On appeal from Superior Court of New Jersey, Law Division, Atlantic County, L-2675-97.
Before Judges Wefing, Wecker and Fuentes.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 13, 2003
The trial court granted defendant's motion for summary judgment, dismissing plaintiff's complaint in which she alleged employment discrimination in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 ("LAD"). Plaintiff has appealed from that order. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The matter has had an unfortunate, protracted procedural history, which, in our judgment, it is not necessary to consider to resolve the issue before us. We turn directly to the undisputed facts.
Plaintiff has worked in the gaming industry since 1961. From 1961 to 1979 she worked as a casino dealer in Nevada. During the course of that employment she dealt all major games, including craps. Her professional involvement with craps, however, ceased in either 1965 or 1966. In 1979 plaintiff moved to New Jersey and commenced work at Bally's Park Place Casino in Atlantic City as a pit manager. She served in that capacity for seventeen years, from 1979 to 1996. Her duties as a pit manager included supervising all dealers and floor personnel in a designated gaming area known as a"pit." While employed with defendant, plaintiff obtained licenses in blackjack, roulette, pow gai poker, baccarat and mini-baccarat. As a pit manager for defendant, plaintiff acted in a supervisory capacity and did not deal any of these games herself.
Plaintiff had no involvement at all with craps while working for defendant. She did not supervise any craps tables at defendant's casino and never obtained a New Jersey license to deal craps.
Plaintiff received positive performance evaluations as a pit manager. Her written evaluations for the years 1994, 1995 and 1996 are part of the record before us. She consistently received the highest rating for knowledge of her position. She was considered particularly good at keeping management informed of problems that might develop before they escalated and was rated an excellent pit manager. These evaluations did note that plaintiff needed to improve her reactions to criticism from subordinates and management.
In October 1996 defendant posted a notice of an opening for the position of"Dual Rated Shift Manager." This position is ranked one level higher than pit manager and plaintiff applied for the position because it represented a promotion for her. The notice described the position as being:
Responsible for the operation and supervision of the gaming area for a shift when functioning as an assistant shift manager and for supervising the operation and activities of the table games when functioning as a pit manager. The notice specified that a candidate was required to hold a license as a key shift manager. The form had space to indicate the educational/work experience required for this position, into which the following was inserted:
Must demonstrate completion of Casino Control Commission regulations through knowledge of all games. Must have knowledge of casino operations, rules, regulations, policies and procedures. Knowledge of management techniques which ensure proper morale and efficiency. When plaintiff submitted her application for this promotion, she was fifty-nine years old and it had been at least thirty years since she had any professional contact with craps.*fn1
Deposition testimony demonstrated that in October 1996 the regulations of the Casino Control Commission required that a dual shift manager have"knowledge of all games" and defined that term as either holding licenses in all games, being a graduate of a gaming school in New Jersey or having dealt a game a set number of hours. For craps, one hundred eighty hours of training and instruction were required.
Deposition testimony also revealed that approximately five people were promoted to the position of dual shift manager between 1994 and 1999. All of these individuals were either licensed in all games, had the required schooling or an affidavit showing they had a sufficient number of hours dealing a game in which they may not have held a license.
Through the course of discovery, plaintiff found only one instance in which a person was promoted to the position of dual shift manager without having demonstrated the requisite"knowledge of all games." In 1988, eight years prior to the incident in question, Samuel Rosetti was promoted to dual shift manager without the requisite knowledge of baccarat or roulette. Rosetti testified that he was required to stay in the position of pit manager until he cured this deficiency. He testified at his deposition in the following manner.
Q: How long after getting the position of shift manager did you take those games [roulette and baccarat]?
Q: Well, you say you were promoted to shift manager but you were a pit manager. What does that mean?
A: Well, I was paid as a pit manager... [and] I couldn't make any decisions as far as the CCC [Casino Control Commission] was concerned.
Q: All right. So what makes you think you were a shift manager at that point?
A: Well, I was going to be a shift manager.
Q: You'd been told you were going to get the position; is that correct?
Q: So,... the job... was yours and all you had to do in order to actively become a shift manager was to take these couple of games, correct?
Although never reduced to writing, defendant also had a policy that employees who had received written disciplinary notices would be ineligible for any promotion for a period of one year from the date of the infraction. For at least the three years preceding her application for promotion, plaintiff did not receive any written disciplinary notices.
After submitting her application for this promotion, plaintiff was interviewed by Rosetti, the one individual who had been promoted to shift manager without"knowledge of all games."*fn2 After the interview, Rosetti included the written notation,"no knowledge of craps."
Twelve persons applied for this opening. The successful candidate was Nadine Vitrano, who was forty-years-old. Ms. Vitrano had the same licenses as plaintiff but, in addition, was licensed in craps. She also held a key shift manager's license. Ms. Vitrano, however, had been subject to several disciplinary actions, the most recent of which, for a ten thousand dollar oversight, had occurred on November 8, 1996, approximately two weeks before she was promoted. She had received four disciplinary actions between March 1995 and August 1996.
Plaintiff was immensely distressed at her failure to receive this promotion. She discussed her distress with several of her co-workers, who urged her not to do anything rash. One in particular noted that she held a good job that paid her an annual salary of seventy thousand dollars. Five days after Ms. Vitrano's promotion was announced, however, plaintiff walked off the job without any notice to her superiors and did not return to work. Several days later she received a letter from defendant, enclosing a check for two weeks vacation pay. The letter stated that defendant considered her action in leaving a"voluntary, unsolicited resignation" and that her personnel record would indicate"resignation for personal reasons effective November 30, 1996 [the day she left], with rehire eligibility."
