NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6120-09.
Hunt, Hamlin & Ridley, attorneys for appellant (Ronald C. Hunt, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Ryan C. Atkinson, Deputy Attorney General, on the brief).
Before Judges Messano and Sabatino.
Plaintiff Emily Morgan, a former employee of defendant New Jersey Transit ("NJT"), appeals the trial court's April 13, 2012 order granting NJT summary judgment and dismissing her claims of employment discrimination. We affirm.
These are the pertinent facts, which we have considered in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiff is a now-retired African-American woman who first began her employment with NJT in January 1989. From September 2001 until her retirement on June 30, 2011, plaintiff held the title of Senior Economist at NJT. She had earned her bachelor's degree in accounting and economics from Rutgers University in 1981 and then worked as an accountant in private practice and local government before joining NJT in 1989.
On July 15, 2009, plaintiff filed a complaint against NJT alleging, among other things, that NJT violated the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, by discriminating against her on the basis of her age, race, and gender. In March 2011, a few months before she retired from NJT, plaintiff filed an amended complaint. In that pleading, plaintiff alleged that NJT violated the LAD because, on the basis of her age, race, or gender, it (1) did not hire her for certain positions; (2) denied her software training; (3) failed to publicize that certain positions were open; (4) did not provide her with certain "mobility assignments"; (5) did not provide her with certain performance evaluation ratings; (6) unfairly applied the "Hay Points System, " a numerical model that guided employee compensation decisions to determine employee pay, in such a way that it had a discriminatory impact disadvantaging African-Americans; and (7) retaliated against her following her filing of her initial complaint in July 2009.
The Hay Points System
The Hay Points System ("Hay") was developed to guide employers in making compensation decisions. It is used by thousands of employers. NJT uses the Hay system to guide compensation decisions for the agency's "non-agreement" (i.e., non-union) employees.
Alma Scott-Buczak, NJT's Assistant Executive Director of Human Resources, testified at deposition that the Hay system relies on a point evaluation rubric for assigning certain "points" for each job position. The points quantify the knowledge base that the position requires, the accountability of an employee in that position, and the level of problem-solving associated with that position. According to Scott-Buczak, the point assignment determines the available salary range for each specific position.
NJT applies the Hay system for evaluating non-agreement positions "to ensure that they are rated appropriately and assigned an appropriate salary range." As of January 2012, there were over 1, 600 full-time NJT employees holding positions subject to the Hay system. NJT decided to use the Hay system because it had outgrown its past evaluation system, and NJT's witnesses explained that the Hay system was widely accepted within the labor market.
At NJT, the particular level of compensation within a given Hay salary range that an individual employee would be paid depends on several other factors. According to Terri Silverman, NJT's Director of Compensation, those other factors include the individual's educational background, salary history, previous work experience, and the salary negotiations that may have occurred at the outset of his or her employment. Consequently, two individuals in positions that are assigned identical Hay points can nonetheless earn different salaries because of their different personal circumstances. Moreover, it is possible that an employee whose position is assigned a lower Hay points rating can earn a higher salary than another employee whose position has a higher Hay points rating, if the Hay points salary ranges for those two positions overlap.
To support her challenge to NJT's use of the Hay system, plaintiff highlights two sets of statistics. The first statistic reflects an alleged disparity between the proportion of African-American NJT employees and the proportion of white NJT employees who earned salaries that were at least at the midpoint of their respective Hay salary ranges. As an example, this statistic indicated that if a given position at NJT had a Hay salary range of $80, 000 to $100, 000, white NJT employees were more likely than were African-American NJT employees to earn a salary of at least $90, 000, the midpoint of that range. The difference, as an interrogatory response from NJT indicated, amounts to twelve percentage points. Specifically, 85% of white employees earned at least the midpoint salary in their respective Hay salary ranges, as compared to 73% of African-American employees.
The second statistic that plaintiff emphasizes is her position's Hay points rating, in comparison to the Hay points ratings of two other NJT positions, both held by white employees. Specifically, the Hay points rating for plaintiff's Senior Economist position is 464 points, which corresponds to a Hay salary range at NJT of $60, 674 to $91, 012. Meanwhile, the Hay points rating for the Principal Accountant position held by David Zukowski, a white employee, is 393, which corresponds to a lower Hay salary range of $54, 516 to $81, 774. In addition, the Hay Points rating for the Manager of Investment and Analysis position held by Jacqueline Stamford, another white employee, is 588, which corresponds to a higher Hay salary range of $71, 420 to $107, 144.
During the relevant time periods, plaintiff earned an annual salary of $70, 525, Zukowski earned $68, 802, and Stamford earned $86, 758. This corresponded to her earning 92% of the midpoint of her Hay salary range, lower than both Zukowski (101%) and Stamford (98%). Accordingly, plaintiff compares her relative earnings with the relative earnings of these two white employees to support her argument that the Hay points system reflects an organization-wide ...