                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2000

Stanziale v Jargowsky
Precedential or Non-Precedential:

Docket 99-5030




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Recommended Citation
"Stanziale v Jargowsky" (2000). 2000 Decisions. Paper 4.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/4


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Filed January 10, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-5030

FULVIO STANZIALE
Appellant

v.

LESTER JARGOWSKY, PUBLIC HEALTH COORDINATOR;
COUNTY OF MONMOUTH; MONMOUTH COUNTY
BOARD OF HEALTH

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 96-cv-03626)
District Judge: Honorable Mary Little Cooper

Argued: November 17, 1999

BEFORE: ALITO and STAPLETON, Circuit Judges,
and FEIKENS,* District Judge

(Opinion Filed January 10, 2000)



_________________________________________________________________

* Honorable John Feikens, United States District Judge for the Eastern
District of Michigan, sitting by designation.



       Malcolm V. Carton
       Christopher J. Hanlon (Argued)
       Monmouth County Counsel
       Fredrick P. Niemann
       Assistant Monmouth County
        Counsel
       Woodhull House
       63 West Main Street
       Freehold, NJ 07728
        Attorneys for Appellees

       Jeffrey P. Ferrier (Argued)
       146 Highway 34
       Suite 400
       Holmdel, NJ 07733
        Attorney for Appellant
OPINION OF THE COURT

FEIKENS, District Judge:

I. INTRODUCTION

Appellant Fulvio Stanziale (Stanziale) sued his employer
alleging violations of the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. S 623, Title VII of the Civil Rights Act
of 1964 (Title VII), 42 U.S.C. S 2000e, the Equal Pay Act, 29
U.S.C. S 206 et seq., the New Jersey Law Against
Discrimination (NJLAD), N.J.S.A. S 10:5-12, and the New
Jersey Equal Pay Act (NJEPA), N.J.S.A. S 34:11-56.2. The
District Court granted summary judgment as to all counts
and Stanziale now appeals.

II. BACKGROUND

In April 1990, appellee Lester Jargowsky (Jargowsky), a
coordinator for appellee Monmouth County Board of
Health, offered a job to Stanziale as an Environmental
Specialist at a starting salary of $25,500. Stanziale declined
the offer. Several months later, in August 1990, Jargowsky
offered Stanziale a similar job as a Sanitation Inspector at
a starting salary of $24,500. He accepted this second offer.

                                2



Shortly after Stanziale was hired, appellees hired a
younger female, Lisa Muscillo (Muscillo), as a Sanitary
Inspector, at a starting salary of $26,500. Both Stanziale
and Muscillo were consistently given 5% raises each year so
that, in July 1996, their salaries were $32,673 and
$35,342, respectively. Based on this wage disparity,
plaintiff filed the present lawsuit.1

Appellees moved to dismiss the complaint pursuant to
Federal Rule of Civil Procedure (FRCP) 12(b)(6), which the
District Court converted to a FRCP 56 motion for summary
judgment. Relevant to this appeal,2 in an opinion dated
December 18, 1997, the District Court granted appellees'
motion for summary judgment as to Stanziale's claims of
discrimination based upon the salary disparity between
Muscillo and Stanziale. The District Court held that
Stanziale had met his prima facie burden under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1983), and that
appellees had, relevant to Muscillo's salary, offered
legitimate non-discriminatory reasons for the disparity.
That court noted that "[p]laintiff has offered only vague
conclusory statements in response to defendants' proffered
reasons," and therefore granted summary judgment as to
the Title VII, ADEA and NJLAD claims. Based solely on
these findings as to Muscillo's salary, the District Court
_________________________________________________________________

1. Stanziale's claims of discrimination would eventually be premised on
the salaries of five women employed by defendants as Sanitary
Inspectors who were, allegedly, being paid higher salaries than Stanziale.
Subsequent motions resulted in the District Court determining that
three of the alleged wage disparities were irrelevant to Stanziale's
claims.
Appellant has not contested this determination. Wage disparities
between Stanziale and the fourth woman were addressed in an opinion
by the District Court in December 1998. (See footnote 2).

2. The opinion of the District Court dated December 18, 1997,
articulated several rulings that have not been appealed to this court. In
addition, the District Court denied defendants' motion for summary
judgment as to all claims based upon the starting salary of a second
younger woman Sanitary Inspector, Eve Fuhring-Savino. On subsequent
motion, in December 1998 the District Court granted summary
judgment as to claims based upon the disparity in starting salary
between Stanziale and Fuhring-Savino. Appellant has not presented an
argument on appeal disputing the merits of the District Court's
treatment of the claim based on the salary of Fuhring-Savino.

                                3



also granted summary judgment as to the Equal Pay Act
and NJEPA claims.

