Opinion
DOCKET NO. A-0706-14T2
02-25-2016
REIKO FUJITA, Plaintiff-Appellant, v. KINGO YAMANASHI, and YAMA SEAFOOD, INC., a New York Corporation, Defendants-Respondents.
Raquel Romero argued the cause for appellant. Juan C. Fernandez argued the cause for respondents (O'Toole Fernandez Weiner Van Lieu, LLC, attorneys; Mr. Fernandez, of counsel and on the brief; Kenneth B. Goodman, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3798-12. Raquel Romero argued the cause for appellant. Juan C. Fernandez argued the cause for respondents (O'Toole Fernandez Weiner Van Lieu, LLC, attorneys; Mr. Fernandez, of counsel and on the brief; Kenneth B. Goodman, on the brief). PER CURIAM
Plaintiff Reiko Fujita appeals from orders dismissing her various employment discrimination claims against defendants, Yama Seafood, Inc. (Yama) and Kingo Yamanashi. The majority, and the most serious, of the alleged conduct is outside of the statute of limitations, and plaintiff cannot show a continuing violation sufficient to overcome that bar. We affirm.
I.
The following facts are drawn primarily from the parties' undisputed statements of material fact, and from other evidence favorable to plaintiff. Plaintiff was employed by Yama from November 1988 until August 2011. Yamanashi is the founder and chairperson of Yama. He was also president of Yama during plaintiff's employment, except between approximately 2007 and 2011.
Plaintiff worked in administration for the first five or six years of her employment at Yama. She noted that during that time Yamanashi "ha[d] a foul mouth sometimes," and that he was "a little bit rough on the edges. But, having said that, yes, he did respect me." She also observed Yamanashi treated everyone in the same manner.
Around 1994, plaintiff was moved to the fresh fish department and received a raise. She worked on customer orders and assisted in purchasing fish from Japan.
Around 2006, Yamanashi recommended plaintiff for a promotion to manager of the fresh fish department, and asked her to become the manager with an increase in pay. She was promoted because her male predecessor made too many mistakes as manager. After her promotion, her male predecessor remained in the fresh fish department, working under her. Plaintiff testified that, at the time Yamanashi recommended her for the promotion, Yamanashi "kind of said" to her that, "[t]he way you think is almost like a man, you're very decisive like a man." She testified she was not offended by his statement at that time, as plaintiff and Yamanashi had worked together without issue.
In or around 2007, Mr. Muratomi took over as president, and Yamanashi played a less active role in running Yama. Plaintiff and Yamanashi played golf together between ten and twenty times from 2008 to 2010. In 2009 or 2010, plaintiff and two other employees were selected to join Yama's executive training program. However, plaintiff chose to leave the program after about a year.
On March 18, 2010, Yamanashi told plaintiff: "You are already sixty years old. Why are you here at this company now? You are such an old woman. You should not be working here." Yamanashi added: "Leave this company right now. Take your stuff and don't leave anything here." Later in March 2010, when Yamanashi heard that plaintiff told coworkers he was angry with her, he called her into the office and said: "You're sixty. Gather your things and leave." However, plaintiff was not actually terminated at either time and continued to work for Yama. Yamanashi testified that he could not recall ever firing anyone.
Yamanashi called plaintiff a "baba" in a March 29, 2010 telephone call, and again at a July 19, 2010 meeting in front of plaintiff's colleagues. "Baba" is the phonetic pronunciation of a Japanese word meaning "old female." Plaintiff admitted that the word "baba" is not inherently derogatory, that whether "baba" is offensive depends on the circumstances, and that Yamanashi never used the word in a bad sense regarding her.
In January 2011, Yamanashi resumed the role of president. At that time, the fresh fish department plaintiff managed was the worst performing, and was generating the "lowest sales," of all Yama's departments. At some point in 2011, the fresh fish department failed to generate sufficient revenue to pay the four employees in plaintiff's charge. Plaintiff was asked to generate a plan to address the decline in sales, but she did not.
Among plaintiff's undisputed mistakes were deciding what fish to send a customer without confirming the order with the customer, and failing to order a sufficient quantity of Hamachi fish from Japan to meet customer demands. Moreover, there had been multiple customer complaints about plaintiff specifically.
