Opinion
Civil No. 00-cv-5328 (JBS).
June 24, 2002
Victoria S. Kavanagh, Esquire, Law Offices of Brendan J. Kavanagh, LLC, Millville, NJ, Attorney for Plaintiff.
Evan B. Caplan, Esquire, Kent McBride, P.C., Cherry Hill, NJ, Attorney for Defendant Owens Minor.
OPINION
This matter comes before the Court upon motion by defendant Owens Minor for summary judgment against plaintiff Danielle H. Ford, and cross-motion by plaintiff for summary judgment against defendant. Plaintiff originally filed her complaint in the Superior Court of Cumberland County, New Jersey, and it was later removed to federal court by defendant pursuant to 28 U.S.C. §§ 1441(a) 1446. Plaintiff, a former employee at defendant's Bridgeton, New Jersey Distribution Center, alleges claims of unequal pay based on gender discrimination during a four-year period from 1996 and ending in 2000, and seeks punitive damages, pursuant to the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Plaintiff subsequently amended her complaint twice to allege a claim for retaliation pursuant to the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-3, and an additional claim for retaliation under the NJLAD based on an unfavorable performance appraisal and her placement on probation.
Defendant filed this motion for summary judgment on November 29, 2001, arguing that plaintiff has not established a prima facie case for discrimination under the NJLAD and retaliation under CEPA. Plaintiff's cross-motion, filed the same day, argues that plaintiff has established that she received pay unequal to male employees for the same tasks, in violation of the NJLAD, and that she was terminated in retaliation for her complaint about unequal pay in violation of CEPA, and finally that defendant's conduct was egregious, giving rise to punitive damages. For the reasons discussed herein, defendant's motion for summary judgment will be granted, and plaintiff's cross-motion for summary judgment will be denied.
BACKGROUND
Defendant is engaged in the sale and distribution of medical and surgical products throughout the United States. (Compl. ¶ 2.) On or about November 22, 1993, defendant hired plaintiff as a Customer Service Representative at its Bridgeton Distribution Center at a rate of pay of $8.00 per hour (or $16,640.00 per annum). (Compl.; New Teammate Orientation Checklist, Def.'s Br. Ex. A; Team Status Change Form, 11/22/93, Def.'s Br. Ex. B.) On February 20, 1996, defendant promoted plaintiff to the position of Customer Support Specialist, with an annual salary of $28,000.00. (Teammate Status Change Form, 2/20/96, Def.'s Br. Ex. C.)
In April 2000, defendant eliminated the position of Customer Support Specialist and replaced it with the position of Account Representative. (Compl. ¶ 7.) On April 10, 2000, plaintiff attained the position of Account Representative, with a base salary of $35,373.26, exclusive of commissions and fees. (Teammate Status Change Form, 4/10/00, Def.'s Br. Ex. D.) Co-worker Maria Grosso, also employed at Bridgeton Distribution Center, received a similar change in position to Account Representative at the same time as plaintiff. (Teammate Status Change Form, 4/10/00, Def.'s Br. Ex. F.) On May 18, 2000, Daniel Chiappetta was hired as an Account Representative at the Bridgeton Distribution Center, after transferring from Owens and Minor's Distribution Center in Indianapolis, Indiana, where he worked as a Sales Representative Trainee since January 16, 1999. (Teammate Status Change Form, 5/18/00, Def.'s Br. Ex. H.) For the year 2000, plaintiff received a salary of $46,304.51, inclusive of salary, commission, and fees, compared to Mr. Chiappetta's salary of $39,772.80 and Ms. Grosso's salary of $78,361.50. (Ford Payroll Record, Def.'s Br. Ex. I; Chiappetta Payroll Record, Def.'s Br. Ex. J; Grosso Payroll Record, Def.'s Br. Ex. K.)
Defendant provides the following table, which delineates the structure of positions in the year 1996 versus 2000:
1996 2000
Manager of Account Account Manager Development Sales Representative Sales Representative Customer Support Account Representative Specialist Customer Service Customer Service Representative Representative
(Def.'s Reply Br. at 2.)
An Account Representative was similar to a Customer Support Specialist, with functions including the following: participating in team management approach; assisting in managing specific healthcare organizations and ensuring all customer requirements are met; advising customers of new products and services; and acting as a liaison with manufacturers to ensure customer satisfaction. (Account Representative Essential Job Functions, Def.'s Br. Ex. D.)
Plaintiff alleges in her complaint that she did not receive commissions, called "focus fees," on certain accounts while other account representatives received commissions. (Compl. ¶ 8.) Plaintiff testified that she perceived she was entitled to focus fees on her Thomas Jefferson University Hospital and Methodist Hospital accounts, which Mike Nugent had allegedly told her in September 1998 to focus on as her top priorities at the expense of other accounts. (Ford Depo., 5/15/01, at 102:18-104:4; 110:22-111:1.) Defendant alleges that, for the period 1996 to April 2000, focus fees were awarded to employees on accounts in which they worked solely and individually, during which time plaintiff held the title of either Customer Service Representative or Customer Service Specialist. (Def.'s Br. at 7.) Defendant alleges that only as of June 2000, Account Representatives began receiving focus fees on shared as well as individual accounts. (Id.) Plaintiff contacted corporate Human Resources in October 1999 to inquire whether she was entitled to focus fees in shared accounts which she worked on, and was told to contact Mike Nugent. (Ford Depo. 6/6/01, at 34:4-35:2, Pl.'s Br. Ex. 4.) Plaintiff alleges that she voiced complaints about unequal pay to Rodney Thomas, the Account Manager of the sales team on which plaintiff worked. (Pl.'s Br. at 4.) Mr. Thomas testified that he then told Mike Nugent that plaintiff was not happy, and that he would be willing to share his focus fees with her. (Thomas Depo. 6/13/01, at 33:6-19; 34:12-13, Pl.'s Br. Ex. 5.) Plaintiff testified that Mr. Thomas came to her and told her that Mr. Nugent was not going to pay her the focus fees. (Ford Depo. 6/6/01, at 35:16-21, Pl.'s Br. Ex. 4.) Mr. Nugent later told plaintiff during her review in December that she did not earn focus fees and that he did not owe her those fees. (Id. at 34:24-36:7.)
Focus fees, as alleged by defendant, are special commissions paid to accounts that select products which are identified as "focus" products by the product manufacturer. (Def.'s Br. at 7 n. 2.)
Plaintiff testified that she learned that Dan Chiappetta was receiving focus fees in June 2000, when he was hired, in connection with the Main Line Health System account he shared with Account Manager Celesia Valentine. (Ford Depo., 6/6/01, at 69:21-70:18, Pl.'s Br. Ex. 4.) Plaintiff also worked with Account Manager Celesia Valentine on the Jefferson Health System account for a little over two years. (Valentine Depo., 6/13/01, at 13:2-8.) Plaintiff testified that she began receiving focus fees in September 2000 on the Thomas Jefferson University Hospital and Methodist Hospital accounts she shared with Celesia Valentine, retroactively for the months of June through September. (Id. at 70:19-71:18.)
