII or the New Jersey Law Against Discrimination
("NJLAD"), and, alternatively, because Murphy has failed to
produce even a scintilla of evidence tending to show that the
Defendants' proffered nondiscriminatory reasons for the adverse
employment decisions were merely a pretext for invidious
discrimination. In addition, I shall grant the Defendants' motion
for summary judgment on Count III of the Amended Complaint,
because per quod claims are not cognizable in cases involving
claims of employment discrimination in violation of Title VII and
the NJLAD, and because as a derivative claim, a per quod claim
cannot survive if the underlying claim fails.
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
Prior Board Resolutions regarding Mid Range Salary
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
Prior Years of Experience
(4 years at 5%) $6,774.71
(Per Personnel Policy)
Value of Added Responsibilities $9,726.74
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,
[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
[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,
Q. [I]t's your understanding that Todd Murphy was
supposed to be receiving the mid range salary [for
the position of Supervising Accountant]?
. . . [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?
. . . The policy didn't address ...