In December 1998, the District Court revisited Stanziale's
Equal Pay Act and NJEPA claims in the context of a second
summary judgment motion by appellees. In a second
opinion, the District Court conceded that claims under the
Equal Pay Act were not governed by the same standards as
claims under Title VII and the ADEA, but after
reconsidering the issue, found that summary judgment had
been properly granted as to the Equal Pay Act and NJEPA
claims.

Stanziale has appealed, arguing that summary judgment
was improperly granted as to the claims based on the wage
disparity between him and Muscillo.

III. STANDARD OF REVIEW

Review of the District Court's grant of summary judgment
is plenary. See Kelly v. Drexel University, 94 F.3d 102, 104
(3d Cir.1996). We must determine whether the record,
when viewed in a light favorable to Stanziale, shows that
there is no genuine issue of material fact and that appellees
were entitled to summary judgment as a matter of law. See,
e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986).

IV. DISCUSSION

A. THE ADEA AND TITLE VII CLAIMS

The parties' burdens in establishing and defending claims
under the ADEA and Title VII3 are determined by the
procedure set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Showalter v. University of
_________________________________________________________________

3. While appellant's brief on appeal does not specifically address the
District Court's dismissal of the Title VII claim, because the Title VII
and
ADEA claims considered by the District Court involve analyses that are
identical in the present case, this opinion will refer to both the ADEA
and Title VII claims.

                               4



Pittsburgh Medical Center, 190 F.3d 231, 234 (3rd Cir.
1999). A plaintiff must first produce evidence sufficient to
convince a reasonable factfinder as to all of the elements of
a prima facie case of discrimination. Id.. If a plaintiff
establishes a prima facie case, " `[t]he burden of production
(but not the burden of persuasion) shifts to the defendant,
who must then offer evidence that is sufficient, if believed,
to support a finding that the defendant had a legitimate,
nondiscriminatory reason for the [adverse employment
decision].' " Id. at 235 (quoting Keller v. Orix Credit Alliance,
Inc., 130 F.3d 1101, 1108 (3rd Cir. 1997) (citing Hicks, 509
U.S. at 506-07, 113 S.Ct. 2742 (1993)); see also Smith v.
Borough of Wilkinsburg, 147 F.2d 272, 278 (3rd. Cir. 1998).
An employer need not prove, however, that the proffered
reasons actually motivated the salary decision. Fuentes v.
Perskie, 32 F.3d 759, 763 (Cir. 1994). If a defendant
satisfies this burden, a plaintiff may then survive summary
judgment by submitting evidence from which a factfinder
could reasonably either (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action.
Keller, 130 F.3d at 1108; Fuentes, 32 F.3d at 763.

In this case, the District Court found, and the parties do
not dispute, that Stanziale established a prima facie case.
Likewise, the parties do not dispute that appellees met their
burden of production under the second step of the
McDonnell Douglas framework. They proffered several
legitimate, nondiscriminatory reasons for the salary
disparity between Stanziale and Muscillo -- qualifications
that Muscillo possessed and Stanziale lacked, including (1)
a bachelor's degree; (2) a post-graduate education; (3)
computer skills; (4) job experience using computer skills;
(5) recent sanitary inspector experience; and (6)
certifications in pesticide application and lead poisoning
investigations. Each of these qualifications is documented
in Muscillo's resume included in the record. The burden
then fell on Stanziale to demonstrate a triable issue of fact
through evidence which could cause a reasonable factfinder
to disbelieve the proffered legitimate reasons or to believe
that age and/or sex discrimination was more likely than
not a motivating factor in the hiring decision.

                                5



Appellant satisfied his burden as to some of these six
reasons. For instance, as to appellees' argument that
computer skills explains the disparity in wages, Stanziale
noted that the Sanitary Inspector job does not require the
use of computers and that in 1990 the Health Board did
not even have computers. These facts, if true, could cause
a reasonable factfinder to conclude that Muscillo's
"computer skills" and/or "job experience using computer
skills," offered by appellees as reasons for the wage
disparity, are pretextual.

Stanziale also argued that the "recent sanitary inspector
experience" reason offered by appellees was pretextual.
Stanziale noted that he worked as a Sanitary Inspector for
an unrelated community for eight years, albeit in the late
1960's and early 1970's. He testified in his deposition that
the job had not changed over time, so that his years of
experience, 17 years before his hiring, ought to be weighed
more heavily than Muscillo's 1 1/2 years of experience just
prior to her hire. In essence, Stanziale argued that in his
estimation, he was more experienced than Muscillo, so that
there existed a triable issue of fact as to whether appellees'
proffered reason was pretextual.

