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Fintel v. Marina District Development, LLC

United States District Court, D. New Jersey

March 28, 2019

LEE FINTEL, Plaintiff,


          AMY ELIZABETH RUDLEY RUSSELL L. LICHTENSTEIN COOPER, LEVENSON, APRIL, NIEDELMAN & WAGENHEIM, PA Attorneys for Defendants Marina District Development Company, LLC d/b/a Borgata Hotel Casino & Spa, Marina District Development, LLC, Marina District Development Holding Company, LLC, Boyd Gaming Corporation, MGM International, LLC, Susana Maiese, Charleen Ripley, David Eng, Vincent Alfieri, and Richard Henderson.


          NOEL L. HILLMAN, U.S.D.J.

         This case concerns claims by Plaintiff Lee Fintel against Defendants for violations of New Jersey employment discrimination laws. Presently before the Court is Defendants' Motion for Summary Judgment and Plaintiff's opposition. For the reasons stated herein, this Court will grant Defendants' Motion for Summary Judgment and dismiss this case.


         This Court takes its facts from the statements of material facts presented by the parties. This Court will note disagreement where relevant.

         Plaintiff Fintel was hired as a dealer at Marina District Development Company, LLC d/b/a Borgata Hotel Casino & Spa (the “Borgata”) in Atlantic City, New Jersey in December 2002. Plaintiff asserts Boyd Gaming Corporation (“Boyd”) was in charge of the “management of the Borgata and controlled human resource functions” at the Borgata and MGM International, LLC (“MGM”). (Pl.'s SOMF ¶ 1.) Regardless, Plaintiff's checks were written by Marina District, LLC.

         During his time as a dealer, Plaintiff was subject to several instances of discipline and was eventually terminated on December 23, 2014. First, in late March 2013, Kelly Gasperini, a fellow dealer at the Borgata, had her husband, another employee at the Borgata, complain about Plaintiff. The conduct: Plaintiff was barking at her on the casino floor. Plaintiff admitted to barking on the casino floor, but explained that he was not barking at Ms. Gasperini, but at another employee. He claimed it was an inside joke with the other employee, Yvonne Iannoco. Plaintiff was issued a “performance observation” for this conduct. (Defs.' SOMF ¶ 7.)

         Then, in February 2014, Plaintiff pulled a female dealer's chair away from her during an active game in the middle of a hand. Plaintiff admitted this conduct (it was captured on surveillance cameras), stated he did not believe it was distracting, but agreed it could be distracting. For this conduct, Plaintiff was issued a written warning on February 20, 2014.

         Next, Plaintiff approached Jenny Dang, a fellow dealer at the Borgata, at the table where she was scheduled to be working and offered her candy.[1] Dang told her supervisor at some point thereafter that Plaintiff was bothering her. Plaintiff asserts Dang said this jokingly and that she said “he bothers me, but he's my friend.” (Pl.'s SOMF ¶¶ 12-13.) Plaintiff admits that he bought candy for women at work, but not men. He stated: “you know, girls like candy. Buying candy for men would seem kind of weird.” (Defs.' SOMF ¶ 14.) Plaintiff clarifies that there was never anything more intended by his behavior. As a result of this behavior, Plaintiff was suspended on August 30, 2014 and issued a final written warning on September 3, 2014.[2]

         Finally, on December 10, 2014, Ashley Rice - a “Costumed Beverage Server” at the Borgata - complained to both the Security Department and her Manager that Plaintiff (1) asked for a picture of her lips and (2) asked her to visit in prison a former Borgata employee named Tony. It is a bit unclear from the record, but it appears these comments, or similar comments, were made over the course of multiple conversations.

         Plaintiff admitted that he asked Rice, while they were talking during a smoke break, for a picture to provide to Tony.[3] Plaintiff clarifies that he did not ask to take a picture, that he thought Tony and Rice dated, and that Rice would provide the picture to Tony herself.[4] Plaintiff further admits that he asked Rice whether she planned to visit Tony in prison. He denies Rice's statement that he asked her whether she was planning on having a conjugal visit with Tony.