Plaintiff's salary was reduced in 2008, 2009, December 2010, and March 2011. However, plaintiff admitted that "the only pay decreases she received were for mistakes, errors, and for resigning as an executive trainee." Yamanashi had warned plaintiff about her mistakes. Yamanashi would decrease an employee's salary due to continuous mistakes, or when serious problems occurred and customers became upset. The salaries of other employees were reduced as well, dependent upon their performance and the company's overall success. When Yama was doing well, almost every employee would receive a pay raise.
Yamanashi slammed his fists on the table during meetings with plaintiff and other Yama employees. Plaintiff acknowledged that this behavior was directed towards other employees as well.
Plaintiff claimed that after a 2011 work-related injury, Yamanashi told plaintiff her salary would be reduced if she filed for worker's compensation benefits. Plaintiff conceded Yamanashi made this statement jokingly, and she filed anyway. On May 6, 2011, Yamanashi told her, "You don't have any common sense. You are already sixty years old but you don't know anything." In June 2011, Yamanashi told plaintiff, "I wanted you to quit and leave this company with [another female employee] when she resigned." However, plaintiff was not fired and continued working for Yama.
In August 2011, while plaintiff was on vacation, Yamanashi received another complaint about plaintiff's work and contacted her to discuss it. Plaintiff resigned when she returned from vacation on August 14, 2011. Yamanashi tried to persuade her to stay with the company, but she declined. Plaintiff was sixty-three years and eleven-months old when she resigned. A fifty-five-year-old male replaced plaintiff as head of the fresh fish department.
II.
On August 6, 2012, plaintiff filed a complaint in the Law Division, alleging defendants' conduct violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
Her second amended complaint alleged: unlawful discharge in violation of the LAD on the basis of age (Count One) and sex (Count Two); hostile work environment in violation of the LAD based on sexual harassment (Count Three) and age-based harassment (Count Four); violation of the New Jersey Equal Pay Act (NJEPA), N.J.S.A. 34:11-56.1 to -56.12 (Count Five); discrimination in wages in violation of N.J.S.A. 34:11-56.2 (Count Six); and retaliation in violation of the LAD (Count Seven).
On December 19, 2012, a motion judge dismissed all claims against Yamanashi under the LAD, including counts one through four. On September 9, 2014, the trial court granted summary judgment, dismissing all counts as to both defendants. Plaintiff appeals both orders.
Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). To decide whether there is a genuine issue of material fact, the trial court must determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Because "appellate courts 'employ the same standard [of review] that governs the trial court,'" we review the issue de novo, and the "trial court rulings 'are not entitled to any special deference.'" Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010) (citations omitted). We must hew to that standard of review.
"[T]he appellate court should first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court's ruling on the law was correct." Ibid. Here, the relevant facts relied on by the trial court in granting summary judgment are undisputed. Plaintiff contests the import of those facts, rather than contending that there are genuine issues of material fact. Thus, we turn to whether the trial court properly applied the law.
III.
Because plaintiff alleges discriminatory statements over many years, defendant raised the statute of limitations. Preliminarily, we note the following.
Our Supreme Court has made clear that "the two-year personal-injury statute of limitations should apply" to "all LAD claims." Montells v. Haynes, 133 N.J. 282, 286 (1993); see N.J.S.A. 2A:14-2. "In analyzing the limitations question, [our Court has] differentiated between 'discrete' discriminatory acts and hostile work environment claims." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 19 (2002) (citation omitted).
"[D]iscrete acts, 'such as termination . . . are easy to identify,'" and each such act "constitutes a separate actionable 'unlawful employment practice.'" Id. at 19 (quoting AMTRAK v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 2073, 153 L. Ed. 2d 106, 122 (2002)). A plaintiff's cause of action accrues on the day on which such an individual act occurs. Ibid. However, if a plaintiff "alleged a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment," then the plaintiff's "cause of action would have accrued on the date on which the last act occurred, notwithstanding 'that some of the component acts of the hostile work environment [fell] outside the statutory time period.'" Id. at 21 (quoting Morgan, supra, 536 U.S. at 117, 122 S. Ct. at 2074, 153 L. Ed. 2d at 124).