Correspondence from Hinkley to plaintiff indicates that plaintiff confirmed she received focus fees from June 2000 to September 2000. (Hinkley Letter, 11/13/00, Def.'s Br. Ex. V.)
Also at issue are plaintiff's performance appraisals. Plaintiff's work performance was reviewed on the following dates: November 21, 1994; January 31, 1996; November 27, 1998; November 22, 1998; and November 9, 1999. These reviews indicated a trend that plaintiff lacked aggressiveness and initiative. Early reviews were very positive, while the later ratings were less positive in the position to which she had been promoted. Plaintiff's Appraisal of November 21, 1994, indicates that plaintiff was given seven ratings of 3 ("Good — Fulfills position requirements in a typical manner") and two ratings of 2 ("Above Average — Surpasses position requirements"), with the comment: "Danielle is doing a good job. I feel she is able to start taking on more work and to expand on her potential in customer service." (Performance Appraisal, 11/21/94, Pl.'s Br. Ex. 1.) An undated and unsigned performance appraisal on January 31, 1996, gives plaintiff seven ratings of 1 and one rating of 2, with the comment "Danielle is an asset to our company." (Performance Appraisal, 1/31/96, Pl.'s Br. Ex. 1.) A performance appraisal on November 22, 1997, reviewed plaintiff as a Customer Support Specialist and gave plaintiff one rating of 3, ten ratings of 2, and seven ratings of 1, with the comment: "Persistent with different customers. Needs to be more aggressive within the account." (Performance Appraisal, 11/22/97, Pl.'s Br. Ex. 1.) On November 22, 1998, Area Vice President Mike Nugent conducted plaintiff's yearly performance review as a Customer Support Specialist, in which he stated the following: "Very professional. Sometimes needs to show more enthusiasm. Meets expectations. Work is of excellent quality, however needs to show more initiative at times." (Performance Appraisal, 11/22/98, Def.'s Br. Ex. M.) On November 9, 1999, Mr. Nugent again reviewed plaintiff's performance as a Customer Support Specialist and gave her ratings between 2, "Above Average — Surpasses position requirements" for "Interpersonal Communication, Teamwork" and "Resolving Problems, Issues," and 4, "Fair — Meets some but not all requirements for the job" for "Business Results, Achieving Goals" and "Initiative," with an overall rating of 3, "Meets basic requirements of the job." (Performance Appraisal, 11/8/99, Def.'s Br. Ex. N.)
Generally, the Performance Appraisals for 1994-1996 use "1" for "Outstanding — Far above expectations" and "5" for "Unsatisfactory — Below acceptable standards. Consistently fails to meet standards."
Performance Appraisals from 1997-1999 use "1" for "Exemplary: an example we should follow" and "5" for "Unacceptable: corrections should be made immediately (COMMENT REQUIRED)."
Deposition testimony of several individuals and attached exhibits indicate, however, that there were problems with plaintiff's work, particularly her ability to take initiative and be aggressive in her accounts. Tim Oliver from Shore Memorial Hospital wrote to David Hinkley regarding plaintiff's work: "This is becoming a problem. We need to have representation at the Hospital and Nursing Home. We don't know if Danielle is coming or not. Issues are not being addressed." (Oliver E-mail, 8/3/00, Def.'s Br. Ex. P.) On August 18, 2000, Mr. Oliver wrote to Dave Hinkley, Sales Manager regarding plaintiff's performance:
Isn't there something in the ADA terminology requiring adequate representation to the hospitals. Our representation from OM consists of a converted customer service rep to what is being called our sales rep. She brings [no] value to the hospital in the fact that she has never approached us with new product (which at the same time could increase their sales), doesn't have any knowledge of the contracts and doesn't have a relationship with the manufacturers. The e-mail listed below reflects her usual lack of work for the hospital in trying to get product converted over to OM from Allegiance. She can't even get us contract pricing on Kimberly-Clark let alone the Baxter products. She should be able to either get contract pricing or convert product over to another manufacturer. If the hospital has to do the work for her — we don't need her.
Oliver E-mail, 8/18/00, Def.'s Br. Ex. O.
Mr. Rodney Thomas, Account Manager for the Jefferson Health System from 1996 to 1999, testified in his deposition, "There were many times when [plaintiff] was required to be with a customer or to participate in a meeting with me, and she had a reason why she couldn't be there." (Thomas Depo. 6/13/01, at 41:15-18, Def.'s Br. Ex. Q.) He also testified, "I felt that she wasn't enthusiastic with the customer. She wasn't demonstrating or showing initiative to seek out new opportunities." (Id. at 72:3-5, Def.'s Br. Ex. Q.)
Similarly, Mr. Nugent testified, "I think there is an interesting contrast between Maria and Danielle in that Danielle is well-educated, college degreed, and had a lot of things going for her, but it's a difference between someone who really shows again the attitude and the initiative and the desire and somebody who doesn't." (Nugent Depo. 6/27/01, Def.'s Br. Ex. R.) And, as a result of these reports and her sub-par work, plaintiff was placed on two probationary periods, on July 23, 2000, and on September 4, 2000.
After David Hinkley became the new area manager in March 2000, plaintiff also conveyed her complaints about unequal pay to Hinkley. (Pl.'s Br. at 6.) On July 23, 2000, David Hinkley, placed plaintiff on a "60-day action plan," or probationary period regarding her South Jersey Health System account, discussing her customers' concerns that, inter alia, plaintiff did not follow through to the resolution of issues, she needed to take more initiative, she did not communicate well with the customer, and she needed to schedule appointments with the customer at more convenient times. (Hinkley Probation Letter, 7/23/00, Def.'s Br. Ex. T.) Hinkley also stated, "The biggest concern is your lack of enthusiasm when you enter into the account. They do not get a positive feeling from you as a representative of Owens and Minor." (Id.)
Plaintiff alleges that she met her goals under the July 2000 probation plan. (Pl.'s Br. at 6.) In a September 4, 2000, letter, Hinkley raised concerns regarding plaintiff's Shore Memorial Hospital and Atlantic City accounts, showing concern that Shore Memorial had not been made aware of defendant's core programs, and that plaintiff had made "little or no contact . . . with the key members of the health system." (Hinkley Letter, 9/4/00, Def.'s Br. Ex. U.) Hinkley stated,
As I have said to you before, the most important part of sales is hitting the objectives that are set for your territory. At this time you are falling short in all major categories. These major categories include percent to budget, focus percentage, Pandac, Wisdom, and Cost Track. We need to improve your performance in these areas within the next 30 days. It will be my responsibility to work with you in the next 30 days to monitor your progress. During these visits, I want to see you going after new business, presenting the Cost Track, Wisdom, and Pandac programs.