Whatever the case as to these factors, it is undisputed
that Muscillo does possess more qualifications than
Stanziale, especially as to the bachelor's degree and post-
graduate education.4 Muscillo has a bachelor's degree in
business administration. Perhaps more relevant to her work
_________________________________________________________________

4. In Fuentes, this court noted that in order to survive summary
judgment, a plaintiff must provide evidence from which a factfinder
could reasonably conclude "that each of the employer's proffered non-
discriminatory" reasons was pretextual. Fuentes, 32 F.3d at 764
(emphasis in original). As Judge Stapleton notes in partial dissent, this
court also noted that "the factfinder's rejection of some of the
defendant's
proffered reasons may impede the employer's credibility seriously enough
so that a factfinder may rationally disbelieve the remaining proffered
reasons". Id. at 764 n. 7. This language does not, of course, provide a
general rule. Rather, as this language suggests, the relevant, case-by-
case inquiry is whether the employer's lack of credibility as to some of
the proffered reasons so seriously undermines its credibility that a
factfinder could reasonably disbelieve all of the employer's proffered
reasons.

                               6



as a Sanitary Inspector, she also has completed a seven-
week course on environmental and public health and law
from Rutgers University, is a certified pesticide applicator
and is a certified operator for a lead poisoning testing
device.

In response, Stanziale does not dispute that he lacks
these educational qualifications, but instead notes that he
was not asked about such qualifications in his interview.
He alleges that his application for the position of Sanitary
Inspector (which reveals his lack of these educational
qualifications) was not provided to appellees until after he
was hired. From this, Stanziale contends that these
educational qualifications are not necessary to the job of
Sanitary Inspector; they were not considered in establishing
his salary, and they do not, therefore, explain the wage
disparity.

Assuming that the facts are as Stanziale suggests, it does
not follow that summary judgment was improperly granted.
The fact that Stanziale was not asked about his educational
qualifications does suggest that Muscillo's educational
qualifications are beyond those minimally required for the
position of Sanitary Inspector. It also suggests that
Stanziale's salary was not based on his college and post-
college education (or lack thereof). However, the fact that
Muscillo's educational qualifications go beyond those
minimally required for the position of Sanitary Inspector, or
the fact that those qualifications go beyond those required
of Stanziale at his hire, would not preclude appellees from
considering them in determining Muscillo's salary.

It is, of course, true, as the dissent notes, that employers
are unlikely to reward employees economically for
qualifications that are going to make no significant
contribution to the enterprise. In many instances, plaintiffs
will satisfy their burden of establishing pretext by
demonstrating that the employer's alleged qualifications
bear no actual relationship to the employment at issue.
Notwithstanding Stanziale's contentions as to what he was
asked prior to his hiring, he has not presented sufficient
evidence such that a factfinder could reasonably conclude
that Muscillo's superior qualifications, particularly her
qualifications as to lead poisoning, pesticides, and public

                               7



health and law, are so unrelated to her employment as a
Sanitary Inspector as to be a pretext for intentional
discrimination. Under both the ADEA and Title VII,
Stanziale bears this ultimate burden of proving intentional
discrimination. See Simpson v. Kay Jewelers, Division of
Sterling, Inc., 142 F.3d 639, 644 n. 6 (3rd Cir. 1998)
(quoting Fuentes, 32 F.3d at 763). Summary judgment was
therefore proper as to the ADEA and Title VII claims, and
the corresponding state claims under N.J.S.A. S 10:5-12.5

B. THE EQUAL PAY ACT CLAIM

Unlike the ADEA and Title VII claims, claims based upon
the Equal Pay Act, 29 U.S.C. S 206 et seq., do not follow the
three-step burden-shifting framework of McDonnell Douglas;
rather, they follow a two-step burden-shifting paradigm.
The plaintiff must first establish a prima facie case by
demonstrating that employees of the opposite sex were paid
differently for performing "equal work"--work of
substantially equal skill, effort and responsibility, under
similar working conditions. E.E.O.C. v. Delaware Dept. of
Health and Social Services, 865 F.2d 1408, 1413-14 (3rd
Cir. 1989). The burden of persuasion then shifts to the
employer to demonstrate the applicability of one of the four
affirmative defenses specified in the Act. Id. at 1414 (citing
Corning Glass Works v. Brennan, 417 U.S.188, 195 (1974).6
Thus, the employer's burden in an Equal Pay Act claim --
being one of ultimate persuasion -- differs significantly
from its burden in an ADEA claim. Because the employer
bears the burden of proof at trial, in order to prevail at the
summary judgment stage, the employer must prove at least
one affirmative defense "so clearly that no rational jury
could find to the contrary." Delaware Dept. of Health, 865
F.2d at 1414.
_________________________________________________________________

5. Appellant concedes in his brief on appeal that the analysis applicable
to the ADEA and Title VII claims is also applicable to the state law
claims under the NJLAD.

