Zulauf v. Stockton University et al

BRIEF in Opposition

D.N.J.August 1, 2016

Blaney & Karavan, P.C. 2123 Dune Drive Suite 11 Avalon, New Jersey 08202 Phone: (609) 435-5368 Fax: (609) 435-5473 Attorneys for Plaintiff, Kevin Zulauf By: William G. Blaney, Esquire (WB-4282) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ________________________________________________________________________ : KEVIN ZULAUF, : : Civil Action No. 1:15-cv-3526 : Plaintiff : v. : MOTION RETURN DATE: : STOCKTON UNIVERSITY; UNIVERSITY : August 15, 2016 DIRECTOR OF ATHLETICS LONNIE : FOLKS (in his Individual and Corporate : Capacity); and JOHN DOES 1-20; : : Defendants. : ________________________________________________________________________ ________________________________________________________________________ PLAINTIFF, KEVIN ZULAUF’S BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56 ________________________________________________________________________ William G. Blaney. Esq. On the Brief Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 1 of 37 PageID: 504 i TABLE OF CONTENTS Preliminary Statement………………………………………………………………… 1 Statement of Facts…………………………………………………………………….. 5 Standard of Review…………………………………………………………………… 5 Legal Argument I. The New Jersey Wage and Hour Law’s Provisions Regarding Equal Pay is Applicable to State Employers and Sovereign Immunity Has Been Waived………………………………………….. 7 a. Stockton is an “employer” under the Equal Pay Act provisions Under the New Jersey Wage and Hour Law……………………… 7 b. Defendants are not immune from this Court’s jurisdiction by virtue Of the 11th Amendment because they waived that defense when they removed this case from Federal Court……………………… 10 II. Plaintiff Has Set Forth a Prima Facie Case of Pay Discrimination Under The Federal Equal Pay Act and Defendant’s Have Failed to Show That The Pay Differential is Based Upon Factors Other Than Sex……………………………………………………………… 12 a. Plaintiff performs equal work to that of the female Head Lacrosse Coach, Kimberly Williams, who was classified as “full time” and Paid substantially more…………………………………………… 13 b. The complained of pay differential was NOT based upon factors other than sex…………………………………………………….. 20 III. Plaintiff Has Set Forth A Viable Claim For Sex Discrimination Under The LAD………………………………………………………..……. 23 a. Title VII Analysis…………………………………………….…… 24 IV. Plaintiff Has Set Forth A Viable Claim Of LAD Retaliation……....... 27 V. Mr. Folks Aided And Abetted The Complained Of Discrimination Conduct……………………………………………………………… 29 VI. Plaintiff Has Set Forth A Viable Claim For Punitive Damages……... 31 Conclusion…………………………………………………………………………… 32 Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 2 of 37 PageID: 505 ii TABLE OF CITATIONS CASES Allen v. Fauver, 167 N.J. 69, 72 (2001)………………………………………………7-8 Allen v. Fauver, 327 N.J. Super 14, 19-20, 21 (App. Div. 1999)……………………….8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed. 202 (1986)……………………………………………………………………..6 Bergen Commercial Bank v. Sisler, 157 N.J. 188, 208 (1999)………………………25-26 Bd. of Trs. Of the Univ. of Ala. v. Garret, 531 U.S. 356, 363 (2001)…………………10 Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 291 (4th Cir. 1974)……………14 Brinkley v. Harbour Recreation Club, 180 F.3d 598, 613 4th Cir. 1999)…………………………………………………………………………12-13 Broadas v. O.K. Industries, Inc., 226 F.3.d 937, 941-942 (8th Cir. 2000)………………13 Brobst v. Columbus Servs. Int’l, 761 F.2d 148, 156 (3d Cir. 1985)……………………17 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986)……………………5 Cherrey v. Thompson Steel Co., 805 F.Supp. 1257, 1262 (D.Md. 1992)………………14 Cohen v. Brown Univ., 101 F.3d 155, 164 (1st Cir. 1996)……………………………..23 Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995)………………………….27 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)………………………………………12 Dibble v. Regents of Univ. of Maryland System, 89 F.3d 828, 1996 WL350019 (Table) (4th Cir. 1996)………………………………………………………………….14 Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 362 (3d. 2008)…………………..6 Fleming v. Correctional Healthcare Solutions, Inc., 164 N.J. 90, 100 (2000)…………25 Grigoletti v. Ortho Pharmaceuticals, 188 N.J. 89 (1990)………………………………24 Hassman v. Valley Motors, Inc., 790 F.Supp. 564, 567 (D.Md. 1992)……………..14-16 Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 3 of 37 PageID: 506 iii Hesley v. City of Somers Point, 2006 WL 2482839 (App. Div. 2006)……………….. 10 Hurley v. Atlantic City Police Dept’, 174 F.3d 95 (3d Cir. 1999)……………………. 30 Ivan v. County of Middlesex, 612 F.Supp. 2d 546, at fn. 1 (D.N.J. 2009)…………… 30 Jackson v. Georgia-Pacific Corp., 296 N.J. Super. 1, 19 (App. Div. 1996) certif. denied, 149 N.J. 141 (1997)……………………………………………………. 28 Jackson v. Trump Entertainment Resorts, Inc., 149 F.Supp. 3d. 502 (D.N.J. 2015)……………………………………………………………………... 28 J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (32d Cir. 1987)………………………………………………………………………….6 Lapides v. Bd. of Reg. of the University System of Georgia, 535 U.S. 613 (2002)………………………………………………………………………. 11 Lombardo v. PA. Dept. of Public Welfare, 540 F.3d 190, 198 (3rd 2008)…………… 11 Lovell v. BBNT Sols., LLC, 295 F. Supp. 2d 611, 618-19 (E.D. Va. 2003)………14, 16 McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 528 (2003)………………………25 McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973)…………………………24,26 Pastore v. Bell Tel. Co. of Penna., 24 F. 3d 508, 512 (3d Cir. 1994)……………………6 Potente v. County of Hudson, 187 N.J. 103, 114 (2006)………………………………30 Price Waterhouse v. Hopkins, 490 U.S. 288, 244-45, 109 S.Ct. 1775, 1787-88, 104 L. Ed.2d. 268, 284 (1989)……………………………………………24-25 Regis v. International Paper Co., 2013 WL 5410700 (D.N.J. 2013)……………………30 Rendine v. Pantzer, 141 N.J. 292, 214 (1995)…………………………………………30 Robinson v. PPG Indus, Inc., 23 F.3d 1159, 1162 (7th Cir. 1994)………………………7 Romano v. Brown & Williamson Tobacco Corp., 284 N.J. 543, 549 (App. Div. 1995)……………………………………………………………………27 Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200-201, 201-02 (3d Cir. 1987) Cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988)……………………………………………………………..7 Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 4 of 37 PageID: 507 iv State v. Union-Camp Paper Corp., 35 N.J. 390, 395 (1961)…………………….………9 Stewart v. Rutgers, The State University, 130 F.3d 426, 431 (3d Cir. 1997)…………………………………………………….…………………7 Strag v. Bd. of Trustees, 55 F.3d 943, 950 (4th Cir. 1995)……………..……………….14 STATUTES 20 U.S.C.A. 1681 (a)……………………………………………………………………22 20 U.S.C.A 1681 (b)…………………………………………………………………….22 20 U.S.C. § 1092…………………………………………………………………………2 29 U.S.C. § 206 (d) (1)………………………………………………………………12-13 N.J.S.A. 34:11-56a1 to 56a 30……………………………………………………….......8 N.J.S.A. 34:11-56a1 (g)………………………………………………………………….8 N.J.S.A. 34:11-56.1…………………………………………………………………...…8 N.J.S.A. 34:11-56.1(b)……………………………………………………………...…....8 N.J.S.A. 1:1-2…………………………………………………………………………….9 RULES Fed.R.Civ.P. 56 (c)……………………………………………………………………….5 Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 5 of 37 PageID: 508 1 Preliminary Statement The instant case alleges gender discrimination in employment and wages under the New Jersey Law Against Discrimination, the Federal Equal Pay Act and the New Jersey Wage and Hour Law’s provisions generally known as the New Jersey Equal Pay Act. It also includes a claim for LAD retaliation based upon the employee’s reports of the aforementioned discrimination. By way of background, the Plaintiff, Kevin Zulauf has been the men’s Head Lacrosse Coach at Stockton University (hereinafter “Stockton”) for 7 years; and its men’s Lacrosse Assistant Coach for 2 years before that. (CSOF at 6).1 Throughout his career as a head coach, Stockton has classified Mr. Zulauf as a temporary “part-time” employee even though he performs essentially the same work as other head coaches that are classified as regular “full-time” Stockton employees. (CSOF at 2). Perhaps even more troubling is the fact that Mr. Zulauf was and is paid substantially less than Stockton’s head coaches that are classified as “full-time” for essentially the same work. When Mr. Zulauf complained to Stockton’s Athletic Director, Lonnie Folks, about his compensation and classification as “part-time”, Mr. Folks told Mr. Zulauf that he could not be classified as a “full time” coach because of Title IX2 and because he was a male. Mr. Folks further told Mr. Zulauf that if he was a female he could be hired under a “full time” classification. Mr. Folks claimed that because Stockton classified other coaches who were men as “full time” they hurt Mr. Zulauf’s chances of being classified 1 CSOF-refers to Plaintiff’s Counter Statement of Facts at the particular paragraph. 