(Id.) Hinkley placed plaintiff on a second "60-day action plan," or probationary period, regarding her Shore Memorial Account on September 4, 2000, pointing out the problem areas of plaintiff's lack of participation in regards to converting products to Owens and Minor, her need to assume more responsibility in the account and to keep up attendance at the hospital, and the need for plaintiff to "be more driven when it comes to our business." (Hinkley Probation Letter, 9/4/00, Def.'s Br. Ex. V.) On September 18, 2000, Mr. Hinkley set out 6 objectives for plaintiff during her 60-day probationary period. (60 Day Game Plan Objectives, 9/18/00, Def.'s Br. Ex. W.)
Hinkley outlined the following 6 objectives:
1) Need to gain $142,000 per month in new business. This will put you on a trend to budget for this year. It will also put you in a positive trend for next year.
2) Gain agreement for Atlantic City to bid out the business.
3) Need to set a meeting with the Director of Materials at Burdette Tomlin to discuss a standardization plan.
4) Need to gain a Cost Track customer by the end of October.
5) Need to do a Wisdom presentation at any potential customer.
6) Need to set up a Pandac presentation by the end of October.
(60 Day Game Plan Objectives, Def.'s Br. Ex. W.)
On October 10, 2000, plaintiff filed a complaint against defendant in New Jersey Superior Court requesting equal pay for the years 1996 through 2000 for gender discrimination under the NJLAD, punitive damages under the Punitive Damages Act, N.J.S.A. 2A:15-5.9, and attorneys' fees. (Compl.) In response to a letter written by plaintiff dated October 13, 2000, Mr. Hinkley stated, in a letter dated October 16, 2000, that he was not asking for plaintiff's resignation, but was communicating to her that her "performance is still inadequate." (Hinkley Letter, 10/16/00, Def.'s Br. Ex. X.) The complaint was subsequently removed to this Court on October 30, 2000. (Notice of Removal, 10/30/00.)
In a letter dated November 13, 2000, Mr. Hinkley stated
After reviewing your objectives, you have only met objective number 3. As a result, you will not be attending the national sales meeting in Orlando. During our phone conversation this morning, you confirmed with me that you have received focus commissions in shared accounts for the month of June through September 2000. You will be receiving focus commissions from shared accounts for the month of October 2000.
(Hinkley Letter, 11/13/00, Def.'s Br. Ex. Y.) Defendant subsequently terminated plaintiff's employment on November 16, 2000. On March 30, 2001, plaintiff amended her complaint, incorporating all of the allegations contained in her complaint filed in the New Jersey Superior Court, and adding a claim alleging that her termination was in retaliation for filing the original complaint, in violation of CEPA, N.J.S.A. 34:19-3. (Amended Compl.) On November 21, 2001, Plaintiff again amended her complaint, adding another claim alleging that her unfavorable evaluation and placement on probation were in retaliation under the NJLAD, N.J.S.A. 10:15-12(d). (Second Amended Compl.) Defendant filed this summary judgment motion, and plaintiff filed her cross-motion for summary judgment, on November 29, 2001.
DISCUSSION
I. Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment
Defendant contends that plaintiff has failed to establish a prima facie case for unequal pay based on gender discrimination under the New Jersey Law Against Discrimination ("NJLAD") and retaliation under the New Jersey Conscientious Employee Protection Act ("CEPA"), and that plaintiff has failed to establish a claim for punitive damages under N.J.S.A. 10:5-1 et seq.
A. Summary Judgment Standard
A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party.See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citing Liberty Lobby, 477 U.S. at 248).
Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Liberty Lobby, 477 U.S. at 249-50.
The summary judgment standard does not change when the parties have filed cross-motions for summary judgment. See Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987). Cross-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.Transportes Ferreos de Venezuela II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001) (citing Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). If review of cross-motions for summary judgment reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts. See Iberia Foods Corp. v. Romeo Jr., 150 F.3d 298, 302 (3d Cir. 1998) (citing Ciarlante v. Brown Williamson Tobacco Corp., 143 F.3d 139, 145-46 (3d Cir. 1988)).
B. Gender Discrimination Claim Based on Unequal Pay Under the NJLAD
Defendant maintains that plaintiff has failed to establish a prima facie case of gender discrimination based on unequal pay under the NJLAD. The New Jersey Supreme Court has held that "in a case brought under the NJLAD presenting a gender discrimination claim based on the payment of unequal wages for the performance of substantially equal work, the standards and methodology of the [Equal Pay Act] should be followed." Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 109-10 (1990). The Equal Pay Act ("EPA"), adopted as an amendment to the minimum wage provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(d), concentrates exclusively on assuring equal pay in certain situations where male counterparts are performing equal work.See Grigoletti, 118 N.J. at 100. The New Jersey Supreme Court described the legislature's concern in enacting the EPA:
Congress' purpose in enacting the Equal Pay Act was to remedy what it perceived to be a serious and endemic problem of employment discrimination in private industry — the fact that the wage structure of "many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.Id. at 100 (citing Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). A prima facie case is established "if a female complainant can demonstrate that unequal pay was given for the performance of work that is substantially equal to that performed by male employees." Id. at 110. Specifically, she must show that her salary was lower than that paid by the employer to "employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions." Id. at 102 (citing 29 U.S.C. § 206(d)(1)). An equal-work comparison should focus on whether the jobs have a "common core" of tasks, that is, "whether a significant portion of the two jobs is identical." Grigoletti, 118 N.J. at 102 (quoting Fallon v. Illinois, 882 F.2d 1206, 1209 (7th Cir. 1989)). This determination requires consideration of factors including quantity and quality of production, education, relevant prior work experience, conduct, and skill. Grigoletti, 118 N.J. at 102 (citing 29 C.F.R. § 620.13). If the jobs require "substantially similar skills, efforts, and responsibilities, the work should be adjudged equal despite minor variations."Grigoletti, 118 N.J. at 102 (citations omitted).
Once the plaintiff has established a prima facie case under the EPA, the burden shifts to defendant to demonstrate that the difference in pay was justified by establishing by a preponderance of the evidence that the wage disparity is the result of (i) a seniority system, (ii) a merit system, (iii) a system which measures earnings by quantity or quality of product, or (iv) a differential based on any factor other than gender.See id. at 102 (citing 29 U.S.C. § 206(d); Corning Glass Works, supra, 417 U.S. at 196).
If plaintiff fails to establish a prima facie case of gender discrimination under the NJLAD, but the evidence demonstrates job similarity that would nevertheless satisfy the less-exacting standards of a prima facie case under Title VII, only the burden of production or explanation shifts to defendant. Grigoletti, 118 N.J. at 110. Thus, under Title VII, defendant's burden is to articulate a legitimate reason for the discriminatory treatment that can dispel the inference that the unequal treatment was because of gender bias. Grigoletti, 118 N.J. at 102 (citingAnderson v. Exxon Co., 89 N.J. 483, 499 (1982)).
