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Hodgkins v. Kontes Chemistry & Life Sciences Product

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


March 6, 2000

JEAN HODGKINS,
PLAINTIFF,
V.
KONTES CHEMISTRY & LIFE SCIENCES PRODUCT,
DEFENDANT.

The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge

As amended March 16, 2000.

JEAN HODGKINS,
PLAINTIFF,
V.
KONTES CHEMISTRY & LIFE SCIENCES PRODUCT,
DEFENDANT.

Appearances: Eugene Mattioni, Esq. Joseph F. Bouvier, Esq. Mattioni, Llp 216 Haddon Avenue, Suite 100 Westmont, NJ 08108 Attorneys for Plaintiff Robert A. White, Esq. Robert C. Farley, Jr., Esq. Michael J. Ossip, Esq. Morgan, Lewis & Bockius Llp 214 Carnegie Center Princeton, NJ 08540 Attorneys for Defendant

The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge

OPINION

 SIMANDLE, District Judge

Introduction

In the present case, plaintiff Jean Hodgkins contends that defendant, Kontes Glass Company ("Kontes"), discriminated against her on the basis of her gender by, among other things, failing to promote her when two similarly situated male glassblowers were promoted and paying her lesser wages than similarly situated men, in violation of the Title VII, 42 U.S.C. § 2000e-2(a), the Equal Pay Act, 29 U.S.C. § 206, the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. and 34:11-56.2, and by retaliating against her by creating a hostile work environment after she filed a complaint with the EEOC, in violation of 42 U.S.C. §§ 2000e-3a, 2000e-2(a), the Civil Rights Act of 1991, and 42 U.S.C. § 1981. She additionally argues that defendant intentionally inflicted emotional distress upon her, in violation of New Jersey tort law. Now before the Court is defendant's motion for summary judgment on all counts. For the reasons expressed below, defendant's motion will be granted as to Counts I, IV, and VII, and as to Counts III and VI except insofar as Counts III and VI are based on Rick Swartz's actions, and the motion will be denied as to Counts II and V.

I. BACKGROUND

A. Structure of Employees and Promotion at Kontes

Kontes is a manufacturer of scientific glassware for pharmaceutical companies and laboratories. (Joint Final Pretrial Order Stipulated Facts. *fn1 ) The fabrication of Kontes' glassware is done by hand and is highly specialized craftsmanship. Accordingly, Kontes employs skilled artisan glassblowers to create the glassware. (Id.) A scientific glassblower can be a lamp worker or a lathe worker. (Hodgkins Dep. at 21.) Glassblowers in the lathe department, known as lathe operators, use a lathe to turn the glass while the lathe operator utilizes torches and burners to melt and form the glass so that it meets customer specifications. (Ojeda Dep. at 18.) Glassblowers in the lamp room, known as lamp workers, work more free-handed - in that they do not exclusively rely on a lathe - although working with a lathe is an important criteria to becoming a skilled lamp worker. (Id.; Hodgkins Dep. at 116.) Lathe work generally requires less skill than lamp work (Neff Dep. at 14), and thus lamp workers are generally able to perform lathe work while lathe operators have more difficulty performing lamp work. (Ojeda Dep. at 20-21.) Kontes often cross-trains lamp workers in the lathe department to develop the lathe skill, as it is used in the lamp worker's process. (Robbins Dep. at 56.) Experience is a key component of becoming a good glassblower. (Hogkins Dep. at 114.)

Kontes has five classes of glassblowers: (1) trainee, (2) third class, (3) second class, (4) first class, and (5) premium. (Id.) In general, the difficulty and complexity of the work increases with each class so that a premium glassblower is more skilled than a first class glassblower, who is more skilled than a second class glassblower, and so on. (JFPO Stip.) The skill levels of glassblowers can vary within each class. (Id.) Accordingly, each class has a wage range, under which one glassblower may receive a higher wage than another glassblower even though they are in the same class. (Id.) Factors for determining where in pay range an employee is placed include the pay of the employees with similar abilities or skill level, length of experience, and work history. (Ojeda Dep. at 188-190.) However, within, for example, the third class, lamp workers generally work on the same types of projects, those contained within a written job description. (Id. at 26-30, 43- 44.) Similarly, there are written basic requirements in a job description for second class glassblowers. (Id. at 32-34.)

Glassblowers may seek advancement from one class to the next through a testing program (the "Program") implemented in the lamp room in October 1996 and the lathe department approximately one year earlier. (JFPO Stip.) Testing for promotion under the Program is offered twice per year in a two month cycle of April-May and October-November. (Id.) A glassblower may take the test twice during each cycle. (Id.) Thus, if a glassblower is tested in April and fails, she may test again in May. (Id.) To qualify to take the test, an employee has to have a 95% efficiency rating in the current classification. (Ojeda Dep. 73:15- 18.) The efficiency rate is determined by the actual number of pieces completed in an hour, measured against the number of pieces expected to be completed in an hour. (Id. at 78:3-22.) For instance, if a glassblower is expected to complete 100 of a certain type of product in an hour and only completes 85, then the employee's efficiency rating for that particular job would be 85%. (Id. at 78:3-11.) That efficiency rate does not take into consideration the quality of the completed product, such that a glassblower's efficiency rate is based only on the number of successfully completed pieces as reported by the employee and is not adjusted downward by the number of pieces later rejected for poor quality. (Robbins Dep. 143:20 - 145:12.) Each product has a designated efficiency rate. (Id. at 132:1-21.)

To insure consistency in the Program, Kontes identifies a core group of ten products considered a sampling of work that a certain class of glassblower would be expected to complete. (JFPO Stip.) From these ten core items, four are selected for the test (id.), based on customer orders that are on the floor at the time of the test. (Robbins Dep. 115-116.) For example, if a glassblower seeks promotion from third to second class, the glassblower is tested on four out of ten products that have been evaluated to be of the complexity that a second class glassblower would be able to successfully complete. (JFPO Stip.) The Program does not require that a glassblower have prior experience working with the product before being tested on it. (Robbins Dep. at 115-16.) However, Rick Swartz, who administers the test, tries to select pieces on which the employees being tested have previously worked. (Swartz Dep. 94:24 - 95:18.) To pass the test and advance to the next class, a glassblower must achieve an overall efficiency rate of 85% on the test before the products tested can be evaluated for quality. (Ojeda Dep. 77:11-14.) The efficiency rate on the test (unlike the efficiency rate of normally-completed projects which forms the basis of whether an employee is eligible to take the test in the first place) is adjusted by the number of poor quality pieces (Ojeda Dep. 73:12-22). For example, if five of 85 pieces are deemed unsatisfactory, the employee's effective efficiency rating would go down to 80%. (Id. at 78:12-22.)

Prior to October of 1996, when the Program was implemented in the lamp room, an employee could not be promoted to a higher class unless he or she met the structured promotion criteria. (Ojeda Dep. 62:16 - 63:12.) According to the structured promotion criteria, an employee had to possess the ability make 90% of the products in his or her current classification, complete satisfactorily 10% of the jobs in the next category (as assigned by the team leader), and maintain a 95% overall efficiency rate. (Id.)

The company maintains Labor Hours and Efficiency Reports to track the overall efficiency rates of the workers. (Robbins Dep. 140:1 - 141:12.) These reports show the total hours worked by each employee, broken down into direct and indirect hours. (Pl.'s Ex. G.) Direct hours are hours spent on the jobs themselves (Robbins Dep. 146:6-7), while indirect hours depict time the employee is not actually working on projects, such as setting up or cleaning up. (Id. at 146:10-12.) The higher the efficiency score, the better. (Swartz Dep. 100:4-9.) The lower the indirect score, the better. (Id. at 100:10-13.) The reports also show the number of overtime hours which each employee has worked. (Robbins Dep. 146:13-15.)