After a short period of time, having considered the statement that she was eligible to be rehired, plaintiff approached defendant to see if it would rehire her. It refused to do so, however, and this litigation ensued.
By the time defendant moved for summary judgment, plaintiff's complaint asserted two claims, that defendant discriminated against her on the ground of age when it promoted Ms. Vitrano, in violation of LAD, and unlawful retaliation in refusing to rehire her and not affording her a grievance hearing.*fn3
The standard governing trial court disposition of motions for summary judgment is well known. There is no need to burden this opinion with an extensive discussion of the matter. Summary judgment should 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." R. 4:46-2. Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995).
When an appellate court reviews a summary judgment order,"the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 2.1 on R. 2:10-1 (2003). In making its determination, the appellate court does not owe any special deference to the trial court's legal conclusions. Manalapan Realty v. Township Comm., 140 N.J. 366, 378 (1995). An appellate court will conduct a de novo review, applying the standard enunciated in Brill, supra, to the summary judgment motion"on the basis of the case only as it had unfolded to the point of the motion, and the evidential material submitted on that motion." Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000).
To defeat a motion for summary judgment, a party in plaintiff's position must show that she has established a prima facie case of discrimination under LAD. The elements of a prima facie case of alleged discrimination based on a failure to promote are adapted from the burden-shifting framework first announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). In opposing defendant's motion, plaintiff was required to present credible evidence that: (1) she was a member of a protected class under LAD; (2) she was qualified for the promotion she was seeking; (3) she was denied the promotion; and (4) the position was given to a significantly younger person. Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995).
If a party is able to establish those four elements, discrimination is presumed and the burden shifts to the employer to articulate a legitimate and non-discriminatory reason for its action. If the employer does articulate such a legitimate reason for its action, the burden then shifts back to the plaintiff to demonstrate that the proffered reason is pretextual. Greenberg v. Camden Vocational & Technical Schools, 310 N.J. Super. 189, 199 (App. Div. 1998); Kelly, supra, 285 N.J. Super. at 430.
If a plaintiff is unable to establish those four threshold elements, the employer is entitled to summary judgment. We are satisfied that while plaintiff satisfied three of the four required elements, she did not fulfill the posted requirement for"knowledge of all games" and was, thus, unable to establish the second prong, that she was qualified for the promotion that she was seeking.
Plaintiff points to Rosetti's promotion eight years earlier and relies upon Greenberg v. Camden Vocational & Technical Schools, supra, to support her contention that she did, in fact, make a sufficient showing that she was qualified for the position of dual shift manager. In our judgment, Greenberg provides no support for plaintiff but rather demonstrates the insufficiency of her evidence.
Plaintiff in that case was a forty-eight-year-old teacher who was not rehired by her employer, Camden County Vocational and Technical Schools, and in consequence, denied tenure. She sued, alleging age discrimination, and we reversed the trial court's granting of summary judgment. Id. at 192. To support her claim of age discrimination, plaintiff reviewed the district's rehiring decisions for several of the preceding years. Id. at 195. She submitted these figures to the court, demonstrating that thirteen teachers had been evaluated for tenure over the preceding three years, and that no female more than forty-five years old had been rehired and received tenure. By contrast, three women less than forty-five years old had been given tenure. In addition, no male teacher more than forty-five years old had been denied tenure in the same time period. Id. at 196. The district defended its decision not to rehire plaintiff, pointing to the fact that she received several"memos of concern" in each academic year. We concluded that such an assertion constituted a response from the employer, once a prima facie case was established, and did not go to the question whether plaintiff was qualified.
In discussing this matter, we considered the question of qualifications in terms of the second prong of the burden-shifting framework to be an objective one. We cited, for instance, Matczak v. Frankford Candy & Chocolate Co., 136 F. 3d 933, 939 (3d Cir. 1997) in which that court noted that"once it is determined that [a plaintiff]'was objectively qualified for the job, [the court] should not have required [plaintiff] to demonstrate that his performance met his employer's subjective expectations."
In our view, by any objective measure, plaintiff did not qualify for the position of dual shift manager because of her lack of demonstrated proficiency in craps. This void in her resume cannot be filled by pointing to one incident, eight years earlier, when defendant permitted Rosetti to obtain the necessary licenses before formally awarding him the post of dual shift manager. There can be no comparison, in our judgment, between that one isolated incident and the statistics assembled by plaintiff in Greenberg, supra. That incident, singular and remote in time, cannot constitute proof that defendant had a pattern of waiving the posted qualifications for a particular job.
We know nothing of the circumstances surrounding the decision made years earlier to permit Rosetti the opportunity to obtain the licenses he lacked. Nor do we think it appropriate at this juncture to revisit that question. We perceive no justification, however, for using that one decision as a basis not to permit defendant employer in 1996 to insist that applicants for the post of dual shift manager meet the posted qualifications for that job. We note also that we are not called upon to consider whether Rosetti's advancement in 1988 in some manner disadvantaged plaintiff's chances of advancement in 1996. We are concerned, moreover, that permitting the accommodation which plaintiff seeks (the opportunity to obtain a craps license) could well prove unfair to other candidates who relied on the posted qualifications.
We turn finally to plaintiff's claim of retaliation. The LAD declares it to be unlawful discrimination:
d. For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or ...