April 19, 2012
LOIS SIEKLIK, AVINASH DELROY, SUNDAY OMOLOYIN AND THOMAS ADEOGUN, PLAINTIFFS-APPELLANTS, AND CAROLE AYRES, LILA STOUT, WILLIAM SCHWARTZ, THERESA MARKEL, ALEXANDRIA GILLELAND, ETHEL WHITE, DIANA TALBERT, ANNE GREY AND DONITA ANDERSON, PLAINTIFFS,
STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-212-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 29, 2012
Before Judges Cuff, Waugh and St. John.
Plaintiffs Lois Sieklik, Avinash Delroy, Sunday Omoloyin, and Thomas Adeogun, all Assistant Directors of Nursing employed by defendant State of New Jersey at Greystone Park Psychiatric Hospital (Greystone) and all between the ages of sixty-two and sixty-five, allege they are paid less and treated differently than others who share the same title due to their age. Plaintiffs filed a complaint alleging age discrimination in pay pursuant to N.J.S.A. 10:5-4.*fn1 They appeal from an order granting summary judgment to defendant. We affirm.
On appeal, this court reviews an order granting summary judgment pursuant to the same standard as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Therefore, we must determine 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Here, the facts are not disputed. The only issue before this court is whether the motion judge properly applied the governing law to the facts. We review questions of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Each plaintiff holds the title of Assistant Director of Nursing (ADON). Plaintiff Adeogun was promoted to ADON in 1989; Delroy in 1995; Sieklik in 1998; and Omoloyin in 2002. Plaintiffs Adeogun and Delroy are sixty-four years of age; Sieklik is sixty-five, and Omoloyin is sixty-two.
Until 2007, the ADON title was considered a management position, as a result of which they were not represented by a union and their salaries were not subject to negotiation between the State and a union. They did not receive annual salary increments and did not always receive cost-of-living increases. In 2007, the ADON title ceased to be considered a management position and plaintiffs began to be represented by Local 1040 of the Communications Workers of America (CWA). The position below ADON is Supervisor of Nursing Services (SNS). The employees in this position have been and continue to be represented by the CWA. Persons occupying the SNS title received periodic salary increments and cost-of-living salary increases. Accordingly, the pay differential between the ADON and SNS titles narrowed over the years.
The first contract negotiated on behalf of the ADONs provided for automatic salary increases for those with salaries that fell between established salary steps and a salary step increase. These provisions did not account, however, for those promoted to the position before 2006.
As of August 2010, Greystone employed thirteen ADONs ranging in age from forty-one to sixty-four. Below is the current list of ADONs sorted first by age, then by salary, then by promotion date.
TO ADON SALARY STEP Ijoala 65 5/11/1992 2/8/2003 $90,646.46 10
Anderson 65 12/7/1987 6/3/1989 $87,648.25 9 Sieklik*fn3
65 9/28/1987 8/15/1998 $87.648.25 9 Adeogun 64 10/1/1985
10/7/1989 $87,648.25 9 Delroy 64 9/23/2000 9/23/2000 $87,648.25 9
Omoloyin 62 7/26/1993 1/26/2002 $84,640.04 8 Adekoje 59 9/13/1997
1/25/2004 $90,646.46 10 Miller 58 3/28/1977 9/17/2005 $90,646.46 10
Ren 57 7/1/1985 2/3/2007 $87,648.25 9 Odewale 55 7/20/1996 6/20/2009
$84,640.04 8 Igwechi 54 9/27/1997 1/6/2007 $90,646.46 10 Asimolowo 47
6/1/1998 6/20/2009 $90,646.46 10 Alofe 42 2/1/1999 9/17/2005
Below is the same list, sorted first by salary, then by age.