B. Relevant Employees' History at Kontes

After graduating from high school in 1991, plaintiff worked for approximately one year as a telemarketer and secretary. (Pl.'s Dep. at 18:11 and Ex. 1.) In 1992, she enrolled in Salem County Community College's ("Salem") scientific glassblowing technology program. (Id. at 16:8-10.) At the end of her first year at Salem, plaintiff submitted an application to Kontes to work as a part-time employee (id. at 17:2 - 18:17), and Stephanie Ojeda offered plaintiff a part-time position as a lamp worker in May of 1993 (id. at 23:6-15). Plaintiff worked approximately twenty hours a week at Kontes (id. at 24:4-6) for an hourly wage of $7.00 until May of 1994. (Ojeda Dep. 128:18-19.) Rick Swartz was her supervisor. (Pl.'s Dep. 24:7-8.) (Pl.'s Dep. 25:5-6.) In the spring of 1994, plaintiff spoke with Swartz about becoming a full-time employee after her graduation. (Id. at 26:5-16.) Swartz responded positively, and plaintiff began to work full-time after graduation. (Id.; Ojeda Dep. 129:3-10.) On June 30, 1994, plaintiff received an increase in her hourly wage to $8.00, with an effective date of July 11, 1994. (Id. at 129:21 - 130:11.)

In September 1994, plaintiff completed her probationary period as a general trainee (a three month period as a full-time employee) and became a trainee in the lamp room with an hourly wage of $9.07. (Id. at 133:9 - 134:12.) Her pay was again raised, to $9.30, in January of 1995, but she remained a trainee. (Id. at 134:13 - 135:6.) In August of 1995, plaintiff was promoted to a third-class glassblower and received a salary increase to $10 an hour, retroactive to April of 1995. (Id. at 135:7 - 136:1.) Plaintiff received a merit increase to $10.25/hour in January of 1996. (Id. at 136:8-17.)

In August 1996, plaintiff became aware that two employees, John Neff and Dan Pedrick, were getting paid substantially more than her. (Pl.'s Dep. 54-55.) By the time that Neff came to Kontes in August of 1995, he had almost three years of glassblowing experience after his graduation from the scientific glassblowing technology program at Salem in 1992. (Ojeda Dep. at 94:2 - 95:2.) He had worked for one year at Ad Mar Glass Company, where the work was not as complex as at Kontes because Neff was a "low man" at Ad Mar (Neff Dep. 12:2 - 13:7), for one year as a lathe worker at Lab Glass, and then for over one year at Wheaton Science Products performing lamp and lathe work. (Id. at 13:8 - 15:3.) At the time that Neff was hired by Kontes, he had approximately eight months more glasswork experience than plaintiff. (Pl.'s Br. at 5, n.1.) Kontes hired Neff as a third-class glassblower, and, in accordance with his prior pay of $12.00/hour at Wheaton, *fn2 and based on the fact that on his application Neff sought an hourly wage of $12.00/hour or more, Kontes offered Neff a starting wage of $12.00/hour. (Ojeda Dep. at 95:3-5.) In January of 1996, Neff received a merit increase to $12.30/hour. (Id. at 96:9-20.)

By the time that Dan Pedrick arrived at Kontes in April of 1996, he had three years and four months of glasswork experience, of which at least one year was performing lathe work. (Ojeda Dep. 102:3-12.) After graduating from Salem with a degree in scientific glassblowing in 1992, Pedrick worked at Wheaton as a lamp room glassblower beginning in June 1992 for one year and four months. (Pedrick Dep. 9:13-22.) He then worked at Varian X-Ray for one year, manufacturing x-ray bulbs, which was lathe work. (Id. at 10:117 - 11:11.) After driving a forklift for three to four months (id. at 11:18-23), Pedrick returned to Wheaton as a lamp worker for one year, where he made $13.00/hour. (Id. at 11:24 - 12:14.) In February of 1996, Pedrick applied to work at Kontes. (Id.) Kontes hired Pedrick as a third-class glassblower at a rate of $12.25/hour. (Ojeda Dep. 103:8-20.)

In August of 1996, Neff approached Swartz, his supervisor, and provided him with two weeks notice that he was resigning from Kontes and returning to Wheaton - a competitor of Kontes also located in Vineland, New Jersey. (Swartz Dep. 79:3-5.) Swartz told his supervisor, Production Manager Bill Robbins, about the resignation. (Id.) Robbins spoke with Neff, who informed him that he was resigning because Wheaton had offered him $14.00/hour. (Robbins Aff. ¶ 2.) Robbins then spoke with John Pranckun, Kontes' president at the time, who authorized him to offer Neff $14.00/hour if he would remain at Kontes. (Id. at ¶ 3.) Robbins feared that Wheaton might next attempt to get Dan Pedrick to leave Kontes, since Pedrick had also worked at Wheaton, so Robbins offered him an increase in wages to $13.75/hour, which he accepted. (Id. at ¶ 4.) Because Neff's and Pedrick's new salaries placed them outside of the third class lamp workers pay range, Neff and Pedrick received promotions to second class lamp workers. (Ojeda Dep. 97:2-23; 104:1-22.) At the time that they were promoted, neither Neff nor Pedrick met the previously required promotion criterion of having an efficiency rate of 95% in their current classification (Pl.'s Ex. G), and thus neither would have been eligible for promotion either under the old system or the new Program if they had gone through those channels to get a promotion. At the time, plaintiff's efficiency rating was slightly higher than that of either Neff or Pedrick. (Id.)

Shortly thereafter, Kontes reevaluated the jobs of all lamp workers, including plaintiff's, accordingly, because other lamp room workers were unhappy with the pay raise received by Neff and Pedrick. (Pl.'s Dep. 55:13-18.) Thus, in September 1996, plaintiff's hourly wage was increased to $10.91 (Ojeda Dep. 136:18 -137:14), while Neff earned $14.00 and Pedrick received $13.75 hourly.

At the time, plaintiff was doing the same type of work as Neff and Pedrick. (Pl.'s Dep. 47:11 - 48:15.) Other workers, such as Jose DelaRosario, the back-up group leader in the lamp room, believed that while Neff was more skilled than plaintiff, Pedrick was less skilled than Neff and not more skilled than plaintiff. (DelaRosario Dep. 57:21 - 58:23.) Another co-worker, Roberto Montalvo, also felt that plaintiff's skill level and quality of work were equal to those of Pedrick; though Neff was slightly more skilled, plaintiff produced glass products at a faster rate than either Neff or Pedrick. (Montalvo Aff. ¶ 2.) Robbins, however, did not believe that plaintiff's skill was equal to Neff and Pedrick. He testified at his deposition that while plaintiff was very fast, she was not a top quality lamp worker - "[h]er seals were shoddy" and "things would crack on her" - and the quality of her work did not improve over time. (Robbins Dep. 31:18 -32:2; 38:19- 21.) By contrast, he testified that John Neff's and Dan Pedrick's work quality and performance were both very good. (Id. at 35:15-20; 37:1-5.) *fn3

In October of 1996, when the Program for promotion in the lamp room was implemented, plaintiff had the opportunity to take the test but chose not to do so because she was told by Mr. Pranckun that she would not pass it. (Pl.'s Dep. 61:1-7) Roberto Montalvo, another third-class lamp worker did take the test in October of 1996 and passed, and thus he was promoted to second class lamp worker. (Robbins Dep. 123:9-24.) Plaintiff received a merit increase in January of 1997, to $11.29/hour. (Id. at 137:16.) She was not eligible to receive a merit increase in January of 1998 because of poor attendance in 1997, but, by April of 1998, she met the requirements to be reawarded the previously-forfeited raise, and she thus received a raise to $11.66/hour. (Id. at 138:3 - 139:21.) Up to that time, Swartz felt that plaintiff was a good employee, a hard worker, pleasant to be around, and lacking in attitude problems. (Swartz Dep. 121:4-24.)

