NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-5589-15T4
NOELIA LOPEZ, CINDY
NELSON, TARA KENNELLY,
and TANIA NOUEL,
LLC, d/b/a BORGATA CASINO
HOTEL & SPA,
Submitted March 13, 2019 – Decided May 20, 2019
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-2833-08.
Herman Law Offices, LLC, attorneys for appellants
(Robert D. Herman, of counsel and on the briefs).
Morgan Lewis & Bockius LLP, and Cooper Levenson
PA, attorneys for respondents (Michelle S. Silverman,
Emily C. DeSmedt, and Russell L. Lichtenstein, on the
Plaintiffs Jacqueline Schiavo, Noelia Lopez, Cindy Nelson, Tara
Kennelly, and Tania Nouel appeal from the trial court's July 15, 2016 order,
granting summary judgment dismissing their claims that defendant Marina
District Development Company (Borgata) subjected them to a hostile work
environment in violation of the Law Against Discrimination (LAD), N.J.S.A.
10:5-1 to -49. Plaintiffs contend that our prior opinion, reversing the trial court's
initial grant of summary judgment on those claims, was binding on the trial
court, which erred in once again dismissing the case on remand. See Schiavo v.
Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346 (App. Div. 2015). In the
circumstances of this case, we agree with that argument. We reverse the order
on appeal and remand the case for trial.
To put the issue in context, we summarize pertinent information from the
prior appeal. Plaintiffs, and several other women who were hired to work as
costumed beverage servers in defendant's "BorgataBabes" program, claimed that
"defendant's adoption and application of personal appearance standards (the
PAS) subjected them to illegal gender stereotyping, sexual harassment, disparate
treatment, disparate impact, and as to some plaintiffs, resulted in adverse
employment actions." Schiavo, 442 N.J. Super. at 357. We affirmed in part and
reversed in part the trial court's original order, which dismissed all of the
plaintiffs' claims on summary judgment. 1 At the beginning of the opinion, we
summarized our holding, preserving plaintiffs' harassment claims, in the
following unambiguous language:
We have considered plaintiffs' claims and conclude all
facial discrimination challenges to the PAS are time-
barred or unsupported. We also conclude the LAD does
not encompass allegations of discrimination based on
weight, appearance, or sex appeal. However, we
determine the motion judge erred in concluding the
record was insufficient to present a prima facie claim
of sexual harassment hostile work environment
discrimination. Certain plaintiffs, whose lack of
compliance resulted from documented medical
conditions or post-pregnancy conditions, have
presented a material dispute of facts regarding
defendant's application of the PAS weight standard
resulting in harassment because of their gender. As to
those claims, summary judgment is reversed and the
matter remanded. As to all other claims, for the reasons
discussed in our opinion, we affirm.
[Id. at 358-59 (emphasis added).]
Four of the eleven plaintiffs whose claims we remanded reached settlements
with defendant. Five of the remaining seven plaintiffs participated in this
Later in the opinion, we further addressed plaintiffs' individual claims of
hostile work environment, stating:
The record include[d] evidence of several plaintiffs
who experienced discriminatory interactions following
pregnancies or documented medical conditions, most of
which were specific only to women, in the course of
enforcing the weight standard.
Following our review, we agree material factual
disputes regarding harassment experienced by some
plaintiffs made summary judgment dismissal of their
claims unwarranted. It is important to understand that
although all plaintiffs couched their testimony in the
context of enforcement of the PAS, the claims are not
discriminatory because of weight per se, but because of
a gender specific characteristic such as pregnancy or a
medical condition such that the weight comments
actually targeted women. In essence, but for the
subjected plaintiffs' sex, they would not have been the
object of the harassment.
[Id. at 387-88 (emphasis added).]
Our opinion recited specific examples of such evidence pertaining to each
of eleven plaintiffs litigating the original appeal. Id. at 388-89. The following
examples concern the five plaintiffs involved in the current appeal:
(3) Kennelly was required by her shift manager
Diane Hardie to wear a maternity costume in the early
stages of her pregnancy, prior to any need to do so.
When she returned from maternity leave, Hardie
expressed disbelief [that] Kennelly's weight was within
limits and required Kennelly to undergo a weigh-in
twice during that day.
(5) Lopez suffered severe asthma following her
child's birth for which she was prescribed several
medications that impacted her weight. Despite medical
documentation, she was suspended for violating the
PAS weight standard. Although she was shortly
reinstated, she received only partial compensation.
Later, despite Lopez's medical condition, Singe Huff,
Borgata's Vice President of Talent, insisted Lopez lose
one pound per week. Her physician documented the
health detriment she would suffer to accomplish such
weight loss, which Huff rejected.
(6) Nelson was weighed despite being pregnant
and was told by Hardie it was 'just in case you're just
getting fat and that's the real reason why you want to
wear [the maternity costume].'
(7) Nouel recounted offensive comments by
Jeffrey Rankin, in the presence of her shift manager
Stephanie Brown[,] that women who have children
should not come back to work because they get fat.
