On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-2016-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Winkelstein and Fuentes.
Plaintiff Sherry Gilkin filed a complaint against defendant Board of Chosen Freeholders For Gloucester County alleging employment discrimination. After engaging in motion practice, plaintiff filed an amended complaint alleging in Count One gender discrimination in the form of unequal pay, in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-12; the Discrimination In Wages Act, N.J.S.A. 34:11-56.2; and the Equal Pay Act, 29 U.S.C.A. § 206(d). In Count Two, plaintiff alleged sexual employment discrimination, again in violation of the LAD. In Count Three, she alleged retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. In Count Four, she alleged breach of contract.
The matter came before the trial court by way of defendant's motion for summary judgment. After hearing the arguments of counsel, and relying on the record made available by the parties, the trial court granted partial summary judgment dismissing what the court framed as "Count I Equal Pay, [and] Count II Discrimination." Although not individually pled as a separate count in the complaint, the court also dismissed what it labeled "Punitive Damages." The court denied summary judgment on what it denoted "Count III Retaliation."*fn1
Thereafter, the court denied the parties' cross-motions for reconsideration. We dismissed as interlocutory plaintiff's initial appeal from this order. On March 23, 2007, the trial court entered an order denoted as a Final Order and Judgment.*fn2
From this order plaintiff now appeals, arguing that the motion judge failed to duly consider the evidence of wage discrimination. We agree and therefore reverse.
Plaintiff began working for Gloucester County in 1992 as a clerk typist. In 2002, the County received funding to establish a Tobacco Age of Sale Program and a Tobacco Control Program. Plaintiff's supervisor at that time was Donald Benedik. Although Benedik wanted plaintiff to manage these program immediately upon her appointment, the County declined to do so because it was required to comply first with Civil Service guidelines.
To accomplish this, the County needed to designate a Civil Service job title that would correspond with plaintiff's duties, then submit plaintiff's appointment, along with her Civil Service title, for review and approval by the New Jersey Department of Personnel (DOP). The County's first proposal, to give plaintiff the title of Health Aide, was rejected by the DOP because the position was a competitive one, requiring the employee to qualify by taking a civil service examination.
According to plaintiff, she was never notified that she was denied the Health Aide position due to the Civil Service, competitive-test requirement. Although she claimed that defendant could have appointed her to the non-competitive position of Field Representative Health Educator, there is no evidence in the record to support this assertion.
To overcome this Civil Service impediment, the County appointed plaintiff to the position of program manager for the Tobacco Age of Sale and Tobacco Control programs. This position did not have to meet civil service requirements because plaintiff was paid "out-of-title" for her work. For plaintiff, this amounted to an increase in salary of $21.12 for each pay period. Although out-of-title placements are intended to be a temporary arrangement, plaintiff worked in this capacity for approximately two years, from July 1, 2000 until November 28, 2002.
In December of 2001, Benedik met with Lisa Kricum, the state Tobacco Control Unit Manager, to discuss plaintiff's compensation. At Benedik's request, Kricum performed a statewide survey of salaries for county Tobacco Program coordinators. The survey revealed that plaintiff was being paid the lowest salary in the state for someone in her position. While her salary was approximately $27,145 ...