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Kelly v. Bally's Grand

November 20, 1995


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Approved for Publication November 20, 1995.

Before Judges Shebell, Wallace and Newman. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by SHEBELL, P.J.A.D.

On March 12, 1993, plaintiff, Dolores Kelly, filed a complaint in the Law Division against her employer, defendant, Bally's Grand, Inc. (Bally). The first count alleged three age discrimination claims: (1) Defendant failed to promote plaintiff in July 1992 to the position of Reservations Manager; (2) Ongoing age discrimination by plaintiff's supervisor, with the intent to force plaintiff from her employment; and (3) Unlawful retaliation against plaintiff for asserting an age discrimination claim. The Second Count alleged a breach of implied employment contract, later voluntarily dismissed by plaintiff. Bally filed its answer on May 18, 1993, denying plaintiff's allegations in their entirety. The parties engaged in discovery, which included numerous interrogatories, depositions, and documents, including witness certifications.

In June 1994, Bally moved for summary judgment on the claims of age discrimination. Following oral argument on August 29, 1994, the Law Division Judge granted summary judgment. Plaintiff filed the within appeal, urging error in the granting of summary judgment. We reverse in part and affirm in part.

Plaintiff was hired by the Golden Nugget Hotel Casino in 1983 as a Reservations Agent. In 1986 she was promoted to Reservations Supervisor. In 1987 Golden Nugget was taken over by Bally. Plaintiff continued in her position as Reservations Supervisor, a position she presently holds.

In January 1992, plaintiff's superior, the Reservations Manager, Colleen Farrell, left her position to go on maternity leave. The Reservations Manager reviewed the position with plaintiff prior to leaving and recommended that plaintiff apply for the Reservations Manager position. According to the Reservations Manager's affidavit, the directors of the hotel, Mr. Perez and Mr. Kinee, knew that plaintiff became the acting Reservations Manager. Plaintiff remained acting Reservations Manager for seven months, from January 1992 to July 1992.

In April 1992, a job bid notice for Reservations Manager was posted for employees of Bally. The minimum qualifications included two to four years experience in reservations. According to defendant's job-posting policy, all in-house employees who apply for a position must be notified of the outcome of their application. If no in-house candidates are identified, and the hiring department wishes to recruit from outside, it is required that a written request for advertising be sent to the Director of Personnel. Bally expressed its policy on promotion as follows:

It is the policy of Bally's Grand to encourage qualified employees to apply for promotional opportunities and to grant every consideration to qualified in-house candidates first before recruiting from the outside.

The policy also provides that where more than one qualified, in-house candidate has applied, preference should be given to length of service in the department first, and then, if that is the same, to the overall length of company service.

This policy was also espoused by Bally's vice-president of operations, James Kinee, who stated that while he was sure that it was company policy, it was also his policy

to always consider the in-house candidates first. Because I believe that if you promote from within, it makes the other people feel better about working here. If you keep going to the outside to fill positions, then that's not good.

Plaintiff in her deposition testified that she was aware of this policy, and that she prepared and distributed the necessary job bid forms, and gave the paperwork to the secretary of the Hotel Manager, Marvin Perez. According to Perez's secretary, Diana Zucker, plaintiff gave her the application, and she maintained it in a folder. Zucker stated further, that there were two other in-house candidates who applied for the position, but she indicated that neither held the requisite 24 years reservations experience. Zucker states that she gave the files to Perez and that he reviewed them with Kinee. Zucker then set up interviews for Perez with the candidates, including plaintiff. Zucker was actually at her desk outside of Perez's office, when plaintiff came in for the interview.

Perez, who is no longer employed by Bally, states in his certification that he received plaintiff's job application, and interviewed all of the in-house candidates, including plaintiff. After the interviews, he scheduled a meeting with Kinee, who was to make the final hiring decision. Perez states that he brought all of the applications, including plaintiff's, to Kinee's office, and, during a meeting in late June, 1992, spoke to him regarding all three candidates. Zucker also verifies that she was aware of a meeting between Kinee and Perez in June, 1992, and that she handed Perez the file, which included plaintiff's application and other forms, and that he took the file and walked toward Kinee's office. Perez maintains that Kinee and he spoke about the fact that plaintiff had applied for the position and that she had been serving as acting Reservations Manager. Zucker further verifies that Perez, upon returning from the meeting, told her that he and Kinee had spoken about all three candidates, including plaintiff.

In contrast, Kinee states that he can only recall speaking to Perez about one applicant, Sue Stevens. Kinee states that he rejected Perez's recommendation of Stevens because she lacked reservations experience. Kinee cannot recall if Perez showed him any paperwork, but states with certainty that Perez did not show him any paperwork regarding plaintiff. Kinee contends that he suggested they look outside, as he preferred an outside candidate because he wanted to upgrade the services in the Reservations Department and ...

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