In April of 1997, plaintiff again qualified to take the test for promotion, and this time she did. (Pl.'s Dep. 78:11-12.) Although her efficiency rate on this test was higher than the requisite 85%, plaintiff failed the test because of the poor quality of the finished products; her effective efficiency was only 33%. (Id. at 76:10-17.) She did not believe there was anything discriminatory about this test. (Id. at 77:4-6.) She retested in May of 1997, and again, she failed. (Id. at 78:5-10.) Her efficiency rate with respect to each of the four products on which she was tested was, respectively, 65.60%, 75%, 80.77%, and 59.73%. (Id. at Ex. 6.) Because she did not attain an overall efficiency rate of 85%, the quality of her work was never graded. (Id.) She felt that the pieces on which she was tested were selected in a discriminatory manner because she had never previously been trained on item number 1 and had never previously worked on items number 2 or 3. (Pl.'s Dep. 87-89.) She also believed that the rate given for the fourth item, the product on which she attained 59.73% efficiency, was impossible to obtain in the permitted in the permitted time: she was asked to do two per hour while the rate on the factory order for a similar piece was one per hour. (Robbins Dep. 127:13-15.) However, item number four was similar to a product on which Mr. Montalvo was tested in October of 1996; though the center necks on the two pieces differ, each piece should take the same time to prepare. (Robbins Dep. 123:9 - 125:8.) Montalvo did two of them and received an efficiency of 85%. (Id. at 125:9-12.)

After failing the re-test, plaintiff told Swartz that she thought the test was unfair because she never worked on some of the pieces before. (Swartz Dep. 143:10 - 145:11.) In May 1997, plaintiff specifically asked Swartz why Pedrick was getting paid more than plaintiff to do the same job, and at his deposition Swartz, who directly supervised both plaintiff and Pedrick, admitted that he really did not know why. (Id. at 175:20 -176:2.) However, Swartz had no control over how much the employees were paid. (Id. at 177:1-7.) In May 1997, plaintiff filed a charge of discrimination with the New Jersey Department of Civil Rights ("NJDCR"). (Compl. Ex. H.)

In May 1998, plaintiff took the promotion test again, and this time she passed with an effective efficiency score of 84.89%. (Pl.'s Dep. 97:14-20 and Ex. 7.) As a result, her hourly wage was increased to $13.21. (Ojeda Dep. 140:6-9.) As explained below, in August of 1998, plaintiff chose to cross-train in the lathe department instead of returning to the lamp room. (Pl.'s Dep. 118:12 - 119:12.) She has since returned to the lamp room as a second-class lamp worker, making $13.23/hour. (Ojeda Aff. ¶ 6.)

C. Plaintiff's Filing of a Charge of Discrimination and the Aftermath

Around the time that plaintiff filed her NJDCR complaint, she began to feel that her co-workers were retaliating against her because she filed the complaint.

§ People Stopped Talking to Plaintiff: For example, she alleges that Swartz and some of the lamp workers stopped talking to her. (Hodgkins Dep. 125:5-7.) Swartz would hardly talk to plaintiff anymore, and if one of her pieces was rejected, Swartz would simply put it on her workbench without discussing it with her. (DelaRosario Dep. 31:4-23.) When asked if he observed Swartz's attitude change toward plaintiff after she filed her discrimination claim, co-worker/back-up group leader DelaRosario responded, "I think we all saw it." (Id.) DelaRosario also observed that other workers' attitudes changed as well, such that numerous workers stopped talking to plaintiff. (Id. at 34:4 - 35:14.) Co-worker Montalvo also explained that Swartz stopped talking to plaintiff and would not provide her with any assistance in her work after she filed her complaint, causing plaintiff to suffer in terms of work performance. (Montalvo Aff. ¶¶ 5-6.) DelaRosario agreed that the lack of attention and training by Swartz to plaintiff after she filed her complaint, in the face of plaintiff's request for necessary training, harmed her work performance. (DelaRosario Dep. 30:10-19.) While Swartz would physically sit down with Neff and Pedrick at their benches and show them how to handle problems, he would not do the same for plaintiff, instead merely showing her the blueprints for pieces rather than provide her with hands-on assistance. (Id. at 28-30.)

§ Diminished Overtime: Plaintiff also believed that she was retaliated against in terms of diminished overtime. (Hodgkins Dep. 125:5-7.) Most of the workers were interested in working overtime when they had the chance, and they were entitled to that work if the work was available. (Swartz Dep. 74:1 - 76:11.) According to plaintiff, after plaintiff filed her NJDCR complaint, there was a drop-off in her overtime hours. (See Pl.'s Ex. G.) For the quarter ending May 31, 1997, 1997 (when plaintiff filed her complaint), plaintiff had 10.0 hours of overtime, while Neff had 21.4 hours and Pedrick had 15.9 hours. (Id.) In the quarter ending August 31, 1997 (during which time defendant learned of the complaint), plaintiff's overtime hours decreased to 6.9, Neff's to 20.9, and Pedrick's to 0.1. (Id.) The next quarter, ending November 30, 1997, plaintiff's overtime hours decreased again, to 5.3, while Neff's and Pedrick's both increased to 31.1 and 12.2, respectively. (Id.) *fn4 In the first three quarters of 1998, plaintiff had 28.6 hours of overtime, while Neff had 57.4 and Pedrick had 21.0. (Id.) Those numbers are a factor of the fact that in August 1998, plaintiff worked 20.5 hours of overtime while Neff worked 9.9 and Pedrick worked 0.0; for the first six months of 1998, plaintiff worked 2.2 hours overtime, while Neff worked 35.2 hours and Pedrick worked 7.1 overtime hours. (Id.) However, when reviewed on a month by month basis, instead of a quarter by quarter basis, and when the situation is taken out of the vacuum of 1997 alone and is instead viewed over time, a different picture emerges. Every glassblower's overtime hours fluctuate month to month, and as a general matter, Neff received more overtime than either Pedrick or plaintiff, and Pedrick sometimes received more than plaintiff and sometimes received less. (Id.) This pattern was true both before and after plaintiff filed her EEOC complaint. In some months after May of 1997, plaintiff received no or few overtime hours, but that was also true of months prior to the filing of the EEOC complaint. (See id., comparing the charts from 2/97 to 8/97.) The dip in overtime hours after May of 1997 differs little from dips in the past, and it also correlates with dips in the amount of overtime hours that Neff and Pedrick received after May of 1997. Though Pedrick and Neff continued to receive more overtime hours than plaintiff after May of 1997 (just as they did before May of 1997), they each received substantially fewer hours than they had received prior to May of 1997. (See id., comparing charts from 3/96, 1/97, 2/97, 5/97, 8/97, 11/97, and 1/98.)