2 Title IX of the Education Amendments of 1972, 20 U.S.C.A. 1681 et seq. (hereinafter “Title IX”) is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity, including college athletics. Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 6 of 37 PageID: 509 2 as “full time”. Mr. Folks told Mr. Zulauf that Stockton would have to hire more women as “full time” coaches before he could hire Mr. Zulauf in a “full time” classification. (CSOF at 55). After his discussion with Mr. Folks, Mr. Zulauf reported Mr. Folk’s discriminatory comments to Stockton’s Associate Director of Intercollegiate Sports, Linda Yost. (CSOF at 56). Stockton took no action to investigate this incident. (CSOF at 56). Discovery in this case has revealed that Mr. Folks’ comments were the result of an improper attempt to create a “zero proportionality” model; ostensibly for purposes of appearing Title IX compliant and also for purposes appearing gender neutral in a federally mandated yearly report called the “Equity in Athletics Report”3. As part of this “zero proportionality” model, Mr. Folks sought to equalize the number of female athletes to their proportion of the student body, the sum total of coaches’ salaries by gender of the sport, and the sum total coaches salaries by the gender of the coaches. Nevertheless, the discovery record in this case reveals that Mr. Folk’s efforts at “zero proportionality” were misguided, discriminatory, and crossed the line, at least with regard to Stockton’s head coaches’ salaries. In fact, his “zero proportionality” model was nothing more than statistical “ponzi scheme” to bolster his Equity in Athletics Report, and other equity statistics, so it would superficially appear as though Stockton’s coaches’ pay was equitable between male and female sports and male and female coaches. 3 The Equity in Athletics Disclosure Act, 20 U.S.C. § 1092 requires co-educational institutions of postsecondary education that participate in a Title IV, federal student financial assistance program, and have an intercollegiate athletic program, to prepare an annual report to the Department of Education on athletic participation, staffing, and revenues and expenses, by men's and women's teams. The Department will use this information in preparing its required report to the Congress on gender equity in intercollegiate athletics. Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 7 of 37 PageID: 510 3 The reality is that Stockton paid and continues to pay its male “full-time” coaches more than its female “full time” coaches. (CSOF at 24). Rather than address this situation by equalizing the “full-time” coaches’ pay, Mr. Folks and Stockton tried and continue to try, to hide this reality by drastically underpaying certain newer male coaches, like Mr. Zulauf. It does this by misclassifying them as temporary “part-time” employees and paying them as if they were “part-time” even though they perform essentially the same work as the “full-time” coaches. This allows Mr. Folks and Stockton to create a situation where the sum total of all coaches’ salaries appear equal with regard to the gender of the coach and the gender of the team, but when looked at individually and in context of the work performed, its evidences otherwise unexplainable gender disparities. In May of 2013, Stockton hired its first women’s Head Lacrosse Coach, Kimberly Williams. Ms. Williams was classified by Stockton as “full-time” and given an initial starting salary of $49,783.00. (CSOF at 50). Mr. Zulauf’s salary from Stockton, at the time, was $13,500.00; a $36,283.00 difference. (CSOF at 50). Mr. Zulauf also worked as Athletics Department Manager of Open Houses and Ticket Sales Manager on an hourly basis. He earned $560.00 and $1,990.00 respectively for these duties in the 2013-2014 school year. (CSOF at 51). Mr. Zulauf also ran summer lacrosse clinics for Stockton earning $2,000.00 for that duty in the 2013-2014 school year. (CSOF at 51). Even with performing these additional duties Mr. Zulauf’s earnings from Stockton were $31,733.00 less than that of Ms. Williams’ starting salary4. 4 Similarly in 2015-2016 school year the new women’s Head Lacrosse Coach, Cristina Maurizi, had a starting salary of $54,079.00 compared to Mr. Zulauf’s salary of $15,000.00 after 7 years as a head coach. It was Ms. Maurizi’s first position as a collegiate head coach. (CSOF at 58). Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 8 of 37 PageID: 511 4 Now that there was a new “full-time” coach in essentially the same sport he coached, Mr. Zulauf also sought out the help of the Council of New Jersey State College Locals; the union that represents coaches classified as “full-time”. (CSOF at 60). On June 13, 2013, the union filed a grievance asserting that Mr. Zulauf worked “full-time” and should be paid as a “full-time” employee. (CSOF at 60) Thereafter, Mr. Folks began to retaliate against Mr. Zulauf. He made Mr. Zulauf’s job more difficult in subtle and not so subtle ways such as scrutinizing his athletic program and his requests for things incidental to the program such as roster size increases, travel arrangements, and budget information. (CSOF at 69) Mr. Zulauf nonetheless persisted that he was being treated unfairly and discriminated against. In 2014, Stockton removed Mr. Zulauf from his extra duties as Athletics Department Manager of Open Houses and Ticket Sales Manager. (CSOF at 62). Stockton claimed that this was done as part of long planned alleged “restructuring”. (CSOF at 63). It then reassigned these jobs to coaching staff that were designated as “full-time” for no additional pay; depriving Mr. Zulauf his opportunity to earn additional hourly pay and lowering his earnings even further. Brazenly, Stockton now argues that these extra duties are one of the reasons coaches classified as full-time make more than Mr. Zulauf, even though they earned more than Mr. Zulauf prior to ever being assigned these duties. Importantly and in direct contradiction to Stockton’s position, Ms. Yost, one of the three management representatives who participated in the alleged restructuring, testified that she believed that the removal of these jobs from Mr. Zulauf was retaliatory and based upon his complaints of pay inequities. (CSOF at 68). She further testified that the issue Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 9 of 37 PageID: 512 5 of assigning additional duties to full-time coaches did not even come up until after Mr. Zulauf raised his complaint. (CSOF at 64). Against this backdrop, Defendants argue that the pay differential between Mr. Zulauf and the female Head Lacrosse Coach is not sex based, but rather excused by job differences and their desire to comply with the anti-discrimination provisions of Title IX. Defendants also argue that there is no evidence of retaliation despite the aforecited testimony of Stockton’s own alleged decision maker, Ms. Yost. They argue that even if there is discrimination, Mr. Folk’s, as the main alleged actor, cannot be held liable for it and that Stockton is immune from suit under the New Jersey Equal Pay Act. As will be shown in the remainder of this brief, these defenses are without merit both factually and legally. Defendants have clearly violated each of the laws cited and Plaintiff is entitled to a trial by his peers on all his claims. Statement of the Facts The Plaintiff refers the Court and Defendants to the numbered paragraphs of his separate Counter Statement of Undisputed Facts, his separate response to Defendants’ alleged Statement of Undisputed Facts, and Defendants’ Statement of Undisputed Facts to the extent the same are truly undisputed. Standard of Review The legal principals regarding Summary Judgment motions are well established. Under Fed.R.Civ.P. 56 (c), “summary judgment is only proper ‘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 and that the Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 10 of 37 PageID: 513 6 moving party is entitled to a judgment as a matter of law.