6. The four affirmative defenses enumerated under the Act are: (i) a bona
fide 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. 29 U.S.C. S 206(d)(1).

                               8



The employer's burden is significantly different in
defending an Equal Pay Act claim for an additional reason.
The Equal Pay Act prohibits differential pay for men and
women when performing equal work "except where such
payment is made pursuant to" one of the four affirmative
defenses. 29 U.S.C. S 206(d)(1) (emphasis added). We read
the highlighted language of the statute as requiring that the
employer submit evidence from which a reasonable
factfinder could conclude not merely that the employer's
proffered reasons could explain the wage disparity, but that
the proffered reasons do in fact explain the wage disparity.
See also Delaware Dept. of Health, 865 F.2d at 1415
(stating that "the correct inquiry was . . . whether, viewing
the evidence most favorably to the [plaintiff], a jury could
only conclude that the pay discrepancy resulted from" one
of the affirmative defenses (emphasis added)). Thus, unlike
an ADEA or Title VII claim, where an employer need not
prove that the proffered legitimate nondiscriminatory
reasons actually motivated the salary decision, see Fuentes,
32 F.3d at 763, in an Equal Pay Act claim, an employer
must submit evidence from which a reasonable factfinder
could conclude that the proffered reasons actually
motivated the wage disparity. More to the point, where, as
here, employers seek summary judgment as to the Equal
Pay Act claim, they must produce sufficient evidence such
that no rational jury could conclude but that the proffered
reasons actually motivated the wage disparity of which the
plaintiff complains.

We have already noted several factors that appellees have
proffered which could explain the wage disparity, and we
have no doubt that Muscillo's educational qualifications fall
within the meaning of the fourth affirmative defense, "a
differential based on any factor other than sex." 29 U.S.C.
S 206(d)(1). What is missing in this record, however, is some
evidence that demonstrates that the decision to pay
Muscillo a starting salary of $2,000 more than plaintiff was
in fact made pursuant to these qualifications. 7 Because it
_________________________________________________________________

7. Significantly, despite the fact that appellee Jargowsky, the individual
responsible for the hiring of both Stanziale and Muscillo, filed two
affidavits in this case, one of which describes the qualifications
Muscillo
possesses and Stanziale lacks, neither affidavit affirmatively states that
Muscillo's higher wage was in fact the result of one or more of these
qualifications.
                               9



was appellees' burden to establish this fact "so clearly that
no rational jury could find to the contrary", Delaware Dept.
of Health, 865 F.2d at 1414, the grant of appellees' motion
for summary judgment as to the Equal Pay Act and NJEPA
claims is error.

V. CONCLUSION

For the foregoing reasons, the District Court's grant of
summary judgment as to the ADEA, Title VII and NJLAD
claims is AFFIRMED. The grant of summary judgment as to
the Equal Pay Act and NJEPA claims, however, is
REVERSED. This case is remanded to the District Court for
further proceedings not inconsistent with this opinion.

                               10



STAPLETON, J., concurring in part and dissenting in part:

I join in all of the court's opinion other than section IV-A.
While it is a close question, unlike my colleagues, I
conclude that Stanziale has pointed to sufficient evidence of
pretext to avoid summary judgment on the ADEA and Title
VII claims. Accordingly, I would reverse and remand for
further proceedings on those claims, as well as on the
Equal Pay Act claim.

My conclusion differs from that of my colleagues
primarily for two reasons. First, while I agree that it does
not offend the ADEA or Title VII to pay a higher salary to
one employee than to another based on qualifications
unrelated to their job performance, I regard the fact that an
employer purports to have done so as significant
circumstantial evidence of pretext. Employers rarely reward
employees for qualifications that are going to make no
significant contribution to the employer's mission.

Second, because the applicable law regards pretext as
circumstantial evidence that a prohibited motive is behind
the employer's decision, a factfinder's conclusion of pretext
with respect to some of the non-discriminatory
justifications tendered by the employer may legitimately
affects its decision with respect to other justifications. As
we observed in Fuentes v. Perskie, 32 F.3d 759, 764 n7 (3d
Cir. 1994):

       We do not hold that, to avoid summary judgment, the
       plaintiff must cast doubt on each proffered reason in a
       vacuum. If the defendant proffers a bagful of legitimate
       reasons, and the plaintiff manages to cast substantial
       doubt on a fair number of them, the plaintiff may not
       need to discredit the remainder. That is because the
       factfinder's rejection of some of the defendant's
       proffered reasons may impede the employer's credibility
       seriously enough so that a factfinder may rationally
       disbelieve the remaining proffered reasons, even if no
       evidence undermining those remaining rationales in
       particular is available.

                               11



A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               12