§ Tyler's Cardboard Barrier: Plaintiff also stated that co- worker Frank Tyler began to create a hostile work environment for her in the summer of 1997. Tyler, one of the co-workers who stopped talking to plaintiff after she filed her NJDCR complaint, wedged a cardboard box partition between his work bench and plaintiff's work bench. (Hodgkins Dep. 126:22 - 127:18.) The barrier remained up for a couple of months, with Tyler putting it back up when plaintiff would take it down. (Neff Dep. 40:3-5; Tyler Dep. 25:21 - 26:3.) Plaintiff believes that he put it there to make clear that he did not want to speak to her. (Hodgkins Dep. 126:22 - 127:18.) Tyler claims that he put up the cardboard barrier, approximately three foot by three foot, in order to protect him from the heat from plaintiff's burner. (Tyler Dep. 24:23-25:8.) Plaintiff took down the barrier and Tyler put it back up, supposedly when plaintiff began another burner job. (Id. at 25:6 - 26:3.) This action would not typically be unusual in that the lamp room is very hot in the summer (Hodgkins Dep. 128:5 - 129: ) and such partitions are not unusual at Kontes (id. at 129:8-9). However, Tyler never discussed his actions with plaintiff (Tyler Dep. at 26:4-10), and Montalvo testified that Tyler kept the partition up even when plaintiff had no fire burning at her bench. (Montalvo Aff. ¶ 7.)

§ Comments: Plaintiff testified that Pedrick announced to the room that "the princess" had taken a break when plaintiff went to the water cooler (Hodgkins Dep. 130:12-24), and she has put forth other evidence that Pedrick made derogatory remarks and gestures toward plaintiff, including "sticking his tongue out and putting his fingers like there was a - like some sexual thing," and making comments along the lines of "this job is not for bitches." (DelaRosario Dep. 37:16 - 38:13, 36:3-6.) DelaRosario also heard Swartz refer to women as "bitches" once in a while. (Id. at 36:19-22.)

§ Pornographic Jokes: In January or February of 1998, plaintiff found a printout of pornographic jokes from the Internet near a lathe machine in the lamp room. (Hodgkins Dep. 111:10-20. See also Pl.'s Ex. S.) They were not shown to her; she found them. (Hodgkins Dep. 111:10-20.) The jokes are ones that most women would find to be degrading or demeaning. (See Pl.'s Ex. S. See also DelaRosario Dep. 47:24 - 48:3; Pedrick Dep. 35:8-19; Swartz Dep. 166:11-176, 169:6-12; Neff Dep. 50:8-21; Tyler Dep. 43:17-20.) Plaintiff kept a copy of them in order to be able to substantiate why she felt uncomfortable in the lamp room. (Hodgkins Dep. 136:16-20.) She gave copies of them to her attorney, the investigator for the Division on Civil Rights, and her parents. (Id. at 135-137.) She also showed them to DelaRosario, who said he had seen Swartz, Pedrick, Neff, and Tyler passing them around at work. (Id. at 135-136.) Swartz had several copies of the paper with the jokes and handed a copy to DelaRosario, laughing. (DelaRosario Dep. 47:3-17.) Neff believes the Swartz had a copy of the list. (Neff Dep. 49:20 - 50:2.) Pedrick remembered seeing the list and thinks it may have been left on his bench, but he claims that he discussed them only with Neff and Tyler. (Pedrick Dep. 34:11-23.) Tyler recalls seeing jokes like this at work on two or three occasions, and he was aware that Swartz brought them into work. (Tyler Dep. 38:22 - 39:13.) He saw the jokes in Swartz' desk. (Id. at 39:4-6.) Swartz denied ownership of the jokes, claiming that one of the male glassblowers, whom he could not recall, showed them to him, but he admitted that he did not reprimand the employee who gave him the jokes. (Swartz Dep. 165:5-11, 166:23 - 167:2.)

§ Picture of Naked Woman: In late July 1998, plaintiff saw a picture of a topless woman being shown by Tyler to another lamp room worker. (Hodgkins Dep. 109-110.) She does not think that Tyler intended for her to see the picture, but it made her uncomfortable nonetheless. (Id.)

D. The Company's Reaction to Plaintiff's Complaints

Around the time that plaintiff saw Mr. Tyler's picture, she was offered the opportunity to work overtime in the lathe room because there was no overtime in the lamp room (because of decreased workload). (Hodgkins Dep. 105:12 - 106:8.) She told Swartz's supervisor, Production Manager Robbins, that she felt uncomfortable in the lamp room due to the attitude of the co-workers. (Id. at 108-112.) Robbins recalls learning from plaintiff that there were off-color and lewd jokes printed up and left around the workplace. (Robbins Dep. 136:17-24.) Robbins replied that he could not change the attitudes of the people or make people talk to her, but advised her that the company policy would be enforced. (Id. at 57:24 - 58:1.) He said he would speak with Stephanie Ojeda, Kontes' Human Resources Manager, about plaintiff's concerns. (Hodgkins Dep. 117:7-10.)

The lathe department supervisor, Orlando Rodriguez, then informed plaintiff that she could go back to the lamp room or stay in the lathe department for an additional three to six months and cross-train in that department. (Id. at 119:18 - 120:2.) She decided to stay in the lathe department for an additional three months. (Id. at 120:6-8.)

On July 31, 1998, Robbins advised Ojeda that plaintiff had approached him and told him she felt uncomfortable in the lamp room because no one was talking to her and because she found offensive material that had been printed up off of the Internet. (Ojeda Dep. 159:2-8.) As a result of this conversation, Robbins, Ojeda, and Swartz met with plaintiff on August 4, 1998 to acquire more details, and learned that the offensive material was a picture shown by Tyler to Art Rollar. (Id. at 160:10-23.) Based on this conversation, the company held a meeting for everyone in the lamp room and Ojeda (Pedrick Dep. 43:13 - 44:3) in early August 1998 concerning proper workplace behavior. (Hodgkins Dep. 133:8-10.) Ojeda, Robbins, and Swartz reviewed the corporate policy with the workers, discussed what harassment is, what it is not, and the fact that everyone is held accountable to abide by the rules and regulations and the laws. (Ojeda Dep. 166:7-24.) The employees were told that the workplace is not proper for these kinds of pictures and jokes. (Tyler Dep. 39-40.) Ojeda and Swartz stated that they also met separately with Tyler to ascertain the nature of the offensive material and that Tyler pledged not to let it happen again (Ojeda Dep. 165:1-23; Swartz Dep. 161:15 - 162:12), but Tyler denies that such separate meeting or promise occurred (Tyler Dep. 42:12 - 43:2.) Ojeda's memorandum of these events was not written until a month and a half after they occurred. (Ojeda Dep. 159:2 - 162:14.)

After the department meeting with Ojeda, plaintiff overheard Swartz and a few of the other shouting back and forth at each other the words they could no longer say. (Hodgkins Dep. 139:2-10.) Neff admits to joking about it. (Neff Dep. 45:5 - 46:22.) After that meeting, Swartz never again spoke to plaintiff. (Hodgkins Dep. 138:9-12.) Neff (Neff Dep. 17:12 - 18:21), Tyler (Tyler Dep. 16:24 - 19:14), and Pedrick (Pedrick Dep. 13:24 - 15:5) have all socialized with Swartz outside of work.

As of the time of depositions, though approximately half of the 20-22 lathe workers at Kontes were women, plaintiff remained the only female lamp worker out of about eight lamp workers employed at Kontes. (Robbins Dep. 20-21.)

