Font Size: 
Office of Attorney Ethics Quietly Settles Women Lawyers' Discrimination Suit
New Jersey Law Journal
July 28, 2008
New Jersey has settled for $150,000 a federal suit by three women lawyers who alleged a "caste system" at the Office of Attorney Ethics that assigned women to less desirable jobs.
The June settlement called for a statement to be issued by the Attorney General's Office upon its final execution, but that didn't happen until a reporter recently inquired.
The suit, Cox v. Office of Attorney Ethics, 05-Civ.-1608, settled at the end of March but the deal was not disclosed until a reporter inquired on Thursday.
Plaintiffs Margaret Cox, Theresa Hubal and Susan Perry-Slay each got $5,000 in back pay and shared, in unspecified percentages, $135,000 for emotional distress damages, fees and costs.
The three had claimed that women with law degrees were relegated to a job classification known as AS-3 while less-qualified men were assigned the higher status AS-4 position, paid more, given more challenging assignments and promoted more readily. Many AS-4 employees were former police officers with no law degrees and some lacked a college diploma, the plaintiffs charged.
The settlement admits no wrongdoing, requires no remedial measures and is not binding in any other proceeding or admissible to prove liability of the OAE or the Administrative Office of the Courts.
It includes a provision that Cox and Hubal, who resigned during the suit, can never apply for another job with the OAE or the AOC. Perry-Slay, who still works for the OAE, was required to sign a separate agreement restricting her rights to challenge her job assignment.
In fact, the deal turned on Perry-Slay's separate agreement. It recites her understanding that "were it not for my entering into this Supplemental Agreement, the State of New Jersey Judiciary would not have entered into the General Agreement and Release with me and my co-plaintiffs."
The agreement states that her AS-3 classification was not discriminatory and she will not challenge being kept there as long as there is no "material change" in her duties. But she is free to apply for reclassification through the AOC's regular procedures.
Perry-Slay, who is African-American, also alleged she was excluded from training and social events open to her white colleagues and was exposed to racist e-mail messages.
The settlement also called for a joint statement to be issued by the Attorney General's Office upon final execution. That did not occur until Thursday. The statement said the case has been "amicably resolved" and describes the terms.
The suit, filed in March 2005, alleged violations of the New Jersey Law Against Discrimination, the federal Equal Pay Act and Title VII of the Civil Rights Act of 1964.
By the time it settled, the case had been whittled away by dismissals and undermined by a 2007 U.S. Supreme Court ruling that imposed tight time limits on pay-discrimination suits. In September 2006, the plaintiffs dropped the hostile-environment claims.
The parties then filed cross-motions for summary judgment. U.S. District Judge Anne Thompson in Trenton denied the plaintiffs' motion but partially granted the OAE's on Dec. 29, 2006. She tossed the state discrimination claims on the basis of Eleventh Amendment sovereign immunity but refused to dismiss the federal discrimination and equal pay claims, finding genuine issues of material fact that justified going forward. Thompson said in her opinion that, in opposing the plaintiffs' motion, the OAE conceded the existence of such issues.
In deciding a defense motion for reconsideration on April 26, 2007, Thompson found that a reasonable factfinder could conclude that an affidavit by OAE Director David Johnson, explaining how the plaintiffs were hired in the AS-3 tier, "constitutes an after-the-fact rationalization for the OAE's employment decisions." But she dismissed the claim for failure to hire the plaintiffs at the AS-4 tier for other reasons.
All that remained of the case were federal claims for wage disparity and failure to promote. Then, on May 29, 2007, the U.S. Supreme Court ruled, in Ledbetter v. Goodyear Tire & Rubber, that the time to file a disparate pay claim with the Equal Employment Opportunity Commission begins to run on the date of the original discriminatory pay decision, specifically rejecting a "paycheck accrual rule" that would restart the clock with each lower paycheck.
A month later, on June 25, Deputy Attorney General Meryl Nadler wrote to U.S. Magistrate Judge John Hughes asking for permission to file a new motion for summary judgment based on Ledbetter. She stated the OAE was willing to settle for "no more than $90,000, whether or not Perry-Slay agrees to leave the Office of Attorney Ethics."
The OAE filed its new motion in October, arguing that the plaintiffs' Title VII wage disparity claims were time-barred under Ledbetter. Employees in New Jersey who want to sue for discrimination must first file a complaint with the EEOC within 300 days. The Cox plaintiffs went to the EEOC on April 6, 2005, years after they were hired and the alleged pay discrimination began. Perry-Slay started at the OAE in 1999, Cox in 2001 and Hubal in 2003.
The motion was withdrawn without prejudice on Feb. 1 because a tentative settlement had been reached. The agreement and release were signed at the end of March and a stipulation of dismissal with prejudice filed with the court on June 3.
The plaintiffs' attorney, Richard Schall, of Schall & Barasch in Moorestown, declines to discuss how much Ledbetter affected the outcome, other than to say "a lot of factors influence a settlement."
He describes a hard-fought case with extensive discovery where the back-pay damages were cut off when Cox and Hubal left the OAE. "Not too many lawyers would have continued to aggressively pursue this case," says Schall. "We were prepared to try it if no reasonable settlement was reached."
Perry-Slay and Hubal both refer requests for comment to Schall.
Cox was the only plaintiff who wanted to continue with the case. She says she is disappointed on a personal level. "I feel I lost a career, I lost a pension because of this nonsense," she says.
Congress tried to overturn Ledbetter, with the Lilly Ledbetter Fair Pay Act of 2007. H.R. 2831 passed the House on a 225-199 vote on July 31, 2007, but has been effectively filibustered in the Senate thus far.