Nearly all of Yamanashi's comments that plaintiff cites occurred more than two years prior to her August 6, 2012 complaint. The only statements within the two-year period are: (1) that on May 6, 2011, Yamanashi allegedly told plaintiff, "You don't have any common sense. You are already sixty years old but you don't know anything"; (2) in June 2011, Yamanashi said that he had wanted her to quit when another female employee had previously resigned; and (3) that after a 2011 work-related injury, Yamanashi joked that plaintiff's salary would be reduced if she filed for worker's compensation benefits. Plaintiff also received pay cuts in December 2010 and March 2011.
IV.
In the LAD, the Legislature "declare[d] its opposition to . . . practices of discrimination when directed against any person by reason of the race, creed, color, national origin, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, marital status, . . . disability or nationality of that person or that person's spouse." N.J.S.A. 10:5-3 (emphasis added). The LAD makes it an unlawful employment practice "[f]or an employer, because of [such characteristics] of any individual, . . . to refuse to hire or employ or to bar or to discharge . . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.J.S.A. 10:5-12(a). "Any person claiming to be aggrieved by an unlawful employment practice or an unlawful discrimination" may file a complaint. N.J.S.A. 10:5-13.
"In a variety of contexts involving allegations of unlawful discrimination, [our Supreme Court] has looked to federal law as a key source of interpretive authority." Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990). "All LAD claims are evaluated in accordance with the United States Supreme Court's burden-shifting mechanism." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 546 (2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668, 677-79 (1973)).
Under McDonnell Douglas, to make a prima facie case for discriminatory termination, a complainant must prove "by a fair preponderance of the evidence that plaintiff (1) belongs to a protected class, (2) was performing in the position from which she was terminated, (3) nevertheless was fired, and (4) the employer sought someone to perform the same work after she left." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 457-58 (2005) (citation omitted).
To show the second prong of the prima facie test, plaintiff need only show "that she had, in fact, been working within the title from which she was terminated." Id. at 455. "[T]he quality of the employee's performance does not come into play on the plaintiff's prima facie case," but is considered instead "in the second and third stages of the burden-shifting test." Id. at 441, 455. Although "a plaintiff's acknowledgment of performance deficiencies does not factor into the second prong of the prima facie case, it will generally lighten the employer's burden on the second phase and render more difficult plaintiff's ability to prove pretext." Id. at 456. "The fourth element of a prima facie case in an age-discrimination case properly focuses not on whether the replacement is a member of the protected class but on 'whether the plaintiff has established a logical reason to believe that the decision rests on a legally forbidden ground.'" Bergen Commercial Bank v. Sisler, 157 N.J. 188, 213 (1999).
The trial court applied versions of these prongs that required a greater showing for a prima facie case, but in our de novo review we apply the law as stated above.
"'Establishment of the prima facie case gives rise to a presumption that the employer unlawfully discriminated against the applicant. The burden of going forward then shifts to the employer to rebut the presumption of undue discrimination by articulating some legitimate, nondiscriminatory reason for the employee's rejection.'" Grigoletti, supra, 118 N.J. at 98 (citation omitted). If the employer does so, "plaintiff then has the opportunity to prove by a preponderance of the evidence that the legitimate nondiscriminatory reason articulated by the defendant was not the true reason for the employment decision but was merely a pretext for discrimination." Ibid. "The burden of proof 'remains with the employee at all times,' and if the plaintiff cannot meet his or her obligation under the McDonnell Douglas methodology, the employer will prevail on summary judgment." Henry, supra, 204 N.J. at 331-32 (citation omitted).
V.
The trial court properly granted summary judgment on Counts One and Two. In those counts, plaintiff alleges that, beginning in June 2009, Yamanashi reprimanded and insulted her based on age and sex resulting in her unlawful discharge in August 2011. Here, the trial court found that plaintiff met the first prong of the prima facie case. We find she met the second prong. We assume she met the fourth prong, particularly as she was replaced by someone who was younger and male. However, because plaintiff admittedly quit, to meet the third prong — that she was "fired" — she must meet the standard for constructive discharge.
The "elevated constructive discharge standard" requires more than a hostile work environment claim. Shepherd, supra, 174 N.J. at 29. To prove constructive discharge, a plaintiff must show "not merely 'severe or pervasive' conduct, but conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it." Id. at 28 (citation omitted). Moreover, "'an employee has the obligation to do what is necessary and reasonable in order to remain employed rather than simply quit.'" Id. at 28 (citations omitted).