(9) Schiavo grieved a suspension for failing to
comply with the PAS weight standard. Her medical
documentation explaining [that] post-surgery
medication contributed to her weight gain was rejected.
Our opinion further stated that additional evidence in the record "reinforce[d]
similar hostile work environment allegations, unmitigated by defendant's
management." Id. at 389.
We concluded that although "enforcement of the PAS weight standard
alone may not violate the LAD, the complained of conduct reflects a pattern of
discriminatory comments toward women suffering medical conditions or
returning from maternity leave that present a prima facie cause of action." Id.
at 390. We stated that, viewing the evidence in the light most favorable to
plaintiffs, they had made a "prima facie showing of harassment against women
because of their gender, which 'a reasonable woman would consider sufficiently
severe or pervasive to alter the conditions of employment and create an
intimidating, hostile, or offensive working environment.'" Ibid. (quoting
Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)). We held that the
record was "adequate to create a substantial dispute of material facts that the
harassment alleged was gender based, defeating summary judgment." Ibid.
(citation omitted). While we did not specifically state that on remand the case
should be tried unless settled, that was the clear import of our holding.
A decision of this court is binding on the trial court on remand. See
Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993). If
we decided the issue on appeal, the parties may not re-litigate the issue in the
trial court. Baker v. Nat'l State Bank, 353 N.J. Super. 145, 170 (App. Div. 2002).
While the law of the case doctrine is discretionary as between courts of equal
jurisdiction, that principle does not apply as between the Appellate Division and
a trial court handling the same case. See Lombardi v. Masso, 207 N.J. 517, 539
(2011); Tully v. Mirz, 457 N.J. Super. 114, 128 (App. Div. 2018). "It is the
responsibility of a trial court to comply with the pronouncements of an appellate
court," and it is therefore a trial judge's "peremptory duty . . . on remand, to obey
the mandate of the appellate tribunal precisely as it is written." Jersey City
Redevelopment Agency v. Mack Props. Co. No. 3, 280 N.J. Super. 553, 562
(App. Div. 1995) (citations omitted). Although "[t]rial judges are privileged to
disagree with the pronouncements of appellate courts," that privilege "does not
extend to non-compliance." Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961).
On remand here, our decision was the law of the case and our legal
conclusions, drawn from the evidence, were binding on the trial court. The trial
court had no authority to reconsider the same evidence we reviewed and reach a
different legal conclusion from that evidence. 2 On remand, the trial court
Ordinarily, a trial court has authority to reconsider its own interlocutory
orders, including summary judgment orders. See Lombardi, 207 N.J. at 533.
However, that principle does not normally apply after we reverse a trial court's
summary judgment order on the merits. Id. at 538-40. On the other hand, if a
party obtains new evidence, post-remand, a second summary judgment motion
may appropriately lead to a different outcome. See Baker, 353 N.J. Super. at
initially signaled its intent to schedule a trial. However, in an effort to avoid a
trial, defendant sought and obtained the trial court's permission to "renew" its
summary judgment motion. On that motion, defendant submitted the previous
summary judgment evidence, plus a small amount of additional evidence not
previously submitted on the pre-appeal summary judgment motion. Only a few
of those documents concerned these five plaintiffs. Moreover, defendant's
appellate brief does not explain how any of those new documents affect the
material factual disputes we cited in our opinion. Instead, defendant's brief re-
argues the evidence submitted on its original summary judgment motion, citing
to the statement of undisputed material facts it filed in 2013.
As reflected in the trial court's opinion, defendant argued to the trial court
that "the Appellate Division did not review the specific record evidence
supporting each of the Plaintiffs' individual claims of hostile work environment,
and thus, it is appropriate for [the trial court] to do so in the context of its
170. For example, if we remanded because summary judgment was granted
before discovery was completed, the trial court would be free to reconsider the
summary judgment issues on a new motion filed after the parties complete
renewed [m]otions for [s]ummary [j]udgment." That argument was a distortion
of our opinion, which clearly reflected our review of the evidentiary record. 3
In deciding the motion, the trial court characterized our opinion as finding
"that the [trial court] ruled prematurely by failing to make sufficient [f]indings
of [f]act" in deciding the original summary judgment motion. That was a
misreading of our opinion. We did not criticize the trial court for making
insufficient factual findings. Rather, after de novo review of the record, we held
as a matter of law that the evidence plaintiffs produced raised material disputes
of fact on their harassment claims, thereby precluding summary judgment on
those claims. We therefore remanded the harassment claims to the trial court.
The trial court should have followed its initial inclination and scheduled the case
for trial, instead of giving defendant a second bite of the apple on summary
judgment issues this court already decided.
As we previously held, plaintiffs' evidence, considered as true and viewed
in the light most favorable to them, raised material factual disputes as to their
harassment claims. After a decade of motion practice and appeals, plaintiffs are
Defendant's appellate brief presents the same inaccurate interpretation of our
opinion. Defendant also misplaces reliance on an unpublished decision in a case
where, on remand, both sides consented to the trial court deciding the case on
entitled to their day in court. We reverse the order on appeal and remand this
case for trial.
Reversed and remanded. We do not retain jurisdiction.