July 15, 2008
CHRISTINA KELLY, PLAINTIFF-APPELLANT,
MILLENIUM ATLANTIC CITY HOLDCO, L.L.C., DAVID SULLIVAN, GENERAL MANAGER, DEFENDANTS-RESPONDENTS, AND CITY OF NORTHFIELD, MARTIN PERRI, SERGEANT STEVENS, DEFENDANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
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 day and continued to call her "two or three days in a row" to threaten her with the loss of her job.
Peary admitted he called the radio station to express his unhappiness about plaintiff's comment. He denied an intent to have plaintiff fired, and merely wanted an apology from her, "[e]ither by letter or on the radio station."*fn6 Peary called Sullivan and: advised him what was said on the radio; that it's caused friction and it will continue to cause friction . . . between the two [PBA] unions; that officers are now going to have to, . . . have this thing about family members.
Peary asked Sullivan to "talk to [plaintiff] and have her either put it in writing to the PBA or make just like an announcement over the radio, stating the remarks [she] made, . . . [were] wrong." Sullivan said he would investigate the matter.
Sullivan said that when Peary called:
[Peary] said that the reason for his call was that he was upset with what he had heard on the Tina Owen program on WPUR that day.
[H]e . . . was now upset that this was being talked about over our radio station and wanted to know what we were going to do about it since in his opinion it was a besmirchment of both [Stephens] as well as the [NPD].
Sullivan contacted Chontos and obtained a tape of plaintiff's comment. Sullivan listened to the tape and was disturbed by what plaintiff said and about her "naming of the police officer and the threat that the [ACPD] would be doing the same to Officer [Stephens] or his family." Sullivan instructed Chontos to advise plaintiff "that this was an egregious situation and that we would be back to her as soon as possible regarding it." Chontos advised plaintiff that her comment was "very wrong, and there was going to be some sort of repercussion because of it," and that the comment was "more of a morning show content than it would be a midday show content."
Sullivan described a meeting on November 11, 2004, between him, Chontos and plaintiff as follows:
I said to her, "Can you tell me what you were thinking when you did this?" She said that she thought it was appropriate for her program. I said I did not, [Chontos] did not, and that we saw it as irresponsible, reckless, and an abuse of her position as an on-air host. As a consequence, we couldn't trust her in the position and we were terminating her employment.
Sullivan admitted he did not consider any action other than termination.*fn7 He said that although neither the form nor content of plaintiff's comment violated FCC standards, "the naming of Stephens and the threat that the [ACPD] would be doing the same to either [Stephens] or his family" was misconduct and a violation of Millenium's policy, as set forth in the employee manual and the on-air job description.*fn8
There is no dispute that plaintiff had never before made an inappropriate on-air comment; that she had never been disciplined or suspended; and that her ratings were acceptable. Chontos admitted that, since his arrival at the station in 1998, no other host, except plaintiff, had been terminated, and he could not recall anyone other than plaintiff who was terminated or disciplined because of what he or she said on-air.
Sullivan told Harry Hurley (Hurley), a long-time Millenium talk show host, about plaintiff's comment. Hurley said:
[Sullivan] told me all about it. His point was he felt -- that [plaintiff], doing that over the air on the country station was -- that it deviated from the format of the station, that he had gotten . . . a complaint from the [NPD], who were very unhappy that [plaintiff] had brought this up. That's what [Sullivan] told me.
Sullivan also said to Hurley that the NPD was unhappy because "they just didn't like the idea of the -- looking bad over the air, . that they take a lot of pride in what they do and they didn't feel that . it was fair that this stop . . . would be broadcast over the air." Hurley also said:
I would say they were more than embarrassed. They were upset about it.
They felt that it just challenged their --the integrity of their department.
Regarding disparate treatment, plaintiff claimed that at general meetings where good ratings were celebrated, the focus was on "what a great job the guys did[,]" and plaintiff felt excluded because of her gender. Plaintiff recalled a woman named, Marlene, from a sister station, whose ratings were "head and shoulders above the rest[,]" but who was overlooked for congratulations. Also, Hurley spoke with plaintiff about her unhappiness with the way she was being treated, and they discussed that female employees were treated differently than male employees. He acknowledged that "it was a different workplace if you were a gal than if you were a guy."
