NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NOS. A-2299-23 A-2300-23 A-2301-23 A-2302-23 A-2303-23 A-2304-23 A-2305-23 A-2306-23 A-2307-23 A-2308-23 A-2309-23 A-2310-23 A-2311-23 A-2312-23 A-2313-23 A-2314-23 A-2315-23 A-2317-23
AL TABEI, SANDRA TOTH, FRANK VIERING, MARY ROMANO, CHRIS IRELAND, MARA KRAFT, ADEL SOLIMAN, STEVEN MOKIENKO, RICHARD GOLDING, SEBASTIAN DIMAEGLIO, CHRIS DESALLE, MALGORZATA HUNTBACH, WILLIAM SMITH, LYUBOMIR ALEKSANDROV, MICHELLE MANCINI, PATRICK HILLARD, MICHAEL COONEY, FREDERICK RENZULLI, JO-ANN SCHWENDEMANN, and GARY WEISMAN, individually for themselves and on behalf of those similarly situated, Plaintiffs,
and
JAMES CURRY, ROGER MONTALVO, LYDIA BANEK, TOMAS RAMIREZ, WILLIAM PROCEOPIO, PAUL LEBRON, JOHN MACCHIAROLA, SHARON MULHERN, DONALD DIVINCENZO, JAY BERKIN, LINDA VIERECK, JERONIMO REYES, KIM HALDEMAN, EDDISON GIRALDO, MICHAEL SMITH, ANTHONY VETRANO, and WENDY MCGAFFNEY,
Plaintiffs-Appellants,
v.
BALLY'S PARK PLACE, LLC, d/b/a BALLY'S ATLANTIC CITY, JOSEPH GIUNTA, both individually and in his management capacity, and CORI EDLEY, both individually and in her management capacity,
Defendants-Respondents,
CEOC, LLC, d/b/a CAESARS ENTERTAINMENT CORPORATION, BOARDWALK REGENCY, LLC, HARRAH'S ILLINOIS, LLC, SOUTHERN ILLINOIS RIVERBOAT/CASINO CRUISES, LLC,
Defendants. ________________________________________
Argued January 8, 2026 – Decided January 22, 2026
A-2299-23 2 Before Judges Mawla, Marczyk, and Bishop- Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0269-18.
Robert A. Ballard, III, argued the cause for appellants (O'Connor, Parsons, Lane & Noble, LLC, attorneys; Gregory B. Noble, Robert A. Ballard, III, R. Daniel Bause, and Debra D. Tedesco, of counsel and on the briefs).
Amy E. Rudley argued the cause for respondents (Cooper Levenson, PA, attorneys; Amy E. Rudley and Jennifer B. Barr, on the brief).
PER CURIAM
In these consolidated appeals, plaintiffs: Lydia Banek; Jay Berkin; James
Curry; Donald DiVincenzo; Eddison Giraldo; Kim Haldeman; Paul Lebron;
John Macchiarola; Wendy McGaffney; Roger Montalvo; Sharon Mulhern;
William Proceopio; Tomas Ramirez; Jeronimo Reyes; Michael Smith; Anthony
Vetrano; Linda Viereck; and Frank Viering appeal from orders dismissing their
age discrimination claims under the New Jersey Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -50, against defendants Bally's Park Place, LLC; Cori
Edley; and Joseph Giunta. The relevant orders are dated July 18, 2023; August
22, 2023; and September 13, 2023. We affirm.
A-2299-23 3 Plaintiffs are eighteen bartenders who were represented by a collective
bargaining unit and employed in casinos and resorts owned by Bally's in Atlantic
City. In 2015, Bally's prepared to open a new bar, called the Boardwalk Saloon,
and created ten union positions with the job title "bartender entertainer."
Bally's intended the Boardwalk Saloon to become its flagship bar and
generate the most revenue in the "Wild West" part of its casino. To work at one
of Bally's various bars, employees had to bid on shifts approximately twice per
year. Bidding was typically based on bartender seniority and certification status,
with priority given to employees who had a longer tenure with Bally's.
