269 F.3d 251 (3rd Cir. 2001), 00-5225, Cardenas v Massey

Docket Nº:00-5225
Citation:269 F.3d 251
Party Name:GERARD CARDENAS, APPELLANT v. JON MASSEY; JAMES REBO; ROBERT LIPSCHER; JAMES CIANCIA; DEBORAH PORITZ; STATE OF NEW JERSEY
Case Date:October 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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269 F.3d 251 (3rd Cir. 2001)

GERARD CARDENAS, APPELLANT

v.

JON MASSEY; JAMES REBO; ROBERT LIPSCHER; JAMES CIANCIA; DEBORAH PORITZ; STATE OF NEW JERSEY

No. 00-5225

United States Court of Appeals, Third Circuit

October 16, 2001

        Argued: March 1, 2001

        On Appeal from the United States District Court for the District of New Jersey District Judge: Hon. Garrett E. Brown, Jr. (D.C. No. 96-CV-04077)

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[Copyrighted Material Omitted]

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        Fredric J. Gross (Argued), of counsel Susan E. Babb, Noel C. Crowley, Mount Ephraim, New Jersey 08059, Attorneys for Appellant

        John J. Farmer, Jr., Attorney General of New Jersey, Michael J. Haas, Assistant Attorney General, Of Counsel, Patrick Dealmeida, Deputy Attorney General, Of Counsel George N. Cohen (Argued), Deputy Attorney General, On the Brief, Trenton, New Jersey 08625, Attorneys for Appellees

        Jennifer S. Goldstein, Washington, D.C. 20507, Attorney for EEOC

        Before: Sloviter, Nygaard and Roth, Circuit Judges

        OPINION OF THE COURT

        Sloviter, Circuit Judge

        I.

        Plaintiff-appellant Gerard Cardenas, a Mexican-American, was hired as of January 29, 1990 as the manager of the Office Systems Unit in the Information Systems Division ("ISD") of New Jersey's Administrative Office of the Courts ("AOC") following the retirement of Joseph Ribsam. Cardenas asserts that through 1989 every manager or supervisor in the ISD was a white non-Hispanic male. Appellee James Rebo, head of the ISD, had advertised the

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position at pay grades G-32 and G-30. Cardenas was appointed at the G-30 level. Cardenas resigned on March 1, 1996. On August 23, 1996, he filed this suit against Jon Massey, his immediate supervisor, and Rebo (individually and in their official capacities), as well as Robert Lipscher, Director of the AOC (individually), James Ciancia (Lipscher's successor, in his official capacity), Deborah Poritz (New Jersey's Chief Justice, in her official capacity), and the State of New Jersey. The complaint stated disparate pay, hostile work environment, and retaliation claims under 42 U.S.C. S 1981, 42 U.S.C. S 2000e, et seq. ("Title VII"), and the New Jersey Law Against Discrimination ("LAD"), N.J. Stat. Ann. S 10:5-1, et seq., and a common law claim for intentional infliction of emotional distress against Massey. Essentially, the claims raised in Cardenas' 128 paragraph complaint revolve around his contention that he was hired at a lower grade level than merited by the work he was assigned, received disparate pay as a result, was not promoted as merited, was the subject of retaliation, and was subject to a hostile work environment, all as a result of his ethnicity.

        After discovery, the defendants moved for summary judgment and Cardenas moved for partial summary judgment on his disparate pay claims. The District Court granted defendants' motion, except as to the LAD and S 1981 hostile work environment claims against defendant Massey, and denied Cardenas' motion by opinion dated December 2, 1999 (hereafter "Dec. 2 opinion"). The court subsequently denied Cardenas' motion for reargument by opinion dated February 2, 2000. Cardenas settled his claims against Massey, resolving the remainder of the action. He then filed a timely notice of appeal as to the remaining defendants. On appeal, the EEOC has filed an amicus curiae brief solely as to the issue of the proper application of the statute of limitations to disparate pay claims.

        The District Court had jurisdiction over this action under 28 U.S.C. SS 1331, 1343, 1367. This court has appellate jurisdiction under 28 U.S.C. S 1291.

        II.

        Cardenas has set forth a litany of incidents from his six years employment at the AOC that he contends show discrimination, retaliation, and a hostile work environment. Our review of the grant of summary judgment is plenary. See Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128, 129 (3d Cir. 1991).

