JACQUELINE SCHIAVO VS. MARINA DISTRICT DEVELOPMENT COMPANY, LLC, ETC. (L-2833-08, ATLANTIC COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5589-15T4
    JACQUELINE SCHIAVO,
    NOELIA LOPEZ, CINDY
    NELSON, TARA KENNELLY,
    and TANIA NOUEL,
    Plaintiffs-Appellants,
    v.
    MARINA DISTRICT
    DEVELOPMENT COMPANY,
    LLC, d/b/a BORGATA CASINO
    HOTEL & SPA,
    Defendant-Respondent.
    _______________________________
    Submitted March 13, 2019 – Decided May 20, 2019
    Before Judges Reisner and Mawla.
    On appeal from Superior Court of New Jersey, Law
    Division, Atlantic County, Docket No. L-2833-08.
    Herman Law Offices, LLC, attorneys for appellants
    (Robert D. Herman, of counsel and on the briefs).
    Morgan Lewis & Bockius LLP, and Cooper Levenson
    PA, attorneys for respondents (Michelle S. Silverman,
    Emily C. DeSmedt, and Russell L. Lichtenstein, on the
    brief).
    PER CURIAM
    Plaintiffs Jacqueline Schiavo, Noelia Lopez, Cindy Nelson, Tara
    Kennelly, and Tania Nouel appeal from the trial court's July 15, 2016 order,
    granting summary judgment dismissing their claims that defendant Marina
    District Development Company (Borgata) subjected them to a hostile work
    environment in violation of the Law Against Discrimination (LAD), N.J.S.A.
    10:5-1 to -49. Plaintiffs contend that our prior opinion, reversing the trial court's
    initial grant of summary judgment on those claims, was binding on the trial
    court, which erred in once again dismissing the case on remand. See Schiavo v.
    Marina Dist. Dev. Co., LLC, 
    442 N.J. Super. 346
     (App. Div. 2015). In the
    circumstances of this case, we agree with that argument. We reverse the order
    on appeal and remand the case for trial.
    To put the issue in context, we summarize pertinent information from the
    prior appeal. Plaintiffs, and several other women who were hired to work as
    costumed beverage servers in defendant's "BorgataBabes" program, claimed that
    "defendant's adoption and application of personal appearance standards (the
    PAS) subjected them to illegal gender stereotyping, sexual harassment, disparate
    treatment, disparate impact, and as to some plaintiffs, resulted in adverse
    A-5589-15T4
    2
    employment actions." Schiavo, 442 N.J. Super. at 357. We affirmed in part and
    reversed in part the trial court's original order, which dismissed all of the
    plaintiffs' claims on summary judgment. 1 At the beginning of the opinion, we
    summarized our holding, preserving plaintiffs' harassment claims, in the
    following unambiguous language:
    We have considered plaintiffs' claims and conclude all
    facial discrimination challenges to the PAS are time-
    barred or unsupported. We also conclude the LAD does
    not encompass allegations of discrimination based on
    weight, appearance, or sex appeal. However, we
    determine the motion judge erred in concluding the
    record was insufficient to present a prima facie claim
    of sexual harassment hostile work environment
    discrimination. Certain plaintiffs, whose lack of
    compliance resulted from documented medical
    conditions or post-pregnancy conditions, have
    presented a material dispute of facts regarding
    defendant's application of the PAS weight standard
    resulting in harassment because of their gender. As to
    those claims, summary judgment is reversed and the
    matter remanded. As to all other claims, for the reasons
    discussed in our opinion, we affirm.
    [Id. at 358-59 (emphasis added).]
    1
    Four of the eleven plaintiffs whose claims we remanded reached settlements
    with defendant. Five of the remaining seven plaintiffs participated in this
    appeal.
    A-5589-15T4
    3
    Later in the opinion, we further addressed plaintiffs' individual claims of
    hostile work environment, stating:
    The record include[d] evidence of several plaintiffs
    who experienced discriminatory interactions following
    pregnancies or documented medical conditions, most of
    which were specific only to women, in the course of
    enforcing the weight standard.
