Opinion
DOCKET NO. A-4730-11T1
10-30-2013
EMILY MORGAN, Plaintiff-Appellant, v. NEW JERSEY TRANSIT, its employees, agents, and/or servants, Defendant-Respondent, and JEFF KLUGMAN, Defendant.
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).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Sabatino.
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). PER CURIAM
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.
I.
A.
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 contents of the original complaint filed by plaintiff are not relevant to our analysis.
On appeal, plaintiff's brief focuses in a more limited fashion upon her claims of wage discrimination and does not raise any particular arguments concerning non-wage issues such as her training or job assignments.
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.
For example, a position rated at 793 Hay points would have a salary range slightly higher than a position rated at 792 Hay points, although the two ranges would greatly overlap. Such small differences in Hay points, according to a published NJT "Q&A" information sheet, "are not likely to have a significant impact on individual salaries." Conversely, two different positions that happen to be assigned the same Hay number would have identical salary ranges.
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.
There is no indication that NJT adopted the Hay System pursuant to any particular administrative regulation.
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 discriminatory policy. In essence, she claims that her lower relative salary is evidence of race-based discrimination.
We analyze these statistics-based claims in Part II(A) of this opinion, infra.
The 2001-03 Market Equity and Wage Policy Program
Another factor that affected employee compensation at NJT during the relevant time frame was a separate and since-discontinued program called the Market Equity and Wage Policy Program (the "Market Equity Program"). Implemented in July 2001, the goal of this program was to help achieve parity between the average compensation for top-performing, non-agreement NJT employees and those of "average market rates." To qualify for a Market Equity Program pay increase, an NJT employee had to (1) have been a non-agreement employee for a minimum of one year, (2) with a salary below the midpoint for his or her salary range, and (3) a rating of "Commendable" or "Outstanding" during his or her assessment for the previous fiscal year.
According to Silverman, plaintiff was not eligible for a Market Equity Program pay increase in July 2001 because she received a performance rating that year of "Effective," which was lower than "Commendable." Plaintiff does not contest this statement.
The following year, in 2002, a new requirement was added, so that in order to be considered for salary increases under the Market Equity Program, the employee needed to have worked in his or her position for at least one year, in addition to meeting the other requirements. This one-year prerequisite was applied to every non-agreement employee. Because at that time plaintiff had been a Senior Economist for only ten months, she did not meet the one-year durational requirement, and was therefore also ineligible for any Market Equity Program pay increases in 2002.
The Market Equity Program was ended in 2003 due to budget constraints. Therefore, 2002-03 was the second and last fiscal year that any non-agreement NJT employee received a salary increase under that particular program.
Performance Evaluations
In addition to the Hay system and the now-defunct Market Equity Program, NJT also used supervisors' performance evaluations in determining salaries for its employees. Merit increases allow employees to receive raises as long as they are within the established salary range determined by the Hay Points System. These increases are based on a percentage of the employee's current or base salary, and are given on a case-by-case basis.
According to Scott-Buczak, each supervisor gives each employee a rating that falls within one of six separate categories, the highest being "Exceptional/Distinguished." As shown in the sample performance evaluations in the record, these evaluations include subjective components, such as the extent to which the employee keeps abreast of job knowledge in the field, his or her ability to work with colleagues, his or her "willingness to participate in group work discussions," the degree by which he or she "leads through example," and the extent to which he or she "finds innovative approaches to achieve desired work results."
As of January 2012, only about four to five percent of all eligible NJT employees received an "Exceptional/Distinguished" rating. Within NJT's Treasury group specifically, of which plaintiff was a part, only one individual received that rating in 2011-12. Moreover, according to Scott-Buczak, no more than eight employees within NJT have ever received consecutive ratings of Exceptional/Distinguished.
Between September 2001 to September 2009, plaintiff received at least eight performance evaluations. She received the second-highest overall assessment of "Frequently Exceeds Expectations"/"Far Exceeds Expectations" on four of those eight evaluations. Notably, after plaintiff's 2010 performance evaluation of "Exceeds Expectations," NJT again reviewed that evaluation after plaintiff appealed it through NJT's internal channels. Upon review of plaintiff's file, NJT revised at least seven of the performance factors on her evaluation for that year.