In establishing a prima facie case, plaintiff must demonstrate that she was paid less than her male counterparts for substantially similar work for the years 1996 to 2000. The evidence in the record indicates that plaintiff was hired as a Customer Service Representative in 1993, then moved to the position of Customer Service Specialist in February 1996 and finally to Account Representative in April 2000 until her termination in November 2000. As a Customer Support Specialist, plaintiff's job functions included visiting assigned hospitals on a daily basis to determine customer need; scheduling meetings with department heads at hospitals to persuade conversion to Owens Minor business; scheduling meetings with materials managers and buyers to ensure accuracy and timeliness in purchase orders; and checking inventory to determine hospital usage levels. See Customer Support Specialist Essential Job Functions, Def.'s Br. Ex. E. Maria Grosso also testified that she and plaintiff held the same position of Customer Service Representative until 2000, when they were both made Account Representatives. See Grosso Depo., 6/20/01, 10:10-11:1, Def.'s Br. Ex. G.
There is no evidence that any male employee worked in the position of Customer Service Representative or Customer Support Specialist in the years from 1996 to 2000. Dan Chiappetta was hired in 2000 as an Account Representative, the same position of both plaintiff and Maria Grosso. Mr. Chiappetta had formerly been a Sales Representative Trainee in Owens Minor's Indianapolis office. Contrary to defendant's assertion, plaintiff's regular salary for 2000, $32,380.13, was more than Mr. Chiappetta's regular salary, without commissions and fees, of $22,381.99. See OM Male and Female Employee Earnings Based on Regular Earnings, Pl.'s Br. Ex. 14; OM Pay Stubs, Pl.'s Br. Ex. 15. With fees and commissions, plaintiff also earned more in 2000, $46,304.51, see Ford Payroll Information, Def.'s Br. Ex. I, than Mr. Chiappetta, who earned $39,772.80. See OM Male and Female Employee Earnings Based [on] Regular Earnings Plus Commission, Pl.'s Br. Ex. 14. Similarly, for the year 1999, plaintiff's earnings with commission, at $40,153.18, was higher than Mr. Chiappetta, whose earnings with commission was $38,573.32. See id. Plaintiff's data also shows that Ms. Grosso, with a regular salary of $41,116.77, earned more than both plaintiff and Mr. Chiappetta for the year 2000.
Although plaintiff asserts that Mr. Chiapetta's regular salary for the year 2000 was $34,680.00, this Court's review of the earnings designated as "Regular" on the pay stubs (as presumably used by plaintiff to determine the base salary), see Pl.'s Br. Ex. 15, indicates that this and several other numbers set forth by plaintiff on its salary data sheets are clearly incorrect. Plaintiff's determination of Mr. Chiappetta's salary and the other employee salaries should have indicated whether they were based on a different document or an aggregate of specifically designated earnings on the pay stub. However, to the extent that plaintiff's determination of base salaries was taken from the earnings designated as "Regular" on the pay stubs, plaintiff's contention that Mr. Chiappetta earned a higher base salary than plaintiff in that year is thus wrong, and, to the extent that plaintiff attempts to present inaccurate numbers in furtherance of her claims, no admissible evidence backs her assertions. There is not only no trend that men were paid more than women, but indeed the women's salaries often exceeded those of their male counterparts. See Pl.'s Br. Ex. 14 15.
The evidence fails to demonstrate that unequal pay was given for substantially equal work performed by male employees, where plaintiff has failed to show that a male Customer Service Specialist earned higher wages for the period at issue, 1996 to 2000, or even that a male Customer Service Specialist had been working during that time. Even if plaintiff complained only of the year 2000, when Mr. Chiappetta was hired, she fails to demonstrate that Mr. Chiappetta earned more than she did for substantially equal work. Plaintiff's higher earnings do not establish a prima facie case of gender discrimination based on unequal pay.
Furthermore, to the extent that plaintiff's argument is based on not being paid focus fees as a Customer Service Representative, when she worked solely on shared accounts, she also fails to demonstrate a prima facie case because Customer Service Specialists only received focus fees on individual, not shared, accounts. Plaintiff's testimony reveals that Customer Support Specialists received focus fees on individual accounts and could receive commissions on PANDAC accounts. See Ford Depo., 6/6/01, at 28:2-29:14. As a Customer Support Specialist, plaintiff worked on accounts she shared with higher level employees like Account Manager Celesia Valentine and Rodney Thomas. See Ford Depo., 6/6/01, at 10:10-11:6, Pl.'s Br. Ex. 4. Ms. Grosso, plaintiff's counterpart, testified that she received focus fees on individual accounts while she was a Customer Support Specialist but did not work on any shared accounts, and that she began receiving commissions in addition to focus fees when she became an Account Representative. See Grosso Depo., 6/20/01, at 7:15-9:24. From this evidence, it can be inferred that plaintiff was not entitled to receive focus fees because her work consisted of accounts which she shared with more senior-level employees like Celesia Valentine and Rodney Thomas, and she did not work on individual accounts.
Plaintiff's testimony further demonstrated that she understood this distinction, which prevented her from receiving any focus fees, as well as the fact that no male Customer Service Specialist received focus fees during the period for which she brings this complaint:
Q: Did you hear of any customer support specialist at the Bridgeton division who earned FOCUS fees on shared accounts prior to . . . April of 2000.
A: I was the only one.
Q: And did there come a point in time when a customer support specialist at the Bridgeton division could earn FOCUS fees on shared accounts?
A: I believe it was at the discretion of Mike Nugent whether or not I received those FOCUS fees.
Q: But my question was: Did there come a point in time when a customer support specialist, you or any other person at the Bridgeton division, could earn FOCUS fees on shared accounts?
A: Not that I'm aware of.
Q: Are you aware of any male customer support specialist who, on the other hand, earned FOCUS fees on shared accounts while you were employed at the Bridgeton division?
A: I'm not aware of any male customer support specialists anywhere.
Ford Depo., 6/6/01, at 32:1-25.
While it is not disputed that plaintiff never officially attained the position of Sales Representative, plaintiff argues in her moving papers that she essentially held the position of Sales Representative and performed the functions of that position, including meeting with upper management, selling programs and services, and growing business on her accounts. Plaintiff asserts that defendant withheld the position from her, thereby preventing her from earning focus fees, which were normally given to Sales Representatives. A Sales Representative, usually a more senior-level employee with extensive experience, is "[r]esponsible for managing specific hospital accounts and ensuring all client programs are meeting client requirements." Sales Representative Essential Job Functions, Def.'s Reply Br. Ex. A. The duties of a Sales Representative include: compiling data on equipment and supplies used by customer to be used in focusing marketing efforts; traveling through assigned territory to call on clients to solicit orders and assist with on-site OM programs; quoting prices and credit terms to client organization and assisting in the preparation of contracts; and preparing regular reports of business transactions and keeping expense accounts. See id.