Plaintiff also claimed that male hosts who made controversial on-air comments were never disciplined. For example, Chontos did a "song parody" around "the time [Governor James McGreevey] came out of the closet," which caused a sponsor to complain and drop its advertising. Chontos recalled that Millenium's sales manager informed him that a client "threatened to pull their business" because it disapproved of the comment. Chontos did not recall whether he apologized, but he recalled that he did not "get into trouble[.]"
Plaintiff also claimed that Hurley "routinely makes inflammatory statements regarding politicians, public officials, police officers and municipal employees" on his radio show, and "publicize[d] and embarrass[ed]" plaintiff's husband because of his DWI offense, "lambasting him over the public air waves." Hurley was never been disciplined for his on-air conduct.*fn9
Craig Carton, co-host of the "Carton and Rossi" or "Jersey Guys" radio talk show on WKXW, 101.5, made many derogatory onair comments, including comments about the postpartum depression of the wife of Acting Governor Richard Codey. Carton said that the Acting Governor and mental health advocates "were upset with me," and called the station to complain. Carton continued to make on-air comments on the subject, with impunity.
Hurley said that Carton repeatedly called Hurley's wife a "whore" on-air, and that he complained in writing and verbally, and demanded that Sullivan and Eric Johnson (Millenium's program director) prohibit Carton from making further comments about Hurley's wife. Johnson said that he could not assure Hurley "that it would never happen again[.]" Nothing was done, and Carton was not disciplined.
When asked what other offensive comments Carton made, which Millenium "let him get away with," Hurley responded that there were so many "that there's not time in the day to recount them." Hurley related that Carton consistently degraded women with filthy, nasty sexual comments, pushing the Federal Communications Commission (FCC) decency rules "to the very limit," and that Carton offended African-Americans with nasty, horrific, primitive remarks. Carton admitted that people complained to the station on many occasions about his on-air comments, but he was never disciplined for anything he said.
After Hurley left Millenium, Carton called him "that douche bag from Atlantic City" on-air. This was a violation of Hurley's severance agreement with Millenium. Carton was not disciplined.
In granting defendants' summary judgment motion, the judge found there was no evidence of disparate treatment because "[p]laintiff was fired for making a threat on-air about a private matter, and no evidence in the record on this motion shows that any male radio host ever did anything of a similar nature." Plaintiff contends that the judge improperly made this factual determination, and that she made a sufficient showing that her termination was based upon disparate treatment, thus precluding summary judgment.
We use the same standard as the trial court when deciding a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In deciding a summary judgment motion, the trial court's "function is not . . . to weigh the evidence and determine the truth . . . but to determine whether there is a genuine issue for trial." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d. 202, 212 (1986)). To determine that, the trial judge must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. If there is "a single, unavoidable resolution of the alleged disputed issue of fact," then the issue is not "genuine." Ibid. The thrust of Brill is that "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Liberty Lobby, Inc., supra, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed. 2d at 214). If there is no genuine issue of fact, we must then decide whether the lower court's ruling on the law was correct. Prudential, supra, 307 N.J. Super. at 167.
Here, the motion judge inappropriately made a factual determination that plaintiff was terminated for making a threat on-air about a private matter. However, the evidence shows that Stephens never heard what plaintiff said, he never complained about it, and he did not consider it threatening. Peary never told Sullivan what plaintiff said was a threat; he only told Sullivan that what plaintiff said caused friction between the PBAs of the ACPD and NPD and that he only wanted plaintiff to apologize either in writing or on the air. Sullivan never used the word "threat" when describing his conversation with Peary. Rather, he said that Peary was upset about what plaintiff said, and that Peary called it "a besmirchment" of Stephens and the NPD. Sullivan also never used the word "threat" when he and Chontos met with plaintiff shortly after the incident, or when Sullivan spoke about the incident to Hurley, who indicated that Sullivan was merely concerned that plaintiff had deviated from the format of her show, and that the NPD was very unhappy about what she said. Viewing this evidence in a light most favorable to plaintiff, a reasonable factfinder could conclude that plaintiff did not make a threat.