Merit Increases
According to Scott-Buczak, the merit-based system for pay increases is discretionary. An employee does not automatically receive merit increases for his or her performance, regardless of the employee's rating or the quality of his or her work. It is therefore possible that two employees with the same job title, with the same number of Hay points, and with the same merit-based rating, would nevertheless receive different annual compensations.
Employees at NJT must be recommended for merit-based increases by their supervisor within certain established guidelines. During depositions, plaintiff testified that her relationship with Stamford, her supervisor, was "a good working relationship," and moreover, that she was unable to recall a time when Stamford commented about her race.
As explained by Scott-Buczak, NJT's Human Resources Department and the NJT Compensation Committee together review salaries each year to ensure that employees are being paid in compliance with the established policies and practices, and that the merit increases are being administered appropriately across the agency. Individual salaries can be reviewed upon request and adjusted as needed. Consequently, NJT's use of the merit-based pay increases can also explain differences in similarly-situated employees' salaries.
These various programs operate in tandem to form an overall compensation system on which NJT relies in setting levels of pay for its employees. In essence, plaintiff claims that NJT's system of compensation — particularly the Hay Points System and performance evaluations — discriminated against her as an African-American employee, in violation of the LAD.
B.
Following discovery, NJT moved for summary judgment. NJT argued that plaintiff's claims of wage discrimination lacked merit and that her remaining claims were time-barred. NJT supported its motion with certifications from Scott-Buczak and Silverman. Plaintiff filed opposition, and the trial court heard oral argument.
On April 13, 2012, the Law Division judge, Thomas R. Vena, J.S.C., issued a written opinion granting NJT summary judgment on all of plaintiff's claims. As a threshold issue of timing, Judge Vena held that the LAD's two-year statute of limitations precluded the court's consideration of any of plaintiff's claims that accrued prior to July 15, 2007, two years before plaintiff's original complaint was filed on July 15, 2009. Furthermore, as to plaintiff's claims that were not time-barred, the judge found them to lack merit, and that there were no genuine material questions of fact.
More specifically, the judge rejected plaintiff's disparate treatment claim. Among other things, the judge observed that plaintiff's comparison of "herself to three individuals with differing job titles, providing no evidence that she had similar credentials, and having no knowledge of any of their experience, background, or performance ratings" was insufficient to satisfy her burden to prove a prima facie case of disparate treatment under the LAD.
In addition, the motion judge rejected plaintiff's disparate impact claim and her specific challenge to NJT's use of the Hay Points System. The judge noted in this regard that a prima facie showing of disparate impact required plaintiff to offer "statistical evidence of a kind and degree sufficient to show that the practice in question has caused" an adverse impact because of her membership in a protected class. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S. Ct. 2777, 2789, 101 L. Ed. 2d 827, 845 (1988). The judge concluded that the statistics plaintiff had identified were insufficient to prove the prima facie case of such a discriminatory impact.
II.
In now considering plaintiff's appeal, we apply familiar principles governing summary judgment, which are likewise applied at the trial level under Rule 4:46-2(c). See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Gray v. Caldwell Wood Prods., Inc., 425 N.J. Super. 496, 499-500 (App. Div. 2012). Rule 4:46-2 prescribes that summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to judgment or order as a matter of law." Brill, supra, 142 N.J. at 529. In undertaking this analysis, the court 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." Brill, supra, 142 N.J. at 540. When reviewing such determinations on appeal, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
A.
We begin with a discussion of plaintiff's disparate impact claim. In essence, plaintiff argues that NJT's use of the Hay system as part of the process to determine levels of compensation for its employees has a disparate impact on African-American employees, as compared to white employees. She contends that this alleged disparate impact violates the LAD, which makes it an unlawful employment practice "[f]or an employer, because of the race . . . of any individual . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.J.S.A. 10:5-12(a).
Our courts have recognized disparate impact claims arising under the LAD, where they have been adequately supported by proper evidence. See, e.g., Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2004). Such claims of disparate impact "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive . . . is not required under a disparate impact theory." Id. at 398 (citing Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, 336 n.15, 97 S. Ct. 1843, 1854-55 n.15, 52 L. Ed. 2d 396, 415 n.15 (1977)).