Plaintiff contends in her moving papers that "[d]uring her employment from 1996 through 2000 at Owens Minor, Danielle Ford performed the duties of a sales representative. However, she was denied focus fees because defendant, Owens Minor, withheld the payroll title of sales representative, despite the fact that she performed substantially the same work as all of the other sales representatives." Pl.'s Br. at 3.
In support of plaintiff's argument, the record indicates that a 1998 memorandum from OM Contract Manager referred to plaintiff as a "sales rep." See Fote Memo., 12/30/98, Pl.'s Br. Ex. 17. In addition, a workplan developed by Rodney Thomas, Manager of Account Development and plaintiff's supervisor, also referred to plaintiff as an "OM Sales Representative." See Thomas Letter, 12/13/99, Attach., Pl.'s Br. Ex. 16. Plaintiff also provides a "Statement" by OM employee Bonnie Donley, not in affidavit form as required by Rule 56(c), Fed.R.Civ.P., in which Donley states that she "believe[s]" plaintiff's position to be that of "sales rep." Donley Statement, Pl.'s Br. Ex. 9.
Plaintiff also asserts that she played roles in the implementation of the WISDOM program at Thomas Jefferson in 1999, along with Rodney Thomas and Celesia Valentine, and the PANDAC program at Jefferson Hospital, with Rodney Thomas. See Ford Depo., 6/6/01, at 11-13, Pl.'s Br. Ex. 4. Plaintiff also testified that she was involved in the presentations and seminars with regards to CostTrack at Thomas Jefferson University, and generated $85,000 in new business at Methodist Hospital. See Ford Depo., 6/6/01, at 14-16, 112. Ms. Valentine testified as to the similarity of the Customer Support Specialist, Sales Representative, and Account Representative positions, as she perceived it: "[S]ales rep, account rep, customer support specialist, they are all kind of the same if you ask me. . . . An account rep and a sales rep are the same thing except compensation. They do the same job." Valentine Depo., 6/13/01, at 30:4-8.
PANDAC is a suture management program that inventories sutures and then sells sutures at a list price. See Pl.'s Br. at 14.
Mr. Thomas later submitted that his reference to plaintiff as a Sales Representative "was done solely for the ease of use and understanding of the customer" and was used as a "generic term . . . to indicate that Ms. Ford was a representative of the Jefferson Health System sales team during the applicable period." Thomas Aff. ¶¶ 5,6, Def.'s Reply Br. Ex. J. Mr. Thomas further submitted that "At no time herein did Danielle Ford ever perform the job responsibilities or duties of a sales representative for Owens Minor Bridgeton Distribution Center." Id. ¶ 8. Rodney Thomas, an Account Manager until January 2000, who worked with plaintiff on certain accounts, also expounded on the difference between the sales representative and account representative positions:
[T]he account rep and sales rep, obviously, they are to help sell our products, but the fundamental different between these — the sales rep and account rep is that there is definitely a significant level of experience — difference in experience level. Generally, you don't have someone brand new come in to sales rep. . . . The sales reps are able to sell our programs and our services and bring other sources of value added services. The selling of products and sales represents a really small percentage of what we do as business. You have to be able to bring what we call consultive selling to the customer, and an account rep — never — very, very rarely do I ever — I have ever seen an account rep that brings the level of consultive selling to a customer.
Thomas Depo., Pl.'s Br. Ex. 5, at 62-63. Similarly, Mr. Nugent, the Sales Manager and Area Vice President during plaintiff's employment, stated:
[A sales rep] would typically deal with, in terms of having overall responsibility with large or more involved customers, more difficult, more complicated situations than an account rep would have; and they would also typically not be in a role where they would play just a customer service type [role].
Nugent Depo., Pl.'s Br. Ex. 7, at 63-64.
Though Account Manager Celesia Valentine offered the above testimony that plaintiff's duties were similar to that of a Sales Representative, she also explains that plaintiff's duties and functions she attained as an Account Representative in 2000 did not differ from those of Customer Support Specialist:
Q: What was your description of Danielle's job duties when you were working with her? What did she do [as an account representative]?
A: She did the same thing she did as a customer support specialist. She took care of customer service issues that the customer may have as far as back orders, expediting product to the hospital, making sure that they knew how to use the system, to get the right information. Pretty much everything that any other sales rep does to manage their accounts, and she helped manage the account. Helped with product conversions, that type of thing.
Q: So her job duties didn't change that much from —
A: No. The title changed.
Valentine Depo. 6/13/01, at 28:9-29:1, Pl.'s Br. Ex. 6.
Despite plaintiff's argument that she functioned as a "sales rep," plaintiff revealed in her deposition testimony that she never considered herself to be a Sales Representative, and that her main and only concern was the ability to receive focus fees as a Customer Service Representative on her accounts, which she often shared with Account Managers:
Q: And the compensation of a CSS would include salary plus applicable commissions, including FOCUS fees and possibly, you indicated, PANDAC, correct?
A: Yes.
Q: Now, tell us about the compensation of a sales representative. What's your understanding of how sales representatives would be compensated?
A: I'm not aware. That's their business, not mine.
Q: I just want to know whether you are aware of how they would be compensated. Do you have any understanding?
A: I know they receive FOCUS fees. That's my only concern.
Q: Did any sales representatives earn a salary?
A: I don't know.
Q: You don't know?
A: It's not my business.
Ford Depo., 6/6/01, at 29:10-30:5.
Testimony by Celisia Valentine provides confirmation that plaintiff was not a Sales Representative because of the change in employment structure that took place in 2000. While Ms. Valentine testified, "[S]ales rep, account rep, customer support specialist, they are all kind of the same," Valentine Depo., 6/13/01, at 30:4-8, Pl.'s Br. Ex. 6, she also testified that one achieved the official position of Sales Representative in the narrowest of instances: "You are grandfathered into that position. It doesn't exist anymore. . . . You can't be a commissioned salesperson at Owens and Minor. You would be considered an account rep or an account manager. Therefore, they don't pay you commissions anymore. Sales reps get paid commission." at 30:14-21. When asked when this change occurred, Valentine further testified, "We have had so many changes. It could have changed in 2000 and then grandfathered. Anyone that was a sales rep at that time remained a sales rep, and they didn't get changed compensation-wise to an account manager or an account rep." Id. at 30:23-31:2.
Deposition testimony elucidated the extensive role that Sales Representatives played in their customer accounts:
Q: We talked before about the differences between a sales representative and an account representative. In your judgment, do Alan Brooks, who's a sales representative and Patti Monkhouse, who's also a sales representative, do they do a lot of different types of things that an account representative such as Danielle or Dan Chiapetta or Maria Grosso would not do?