Here, plaintiff fails to allege facts sufficient to show constructive discharge. Within the two-year period, Yamanashi's alleged comment that plaintiff should know better by age sixty treated age as a positive source of common sense. Plaintiff admits Yamanashi's comment about workers' compensation was a joke. Yamanashi allegedly commented that he wanted plaintiff to quit when another female employee had resigned, but he did not say he wanted plaintiff to quit at the time he allegedly made the comment in June 2011.
It is unclear when Yamanashi's alleged fist-slamming occurred, but plaintiff admitted it was not directed solely toward plaintiff. "[I]f a supervisor is equally crude and vulgar to all employees, regardless of their sex [or age], no basis exists for a sex [or age] harassment claim." Lehmann v. Toys 'R' Us, 132 N.J. 587, 604 (1993).
Additionally, plaintiff admitted her December 2010 and March 2011 pay reductions were due solely to her poor performance, and that other employees similarly experienced these fluctuations depending on their performance. Plaintiff admitted that Yamanashi received multiple complaints about her performance, including the one immediately preceding her resignation.
In any event, nothing occurred during the two-year period that was so intolerable that a reasonable person would be forced to resign. Shepard, supra, 174 N.J. at 28.
Even if plaintiff made out a prima facie case that her resignation was in fact a constructive discharge, defendants proffered legitimate, nondiscriminatory reasons for their actions, namely plaintiff's mistakes and poor performance. Under McDonnell Douglas, plaintiff was required to offer evidence that defendants' proffered reasons were merely a pretext for a true discriminatory purpose. She failed to do so.
On appeal, plaintiff contends for the first time that she did not need to satisfy the McDonnell Douglas burden-shifting analysis, only the "mixed motive" analysis. Plaintiff waived that claim by not raising it in the trial court. Zaman v. Felton, 219 N.J. 199, 226 (2014).
In any event, a mixed-motive analysis is justified only if the plaintiff
presented such direct evidence of discriminatory purpose as would entitle [her], under the principles of Price Waterhouse v. Hopkins, 490 U.S. 228, 276, 109 S. Ct. 1775, 1796-97, 104 L. Ed. 2d 268, 304-05 (1984) (O'Connor, J., concurring), to a shift of the burden of persuasion thereby requiring the employer to prove it would have taken the adverse employment action even without consideration of the proscribed factor.
[McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 523 (2003).]
A plaintiff must show "a statement made by a decisionmaker associated with the decisionmaking process [that] actually bore on the employment decision at issue and communicated proscribed animus," for example, an instruction saying "'Fire Rollins — she is too old.'" A.D.P. v. Exxon Mobil Research & Eng'g Co., 428 N.J. Super. 518, 533-34 (App. Div. 2012) (citations omitted). Here, plaintiff presented no comments or conduct showing direct evidence of intentional discrimination within the two-year limitations period.
Plaintiff cites discriminatory comments more than two years before her August 2012 complaint, but those comments did not result in her discharge when uttered, and are beyond the statute of limitations for the discrete act of constructive discharge. As plaintiff continued to work at Yama for more than two years after those comments occurred, they logically do not support her claim of constructive discharge. Moreover, Yamanashi's two references to plaintiff as a "baba," unconnected with any employment action, cannot constitute direct evidence for purposes of a mixed-motive analysis. "[S]tray remarks unrelated to the decisional process, such as . . . references to older employees as 'little old ladies' and 'old cows,' have been characterized as circumstantial evidence." A.D.P., supra, 428 N.J. Super. at 534 (quoting Bergen Commercial Bank, supra, 157 N.J. at 208-09).
Yamanashi's alleged March 2010 statements that plaintiff was an old woman who should leave the company could have constituted direct evidence of constructive discharge had plaintiff left Yama at that time, but she continued to work at Yama for about seventeen months and did not sue defendants for twenty-nine months. She argues that those comments can still be considered under the continuing violation doctrine. However, "the doctrine does not permit . . . the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable." Roa v. Roa, 200 N.J. 555, 569 (2010). Thus, plaintiff cannot escape the burden-shifting analysis of McDonnell Douglas.
VI.