New Jersey law has patterned the methods of proof for LAD disparate impact claims after the federal burden-shifting analysis under Title VII, 42 U.S.C.A. §§ 2000e to 2000e-17. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990) (noting that New Jersey courts have traditionally "looked to federal law as a key source of interpretive authority" for the substantive and procedural standards that govern claims under the LAD); see also Gerety, supra, 184 N.J. at 398; Esposito v. Twp. of Edison, 306 N.J. Super. 280, 289-90 (App. Div. 1997).
Under the federal Title VII framework, and as recognized in the analogous LAD cases, a plaintiff must first set forth a prima facie case of disparate impact stemming from the defendant-employer's use of a specific employment practice. Watson, supra, 487 U.S. at 994, 108 S. Ct. at 2788-89, 101 L. Ed. 2d at 845; United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 47 (App. Div.), certif. denied, 170 N.J. 390 (2001). It is not enough for a plaintiff to merely bring forth evidence that a workplace disparity exists; a plaintiff must also articulate "a particular employment practice that causes a disparate impact." 42 U.S.C.A. § 2000e-2(k)(1)(A)(i) (emphasis added); see also Watson, supra, 487 U.S. at 994, 108 S. Ct. at 2788, 101 L. Ed. 2d at 845 ("The plaintiff must begin by identifying the specific employment practice that is challenged."). Consequently, a plaintiff's generalized claims of disparate impact, absent the identification of a specific discriminatory employment practice, will not suffice.
Second, a plaintiff must establish a causal link between the alleged facially-neutral, but unlawful, employment practice and the resulting disparate impact on a protected group. Watson, supra, 487 U.S. at 994-95, 108 S. Ct. at 2789, 101 L. Ed. 2d at 845. Commonly, a plaintiff will endeavor to show this disparate impact through the use of statistical evidence. However, the statistical proofs of disparate impact "must be sufficiently substantial that they raise such an inference of causation." Id. at 995, 108 S. Ct. at 2789, 101 L. Ed. 2d at 845.
The United States Supreme Court in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989), detailed the statistical rigor that is required to meet this causation prong in presenting a prima facie case. A plaintiff cannot succeed on a disparate impact claim on statistics that simply make a "bottom line" showing that a racial imbalance in the workforce exists. Id. at 656-67, 109 S. Ct. at 2124-25, 104 L. Ed. 2d at 751. Rather, the plaintiff must indicate how the particular employment practice led to the ultimate observed disparity, using, among other things, statistical evidence to bolster the claim. As the Supreme Court cautioned, "[t]o hold otherwise would result in employers being potentially liable for 'the myriad of innocent causes that may lead to statistical imbalances in the composition of their work forces.'" Id. at 657, 109 S. Ct. at 2125, 104 L. Ed. 2d at 751-52 (quoting Watson, supra, 487 U.S. at 992, 108 S. Ct. at 2787, 101 L. Ed. 2d at 843).
Notably, courts and defendants are not "obliged to assume that plaintiff['s] statistical evidence is reliable." Watson, supra, 487 U.S. at 996, 108 S. Ct. at 2790, 101 L. Ed. 2d at 846. Typical examples of unreliable statistical evidence "include small or incomplete data sets and inadequate statistical techniques." Id. at 996-97, 108 S. Ct. at 2790, 101 L. Ed. 2d at 846. Consequently, plaintiffs typically retain expert witnesses to establish — through scientifically-analyzed statistical evidence — that a particular employment practice has caused a disparate impact on a group of individuals.
See, e.g., Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980) (presenting expert testimony establishing a statistically significant correlation between a public school district's rate of hire and the candidate's age); EEOC v. Hickman Mills Consol. Sch. Dist. No. 1, 99 F. Supp. 2d 1070 (W.D. Mo. 2000) (retaining a statistical expert to conduct regression analyses estimating the relationship between an employee's age and his or her estimated retirement benefits); Moynihan v. Mass. Mut. Life Ins. Co., 773 F. Supp. 502 (D. Mass. 1991) (presenting an expert's testimony regarding statistical evidence in rates of promotion and age); Franci v. Avco Corp., 538 F. Supp. 250 (D. Conn. 1982) (showing through statistics that there was an age-related adverse impact in rates of layoffs).
