December 4, 2008
TERRENCE TAYLOR, PLAINTIFF-APPELLANT,
ATLANTIC CITY HILTON CASINO RESORT, GNOC CORP. AND PARK PLACE ENTERTAINMENT, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4899-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2008
Before Judges Carchman and Simonelli.
Plaintiff, Terrence Taylor, a dealer at a roulette table operated at defendant GNOC Corp. d/b/a The Atlantic City Hilton Casino Resort's casino, observed what he believed to be a patron cheating at the table. The form of cheating involved the "past-posting*fn1 " of a bet after the winning number had been called. Rather than report the incident to his supervisor, plaintiff pushed the patron's hand and chips away from the table. A "scene" ensued including words being exchanged between plaintiff, the patrons and his supervisor, together with a dispute as to the amount due the patron upon "cashing out."
As a result of the incident, plaintiff was terminated. He brought an action under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Following discovery, defendant moved for summary judgment. The motion judge granted summary judgment and dismissed the complaint. Plaintiff appeals, and we affirm.
The facts are not complex. On March 7, 2005, plaintiff was the dealer at roulette game number 204 in defendant's casino. Shortly after plaintiff began his 4:00 a.m. shift, a man and woman came to his table and purchased $100 in blue chips.*fn2 The couple played two spins, then on the third spin, plaintiff called "no more bets" and removed a marker from its electronic station on the table, which triggered a signal on the table's television monitor to flash "no more bets." Once the ball dropped, plaintiff placed a marker on the winning number, 29. Plaintiff then cleared the losing bets and began to pay winning bets.
As plaintiff paid the winning bets, the woman began placing bets towards the lower end of the table where the winning number was marked. Plaintiff, perceiving these to be "past-post" bets, immediately pushed the bets and the patron's hand and arm back towards her. Her husband then said "don't touch my wife's hand." Plaintiff then responded by saying "I'm not touching your wife's hand. I'm strictly pushing the illegal past-posted bets back to her." The husband then began getting hostile towards plaintiff saying that plaintiff was "stupid."
Martin Roller, plaintiff's supervisor, upon hearing the commotion, came to the table and asked plaintiff what happened. Plaintiff explained the situation, and then Roller told plaintiff to step back. The couple showed some hostility towards Roller as he tried to calm them down.
After the incident, the couple told plaintiff they wanted to "cash out." During this time, plaintiff spun the ball for the next spin, and the woman pushed her cheques all over the layout while the game was still in progress. Plaintiff then picked up the cheques and counted them determining that $92 was due the couple. Plaintiff's supervisor approved the amount, and he handed them the $92. The couple argued, however, that they had $112 in cheques. Not satisfied, the couple called the pit boss, Steve Ryan. Ryan called up to the surveillance area where a review of the tape confirmed that the $92 payoff was correct.*fn3
The couple then asked for the pit boss's name and where they could find the Casino Control Commission, (hereinafter "CCC"). Steve Ryan reported the matter to the shift manager, Terry Terch, who completed a report for the CCC. Plaintiff heard nothing further about the incident until later that morning when he was called into the shift manager's office. Terch and Mary Kate May, the casino games manager, were present in the office when May stated that she thought plaintiff had demonstrated misconduct by pushing the patron's hand. Plaintiff tried to explain that he did so in order to prevent cheating at his table. May then suspended plaintiff pending investigation. Three days later, on March 10, 2005, defendant terminated plaintiff from his position.
On appeal, plaintiff contends that the motion judge erred:
1) by requiring that plaintiff establish the conduct he objected to is the responsibility of the employer under CEPA; 2) by failing to find that there was a factual dispute as to the propriety of plaintiff's touching the patron as a "legitimate objection" to the cheating; and 3) by failing to find that plaintiff proved a violation of N.J.S.A. 34:19-3(c).
We have carefully reviewed the record and generally affirm for the reasons set forth in Judge Perkie's thoughtful and thorough oral opinion of October 9, 2007. We offer the following additional comments.
N.J.S.A. 34:19-3(c) provides:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
The thrust of plaintiff's argument is that the action he took in removing the patron's illegal bets from the table was simply an "objection" to the illegal activity. His claim is premised on an asserted nexus between the firing and the "objection."