Although plaintiff's complaint does not mention her reductions in pay, the trial court considered whether the pay cuts themselves were possible adverse employment actions based on age or sex. See Victor v. State, 401 N.J. Super. 596, 616 (App. Div. 2008) ("actions that affect wages" qualify as an adverse employment action under the LAD), aff'd in part, modified in part, 203 N.J. 383 (2010). However, for the reasons set forth above, especially plaintiff's admissions that defendants cut her pay because of her poor performance, she cannot "'establish[] a logical reason to believe that the decision[s] rest[ed] on a legally forbidden ground.'" Bergen Commercial Bank, supra, 157 N.J. at 213 (citation omitted). Nor can she show that the employer's reasons for the pay cut were pretextual.
VII.
The trial court also appropriately granted summary judgment on Counts Three and Four, which alleged a hostile work environment based on sex and age. "To establish a cause of action under the LAD based on a hostile work environment, plaintiffs must satisfy each part of a four-part test." Shepherd, supra, 174 N.J. at 24. Plaintiffs "must show that the complained-of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive." Ibid. (citing Lehmann v. Toys 'R' Us, 132 N.J. 587, 603-04 (1993)). "'[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.'" Lehmann, supra, 132 N.J. at 607 (citation omitted).
"'[A] hostile work environment discrimination claim cannot be established by epithets or comments which are "merely offensive." An employment discrimination law such as the LAD is not intended to be "a 'general civility' code" for conduct in the workplace.'" Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004) (citations omitted), certif. denied, 183 N.J. 213 (2005). "'[D]iscourtesy or rudeness should not be confused with [protected status-based] harassment.'" Ibid. (citation omitted).
The facts alleged by plaintiff during the two-year period preceding her August 2012 complaint are insufficient to meet even the "severe or pervasive" standard. For the reasons set forth above, the comments and conduct during that period were not severe or pervasive enough to make a reasonable person believe the conditions of employment had been altered such that the work environment was hostile or abusive.
Plaintiff argues that we should look also at Yamanashi's alleged comments more than two years before her complaint was filed. As noted above, a hostile work environment claim allows a plaintiff to allege a series of acts, with the cause of action arising when the last act occurs. However, to include events occurring before the two-year period in a hostile work environment claim, plaintiff must show "a continuum of harassment" sufficient to show a "'continuing violation claim.'" Toto v. Princeton Twp., 404 N.J. Super. 604, 613 (App. Div. 2009) (quoting Shepherd, supra, 174 N.J. at 21-22).
The "continuing violation doctrine" is an equitable exception to the statute of limitations for claims arising under anti-discrimination laws. Roa, supra, 200 N.J. at 566. A plaintiff who experiences a "'continual, cumulative pattern of tortious conduct'" may pursue an action if at least one of the discriminatory acts occurred within the statutory period. Ibid. (citation omitted).
Plaintiff alleges that in 2006, Yamanashi made a comment based on sex — namely that she thought and made decisions like a man — but the remark accompanied plaintiff's promotion to department head and a raise in pay, and plaintiff admitted she was not offended by that comment at the time. Plaintiff alleged no other discriminatory comments or conduct for over three years.
Plaintiff alleges that in March 2010, Yamanashi called her an old woman and told her to leave the company. However, almost fourteen months separated the March 2010 comments and the first complained-of comment within the limitations period in May 2011. Plaintiff alleged no discriminatory comments or behaviors during these long gaps, even though she kept a diary beginning in 2010 to record instances of alleged harassment.
Plaintiff alleged that in March 2010 and July 2010, Yamanashi called her "baba," but conceded that he was not using the word in a bad sense.
Thus, we agree with the trial court that plaintiff failed to allege a "continual, cumulative pattern of tortious conduct" sufficient to allow her to rely on comments and conduct otherwise barred by the statute of limitations. Roa, supra, 200 N.J. at 566.
VIII.
The trial court correctly granted summary judgment on Count Seven, because plaintiff's claim of retaliation is without merit. Plaintiff admittedly never complained to anyone while at Yama. Because plaintiff did not complain, she could not suffer retaliation for complaining.
Under the LAD, the "unlawful employment practice" of retaliation occurs when a defendant "take[s] reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under" the LAD. N.J.S.A. 10:5-12(d). To show retaliation under the LAD, an employee must show that "the employee 'engaged in a protected activity known to the [employer,]' the employee was 'subjected to an adverse employment decision[,]' and there is a causal link between the protected activity and the adverse employment action." Battaglia, supra, 214 N.J. at 547 (alteration in original) (citation omitted). Here, there was no evidence that plaintiff complained, opposed any practices, testified, or filed a LAD action prior to her resignation. Thus, plaintiff cannot show that she "engaged in a protected activity known to the [employer]." Battaglia, supra, 214 N.J. at 547.