However, to bid on shifts at the Boardwalk Saloon, employees had to become
"Boardwalk Saloon-certified" by satisfying a list of qualifications.
Giunta established the concept for the Boardwalk Saloon and held
meetings where he, Edley, and others collaborated to create the roadmap for it
that was reduced to writing in a "critical path document," which no longer exists.
He conceded there were never any discussions amongst the collaborative team
about whether the qualifications for the Boardwalk Saloon were discriminatory.
Edley took the lead in creating the hiring criteria for bartender entertainer
positions at the Boardwalk Saloon. She was alternatively the beverage manager
and regional beverage operations manager, and had supervisory authority over
A-2299-23 4 plaintiffs. Giunta was Bally's vice president of food and beverage, oversaw day-
to-day business operations, established bar concepts, and reviewed Edley's
hiring criteria for the bartender entertainer position.
In addition to Edley and Giunta, John Dougherty, who worked for Bally's
from 2011 to 2022, helped to create the concept for the Boardwalk Saloon, and
oversaw its day-to-day operations. Rich Tartaglia was corporate counsel for
Bally's from 2003 onward. Monique Tarves was the regional labor and
employee relations manager, and regional recruitment and onboarding manager
from 2013 to 2020. Jerry Beaver, who began working for Bally's around 1990,
became the director of food and beverage in 2008, and oversaw its bars.
On December 24, 2015, Bally's posted an interest sheet with the
Boardwalk Saloon's hiring criteria for employees to sign up if they wanted to
bid on a bartender entertainer position. Employees had to satisfy the following
criteria: complete and pass the Cicerone and BarSmarts modules/courses;
complete bull riding safety training; complete choreography training; complete
working flair training; wear assigned costume(s); maintain a weight proportional
to their height; be able to serve food from assigned outlets; and serve as a social
media ambassador. Bally's reposted the interest sheet with these criteria on July
29 and November 26, 2016.
A-2299-23 5 The Cicerone course teaches about "types of craft beers, the composition
of craft beers[,] and how to serve . . . and . . . describe them." Within a six-
month period, Cicerone test-takers were granted two opportunities to take the
exam. Edley testified Bally's informed employees interested in working at the
Boardwalk Saloon that all information necessary to pass the test was available
for free on the Cicerone website, which provided a full syllabus detailing the
testable material.
BarSmarts is a course about wine, beer, and spirits, as well as their
histories and preparation, which is then followed by a final exam. Bally's
provided employees who signed up to take BarSmarts with an access code for
the course, instructions on how to use the course, and an explanation on the
course layout. Plaintiffs' bargaining unit requested Bally's provide plaintiffs
with study guides for the Cicerone and BarSmarts courses. Bally's declined and
responded the Cicerone website provides a free syllabus and study flashcards
online.
Edley testified the plan for the Boardwalk Saloon was to serve cocktails,
which were "a bit more involved." Bartenders were expected to be able to
describe different beers and assist customers in deciding what to order, and
prepare complex cocktails by making simple syrup. Bally's planned to have an
A-2299-23 6 "extensive" craft beer menu at the Boardwalk Saloon, which included beers
unavailable at Bally's other bars and restaurants aside from Guy Fieri's
Chophouse, a restaurant which also required the Cicerone and BarSmarts
training.
Tarves testified bartenders "would be required to ride" the mechanical
bull, and Edley testified "the staff needed to understand how to ride the bull
safely and . . . be able to determine if there was a safety issue prior to getting
onto the mechanical bull." However, Dougherty testified he "hardly ever" saw
bartender entertainers riding the mechanical bull while working at the
Boardwalk Saloon. Beaver was unaware of the mechanical bull requirements
and did not understand the purpose of it, as bartenders "didn't operate the bull."
Edley testified choreography training was required as bartender
entertainers were intended to have a "good time" with patrons by "dancing
behind the bar" and "going with the music." Working flair training was also
required and involved learning how to perform tricks with bar equipment, like
throwing a bottle up in the air and catching it, "throwing a tin in the air," or
"[t]hrowing a napkin across a bar top so that it . . . skips like a rock." Edley
testified working flair training was about "showmanship" and building a new
customer base by creating a memorable experience for patrons. Dougherty
A-2299-23 7 never saw bartenders doing choreographed dances or working flair at the
Boardwalk Saloon.
