CHRISTINA M. GERETY and JOHN GERETY, Husband et al. v. ATLANTIC CITY HILTON CASINO RESORT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0365-06T50365-06T5

CHRISTINA M. GERETY and

JOHN GERETY, Husband and

Wife,

Plaintiffs-Appellants,

v.

ATLANTIC CITY HILTON CASINO

RESORT,

Defendant-Respondent,

and

MARY BURUSS and RACHEL BOGATIN,

Defendants.

________________________________________________________________

 

Submitted November 15, 2007 - Decided

Before Judges Wefing, Parker and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3846-99.

Clifford Van Syoc Chartered, attorneys for appellants (James E. Burden and Sebastian B. Ionno, on the brief).

Sills Cummis Epstein & Gross, attorneys for respondent (David W. Garland, of counsel; Mr. Garland and Jerrold J. Wohlgemuth, on the brief).

PER CURIAM

Plaintiffs Christina M. and John Gerety appeal from an order entered on April 26, 2006 granting summary judgment dismissing their complaint and from an order entered on August 24, 2006 denying their motion for reconsideration. We affirm.

Plaintiffs are wife and husband who allege that defendant, Atlantic City Hilton Casino (Hilton), violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, because Christina was terminated after exhausting her six-month disability leave following a pregnancy. John, who was also employed by defendant, claims that after Christina filed discrimination complaints with the Equal Employment Opportunity Commission (EEOC) and the Superior Court, his applications for promotion were denied and less qualified candidates were chosen.

The complaint was filed on July 28, 1999 against the Hilton and two employees for gender discrimination, wrongful discharge, intentional infliction of emotional distress, retaliation under the LAD and loss of consortium. After the parties completed discovery, defendants moved for summary judgment. The trial court rendered a written decision in January 2004 partially granting defendants' motion, dismissing all counts except two LAD claims against Hilton. The claims against the individual employees were dismissed with prejudice.

Hilton, the sole remaining defendant, moved for leave to appeal. That motion was denied but the Supreme Court "granted Hilton's motion for leave to appeal nunc pro tunc." Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391, 396-97 (2005). The Supreme Court reversed that portion of the trial court's decision that found discrimination as a matter of law. Id. at 407. The matter was remanded and the Hilton again moved for summary judgment. That motion was granted, dismissing the remaining LAD claims on April 26, 2006. After plaintiffs' motion for reconsideration was denied, they appealed.

The background facts have been set forth by the Supreme Court in its decision. Briefly summarized, the facts are as follows: Christina was employed as a Casino Floor Supervisor when she learned that she was pregnant in September 1997. Her pregnancy with twins was high risk and Christina was placed on medical leave from October 5 to December 1 by her physician. After Christina was hospitalized for several days with heart palpitations, dehydration, low blood pressure and dizzy spells, her medical leave was extended to February 1, 1998. The medical leave was again extended to the end of the pregnancy.

Christina's expected due date was in May 1998. 184 N.J. at 395. The Hilton's policy allowed for a maximum medical leave of six months, which concluded on April 1, 1998. Under Hilton's policy, Christina's employment terminated on April 2 and she would then be eligible for rehire at entry level status. The Family and Medical Leave Act, 29 U.S.C. 2612, entitles eligible employees to twelve weeks medical leave within twelve months. Hilton's policy exceeds the statutory requirement, adding fourteen weeks leave time for a total of twenty-six weeks (six months) within a twelve-month period.

Christina delivered twins by C-section on April 15, 1998, five weeks before her expected due date, but two weeks after the end of her authorized medical leave under Hilton's policy. "Thirteen days elapsed between the exhaustion of Christina's medical leave and the twins' birth on April 15, at which time she would have been entitled to leave to care for the infants pursuant to the New Jersey Family Leave Act (NJFLA), N.J.S.A. 34:11B-1 to -16." 184 N.J. at 395-96. In September 1998, Christina filed an EEOC claim for discrimination.

John supported Christina's claim. He was also a Hilton employee who had been promoted several times, becoming a Dual Rate Supervisor in 1991. John claims that he was passed over for promotion three times - in March 1999, January 2000 and February 2002 - since Christina filed her claim. When Christina filed her LAD complaint in July 1999, John joined the action, alleging that Hilton denied him promotions in retaliation for his support of Christina's EEOC complaint.

Following the grant of summary judgment dismissing the LAD claims against Hilton, plaintiffs appeal, arguing two principal points: (1) defendant violated the LAD by terminating Christina after her disability leave expired; and (2) defendant wrongly retaliated against John after he encouraged his wife to file the complaints.

With respect to Christina's claims, she argues that her allegations of gender discrimination have never been adjudicated on the merits. She contends that Hilton granted a male employee medical leave for a year and allowed seven other male employees to be rehired without losing seniority. Christina also argues that in addition to gender bias in the pregnancy policy, Hilton discriminated against her on the basis of disability.