Plaintiff claims she did not know where to complain because Yama had no complaint procedures. The absence of such procedures would be relevant if we were addressing an employer's defense that "'the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'" Aguas v. State, 220 N.J. 494, 499 (2015) (citation omitted). However, the absence of such procedures is irrelevant in a retaliation claim.
IX.
The trial court properly granted summary judgment on Counts Five and Six under the New Jersey Equal Pay Act (NJEPA), N.J.S.A. 34:11-56.1 to -56.12. Plaintiff alleged in both counts that she was paid a lower wage than was paid to male employees, even though she performed substantially similar work.
Count Five references "the Equal Pay Act," and Count Six cites the operative section of the NJEPA, N.J.S.A. 34:11-56.2. After defendants filed a notice of removal on the grounds that plaintiff was alleging a claim under the federal Equal Pay Act (FEPA), 29 U.S.C.A. § 206(d), the federal district court remanded the case, finding that plaintiff was only "requesting relief under the New Jersey Equal Pay Act." Accordingly, we understand Counts Five and Six to raise claims under the NJEPA.
Plaintiff's complaint does not raise a claim of wage discrimination under the LAD, and she does not discuss let alone meet the complex standards for such a claim. See Grigoletti, supra, 118 N.J. at 10910; Bitsko v. Main Pharmacy, Inc., 289 N.J. Super. 267, 272 (App. Div. 1996). Accordingly, we do not address such a claim. See MidAtlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div.), certif. denied, 207 N.J. 190 (2011); DeSoto v. Smith, 383 N.J. Super. 384, 395 n.1 (App. Div.), certif. denied, 187 N.J. 81 (2006).
The NJEPA forbids an employer from "discriminat[ing] in any way in the rate or method of payment of wages to any employee because of his or her sex." N.J.S.A. 34:11-56.2. "A differential in pay between employees based on a reasonable factor or factors other than sex shall not constitute discrimination within the meaning of this section." Ibid.
Here, plaintiff asserts that females at Yama generally have low-ranking positions, for example, as telemarketers. However, plaintiff had a high-ranking position.
Plaintiff also claims that other department heads were paid a higher salary than she was. However, those other department heads were also the president and vice president of Yama during some of the relevant period. By contrast, plaintiff was not an officer. Indeed, plaintiff voluntarily withdrew from the executive training program. Moreover, plaintiff admits that her department was the smallest of the four Yama fish departments. Thus, plaintiff cannot show that her duties were substantially similar to those department heads. Furthermore, as set forth below, plaintiff admitted that both she and her department performed more poorly. Finally, the fact that her bonuses were less than those of other department heads is non-discriminatory, since bonuses were allocated on the basis of performance.
Plaintiff primarily complains about her reductions in pay. However, she admitted that male department heads also suffered pay reductions in 2010 and 2011. She argues her pay cuts were more frequent and substantial than those affecting males. However, she admitted that her pay cuts were based on her poor performance and quitting the executive training program. Plaintiff also admitted that her number of errors was "on the high end compared to other employees who made errors." It is undisputed that Yama had a practice of decreasing employee pay on the basis of mistakes, both at the time of annual evaluations and during the year. There is no indication, however, that these pay cuts were tied to sex or age.
Plaintiff concedes her pay was decreased based on customer complaints and the unprofitability of the fresh fish department she managed. Moreover, the evidence she relies on shows that when Yamanashi returned as president, plaintiff's fresh fish department was the worst performing department. Plaintiff alleges that all departments suffered a decrease in sales in 2011, but the evidence she submitted shows that the decrease suffered by plaintiff's fresh fish department exceeded the decrease in the three other departments combined.
For all these reasons, the trial court did not err in granting summary judgment on plaintiff's complaint. Because that complaint only raised statutory claims under the LAD and NJEPA, we do not address defendants' argument that any common law claims were barred.
X.
Plaintiff also appeals the December 19, 2012 order finding that she failed to state a claim against Yamanashi personally. See R. 4:6-2(e). We need not examine the propriety of the order granting dismissal. Even if plaintiff's complaint properly stated claims against Yamanashi personally, those claims failed to withstand summary judgment as set forth above.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION