ABIR ELGHANDOUR VS. MARINA DISTRICT DEVELOPMENT COMPANY, LLC, ETC. (L-5963-14, ATLANTIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4455-16T3
ABIR ELGHANDOUR,
Plaintiff-Appellant,
v.
MARINA DISTRICT DEVELOPMENT
COMPANY, LLC, d/b/a BORGATA
HOTEL, CASINO & SPA,
Defendant-Respondent.
_________________________________
Submitted October 9, 2018 – Decided November 8, 2018
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-5963-14.
Costello & Mains, LLC, attorneys for appellant
(Deborah L. Mains, on the brief).
Cooper Levenson, PA, attorneys for respondent
(Russell L. Lichtenstein and Alyson M. Tomljenovic,
of counsel; Jennifer B. Swift, on the brief).
PER CURIAM
Plaintiff Abir Elghandour appeals from the Law Division's June 16, 2017
order granting summary judgment to defendant, Marina District Development
Company, LLC, d/b/a Borgata Hotel, Casino & Spa, and dismissing her
complaint alleging violations of the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-1 to -49 (the LAD). We confine our review to the motion record
before the Law Division judge. Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App.
Div. 2000).
I.
Plaintiff began working as a poker dealer in defendant's casino in 2006.
In 2010, plaintiff became a "casual poker dealer," that is, a dealer who worked
between one to five days per week as needed. Defendant used a computer
program to schedule the casual dealers, subject to changes made by the dealer
coordinator (DC), who could adjust schedules as required. All casual dealers
were required to follow the DC's scheduling adjustments, and the DC would give
plaintiff her specific table assignments. Plaintiff routinely reported to shift
managers Michael Brown and Steve Coyle, who in turn reported to Vincent
Alonge, Director of Poker Operations. None of these men controlled plaintiff's
table assignments.
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In deposition testimony, plaintiff alleged that all three men touched her
without her consent on multiple occasions beginning in 2006 and ending in
2011, when plaintiff's resistance to their contact was acknowledged. She also
refused invitations from the men to attend parties. According to plaintiff, female
employees who accepted those invitations, and who had sexual relationships
with the men, received preferential schedule and table assignments at work. In
front of plaintiff, male shift managers would brag about sexual encounters with
certain employees.
Plaintiff testified that beginning in 2007, she complained about this to
defendant's human relations department (HR). She claimed to have filed more
than twenty-five written complaints with HR, and complained about the conduct
through an employee hotline in June 2011. Plaintiff testified that HR had
documentation of those complaints. Lydia Waters, defendant's HR director,
testified in her deposition that in accordance with company policy and
procedure, HR documented all employee complaints. However, plaintiff
produced only a case number assigned to her hotline complaint and no other
documents regarding her written complaints.
On July 29, 2014, Waters suspended plaintiff for three days pending
further investigation. The suspension notice accused plaintiff of insubordination
A-4455-16T3
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and abandonment of her work assignment on July 19 and 22. Plaintiff testified
at deposition about the events leading up to her suspension.
On July 19, the DC assigned plaintiff to a "tournament game," where
players bet chips with no actual value, not a "live" game, where players use chips
with value. According to plaintiff, tournament games yield less tip money for
the dealers. After two hours, plaintiff left the tournament room and went to the
main "poker room," where she noticed a "junior" female dealer was dealing a
live game. Plaintiff immediately complained about the tournament assignment
to Coyle, Brown and the DC on the open floor of the poker room. She said that
she made a complaint that day or the next to HR. Plaintiff denied she was
insubordinate or that she left her assignment.
On July 22, plaintiff signed her time card to deal a tournament game from
10:30 to 11 a.m. She re-signed her time card at 11 a.m. Defendant alleged
plaintiff purposely signed in for a poker game that she did not actually deal, but
plaintiff claimed the DC changed her schedule and told her to take her break at
10:30 after she had already signed in.
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Defendant terminated plaintiff on August 5, 2014.1 An email from HR to
Alonge dated the same day, which plaintiff countersigned, notes the July 19
incident was part of a "pattern of argumentative behavior . . . addressed with
[plaintiff] on multiple occasions during [her] employment." Plaintiff denied the
charges and unsuccessfully contested her termination through defendant's
appeals process.
When it moved for summary judgment, defendant produced the single
complaint made by plaintiff in its records. That involved plaintiff's 2011
allegations that a female DC discriminated against her by scheduling her to deal
tournaments and not live games. Defendant also produced multiple
unsatisfactory performance evaluations of plaintiff and citations for misconduct
during her employment.
In his written statement of reasons that accompanied the order granting
summary judgment, the judge essentially concluded no other evidence in the
record corroborated plaintiff's bare assertions. He reasoned that plaintiff failed
to raise a genuine dispute as to material facts, and defendant was entitled to
judgment as a matter of law.
1
Plaintiff said she received a termination letter on August 2, 2014, but none is
in the record.
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II.
Plaintiff contends the judge misapplied summary judgment standards
because a jury reasonably could conclude that defendant discriminated against
her because of her gender, both in terms of permitting a hostile work
environment and quid pro quo sexual harassment. Plaintiff also argues a jury
reasonably could conclude that defendant retaliated against her when she
complained by suspending her and then terminating her employment. We
disagree and affirm.
We review the grant of summary judgment de novo, applying the same
standard used by the trial judge, which
mandates that summary judgment 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."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.
4:46-2(c)).]
"The practical effect of [Rule 4:46-2(c)] is that neither the motion court nor an
appellate court can ignore the elements of the cause of action or the evidential
standard governing the cause of action." Bhagat v. Bhagat, 217 N.J. 22, 38
(2014).
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We must decide "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." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406
(2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). We owe no deference to the trial court's legal analysis or interpretation
of a statute. The Palisades At Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade,
LLC, 230 N.J. 427, 442 (2017) (citing Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
The LAD prohibits employers from discriminating against employees
based upon their gender. N.J.S.A. 10:5-12(a).
To prove a LAD claim for hostile work
environment sexual harassment, a plaintiff has the
burden to demonstrate that "the complained-of conduct
(1) would not have occurred but for the employee's
gender; and it was (2) severe or pervasive enough to
make a (3) reasonable woman believe that (4) the
conditions of employment are altered and the working
environment is hostile or abusive."
[Griffin v. City of E. Orange, 225 N.J. 400, 413-14
(2016) (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J.
587, 603-04 (1993)).]
"'When the harassing conduct is sexual or sexist in nature,' as 'when a plaintiff
alleges that she has been subjected to sexual touchings or comments,' the first
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element 'will automatically be satisfied.'" Ibid. (quoting Lehmann, 132 N.J. at
605).
The Court in Lehmann also described the elements of quid pro quo sexual
harassment:
Quid pro quo sexual harassment occurs when an
employer attempts to make an employee's submission
to sexual demands a condition of his or her
employment. It involves an implicit or explicit threat
that if the employee does not accede to the sexual
demands, he or she will lose his or her job, receive
unfavorable performance reviews, be passed over for
promotions, or suffer other adverse employment
consequences.
[132 N.J. at 601.]
In this case, not a shred of evidence in the motion record supports
plaintiff's claims of hostile environment or quid pro quo sexual harassment.
Virtually all citations to the motion record contained in plaintiff's appellate brief
regarding her claims of sexual harassment reference her own deposition
testimony, interrogatory answers or statements she made to defendant's
representatives when she appealed her termination. Plaintiff's limited references
to other witnesses, or to women who allegedly received favorable treatment for
yielding to sexual advances, fail to identify them with anything other than a
single name. The record does not contain statements, certifications or deposition
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testimony from any of them, nor does the record corroborate plaintiff's claim of
having made twenty-five written complaints about the discriminatory conduct.
Plaintiff argues that her allegations alone are sufficient to defeat summary
judgment, but they are not. "To defeat a motion for summary judgment, the
opponent must 'come forward with evidence' that creates a genuine issue of
material fact." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014)
(quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32
(App. Div. 2012)). "Bare conclusory assertions, without factual support in the
record, will not defeat a meritorious application for summary judgment."
Horizon Blue Cross Blue Shield, 425 N.J. Super. at 32 (citing Brae Asset Fund,
LP v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)); accord Puder v.
Buechel, 183 N.J. 428, 440-41 (2005) ("[C]onclusory and self-serving assertions
by one of the parties are insufficient to overcome the [summary judgment]
motion."); Oakley v. Wianecki, 345 N.J. Super. 194, 201 (App. Div. 2001)
("unsubstantiated inferences and feelings" are insufficient to defeat a motion for
summary judgment). We need not explicate at length the facts in Oakley, except
to point out that it presented similar unsubstantiated claims of sexual harassment
in the workplace. Id. at 197-200.
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The LAD also makes it unlawful "[f]or any person to take reprisals against
any person because that person has opposed any practices or acts forbidden
under this act." N.J.S.A. 10:5-12(d). To establish a prima facie case of
retaliation, a plaintiff must demonstrate that he or she (1) "engaged in a protected
activity known to the employer"; (2) was "subjected to an adverse employment
decision"; and (3) there was "a casual link between the protected activity and
the adverse employment action." Battaglia v. United Parcel Serv., Inc., 214 N.J.
518, 547 (2013) (citing Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252,
274 (App. Div. 1996)). In evaluating a retaliation claim under the LAD, the
Court has followed the United States Supreme Court's burden-shifting analysis
delineated in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802–04
(1973). Battaglia, 214 N.J. at 546–47. If the plaintiff establishes a prima facie
case, a defendant has the burden to provide a legitimate reason for the adverse
employment action. Woods, 290 N.J. Super. at 274. The plaintiff then must
show that a retaliatory intent motivated the adverse employment action either
by indirectly "proving that the proffered reason is a pretext for the retaliation,"
or by directly showing "that a retaliatory [intent] more likely than not motivated
[the] defendant's action." Ibid.A-4455-16T3
10
Assuming arguendo plaintiff's bare assertions were sufficient to establish
a prima facie case of retaliation in violation of the LAD, summary judgment was
nevertheless appropriate because she failed to rebut the abundant proof
supporting defendant's non-pretextual reasons for termination. Regarding the
burden-shifting analysis, "[w]e have adopted and consistently applied th[e]
standard" set out by the Third Circuit in Fuentes v. Perskie, 32 F.3d 759 (3d Cir.
1994). DeWees v. RCN Corp., 380 N.J. Super. 511, 528 (App. Div. 2005).
[T]o avoid summary judgment, the plaintiff's evidence
rebutting the employer's proffered legitimate reasons
must allow a factfinder reasonably to infer that each of
the employer's proffered non-discriminatory reasons
. . . was either a post hoc fabrication or otherwise did
not actually motivate the employment action (that is,
the proffered reason is a pretext).
To discredit the employer's proffered reason,
however, the plaintiff cannot simply show that the
employer's decision was wrong or mistaken, since the
factual dispute at issue is whether discriminatory
animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.
Rather, the non-moving plaintiff must demonstrate
such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them
unworthy of credence, and hence infer that the
employer did not act for [the asserted] non-
discriminatory reasons.
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[Fuentes, 32 F.3d at 764-65 (citations and quotations
omitted).]
Our review of the motion record convinces us summary judgment was
appropriate.
Affirmed.
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