        Federal Rule of Civil Procedure 56(c) provides for summary judgment when "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." An issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the Court explained that the judge's role when adjudicating a motion for summary judgment "is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. In making this determination, a court is to draw all reasonable inferences in favor of the non-moving party. See Berner Int'l Corp. v. Mars Sales Co., 987 F.2d 975, 978 (3d Cir. 1993). In other words, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

        III.

        Cardenas' disparate pay claims stem, at least in part, from his initial hiring at the G-30 level. Cardenas contends that he performed all of the responsibilities of his predecessor, who was Chief, Office Services Systems, a G-31, and came to assume additional ones (the "PC/LAN duties"). He contends that Richard Chelenza, another mid-level ISD manager, previously had the PC/LAN duties and, as a result, Chelenza's pay grade had been raised from G-31 to G-33 at Rebo's request. He claims he resolved LAN problems caused by inadequate materials supplied to the AOC by AT&T, negotiating a deal with the company whereby it replaced over $400,000 of defective materials and yet he remained at pay level G-30, the grade he held throughout his six-year tenure at the AOC.1

        The District Court recognized that Cardenas asserted three legal bases for his wage discrimination claim--S 1981, LAD, and Title VII, and that a separate limitations period applies to each. Cardenas' S 1981 claims are subject to a two-year statute of limitations. See Goodman v. Lukens Steel Co., 482 U.S. 656, 662 (1987); N.J. Stat. Ann. S 2A:14-2. A two-year statute of limitations also applies to LAD claims whose "operative facts" occurred after July 27, 1993, whereas LAD claims based on events occurring before this date are subject to a six-year statute of limitations. See Martinez v. Nat'l Broadcasting Co., 877 F.Supp. 219, 230 (D.N.J. 1994); Montells v. Haynes, 133 N.J. 282, 286, 627 A.2d 654, 655 (1993). Title VII claims must be the subject of a charge filed with the EEOC within either 180 days or 300 days of the complained-of unlawful employment practice, depending upon whether the state has an anti-discrimination law, see Miller v. Beneficial Mgmt. Corp., 977 F.2d 834, 842 (3d Cir. 1992), and a complaint must be filed in the district court within 90 days of receipt of a right-to-sue letter from the EEOC, see 42 U.S.C. S 2000e-5(f)(1). The District Court calculated that to maintain an action for disparate pay based on his pay grade under Title VII, Cardenas had to file a complaint with the EEOC on or before July 29, 19902; to maintain a S 1981 action, he had to file his complaint in the district court on or before January 29, 1992; and to maintain an action under LAD, he had to file his complaint in the district court on or before January 29, 1996.

        The District Court found that because Cardenas' disparate pay claims stem from his initial pay grade classification, they accrued when he began working at the AOC on January 29, 1990, and are therefore time-barred. It rejected Cardenas' argument that each paycheck he received over the course of his AOC employment, which ended on March 1, 1996, constituted a separate discriminatory act that brought his claims within the statutes of limitations pursuant to the continuing violations doctrine. See Miller, 977 F.2d at 842

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("[I]f the alleged discriminatory conduct is a `continuing violation,' the statute of limitations begins to run on the date of the last occurrence of discrimination, rather than the first."). Citing, inter alia, Lorance v. AT&T Techs., Inc., 490 U.S. 900 (1989), rev'd by the Civil Rights Act of 1991, S 112, Delaware State Coll. v. Ricks, 449 U.S. 250, 257 (1980), and United Airlines, Inc. v. Evans, 431 U.S. 553, 560 (1977), the court found the continuing violations doctrine inapplicable because Cardenas described his pay checks as "consequences" of his pay grade and did not allege the AOC's pay-grade structure was facially discriminatory.

        We believe that is too narrow a reading of the facts and the law. In Evans, the discrimination, which was forcing plaintiff to resign when she married, occurred outside the statutory period. Although she was rehired within the statutory period, her seniority was calculated from the date of her re-hire. The Supreme Court rejected plaintiff's argument that this application of the seniority system constituted a continuing violation because it gave present effect to the employer's past discriminatory act by disregarding the seniority she had accrued before her forced resignation. The Court held that no present violation existed because the seniority system, its adoption, and its operation were nondiscriminatory. See Evans, 431 U.S. at 557-60.

        In Ricks, the employer College denied the plaintiff professor tenure and gave him a "terminal" one-year contract pursuant to College policy. The tenure denial was outside the statutory period, but plaintiff's final day of employment was not, and he argued that his discharge was a continuing violation. The Court disagreed, finding that...

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