    Following our review, we agree material factual
    disputes regarding harassment experienced by some
    plaintiffs made summary judgment dismissal of their
    claims unwarranted. It is important to understand that
    although all plaintiffs couched their testimony in the
    context of enforcement of the PAS, the claims are not
    discriminatory because of weight per se, but because of
    a gender specific characteristic such as pregnancy or a
    medical condition such that the weight comments
    actually targeted women. In essence, but for the
    subjected plaintiffs' sex, they would not have been the
    object of the harassment.
    [Id. at 387-88 (emphasis added).]
    Our opinion recited specific examples of such evidence pertaining to each
    of eleven plaintiffs litigating the original appeal. Id. at 388-89. The following
    examples concern the five plaintiffs involved in the current appeal:
    (3) Kennelly was required by her shift manager
    Diane Hardie to wear a maternity costume in the early
    stages of her pregnancy, prior to any need to do so.
    When she returned from maternity leave, Hardie
    expressed disbelief [that] Kennelly's weight was within
    limits and required Kennelly to undergo a weigh-in
    twice during that day.
    A-5589-15T4
    4
    ....
    (5) Lopez suffered severe asthma following her
    child's birth for which she was prescribed several
    medications that impacted her weight. Despite medical
    documentation, she was suspended for violating the
    PAS weight standard. Although she was shortly
    reinstated, she received only partial compensation.
    Later, despite Lopez's medical condition, Singe Huff,
    Borgata's Vice President of Talent, insisted Lopez lose
    one pound per week. Her physician documented the
    health detriment she would suffer to accomplish such
    weight loss, which Huff rejected.
    (6) Nelson was weighed despite being pregnant
    and was told by Hardie it was 'just in case you're just
    getting fat and that's the real reason why you want to
    wear [the maternity costume].'
    (7) Nouel recounted offensive comments by
    Jeffrey Rankin, in the presence of her shift manager
    Stephanie Brown[,] that women who have children
    should not come back to work because they get fat.
    ....
    (9) Schiavo grieved a suspension for failing to
    comply with the PAS weight standard. Her medical
    documentation     explaining     [that]   post-surgery
    medication contributed to her weight gain was rejected.
    [Ibid.]
    Our opinion further stated that additional evidence in the record "reinforce[d]
    similar hostile work environment allegations, unmitigated by defendant's
    management." Id. at 389.
    A-5589-15T4
    5
    We concluded that although "enforcement of the PAS weight standard
    alone may not violate the LAD, the complained of conduct reflects a pattern of
    discriminatory comments toward women suffering medical conditions or
    returning from maternity leave that present a prima facie cause of action." Id.
    at 390. We stated that, viewing the evidence in the light most favorable to
    plaintiffs, they had made a "prima facie showing of harassment against women
    because of their gender, which 'a reasonable woman would consider sufficiently
    severe or pervasive to alter the conditions of employment and create an
    intimidating, hostile, or offensive working environment.'"         Ibid. (quoting
    Lehmann v. Toys 'R' Us, Inc., 
    132 N.J. 587
    , 603-04 (1993)). We held that the
    record was "adequate to create a substantial dispute of material facts that the
    harassment alleged was gender based, defeating summary judgment."              
    Ibid.
    (citation omitted). While we did not specifically state that on remand the case
    should be tried unless settled, that was the clear import of our holding.
    A decision of this court is binding on the trial court on remand. See
    Slowinski v. Valley Nat'l Bank, 
    264 N.J. Super. 172
    , 179 (App. Div. 1993). If
    we decided the issue on appeal, the parties may not re-litigate the issue in the
    trial court. Baker v. Nat'l State Bank, 
    353 N.J. Super. 145
    , 170 (App. Div. 2002).
