Appellate Division Allows New Jersey Employment Law Case Against Casino for Whistleblowing, Discrimination and Harassment to Proceed to Jury
The Appellate Division recently reversed the dismissal of a casino employee’s lawsuit for whistleblower retaliation, discrimination and sexual harassment, demonstrating again that New Jersey employment law provides some of the country’s strongest employee protections, while also demonstrating the limits of those protections.
In that case, Fox v. DGMB Casino, LLC, Regina Fox was employed as director of security by DGMB Casino, LLC (the corporate name for Resorts Casino Hotel), and had worked there for thirty seven years. She was sixty two. As director of security, she was in charge of staffing requirements and other regulatory mandates of the New Jersey Division of Gaming Enforcement. Any changes in staffing were required to be reported to the Division.
In 2013, Resorts hired Mark Sachais as vice president of hotel operations; he had previously been a consultant for Resorts. In 2015 the security department, and thus Fox, were placed under his supervision. Sachais requested staffing reduction recommendations, and told Fox the staff would be reduced with or without her recommendations. She objected that staffing could not be reduced because of the Division’s minimum staffing requirements, and all staffing was required to be reported to the Division monthly. When two full-time employees resigned, Sachais wanted to replace them with part-time or on call workers, but Fox objected that the law required full-time employees. Sachais asked her to “hold off” on advising the Division, and Fox objected that legally she could not. Fox also testified that Sachais directed Fox to “fudge numbers” by listing employees as full-time but only giving them part-time schedules, to omit staffing changes, and to not submit reports to the Division.
Fox also objected that Sachais was trying to weed out older and female security officers. Fox testified that Sachais said “[w]e need to get back to youth enforcement people[,] in here, get rid of these girls, what are they going to do if something goes wrong.”
Sachais then started taking action against Fox which she construed as retaliation. He required her to start having weekly meetings with him, moved her office to the operations floor, moved her parking spot several blocks away, transferred her authority to hire employees to her subordinates, sought to remove her administrative assistant, and generally sought to exclude her from the department.
Fox went out on sick leave after being told to “fudge numbers,” and thereafter went on Family and Medical (FMLA) Leave. She then resigned before returning from FMLA leave.
Fox sued Resorts and Sachais in the Superior Court for violating the New Jersey Conscientious Employee Protection Act (“CEPA”) and the New Jersey Law Against Discrimination (The “NJLAD”). The judge dismissed her case because he ruled she had not suffered any adverse action. Fox appealed to the Appellate Division of the Superior Court.
The Appellate Division’s Opinion
In response to the appeal concerning the New Jersey Conscientious Employee Protection Act, Resorts admitted that Fox reasonably believed that its conduct violated the law and that she performed “whistleblowing” activity. However, it denied that she suffered any adverse employment action, and that was the issue on appeal.
The Appellate Division found that even though Resorts had not actually fired Fox, taken together the actions that she alleged, if true, could rise to the level of an adverse employment action. As the court explained:
Here, although plaintiff was not terminated, transferred nor demoted from her position, arguably there were a number of actions by her employer from which a jury could infer she suffered retaliatory actions. Her parking spot and others were changed to a lot three blocks away, but in her position as director of security, the exposure may have entailed greater risk; she claimed no one explained the move to her even though she had parked in the garage for twenty years. Plaintiff’s ability to hire staffing was removed and given to subordinates. She may have delegated some of this in the past but under Sachais the hiring function was removed. He also suggested her office might be relocated and her assistant reassigned. She was required to report more frequently and to advise when she was in the building, things that she had not been asked to do in the past. All of these changes or threatened changes came within a month of Sachais becoming her supervisor. On this record and at this stage of the proceeding, there was a genuine issue of fact that she was subjected to an adverse employment action.
The New Jersey Law Against Discrimination also prohibits retaliation for complaints about discrimination. Fox also claimed that Resorts retaliated against her because of her complaints about discrimination against older employees and women, particularly “old and fat women.” The Appellate Division examined these claims under the same analysis as for CEPA, and found that they too presented sufficient questions to be submitted to a jury.
Finally, the LAD, like CEPA, recognizes actions for harassment, or the creation of a hostile work environment if they are taken because of a prohibited characteristic. Fox alleged that she was harassed to the point of creating a hostile work environment because of her age and gender. Resorts argued that any actions taken against Fox did not constitute a hostile work. The Appellate Division found that Fox’s allegations rose to the level of a hostile work environment and were sufficient to submit to a jury to determine if they were true. The court explained.
For her claim of hostile work environment based on age and gender, plaintiff alleged that Sachais “berated women in front of me constantly.” He showed open hostility to plaintiff and women her age by moving her parking spot, removing her ability to hire staff, threatening to move her office and to take away her assistant, requiring her to meet with him weekly, and calling other people behind her back on certain issues. Plaintiff claims she was constructively discharged.
Some of what plaintiff complains about, by itself, might not constitute a hostile work environment under LAD. Defendants contend the new parking assignments were based on an employee’s position in the organization not gender or age. Also, we cannot say that a supervisor, who wants to meet more frequently with his staff or know where they are, is creating a hostile work environment based on a protected category. That said, there are allegations here that Sachais wanted to replace older and heavier women in the security department with younger people to have a “youth force.” He wanted to require women to meet certain physical performance standards. Sachais claimed he was working with upper management to make sure this was done in an appropriate manner. We reach no conclusion whether these allegations are true, but the allegations are that age and gender were being targeted in the security department and that plaintiff objected to that. When we consider that in a thirty-two day period of time, plaintiff’s ability to hire staffing was removed from her, her long term parking spot was changed to an area that was less secure, she now was more regularly supervised—even though she had no disciplinary history— and older and heavier women were to be weeded-out, we think a reasonable person could conclude that the conditions were severe or pervasive and that plaintiff’s conditions of employment were altered. Given the standards by which we are to assess a motion for summary judgment—that we view the evidence in a light most favorable to the non-moving party—we conclude the trial court erred by dismissing this portion of plaintiff’s claim.
The bottom line is New Jersey employment law provides strong protections for employees so that they can work in safe, ethical, lawful workplaces without having to suffer discrimination, or retaliation for doing the right thing. This places New Jersey at the forefront of employee civil rights protection in America.
However, these protections are unlimited. For both employers and employees evidence is the key. Everything should be documented. For example, Fox also sued because of harassment and discrimination because of her sexual orientation. However, she did not produce evidence that Resorts had any idea what her sexual orientation actually was. The Appellate Division therefore upheld the dismissal of this count of her complaint.
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