On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-422-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Gilroy and Baxter.
Plaintiff Angela Waltman appeals from orders of the Law Division: (1) granting defendant FYI Directories' (FYI) second summary judgment motion as unopposed and dismissing plaintiff's breach of contract claim; and (2) denying her motion for reconsideration. Defendant cross-appeals from an earlier order of the Law Division denying FYI's first summary judgment motion and extending discovery for an additional sixty days. For the following reasons, we affirm the denial of defendant's first summary judgment motion; affirm in part the grant of defendant's second summary judgment motion dismissing plaintiff's wage-disparity claim, pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and reverse and remand in part the grant of defendant's second summary judgment motion dismissing plaintiff's breach of contract claim.
From November 1996 to September 1998, plaintiff was employed as a sales representative for South Jersey Yellow Pages (SJYP). While employed there, plaintiff sold advertisements in an independent yellow page directory published by SJYP. In September 1998, while working at SJYP, plaintiff loaned $55,000 to Ernie Beaumont, SJYP's sole owner, to purchase two computers and pay the printer so the directory could be published. In exchange, Beaumont agreed to transfer 150 SJYP shares, representing a 15% ownership interest in the company, to plaintiff. Neither Beaumont, nor SJYP, however, ever fully paid her back. When plaintiff left the company in September 1998, about $50,000 of the money owed her remained unpaid.
According to plaintiff, during an October 16, 1998 meeting at which William Hallissey, Crosby Dougherty, Les Cook and plaintiff were present, Hallissey and Dougherty, as co-owners of defendant FYI, promised plaintiff a 15% ownership interest to induce her to work for FYI. In reliance on that promise, in late November 1998, plaintiff began working for FYI as a sales representative. At the end of 1998, FYI paid plaintiff the remaining $50,000 balance of her loan to SJYP. In 1999, a takeover ensued whereby FYI acquired SJYP's assets.*fn1
As further proof of her 15% ownership interest in FYI, plaintiff produced business cards listing plaintiff as a "principal," and FYI's "Statement of Principal Participation" which referred to plaintiff as an account executive. Moreover, Dougherty admitted that plaintiff's ownership participation was discussed in FYI's internal meetings during the "end of 1998 or beginning of 1999."
On April 21, 2003, plaintiff filed her original complaint against FYI alleging the company violated the LAD by paying her less than a male co-worker, Les Cook, who had the same job functions.*fn2 On October 14, 2004, plaintiff amended her complaint to assert a breach of contract claim against FYI, alleging that defendant breached its oral promise to plaintiff of a 15% ownership interest in FYI.
After several discovery extensions and the Law Division's October 21, 2005 order compelling discovery from plaintiff, defendant filed its first motion for summary judgment with a return date of September 8, 2006 at 9:00 a.m. Plaintiff filed a late opposition to defendant's motion on the afternoon of September 8, 2006, without any explanation for her delay, and requested a two-week postponement to allow defendant to respond to her opposition. Accompanying her opposition was: (1) plaintiff's certification dated September 8, 2006, in which she represented that she had relied on Hallissey's and Dougherty's offer of a 15% interest in FYI; (2) defendant's business cards listing plaintiff as "Principal;" (3) defendant's "Statement of Principal Participation" referring to plaintiff as an account executive; and (4) a loan agreement, dated September 2, 1998, between SJYP and plaintiff, whereby plaintiff would receive 150 shares of SJYP stock on September 30, 1998.
In an order dated September 22, 2006, following a two week adjournment, the Law Division considered plaintiff's late opposition, denied defendant's first motion for summary judgment and extended discovery, which was the fifth extension, for an additional 60 days. Specifically, the judge stated:
The [disparity of the] draw issue, it has been acknowledged is . . . no longer an issue. . . . [T]here are two claims remaining. One is contractual which . . . [has] some questions. And the other is . . . a differential in salary. . . .
There are many valid reasons why people make different amounts of money and just the fact that [plaintiff] is making a different amount of money still leaves [her] with a lot to prove to the Court, but [plaintiff] has survived the summary judgment motion . . . .
[I]t wasn't [un]til I looked at the documentation about the previous transaction that at least caused me to wonder whether [plaintiff] should have received an ownership interest in this new company. It's factual . . . . But right now[,] the only thing I have in front of me is if there is a differential in salary, so I'm denying the motion for summary judgment.
[I]n light of . . . a shift in [plaintiff's] theory[,] . . . I will . . . open discovery up . . . for 60 days to allow for the deposition ...