D. Defendant's Explanation for Disparity in Pay

Plaintiff's complaint with the NJDCR claimed that she was discriminated against in her wages and promotions on the basis of her gender. She specifically compared her salary to that of Neff and Pedrick, as well as that of John Reed. *fn5 According to defendant, the reason that plaintiff's salary was lower than Neff, Pedrick, and Reed was because plaintiff's demonstrated ability and experience was not equivalent to those individuals. (Ojeda Dep. 190:23 - 191:14.) As explained infra in Part II.C, plaintiff claims that this reasoning is pretextual.

E. This Lawsuit

On June 12, 1998, plaintiff filed a seven count Complaint against defendant Kontes, alleging claims for sex discrimination, retaliation, and intentional infliction of emotional distress. In Count I, plaintiff contends that she was subject to sex discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq. ("Title VII"), and 42 U.S.C. § 1981 ("§ 1981") because she was denied a promotion in September 1996 and May 1997. In Count II, plaintiff contends that her lower pay violates the Equal Pay Act, 29 U.S.C. § 206(d) ("the EPA"). In Count III, plaintiff claims that she was subject to retaliation in violation of Title VII and § 1981 after she filed her NJDCR complaint. Plaintiff asserts these identical claims under provisions of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et seq., in Counts IV through VI respectively. In Count VII, plaintiff asserts claims for intentional infliction of emotional distress based upon the alleged discrimination and retaliation.

Now before the Court is defendant's motion for summary judgment on each of plaintiff's claims. For the reasons stated herein, this motion will be granted in part and denied in part.

II. DISCUSSION

A. Summary Judgment Standard of Review

The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Supreme Court decisions mandate that: "[w]hen the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1987)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. at 248). "This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Stewart v. Rutgers, The State University of New Jersey, 120 F.3d 426, 531 (3d Cir. 1997) (quoting Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir. 1994)). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50.

B. Counts I and IV: Discrimination in Promotions

In Count I, plaintiff alleges that defendant violated Title VII, 42 U.S.C. § 2000e, et seq., by intentionally not promoting her when defendant promoted Neff and Pedrick, by requiring her to take a promotion test which Neff and Pedrick did not have to take, and by making the promotion test harder for her to pass than it was for male employees to pass. *fn6 In Count IV, she alleges that the actions violate the NJLAD, N.J.S.A. 10:5-1, et seq. Courts employ the same analysis in discrimination cases under both statutes. See, e.g., Johnson v. Penske Truck Leasing Co., 949 F. Supp. 1153, 1170 (D.N.J. 1996).

When analyzing claims of employment discrimination, courts employ the McDonnell Douglas-Burdine burden shifting analysis. Bennun v. Rutgers, 941 F.2d 154, 170 (3d Cir. 1991), cert. denied, 502 U.S. 1066 (1992). See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This analysis consists of three steps. First, the plaintiff must establish a prima facie case by a preponderance of the evidence. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)(citing Burdine, 450 U.S. at 252-53). The plaintiff, thus, must prove by a preponderance that: (1) she is within a protected class; (2) she sought and was qualified for the promotion or pay rate; (3) she was rejected for the promotion or pay rate; and (4) nonmembers of her protected class were treated more favorably in the hiring process. Bennun, 941 F.2d at 170 (stating the test in the context of failure to hire, rather than failure to promote).

The establishment of a prima facie case creates a presumption of discriminatory intent by the defendant-employer. Stewart, 120 F.3d at 432 (citing Burdine, 450 U.S. at 254). Faced with the presumption of discriminatory intent, the defendant must then produce evidence showing that it made the adverse employment decision "for a legitimate, nondiscriminatory reason." Burdine, 450 U.S. at 254. "To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection," id. at 255, which would support a jury finding that unlawful discrimination was not the cause of the adverse employment action. Stewart, 120 F.3d at 432 (citing Hicks, 509 U.S. at 507). If the defendant comes forth with a legitimate reason for the employment action, the presumption of discrimination drops from the case, Burdine, 450 U.S. at 260, Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992), cert. denied, 510 U.S. 826 (1993), and the burden of production shifts back to the plaintiff, who must prove by a preponderance of the evidence that the stated reason was pretextual. Hicks, 509 U.S. at 508.

The Third Circuit, in Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), explained that in order to prove that the stated reason was pretextual,

the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the ... plaintiff must demonstrate such weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the employers's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence,' and hence infer `that the employer did not act for [the asserted] nondiscriminatory reasons.' Id. at 765.

In this case, defendant argues both that plaintiff has not made out a prima facie case of employment discrimination and, even if a prima facie case exists, that plaintiff has offered no evidence to combat the legitimate, proffered reason for the adverse employment discrimination. Both of these contentions will be addressed in turn.

1. Prima Facie Case

Plaintiff's sex discrimination claim is rooted in her allegations that Neff and Pedrick received a promotion to second class glass blower in September 1996 without taking a test while she did not, and that the May 1997 test for promotion that she failed was discriminatory. Defendant contends that plaintiff has not adduced evidence to support a prima facie case based on any of those alleged discriminations. Defendant does not contest that plaintiff can meet the first prong of the prima facie case; as a woman, she is a member of a protected class. Nor does defendant argue that plaintiff did not suffer an adverse employment action; she was paid less than several male co-workers of her grade, and she had to take a test for promotion when Neff and Pedrick did not have to. Thus the dispute is with regard to the second and fourth prongs: defendant contends that plaintiff was not qualified for a promotion or higher pay and that she was not similarly situated to those who received a promotion or higher pay.

Defendant contends that plaintiff was not qualified for promotion to second class lamp worker in September 1996 or May 1997.

a) September 1996

According to defendant, plaintiff was not qualified for promotion in September 1996, based on the then-applicable standards, because her work product was not of the quality expected of a second class lamp worker. However, plaintiff has adduced evidence that the ratings on the quality and quantity of her work in September 1996 contained in her performance reviews were on par with, or better than, that of male co-workers Neff, Pedrick, and Reed, and Neff and Pedrick were promoted in September of 1996, without having to take a test, even with those ratings. She has also adduced evidence that her supervisors did not file reports reprimanding the amount of her items which had cracks in them, and it was not until after plaintiff filed her NJDCR complaint that Swartz began to note "breakage" on her performance reviews. DelaRosario, who sometimes acted as plaintiff's supervisor, and other co-workers commented that plaintiff's work may not have been as good as Neff's work in quality, but it was better than the quality of Pedrick's work, and it was done faster than either Neff's work or Pedrick's work, and yet Pedrick was promoted. Thus plaintiff has come forth with enough evidence from which a reasonable jury could find that she was qualified for a promotion in September of 1996.

Neff and Pedrick were promoted in September of 1996 because their pay raises took them out of the applicable pay range for third class glass blowers. Though defendant contends that plaintiff was not similarly situated with Neff and Pedrick at that time, plaintiff has come forth with evidence from which a reasonable factfinder could find that she was so situated. She was doing the same sort of work as Neff and Pedrick, as did all second class lamp workers, and, as stated above, the evidence presents a genuine dispute as to whether the quality of plaintiff's work was equal to that of Neff and Pedrick. It is true that Neff received another job offer and plaintiff did not, leading to Neff's higher salary and promotion. However, Pedrick did not receive another job offer.