         In a written statement provided to the Borgata on December 12, 2014, Plaintiff stated Rice “never acted offended or said what I was saying was inappropriate” and that he “never said anything off-color or suggestive in nature.” (Defs.' SOMF ¶ 20.) He also stated: “[s]ince I almost lost my job last time - I have went out of my way to be careful . . . .” (Defs.' SOMF ¶ 20.) Plaintiff also admitted that he commented on Rice's lipstick, calling it an “incredible” and “unusual” shade. (Defs.' SOMF ¶ 21.)[5] Plaintiff admitted that asking a co-worker for a picture to provide to a former employee who was now incarcerated would be a violation of Borgata's anti-harassment policy.[6] Not surprisingly, Defendants had policies and procedures concerning discipline of employees and sexual harassment of co-workers and customers. This Court will discuss those where relevant in the analysis section infra.[7]

         Plaintiff also complains about statements that were made to him during his time at the Borgata. Plaintiff claims Frank Reynolds, a floor person at the Borgata, said to him - after Plaintiff said he was having a bad day - “Oh, my God, when you get that old, you're going to have a bad day every day.” (Defs.' SOMF ¶ 26.) Plaintiff did not report Reynolds' comments and thought it was friendly.[8] Plaintiff was also subject to age- related comments from an unnamed floor supervisor. Plaintiff told this floor supervisor to stop, but otherwise did not report him to human resources or another higher-level individual. Finally, an employee named James (with a last name starting with “Van”) apparently made comments about Plaintiff's age, but Plaintiff stated it did not happen often. Besides asking James to stop making these comments, Plaintiff did not report him to human resources or another higher-level individual.

         Plaintiff also specifically cites age-related comments made by the Individual Defendants[9] in this case. Plaintiff admits that Defendants Susana Maiese, Vincent Alfieri, and Charleen Ripley never made age-related comments. But, he asserts, Defendants David Eng and Richard Henderson did. Defendant Eng said to Plaintiff - after Plaintiff said that a mid-30s female customer was pretty - “[w]hat would somebody that looks like that want with an old man like you.” (Defs.' SOMF ¶ 38.)

         Defendant Henderson also made two age-related comments to Plaintiff. First, Defendant Henderson stated, as Plaintiff attempted to boost himself onto a stool: “when you get to be your age, you need a little boost, don't you?” (Defs.' SOMF ¶ 31.) Defendant Henderson also stated Plaintiff should consider quitting smoking, because it was bad for him, especially at his age. Plaintiff never complained of comments made by Henderson, but notes Defendant Alfieri was in the room during the first of these two remarks attributed to Henderson.

         Plaintiff also alleges two Individual Defendants may have known about his alleged disability, Chronic Obstructive Pulmonary Disease (“COPD”), specifically manifesting in emphysema. The parties agree that Defendant Ripley knew Plaintiff had taken a leave of absence because he was dealing with breathing issues. Plaintiff alleges Henderson may have known about his emphysema. Other than that, Plaintiff admits no one at the Borgata ever directly remarked to him or implied that having emphysema would be a liability for the company.

         At some point after the case was filed, Plaintiff hired a human resources company to contact Defendants concerning a reference for Plaintiff. An individual from this company was apparently able to speak with Defendant Alfieri. Alfieri gave a generally positive reference of Plaintiff. When asked about Plaintiff's weaknesses, he said “[h]e's old, ” then laughed, stated he was kidding because they are the same age, and then stated he had no weaknesses to list. (Pl.'s Opp'n Br., Ex. W.)