Bartender entertainers were required to serve as social media ambassadors
by posting on their social media accounts about events at the bar. Dougherty
testified the posting was not monitored as bartenders were simply encouraged
to post about the bar.
Bartenders also had to wear assigned costumes, specifically leather vests,
jeans or shorts, and boots. The position also required them to serve food from
specified areas.
Bartender entertainers had to maintain a weight proportionate to their
height. Edley testified entertainers had to satisfy certain metrics as set forth in
either: a "Body Fat Ranges for Standard Adults" table (Tanita table), which
accounted for a subject's age; or a body mass index table (BMI), which did not
account for age. This was to ensure employees were "physically fit to complete
the[ir assigned] duties." Bally's enforced this requirement by having bartender
entertainers visit an on-site nurse twice per year for measurements. If a
bartender entertainer did not maintain their weight, they were "given a time
period to fall within the standards," and if they still failed to do so, they were
disqualified from the position.
A-2299-23 8 At least one employee, Richard Roman, was assessed using the Tanita
table because he had failed the BMI assessment. According to Tarves, Roman
was a "very fit individual," so Bally's may have used a "body fat index" to
determine his eligibility.
In addition to the qualifications listed on the interest sheets, Bally's posted
a job description for the bartender entertainer position, which stated employees
were expected to maintain a proportionate height-to-weight ratio and "physically
fit appearance." Neither the three interest sheets, nor the job description,
specified a standard for measuring or ascertaining the appropriate height -to-
weight ratio.
Plaintiffs' average age when the Boardwalk Saloon opened was fifty-three
years old. The average age of the bartenders hired to work at the Boardwalk
Saloon was thirty-three. Plaintiffs did not qualify to work at the saloon.
Count one of plaintiffs' complaint alleged age discrimination because
defendants "did not hire and/or transfer plaintiffs and similarly situated older
employees to a more desirable position[,] and instead[,] hired and/or transferred
younger, less experienced employees based on certain discriminatory 'criteria'
and for other discriminatory reasons." The second count alleged aiding and
abetting, because defendants worked in concert to discriminate against them.
A-2299-23 9 Plaintiffs retained an expert dietician nutritionist. The expert opined "that
maintenance of BMI/height proportionate to weight becomes more difficult with
age," which is attributable to "age-related loss of stature, and changes in
hormonal status . . . that impact body composition and metabolic rate." As a
person ages, they lose height and have a harder time losing weight, which
inflates their BMI and height proportionate to their weight. Also, "[a]ge-related
changes in hormone status result in decreased lean body mass and increased
body fat."
The expert noted Bally's BMI chart did not account for all relevant factors
or adequately compensate for age-related challenges in weight maintenance.
Although defendants used both the BMI and Tanita tables to assess employees
of the Boardwalk Saloon, her report only accounted for the BMI standard. Using
a hypothetical individual, between the ages of twenty-five and sixty-five, who
maintained the same weight despite losing two inches of their height, resulted
in their BMI shifting from a normal range to an overweight range. Again, the
expert did not address whether, pursuant to the Tanita table, the hypothetical
individual would be considered overweight.
Following discovery, defendants moved for summary judgment, asserting
the record evidence did not support plaintiffs' claims. The motion judge held
A-2299-23 10 hearings on June 30, 2023; July 14, 2023; August 11, 2023; and August 28,
2023.
On June 30, 2023, the judge heard argument with respect to the plaintiffs
who are not parties to this appeal and denied defendants summary judgment for
the three plaintiffs in this first group on the disparate treatment 1 and aiding and
abetting claims. However, using identical reasoning for each plaintiff, who are
before us on this appeal, he granted defendants summary judgment on the
disparate impact claims
because out of thirty-one . . . remaining plaintiffs in this action, only six . . . had their BMI tested . . . . Of those six . . . plaintiffs, three . . . passed the BMI testing and the remaining qualifications to go on to work at the [s]aloon . . . . None of the [p]laintiffs were disqualified to work at the [s]aloon for failing the [b]ull [r]iding [s]afety training; the choreographed dance training; working flair training; and the social media[] . . . ambassador. Therefore, although [p]laintiffs argue that the "cumulative effect" of the qualifying criteria[] had a disparate impact upon them, they present no evidence supporting this claim.
He concluded there was not "a big enough group to claim there was disparate
impact" because only three plaintiffs in the first group "out of the entire universe
of Bally's employees were adversely impacted by this test."
1 Although plaintiffs did not expressly plead the disparate impact or disparate treatment claims, the judge inferred those claims from the pleadings. A-2299-23 11 On July 14, 2023, the judge addressed defendants' motions for summary
judgment as to three plaintiffs not participating in this appeal who passed the
height-to-weight ratio requirement and were hired to work at the Boardwalk
Saloon. He found they did not have disparate impact claims.
The judge then addressed the facts applicable to each plaintiff in the
appeal before us when he granted defendants summary judgment on the
disparate treatment and aiding and abetting claims. He found as follows:
Banek
Banek started working for Bally's in 1991 and became a bartender for the
company around 1996 or 1997. Her seniority was ranked nineteenth in 2015.
She was born in 1962, weighs approximately 205 pounds, and is five feet, ten
inches tall.
Banek testified she passed both the BarSmarts and Cicerone tests. She
was never offered bull riding training and stated her age did not prevent her from
participating. Similarly, she was never offered choreography training but
testified she would have signed up for it had she known about it and her age did
not prevent her from participating in the training. She also testified her age did
not prevent her from serving food.
A-2299-23 12 Banek did not participate in working flair training but wanted to try it.
She was willing to wear the assigned uniform, but thought the clothes were
inappropriate for older people to wear. Banek agreed anyone could learn to use
social media with proper training but testified she had difficulty with it due to
her age. She believed she would not pass the weight and height requirements
for the position. Banek never saw older people working at the Boardwalk
Saloon, or any bartenders dancing or riding the mechanical bull.
The judge found Banek "did not sign up to bid into the bar because she
already knew the criteria for weight; she wouldn't pass." She "did not continue
with the process" to qualify for the position and "voluntarily" withdrew , as she
believed she would not satisfy the height-to-weight ratio.
Montalvo
Montalvo began working for Bally's in 1989 and became a full-time
bartender in 1991. He was born in 1966, is five feet, eight inches in height, and
weighs about 290 pounds.
Montalvo passed both the BarSmarts and Cicerone exams after purchasing
exam study guides. He did not participate in bull riding training because he had
neck surgery and was concerned about potential injury. However, he never
asked if he could be excused from the bull riding training.
A-2299-23 13 Montalvo testified his age affected his ability to maintain a proportionate
weight-to-height ratio, as well as participate in bull riding and choreography
training. Age did not impact his ability to work as a social media ambassador
or serve food. He testified neither Edley nor Giunta said anything inappropriate
to him regarding his age.
The judge found Montalvo voluntarily withdrew from consideration for
the Boardwalk Saloon position. Montalvo was thus not subject to an adverse
employment action because he "failed to apply for the job."
Viering
Viering began working as a bartender for Bally's around 1979. In 2015,
he was second in seniority. He was born in 1956, weighs 220 pounds, and is six
feet, two inches tall, but was previously six feet, three inches tall.
Viering passed the BarSmarts exam. He purchased a Cicerone training
course and passed the exam approximately two years after the Boardwalk Saloon
opened. Viering never completed bull riding training because he had a back
injury.
Viering never bid on a position at the Boardwalk Saloon because he did
not take the BMI test, believing he would not pass unless he lost weight. He
also testified his wife was in an accident around the time the saloon opened,
A-2299-23 14 which "could have been a factor" why he did not want to work there. Viering
was unsure whether he would have applied to work at the saloon, even if he had
satisfied the employment requirements because he did not want to be stuck there
for a long time in case it was "a dud."