A: Yes. They — they would really cover the whole spectrum. In accounts where they have sole responsibility especially, they would be handling the maintenance end of things, but they would also handle the high level relationship end of things, too.
The people you mentioned are very experienced professional sales people who have been successful for many years and have managed large territories.
Nugent Depo., 6/27/01, at 75:5-23, Def.'s Br. Ex. R.
Although plaintiff alleges in her pleadings that she should have received focus fees for the years 1996 to 2000 due to defendant withholding the title of Sales Representative from her, the evidence viewed in the light most favorable to plaintiff does not establish that she held the position of Sales Representative or that her functions were substantially similar to that of one. Notwithstanding the Fote memorandum which refers to plaintiff as a "sales rep," the overwhelming evidence demonstrates that plaintiff was employed, along with Maria Grosso, as a Customer Support Specialist in 1996 through 2000, at which time they both were given the position of Account Representative. During the period in which plaintiff seeks equal pay, the record evidence shows that plaintiff performed the functions of a Customer Support Specialist and that her role was more limited than that of a Sales Representative, such as Patti Monkhouse, Rodney Thomas, and Alan Brooks, who performed the functions of giving presentations or seminars on strategic business programs in relation to their hospital accounts, generating business reports, promoting defendant's programs on a global level, and handling client accounts in an overall level. Accordingly, the Court finds that the evidence, and reasonable inferences favorable to plaintiff, fail to establish a prima facie case of unequal pay, and defendant is entitled to summary judgment upon this claim.
Furthermore, even if plaintiff actually performed the functions of a Sales Representative, not an Account Representative, and therefore had established a prima facie case of gender discrimination based on unequal pay under the LAD, defendant is able to demonstrate that the difference in pay, here, plaintiff's base salary, was justified by establishing by a preponderance of the evidence that the wage disparity is the result of (i) a seniority system, (ii) a merit system, (iii) a system which measures earnings by quantity or quality of product, or (iv) a differential based on any factor other than gender. See Grigoletti, 118 N.J. at 102.
Plaintiff's Performance Appraisal Forms showed that plaintiff's work received mixed reviews, at best. Appraisals from 1994 onward gave plaintiff generally good ratings regarding her professionalism, but with emphasis on her need to take on more work and initiative. Plaintiff's performance appraisal on November 9, 1999, gave plaintiff an average rating overall, stating only that she "meets basic requirements of the job." Performance Appraisal, 11/9/99, Def.'s Br. Ex. N. Reports from dissatisfied customers also indicated that plaintiff had poor communication skills and was not responsive enough to customer needs. See Oliver E-mail, 8/18/00, Def.'s Br. Ex. O. Deposition testimony from Maria Grosso provides a further example of how customers perceived plaintiff to be non-responsive to their requests for company products or information:
Q: Has Wayne Smith [of South Jersey Health System] ever mentioned Danielle to you?
A: On one occasion.
Q: What was the circumstances or what were the circumstances surrounding bringing up Danielle's name?
A: He had asked me to bring him a matrix on a CostTrack program that he's going to be implementing in there, and I brought it to him Monday. And when I handed it to him he said you are not like Danielle.
Q: Did he elaborate on that?
A: No.
Q: What did you interpret that to mean?
A: My interpretation of that was that he requested some stuff from her and she never prevailed.
Grosso Depo., 6/20/01, at 29:8-20, Def.'s Br. Ex. G.
The evidence, including yearly appraisals, plaintiff's probationary periods and correspondence, shows that plaintiff, in her work performance, lacked initiative, aggressiveness, and had problems making scheduled appointments with clients, keeping clients aware of applicable products, following up on client inquiries, and maintaining a presence of defendant's products in the customer's establishments. Defendant has demonstrated that the difference in pay was attributable not to plaintiff's gender, but to the quality of her work. Defendant's termination of plaintiff was justified by legitimate reasons regarding the inadequacy of plaintiff's work. See, e.g., Casseus v. Elizabeth Gen. Med. Ctr., 287 N.J. Super. 396, 406 (App.Div. 1996) ("[I]t should require no citation to state that an employee's poor performance in discharging his duties is a legitimate nondiscriminatory reason to fire or demote the employee.") (citations omitted).
Accordingly, plaintiff has failed to establish a prima facie case of gender discrimination based on unequal pay under the LAD. Even if plaintiff had done so, defendant has provided sufficient evidence to show that the difference in pay was attributable to a factor other than gender, in this case, deficiencies in her work performance. Plaintiff has proffered no evidence tending to refute defendant's reasons for her termination or tending to show that defendant's reasons are not worthy of belief. Thus, defendant's motion for summary judgment as to plaintiff's gender discrimination claim will be granted, and plaintiff's cross-claim for summary judgment will be denied.
C. Retaliation Claim Under Conscientious Employee Protection Act
Defendant maintains that plaintiff has failed to establish a prima facie case of retaliation under the Conscientious Employee Protection Act ("CEPA"). In the amended complaint, plaintiff alleges that her termination from employment was in retaliation for her filing of this civil complaint. The purpose of CEPA is to "prohibit retaliatory action by an employer against an employee who discloses or threatens to disclose an employer's illegal activities, testifies before a public body regarding an employer's violation of a law, or refuses to participate in an employer's activity which the employee believes is illegal or in contravention of public health, safety or welfare." See Young v. Schering Corp., 275 N.J. Super. 221, 233-34 (App.Div. 1994) (citations omitted), aff'd, 141 N.J. 16 (1995); see also Higgins v. Pascack Valley Hosp., 158 N.J. 404, 417 (1999) (quoting Barratt v. Cushman Wakefield, 144 N.J. 120, 127 (1996)). The New Jersey legislature, by enacting CEPA, codified this cause of action first recognized by the New Jersey Supreme Court inPierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980), protecting at-will employees who have been terminated in violation of a clear mandate of public policy. See Higgins, 158 N.J. at 417-18. CEPA thus created a statutory exception to the general rule that an employer may fire an at-will employee with or without cause. See id. at 418.
CEPA provides that an employer shall not take any retaliatory action against an employee because the employee: discloses or threatens to disclose to a supervisor or public body an activity or policy that the employee reasonably believes is in violation of a law; provides information to or testifies before a public body conducting an investigation, hearing or inquiry into any violation of law, or rule or regulation promulgated by the employer; or objects to or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of law, is fraudulent or criminal, or is incompatible with a clear mandate of public policy. See N.J.S.A. 34:19-3.