         Plaintiff filed this action against Defendants on November 28, 2016. He filed an amended complaint on March 3, 2017 and a second amended complaint on June 2, 2017. In it, Plaintiff alleged Defendants violated the New Jersey Law Against Discrimination (“NJLAD”) on the basis of age, disability, and retaliation. Plaintiff also alleges the Individual Defendants are individually liable under NJLAD on a theory of aiding and abetting. Finally, Plaintiff requests punitive damages.

         Defendants answered the second amended complaint on June 9, 2019. Thereafter, discovery ensued. On June 8, 2018, Defendants filed the instant Motion for Summary Judgment. Plaintiff filed opposition and Defendants replied. This matter is therefore ripe for adjudication.


         A. Subject Matter Jurisdiction

         This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332.

         B. Motion for Summary Judgment Standard

         Summary judgment is appropriate where the Court is satisfied that “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any,' . . . demonstrate the absence of a genuine issue of material fact” and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citing Fed.R.Civ.P. 56).

         An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. “In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.'” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (citing Anderson, 477 U.S. at 255).

         Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.”); see Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, ‘the burden on the moving party may be discharged by “showing”-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof.” (citing Celotex, 477 U.S. at 325)).

         Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. A “party opposing summary judgment ‘may not rest upon the mere allegations or denials of the . . . pleading[s].'” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). For “the non-moving party[] to prevail, [that party] must ‘make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial.'” Cooper v. Sniezek, 418 Fed.Appx. 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 257.

         C. Motion for Summary Judgment

         Defendants move for summary judgment on six different grounds. First, Defendants argue that Plaintiff has not established a prima facie case for either his age discrimination or disability discrimination claims. Second, Defendants argue Plaintiff has no evidence to support his retaliation claim. Third, Defendants argue that even if Plaintiff has established a prima facie case on any of his NJLAD claims, Plaintiff cannot overcome Defendants' legitimate, non-discriminatory reasons for his termination. Fourth, Defendants argue Plaintiff has no evidence to support individual liability for his NJLAD claims. Fifth, Defendants argue that punitive damages are inappropriate in this case. Sixth, Defendants argue Defendant Boyd Gaming should not be considered Plaintiff's employer in this case.[10] This Court will address each argument in turn.

         a. Whether Plaintiff Established a Prima Facie Case of Age or Disability Discrimination

         First, this Court will address whether Plaintiff has established a prima facie case for age or disability discrimination under the NJLAD. Since Plaintiff does not provide direct evidence of discrimination, this Court must analyze his claims under the McDonnell Douglas burden-shifting framework. The Court will begin by laying out the requirements for a prima facie case of age and disability discrimination. Then, it will address Defendants' arguments concerning Plaintiff's alleged shortcomings in showing his prima facie case as to age and disability discrimination.

         i. NJLAD Prima Facie Case - Age Discrimination

         The prima facie case under NJLAD for age discrimination requires a plaintiff to demonstrate that: “(1) she is a member of a protected class; (2) she performed her job satisfactorily; (3) she suffered an adverse employment action; and (4) that the employer took the adverse action because of the plaintiff's age.” Hopkins v. Kuehne Nagel Inc., No. 15-7454, 2018 U.S. Dist. LEXIS 201918, at *24 (D.N.J. Nov. 28, 2018) (citing Farmer v. Camden City Bd. of Educ., No. 03-685 (JBS), 2005 U.S. Dist. LEXIS 7339, at *31 (D.N.J. Mar. 28, 2005)). Defendants do not dispute that Plaintiff was a member of a protected class based on his age or that he suffered an adverse employment action.

         ii. Prima Facie Case - Disability Discrimination

         The prima facie case under NJLAD for disability discrimination requires a plaintiff to demonstrate that: “(1) plaintiff was handicapped or disabled within the meaning of the statute; (2) plaintiff was qualified to perform the essential functions of the position of employment, with or without accommodation; (3) plaintiff suffered an adverse employment action because of the handicap or disability; and (4) the employer sought another to perform the same work after plaintiff had been removed from the position.” Victor v. State, 952 A.2d 493, 501 ( N.J.Super.Ct.App.Div. 2008) (citing Leshner v. McCollister's Transp. Sys., 113 F.Supp.2d 689, 692 (D.N.J. 2000); Maher v. N.J. Transit Rail Operations, 593 A.2d 750 (N.J. 1991)). Defendants here do not dispute that Plaintiff suffered an adverse employment action.

