On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5008-98.
Before Judges Pressler, Wallace, Jr., and Axelrad.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 18, 2002
This is a handicap discrimination case. Plaintiff Gladys Mosley can neither hear nor speak. She filed a complaint against her former employer, defendant, Femina Fashions, Inc., alleging in part that (1) she was discharged in retaliation for complaining to her supervisor that she was compelled to work overtime without being paid in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to 34:19-8; (2) defendant's failure to pay her overtime violated the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a; (3) defendant failed to keep appropriate records reflecting the overtime hours plaintiff worked, 9 U.S.C. '201 et seq; and (4) she was discriminated against because of her handicap in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 10:5-49. Prior to trial, the trial court dismissed the third count of the complaint, failing to keep records. The case was tried before a jury. After all the evidence was presented, but prior to the jury's deliberations, the trial court granted defendant's motion to dismiss the remaining counts in the complaint. Plaintiff's motion for a new trial was denied.
On appeal, plaintiff urges that (1) she presented sufficient evidence of wage violations and it was error to dismiss her claim as speculative; (2) she established a prima facie case under CEPA; (3) she established a prima facie case of handicap discrimination under LAD disability; and (4) the proposed settlement agreement should have been enforced. We affirm the dismissal of the CEPA claim and the denial of plaintiff's motion to enforce the settlement, and reverse the dismissal of plaintiff's wage and LAD claims.
Plaintiff is unable to hear or speak. Sign language experts were furnished for her at trial. Plaintiff began her employment with defendant in 1984 as a seamstress and was paid an hourly wage. Beginning in 1988, however, she claimed she was required to work beyond the regular quitting time of 3:30 p.m. without compensation. Sometimes she was permitted to punch her time card at 4:30 p.m., but she was required to work late every day. Plaintiff submitted into evidence the time cards she received from defendant during discovery, but defendant did not produce all of the time cards. Otherwise, plaintiff did not have any record of the hours she worked without pay.
Plaintiff claimed her supervisor, Rita Padilla, continuously said her production was deficient and required her to remain after the end of the regular work day to finish the work without pay. This routinely happened. Plaintiff described how Padilla instructed her to work.
She would show me this sheet that would show the previous day's work the productivity and she'd point to it and just point down and then she would put down 5:30. She would put down that you can only charge till 4:30 and sometimes she would pull it back to 3:30.
* * * My C my time card would be punched with whatever time I was told to punch out. I had to stay and work until my productivity met what was on the production sheet because they wanted to boost the numbers.
Plaintiff remembered one other worker who punched out at 4:30 and continued to work, but that person left the employment.
Plaintiff recalled that Padilla and Harry Mark, the general manager, were present at the plant after 4:30. Sometimes Mark would drive her home. She complained about working without pay, but she got no response from either Padilla or Mark. She did not report defendant's failure to pay overtime to a governmental agency because she was afraid that Padilla "would really get mad and I would get into trouble and it's hard for me to find a job."
In March 1998, an incident occurred which caused her to leave her employment. On Monday, March 2, 1998, plaintiff noticed Mark held her time card as he spoke with Padilla. Mark then came to her and complained that her production was too low. Plaintiff looked at her card and realized that Mark had changed her time card for Friday to show the clockout time was 2:30 p.m. instead of 3:30 p.m. She calculated she lost three hours of time because she had worked until at least 5:30 p.m. on Friday. She was upset and looked for Padilla to voice her concerns. Plaintiff subsequently argued with Padilla over the change of her time card. Padilla replied she did not ...