“BorgataBabes” Lawsuit Revived As Trial Court Is Chided For Ignoring Appellate Division

Some of the best parts of the movie “My Cousin Vinny” are the interactions between Vinny, played by Joe Pesci, and Judge Haller, played by the late Fred Gwynne. In one scene, Judge Haller admonishes Vinny for failing to dress appropriately for court. When Vinny comes to court the next day wearing exactly the same thing he had on the day before, the following exchange occurs:

Judge Haller: Mr. Gambini, didn’t I tell you that the next time you appear in my court that you dress appropriately?

Vinny: You were serious about that?

Judge Haller was serious, and Vinny spent a night in jail as a result. I was reminded of this scene when I read Schiavo v. Marina District Development Company, LLC d/b/a Borgata Casino Hotel & Spa, where the Appellate Division had to remind the trial court that it was serious about a prior decision.

Schiavo has been pending for more than a decade. Plaintiffs worked as “costumed beverage servers” in the defendant’s “BorgataBabes” program. (Disclaimer: This is the actual name of the program, not my name for it.) They claimed that “defendant’s adoption and application of personal appearance standards (PAS) subjected them to illegal gender stereotyping, sexual harassment, disparate treatment, disparate impact, and . . . resulted in adverse employment actions.”

The trial court originally dismissed all of plaintiffs’ claims on summary judgment. Plaintiffs appealed. In a 2015 decision, the Appellate Division agreed with the trial court on most of plaintiffs’ claims, but “preserved” one aspect of plaintiffs’ case, its sexual harassment claims. The Appellate Division held that “enforcement of the PAS weight standard alone may not violate the [Law Against Discrimination], [but] the complained of conduct reflects a pattern of discriminatory comments towards women suffering medical conditions or returning from maternity leave that present a prima facie cause of action.” The Appellate Division held that the record was “adequate to create a substantial dispute of material facts that the harassment alleged was gender based, [thus] defeating summary judgment” on plaintiffs’ sexual harassment claims. While the Appellate Division “did not specifically state that on remand the case should be tried unless settled, that was the clear import of [its] holding.”

The trial court apparently missed this “clear import” because, on remand, it allowed defendant to move for summary judgment again, and dismissed plaintiffs’ sexual harassment claims again. Not surprisingly, plaintiffs appealed.

Also not surprisingly, the Appellate Division reversed the trial court. It observed that Appellate Division decisions are binding on trial courts. While the so-called law of the case doctrine is discretionary “as between courts of equal jurisdiction, that principle does not apply as between the Appellate Division and a trial court handling the same case.” Rather, “a trial judge’s peremptory duty on remand [is] to obey the mandate of the appellate tribunal precisely as it is written.” The Appellate Division then noted, perhaps pointedly, that “trial judges are privileged to disagree with the pronouncements of appellate courts, [but] that privilege does not extend to non-compliance.”

This is the legal version of the well-settled parental principle of “because I said so.”

In Schiavo, the Appellate Division held that the trial court ignored this principle when it reviewed the same evidence that the Appellate Division reviewed and reached a different legal conclusion from that evidence. (The situation might have been different if defendant had obtained new evidence after the first appeal, but that was not the case in Schiavo.) The Appellate Division held that it reviewed the evidence de novo and ruled as a matter of law that plaintiffs raised material factual issues on their harassment claims, “thereby precluding summary judgment on those claims.” Thus, the trial court should have “scheduled the case for trial instead of giving defendant a second bite at the apple on summary judgment issues [the Appellate Division] already decided.”

In the final paragraph of its decision, the Appellate Division made the import of its holding crystal clear: “After a decade of motion practice and appeals, plaintiffs are entitled to their day in court. We reverse the order on appeal and remand this case for trial.”

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