The opinion of the court was delivered by: Simandle, District Judge
This employment discrimination matter is before the Court on Defendant's motion for summary judgment. [Docket Item 14.] For the reasons discussed below, Defendant's motion will be granted in part and denied in part.
Defendant, Family Dollar Store, Inc., operates a retail store in Burlington, New Jersey. Plaintiff Niambi Cooper was the store manager and Plaintiff Raquell Hatcher served as assistant manager at the Burlington store until they were both terminated on May 19, 2007. Defendant maintains that Plaintiffs were terminated because they violated a policy that prohibits store managers and assistant managers from permitting non-employees to work in the stores. Plaintiffs admit to violating the policy, but dispute that this was the true cause of the termination. Plaintiffs, both African-American women, argue that they were actually terminated because of their complaints about the unhealthy conditions at the store in violation of New Jersey's Conscientious Employee Protection Act, N.J. Stat. Ann. 34:19-3. They also maintain that even apart from the allegedly retaliatory aspect of their firing, they were treated differently from white employees who violated the same store policy and were not fired. They therefore bring additional claims for racial discrimination under 42 U.S.C. § 1981 and the New Jersey Law Against Discrimination, N.J. Stat. Ann. 10:5-1. Ms. Hatcher also brings a claim based on the New Jersey Wage Payment Act, N.J. Stat. Ann. 34:11-4.2, based on a pay increase she was promised and never received.
A. Hatcher and Cooper's Employment History and Termination
Ms. Cooper was initially hired at the Willingboro Dollar Store location, in June 2005. She was promoted to assistant manager and transferred to the newly-opened Burlington store in April 2006, and became store manager in June 2006. Ms. Hatcher was hired at the Burlington store in January 2007, and promoted to assistant manager in March 2007.
Store managers are supervised by both an Area Operations Manager ("AOM") and a Performance Manager ("PM"). The AOM reports to a Regional Vice President ("VP"). Until August 2006, AOM James Reardon oversaw the Burlington store. After a reorganization, the AOM was Robert Houser.*fn1 Houser and Reardon reported to VP Michael Gray. The PM for the Burlington store was Matthew Barth.
On March 18, 2007, Ms. Cooper called the fire department after being unable to contact her supervisor because the roof of the store was leaking, there was smoke coming from the electrical units in the building, and the lights were dimming due to electrical problems.*fn2 The Burlington store had a partially caved and leaky roof and related mold build-up and electrical problems. On top of these issues, the store had persistent sewage problems involving backed up toilets. The store was closed by order of the fire department, who placed a red sign on the building prohibiting "human occupancy."*fn3
While the store was closed to the public, Plaintiffs were required to prepare the store for reopening and also help with Defendant's Willingboro store. Cooper and her employees stocked and cleaned the Burlington store amid conditions of visible mold all over the store and coming out of air vents, horrible odors, sewage that had backed up from toilets, and did so often without electricity. Cooper testified that on one day during the closure when the smell from the sewage was unbearable, she complained to "Miss V" in Defendant's maintenance department, to no avail. (Cooper Dep. 91:25-92:21).*fn4 Hatcher also testified in her deposition that she spoke with a "Miss V" in human resources regarding the store conditions. During the closure, Cooper complained to AOM Houser that she was breaking out in a rash and having other health issues, which she believed to be related to the store's conditions. Cooper also specifically complained to PM Barth and AOM Houser during this period about the unhealthy conditions of the store.*fn5 (Cooper Dep. 175:6-176:4.) Hatcher also complained to Houser and Barth on multiple occasions about the work conditions, including her rashes and difficulty breathing.
Cooper was ordered to reopen the store on May 3, 2007. Barth told Hatcher and Cooper that his supervisors were tired of the store being closed, and that it must be opened that day. Cooper's affidavit avers that she told Houser that the store should not be reopened because she believed the store was in violation of state or local codes. (Cooper Aff. ¶3.)*fn6
At this point, the timeline of events gets somewhat blurrier. At some point, all are agreed, Hatcher permitted her son, Devante, to unload a truck at the store on two days, for one hour each day. (Hatcher Dep. 162:9-21.) It is unclear whether this occurred before or after the reopening. Hatcher testified that it occurred after the reopening, because the reason they needed an extra set of hands for unloading was that someone had to work the registers. (Hatcher Dep. 148:2-149:23.) But Defendants maintain that this occurred during the store closure. Either some time after Hatcher's son performed this work, or on the second day of the work, Barth and Houser visited the store (the parties dispute whether Hatcher's son was present during the visit).*fn7 According to Barth, the visit was to investigate rumors that employees were recording work hours that they had not actually been working. Barth testified that he and Houser were going to check the store's digital video recordings to determine whether employees were in the store during the times that employees had claimed they were working. (Barth Dep. 19:2-18.) Houser described the visit this way:
During [the period of the closure] is when we went back in and -- I was having an inventory in Willingboro, which is the store right down the street, maybe three miles away, and I asked [Cooper] to come help prep for inventory at the times that she wasn't in the building, her and her assistant at the time, to come help prep for inventory. She wasn't really showing up for those, so we went to find out why she wasn't showing up. We went to the store and looked at the video.
(Houser Dep. 11:11-12:8.) Plaintiffs argue that Barth and Houser's accounts of the reason for the visit are inconsistent, and that in fact the investigation was part of arranging a pretext for firing Plaintiffs. But both Barth and Houser's accounts are consistent with them going to the store to determine whether Cooper and Hatcher were at the Burlington store during the times they otherwise should have been at the Willingboro store.
The parties also dispute whether Barth and Houser identified Hatcher's son while visiting the store and informed Ms. Hatcher about the violation, or whether it was only upon viewing the video tapes that they discovered him. Barth testified that he observed Ms. Hatcher's son and proceeded to ask Houser about him. (Barth Dep. 19:19-20:11.) Houser ambiguously testified that "We went to the store and looked at the video, the little DVR tapes, and that is when we saw a young boy unloading trucks." (Houser Dep. 12:7-11.) Plaintiff implicitly argues that Houser's phrase "that is when" refers to "looked at the video" instead of "went to the store," but the Court cannot determine Houser's meaning either way. Whether discovered in person or on tape, Houser ultimately reported the fact that Ms. Hatcher's son was working at the store to the Loss Prevention Department.
On May 9, 2007, Loss Prevention Supervisor Bob Petry investigated Houser's report by interviewing Plaintiffs at the store and reviewing the store surveillance tape. Plaintiffs freely admitted the violation of the nominal store policy. Plaintiffs allege that they discussed with Petry the health hazards at the store, and their concerns that working in the store despite the fire department's prohibition on "human occupancy" might be illegal. (Cooper Aff. ¶5; Hatcher Aff. ¶5.)*fn8
Defendants deny this. In his deposition, Petry testified as follows:
Q: I am not trying to lock you into a specific time or day. Whether you had a conversation with Mr. Gray the same day that you investigated Cooper and Hatcher, the following day, or several days later, did you reiterate to Mr. Gray everything that you recalled that was discussed with you and Cooper and Hatcher?
Q: And did you do the same with Mr. Reardon?
Q: How did you leave it with Mr. Gray, Mr. Houser, or Mr. Reardon after you conveyed the information to each of them? Did you just say, "Now it's in your hands. Do what you want to do" or did you give some type of opinion?
A: No. Just, once again, just the details of the case, the investigation, provided it to them and then it's up to them to make the decision.
(Petry Dep. 26:23-27:7, 31:24-32:9.) Plaintiffs heavily rely on the word "everything" in the question leading to Petry's unelaborated "yes." However, in its reply brief, Defendant submits an affidavit of Mr. Petry's averring that he understood "everything" to mean everything that was relevant to the investigation of unauthorized work, and that he never mentioned anything about store conditions or complaints about store conditions to Reardon or anyone else. (Petry Aff. ¶5-6.) While Plaintiffs argue that the clarifying affidavit contradicts the deposition testimony, the Court disagrees. Given his later testimony that he provided just the details of the investigation, the Court finds that the deposition testimony is sufficiently ambiguous that Petry's declaration should be taken as uncontroverted.
On May 14, 2007, Houser was terminated for reasons unrelated to this litigation, and was temporarily replaced by Reardon. Reardon testified that Barth probably informed him of the policy violations committed by Cooper and Hatcher on Tuesday, May 15th. Reardon testified that he made the termination decision. (Reardon Dep. 16:8-9.) He could not recall, however, if he was advised as to whether to terminate Plaintiffs, or take some other action. (Reardon Dep. 27:13-24.) Gray testified that on May 15th he recommended Plaintiffs be terminated, but that it was left to Reardon's discretion. (Gray Dep. 24:2-22.) Barth testified that the decision was made by Gray, collaborating with Petry, Reardon, and human resources, but that he personally was not involved in the discussion about what to do about the policy violation. (Barth Dep. 16:24-17:5.)
At 8:47 A.M. on May 18, 2007, Reardon sent Gray and human resources representative Julie Giblin an e-mail. The e-mail stated that Reardon was going to the Burlington store to terminate Plaintiffs. Around the same time that the e-mail was sent, Plaintiffs jointly placed a call to the Health Department regarding the state of the store, resulting in an immediate Health Department inspection.*fn9
The next day Barth and Reardon went to the Burlington store to terminate Plaintiffs. Reardon asked Cooper to tell Hatcher to come to the store, because Hatcher was not working that day. Before Hatcher arrived, Reardon informed Cooper (while Barth was standing nearby) that she was terminated for the violation of the non-employee work policy. Hatcher was ...