We have held "[t]he purpose of [CEPA] is to provide protection for workers who may be subjected to retaliatory actions by their employers if they reveal 'corrupt, illegal, fraudulent, or harmful activity' by their employers." Williams v. Pemberton Twp. Public Schools, 323 N.J. Super. 490, 504 (App. Div. 1999) (citing Abbamont v. Piscataway Twp. Bd of Educ., 138 N.J. 405, 417 (1994)). In Dzwonar v. McDevitt, 177 N.J. 451 (2003), the Supreme Court described the elements necessary to sustain a CEPA action.
A plaintiff who brings a cause of action pursuant to N.J.S.A. 34:19-3(c) must demonstrate that: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulations promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. [Id. at 462 (citing Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999))].
"A plaintiff who brings a claim pursuant to N.J.S.A. 34:19-3(c) need not show that his or her employer or another employee actually violated the law or a clear mandate of public policy." Dzwonar, supra, 177 at 462 (citing Gerard v. Camden County Health Servs. Ctr., 348 N.J. Super. 516, 522 (App. Div.), certif. denied, 174 N.J. 40 (2002)).
As we have noted, the thrust of plaintiff's claim is premised on the theory that having identified the cheating, he engaged in conduct to reflect his "objection" and that resulted in adverse employment action, i.e., the termination of his employment.
The flaw in plaintiff's argument is that his "objection" was not an objection at all but a clear violation of policies put in place by his employer to address the very circumstances he observed. Defendant's employment manual addresses the operation of roulette tables, and the issue of past-posting is specifically addressed.
6. Past-posters generally take advantage of distractions. Pay particular attention to the wheelhead and the bottom of the layout. If you think you have been past-posted, notify your Casino Supervisor.
8. If you have any doubts or suspicions of any moves that are being made by a player, bring it to the attention of your Casino Supervisor immediately. Be alert for distractions such as spilled drinks, late bets, any individual wanting a change of color or blocking your view of the layout.
[Atlantic City Hilton Casino Resort, Roulette Manual 21 (April, 1992) (Emphasis added).]
No notification took place, and Roller only appeared on the scene after the patrons and plaintiff had exchanged words. The only indicia of "objecting" or reporting to the employer was plaintiff's actions in moving the patron's cheques and hand away from the table. We do not perceive touching a patron as satisfying the element of establishing "whistle-blowing" conduct as referred by N.J.S.A. 34:19-3(c). In fact, we have previously rejected such conduct as legitimate objection under analogous circumstances.
In Haworth v. Deborah Heart and Lung Ctr., 271 N.J. Super. 502, 503 (App. Div. 1994), plaintiff worked in defendant's blood bank. Plaintiff devised a new procedure for conducting blood samples in preparation for surgery. Although he conceded that the current system worked well, he developed the new procedure because of understaffing and clerical problems in the hospital. Despite the plaintiff's knowledge of these possible problems, he "never expressed his concern in writing to hospital officials. Nor did he apprise accrediting agencies of the pitfalls in the hospital's blood sampling practices, although he met various inspectors on several occasions." Id. at 504. Then, after an argument with his supervisor, "on other subjects, plaintiff returned to the blood bank and, without telling anyone, took an entire rack of patient blood samples and tossed it into a waste bin. Blood samples for 15 patients, including infants, whose surgery was imminent, were destroyed." Ibid.
The Law Division ruled that "plaintiff's destructive behavior, even if communicative, was not of a type protected by CEPA" and granted defendant's motion for summary judgment. Id. at 503. We affirmed, and in language particularly applicable here, we said:
Both the statutory protection and the common law remedy have limits. For example, no reasonable person would suggest that a hospital administrator could physically assault a physician because of his concern with the doctor's competency. Nor would it be reasonable for a hospital employee to damage or destroy medical equipment because of his belief that a particular mode of treatment is improper or unethical. Certainly violence has no sanctuary in the statutory or common law remedy and the unilateral destruction of property cannot masquerade under the guise of advocacy or protest. We do not suggest that CEPA provides protection to an employee only where the least intrusive method is used to object to an employer's practices or procedures. Nevertheless, the statutory scheme cannot be read so broadly as to provide blanket immunity to an employee for assaultive or destructive conduct, however well intended. [Haworth, supra, 271 at 505-06. (emphasis added).]
As we have noted, defendant has procedures in place to address the very concern expressed by plaintiff. His termination was not based on his "objection" to cheating but on violations of defendant's policies coupled with behavior in touching the patron. In a highly regulated service industry such as the casino industry, cheating cannot be countenanced and neither can inappropriate conduct on the part of employee engaged in dealing with the public.