Additionally, plaintiff has come forward with evidence from which a reasonable factfinder may infer that defendant bent or changed the rules so that Neff and Pedrick, two men whose quality scores were not significantly higher than those of plaintiff, could be promoted, despite the fact that neither Neff nor Pedrick had the 95% efficiency rating that was previously required before an employee could be promoted, and despite the fact that plaintiff had a higher efficiency rating than either Neff or Pedrick. Therefore, a reasonable factfinder could find that plaintiff, who is in a protected class, was qualified for a promotion in September 1996, that she was denied a promotion despite that qualification, and that she was similarly situated to employees outside the class who were promoted. Plaintiff has met her prima facie case as to failure to promote in September 1996.

b) May 1997

In distinction, given that plaintiff failed the promotion test in May 1997, she has not come forth which enough evidence from which a reasonable jury could find that she was qualified for a promotion in May 1997. Plaintiff contends that this is irrelevant because though the company policy did not actually require that employees be tested on pieces which they had previously taken, there is evidence that those in charge of the testing in May 1997 chose items for male employees to make on which those employees had previously worked, while the plaintiff had never previously worked upon or been trained to make the first three items on which she was tested.

However, plaintiff has not come forth with evidence that she would have passed the test with an 85% efficiency rate if she had been tested on items on which she had previously worked. While, on a motion for summary judgment, the Court must extend all reasonable inferences to the non-movant, there must be evidence from which those inferences can be drawn. Here, it is simply not reasonable to infer from the evidence of record that plaintiff would have passed the test with 85% effective efficiency in May 1997.

That conclusion is augmented by two facts. First, just a month earlier, the poor quality (breakage) of plaintiff's work on the promotion test gave her an effective efficiency of only 33% and there is no evidence from which a reasonable factfinder could find that it would be expected to be remarkably higher just one month later. Second, because plaintiff achieved only 59.73% efficiency on the fourth item on which she was tested, *fn7 in order to attain an 85% efficiency rating (without even looking to the quality of plaintiff's work, which was not graded on the second test), plaintiff would have needed nearly 100% efficiency on the first three items, not to mention near perfect quality. There is no evidence from which a reasonable factfinder could find that plaintiff would have been able to do that in May 1997. Plaintiff has not shown she was qualified for a promotion in May 1997, and thus she has not met her prima facie case in this regard. Accordingly, plaintiff's claim in Counts I and IV arising from failure to promote in May 1997 cannot survive defendant's motion for summary judgment.

2. Pretext

Regarding the September 1996 circumstances, defendant has come forth which a legitimate, nondiscriminatory reason for not promoting plaintiff in September 1996 while simultaneously promoting two similarly situated males, Neff and Pedrick: Neff had received an offer to work for his previous employer, Wheaton, and the company feared that Wheaton might also try to lure Pedrick to work for it because Pedrick had previously worked for Wheaton as well. As a result of this, defendant increased Neff's and Pedrick's salaries in order to keep them at the company. The company did not similarly fear that plaintiff would be lured by Wheaton both because plaintiff did not previously work for Wheaton and because Neff and Pedrick each had more glassblowing experience than plaintiff did. As a result of the pay increases, defendant promoted Neff and Pedrick to the next level of glass blower.

In response, plaintiff has argued that while defendant could have counter-offered Neff a higher salary when another company tried to lure him away, it was unreasonable to offer a higher salary to Pedrick (who was not given another offer) but not to plaintiff. Further, plaintiff has questioned the wisdom of defendant's decision to promote Neff and Pedrick when the higher salaries took them outside of the applicable pay range, rather than changing the applicable pay ranges for each class of glassblower. However, plaintiff has not come forth with any evidence to show that these stated reasons for defendant's actions are a pretext for discrimination. It is not enough for a plaintiff to question the defendant's business judgment. See Fuentes, 32 F.3d at 765. Nor can a plaintiff show pretext by speculating as to why the defendant took its actions or as to how the defendant might have done things differently. Rather, the plaintiff must offer evidence which would allow a reasonable factfinder to disbelieve the articulated legitimate reason or to believe that discrimination was more likely than not a motivating cause of the defendant's action. Id.

Other than speculation, plaintiff has come forth with no evidence from which a reasonable factfinder could find that Wheaton made her a job offer, that Wheaton would have been familiar with her skills (given that she never worked anywhere but Kontes) the way they were familiar with the skills of Neff and Pedrick, or that there was a market demand for her talents.

Nor has plaintiff come forth with any evidence to explain away the fact that she was not the only lamp room glassblower who was told that he or she would have to go through the promotion test in order to be promoted, while Pedrick and Neff were allowed to skip the normal channels and requirements. All of the other lamp workers - men - also had to go through the normal channels and the test in order to be promoted, and all of them were angry about it. That is why the company raised all of their salaries in response to the discontentment. *fn8 Plaintiff's speculation does nothing to show that it was pretextual for defendant to say that it sua sponte raised salaries for Neff and Pedrick - and not for any other lamp worker, male or female - because of fear of competition from Wheaton.

Plaintiff contends that this Court should use the evidence of the sexist and hostile work environment at defendant's facility as circumstantial evidence of improper motivation, citing Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). The record is replete with evidence that various of plaintiff's co-workers, including Swartz, her supervisor, brought pornographic jokes into the workplace, called women "bitches," and made other sexist remarks. However, that is irrelevant to this determination for two reasons. First, the evidence of record as to hostile environment is all from after September 1996; the evidence that the lamp room was not a pleasant environment for women all postdates plaintiff's filing of a discrimination complaint with the NJDCR in May of 1997. Second, there is no evidence that this hostile environment was in any way created, encouraged, or enforced by Bill Robbins, the person who made the decision to increase Neff's and Pedrick's salaries and to promote them. Compare with Abrams, 50 F.3d at 1214 (evidence that the decisionmaker harbored age-related animus would be relevant to determining if discharge decision was a result of discrimination).

Therefore, plaintiff has come forth with no actual evidence that defendant's articulated legitimate reason for not promoting plaintiff in September 1996 is pretextual. Therefore, this Court will grant summary judgment to defendant on Counts I and IV of the plaintiff's complaint.

C. Counts II and V: Alleged Equal Pay Violations

In Count II of the Complaint, plaintiff alleges that defendant discriminated against her with respect to her pay in violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1). In Count V of the Complaint, plaintiff alleges that this discrimination also violated the NJLAD, N.J.S.A. 34:11-56.2. Analysis of such a claim is undertaken in the same manner under both acts. Dubowsky v. Stern, Lavinthal, Norgaard & Daly, 922 F. Supp. 985, 996 (D.N.J. 1996).

To survive summary judgment for a claim based on unequal pay, the plaintiff must first make out a prima facie case by showing 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. Id. (citing Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)).

In establishing the prima facie case, the plaintiff must show that she and her male co-workers were paid unequally for "substantially equal" work;" the question at this stage is whether even a single male employee was paid higher for doing an equal core of common tasks, regardless of the comparative skill or quality of work done by various workers. Dubowsky, 922 F. Supp. at 990.

Once the prima facie case has been established, defendant may establish any one of four affirmative defenses by showing that differential payments are a result of "(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 other factor other than sex." 29 U.S.C. § 206(d)(1). This stage involves a comparison of the particular employees who held the jobs. Dubowsky, 922 F. Supp. at 990. In order to be granted summary judgment on the basis of one of these affirmative defenses, the defendant must show "that there is an absence of any issue for jury resolution" regarding the affirmative defenses. Id.

If the defendant unequivocally shows that the evidence establishes that any one of the four affirmative defenses is met, then the burden shifts back to the plaintiff to show that the nondiscriminatory justification is a pretext for discrimination. Id.