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986). It is not the role of the judge at the summary judgment stage to weigh the evidence or to evaluate its credibility, but to determine “whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 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). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. The court must draw all inferences in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, the court must accept the non-movant’s version as true. Pastore v. Bell Tel. Co. of Penna., 24 F. 3d 508, 512 (3d Cir.1994). The substantive law governing the dispute will determine which facts are material, and disputes over those facts “that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. A genuine issue of material fact for trial exists when the “party opposing the motion can adduce evidence which, when considered in light of that party’s burden of proof at trial, could be the basis for a jury finding in that party’s favor.” J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring). “In an employment discrimination case, the burden of persuasion on summary judgment remains unalterably with the employer as movant. The employer must persuade [the Court] that even if all of the inferences which could reasonably be drawn from the evidentiary materials of record were viewed in the light most favorable to the plaintiff, no Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 11 of 37 PageID: 514 7 reasonable jury could find in the plaintiff's favor.” Doe v. C.A.R.S Protection Plus, Inc., 527 F.3d 358, 362 (3d. 2008), citing Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200, 201–02 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). “This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Stewart v. Rutgers, The State University, 130 F.3d 426, 431 (3d Cir. 1997) citing Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162 (7th Cir.1994). “Summary judgment is to be used sparingly in employment discrimination cases…” Doe, at 369. Legal Argument I. THE NEW JERSEY WAGE AND HOUR LAW’S PROVISIONS REGARDING EQUAL PAY IS APPLICABLE TO STATE EMPLOYERS AND SOVERIGN IMMUNITY HAS BEEN WAIVED. Defendants’ first argument in their summary judgment brief is really two distinct arguments which they somewhat awkwardly attempt to combine. At the very beginning and end of their argument, they allege that they are not an “employer” under the applicable wage and hour law. In the middle, they argue that as a State entity they are immune from suit in this federal Court under the 11 Amendment of the United States Constitution. For ease of judicial review, Plaintiff will address each argument separately below. a. Stockton is an “employer” under the Equal Pay Act provisions of the New Jersey Wage and Hour Law. At page 4 and beginning again at page 6 of Defendants’ brief, they attempt to assert that Stockton University is not an “employer” under the New Jersey Wage and Hour Law. In support of this contention, Defendants cite to Allen v. Fauver, 167 N.J. 69, Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 12 of 37 PageID: 515 8 72 (2001). It is undisputed that Allen stands for proposition that the New Jersey Wage and Hour Law provisions related overtime pay do not apply to the State of New Jersey or its political subdivisions. In Allen, the Court was asked to interpret the applicability of the New Jersey Wage and Hour Law overtime provisions contained specifically at N.J.S.A. 34:11-56a1 to 56a30. Id. at 72. In doing so, the court interpreted the statutory definition “employer” applicable to the overtime section of the law contained at N.J.S.A. 56a1(g) as not applying to the State Department of Corrections and adopted the reasoning of the Appellate Division below by reference. Id. 72; citing Allen v. Fauver, 327 N.J. Super 14, 19-20, 21 (App. Div. 1999). Said definition provides in pertinent part: “Employer” includes any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee. N.J.S.A. 34:11-56a1(g). The Appellate Division found that the State “on its face” was not within that definition of “employer” and refused to expand the definition as requested by the Plaintiff in that case. Id. at 21. In the instant case, Plaintiff has not brought a claim for overtime wages under the New Jersey Wage and Hour Law but rather a claim for discrimination in wages under a separate and distinct section of the law, more commonly known as the New Jersey Equal Pay Act. N.J.S.A. 34:11-56.1 et. seq. See Plaintiff’s Complaint at Paragraphs 1, 3, 5 and 32. The New Jersey Equal Pay Act provisions of the New Jersey Wage and Hour Law have its own and a much broader definition of “employer” providing: “Employer” includes any person acting directly or indirectly in the interest, or as agent, of an employer in relation to an employee and further includes one or more individuals, partnerships, corporations, associations, legal representatives, trustees, trustees in bankruptcy, or receivers, but such term shall not include nonprofit hospital associations or corporations. Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 13 of 37 PageID: 516 9 N.J.S.A. 34:11-56.1(b). Under N.J.S.A. 1:1-2 the term “person” is defined as it is used throughout the New Jersey Statutes generally. That definition is as follows: The word “person” includes corporations, companies, associations, societies, firms, partnerships and joint stock companies as well as individuals, unless restricted by the context to an individual as distinguished from a corporate entity or specifically restricted to one or some of the above enumerated synonyms and, when used to designate the owner of property which may be the subject of an offense, includes this State, the United States, any other State of the United States as defined infra and any foreign country or government lawfully owning or possessing property within this State. (Emphasis Supplied) The same statutory section defines “property” as follows: The words “property” and “other property,” unless restricted or limited by the context to either real or personal property, includes both real and personal property. Moreover, New Jersey Courts have long held wages to be a form of personal property. See, State v. Union-Camp Paper Corp., 35 N.J. 390, 395 (1961) Importantly, the New Jersey Equal Pay Act definition first uses the term “person” to identify an “employer” and then goes on to specifically excluded those “persons” not included within the definition and does not exclude the State or its subsidiaries. In contrast, the overtime provision definition interpreted by the Court in Allen first identified the “employer” to be “any individual, partnership, association, corporation” and then modified the forgoing with “or any person or group of persons acting directly or indirectly in the interest of an employer.” The definitions are clearly different and meant Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 14 of 37 PageID: 517 10 to serve different purposes; the New Jersey Equal Pay Act being more inclusive than the other. Wherefore, Defendants’ assertion that they do not meet the definition of “employer” under the New Jersey Equal Pay Act provisions of the New Jersey Wage and Hour Law is legally wrong. Quite frankly, they have reviewed and cited the wrong definitional section and done an analysis under the wrong provisions of the New Jersey Wage and Hour Law. It is respectfully submitted that a proper statutory review of the definition of “employer” under the New Jersey Equal Pay Act indicates that it includes the State of New Jersey and it subsidiaries. On this point, It is further important to note that on at least one occasion, in an unpublished opinion, the New Jersey Appellate Division has applied the New Jersey Equal Pay Act provisions of the New Jersey Wage and Hour Law to a New Jersey political subdivision of the State. See Hesley v. City of Somers Point, 2006 WL 2482839 (App. Div. 2006) attached to the Certification of William G. Blaney at Exhibit T. Based upon the forgoing, it is respectfully submitted that Plaintiff’s instant motion