In order to establish a claim for disparate treatment:

[T]he plaintiff must demonstrate that he or she (1) belongs to a protected class; (2) applied for or held a position for which he or she was objectively qualified; (3) was not hired or was terminated from that position; and (4) the employer sought to, or did fill the position with a similarly-qualified person.

[Gerety, supra, 184 N.J. at 399 (citing Andersen v. Exxon Co., 89 N.J. 483, 492 (1982)).]

If plaintiff cannot prove the fourth element, she must then demonstrate a discriminatory motive on the part of the employer. Ibid. After a plaintiff demonstrates the four elements establishing a prima facie case, the "burden then shifts to the employer to prove a legitimate, non-discriminatory reason for the employment action." Ibid. (citing Andersen, supra, 89 N.J. at 493). If the employer meets that burden, the plaintiff has an opportunity to show that the employer's purported reason is merely pretext. Ibid. (citing Andersen, supra, 89 N.J. at 493).

In its prior review of this case, the Supreme Court found no evidence of disparate treatment and moved onto its analysis of disparate impact, which it resolved in defendant's favor. Id. at 400-01. The Court's focus on the lack of disparate treatment suggests that the missing element was discriminatory motive, because a discriminatory motive can sometimes "be inferred from the mere facts of differences in treatment." Id. at 398 (quoting Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 81-82 (1978)).

On remand, the trial court commented that "[t]he New Jersey Supreme Court did not address any issue of disparate treatment since it was not before it." It is undisputed that plaintiff established the four elements required for a claim of disparate treatment: it is undisputed that she was a pregnant woman; that she was qualified for her position; that she was terminated; and that her position was filled by a similarly qualified individual. On remand, therefore, the trial court had only to determine whether Hilton treated Christina differently from any other employee with respect to the pregnancy policy. The trial court found

no evidence to indicate that the Atlantic City Hilton applied the 26-week disability leave policy any differently for Christina Gerety than for any other employees. Christina Gerety has not presented any evidence of any similarly situated employee receiving more favorable treatment, and has not argued . . . disparate treatment under the LAD.

Because the issue of disparate impact has been decided by a New Jersey Supreme Court and there is no evidence of disparate treatment, the Motion for Summary Judgment of Atlantic City Hilton is granted as to those issues.

The court specifically noted:

At oral argument an issue was raised for the first time dealing with accommodation for handicap. The Court rejects the belated attempt to turn this LAD case alleging disparate treatment and disparate impact, and retaliation into a claim alleging accommodation for handicap. The issue was not briefed by the plaintiffs and raised gratuitously at . . . argument for the first time. The concept was not developed in the Complaint and no claim was ever made for accommodation on the job. The claim has always been, and remains, an LAD claim of disparate impact and some initial claim of disparate treatment which has not been seriously pursued or substantiated.

With respect to John Gerety, the trial court noted that the individual responsible for decisions on his promotions, Vice President of Casino Operations, Rachel Bogatin, "has offered evidence that she had no knowledge of the lawsuit and the plaintiff has offered an opinion about the defendant's evidence, but not facts." The court determined that this was not a credibility issue because there was no contradictory evidence as to whether Bogatin had knowledge of Christina's complaints in 1999. In other words, Bogatin's assertion was undisputed. The court found, therefore, "that summary judgment is appropriate in favor of defendant as to plaintiff's allegation that he was retaliated against by not being promoted to pit boss in March of 1999 because of his protect[ed] activity under the LAD."

With respect to John's claim that he was passed over for promotion in January 2000 in retaliation for Christina's complaints, the court found that in each instance, Bogatin "used valid hiring criteria which strongly emphasized a gambling license in craps because of the game's labor intensive nature and the fact that the game produces higher revenues."

With respect to the February 2002 promotion, the court again found that Bogatin used legitimate criteria in hiring an expert in blackjack, rather than John. The court specifically noted that plaintiffs produced no evidence demonstrating that defendant's actions were pretextual and concluded that

there is simply no reasonable inference to be drawn in favor of a decision based on retaliation. The proofs are to the contrary. The mere subjective belief of a plaintiff is not sufficient. If that were the test, paranoia would control . . . . [A]s a matter of policy we need more than a subject[ive] belief by someone that they did not receive a promotion, or they were fired, or they have received some adverse employment decision based upon just their own gut feeling but without any evidence in support of it.

With respect to Christina's claim, the issue is discriminatory motive; that is, (1) whether defendant met its burden to show a legitimate, non-discriminatory reason for terminating Christina's employment; and if so, (2) whether plaintiff presented evidence sufficient to show that defendant's purported reason was a mere pretext.

Here, the record clearly indicates that Hilton has met its burden by showing that Christina used all of her available medical leave prior to birth of the twins. 184 N.J. at 395. Hilton's medical leave policy states that an employee who does not return at the end of the authorized leave period, but is later rehired, should be treated as "a new employee in every respect."