In the present case, plaintiff has presented enough evidence to enable a reasonable finder of fact to find that she has established a prima facie case of unequal pay on the basis of gender. While the skill level of glassblowers may vary within each class of glassblowers, and while the difficulty and complexity of the work increases with each class of glassblowing, those within the same class generally work on the same types of projects, as described in a written job description. Plaintiff, Neff, and Pedrick all worked as third class glassblowers until August of 1996, when Neff and Pedrick were promoted to second class. *fn9 Thereafter, when plaintiff was promoted to second class glassblower in May of 1998, she, Neff, and Pedrick all worked at the same level again. The entire time that plaintiff worked as a second class glassblower, she made less money per hour than either Neff or Pedrick did. Again, when plaintiff began her work as a second class glassblower, she started at a salary ($13.21/hour) lower than the salaries Neff ($14.00/hour) and Pedrick ($13.75/hour) were paid when they began their work as second class glassblowers. Plaintiff has shown that at least one male co-worker was paid more than she was for doing the same tasks both at the second class and third class levels, and thus she has established a prima facie case of pay discrimination on the basis of her gender.

In response, defendant asserts the fourth affirmative defense: that the differential pay is based on "any other factor other than sex." 29 U.S.C. § 206(d)(1). These factors may include "education, experience, prior salary, or any other factor related to the performance of the job." Dubowsky, 922 F. Supp. at 990. Employers are entitled to pay more to more experienced and qualified employees, see Stanley v. University of S. Cal., 178 F.3d 1069, 1075 (9th Cir. 1999), and they are entitled to consider the "marketplace value of the skills of a particular individual when determining his or her salary." Stanley v. Univ. of S. Cal, 13 F.3d 1313, 1322 (9th Cir. 1994).

Relying on this affirmative defense, defendant contends that both Neff and Pedrick were entitled to higher salaries than plaintiff because they had more experience, because they had better skills, and because they were more marketable. When Neff started work at Kontes, he had approximately three years of glassblowing experience, and he made $12.00/hour with his previous employer, so Kontes hired Neff at $12.00/hour. Neff began his work as a second class glassblower at $14.00/hour because that was the salary he had been offered to go to defendant's competitor. Defendant also points out that in 1997 and 1998, plaintiff produced more defective pieces than Neff or Pedrick did.

When Pedrick began working at Kontes, he had approximately three and one-half years of glassblowing experience, and he made $13.00/hour at his previous job. Kontes hired him for $12.25/hour as a third class glassblower. He began his work as a second class glassblower at $13.75/hour, allegedly because defendant feared that its competitor, Wheaton, would try to lure him away, just as Wheaton tried to do with Neff. Again, in 1997 and 1998, plaintiff produced more defective pieces than Pedrick did.

By contrast, by the time that plaintiff had three years of glassblowing experience, as Neff did when he was hired for $12.00/hour, plaintiff was making only $10.25/hour. By the time she had three and a half years of experience, as Pedrick did when he was hired for $12.25/hour, plaintiff was making only $10.91/hour. Plaintiff began her work as a second class glassblower at $13.21/hour. Almost always, plaintiff has earned in the low to mid area of her classifications' wage range, while Neff and Pedrick have always earned between the mid and maximum wage levels.

Defendant is not entitled to summary judgment on the basis of this affirmative defense. Plaintiff has pointed to evidence which either raises genuine disputes of material fact regarding this explanation or which would allow a reasonable finder of fact to find that the stated reasons for differential pay - experience, prior wages, marketability, skill - are a pretext for gender discrimination.

For example, plaintiff points out that even after she had worked in the lamp room for three years (thus reaching a level of experience equivalent to Neff's prior experience), plaintiff was still making more than $2.00 less per hour than Neff. Likewise, even after plaintiff had worked in the lamp room for three and a half years, thus equaling Pedrick total glasswork experience at the time he was hired (which include lathe work), she was still making over $1.20 less per hour than Pedrick.

As to defendant's contention that this was a result of the lower quality of plaintiff's product and her attendance, plaintiff points to evidence that her quality and quantity ratings over the years were on par with those of her colleagues, *fn10 as were her efficiency *fn11 and indirect hours *fn12 ratings. Additionally, plaintiff points out that while Swartz found cracks in her work, he never gave her any memo or disciplinary action due to the number of rejects she was having; Swartz only began to refer to the number of plaintiff's rejects in plaintiff's performance reviews after she filed her NJDCR complaint. (Pl.'s Ex. T.) Therefore, plaintiff contends, the explanation for the discrepancy in pay cannot be explained by differences in the quality of the employees' work.

Though plaintiff has no evidence beyond her own speculation that she was as sought after in the market as Neff was and as defendant assumed Pedrick was, she has pointed to enough evidence to raise doubts as to the credibility of defendant's proffered reasons for the disparity in pay. Plaintiff's claims in Counts II and V survive summary judgment.

D. Counts III and VI: Retaliation

In Count III of the Complaint, plaintiff alleges that defendant unlawfully retaliated against her from the time that she began engaging in protected EEO activity, by requiring her to take a test for promotion, by harassing and demeaning her, depriving her of opportunities to maintain her professional proficiency, and by denying her the opportunity of overtime, all in violation of Title VII. In Count VI, plaintiff alleges that the same actions constitute unlawful retaliation under New Jersey law. Under Title VII, 42 U.S.C. § 2000e- 3(a), it is "an unlawful employment practice" for "an employer" to "discriminate" against an employee "because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Id. New Jersey law likewise prohibits such retaliation, and the standards of review under both statutes are the same. Reyes v. McDonald Pontiac-GMC Truck, Inc., 997 F. Supp. 614, 619 (D.N.J. 1998).

As the Third Circuit described a retaliation claim in Nelson v. Upsala College, 51 F.3d 383 (3d Cir. 1995), the elements of a retaliation claim are:

 1) that the plaintiff "engaged in activity protected by Title VII;"

2) that "the employer took an adverse employment action against her;" and

3) that "there was a causal connection between her participation in the protected activity and the adverse employment action." Id. at 386.

Here, there is no doubt that plaintiff did engage in protected activity: she filed a charge with the EEOC in May of 1997. The remaining questions are as to whether adverse actions were taken against her and whether there is a causal connection between the adverse employment actions and plaintiff's protected activity.

Plaintiff alleges that she was retaliated against because she was required to take a test for promotion while Neff and Pedrick were not. There could not be a casual connection between this requirement and plaintiff's filing of a complaint with the EEOC because the test requirement was imposed on all lamp room workers (other than Neff and Pedrick) in the fall of 1996, long before plaintiff engaged in her protected activity in May of 1997. This does not support a retaliation claim.

Plaintiff claims - and presents evidence - that co-workers stopped talking with her, that a co-worker put up a partition between his bench and hers, that a co-worker called her "princess" and referred to women as "bitches," that various co-workers had read pornographic jokes or looked at a picture of a topless woman in the workplace. However, under Third Circuit precedent, these actions do not support a claim for retaliation. In Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997), the Third Circuit held that the retaliatory conduct must "rise to the level of a violation of 42 U.S.C. § 2000e-2(a)(1) or (2)." That provision states that [i]t shall be an unlawful employment practice for an employer --

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's...sex...; or

(2) to limit, segregate, or classify his employees...in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as employee, because of such individual's...sex. Id.

