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Jason v. Showboat Hotel & Casino

March 28, 2000

MARK JASON, PLAINTIFF-APPELLANT,
v.
SHOWBOAT HOTEL & CASINO, ROBERTA GARVEY AND LORRAINE FUREY, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS,



Before Judges Baime and Wecker

The opinion of the court was delivered by: Wecker, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 1, 2000

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

Plaintiff, Mark Jason, was terminated from his employment with defendant Showboat Hotel and Casino on December 30, 1995. His complaint against Showboat and the individual defendants *fn1 ("Showboat" or "defendant" collectively) alleges race discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; a Pierce *fn2 claim for wrongful termination in violation of public policy by virtue of disciplinary procedures imposed by defendant in its employee handbook, claimed to be a contract of adhesion; and a Wooley *fn3 claim for violation of the employee handbook. *fn4 Plaintiff appeals from summary judgment dismissing his complaint in its entirety.

We have carefully reviewed the record, the briefs, and the arguments of counsel, and we are satisfied that summary judgment was justified and was not imposed in error. We therefore affirm. Plaintiff's contentions with respect to the employee handbook as a violation of public policy, as well as a contract that was itself violated, are without sufficient merit to warrant extended discussion in this opinion. See R. 2:11-3(e)(1)(E). Suffice it to say that an employer is entitled to promulgate its own disciplinary rules and procedures, and the record clearly establishes that plaintiff was afforded all of the procedural rights to which he was entitled under Showboat's employee handbook.

We are equally satisfied that Jason failed to offer sufficient proofs to withstand summary judgment dismissing his LAD claim. However, we deem it appropriate to discuss that claim in somewhat more depth.

Plaintiff, who is African-American, began working at the Showboat Casino in Atlantic City in May 1987 as a part-time dealer. He became a full-time dealer in June 1989. By April 1990, when he became a full-time "boxperson," he had been promoted twice. By 1993 he was a "floorperson," apparently the highest non-managerial position on the floor of the casino, with responsibilities for overseeing the performance of lower level employees on the floor, including other dealers. He was a floorperson when he was terminated on December 30, 1995.

Defendant cited four incidents between October and December 24, 1995 as grounds for Jason's termination on December 30, which was precipitated by the December 24 confrontation with a casino patron. The first cited incident involved a charge that Jason took an unauthorized break while working an overnight shift, a charge which plaintiff disputed at the time. The second, on December 16, for which plaintiff was not cited until December 24, involved plaintiff's allegedly unauthorized change in his break schedule and his demeanor in response to a supervisor's questions about his break schedule. The third, for which plaintiff also was not cited until December 24, involved an alleged failure on December 18, 1995 to report certain irregularities in the conduct of a dealer at a table under his supervision.

The December 24 incident that precipitated plaintiff's termination involved Yin Ho, an Asian patron whom plaintiff refused to pay in the black chips ($100) that Ho requested. Jason insisted on paying Ho in higher denomination purple or orange chips ($500 and $1,000 respectively). The player, who complained about plaintiff's treatment and was threatening to leave with his friends, had to be mollified by supervisors. Plaintiff was removed from the game and brought to the shift manager's office, where Jason and defendants Furey and Garvey, who held supervisory positions over him, had a heated discussion about how plaintiff had handled this particular patron.

According to plaintiff, Ho was engaged in several distracting behaviors, such as handing plaintiff empty glasses and full ashtrays to dispose of, and throwing checks to an associate across the table, all while betting heavily. Plaintiff claimed that when plaintiff instructed the dealer to pay the Ho in purple chips, Ho shouted profanities and broke the "shoe" holding the baccarat cards. Plaintiff explained his concern about Ho's passing chips to other players and general unwillingness to cooperate. Furey reminded Jason of Showboat's policy to honor a patron's request for payment in chips of a particular color. Jason was argumentative, according to Furey and Garvey, and when Garvey declared that "this incident could destroy our oriental market," plaintiff became more argumentative and jumped up to confront her. Furey told plaintiff that others also felt intimidated by him. She then presented the written warnings for the December 16 and 18 incidents mentioned above, which she and Garvey signed in front of Jason. Plaintiff defended his conduct in those incidents and refused to sign the warnings. Furey told him it was "a universal opinion of his Pit Managers that he lacks in interpersonal skills." She and Garvey told him the Ho incident would be investigated and sent him back to work at another pit.

On December 30, 1995, plaintiff received a written notice of termination for insubordination and "gross rude and discourteous behavior to a patron." Garvey and Furey signed the notice of termination. Plaintiff did not sign the notice, but in the section for employee statement he noted his "complete disagreement."

It is undisputed that Showboat's employee handbook provides that after a ninety-day probationary period, employees such as Jason can be terminated only for cause. The handbook spells out standards of conduct, including a provision that "guest" complaints should be handled in a manner to encourage the guest to return to the casino in the future. Among a non-exclusive list of "prohibited conduct that could lead to discipline up to and including termination" are: "[i]ndecent or abusive language while on duty," "[r]ude or discourteous behavior to a patron or fellow employee," and "[l]eaving assigned work area without permission." The handbook warns that "business demands may necessitate changes in your shift ... [but] [u]nauthorized changes [in work schedule] will result in disciplinary action." Defendant has a written policy, separate from the handbook, that insofar as possible, patrons at the gaming tables should be paid in chips of whichever denomination the patron played. The handbook itself also provides a point system for addressing absence and lateness, and the cumulation of eight points within any twelve month period is a ground for termination.

Plaintiff's disciplinary record includes warnings for attendance problems in 1988 and nine notices of violations of floor conduct between August 1993 and January 1994. Between June and November 1994, plaintiff received attendance warning notices that he had accumulated "points" which had reached a level that allowed defendant to terminate him under the employee handbook's published rules. In July 1994 he also received a written ...


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