JACQUELINE SCHIAVO v. MARINA DISTRICT DEVELOPMENT COMPANY LLC

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE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-5589-15T4

JACQUELINE SCHIAVO,
NOELIA LOPEZ, CINDY
NELSON, TARA KENNELLY,
and TANIA NOUEL,

          Plaintiffs-Appellants,

v.

MARINA DISTRICT
DEVELOPMENT COMPANY,
LLC, d/b/a BORGATA CASINO
HOTEL & SPA,

     Defendant-Respondent.
_______________________________

                    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
             brief).

PER CURIAM

      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

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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).]




1
  Four of the eleven plaintiffs whose claims we remanded reached settlements
with defendant. Five of the remaining seven plaintiffs participated in this
appeal.
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      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.

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                  ....

                   (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.

            [Ibid.]

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.

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      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


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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


2
   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


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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
discovery.


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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



3
  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
summary judgment.
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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.




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