To establish a prima facie case of retaliatory discharge under CEPA, plaintiff must show that (1) she reasonably believed that her employer's conduct was violating either a rule or law or regulation promulgated pursuant to law; (2) she disclosed or threatened to disclose the activity to a supervisor or public body; (3) an adverse employment action was taken against her; and (4) a causal link exists between the whistle-blowing and the discharge. See Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999); Blackburn v. United States, 179 F.3d 81, 92 (3d Cir. 1999); Young, 275 N.J. Super. at 233 (citation omitted).
Viewing the evidence in the light most favorable to plaintiff, and extending to plaintiff any reasonable inference, plaintiff has succeeded in establishing a prima facie case. Here, plaintiff filed a civil suit based on her belief that defendant was illegally engaging in gender discrimination. An employee can sustain a cause of action for retaliatory discharge only if the employee reports the alleged violation of law or public policy to a governmental or outside authority. See Young, 275 N.J. Super. at 234. Due to CEPA's expansion of the scope of common law retaliatory discharge actions, see id., this Court liberally construes plaintiff's filing of her NJLAD complaint as disclosure of what plaintiff believed to be an illegal act, albeit one directed only against her. Here, also, plaintiff was discharged in November 2000 subsequent to her filing suit on October 10, 2000. A causal link between the protected activity and the adverse employment action can be inferred by the fact that the termination, on or around November 13, 2000, occurred a little over one month after plaintiff's complaint was filed. See, e.g., Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) ("He demonstrated the causal link between the two by the circumstance that the discharge followed rapidly, only two days later, upon Avdel's receipt of notice of Jalil's EEOC claim."), cert. denied, 493 U.S. 1023 (1990);Burrus v. United Tele. Co., 683 F.2d 339, 343 (10th Cir.) ("The causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action."),cert. denied, 459 U.S. 1071 (1982).
Once plaintiff has established a prima facie case, the burden shifts to defendant for advancing a legitimate, nondiscriminatory reason for discharging plaintiff. See DePalma v. Bldg. Inspection Underwriters, 350 N.J. Super. 195, 213-14 (2002) ("The sufficiency of the proofs and the applicable burdens in LAD and CEPA cases generally follow case law under Title VII") (citations omitted). Under this burden, defendant introduced sufficient evidence to support that plaintiff was fired for her failure to improve in specific areas after being placed on two 60-day probationary periods, the first of which began on July 23, 2000, regarding her South Jersey Health System account, and the second of which began on September 4, 2000, regarding her Shore Memorial Hospital account. See Def.'s Br. Exs. T, V. Defendant also received several reports from customers that plaintiff was not taking enough initiative in her accounts with them, did not make clients aware of products or make presentations in this regard, failed to appear at scheduled times, and failed to keep communication lines open. The yearly appraisals and letters sent to plaintiff by defendant clearly indicate that these were areas that needed significant improvement.
Because defendant is able to meet the burden of production, the plaintiff must then establish by a preponderance of the evidence that a discriminatory intent motivated defendant's action by proving either that the articulated reason is a pretext for the retaliation or that a discriminatory reason more likely motivated the employer. See Jamison v. Rockaway Township Bd. of Educ., 242 N.J. Super. 436, 445 (App.Div. 1990) (citing Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1354 (9th Cir. 1984)). The claimant can accomplish this by proving that the articulated reason set forth by the defendant employer is a pretext for the retaliation or that a discriminatory reason more likely motivated the employer. See Jamison, 242 N.J. Super. at 445 (citations omitted).
As shown above, the record demonstrates that defendant has satisfied its burden of production by submitting evidence that legitimate reasons existed for the termination of plaintiff's employment. Here, plaintiff fails to adduce evidence from which a reasonable fact finder could find by a preponderance of the evidence that discriminatory intent based on gender motivated defendant in terminating her employment. The record reveals, instead, that pay was based on quality of work and one's productivity of business. In fact, the generally higher salary paid to Maria Grosso, plaintiff's contemporary, strongly indicates that defendant was not treating women disparately but was instead compensating employees based on factors other than gender. Furthermore, plaintiff fails to point to evidence or allege facts of incidents or events that indicate or suggest that defendant acted adversely toward her solely because she had filed an NJLAD complaint, or was otherwise improperly motivated to terminate plaintiff. Because plaintiff can provide no evidence pointing to any discriminatory intent on defendant's part, plaintiff's CEPA retaliation claim based on her termination must be dismissed. Defendant's summary judgment motion will therefore be granted on this ground, and plaintiff's cross-motion will be denied.
Bonnie Donley's statement that Mike Nugent commented that "there were never enough men" in their department, Donley Statement, Pl.'s Br. Ex. 9, is, as discussed above, neither in affidavit form as required by Rule 56(c), Fed.R.Civ.P., nor is it in the form of a declaration, certification, or deposition testimony which would be admissible as evidence to be properly considered on a summary judgment motion in this Court.
D. Plaintiff's Retaliation Claims Based on Unfavorable Evaluation and Placement on Probation
Plaintiff amended her complaint to state a claim under the NJLAD for retaliation in the form of an unfavorable evaluation and probationary placement, which she claims resulted from her complaints regarding unequal pay. A plaintiff must establish a prima facie case for retaliation under NJLAD by demonstrating that (1) claimant engaged in a protected activity known to the employer; (2) claimant was thereafter subjected to an adverse employment decision by the employer; and (3) there was a causal link between the two. See Jamison, 242 N.J. Super. at 445 (citing Wrighten, 726 F.2d at 1354; Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J. 189, 193 n. 1 (1988)).
In this case, plaintiff claims that she was given an unfavorable evaluation and placed on probation because she "refused to participate in what she believed to be discriminatory practices against women by defendant, Owens Minor, by objecting to unequal pay and requesting that she be paid fairly." Second Amended Compl. ¶ 2. As a result of this refusal, plaintiff alleges that defendant "gave plaintiff the unfavorable performance evaluation, placed her on probation two times, and gave her `goals' to meet that were virtually unattainable." Id. ¶ 3.
This Court must examine whether "refusing to participate in discriminatory practices against women . . . by objecting to unequal pay and requesting that she be paid fairly" is a protected activity for which NJLAD protection is warranted. Plaintiff allegedly requested equal pay in October 1999, when she contacted Human Resources to determine her eligibility to receive focus fees, and complained to Account Manager Rodney Thomas and area manager David Hinkley by March 2000. This Court notes initially that, viewing the record as a whole, plaintiff's alleged objections to defendant never implicated the issues of gender or base salary, or raised the issue that other women were not receiving such fees. Rather, her complaints concentrated on plaintiff not receiving focus fees to which she believed she was entitled. Plaintiff further fails to provide any case law in support of the proposition that her complaints regarding defendant's pay practices, which complaints were not framed in terms of gender bias at that time, sufficiently constituted protected activity under the NJLAD. Her initial inquiries were to seek a boost in her own compensation through focus fees, and nothing was said about the fees due other women similarly situated.
To the extent that plaintiff has filed a gender discrimination claim against defendant, however, this Court finds that such activity could liberally fall within the bounds of protected activity that the NJLAD was designed to protect. See Velantzas, 109 N.J. at 193 n. 1 ("Under federal employment discrimination law, a retaliatory discharge for engaging in the `protected activity' of pursuing an employment discrimination claim is in itself a discriminatory discharge.") (citations omitted).
Assuming that plaintiff has demonstrated that she was engaged in a protected activity, by either complaining to defendant of unequal pay beginning in 1999, or filing her lawsuit in October 2000, plaintiff contends that the adverse employment actions taken against her were the unfavorable performance appraisal and placement on probation. The complaint to area manager David Hinkley regarding plaintiff not receiving focus fees occurred in March 2000. Plaintiff's performance reviews took place yearly from 1994 to 1999, on the following dates: November 21, 1994; January 31, 1996; November 22, 1997; November 22, 1998; and November 9, 1999. While plaintiff does not specify for which performance appraisal her claim is based, the performance appraisals reflect that plaintiff was given generally adequate reviews, but that she needed to make significant improvements in certain areas, including being more aggressive, taking more initiative in her accounts, and being more communicative with her clients. Plaintiff was also placed on probation on July 23, 2000, and on September 4, 2000. Such placement on probation constitutes an adverse employment action in this case. Cf. Young v. Prudential Ins. Co. of America, Inc., 297 N.J. Super. 605, 609-10, 625-26 (termination and probation constitute adverse employment actions under CEPA),certif. denied, 149 N.J. 408 (1997).
Plaintiff must then show that a causal connection exists between the two events. The facts of this record support the conclusion that slight deficits in plaintiff's job performance existed in 1996, but became clearer in the November 9, 1999 appraisal. If plaintiff indeed complains specifically of the unfavorable performance appraisal of November 9, 1999, the occurrence of this review undoubtedly preceded plaintiff's complaint to David Hinkley in March 2000. The fact that plaintiff's complaints occurred after her negative performance appraisal fails to establish the causal connection requirement that plaintiff's complaints resulted in a bad performance review.
The causal connection inquiry also requires examination of the timing of plaintiff's complaints, which allegedly took place in 1999 and continued through early 2000, and her subsequent placement on probation. Plaintiff's probation did not immediately follow plaintiff's alleged complaints of unequal pay in terms of days or weeks, as the first probationary period occurred in July 2000. However, it can be liberally construed that the July 2000 probationary period temporally followed her complaint in March 2000 to David Hinkley, the new area manager. As the sequence of these events, which occurred in the time span of 4 months, may justify an inference that defendant was motivated by retaliation in placing plaintiff on probation, see Burrus v. United States Tele. Co., 683 F.2d 339, 343 (10th Cir.) ("The causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action."), cert. denied, 459 U.S. 1071 (1982), plaintiff is able to adduce evidence of the causal connection prong from which a reasonable fact finder could infer causation.
Although plaintiff can establish a prima facie case of retaliation based on her probation placement under the NJLAD, defendant sufficiently raises a legitimate reason for the probation that satisfies its burden under the NJLAD framework. Plaintiff was placed on probation twice for her inadequate work performance due to several communications from customers indicating severe dissatisfaction with plaintiff's attitude and work, and as indicated in defendant's yearly performance appraisals of her work. Defendant had received reports regarding plaintiff's lack of initiative and aggressiveness regarding her accounts, lack of communication with her client customers, and her general non-responsiveness to clients' requests and needs. These areas of improvement were indicated to plaintiff in the "60-day action plans" and "60-day Game Plan Objectives" she received. Rather than withhold from plaintiff the reasons for her probations, defendant fully informed plaintiff of the reasons for those placements and further advised her on how to achieve success in her work performance. See 60-Day Game Plan Objectives, Def.'s Br. Ex. W. Defendants have therefore satisfied its burden in establishing a legitimate nondiscriminatory reason for placing plaintiff on probation.
Plaintiff fails to demonstrate, however, that defendant acted pretextually in placing plaintiff on probation. Plaintiff neither points to evidence in the record that would indicate defendant was improperly motivated by plaintiff's complaints, nor that defendant's reasons for placing her on probation did not have a basis in fact. Strong customer complaints giving rise to probation have not been shown to have supplied pretextual reasons for placing plaintiff on probationary status on the two occasions in 2000. Accordingly, plaintiff fails to satisfy her burden under the NJLAD framework, and defendant's motion for summary judgment as to this claim will be granted. Plaintiff's cross-motion will be denied, and this claim for retaliation will be dismissed.
E. Plaintiff's Punitive Damages Claim
Defendant maintains that plaintiff's allegation that David Hinkley "maliciously" participated in discrimination is not supported by any evidence that his actions were motivated by gender or plaintiff's complaints of unequal pay. An employer will be liable for punitive damages "only . . . in exceptional cases even where the LAD has been violated." Catalane v. Gillian Instrument Corp., 271 N.J. Super. 476, 500-01 (App.Div.),certif. denied, 136 N.J. 298 (1994). "Punitive damages are to be awarded `when the wrongdoer's conduct is especially egregious.'" Lehmann v. Toys R Us, Inc., 132 N.J. 587, 624 (1997) (quoting Leimgruber v. Claridge Assocs., Ltd., 73 N.J. 450, 454 (1977)). Further, as the late Chief Judge Gerry stated, "In order for punitive damages to be awarded, the defendant's conduct must have been wantonly reckless or malicious." Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1135 (D.N.J. 1990).
At the outset, punitive damages are unavailable here because defendant is not liable to plaintiff under the NJLAD or CEPA as a matter of law, as discussed above. Punitive damages are unavailable in the absence of liability on the underlying claims. Thus, to the extent that this Court finds that plaintiff fails to demonstrate claims under the NJLAD or CEPA, it will not award punitive damages. Defendant's motion for summary judgment will be granted on this ground, and plaintiff's cross-motion for summary judgment will be denied.
CONCLUSION
For the reasons stated above, defendant's motion for summary judgment will be granted as to all claims brought by plaintiff under the NJLAD and CEPA and for punitive damages, and plaintiff's cross-motion will be denied. Plaintiff's complaint and subsequent amended complaints will be dismissed. The accompanying Order will be entered.
ORDER
THIS MATTER having come before the Court upon defendant Owens and Minor's motion for summary judgment against plaintiff Danielle Ford, and plaintiff Ford's cross-motion for summary judgment; and the Court having considered the parties' submissions; and for the reasons stated in the Opinion of today's date; and for good cause shown;IT IS on this ____ day of June, 2002, hereby
ORDERED that defendant's motion for summary judgment [Docket Item 21-1] be, and hereby is, GRANTED ; and plaintiff's cross-motion for summary judgment [Docket Item 22-1] be, and hereby is, DENIED ; and plaintiff's Complaint and First and Second Amended Complaints are hereby DISMISSED.