We now address plaintiff's disparate treatment claim. When a plaintiff claims disparate treatment and has no direct evidence of discriminatory intent, courts apply the burden-shifting analysis initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). First, the employee must establish a prima facie case that (1) he or she was in a protected class; (2) he or she was performing his or her job at a level that met the employer's reasonable expectations at the time of termination; (3) he or she was nevertheless discharged; and (4) the employer sought someone else to perform the same work after he or she she left. Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005) (citing Andersen v. Exxon Co., 89 N.J. 483, 492 (1982)); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). To satisfy the fourth prong, the employee need not show that his or her replacement was outside of his or her protected class. DeWees v. RCN Corp., 380 N.J. Super. 511, 525 (App. Div. 2005) (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 353 (3d Cir. 1999)). Here, the judge did not make this analysis. Viewing the evidence in plaintiff's favor, we conclude that sufficient evidence exists that plaintiff has met her burden.
A prima facie case creates a presumption of discrimination, and the burden then shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for the employee's discharge. Zive, supra, 182 N.J. at 449; Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 462 (2000) (quoting Andersen, supra, 89 N.J. at 492-93). When the employer produces evidence of a legitimate reason for the discharge, the presumption of discrimination disappears, and the burden shifts back to the employee to prove that the employer's reason was a pretext for discrimination, i.e., it was false, and the real reason was discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2751-52, 125 L.Ed. 2d 407, 422 (1993); Zive, supra, 182 N.J. at 449 (citing Clowes v. Terminix Int'l Inc., 109 N.J. 575, 596 (1988)). The ultimate burden of proof always remains with the employee. St. Mary's, supra, 509 U.S. at 518, 113 S.Ct. at 2753, 125 L.Ed. 2d at 423 (citation omitted); Zive, supra, 182 N.J. at 449 (citing Baker v. Nat'l St. Bank, 312 N.J. Super. 268, 287 (App. Div. 1998), aff'd, 161 N.J. 220 (1999)).
To defeat summary judgment where an employer alleges a legitimate reason for its adverse employment action, the employee must either discredit the proffered reason, either circumstantially or directly; or adduce evidence, whether circumstantial or direct, "that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994). "To discredit the employer's proffered reason, . . . the employee 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." Id. at 765. Rather, the employee must submit sufficient evidence to "allow a factfinder to reasonably infer" that the employer's articulated, nondiscriminatory reason "was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Id. at 764 (citing Andersen, supra, 13 F.3d at 1124).
The issue here is whether defendants' expressed reason for terminating plaintiff was the real reason, and not pretext for discrimination, regardless of whether that reason was unwise or incorrect. If plaintiff succeeds in convincing the factfinder to reject defendants' reason for terminating her, the factfinder may then infer that the true reason was discrimination; "'disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of a prima facie case, suffice to show intentional discrimination.'" DeWees v. RCN Corp., 380 N.J. Super. 511, 526 (App. Div. 2005) (quoting St. Mary's, supra, 509 U.S. at 511, 113 S.Ct. at 2749, 125 L.Ed. 2d at 418).
Viewing the evidence in a light favorable to plaintiff, there is a genuine issue of material fact as to whether defendants' proffered reason for terminating her actually motivated the termination. There is sufficient evidence from which a reasonable factfinder could infer that defendants' proffered reason for terminating plaintiff is a post hoc fabrication and a pretext, and that discrimination might have been the cause of plaintiff's termination.
Also, a comparison of defendants' treatment of employees in the protected and unprotected classes, who engaged in the same offensive behavior as plaintiff, is relevant to showing that the employer's proffered reason for its action was pretext. In McDonnell Douglas, supra, 411 U.S. at 804, 93 S.Ct. at 1825, 35 L.Ed. 2d at 679, a race discrimination case, the Court said that the plaintiff could show pretext with: evidence that white employees involved in acts against [the employer] of comparable seriousness to the "stall-in" [in which the plaintiff participated] were nevertheless retained or rehired. [The employer] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
In Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 298-99 (App. Div. 2000), the plaintiff, a floorperson in defendant's casino, complained that he was terminated because of his race, African-American, and that the proffered reason for the termination, inappropriate behavior, was pretext. We determined that statistics the plaintiff produced of the races of other employees who were terminated because of inappropriate behavior did not support an inference of discrimination. Id. at 305. We affirmed summary judgment in the employer's favor, noting the absence of any other evidence of pretext, and the employer's forbearance retaining the plaintiff a year earlier when it had grounds to terminate him. Id. at 307.
Here, plaintiff has produced evidence creating an inference of discrimination other than a comparison to the conduct of male radio show hosts. Viewing that evidence in plaintiff's favor, a rational factfinder could reasonably conclude that defendants treated plaintiff differently than male radio show hosts because of her gender.