On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2764-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Simonelli.
Defendant Daniel Sullivan (Sullivan), vice-president and general manager of a radio station owned by defendant Millenium Atlantic City Holdco, L.L.C. (Millenium), terminated plaintiff Christina Kelly from her position as a radio show host because of her on-air comment about a traffic ticket issued to her by defendant William Stephens (Stephens) of the City of Northfield Police Department (NPD).*fn1 Plaintiff claims that her termination constituted disparate treatment based upon gender, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, because male radio hosts received no or lesser discipline for their more severe, controversial on-air comments. Plaintiff appeals from that portion of the May 15, 2007 order granting summary judgment to Millenium and Sullivan, dismissing her amended complaint with prejudice.*fn2 We reverse.
The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Millenium operated four radio stations in the Atlantic City area: WPUR, a country music station; WFPG, a soft rock station; WIXM, a talk show station; and WKXW, a sports talk station.*fn3 There were under three dozen employees at the WPUR location, most of whom were men, and eight of the eleven radio hosts were males.
Plaintiff worked at WPUR and, using the on-air name, Tina Owens, hosted a mid-day country music show from 10:00 a.m. to 3:00 p.m. Plaintiff played music, ensured commercials ran on time, did sponsorship announcements, took calls from listeners, devoted one hour to special requests, and did "[p]ersonality driven bits[.]"
Plaintiff reported to Joe Chontos (Chontos), the morning show host and program director, with whom she had a good working relationship. The morning show was more "comedic" and "personality driven" than plaintiff's "music driven" mid-day show.
On November 3, 2004, Stephens stopped plaintiff's vehicle because she "rolled through a right on red" and "swerved . . . near the Friendly's driveway." Plaintiff claimed she gave Stephens her license, registration, insurance card, and a Policemen's Benevolent Association (PBA) "spouse card[,]" or "[t]raveling and dues card[,]" which indicated her husband's employment as a police officer with the Atlantic City Police Department (ACPD) and his membership in the local PBA. A junior officer who was with Stephens advised him that plaintiff said she was married to an Atlantic City police officer.*fn4 Stephens denied that plaintiff gave him a PBA card, had a PBA sticker or medallion displayed on her vehicle, or advised him that her husband was a police officer.
According to plaintiff, Stephens returned to her car and informed her that her insurance card was not valid, and that he was "going to give [her] a break and just write [her a summons] for the insurance [card] and not for the other infractions [he] saw." Plaintiff admitted her insurance card had expired. She later paid a fine and told her husband, "I got a big break."
On November 4, 2004, plaintiff told Chontos about the incident with Stephens and said she would "probably talk about it [on her show] today." She made the following on-air comment:
Hey, I'd like to thank Sergeant [Stephens]*fn5 of the Northfield Police Department who gave me a ticket last night. Yes, I'm a police officer's wife, and yes, I had and handed over my, um, traveling and dues card that's my husband's, and yes I have one of those gold shields, and yes I was very respectful even though the charges were questionable in my eyes, but hey, you were just doing your job, and it's my opinion that the Atlantic City Police Department will now do their job too for you and yours. It's just my opinion.
Stephens did not hear plaintiff make the comment. When later told what plaintiff had said, Stephens considered it "an annoyance," he never considered it to be threatening, and he never contacted Millenium or complained about the comment.
Peary, a NPD police officer, called plaintiff to complain about what she said. Plaintiff apologized and gave Peary Sullivan's telephone number. Plaintiff claimed that Peary was "belligerent," "threatening," "obnoxious and a little frightening," and he said, "I'm going to have your job, you asshole," and "a couple other words." Plaintiff said that Peary called her three times that ...