Here, plaintiff has not retained a statistical expert to support her disparate impact claims with scientific analysis. Instead, she makes unscientific claims that derive from two bare statistics: (1) the aforementioned twelve percentage point difference between white and African-Americans who earn salaries at or above the midpoint of their respective salary ranges; and (2) a comparison of her own relative salaries with those of two white employees, Zukowski and Stamford. These isolated data points are clearly insufficient to establish a prima facie case of disparate impact.
The twelve-point overall percentage difference between whites and African-Americans in attaining the midpoint of their respective salary ranges does not, by itself, signify that NJT engaged in racially discriminatory wage practices. This cited difference is not necessarily statistically significant. There are many reasons why white employees might earn higher average salaries within their respective salary ranges than African-American employees. For instance, the white employees in those positions may have had more overall work experience or more education than their African-American counterparts. Or the white employees may have negotiated higher starting salaries because they were already earning higher salaries in other prior jobs. Plaintiff's non-expert use of the twelve percentage point statistic does not appropriately control for these and other variables. Consequently, it is the sort of "bottom-line" statistic that Wards Cove has deemed inadequate to sustain a disparate impact case.
Case law has described the well-recognized concept of statistical significance as "[a] finding [in which] chance, acting alone, probably would not have caused it." State v. Loftin, 157 N.J. 253, 301 n.11 (1999) (quoting John M. Conley & David W. Peterson, The Science of Gatekeeping: The Federal Judicial Center's New Reference Manual on Scientific Evidence, 74 N.C. L. Rev. 1183, 1209 n.159 (1996)); see also Spinden v. Johnson & Johnson, 177 N.J. Super. 605, 608 (App. Div. 1981) (affirming the trial judge's reasoning that the phrase, "a statistically significant association," refers to a cause and effect relationship).
Plaintiff's discriminatory impact claim also fails to address the fact that the Hay Points System produces only salary ranges, not the individual salaries that NJT then assigns within those ranges. Those individual salaries, as the essentially unrefuted certifications from NJT's representatives explain, are calibrated based upon a variety of performance-related and experiential factors. The ranges themselves are but one of many criteria NJT considers to determine an individual's pay. Moreover, plaintiff is not arguing that her job title should have been assigned more points in the Hay system. For these many reasons, her attack on the Hay system is ill-conceived and unsubstantiated.
We likewise discern no prima facie case emanating from the fact that plaintiff's relative salary was allegedly too low when compared with those of Zukowski and Stamford. For one thing, plaintiff's actual salary during the relevant time frame was $70,525, which actually was above Zukowski's salary of $68,802.
Moreover, the mere circumstance that the salaries of Zukowski and Stamford happened to be respectively 101% and 97% of the midpoints of their respective salary ranges, while plaintiff's salary was 92% of her own range, does not necessarily have statistical significance. Plaintiff has not shown that her personal characteristics and her performance were necessarily comparable to, or better than those of, the other two employees. In addition, the fact that those two particular employees seemingly fared somewhat better than plaintiff within their salary ranges does not equate to a company-wide pattern of racial discrimination in pay. The motion judge sensibly found these simplistic comparisons to be insufficient to support a prima facie case of disparate impact, and so do we.
B.
Plaintiff has likewise failed to marshal a viable case of disparate treatment. She contends that NJT discriminated against her by issuing unfair performance evaluations. Notably, however, plaintiff does not identify in her brief any specific deficiencies of the evaluation process other than a generic attack on their inherent subjectivity. Neither does she indicate through circumstantial evidence how a discriminatory bias may possibly have affected her own evaluations. Instead, plaintiff simply posits that she received performance evaluations that were lower than she personally "believed she had earned during each relevant period."
Apart from plaintiff's conclusory assertions, there is insufficient competent evidence in this record to support her contention that her supervisor, Stamford, acted with a discriminatory animus towards her on account of her race. We note in this regard that after plaintiff's 2010 performance evaluation of "Exceeds Expectations," NJT reviewed again that evaluation after her appeal. Upon review of her file, NJT revised at least seven of the performance factors on plaintiff's evaluation for that year. The fact that NJT undertook those revisions in plaintiff's favor, although not controlling, is not consistent with plaintiff's theme that the evaluation system was inherently discriminatory. In addition, during depositions, plaintiff acknowledged that her relationship with Stamford was "a good working relationship," and, moreover, that she was unable to recall a time when Stamford commented about her race.