Viering admitted his age did not prevent him from participating in
choreography training, working flair training, being a social media ambassador,
or wearing a costume. He was unaware of anyone utilizing working flair
training at the Boardwalk Saloon and testified it had a limited craft beer
selection. Viering testified the saloon's employees were given more flexibility
with attendance. Neither Edley nor Giunta ever said anything inappropriate to
him about his age.
The judge found Viering did not establish a prima facie age discrimination
case since he did not bid on the job. Moreover, he could not ride the mechanical
bull because of his back, not his age, and he neither asked for reasonable
accommodation nor an exemption from the bull riding requirement.
Viereck
Viereck began working for Bally's in 2000 after it purchased the Claridge
Casino, where she had worked as a bartender since 1990. She was born in 1961,
A-2299-23 15 weighs approximately 125 pounds, is five feet, five inches in height , and met
the height-to-weight proportion requirements.
Viereck passed the BarSmarts and Cicerone exams. However, due to back
issues, she believed she could not ride the mechanical bull. She asked Edley if
bull riding was a requirement for working at the Boardwalk Saloon and Edley
responded it was. Viereck testified she could not do working flair training or
carry heavy trays of food due to arthritis in her hands, but she never asked for
an exemption from the requirements.
Viereck admitted her age did not preclude her from mechanical bull riding
training, choreography training, serving food, or being a social media
ambassador. Neither Edley nor Giunta ever said anything inappropriate to her
about her age.
The judge found Viereck's back injury, not her age, prevented her from
completing the bull riding training. Defendants did not discriminate against her
because she never asked for reasonable accommodation and neither applied nor
was qualified for the position.
A-2299-23 16 Macchiarola
Macchiarola began working as a bartender for Bally's in 2001. He was
born in 1963, is five feet, ten inches tall, and weighs around 250 pounds. In
2015, he ranked thirtieth in seniority.
Macchiarola testified his supervisor said he was not allowed to work at
the Boardwalk Saloon, and Macchiarola also believed he would be unable to
work there due to his BMI because there were others who were denied
employment who weighed less and had greater seniority than him. He passed
the BarSmarts exam but never completed the Cicerone course or exam after he
learned of the BMI requirement. Macchiarola admitted his age did not bar him
from taking the exams. He also testified neither Edley nor Giunta ever spoke to
him in a discriminatory manner about his age.
Macchiarola did not enroll in bull riding, flair, or choreography training.
He never saw bartenders at the Boardwalk Saloon performing choreographed
dances or working flair.
The motion judge found Macchiarola "willfully withdrew" from
consideration for the saloon position. Defendants therefore had not taken any
adverse employment action against him.
A-2299-23 17 McGaffney
McGaffney first worked for Bally's from 1979 to 1982 and then returned
in 2006 to work as a bartender. She was born in 1960, weighs 195 pounds, and
is five feet, five inches in height.
McGaffney passed the BarSmarts exam but did not take the Cicerone
course and exam because she did not see the point after learning about the BMI
requirements. She testified it became more difficult for her to lose weight as
she aged. McGaffney stated she is "not very tech savvy" so she would have
trouble with the social media requirements for the position. Neither Edley nor
Giunta ever spoke to her in a discriminatory manner about her age.
The judge found "McGaffney, based on her deposition testimony,
willfully withdrew from the bidding. She did not fail [the] Cicerone. She
abandoned [the] Cicerone . . . ."
Reyes
Reyes began working for Bally's in 1990 and had worked as a bartender
since approximately 2007. He was born in 1961. In 2015, he ranked fifty-fifth
in seniority.
Reyes signed the interest sheet but never heard back and never followed
up. He was concerned about the job requirements, specifically the dancing,
A-2299-23 18 juggling, and mechanical bull operation. Reyes thought he could meet the
height-to-weight requirement but was concerned he could not meet the other
requirements due to his age and issues with his feet. Neither Edley nor Giunta
said anything inappropriate to him about his age.
The judge concluded Reyes's testimony showed he did not bid for the
position, which was fatal to his claim because a "LAD failure to hire claim
requires the employee . . . to actually apply to the job." There was "no adverse
employment action . . . because . . . Reyes willfully withdrew from the bidding.
