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Swan v. Boardwalk Regency Corp.

May 7, 2009

ROBERT SWAN AND LOIS SWAN, H/W, PLAINTIFFS-APPELLANTS,
v.
BOARDWALK REGENCY CORPORATION, D/B/A CAESAR'S ATLANTIC CITY, AND HARRAH'S ENTERTAINMENT, D/B/A CAESAR'S ENTERTAINMENT, INC., DEFENDANT-RESPONDENT.*FN1



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-16799-06.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted: March 11, 2009

Before Judges Axelrad, Parrillo and Messano.

Plaintiffs appeal from summary judgment dismissal of their complaint alleging plaintiff Robert Swan*fn2 was wrongfully terminated in violation of public policy from his position as a surveillance officer at Caesars casino in Atlantic City and asserting a claim for "false light" invasion of his privacy. Following oral argument on July 3, 2008, Judge Perskie granted defendant partial summary judgment, holding as a matter of law that plaintiff did not set forth a claim for wrongful termination in violation of public policy, and entered an order on that date. Following defendant's subsequent motion and oral argument on August 1, 2008, the court dismissed the sole remaining count of the complaint, concluding a one-year statute of limitations applied to plaintiff's claim for "false light" invasion of privacy, for which he was time-barred, and entered an order on the same date.*fn3 We affirm.

Plaintiff was an at-will employee of defendant, Boardwalk Regency Corporation d/b/a Caesars Atlantic City (Caesars), from 1989 until his employment was terminated on June 16, 2005. Plaintiff performed surveillance activities for the casino and at the time of his termination worked in the surveillance department operating numerous closed-circuit TV cameras located throughout the casino premises, referred to as the "eye in the sky," which images appear on monitors in the surveillance department. Plaintiff was named as a defendant in a complaint brought by the Division of Gaming Enforcement (DGE) on April 26, 2005, which alleged that plaintiff and other surveillance officers at Caesars had improperly used surveillance cameras in October 2004 to observe and zoom in upon "selected parts of the anatomy of several females, both patrons and employees, on Caesars' premises, which observations and recordings are not permitted or authorized by the Casino Control Act or its regulations." Specifically, the complaint alleged that plaintiff was employed as a Lead Surveillance Officer in the surveillance room during the graveyard shift on October 3, 2004, when surveillance videotapes on monitors to which he was assigned recorded approximately eleven minutes of footage of such unauthorized surveillance.

The three other surveillance officers who had worked during the shifts in question were terminated from their employment. According to plaintiff, on June 16, 2005, a few days after Harrah's assumed control of Caesars pursuant to a merger, a supervisor advised him he was put on "investigative suspension" and would be notified when he could return to work. Two days later plaintiff received a letter dated June 16, 2005, confirming he was suspended pending investigation and that Caesars now found it necessary to terminate his employment. Richard Tartaglio, defendant's Director of Labor Relations/Atlantic City Properties, deposed that plaintiff was terminated after the DGE complaint was filed and an internal investigation, conducted prior to June 16, concluded plaintiff had improperly used the videotape surveillance equipment.

The charges made by the DGE became public and were widely disseminated through press reports in the newspaper as well as television. Three of the four people charged, which included plaintiff, requested a hearing before the Casino Control Commission (CCC). On September 27, 2005, the first day of trial, which was a public hearing, one of the employees entered into a settlement, as did Caesars, which admitted liability and agreed to pay a civil monetary penalty of $185,000. By initial decision of June 28, 2006, the CCC hearing examiner found the DGE failed to prove a regulatory infraction by plaintiff. The hearing examiner stated:

I accept [Swan's] explanation as credible and emphasize that an examination of the videotapes showed no misconduct on his part. The videotapes do not show that Swan used the surveillance equipment to zoom-in at close range on the breasts of female employees and patrons. Rather, the videotapes demonstrated that Swan was merely performing his job as a conscientious surveillance operator. Any close-up shot of a female was made in connection with legitimate surveillance functions. In my judgment, ascertaining the identify of persons on the casino floor is an acceptable use of resources in furtherance of legitimate surveillance functions. I note that the Division did not allege any impropriety on Swan's part as a supervisor. Thus, any potential liability for Swan was limited to his possible involvement personally in filming these women.

In contrast, the hearing examiner found the other employee misused surveillance equipment and sanctioned him. On August 16, 2006, the CCC formally adopted the initial decision.

On November 8, 2006, plaintiff filed the current action against Caesars, alleging he was wrongfully terminated "in violation of public policy" because when he worked the overnight shift as a surveillance officer at Caesars from October 3, 2004 to October 4, 2004, he was simply engaged in surveillance activity required under New Jersey's gaming regulations. Plaintiff explained:

18. That particular period of time was one in which surveillance officers were to be on heightened alert, as Caesar's had fallen victim to a large union strike which caused many of its employees such as dealers, waitresses, bartenders and the like to not report to work.

19. To alleviate this problem, Caesar's shuffled numerous non-union employees, who are typically not on the casino floor and thus not recognized by surveillance officers, into these unfilled jobs. The result was that, during this time-frame, unidentified and/or ...


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