Plaintiff cites to Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313 (3d Cir. 2000), in support of her position. In that case, an African-American plaintiff, Goosby, sued her employer and argued that it had unlawfully discriminated against her on the basis of her gender and race by using various subjective criteria to evaluate its employees. Goosby, supra, 228 F.3d at 318. These criteria later determined the employees' positions and duties within the company. Ibid. Goosby alleged that the subjective criteria in those evaluations masked a discriminatory animus to treat her adversely as compared to her colleagues. The defendant maintained that the evaluations were not subjective because the criteria of which Goosby had complained were assigned numerical designations. The federal court rejected the defendant's arguments and explained that, among other things, simply using numerical designations in the course of those evaluations did not remedy its inherent subjective character. It held that the trial court ought not to have granted summary judgment in favor of the defendant in Goosby because, in light of plaintiff's allegations of discriminatory animus, there existed genuine issues of material fact.
Goosby is markedly distinguishable from the present case. In that case, the plaintiff proffered additional evidence to support an allegation that the subjective performance evaluations were mere pretexts for discrimination. For example, Goosby pointed to low marks on her evaluation, despite the fact that other objective indicators, such as her sales volume, belied that assessment. Moreover, Goosby pointed out that her supervisor's use of the evaluations were inconsistent, as he would recommend Goosby for one kind of assignment, while her performance evaluation indicated that she should have been recommended for another. Finally, Goosby pointed to other comparable coworkers who, despite their similar performance evaluation ratings, had been recommended for positions different than those that Goosby received. Those factors in combination, the Goosby court explained, provided adequate support for her allegations that the subjective factors in her performance evaluations were mere pretexts for discrimination.
In contrast, here, plaintiff does not set forth any specific reason or competent proof for why she believes racial animus contaminated her performance evaluations. Nor does she make an attempt to show that she was "performing work substantially equal to that of white employees who were compensated at higher rates." Aman v. Cort Furniture Rental Corp., 85 F.3d 1087 (3d Cir. 1996) (citations omitted). Plaintiff does not identify comparable positions held by white employees whose duties and responsibilities essentially paralleled her own. Instead, she argues in conclusory fashion that she "received evaluations that resulted in [] lower merit increases than [she] believed she had earned during each relevant period." Plaintiff's argument therefore rests on a self-assessment of her own merits as a worker. In essence, her argument is akin to an expert opinion. But such a "net opinion" cannot form the basis of a prima facie case of wage discrimination. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372-73 (2011) (explaining than "an expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered" (citations omitted)).
In fact, the record of plaintiff's performance evaluations reveal that she was regularly rated at either the highest, or the second-highest, overall assessment level. Plaintiff received an overall assessment rating of "Effective" on January 27, 2003, during her first full year on the job, but that steadily rose to "Occasionally Exceeds Expectations" the following year in 2004, and "Frequently Exceeds Expectations" the year after that in 2005. Indeed, in the last five years of plaintiff's employment with NJT, she earned the second-highest overall assessment rating three times.
Viewing the summary judgment record on its entirety, it is readily apparent that plaintiff failed to set forth a prima facie case that she was discriminated against by her employer in the evaluation process. There is no competent evidence to infer that her supervisors conducted her performance evaluations with a racial bias against her. Instead, the record suggests that plaintiff's performance evaluations were generally favorable and improved over time, with only a few exceptions. Accordingly, the trial court correctly rejected plaintiff's claims of disparate treatment.
C.
Finally, plaintiff argues that the two-year LAD statute of limitations should not apply to bar her claims of wage discrimination that accrued before July 15, 2007, two years before she filed her initial complaint on July 15, 2009. This is so, she claims, because the cumulative effects of those initial discriminatory wage decisions before July 15, 2007 nevertheless had a direct and incremental effect on her wages after that date. She argues that any discrimination that infected those wage decisions in the past placed her at a disadvantage at the outset, because they artificially depressed the compensation upon which her later pay raises were based. Plaintiff in this regard relies upon the so-called "continuing violation" doctrine.
