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SCHURR v. RESORTS INT'L HOTEL

June 30, 1998

KARL C. SCHURR, Plaintiff,
v.
RESORTS INTERNATIONAL HOTEL, INC., NEW JERSEY STATE CASINO CONTROL COMMISSION, BRADFORD SMITH, CHAIRMAN, NEW JERSEY STATE CASINO CONTROL COMMISSION, Defendants.



The opinion of the court was delivered by: ORLOFSKY

OPINION

 ORLOFSKY, District Judge:

 In this action, Plaintiff, Karl C. Schurr, challenges the constitutionality of New Jersey regulations which govern affirmative action in casino industry hiring. These regulations do not appear to have been challenged in any federal court before. Schurr also attacks the specific affirmative action policies which his employer instituted in order to comply with those regulations and which were applied to him. Schurr claims that the regulations are unconstitutional, and that his employer's policies, and their application to him, violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยงยง 2000e et seg. For the reasons set forth below, I find that the connection between the injury Schurr claims to have sustained and the allegedly unconstitutional state regulations, N.J.A.C. 19:53-4.1 et seg., is far too attenuated to confer standing upon Schurr to assert his constitutional claims. I also find that Resorts' affirmative action policies, as instituted and applied to Schurr, did not violate Schurr's rights under Title VII. Accordingly, I will grant Defendants' motions for summary judgment and deny Schurr's cross-motion for summary judgment.

 I. Facts and Procedural History

 A. Schurr's Work History at Resorts

 The following facts are not generally in dispute. Plaintiff, Karl C. Schurr ("Schurr"), is a resident of Oceanville, New Jersey, and is a white male. Complaint PP 1, 6 (dated July 8, 1996) (hereinafter Compl.); Joint Final Pretrial Order 3 (dated Oct. 3, 1997) (hereinafter Jt. Final). Beginning sometime in 1974, Schurr held a variety of full-time positions with Defendant, Resorts International Hotel, Inc. ("Resorts"), a New Jersey corporation with its principal place of business in Atlantic City, New Jersey, and previously with Resorts' predecessor, Chalfonte-Haddon Hall. Id. ; Deposition of Karl C. Schurr 12-13 (dated May 29, 1997) (hereinafter Schurr Depo.). In 1978, Schurr took a position as a member of the lighting crew at one of Resorts' theaters. Id. Schurr continued working in lighting at Resorts until approximately June, 1986. At that point, he resigned his full-time position to go into the restaurant business. Thereafter, he worked only on occasion for Resorts. Id. at 16. Thus, after June, 1986, Schurr was a "casual" worker, in that he did not have a full-time position with Resorts, but worked as a member of the relevant union on an "as needed" basis. Id. at 16-18; Deposition of William Stevenson 10 (dated June 4, 1997) (hereinafter Stevenson Depo.); Jt. Final at 3. *fn1"

 At some point in late 1993, Dave Maturi ("Maturi), a full-time light and sound technician, was suspended by Resorts. See, e.g., Schurr Depo. at 22-23; Stevenson Depo. at 9. Schurr and Bill Stevenson, Resorts' Director of Show Operations and Stage Manager, see, e.g., Compl. at P 19, both believed that if Maturi chose to arbitrate his grievance with Resorts prior to his termination, his position would not be available until after the arbitration was resolved. See Stevenson Depo. at 9-10; Schurr Depo. at 22-23, 32. After Maturi's suspension, Schurr began filling in for Maturi on a regular basis, although he remained a casual employee. See, e.g., Schurr Depo. at 23-24; Stevenson Depo. at 10, 85.

 It is the circumstances surrounding how Maturi's full-time position and another position as an apprentice mechanic were filled by Resorts that forms the basis of Schurr's claims. Before I turn to those circumstances, however, I must describe the affirmative action efforts required by New Jersey law and under the regulations promulgated by Defendant, New Jersey State Casino Control Commission (the "Commission"), of which Defendant, Bradford Smith ("Smith"), is the chairman.

 B. Affirmative Action in Casino Hiring

 As part of the Casino Control Act, N.J.S.A. 5:12-1 et seq. (the "Act"), N.J.S.A. 5:12-134 requires, in relevant part, that applicants for licenses under the Act:

 
formulate for Commission approval and abide by an affirmative-action program of equal opportunity whereby the applicant guarantees to provide equal employment opportunity to . . . members of minority groups qualified for licensure in all employment categories . . . in accordance with the [New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ]

 N.J.S.A. 5:12-134. The Act also gives the Commission the power to enforce section 134, including the power:

 
to investigate and determine the percentage of population of minority groups in the State or in areas therefor from which the work force for the licensee is or may be drawn; [and]
 
to establish and promulgate such percentages as guidelines in determining the adequacy of affirmative-action programs submitted for approval pursuant to the provisions of section 134 of [the Act]

 N.J.S.A. 5:12-135(a-b).

 Under this authority, the Commission has promulgated regulations concerning the equal employment opportunity and affirmative action obligations of various sectors of the casino industry, including the work force of casino licensees, contractors involved in the construction of casinos, and enterprises which provide goods and services within the casino industry. See N.J.A.C. 19:53-1.1(b); N.J.S.A. 5:12-12 (defining "casino service industry"); see generally In re Repeal of N.J.A.C. 19:53, 282 N.J. Super. 217, 220-21, 226-27, 659 A.2d 941 (App. Div. 1995) (discussing role of Commission in implementing N.J.S.A. 5:12-134 to -135, and breadth of affirmative action required under the Act).

 At issue in this action are the regulations with respect to the work force of casino licensees, N.J.A.C. 19:53-4.1 to -4.6. Section 4.1 sets forth the requirement that casino licensees and applicants provide "equal employment opportunity to all prospective and actual employees at all levels of the operations work force." N.J.A.C. 19:53-4.1(a). Pursuant to this obligation, casino licensees and applicants must:

 
1. Post notices available to employees and applicants for employment of the equal employment opportunity obligations of the casino licensee or applicant;
 
2. Include a statement in all postings, advertisements or other solicitations for employment that it is an equal opportunity employer;
 
3. Post all employment openings for response by qualified in-house employees and, when appropriate, advertise such openings in newspapers of general circulation and other media which reach a cross-section of the population in the area from which the work force will be drawn;
 
4. Send to each labor union or representative of workers with which it has a collective bargaining agreement, a notice of the obligations of the casino licensee or applicant under the Act and this chapter;
 
5. Evaluate any criteria, tests, interview procedures and other requirements for employment, promotion or transfer of employees to assure that they are not discriminatory in their impact or that no less discriminatory methods of evaluation or prediction of job performance are feasible;
 
6. Provide to the Commission, upon request, a description of all criteria, tests, interview procedures or other procedures used to determine whether to employ an applicant for employment or to transfer, upgrade or promote an existing employee.

 N.J.A.C. 19:53-4.1(b). Casino licensees and applicants also must:

 
in the event that any criteria, test, interview procedure or other employment procedure used by a casino licensee or applicant is shown to have a discriminatory impact, the casino licensee or applicant shall be required to demonstrate to the satisfaction of the Commission that no less discriminatory method of evaluation or prediction of job performance is feasible. In such case, the casino licensee or applicant shall justify the requirements imposed and shall demonstrate to the satisfaction of the Commission that any criteria, tests, interview procedures or other procedures used are truly predictive of job performance. The casino licensee or applicant shall discontinue the use of any criteria, tests, interview procedures or other employment procedures which have a discriminatory impact and which cannot be validated as truly predictive of job performance to the satisfaction of the Commission. In attempting to establish the validity of the criterion, test, interview procedure or other employment procedure, the casino licensee or applicant shall be guided by the rules of the New Jersey Division on Civil Rights and the U.S. Equal Employment Opportunity Commission.

 N.J.A.C. 19:53-4.1(c).

 Section 4.3 sets forth the affirmative action obligations of casino licensees and applicants. It provides:

 
(a) Each casino licensee and applicant shall be required to undertake affirmative measures to ensure that women, minorities *fn2" and persons with disabilities are recruited and employed at all levels of the operations work force and treated during employment without regard to their gender, minority status or disability. Such affirmative efforts shall, without limitation, address all employment practices including:
 
1. Employment, promotion, demotion or transfer;
 
2. Recruitment, recruitment advertising or posting;
 
3. Layoff or termination;
 
4. Rates of pay and other forms of compensation or benefits;
 
5. Selection for training and upward mobility programs; and
 
6. Grievance procedures for, and disposition of, complaints related to equal employment opportunity and reasonable accommodation in employment.
 
(b) In furtherance of the obligations imposed pursuant to (a) above, each casino licensee and applicant shall:
 
1. Post or advertise all personnel transactions which result in a promotion, title change, reclassification or a new hire prior to the selection of a candidate;
 
2. Undertake efforts to improve the representation of:
 
i. Women and minorities in job titles within EEOC job categories in which the casino licensee is below the applicable employment goals established by N.J.A.C. 19:53-4.4; and
 
ii. Persons with disabilities in all EEOC job categories;
 
3. Undertake special recruitment and advancement efforts such as the use of search firms, advertisements in media oriented to women, minorities and persons with disabilities, and notices to organizations that serve the interests of women, minorities and persons with disabilities, to improve the representation of:
 
i. Women and minorities in positions with salaries equal to or greater than $ 35,000; and
 
ii. Persons with disabilities in positions in all salary ranges;
 
4. Maintain and submit statistics on the applicant flow and disposition of candidates for employment who are women, minorities or voluntarily self-identified persons with disabilities, including the number who are interviewed or referred, and provide documentation of postings, classified advertisements and other media used to seek such candidates;
 
5. Develop and implement upward mobility training programs, approved by the Commission, which are designed to increase the representation of:
 
i. Women and minorities in EEOC job categories, including subclasses of Officials and Managers, in which the casino licensee or applicant is below the applicable employment goal for the category; and
 
ii. Persons with disabilities in all EEOC job categories and subclasses; and
 
6. Improve the representation of:
 
i. Women and minorities in positions covered by collective bargaining agreements in which the casino licensee or applicant is below the applicable employment goal for the category by ...

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