    While the law of the case doctrine is discretionary as between courts of equal
    A-5589-15T4
    6
    jurisdiction, that principle does not apply as between the Appellate Division and
    a trial court handling the same case. See Lombardi v. Masso, 
    207 N.J. 517
    , 539
    (2011); Tully v. Mirz, 
    457 N.J. Super. 114
    , 128 (App. Div. 2018). "It is the
    responsibility of a trial court to comply with the pronouncements of an appellate
    court," and it is therefore a trial judge's "peremptory duty . . . on remand, to obey
    the mandate of the appellate tribunal precisely as it is written." Jersey City
    Redevelopment Agency v. Mack Props. Co. No. 3, 
    280 N.J. Super. 553
    , 562
    (App. Div. 1995) (citations omitted). Although "[t]rial judges are privileged to
    disagree with the pronouncements of appellate courts," that privilege "does not
    extend to non-compliance." Reinauer Realty Corp. v. Borough of Paramus, 
    34 N.J. 406
    , 415 (1961).
    On remand here, our decision was the law of the case and our legal
    conclusions, drawn from the evidence, were binding on the trial court. The trial
    court had no authority to reconsider the same evidence we reviewed and reach a
    different legal conclusion from that evidence. 2 On remand, the trial court
    2
    Ordinarily, a trial court has authority to reconsider its own interlocutory
    orders, including summary judgment orders. See Lombardi, 
    207 N.J. at 533
    .
    However, that principle does not normally apply after we reverse a trial court's
    summary judgment order on the merits. 
    Id. at 538-40
    . On the other hand, if a
    party obtains new evidence, post-remand, a second summary judgment motion
    may appropriately lead to a different outcome. See Baker, 353 N.J. Super. at
    A-5589-15T4
    7
    initially signaled its intent to schedule a trial. However, in an effort to avoid a
    trial, defendant sought and obtained the trial court's permission to "renew" its
    summary judgment motion. On that motion, defendant submitted the previous
    summary judgment evidence, plus a small amount of additional evidence not
    previously submitted on the pre-appeal summary judgment motion. Only a few
    of those documents concerned these five plaintiffs.        Moreover, defendant's
    appellate brief does not explain how any of those new documents affect the
    material factual disputes we cited in our opinion. Instead, defendant's brief re-
    argues the evidence submitted on its original summary judgment motion, citing
    to the statement of undisputed material facts it filed in 2013.
    As reflected in the trial court's opinion, defendant argued to the trial court
    that "the Appellate Division did not review the specific record evidence
    supporting each of the Plaintiffs' individual claims of hostile work environment,
    and thus, it is appropriate for [the trial court] to do so in the context of its
    170. For example, if we remanded because summary judgment was granted
    before discovery was completed, the trial court would be free to reconsider the
    summary judgment issues on a new motion filed after the parties complete
    discovery.
    A-5589-15T4
    8
    renewed [m]otions for [s]ummary [j]udgment." That argument was a distortion
    of our opinion, which clearly reflected our review of the evidentiary record. 3
    In deciding the motion, the trial court characterized our opinion as finding
    "that the [trial court] ruled prematurely by failing to make sufficient [f]indings
    of [f]act" in deciding the original summary judgment motion. That was a
    misreading of our opinion. We did not criticize the trial court for making
    insufficient factual findings. Rather, after de novo review of the record, we held
    as a matter of law that the evidence plaintiffs produced raised material disputes
    of fact on their harassment claims, thereby precluding summary judgment on
    those claims. We therefore remanded the harassment claims to the trial court.
    The trial court should have followed its initial inclination and scheduled the case
    for trial, instead of giving defendant a second bite of the apple on summary
    judgment issues this court already decided.
    As we previously held, plaintiffs' evidence, considered as true and viewed
    in the light most favorable to them, raised material factual disputes as to their
    harassment claims. After a decade of motion practice and appeals, plaintiffs are
    3
    Defendant's appellate brief presents the same inaccurate interpretation of our
    opinion. Defendant also misplaces reliance on an unpublished decision in a case
    where, on remand, both sides consented to the trial court deciding the case on
    summary judgment.
    A-5589-15T4
    9
    entitled to their day in court. We reverse the order on appeal and remand this
    case for trial.
    Reversed and remanded. We do not retain jurisdiction.
    A-5589-15T4
    10