should be denied. b. Defendants are not immune from this Court’s jurisdiction by virtue of the 11th Amendment because they waived that defense when they removed this case to Federal court. Defendants’ brief appears to assert sovereign immunity in two ways. First they assert that they have sovereign immunity based upon the misunderstanding of the applicable statutory definition of “employer” and claim that they have not waived their sovereign immunity from New Jersey Equal Pay Act. That issue is addressed above. Nevertheless, Defendants also appear to assert that this Court does not have jurisdiction Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 15 of 37 PageID: 518 11 over them because under the 11th Amendment they are immune from suit in federal court and they have not waived that immunity. Def. Br. beginning at p. 5; citing Bd. of Trs. of the Univ. of Ala. v. Garret, 531 U.S. 356, 363 (2001). To the extent Defendants attempt to raise 11th Amendment jurisdictional sovereign immunity argument, they apparently fail to realize that they waived the same by removing this matter from state to federal court. Garret and its progeny stand for the proposition that a state may not be sued in federal court without their consent. Id. at 363. Moreover, when giving that consent, it must be “express and unequivocal”. Lombardo v. PA Dept. of Public Welfare, 540 F.3d 190, 198 (3rd. 2008). One of the ways that a state can unequivocally express that consent is by removing an action brought against them in state court to the federal court. Id. at 198. Moreover, our United States Supreme Court has held that this waiver applies equally to both state and federal claims that are removed. See, Lapides v. Bd. of Reg. of the University System of Georgia, 535 U.S. 613 (2002) reasoning as follows: It would seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the “Judicial power of the United States” extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the “Judicial power of the United States” extends to the case at hand. And a Constitution that permitted States to follow their litigation interests by freely asserting both claims in the same case could generate seriously unfair results. Thus, it is not surprising that more than a century ago this Court indicated that a State's voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity. The Court subsequently held, in the context of a bankruptcy claim, that a State “waives any immunity ... respecting the adjudication of” a “claim” that it voluntarily files in federal court. And the Court has made clear in general that “where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment.” The Court has long accepted this statement of the law as valid, often citing with approval the cases embodying that principle. Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 16 of 37 PageID: 519 12 In this case, the State was brought involuntarily into the case as a defendant in the original state-court proceedings. But the State then voluntarily agreed to remove the case to federal court. In doing so, it voluntarily invoked the federal court's jurisdiction. And unless we are to abandon the general principle just stated, or unless there is something special about removal or about this case, the general legal principle requiring waiver ought to apply. Id. at 619-620. In the instant case the Plaintiff, Mr. Zulauf originally filed all of his claims in New Jersey State Court. (DSF at 1). It was Defendants who filed a notice of Removal and eventually removed this matter to the United States District Court for the District of New Jersey. (DSF at 5). In doing so, the above case law makes it clear that Defendants waived any claim they had to immunity from the jurisdiction of this Court under the 11th Amendment. Based upon the forgoing, it is respectfully submitted that Plaintiff’s instant motion should be denied. II. PLAINTIFF HAS SET FORTH A PRIMA FACIE CASE OF PAY DISCRIMINATION UNDER THE FEDERAL EQUAL PAY ACT AND DEFENDANT’S HAVE FAILED TO SHOW THAT THE PAY DIFFERENTIAL IS BASED UPON FACTORS OTHER THAN SEX. The Federal Equal Pay Act (EPA) prohibits employers from paying an employee at a rate less than that paid to employees of the opposite sex for equal work. See 29 U.S.C. § 206(d)(1). Under the Act, a plaintiff must first establish a prima facie case of wage discrimination. See Brinkley v. Harbour Recreation Club, 180 F.3d 598, 613 (4th Cir.1999) overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). To establish a prima facie case, a plaintiff must prove: (1) that the defendant employer pays different wages to employees of opposite sexes; (2) that these employees hold jobs Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 17 of 37 PageID: 520 13 that require equal skill, effort, and responsibility; and (3) that such jobs are performed under similar working conditions. Id. Once a plaintiff establishes a prima facie case, the burden of production and persuasion shifts to defendant employers to persuade the jury by a preponderance of the evidence that any existing wage differential resulted from one of four enumerated statutory defenses: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1) ; see also Brinkley, 180 F.3d at 613–14 . A. Plaintiff performs equal work to that of the female Head Lacrosse Coach, Kimberly Williams, who was classified as “full time” and paid substantially more. In their brief in support of the instant motion, Defendants apparently merge the second and third prong of an EPA prima facie case and allege that Plaintiff fails to meet both of these. In doing so, Defendants seek to select Plaintiff’s female comparator for him in the person of Stockton’s brand new female Head Lacrosse Coach, Cristina Maurizi, who began employment almost five (5) months after this suit was filed. (CSOF at 59). In fact, in his Complaint, Mr. Zulauf identified his female comparator at the time he filed the suit, as Kimberly Williams, the then female Head Lacrosse Coach. (CSOF at 52). Mr. Zulauf still maintains she is the appropriate comparator. See, Broadas v. O.K. Industries, Inc., 226 F.3d 937, 941-942 (8th Cir. 2000); holding that the use of non- immediate comparators is appropriate. This distinction is important insomuch as, since the time Mr. Zulauf initially complained about his pay, Defendants have attempted to increase the duties of head coaches it classifies as “full-time” and, during that same time, has also sought to decrease Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 18 of 37 PageID: 521 14 Mr. Zulauf’s ability to perform the same duties. (CSOF at 28, 30 & 31). Importantly, one of the decision makers in this case has testified as to her belief that this was done in direct retaliation for Mr. Zulauf’s complaints. (CSOF at 68). Moreover, a simple review of Defendants’ instant motion indicates that it has also served the purpose of a fairly transparent post hoc attempt to bolster their EPA defense. On the underlying issue of job comparability, the law is clear. Significantly, a plaintiff need not prove that their job is identical to a higher paid job; rather, the test is one of “substantial equality”. See Lovell v. BBNT Sols., LLC, 295 F. Supp. 2d 611, 618– 19 (E.D. Va. 2003); citing Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 291 (4th Cir.1974). Thus, application of the EPA depends not simply on job titles, descriptions, or classifications, but rather on the actual requirements, performance, and content of the jobs being compared. Brennan, 503 F.2d at 288. Under the EPA, therefore, plaintiff was required to select a specific comparator of the opposite sex, see Strag v. Bd. of Trustees, 55 F.3d 943, 950 (4th Cir.1995), and show that the plaintiff and their comparator shared a common core of tasks in their jobs. Lovell at 618, citing Hassman v. Valley Motors, Inc., 790 F.Supp. 564, 567 (D.Md.1992) (cited for this proposition with approval Dibble v. Regents of Univ. of Maryland System, 89 F.3d 828, 1996 WL 350019 (Table) (4th Cir.1996) (unpublished)).(Blaney Cert. at Ex. V) If the jobs to be compared have a common core of tasks, the inquiry turns on whether the differing or additional tasks require greater skill or responsibility. Cherrey v. Thompson Steel Co., 805 F.Supp. 1257, 1262 (D.Md.1992). Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 19 of 37 PageID: 522 15 On the issue of substantial equality of Ms. Williams’ and Mr. Zulauf’s core job tasks, it is important to examine the job duties by year. Ms. Williams was the Stockton women’s Head Lacrosse Coach for two full academic years, 2013-2014 and 2014-2015 and was replaced by Ms. Maurizi in September of 2015. (CSOF at 53 & 58). In its brief, Defendants argue that the factors that make Plaintiff’s job different than that of the female head lacrosse coach are: 1. The women’s full-time lacrosse coach was required to work a minimum seven hours a day, and thirty five hours a week; 2. The women’s full-time lacrosse coach has more job duties; 3. The women’s Lacrosse team has higher revenue; and 4. The women’s full-time lacrosse coach continued employment is dependent on winning. The discovery record indicates that some of these assertions are untrue, that others are insignificant, and that one is being asserted for the first time in this brief. Prior to beginning an EPA analysis, in is important to note that Ms. Yost, the University’s Associate Director of Intercollegiate Sports and the direct supervisor of all the coaches has already admitted that Mr. Zuluaf’s job responsibilities are “very similar” to that of the women’s “full-time” lacrosse coach and “substantially similar” to the all the other head coaches. (CSOF at 2). Defendants first assertion on the issue of “substantial equality” is that the time commitment for the position of women’s Head Lacrosse Coach differed from that of Mr. Zulauf. This is not supported by the record. Despite Defendants’ assertions, there is nothing in the record that indicates that Ms. William or Ms. Maurizi were required to Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 20 of 37 PageID: 523 16 work a set schedule of 5 days a week, 7 hours a day, 35 hours a week. Def. Br. at 9. Rather, the record indicates that full-time head coaches’ schedules were flexible dependent upon game scheduling, recruitment needs, and the like; so long as they averaged 35 hours a week. (CSOF at 25). Moreover, the record on this motion indicates that Mr. Zulauf regularly worked a full-time schedule of 35 hours or more per week and that full-time work was necessary to meet the demands of the job to Ms. Yost’s satisfaction. (CSOF at 4). Finally, even if one were to assume arguendo that the female Head Lacrosse Coaches worked more hours than Mr. Zulauf the difference would have to substantively change the jobs to be considered “substantially different”, and there is no evidence that it did. See, Lovell at 619 holding part-time employees may use full-time employees as EPA comparators as the inquiry is with regard to the actual duties performed5. Citing Hassman at 568. As to Defendants arguments as to alleged additional job duties, there is no evidence that the female head Lacrosse coach holds office hours “with her student athletes” from 8:30 to 4:30 during the week. Def. Br. at 11. Rather, the record reflects that Ms. Maurizi generally held office hours during that time frame during her off season; i.e. during her first several months of employment. There is no evidence in the record of Ms. William’s office hours or what they entailed. Nonetheless, the discovery record is undisputed that Mr. Zulauf similarly held office hours and met with his student athletes. 5 To the extent that Defendants attempt to compare discrete tasks by haphazardly listing a non exhaustive set of job duties performed by Mr. Zulauf and Ms. Maurizi and pretending that the same encompasses the entirety of either’s job or time spent on the job (Def. Br. at 9), the same is misleading and inappropriate as will be shown in the remainder of this brief. With regard to Mr. Zulauf, it ignores his own office hours, training requirements, recruiting, clinics, fund raising and various other job tasks. Moreover, there is no evidence in the record that Ms. Maurizi and Ms. Williams followed the same schedule or had identical duties. Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 21 of 37 PageID: 524 17 There is no evidence that Ms. Maurizi or Ms. Williams met with more student athletes or for longer periods of time. Rather, the record reflects that this would have been a greater burden on Mr. Zulauf as the men’s Lacrosse team had more student athletes. (Equity in Athletics Report 2012, 2013, 2014, 2015, (Blaney Cert. at Ex. Q and R Def. Cert. at Ex. F and G) . Defendants also argue that the women’s Head Lacrosse Coach had fundraising responsibilities that Mr. Zulauf did not. At his deposition, Defendants never questioned Mr. Zulauf regarding his fund raising responsibilities. In fact, Mr. Zulauf has the same fund raising responsibilities as the other head coaches. (CSOF at 9). Wherefore, this alleged difference is utter nonsense. Defendants next argue that the women’s Head Lacrosse Coaches are responsible for game management responsibilities. These game management responsibilities are part of the “additional duties” given out as part of Stockton’s alleged “restructuring” that occurred after Mr. Zulauf complained. They did not take effect until Ms. William’s second year as the head coach (2014-2015), they only occur in the off season, and are counted toward the coaches’ 35 hour work week. (CSOF at 31). Moreover, the addition of these “additional duties” coincided with Defendants’ removal of Mr. Zulauf’s duties as Ticket Sales Manger and Manager of Open Houses and the reassignment of these tasks to other head coaches as their “additional duties.” (CSOF at 62 & 63) Wherefore, Mr. Zulauf performed “additional duties” during the time period relative to this case and only stopped based upon their retaliatory removal. Importantly, Mr. Heck testified that these additional duties amounted to approximately an hour’s work per week on average. (CSOF at 30) Based upon the forgoing, it is respectfully submitted that the “additional Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 22 of 37 PageID: 525 18 duties” do not make the work in question “substantially different”. Brobst v. Columbus Servs. Int’l, 761 F.2d 148, 156 (3d Cir. 1985). Defendants next argue that Mr. Zulauf’s job differs from that of the female Head Lacrosse Coaches because the female coaches must attend weekly and quarterly meetings. Once again, the discovery record in this case indicates that this is a distinction without a difference insomuch as Mr. Zulauf is “encouraged” to attend the same meetings and does attend them. (CSOF at 10). Defendant’s next argue that the female Head Lacrosse Coaches jobs are “substantially different” because they have to work three commencements a year which occur over two 7 or 8 hours work day during in their regular schedule. (CSOF at 11). Notably, Mr. Zulauf attends the same commencements insomuch as his student athletes will be graduating. Once again, it is respectfully submitted this is not a “substantial difference”. Defendants continue by claiming that the female Head Lacrosse Coaches must organize and run a camp and Mr. Zulauf does not. In making this assertion, Defendants ignore the fact that Mr. Zulauf has run a summer lacrosse clinic at Stockton for the last 4 years. (CSOF at 12). Moreover, Mr. Folk’s testified that the full-time coaches requirement of running a camp could be satisfied by running a clinic. (CSOF at 12). Wherefore, this is yet another example of a distinction without a difference. Defendants next argue that a “substantial difference” exists because the female Head Lacrosse Coaches are required to serve on committees. The discovery record reflects that prior to complaining Mr. Zulauf sat on at least one committee. (CSOF at 13). The discovery record further indicates that participating in a committee encompasses Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 23 of 37 PageID: 526 19 about 3-10 hours a year and that while all full-time head coaches are assigned to committees their direct supervisor is unsure whether they all participate in them. (CSOF at 38 & 39). As such, it is respectfully submitted that the cited committee work does not amount to a “substantial difference”. Defendants’ brief goes on to argue that the revenue generated by the sports