The motion judge held that plaintiff's wage discrimination claims prior to July 15, 2007 were time-barred. In so doing, the judge noted the general two-year statute of limitations under the LAD, as well as the fact that plaintiff filed her initial complaint on July 15, 2009. Citing to the Supreme Court's controlling precedent in Alexander v. Seton Hall Univ., 204 N.J. 219 (2010), the motion judge held that each paycheck that plaintiffs received constituted a separate and discrete act of discrimination, and as such, plaintiffs could not avail themselves to the continuing violation doctrine.
The motion judge's ruling on timeliness was legally sound. In Montells v. Haynes, 133 N.J. 282, 289-91 (1993), the Supreme Court established a two-year statute of limitations for all claims brought under the LAD. Generally, the limitations period begins to run when the adverse employment decision is made and communicated to the plaintiff. Alexander, supra, 204 N.J. at 228-29.
Our case law recognizes an exception to the general statute of limitations period through the use of the "continuing violation" doctrine. As the Supreme Court noted, in situations when the complained-of conduct represents "a series of separate acts that collectively constitute one unlawful employment practice," the entire claim may be timely if filed within two years of "the date on which the last component act occurred." Roa v. Roa, 200 N.J. 555, 587 (2010) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106, 124 (2002)).
Most recently in Alexander, supra, 204 N.J. at 229-30, the Court expounded upon the purpose and limits of the continuing violation doctrine. It explained that New Jersey "specifically adopted the federal continuing violation equitable doctrine to determine the accrual date of a cause of action in a hostile workplace course-of-conduct claim." Id. at 229 (citing Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1 (2002)). The Court further observed that "'the continuing violation theory was developed to allow for the aggregation of acts, each of which, in itself, might not have alerted the employee of the existence of a claim, but which together show a pattern of discrimination.'" Id. at 230 (quoting Roa, supra, 200 N.J. at 569).
However, Alexander discussed at length an important distinction that must be drawn between hostile work environment claims and claims based on wage discrimination. Id. at 227-36. The Court explained that previous case law in New Jersey treated "each discriminatory pay check . . . as the equivalent of a 'discrete' and separable violation of the LAD, so long as the wage remains tainted by the original act of discriminatory intent." Id. at 234. Even so, the Court warned that "[w]hat the [continuing violation] doctrine does not permit is the aggregation of discrete discriminatory acts for the purposes of reviving an untimely act of discrimination that the victim knew or should have known was actionable." Alexander, supra, 204 N.J. at 230 (emphasis added) (citing Roa, supra, 200 N.J. at 569). The Court therefore rejected in Alexander the plaintiffs' argument that their paychecks were continuing violations, and barred them from bootstrapping previous untimely claims onto the more recent timely ones. Id. at 230-36.
Here, as in Alexander, plaintiff argues that each paycheck she received should be considered as a part of a collective whole of discriminatory conduct. She argues that her ongoing paychecks represent a continuing violation that stems back earlier than the LAD's two-year statute of limitations. She maintains that her injury should be assessed not just by the artificially-depressed salaries in her last two years at NJT from 2009-11, but also by those from earlier than that period of time. Plaintiff, however, does not identify when, along the timeline, the employer's discriminatory acts took place, much less when she became aware that her compensation was artificially depressed based on racial discrimination.
Plaintiff's brief on appeal does not cite to Alexander, even though the motion judge cited and applied that precedential Supreme Court decision in his written opinion.
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As we have already noted, in plaintiff's allegations that NJT discriminated against her through a lowered salary, she also fails to support her argument through a comparison with similarly-situated white employees. Most importantly, plaintiff's reliance on the continuing violation doctrine contravenes the Court's explicit holding in Alexander that wage discrimination claims are considered under the framework of discrete and separate acts of unlawful discrimination, and that they do not fall within a continuing violation analysis.
For these reasons, the motion judge correctly deemed as a matter of law that plaintiff's wage discrimination claims accruing before July 15, 2007 were untimely. That disposition, combined with the motion judge's other rulings, justified the complete dismissal of all of the claims plaintiff pleaded in this lawsuit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION