BLODWEN BITSKO VS MAIN PHARMACY, INC & DENIS CAMPBELL
Case Date: 04/04/1994
Court: Superior Court of New Jersey
Docket No: none
SUPERIOR COURT OF NEW JERSEY
BLODWEN BITSKO,
Plaintiff-Appellant,
v.
MAIN PHARMACY, INC. and
Defendants-Respondents.
Argued November 6, 1995 - Decided April 4,
1996
Before Judges Skillman, P.G. Levy and Eichen.
On appeal from Superior Court, Law Division,
Monmouth County.
Carol F. Laskin argued the cause for appellant
(Ms. Laskin, on the brief).
James J. Carroll, III argued the cause for
respondents (Brown, Michael & Carroll, P.C.,
attorneys; Mr. Carroll, on the brief).
The opinion of the court was delivered by
EICHEN, J.A.D.
This is an employment discrimination case. Plaintiff, a
registered pharmacist, contends she suffered unlawful gender and
age discrimination because she was paid less than younger male
pharmacists performing comparable work. The appeal presents issues
under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to
-42 (LAD), concerning the proper methodology for determining gender
and age discrimination claims based on unequal pay when brought in
the same litigation.
The jury rendered a verdict in favor of defendants on both the
age and gender discrimination claims. The jury found "by the
preponderance of the evidence" that plaintiff was paid less than
the younger, male pharmacists "with substantially similar job
descriptions," but concluded that defendants had "a legitimate non-discriminatory reason" for the wage disparity. On this appeal,
plaintiff maintains the trial judge should have granted a directed
verdict in her favor as a matter of law at the close of plaintiff's
proofs, because defendants' purportedly "legitimate non-discriminatory reasons" amounted to no more than subjective
evaluations of plaintiff's performance which, she argues, are
legally insufficient as a basis for exempting defendants from the
equal pay requirements under the LAD. Plaintiff further asserts
that the judge's rejection of her motion for a directed verdict
inevitably led to further error in the form of improper evidentiary
rulings, jury instructions, and verdict sheets and, ultimately, to
the wrongful denial of her motions for judgment n.o.v. or a new
trial, from which she now appeals. We disagree and affirm.
under the LAD, a complainant "must show that an employer pays
different wages to employees of opposite sexes `for equal work on
jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions.'" Corning
Glass Works v. Brennan,
417 U.S. 188, 195,
94 S. Ct. 2223, 2228,
41 L. Ed.2d 1, 10 (1974) (quoting
29 U.S.C.A.
§206(d)(1)). See Grigoletti, supra, 118 N.J. at 102.
Once a complainant makes out such a prima facie case, the burden
then shifts to the employer to prove by the preponderance of the
evidence that the difference in pay is justified by one of four
affirmative defenses under the EPA: "(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
factor other than sex." Grigoletti, supra, 118 N.J. at 102-03
(quoting the EPA,
29 U.S.C.A.
§206(d)).
at 103, leaving the ultimate burden of proof on the complainant to
show age discrimination by the preponderance of the evidence. Id.
at 98.
LAD and that defendants' conduct amounted to a constructive
discharge.
betrayed," because she had considered Campbell a friend. Plaintiff
also testified that she was particularly shocked by the disparity
because she had never received any criticism of her work from
Campbell, only compliments. She further testified that she was
never put on any type of probation, reprimanded, or disciplined,
nor was she ever given advice or comments on improving productivity
or care during her tenure at Main Pharmacy. After learning of the
salary differential between herself and the younger, male
pharmacists, plaintiff decided to seek other employment and
obtained a pharmacist position at Thrift Drug, earning an
additional $10,000 per year. On February 10, 1989, she left her
employment at Main Pharmacy, claiming constructive discharge.
Thereafter, plaintiff filed the complaint culminating in this
appeal.
Campbell worked long hours in the store, frequently side-by-side with plaintiff and the other pharmacists, and thus had an
ample basis upon which to compare their performances. While the
results of Campbell's assessment of plaintiff were not communicated
to her, Campbell testified that this was because he believed
confrontation was not beneficial and that plaintiff was working to
the best of her ability. Explaining his management style, he
stated that
[W]hen people are chastised, "get that work
out," or "do this," or "do that" it just winds
up getting worse after a while. It doesn't
make them feel any better; and quite frankly,
I don't really feel any better doing it
either.
[S]he worked in a way that she wasn't aware of
... the other things that were going on around
her.... I mean the phone could ring, and if
she was doing a prescription ... she just
didn't answer it. People would ask her from
the front, did you do one for Mr. Jones? And
there would be no response. She did one thing
at a time.... She was not aware of the other
things around her.
The most important consideration would be the
overall performance of that individual, and
how that ... performance affected the economic
benefit of Main Pharmacy today, when we were
doing it, and also my perception of what that
effect would be down the road, a year, two
years, ten years, twenty years.
Well, the number of prescriptions that are
filled certainly have an economic benefit ...
that was one of the factors in deciding pay
raises.... It was just one of many factors
that went into the decision.
* * * [The time it took to fill a prescription] ... mattered as far as the customer service aspect and the benefit of the store was concerned.... [I]t was 10 or 15 minutes longer[.] [C]ertainly it affected the impact on the
store [b]ecause the customers would be less
satisfied.
[P]ay raises were granted to employees based
on, but not limited to, the following factors:
The financial condition of Main Pharmacy,
taking into consideration the positive cash-flow from the yearly profit of the
corporation; the law of supply and demand,
with regard to regional availability of
registered pharmacists; the competition for
registered pharmacists[;] ... the ability of
the employee to generate income and profit for
the corporation, which would include their
ability to develop customer relationships that
provide for repeat sales and provide the
corporation with an opportunity to grow and
prosper; the productivity of the employee,
based on his or her overall performance.
In the case of a pharmacist this would include
but not be limited to: filling prescriptions;
individual personal counseling of customers
regarding their prescriptions; telephone
communication skills; development of long term
customer relations, particularly on a
person[al] basis, where a customer's name and
face are associated; development of a good
relationship with the physicians[, and] ...
the long-term potential of any employee to
develop ... managerial skills.
discrimination" (the fourth defense under EPA), means "any other
reasonable, legitimate factor that would lead him to believe that
that is a credible reason, a credible decision based upon something
other than sexual discrimination." There was no objection to the
form of the judge's explanation. On the age-based claim, the judge
explained that defendants' burden was to come forward with "some
reasonable articulated reason so as to justify the wage disparity."
The essential thrust of plaintiff's argument throughout the
trial and on the motions for a directed verdict, judgment n.o.v.
and for a new trial, as well as on this appeal, relates to the
judge's interpretation of the fourth affirmative defense, "a
differential based on any factor other than sex." According to
plaintiff, the trial judge erred by referring to the "factor other
than sex" as a "legitimate non-discriminatory reason" and by
determining that an employer can defeat liability for
discriminating against an older female employee performing
comparable work by merely presenting "ex post facto gut feelings of
subjective merit," a defense, plaintiff argues, that is "incapable
of being rebutted." (emphasis omitted) According to plaintiff,
the federal court decisions under the EPA reveal that the fourth
affirmative defense to a gender-based discrimination claim should
not be allowed to serve as "an escape clause ... permit[ting] a
defense of subjective merit" because such lenity will result in an
evisceration of this State's strong public policy against gender
discrimination in unequal pay cases, relying on Grigoletti, supra,
118 N.J. 89.
with some aspect of her work. Therefore, she argued, Campbell's
testimony that he was not as satisfied with her work effort as
compared with the male pharmacists was not legally sufficient
evidence to justify an exemption from the equal pay requirement.
Likewise, she argued the testimony of the co-workers was not
relevant because Campbell admitted he had never discussed
plaintiff's performance with them nor they with him. the reasons for the differential salary paid to plaintiff as compared with the younger male pharmacists, for purposes of this case, we perceive the "any factor other than sex" exemption from the requirement of equal pay under the EPA to have substantially the same meaning as "a legitimate non-discriminatory reason" under Title VII. See Grigoletti, supra, 118 N.J. at 110. In Grigoletti, our Supreme Court observed that "[i]n the federal context, it has ... been recognized that `Title VII and the Equal Pay Act are to be read in pari materia and neither should be interpreted in a manner that would undermine the other.'" Id. at 106 (quoting Parker v. Burnley, 692 F. Supp. 1138, 1150 (N.D. Ga. 1988)). The Court indicated that the EPA's fourth affirmative defense had actually been incorporated through the Bennett AmendmentSee footnote 4 into Title VII such that any violation of one statute is also a violation of the other. Id. at 107 (citing Denny v. Westfield, 669 F. Supp. 1146, 1155-56 (D. Mass. 1987); 29 C.F.R. § 1620.27). In this regard, the Grigoletti Court acknowledged the "need to harmonize [the] LAD with Title VII and [as a result] ... borrowed heavily from the federal experience to assure some reasonable degree of symmetry and
uniformity." Id. at 107. See Aldrich v. Randolph Cent. School
Dist.,
963 F.2d 520 (2d Cir. 1992) (observing that "courts have
required employers to provide a legitimate business reason for the
purported factor-other-than-sex" in applying both the EPA and Title
VII); EEOC v. J.C. Penney Co.,
843 F.2d 249, 253 (6th Cir. 1988)
("[t]he factor other than sex defense does not include literally
any other factor, but a factor that, at a minimum, was adopted for
a legitimate business reason.").See footnote 5 Thus, we are satisfied the trial
judge's use of the term "legitimate factor" in the jury charge and
"legitimate non-discriminatory reason" on the verdict sheets
instead of "any factor other than sex" was permissible. In Equal Employment Opportunity Commission v. Aetna Ins. Co., 616 F.2d 719, 723, 726 (4th Cir. 1980), the government expressed its concern that Aetna Insurance Company had made a subjective decision to pay an existing, female employee lower wages than a new male hire who would be performing essentially comparable work. The new employee had been brought in because of his supervisory and managerial potential with the expectation he would expand Aetna's business in a different field of insurance. Id. at 726. The Fourth Circuit concluded that substantial reasons, unrelated to gender, existed for the pay differential and, therefore, the decision "rested on a more solid foundation than mere subjectivity." Ibid. In so concluding, the court referred to the legislative history of the EPA, noting that the "any factor other than sex" defense was a "broad general exception," which included "differences based on experience, training, or ability." Id. at 725 (citing H.R. Rep. No. 309, 88th Cong., 1st Sess. 3, reprinted in 1963 U.S.C.C.A.N., 687, 689). See also Hamburg, supra note 7, at 1095 n.76 (discussing legislative history of EPA). Likewise, in Schwartz v. Florida, 954 F.2d 620, 623-24 (11th Cir. 1991), the Eleventh Circuit recognized that "[s]o long as subjective business justifications, not part of a merit system, are not overly subjective so as to render them incapable of being rebutted, they are legitimate factors to be considered." The Eleventh Circuit additionally observed in Morgado v. Birmingham-Jefferson Cty. Civ. Defense Corps, 706 F.2d 1184, 1189 (11th Cir. 1983), that "[t]he facts necessary to establish that a wage differential has a basis
in a factor other than sex are peculiarly within the knowledge of
the employer[,] ... [who] will be expected to show the necessary
facts." See also Brock v. Georgia Southwestern College, supra, 765
F.
2d at 1036 (observing that for allegations of "superior
qualities" to qualify as "factors other than sex," employer must at
least explain the qualities). The principles we glean from these
cases is that an employer must explain his reasons for the wage
disparity, and to qualify as objective evidence in support of those
reasons, trial testimony concerning the employer's observations of
the employee's performance is competent evidence upon which a
factfinder may rely to determine whether or not the reasons
articulated by the employer are based on "factor[s] other than
sex." Objective evidence is not limited to prior articulated
criteria for the business judgment resulting in unequal pay for
equal work.
evidence to demonstrate his disparate treatment of plaintiff as
based on "factor[s] other than sex." Campbell adequately explained
the importance of these skills to operating a profitable pharmacy,
and we cannot say that his conclusions about plaintiff's
performance were based only on his "personal, ... ill-informed
judgments."See footnote 6 See ibid.
the verdict sheets which focused the jurors on the applicable law
and the burdens of proof in the case. These observations aside,
however, we are constrained to remark that although pattern charges
are often helpful to trial courts in explaining to the jury how it
should apply the legal principles to the facts of a case, it is not
always sufficient to merely read the principles and define the
relevant terms. Here, it would have been better had the judge
related the law to the facts. We recognize, of course, that a
judge is not obligated to comment on the evidence, Borowicz v.
Hood,
87 N.J. Super. 418, 423-24 (App. Div.), certif. denied,
45 N.J. 298 (1965). Nonetheless, the better practice in complex cases
is to discuss the law in the context of the material facts of the
case, reviewing the evidence, where appropriate. See State v.
Concepcion,
111 N.J. 373, 379 (1988). Such comments can assist the
jury in reaching correct results and are appropriate provided they
are not made to control the jury's findings. Borowicz v. Hood,
supra, 87 N.J. Super. at 423. Notwithstanding, in the
circumstances of this case, the omission of judicial comment on the
evidence neither denied plaintiff a fair trial nor resulted in a
miscarriage of justice. Ultimately, it was for the jury to
determine the credibility of Campbell's testimony regarding his
reasons for the wage disparity, and it clearly resolved that issue
in defendants' favor.
pharmacists. The judge determined the evidence was not relevant to
the issues raised in the case. The trial judge's discretion in
excluding evidence is broad and should stand unless so wide of the
mark that it results in a manifest denial of justice. Ratner v.
General Motors Corp.,
241 N.J. Super. 197, 202 (App. Div. 1990).
We perceive no mistake in the exercise of that discretion.
Footnote: 1 The record is unclear concerning the exact wage
differentials for the period in question. We present the 1988
salary figures merely to demonstrate generally the nature of the
disparity.
Footnote: 2 The parties agree generally that the first three affirmative
defenses which require an employer to demonstrate a "system" did
not apply because Campbell admitted defendants did not employ a
seniority, merit or production system in making salary decisions.
The record reflects, however, the judge included all four
affirmative defenses on the verdict sheet with respect to the
gender-based claim because he wanted the jury to understand that
"the general concepts of merit value and ... production ... could
be construed as a valid business, legitimate reason for Mr.
Campbell making these decisions." We perceive no error in this
ruling capable of producing an unjust result.
Footnote: 3 Plaintiff contends on appeal she did not present rebuttal
evidence because defendants' evidence was irrelevant as coming
"after the fact" and, therefore, not probative of "any factor other
than sex." For the reasons set forth in this opinion, that
argument is without merit.
Footnote: 4 The Bennett Amendment reads as follows:
It shall not be an unlawful employment
practice under this subchapter for any
employer to differentiate upon the basis of
sex in determining the amount of the wages or
compensation paid or to be paid to employees
of such employer if such differentiation is
authorized by the provisions of section 206(d)
of Title 29. [ 42 U.S.C.A. §2000e-2(h), quoted in Grigoletti, supra, 118 N.J. at 103.] Footnote: 5 The United States Supreme Court acknowledged the importance of "deferr[ing] to industry practice in construing the [EPA] because it recognized that a statute which is not `meaningful to employers and workable across the broad range of industries covered by the Act' could not be complied with by those against whom it was to be enforced." Jeanne M. Hamburg, Note, When Prior Pay Isn't Equal Pay: A Proposed Standard for the Identification of "Factors Other than Sex" under the Equal Pay Act, 89 Colum. L. Rev. 1085, 1094-97 (1986) (quoting Corning Glass Works v. Brennan, supra, 417 U.S. at 198-99). Footnote: 6 As for Campbell's additional reason that market competition justified the differential in pay, defendants did not furnish an explanation for the purported market disparity between salaries paid to male and female pharmacists and, therefore, we do not consider such factor as a "legitimate reason." We note also that such a "market force" defense is generally disfavored. See Brock v. Georgia Southwestern College,supra, 765 F. 2d at 1037. Footnote: 7 The fleeting reference to Campbell's own beliefs concerning the reason he gave for the pay disparity did not have the clear capacity to produce an unjust result. R. 2:10-2.
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