TO ADON SALARY STEP Ijoala 65 5/11/1992 2/8/2003 $90,646.46 10 Adekoje 59 9/13/1997 1/25/2004 $90,646.46 10 Miller 58 3/28/1977 9/17/2005 $90,646.46 10 Igwechi 54 9/27/1997 1/6/2007 $90,646.46 10 Asimolowo 47 6/1/1998 6/20/2009 $90,646.46 10 Alofe 42 2/1/1999 9/17/2005 $90,646.46 10 Sieklik 65 9/28/1987 8/15/1998 $87,648.25 9 Anderson 65 12/7/1987 6/3/1989 $87,648.25 9 Adeogun 64 10/1/1985 10/7/1989 $87,648.25 9 Delroy 64 9/23/2000 9/23/2000 $87,648.25 9 Ren 57 7/1/1985 2/3/2007 $87,648.25 9 Omoloyin 62 7/26/1993 1/26/2002 $84,640.04 8 Odewale 55 7/20/1996 6/20/2009 $84,640.04 8
Below is the same list, sorted by ADON promotion date.
TO ADON SALARY STEP Anderson 65 12/7/1987 6/3/1989 $87,648.25 9 Adeogun 64 10/1/1985 10/7/1989 $87,648.25 9 Sieklik 65 9/28/1987 8/15/1998 $87,648.25 9 Delroy 64 9/23/2000 9/23/2000 $87,648.25 9 Omoloyin 62 7/26/1993 1/26/2002 $84,640.04 8 Ijoala 65 5/11/1992 2/8/2003 $90,646.46 10 Adekoje 59 9/13/1997 1/25/2004 $90,646.46 10 Miller 58 3/28/1977 9/17/2005 $90,646.46 10 Alofe 42 2/1/1999 9/17/2005 $90,646.46 10 Igwechi 54 9/27/1997 1/6/2007 $90,646.46 10 Ren 57 7/1/1985 2/3/2007 $87,648.25 9 Odewale 55 7/20/1996 6/20/2009 $84,640.04 8 Asimolowo 47 6/1/1998 6/20/2009 $90,646.46 10
During discovery, each deposed plaintiff recognized that the salary discrepancy of those holding the ADON title is attributable to the designation of the ADON position as a management position prior to 2007 and the failure to address the salary discrepancy in the first or any subsequent contract once the ADONs were represented by the CWA.
In his oral decision, Judge Hurd assumed plaintiffs could establish a
prima facie case in accordance with the McDonnell Douglas*fn4
standard. The judge proceeded to find plaintiffs failed to
establish a genuine issue of material fact that the State's proffered
reason for any pay disparity was pretextual. In fact, the judge found
"[t]here is no indication in the record of pretext." Judge Hurd also
held the record presented on summary judgment did not satisfy the
standard to support a disparate impact claim.
On appeal, plaintiffs argue that a question of fact precludes summary judgment, they can establish a prima facie case of age discrimination, the State cannot establish a non-discriminatory reason for the pay disparity, and the pay disparity caused by contractual negotiations covering unionized nursing staff may be addressed by the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The State responds that plaintiffs failed to establish a prima facie case of age discrimination, the State demonstrated a legitimate non-discriminatory reason for any salary discrepancies, and plaintiffs failed to present any evidence that the legitimate business reason articulated by the State is pretextual. The State also contends plaintiffs' disparate impact argument must fail because it was not raised in the trial court and is not supported by the record. The State also argues that any pay disparity claims after persons in plaintiffs' title became unionized are contractual claims which they do not have standing to litigate.