team amounts to a substantial difference. There is nothing in the record to reflect how these revenues were reached or what they are comprised of. Moreover, there is no testimony offered to indicate that this has anything to do with the coach or his/her duties, or that the decision makers used this criteria in setting pay. Additionally, there would be no way that it could have had an impact on the pay differential between Mr. Zulauf and Ms. Williams insomuch as there where no women’s lacrosse revenues at the time Ms. Williams was hired at a pay substantially more than that of Mr. Zulauf. Defendants’ final argument against “substantial equality” is an assertion that the number of team wins impacts the retention of the women’s team coaches and not Mr. Zulauf. Once again there is no support for this contention in the discovery record. Defendant’s are comparing apples to oranges. Defendants argue that there were years early in his career that Mr. Zulauf’s winning percentage was below .500. A team’s winning percentage does not equate to their conference rating. Conference rating is determined by wins and or losses within the conference. Both Stockton’s women’s and men’s lacrosse teams play teams outside their conference. Wins or losses against out-of- conference teams effect the team’s winning percentage but not their conference standing. The discovery record and readily available conference records reflects that the women’s Head Lacrosse Coach has been repeatedly retained in a seasons where her team’s Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 24 of 37 PageID: 527 20 performance was not in the top half of the NJAC conference6. (CSOF at 14). In contrast, the discovery record reflects that Mr. Zulauf’s continued retention was questioned early in his career at Stockton based upon his ability to produce a wins7. In fact, this is the only evidence in the record of anyone having their job threatened because of team performance. As such, defendants’ contention that the provision in the female Head Lacrosse Coaches’ contract that they be in the top half of the NJAC conference is a “substantial difference” between the jobs is also without merit. Given the forgoing, it is respectfully submitted that the discovery record reveals more than ample facts from which a reasonable fact finder could, if not should, determine that the jobs in question are and have been “substantially equal”. Wherefore, Plaintiff respectfully request that Defendant’s instant motion be denied. B. The complained of pay differential was NOT based upon factors other than sex. Once Plaintiff shows a pay differential between a comparator of the opposite sex for substantially equal work under the EPA, the burden of production and persuasion shifts to the employer to show that one of the enumerated statutory defenses apply. Lovell at 618. Realizing that none of the specific statutory defenses apply Defendants attempt to use the statutory ‘catch all’ of “a differential based on any other factor other than sex.” 6 Stockton’s women’s Lacrosse Team has never been in the top half of the NJAC conference. See, www.njacsports.com 7 On this point is important to note that Mr. Zulauf was the Skyline Conference’s Coach of the year in 2015. (CSOF at 16). Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 25 of 37 PageID: 528 21 In this regard, Defendants assert that the “University created the women’s lacrosse coaching position as a full-time position to ensure the program’s long-term viability and increase female student participation.” Def. Br. at 13. Notably, there is no cite to the discovery record in support of this proposition. In fact, the discovery record indicates something much different. At his deposition, Mr. Folk’s the ostensible decision maker testified that the female Head Lacrosse Coach was made full-time because of the value he wanted to place upon the sport, the expectation of overall success and “trying to balance out our staff alignment.” (CSOF at 54). He further testified that the ‘balancing out’ he had mentioned was an attempt to equalize the salaries of male sport coaches and female sport coaches for the purpose of Stockton’s Equity in Athletics Report. (CSOF at 54). The discovery record further indicates that prior to making the decision to hire Ms. Williams full-time, Mr. Zulauf raised the issue of his part-time status. Mr. Folks told Mr. Zulauf that he cannot be classified as a “full-time” coach because of Title IX and because he was a male. He further told Mr. Zulauf if he was a female he could be hired under a “full-time” classification. Mr. Folks claimed that because Stockton classified other coaches who were men as “full-time” they hurt Mr. Zulauf’s chances of being classified as “full-time”. Mr. Folks told Mr. Zulauf that Stockton would have to hire more women as “full-time” coaches before he could hire Plaintiff in a “full-time” classification. (CSOF at 55). The aforementioned evidences Mr. Folk’s and Stockton’s attempt to achieve a “zero proportionality” model with regard to coaches’ salaries. (CSOF at 51). Mr. Folks inherited a coaching staff where full-time male coaches of male sports on average made Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 26 of 37 PageID: 529 22 more than full-time male coaches of female sports. (CSOF at 17). Full-time female coaches of female sports earned even less. (CSOF at 83-86). This created two problems. First, on average, full-time coaches of female sports were underpaid when compared to full-time coaches of male sports and, second on average, full-time female coaches were underpaid when compared to all male coaches. Rather than correct this problem, and raise the salaries of female coaches and the coaches of female sports, Mr. Folks and Stockton have attempted to statically hide this fact by misclassifying plaintiff and other male employees as part-time and drastically underpaying them to deflate the University’s overall male coaching salary numbers. They were able to do this through a loophole in the federal Equity in Athletics Report, which allows the aggregation of full-time, and part time coaches’ salaries. (Def. Exhibits F and G, Blaney Cert. at Exhibits Q and R) In fact, the University’s Equity in Athletics Reports indicates fairly comparable pay between coaches of male sports and female sports when in reality full-time male coaches and full- time male coaches of male sports earn disproportionally more. (Def. Exhibits F and G, Blaney Cert. at Exhibits Q and R) The end result is discrimination in the pay of newer male coaches based upon their sex. In their brief, Defendants go through a lengthy discussion of Title IX and its requirements of equal opportunities to the student body based upon gender. What they fail to mention is that Title IX does not set coaches salaries or deal with discrimination in coaches’ pay. Moreover, Title IX does not mandate which sports have full-time coaches and which have part-time coaches. Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 27 of 37 PageID: 530 23 Federal financial assistance.” 20 U.S.C.A. § 1681(a) As a private institution that receives federal financial assistance, Stockton is required to comply with Title IX. Importantly, Title IX also specifies that its prohibition against gender discrimination shall not “be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist” between the total number or percentage of persons of that sex participating in any federally supported program or activity, and “the total number or percentage of persons of that sex in any community, State, section, or other area.” 20 U.S.C.A. § 1681(b). Subsection (b) also provides, however, that it “shall not be construed to prevent the consideration in any ... proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.” Id. See, also Cohen v. Brown Univ., 101 F.3d 155, 164 (1st Cir. 1996). Defendants cite to Title IX for the proposition that a minor discrepancy in the number of female participants in Stockton’s sports program between male and female athletes motivated the addition of the woman’s lacrosse program. Even if this were true, it does not explain why Stockton classified that team’s coach as full-time and has and continues to pay its coach more than it pays men’s team’s coach for performing equal work. Moreover, there is no evidence in the record that this coaching pay decision was meant to bolster participation in the women’s program8. Rather, the record reflects it is Stockton’s attempt to “fudge” the statistical pay numbers through sex based decisions. 