As interpreted in Robinson, "unsubstantiated oral reprimands" and "unnecessary derogatory comments" do not rise to the level of an "adverse employment action" because while these actions may be classified as harassment, they do not affect the "terms, conditions, or privileges of employment" or future employment opportunities. 120 F.3d at 1300. "[N]ot every insult, slight, or unpleasantness gives rise to a valid Title VII claim." Id. at 1297. In the circumstances of this case, negative comments, pornographic jokes (not directed at plaintiff), and rude treatment from co-workers may all well constitute the makings of an unpleasant workplace, but they do not constitute harassment affecting the terms of conditions of employment or plaintiff's future employment opportunities, under the standards set forth in Robinson.

Nor is there evidence of a causal link between the filing of plaintiff's complaint and the harassment. "[E]ven if timing alone can prove causation where the [adverse employment action] follows only two days after the complaint, the mere fact that adverse employment action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events." Robinson, 120 F.3d at 1302. Therefore, treatment by co- workers who were plaintiff's peers in the workplace does not constitute retaliation under Title VII or New Jersey law.

Plaintiff also contends that after filing her discrimination complaint she was retaliated against with regard to diminished overtime. If supported by the evidence, this would constitute evidence of adverse employment action necessary to a retaliation claim. However, a careful review of the employment records from the relevant time period reveals that a reasonable finder of fact could not find that plaintiff's overtime hours were diminished (especially in comparison to that of male co-workers Neff and Pedrick) as a result of the filing of her EEOC complaint. When viewed in a vacuum, it is compelling that plaintiff had fewer overtime hours in the quarters following the filing of her complaint than she did in the quarter immediately preceding the filing of the complaint and that plaintiff had fewer overtime hours than Neff and Pedrick did. Viewed in light of the entire record, however, it is obvious that the dip in plaintiff's overtime hours after May of 1997 was no different from dips in her overtime hours at other time periods. Moreover, though Neff had substantially more overtime hours than plaintiff did after May of 1997, and though Pedrick had just slightly more hours than plaintiff did after May of 1997, that pattern was simply a continuation of the pattern of overtime hours worked by these three employees prior to May of 1997. Although Neff and Pedrick had more overtime hours than plaintiff did, the number of overtime hours which they worked after May of 1997 dropped, too, so the dips in plaintiff's number of overtime hours correspond with theirs. Given the uncontested facts of this pattern of overtime, no reasonable juror could find that plaintiff's overtime hours were decreased as a result of the filing of her EEOC complaint.

However, plaintiff has also presented evidence, both through her own testimony and that of two other witnesses (DelaRosario and Montalvo) that immediately after the complaint was filed, plaintiff's supervisor stopped talking to her and providing her with training, a fact which is important in light of the importance of a supervisor's training for a glassblower to improve in this field (DelaRosario Dep. 30:10-19). Defendant contends that this is irrelevant under Robinson, for in Robinson, the Third Circuit affirmed the granting of summary judgment for the defendant even though the plaintiff's supervisor gave her the silent treatment. 120 F.3d at 1301. In this respect, Robinson is distinguishable, for there was no evidence in that case that training by the supervisor was necessary to gaining the skills needed to advance to other employment opportunities, while here DelaRosario, who intermittently acted as plaintiff's supervisor, averred in his deposition that such training is very important and that plaintiff's work was suffering from the lack of that training. The fact that plaintiff's work was suffering is supported by a review of the records of the sheer number of broken pieces plaintiff had after she filed her complaint. Defendant's evidence that plaintiff was nonetheless able to pass the test for promotion in May of 1998 may weigh against plaintiff at trial, but it does not eviscerate her case on summary judgment; perhaps if plaintiff had received training, she could have taken and passed the test for promotion at an earlier time (October of 1997) or her work would have been considered to be at a high enough skill level to warrant higher pay within her pay scale. At this stage, plaintiff is entitled to those inferences.

There is also evidence of a casual connection between Swartz not training the plaintiff and plaintiff's protected activity. Not only did Swartz's allegedly important silent treatment begin immediately after defendant learned that plaintiff filed the complaint with the EEOC, but Swartz' treatment at that time was in direct contrast to his treatment of the very two male co-workers on whom plaintiff focused her EEOC complaint; Swartz would sit down to help Neff and Pedrick, but would not help plaintiff. (Id. at 28-30.) At the very same time, immediately after the EEOC complaint was filed, Swartz - for the first time - began to note breakage on plaintiff's performance reviews, even though breakage had occurred in the past as well. Plaintiff is entitled to the inference from these facts that he chose that point in time - after the filing of the EEOC complaint and at the same time that he stopped providing training to plaintiff while simultaneously providing it to Neff and Pedrick - to begin to document her problems. Based on the evidence of Swartz's treatment of plaintiff after May of 1997, there is enough evidence from which a reasonable factfinder could find that plaintiff was retaliated against for filing an EEOC complaint by her supervisor, Rick Swartz.

E. Count VII: Intentional Infliction of Emotional Distress

Finally, in Count VII, plaintiff contends that the hostile work environment and unequal wages to which she was subjected over the years constitute intentional infliction of emotional distress under New Jersey law. Defendant argues that this Court should grant it summary judgment on this claim for two reasons: first, intentional infliction of emotional distress, defendant claims, is not the type of intentional wrong for which employers may be liable to employees arising out of the employment, *fn13 and second, the facts do not support a claim for intentional infliction of emotional distress. Because the Court finds that the record would not allow any reasonable juror to find for plaintiff on this claim, this Court will grant summary judgment for defendant on Count VII without interpreting the New Jersey Workmen's Compensation Act to see if this is the type of intentional wrong for which employers can be liable.

Proof of a claim of intentional infliction of emotional distress requires a plaintiff to demonstrate that the defendant's intentional conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988). Additionally, the tort of intentional infliction of emotional distress has an elevated threshold for damages: the plaintiff must show that the defendant's actions caused her emotional distress so severe that no reasonable person could be expected to endure it. Id.

In her complaint with this Court, plaintiff plead that she has suffered severe emotional distress which has resulted in the physical manifestations and the need for medical care. (Compl. ¶ 39.) The record, however, contains no evidence to support such an allegation. Indeed, plaintiff's recitation of the facts of this case and argument regarding intentional infliction of emotional distress contains no statement that there is any evidence of any emotional distress, much less distress so severe that no reasonable person could be expected to withstand it. Because there is no evidence of severe emotional distress, plaintiff cannot support a claim for intentional infliction of emotional distress, and thus summary judgment must be granted for the defendant on Count VII.

III. CONCLUSION

For the foregoing reasons, defendant's motion for summary judgment will be granted in part and denied in part. Summary judgment will be entered in defendant's favor on Counts I, IV, and VII. Counts II and V will survive summary judgment. Summary judgment will be granted for defendant on Counts III and VI except to the extent to which those claims are based on Rick Swartz's actions and inactions regarding plaintiff after she filed the EEOC complaint. The accompanying Order is entered.

ORDER

This matter having come before the Court upon the defendant's motion for summary judgment; and the Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;

IT IS this 6th day of March 2000 hereby

ORDERED that defendant's motion for summary judgment shall be GRANTED IN PART AND DENIED IN PART, as follows:

Summary judgment is granted in favor of defendant on Counts I, IV, and VII;

Summary judgment is granted in favor of defendant on Counts III and VI except to the extent that those claims are based on actions taken by Rick Swartz; and

Summary judgment is denied to defendant on Counts II and V.

JEROME B. SIMANDLE U.S. District Judge


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