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Gerety v. Atlantic City Hilton Casino Resort

February 29, 2008

CHRISTINA M. GERETY AND JOHN GERETY, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
ATLANTIC CITY HILTON CASINO RESORT, DEFENDANT-RESPONDENT, AND MARY BURUSS AND RACHEL BOGATIN, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3846-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 15, 2007

Before Judges Wefing, Parker and Lyons.

Plaintiffs Christina M. and John Gerety appeal from an order entered on April 26, 2006 granting summary judgment dismissing their complaint and from an order entered on August 24, 2006 denying their motion for reconsideration. We affirm.

Plaintiffs are wife and husband who allege that defendant, Atlantic City Hilton Casino (Hilton), violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, because Christina was terminated after exhausting her six-month disability leave following a pregnancy. John, who was also employed by defendant, claims that after Christina filed discrimination complaints with the Equal Employment Opportunity Commission (EEOC) and the Superior Court, his applications for promotion were denied and less qualified candidates were chosen.

The complaint was filed on July 28, 1999 against the Hilton and two employees for gender discrimination, wrongful discharge, intentional infliction of emotional distress, retaliation under the LAD and loss of consortium. After the parties completed discovery, defendants moved for summary judgment. The trial court rendered a written decision in January 2004 partially granting defendants' motion, dismissing all counts except two LAD claims against Hilton. The claims against the individual employees were dismissed with prejudice.

Hilton, the sole remaining defendant, moved for leave to appeal. That motion was denied but the Supreme Court "granted Hilton's motion for leave to appeal nunc pro tunc." Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391, 396-97 (2005). The Supreme Court reversed that portion of the trial court's decision that found discrimination as a matter of law. Id. at 407. The matter was remanded and the Hilton again moved for summary judgment. That motion was granted, dismissing the remaining LAD claims on April 26, 2006. After plaintiffs' motion for reconsideration was denied, they appealed.

The background facts have been set forth by the Supreme Court in its decision. Briefly summarized, the facts are as follows: Christina was employed as a Casino Floor Supervisor when she learned that she was pregnant in September 1997. Her pregnancy with twins was high risk and Christina was placed on medical leave from October 5 to December 1 by her physician. After Christina was hospitalized for several days with heart palpitations, dehydration, low blood pressure and dizzy spells, her medical leave was extended to February 1, 1998. The medical leave was again extended to the end of the pregnancy.

Christina's expected due date was in May 1998. 184 N.J. at 395. The Hilton's policy allowed for a maximum medical leave of six months, which concluded on April 1, 1998. Under Hilton's policy, Christina's employment terminated on April 2 and she would then be eligible for rehire at entry level status. The Family and Medical Leave Act, 29 U.S.C. § 2612, entitles eligible employees to twelve weeks medical leave within twelve months. Hilton's policy exceeds the statutory requirement, adding fourteen weeks leave time for a total of twenty-six weeks (six months) within a twelve-month period.

Christina delivered twins by C-section on April 15, 1998, five weeks before her expected due date, but two weeks after the end of her authorized medical leave under Hilton's policy. "Thirteen days elapsed between the exhaustion of Christina's medical leave and the twins' birth on April 15, at which time she would have been entitled to leave to care for the infants pursuant to the New Jersey Family Leave Act (NJFLA), N.J.S.A. 34:11B-1 to -16." 184 N.J. at 395-96. In September 1998, Christina filed an EEOC claim for discrimination.

John supported Christina's claim. He was also a Hilton employee who had been promoted several times, becoming a Dual Rate Supervisor in 1991. John claims that he was passed over for promotion three times -- in March 1999, January 2000 and February 2002 -- since Christina filed her claim. When Christina filed her LAD complaint in July 1999, John joined the action, alleging that Hilton denied him promotions in retaliation for his support of Christina's EEOC complaint.

Following the grant of summary judgment dismissing the LAD claims against Hilton, plaintiffs appeal, arguing two principal points: (1) defendant violated the LAD by terminating Christina after her disability leave expired; and (2) defendant wrongly retaliated against John after he encouraged his wife to file the complaints.

With respect to Christina's claims, she argues that her allegations of gender discrimination have never been adjudicated on the merits. She contends that Hilton granted a male employee medical leave for a year and allowed seven other male employees to be rehired without losing seniority. Christina also argues that in addition to gender ...


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