                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4598-16T3

DEIRDRE K. HARTMAN,

        Plaintiff-Appellant,

v.

THE STATE OF NEW JERSEY,
PUBLIC EMPLOYMENT RELATIONS
COMMISSION (PERC), and
P. KELLY HATFIELD, Individually
and in her official capacity as
Chair of PERC,

        Defendants-Respondents.


              Submitted July 9, 2018 – Decided July 20, 2018

              Before Judges Carroll and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Docket No. L-
              2534-14.

              Attorneys Hartman, Chartered, attorneys for
              appellant (Mark A. Gulbranson, Jr., on the
              briefs).

              Gurbir S. Grewal, Attorney General, attorney
              for respondents (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Kimberly Ann
              Eaton, Deputy Attorney General, on the brief).

PER CURIAM
       Plaintiff   Deirdre    K.   Hartman      brought        suit    against   her

employer, the Public Employment Relations Commission (PERC) and

its Chair, P. Kelly Hatfield.1 Pertinent to this appeal, plaintiff

asserted a claim against defendants alleging disparate pay based

on     gender   discrimination     in   violation         of   the    Law   Against

Discrimination     (LAD),    N.J.S.A.       10:5-1   to   -49.        Specifically,

plaintiff contended that in her capacity as Co-Deputy Director of

PERC's Unfair Practices Section (UPR), she was paid less for the

same work than her male Co-Deputy Director, Jonathan Roth.

       In Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 96 (1990),

our Supreme Court addressed the issue of whether two female

employees suffered unlawful discrimination when they received

lower wages than male employees performing comparable work.                      The

Court held that a female complainant can establish a prima facie

case of pay discrimination under the LAD if she "can demonstrate

that unequal pay was given for the performance of work that is

substantially equal to that performed by male employees."                    Id. at

110. In such instances, "the burden [then] shifts to the defendant

to demonstrate that the difference in pay was justified."                    Id. at

102.

            [O]nce   a  prima  facie   case  has   been
            established, a defendant must establish by

1
    The State of New Jersey was also named as a defendant in
plaintiff's complaint.

                                        2                                   A-4598-16T3
          preponderance   of   evidence  one   of   four
          affirmative defenses in order to avoid
          liability.    It must prove that the wage
          disparity is the result of (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.

          [Ibid.    (internal citation omitted).]

     In the present case, after discovery was complete, both

plaintiff and defendants filed motions for summary judgment.             On

June 9, 2017, Judge Kay Walcott-Henderson conducted oral argument,

rendered a cogent oral opinion, and granted summary judgment to

defendants.     Citing Grigoletti, the judge agreed with defendants

that plaintiff "failed to make a prima facie case of gender

discrimination     because   plaintiff   and   Roth   did   not   perform

substantially equal work."       Consequently, defendants were not

required to show a legitimate non-discriminatory reason for the

pay disparity.

     The judge found that Roth's compensation was based on his

Civil Service position of Hearing Examiner (HE) 1, which was a

higher Civil Service position and entailed different duties than

the Public Employment Relations Specialist (PERS) 1 position held

by plaintiff.     The judge also found it undisputed that Roth and

another male employee "did not receive promotions or pay raises

when appointed to the position of Deputy Director."         Finally, the


                                   3                              A-4598-16T3
judge rejected as "inadmissible hearsay" plaintiff's contention

that other Deputy Directors were paid a salary commensurate with

that of the HE 1 Civil Service position even though they lacked

the HE 1 job title.

      On   appeal,       plaintiff     argues         the    trial    court      erred    in

dismissing       her    complaint      and       granting      summary      judgment      to

defendants.       Specifically, plaintiff contends the court erred in

finding    she    failed    to   establish        a    prima      facie   case    of   wage

discrimination as a matter of law.                     Plaintiff further contends

none of the four affirmative defenses identified in Grigoletti

apply so as to insulate defendants from liability under the LAD.

      We review the trial court's grant of summary judgment de

novo, employing the same legal standard as the trial court.

Townsend v. Pierre, 221 N.J. 36, 59 (2015) (citing Davis v.

Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)).                           Like the

trial   court,     we    consider      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., 142 N.J. 520,

540 (1995).

      We have carefully reviewed plaintiff's contentions and the

controlling legal principles and affirm substantially for the

                                             4                                     A-4598-16T3
reasons expressed by Judge Walcott-Henderson in her June 9, 2017

oral opinion.

    Affirmed.




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