8 In fact, simply adding the team regardless of the coach’s status will minimally bolstered the schools participation of female athletes. (Compare Def. Exhibits F, Blaney Cert. at Exhibits Q) In the instant case it bolstered participation by 2%. Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 28 of 37 PageID: 531 24 Given the foregoing, it is respectfully submitted that Defendant’s claims that a factors other than sex motivated the pay discrepancy in this case are without merit and their instant motion should therefore be denied9. III. PLAINTIFF HAS SET FORTH A VIABLE CLAIM FOR SEX DISCRIMINATION UNDER THE LAD At point three of their brief, Defendants argue that Mr. Zulauf has not set forth a viable claim for LAD discrimination. The method in which LAD pay discrimination claim can be proven was set forth the New Jersey Supreme Court in Grigoletti v. Ortho Pharmaceuticals, 188 N.J. 89 (1990). In Ortho the Court determined that claims of pay discrimination should first be analyzed under the EPA analysis and if that standard is not met then under the less demanding standard of a Title VII for sex discrimination. The Court reasoned that this would allow plaintiffs the benefit of the EPA’s more favorable burden shifting if they could prove that the jobs at issue were “substantially equal”, but, if unsuccessful still allow them to attempt to prove their claim under Title VII’s less favorable burden shifting approach if the jobs were only “similar”. Id. at 110. A. Title VII Analysis. In the section above, Plaintiff addressed the EPA analysis and for the sake of judicial economy asserts that the same arguments equally apply herein. The question therefore is what VII analysis is applicable. Defendants argue for the burden shifting 9 To the extent Defendants argue plaintiff could have applied for the female coach’s position, the same is not a defense to the claim he should receive equal pay for equal work. Also note that he was not asked to apply for the position as Ms. Williams was. (CSOF at 19). Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 29 of 37 PageID: 532 25 analysis established in McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglass Burden-Shifting Analysis is not applicable or necessary where there is direct evidence of discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 1787-88, 104 L. Ed.2d 268, 284 (1989). Where the employee is able to produce direct evidence that the employee’s membership in a protected class was involved in adverse decision making process, the burden of proof automatically shifts to the employer to produce evidence sufficient to show that it would have made the same decision if illegal bias had played no role in the employment decision. In sum, the employer is only left with an affirmative defense on the question of causation in fact. Id. at 244-46, 109 S.Ct. at 1787-88, 104 L. Ed.2d at 284-85; Fleming v. Correctional Healthcare Solutions, Inc., 164 N.J. 90, 100 (2000). This standard for liability is often called the Price Waterhouse Analysis or “mixed motive” framework. As to what is “direct evidence” of discrimination in an LAD case, the New Jersey Supreme Court and other lower courts have provided guidance. “Stray remarks” unrelated to the decisional process are not considered sufficiently “direct evidence” of discrimination. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 208 (1999) (citing Price Waterhouse, supra, 490 U.S. at 277, 109 S.Ct. at 1804-05, 104 L. Ed.2d at 305 (O’Connor, J., concurring in judgment)). “Unless there is evidence which can be fairly said to directly reflect unlawful bias, the case should be treated as a pretext case.” Jackson v. Georgia-Pacific Corp., 296 N.J.Super. 1, 19 (App.Div.1996), certif. denied, 149 N.J. 141 (1997). At the very least, the employee must present “circumstantial evidence ‘of conduct or statements by persons involved in the decision making process that may be viewed as directly reflecting the alleged discriminatory attitude.’ “ Ibid. Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 30 of 37 PageID: 533 26 (citation omitted); accord McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 528 (2003). “[A] court must consider whether a statement made by a decision-maker associated with the decision making process actually bore on the employment decision at issue and communicated proscribed animus.” McDevitt, supra, 175 N.J. at 528. Direct evidence of discrimination is evidence “that an employer placed substantial reliance on a proscribed discriminatory factor in making its decision to take the adverse employment action[.]” McDevitt, supra, 175 N.J. at 527, 816 A.2d 164 (citing Price Waterhouse, supra, 490 U.S. at 244–45, 109 S.Ct. at 1787–88, 104 L.Ed.2d at 284).5 “The evidence produced must, if true, demonstrate not only a hostility toward members of the employee's class, but also a direct causal connection between that hostility and the challenged employment decision.” Bergen Commercial Bank, supra, 157 N.J. at 208, 723 A.2d 944; see also McDevitt, supra, 175 N.J. at 528, 816 A.2d 164. In this case, the employment decision is Stockton’s continuing efforts to misclassify Mr. Zuluaf as a part-time employee and pay him less than his female co- workers for equal work. The direct evidence of said discrimination is Mr. Folks comments to Mr. Zulauf that he cannot be classified as a “full-time” coach because of Title IX and because he was a male. In that conversation, he told Mr. Zulauf that if he was a female he could be hired under a “full-time” classification. Mr. Folks also claimed that because Stockton classified other coaches who were men as “full-time” they hurt Mr. Zulauf’s chances of being classified as “full-time”. Mr. Folks told Mr. Zulauf that Stockton would have to hire more women as “full-time” coaches before he could hire him in a “full-time” classification. (CSOF at 55). Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 31 of 37 PageID: 534 27 Moreover, even if this were not a direct evidence case and an analysis under McDonnell Douglas were required, the aforementioned comments by Mr. Folks, a decision maker, along with the financial disparities in pay and his use of the “zero proportionality” model discussed earlier in this brief should satisfy Plaintiff’s burden on summary judgment that Defendants are the “unusual” employer who discriminates against the majority. Bergen Commer. Bank v. Sisler, 157 N.J. 188, 218 (1999). Since this is the only part of Plaintiff’s prima facie case Defendants take issue with, the burden under McDonnell Douglass would then shift to Defendants to articulate a legitimate discriminatory reason for the pay discrepancy. In their brief in support of the instant motion, Defendants offer nothing new in terms of their alleged legitimate business reason for the pay discrepancy. Rather, they simply rehash their arguments under the EPA analysis. Those arguments fail here for the same reasons expressed earlier in this brief as to why they fail under the EPA. As such, for the sake of judicial economy, Plaintiff incorporates his prior responses herein by reference. Wherefore, should this Court determine that the men’s Head Lacrosse Coach job duties are not “substantially equal” to that of the female Head Lacrosse Coach for EPA purposes, it is respectfully submitted that the jobs are at least “similar” and Plaintiff’s LAD sex discrimination should proceed either as a direct evidence case or under the McDonnell Douglass burden shifting approach. IV. PLAINTIFF HAS SET FORTH A VIABLE CLAIM OF LAD RETALIATION. At point IV of their brief in support of the instant motion, Defendants argue that Plaintiff has not set forth a viable claim of LAD retaliation. In order to establish a prima Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 32 of 37 PageID: 535 28 facie claim for retaliation under the LAD, the plaintiff must demonstrate: (1) that he engaged in protected activity; (2) the activity was known to the employer; (3) plaintiff suffered an adverse employment decision; and (4) there existed a causal link between the protected activity and the adverse employment action. Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995). Once a plaintiff establishes a prima facie case of retaliation, the defendants must “articulate a legitimate, non-retaliatory reason for the decision.” Romano v. Brown & Williamson Tobacco Corp., 284 N.J.Super. 543, 549 (App.Div.1995). Next, “the plaintiff must come forward with evidence of a discriminatory motive of the employer, and demonstrate that the legitimate reason was merely a pretext for the underlying discriminatory motive.” Ibid. Defendant’s brief appears to concede that Plaintiff has met its initial burden under the for a retaliation case under the LAD. Instead, Defendants assert that they have articulated a valid non-discriminatory reason for their actions for removing the Manager of Open Houses and Ticket Sales Manager positions from Mr. Zulauf after he complained. Their argument on this point is rather circular given the equal pay nature of the underlying claim. In essence they argue that they removed these job duties from Mr. Zulauf and gave them to “full-time” coaches without additional compensation to avoid paying Mr. Zulauf to do these tasks. Def. Br. at 29-30. They then argue that “[t]here is no evidence in the record that this decision was a pretext for discrimination.” Def. Br. at 30. This assertion could not be further from the truth. The deposition testimony of Stockton’s own Associate Director of Intercollegiate Sports, Ms. Yost, one of the three management representatives who participated in the alleged restructuring, indicated that that she believed that the removal of these jobs from Mr. Zulauf was retaliatory and based Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 33 of 37 PageID: 536 29 upon his complaints of pay inequities. (CSOF at 68). She testified that the reassignment of Mr. Zulauf’s duties as Manager of Ticket Sales was not even discussed by the reorganization committee but rather was the sole decision of Mr. Folks. (RDSOF at 156). She further indicated that the issue of assigning additional duties to full-time coaches did not even come up until after Mr. Zulauf raised his complaint. (CSOF at 64). See, Jackson v. Trump Entertainment Resorts, Inc., 149 F. Supp. 3d. 502 (D.N.J. 2015), holding temporal proximity generally satisfies plaintiff’s burden. However, this is not a case of temporal proximity alone. Both Ms. Yost and Stockton’s Assistant Director of School Athletic Administration, Ms. Brooke Rollman, testified that Mr. Yost engaged in additional acts designed to make the work environment unpleasant, if not hostile for Mr. Zulauf. (CSOF at 69). Given the forgoing, it is respectfully submitted that Plaintiff has set forth a viable claim for LAD retaliation and Defendant’s instant motion should be denied. V. MR. FOLKS AIDED AND ABETTED THE COMPLAINED OF DISCRIMINATORY CONDUCT. At point five of their brief, Defendants allege that Mr. Folks is entitled to Summary Judgment on Plaintiff’s LAD aider and abettor claims. Defendant’s first argument on this point is that there is no LAD liability for sex discrimination or retaliation so there can be no aider or abettor. This argument is fundamentally flawed because there is both sex discrimination and retaliation liability under the LAD for the same reasons set previously set forth under sections III and IV of this brief. Defendants’ second argument against aider and abettor LAD liability contends that Mr. Folks did not engage in the discrimination and even if did, he cannot be held Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 34 of 37 PageID: 537 30 liable for his own acts of discrimination as an aider and abettor. This position does not comport with the law or the facts. Suffice it to say that the discovery record is clear that Mr. Folks was responsible for setting and administrating the discriminatory pay practices of which Mr. Zulauf complains, it is also clear that he is the architect of the complained of retaliation discussed earlier in this brief. It further cannot be disputed that as the Director of Athletics, Mr. Folks was a supervisory employee of Stockton University. (DSF at 8) Under New Jersey Law, a supervisory employee has an affirmative duty to stop LAD discrimination. When a supervisory employee engages in affirmative acts of discrimination or is willfully indifferent to the discriminatory acts of others they violate that duty. Supervisors therefore can aid and abet their own conduct by failing to comport with their affirmative duty to stop their own discriminatory conduct in violation of the LAD. While recognized as an “awkward” theory of liability, it has remained good law since first espoused by the Third Circuit in Hurley v. Atlantic City Police Dept’, 174 F.3d 95 (3d Cir. 1999)10, See also, Ivan v. County of Middlesex, 612 F.Supp. 2d 546, at fn. 1 (D.N.J. 2009), and Regis v. International Paper Co., 2013 WL 5410700 (D.N.J. 2013) Attached to Blaney Cert as Exhibit U. Based upon the forgoing it is respectfully submitted that Plaintiff has set forth a viable claim of aider and abettor liability against Mr. Folks and therefore the instant motion should be denied. 10 Abrogated on other grounds by Potente v. County of Hudson, 187 N.J. 103, 114 (2006); applying state law. Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 35 of 37 PageID: 538 31 VI. PLAINTIFF HAS SET FORTH A VIABLE CLAIM FOR PUNITIVE DAMAGES Defendant’s briefs final argument is that Plaintiff has not met the heightened standard for punitive damages under the LAD. Plaintiff correctly states the law; which requires a LAD plaintiff to show actual participation in or willful indifference to the wrongful conduct by a member of upper management and proof that the offending conduct is “especially egregious”. Rendine v. Pantzer, 141 N.J. 292, 314 (1995) To be “especially egregious” the conduct must be wantonly reckless or malicious, evil-minded act; deliberate acts or omissions with knowledge of a high degree of probability of harm and reckless indifference to the consequences; or actual malice. Id. Defendants assert that no such acts exist in this case. Plaintiff once again points to the fact that Defendants have continued to pay him unequally based upon the law and more importantly retaliated against him for complaining about it. In this regard the main actor is Stockton’s Director of Athletics, Lonnie Folks. Defendant’s brief does not dispute that Mr. Folks is a member of upper management. The discovery record is clear that he is responsible for the Athletics’ Department’s discriminatory pay practices and has continued the same after being made aware of their discriminatory nature with “knowledge of a high degree of probability of harm and reckless indifference to the consequences.” Moreover, his direct and deliberate acts of retaliation in removing Mr. Zulauf from his duties as Manager of Open Houses and Ticket Sales Manager and the more subtle actions described by Ms. Yost and Ms. Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 36 of 37 PageID: 539 32 Rollman amount to wantonly reckless or malicious, evil-minded act and actual malice. As such, it is respectfully submitted that Plaintiff has set forth a viable claim for punitive damages under the LAD and therefore the instant motion should be denied. Conclusion In the instant motion, Defendants have misstated and selectively cited the facts as well as ignored relevant case law in an effort to create convincing arguments where none truly exist. As detailed throughout this brief, the discovery record in this matter reveals that Plaintiff has viable causes of action under the New Jersey Equal Pay Act, the Federal Equal Pay Act and the New Jersey Law Against Discrimination which should survive summary judgment. For all the foregoing reasons, Plaintiff respectfully requests that Defendant’s instant motion for summary judgment be denied in its entirety. Respectfully Submitted, BY: S/ William G. Blaney WILLIAM G. BLANEY, ESQUIRE Blaney & Karavan, P.C. Attorneys for Plaintiff Kevin Zulauf Dated: August 1, 2016 Case 1:15-cv-03526-RMB-JS Document 17 Filed 08/01/16 Page 37 of 37 PageID: 540