He also did not ask for any accommodation or an exemption [for his] . . . medical
condition with his feet . . . ."
DiVincenzo
DiVincenzo began working for the Claridge in 1981, and then for Bally's
after it purchased the Claridge. He was born in 1962, weighs around 200
pounds, and measures five feet, eleven inches in height. In 2015, his seniority
rank was thirty-third.
DiVincenzo did not take the required tests or training programs because
of the bull riding, food service, and social media requirements. He worried he
would get hurt because he was "old," and spoke with his supervisors about his
concerns regarding bull riding and carrying a food tray but could not recall the
A-2299-23 19 specifics of the conversations. DiVincenzo testified he did not use social media
but could learn if necessary.
Although DiVincenzo was unsure whether his weight was within a healthy
range, he believed he would need to lose approximately thirty-five pounds to
qualify for the position. He spoke to his supervisors about the height-to-weight
requirement but again, could not recall any specifics. DiVincenzo did not recall
any inappropriate comments made about his age by Bally's supervisors.
The judge found DiVincenzo's "failure to register for anything evidenced
that there's no adverse employment action because he did not take any steps
whatsoever to bid into the [s]aloon. He also did not ask for any accommodations
or exemptions for any of the requirements."
Curry
Curry began working for Bally's in 1981, and by 2015, was ranked fourth
on the seniority list. He was born in 1959, weighs around 165 pounds, and is
five feet, eight inches in height.
Curry began the BarSmarts course, but neither finished the coursework
nor took the exam. He also never attempted the Cicerone course or exam
because he was absent from work due to illness and when he returned, he "just
never followed up on it." Curry testified he could not participate in the working
A-2299-23 20 flair or bull riding training, as he was susceptible to injury and had arthritis.
Neither Edley nor Giunta spoke to him about his age or said anything he felt was
inappropriate.
The judge found Curry abandoned his bid for a position at the saloon by
"never follow[ing] up on [the] BarSmarts." Curry failed to "take the primary
steps to apply to bid."
Haldeman
Haldeman began working as a server for the Claridge in 1996 and then for
Bally's in 2002 after it purchased the Claridge. Around 2006, she became a
bartender for Bally's. In 2015, Haldeman's seniority rank was fifty-eighth. She
was born in 1967, weighs 215 pounds, and is five feet, eleven inches in height.
In 2014, Haldeman completed over half of the BarSmarts course. She
took the BarSmarts course because it was required to work at Guy Fieri's
restaurant. However, she did not attempt to finish the course because she was
no longer interested in working at the restaurant. Although she was interested
in working at the Boardwalk Saloon, she did not believe she could ride the
mechanical bull or meet the height-to-weight requirements. Her name was not
on the interest sheet.
A-2299-23 21 Haldeman testified she did not take the Cicerone course and exam because
she did not complete the BarSmarts course. She also had back issues, which
prevented her from completing the bull riding training. However, she never
asked for an accommodation or to be excused from the requirement. She
claimed management told her numerous times she could not work at the
Boardwalk Saloon, but she did not specify with whom she had spoken.
Haldeman admitted Edley and Giunta never acted in a discriminatory way
towards her because of her age.
The judge concluded Haldeman did not take the "primary steps to apply
to bid into the [s]aloon" since she did not sign the interest sheet and "abandoned"
her attempt at the BarSmarts course. Thus, defendants did not take any adverse
employment actions preventing her from working at the saloon.
Smith
Smith began working for Bally's as a bartender in 2000. In 2015, he
ranked forty-fifth in seniority. Smith was born in 1966, weighed around 270
pounds in 2016, and is five feet, seven inches in height.
Smith did not speak with any supervisor about the Boardwalk Saloon or
its eligibility requirements. He did not enroll in either the BarSmarts or
Cicerone courses because he did not believe he could satisfy the height -to-
A-2299-23 22 weight requirements. Smith testified his age did not prevent him from taking
those courses, but it did prevent him from mechanical bull riding. The judge
found Smith did not bid for the position because he failed to take the requisite
courses.