The LAD, specifically N.J.S.A. 10:5-4, prohibits an employer from discriminating against an employee based on age. N.J.S.A. 10:5-12a provides that "[i]t shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination . . . [f]or an employer, because of . . . age . . . to discriminate against such individual in compensation . . . ." "[A]n age-discrimination case involving unequal pay for equal work asserted under the LAD is governed by the 'broader approach' of Title VII" of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e-2,*fn5 and the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. 621.*fn6 Bitsko v. Main Pharmacy, Inc., 289 N.J. Super. 267, 272 (App. Div. 1996) (quoting Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 101 (1990)); Giammario v. Trenton Bd. of Educ., 203 N.J. Super. 356, 361 (App. Div.), certif. denied, 102 N.J. 336 (1985), cert. denied, 475 U.S. 1141, 106 S. Ct. 1791, 90 L. Ed. 2d 337 (1986). See also Bergen Commercial Bank v. Sisler, 157 N.J. 188, 200 (1999) ("To the extent the federal standards are 'useful and fair,' they will be applied in the interest of achieving a degree of uniformity in the discrimination laws.") (quoting Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 81 (1978)). But see, Grigoletti, supra, 118 N.J. at 109-10 (applying the Equal Pay Act, 29 U.S.C.A. 206(d)(1), to gender discrimination claims based on unequal pay). An employee may bring an LAD claim of age discrimination under a theory of disparate treatment or disparate impact. Peper, supra, 77 N.J. at 81.
Disparate treatment occurs when an employer intentionally discriminates against an employee based on, for instance, his age. Ibid. (citing Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S. Ct. 1843, 1854 n.15, 52 L. Ed. 2d 396, 415 n.15 (1977)). An employee may establish age discrimination through direct evidence. An aggrieved employee may also establish a claim through circumstantial evidence. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005); Bergen Commercial Bank, supra, 157 N.J. at 209. The starting point for evaluating an LAD claim is the three-step analysis announced in McDonnell Douglas. Under this test,
(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate non-discriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application. [Dixon v. Rutgers, 110 N.J. 432, 442 (1988) (citing McDonnell Douglas, supra, 411 U.S. at 807, 93 S. Ct. at 1826, 36 L. Ed. 2d at 680).]
"Although the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination." Bergen Commercial Bank, supra, 157 N.J. at 211.
In an age discrimination case, the McDonnell Douglas test is modified to reflect the nature of the claim. In an age discrimination case, "[t]he focal question is not necessarily how old or young the claimant or [her] replacement was, but rather whether the claimant's age, in any significant way, 'made a difference' in the treatment [s]he was accorded by [her] employer." Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 82 (App. Div.), certif. denied, 170 N.J. 388 (2001). Under the LAD, a plaintiff must "'show that the prohibited consideration[, age,] played a role in the decision making process and that it had a determinative influence on the outcome of that process.'" Bergen Commercial Bank, supra, 157 N.J. at 207 (alteration in original) (citations omitted).
Plaintiffs are within the protected class of those over forty years of age. Every person who occupies the ADON position falls within the protected class. We recognize that the evidentiary burden to establish a prima facie case of age discrimination is modest, Zive, supra, 182 N.J. at 447; however, plaintiffs have produced no evidence that their age had any influence at all in the disparity of pay among ADONs. In fact, the undisputed facts of the record demonstrate the pay disparity among ADONs is purely a function of the classification of the position as management prior to 2007, and the failure of the first and subsequent contracts negotiated by the CWA to address the disparity.
In addition, plaintiffs have mustered no evidence that the State's explanation for the disparity is pretextual. Plaintiffs admitted at oral argument of the motion that they had no such evidence.
On appeal, plaintiffs seem to argue that they have also presented a disparate impact claim of age discrimination. Although Judge Hurd referred to this claim and held that plaintiffs could not establish it, the judge also recognized that plaintiffs had pled only a disparate treatment age discrimination claim. We agree and remind plaintiffs that this court will not address a claim not raised in the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, the record failed to establish a prima facie case of disparate impact age discrimination. Plaintiffs cite the salary step provision of the contract negotiated by the CWA as a facially neutral provision that acts to discriminate against them based on their age. Yet, the record demonstrates that the salary disparity among ADONs is not a function of the contract salary step system but the date of their promotion to the ADON position.
The March 4, 2011 order granting summary judgment in favor of the State and dismissing plaintiffs' amended complaint is affirmed.