         iii. Whether Plaintiff Shows the Second Prong of His Prima Facie Case for Age or Disability Discrimination

         Defendants dispute whether Plaintiff was performing his job satisfactorily and meeting Defendants' expectations. Defendants argument boils down to a very simple point: Plaintiff was subject to multiple disciplinary actions - actions taken based on underlying facts he does not dispute - and those disciplinary problems meant Plaintiff was not satisfactorily performing his job. Plaintiff does not dispute this was the case. Instead, Plaintiff argues that he had been a dealer for over twenty years.[11]

         A recent case from this district is analogous. In Guarneri v. Buckeye Pipe Line Servs. Co., the court was faced with an NJLAD disability discrimination claim. 205 F.Supp.3d 606, 614 (D.N.J. 2016). The court there found that “the determinative question for this summary judgment motion is whether there is a genuine dispute of material fact whether Plaintiff was performing at a level that met the employer's expectations.” Id. at 614-15 (citing Gaul v. Lucent Techs. Inc., 134 F.3d 576, 580 (3d Cir. 1998)). In determining the answer to this question, the court only looked at “objective job qualifications” and required the defendants in that matter to “provide [more than] mere allegations that [the p]laintiff's performance was inadequate.” Id. at 615. The Court noted the “performance standard expected of all employees in a similar position suggests the use of sound, objective criteria.” Id. at 616 (citing Weldon v. Kraft, Inc., 896 F.2d 793, 799 (3d Cir. 1990)).

         The court found no factual dispute: the plaintiff had not met his employer's expectations and could not show his prima facie case. Id. at 615. The court noted four reasons why the plaintiff had not met his employer's expectations: (1) failure to secure new business, (2) insubordination write-ups, (3) customer complaints, and (4) inappropriate use of a company fuel card. Id. On this basis, the Court found the plaintiff could not “establish his prima facie case.” Id. at 616. By implication, therefore, Guarneri found it was appropriate to consider workplace conduct issues at the prima facie stage of the litigation and used this as a basis for finding that the plaintiff had not shown its prima facie case.

         Other analogous cases find similarly on various types of discrimination claims. See, e.g., Kohn v. AT&T Corp., 58 F.Supp.2d 393, 408-10 (D.N.J. 1999) (finding a plaintiff had not stated a prima facie case because the undisputed facts showed plaintiff “was not performing various job assignments”); Henwood v. EMC2 Corp., No. 92-1044, 1993 U.S. Dist. LEXIS 12874, at *12-14 (D.N.J. Sept. 13, 1993) (holding a plaintiff was not adequately performing his job, in part, because of “attitude” issues which were uncontroverted).

         But, it appears the New Jersey Supreme Court interprets this prong of the prima facie case differently than these federal cases and Defendants in this case. According to the New Jersey Supreme Court, for an NJLAD case “[a]ll that is necessary is that the plaintiff produce evidence showing that she was actually performing the job prior to the termination.” Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1144 (N.J. 2005). “[O]nly the plaintiff's evidence should be considered.” Id. And, “even if a plaintiff candidly acknowledges, on his own case, that some performance issues have arisen, so long as he adduces evidence that he has, in fact, performed in the position up to the time of termination, the slight burden of the second prong is satisfied.” Id.

         Obviously, under this formulation, the fact that Plaintiff has been a dealer for twenty years and that he was dealing up until the time of his termination - excluding his suspension pending termination - is enough to allow Plaintiff to meet this “slight burden.” Thus, on the basis that Plaintiff was not performing his job up to ...

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