Plaintiffs claim that several male employees were rehired without returning to entry level. All but one of those incidents occurred prior to the implementation of the leave policy in January 1996. Bogatin explained that the one instance that occurred after the policy was implemented involved a higher level employee who could be rehired laterally, while lower level employees, such as Christina, could not. Plaintiffs did not offer any evidence to refute this explanation.

In this appeal, Christina claims that "[t]he trial court erroneously concluded that Christina did not plead a handicap discrimination claim under the LAD when it granted defendant's motion for summary judgment." Christina maintains that she pleaded discrimination on the basis of disability. In the complaint, however, the only reference to disability is in paragraph twenty-two:

The defendants' family leave, medical leave and other leave policies which pertained to the plaintiff have the effect of discriminating against women, by reason of the fact that the policies limit leave to six months, whereas it is known that females, but not males, can be pregnant, and be disabled because of the pregnancy for a total of nine months.

Nowhere in the record of this case, however, including appeals and remand to the trial court, does plaintiff pursue a disability claim. Indeed, the first time plaintiffs' counsel mentioned a disability claim was on November 9, 2005, at oral argument after the remand. The trial court examined the lengthy history of the case, including extensive discovery and argument, and concluded that plaintiff made no claim for discrimination on the basis of disability. We agree. Nothing in paragraph twenty-two or the remaining record before us indicates that Christina pled or pursued a claim for discrimination on the basis of disability under the LAD.

With respect to John's retaliation claim, he maintains that Hilton denied his promotions "in retaliation for his objecting to the discriminatory manner in which the . . . Hilton treated his wife Christina." Where the alleged adverse action is a failure to promote, the elements of a prima facie case can be made by showing that "(1) the claimant engaged in a protected activity that was known to the alleged retaliator, (2) the promotion sought was denied and (3) the claimant's engagement in the protected activity was a cause of the promotion denial." Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 447 (App. Div. 1990) (citing Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir. 1986)); Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 n.1 (1988).

If plaintiff establishes a prima facie case, the burden "shifts to the employer to articulate some legitimate non-retaliatory reason for the adverse action." Jamison, supra, 242 N.J. Super. at 445 (citing Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1984)). If the employer can articulate a non-retaliatory reason, the employee has the opportunity to bring forth evidence showing a discriminatory intent. Ibid. If the employee can do so, a presumption of retaliatory intent arises and the burden shifts again to the employer to show that it would have denied the employee the promotion - regardless of any retaliatory motive - based upon the qualifications of other candidates. Id. at 445, 447.

It is undisputed that John supported Christina's filing of the LAD complaints. The LAD prohibits retaliation against a person for having "opposed any practices or acts forbidden under [the LAD] or . . . having aided or encouraged any other person in the exercise or enjoyment of . . . any right granted or protected by the [the LAD]." N.J.S.A. 10:5-12d; Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 626 (1995). The first element of the retaliation claim, however, requires that the person authorized to make the employment decision knew about the protected activity. Young v. Hobart West Group, 385 N.J. Super. 448, 466 (App. Div. 2005).

Here, John not only failed to produce any evidence that the decision maker, Bogatin, knew of Christina's claims in 1999, but John admitted in his deposition that he did not think Bogatin knew about them. He further acknowledged that no one in Hilton's upper management knew about his support and encouragement of Christina's claim. Rather, he "assumed that, by looking at the EEOC charge, that they knew I assisted my wife and that they were retaliating . . . for my helping with the EEOC charge." The only basis for John's claim that Hilton knew he supported Christina's claim was based on his conversations with pit managers in the early 1990's about another female employee who was fired because she was on bed rest during a pregnancy. None of those individuals, however, were responsible for making decisions regarding John's promotions in 1999, 2000 and 2002.

We agree with the trial court that plaintiffs produced no evidence that Bogatin knew of John's protected activities at the time of the 1999 decision to hire someone else rather than promote him. With respect to the 2000 and 2002 promotions, defendant demonstrated legitimate non-retaliatory reasons for its hiring decisions. Plaintiffs further failed to demonstrate a causal connection between John's support of Christina's claims and the decisions not to promote him. The facts must be "'unusually suggestive of retaliatory motive.'" Young, supra, 385 N.J. Super. at 467 (quoting Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3rd Cir. 1997)). Here, they are not.

In John's certification in opposition to defendant's summary judgment motion, he suggests that defendant departed from its regular practices of selecting in-house employees for promotion. He did not, however, provide any documentation or other corroborative evidence of a retaliatory motive in hiring highly qualified personnel from outside the company. Based upon our review of the extensive record presented, we are satisfied that defendant has met its burden of articulating legitimate, non-retaliatory reasons for passing over John for the 2000 and 2002 promotions.

Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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). A genuine issue of material fact exists only if the evidence presented, "viewed in the light most favorable to the non-moving party," is 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). We have carefully considered the record in light of plaintiffs' arguments and we are satisfied that the trial court properly granted summary judgment dismissing the LAD claims against defendant. R. 2:11-3(e)(1)(A).

Affirmed.

 

(continued)

(continued)

15

A-0365-06T5

February 29, 2008