Vetrano
Vetrano worked at Bally's from 1994 to 1999 and then returned as a
bartender in 2002. In 2015, he was ranked forty-sixth in seniority. He was born
in 1975, weighed around 175 pounds in 2016, and is five feet, eight inches tall.
Vetrano did not complete the BarSmarts or Cicerone courses and exams.
He admitted his age did not prevent him from enrolling in, or completing, either
course. Vetrano claimed he would have taken the BarSmarts course had his
supervisors not given him the "runaround." He was "on the fence" about taking
the course, and when he asked supervisors about taking it, they stated they would
make it available for him but never followed through. However, he conceded
neither Edley nor Giunta acted discriminatorily against him based on his age.
Ultimately, Vetrano stopped asking about the BarSmarts course after he noticed
coworkers with more seniority were denied work at the Boardwalk Saloon.
The judge found "Vetrano did not sign the interest sheet, so he did not
receive the BarSmarts access code," which would have allowed him to take the
A-2299-23 23 exam. Vetrano did not bid for a position at the Boardwalk Saloon because he
did not take the requisite exams or "any steps to apply for the job," and so no
adverse employment action had taken place.
Proceopio
Proceopio worked for Bally's from 1995 until 2018. He was born in 1942,
is five feet, eleven inches tall, and weighed around 240 pounds in 2016. He
ranked twenty-fifth in seniority in 2015.
Proceopio testified he never saw, and therefore never signed, the interest
sheet for the saloon. He took neither the BarSmarts nor Cicerone courses and
exams. Proceopio did not enroll in the bull riding training because he: believed
he was too old; had "no desire to ride a bull;" and was "never asked" to
participate. He stated the opening of the Boardwalk Saloon limited his ability
to work at another Bally's bar.
Proceopio tried to speak with Edley about the Boardwalk Saloon.
However, he could not remember when the conversation took place or what was
said. He admitted neither Edley nor Giunta ever said anything discriminatory
to him about his age, but Giunta had been rude to him before.
A-2299-23 24 The motion judge found Proceopio was not qualified to work at the
Boardwalk Saloon. He never took any steps to apply for the job because he
neither signed the interest sheet nor took the BarSmarts and Cicerone courses.
Ramirez
Ramirez worked for Bally's as a bartender from 1994 until 2017. He was
born in 1953, is five feet, eight inches in height, and weighs approximately 175
pounds. In 2015, his seniority rank was twenty-two.
Ramirez testified he "didn't care" to enroll in the Cicerone course and
exam after he noticed other older employees had issues with it, and thought his
age prevented him from meeting the position's requirements. He did not know
what the BarSmarts course and exam was, so he did not attempt it.
Ramirez told a supervisor he had a back problem, which prevented him
from riding the mechanical bull, but he could not remember with whom he had
spoken. His age made it challenging to maintain his weight in proportion to his
height, participate in bull riding, and engage in working flair training. He
admitted neither Edley nor Giunta ever said anything discriminatory to him
about his age.
A-2299-23 25 The judge found Ramirez took no steps to apply for a position at the
Boardwalk Saloon. This was evidenced by the fact he never took the BarSmarts
or Cicerone courses.
Mulhern
Mulhern began working for Bally's as a bartender in 2002. She was born
in 1962, is five feet, five inches in height, and weighed around 140 pounds in
2016. Her seniority rank was thirty-second in 2015.
Mulhern took neither the BarSmarts nor Cicerone courses or exams, and
she did not sign the interest sheet because of the bull riding requirement and her
belief she would not satisfy the BMI requirement. She "didn't want to put
[her]self through" getting assessed for the height-to-weight requirement because
it was "embarrassing . . . for a woman." Mulhern never addressed her concerns
about the height-to-weight ratio requirement with her supervisors.
Mulhern recalled a comment Edley made about her slow work pace, which
she interpreted as a comment on her age. Beyond that, she admitted neither
Edley nor Giunta said anything to her specifically about her age. Mulhern
testified she often spoke with younger bartenders who knew nothing about the
tests required to work at the Boardwalk Saloon. She testified saloon bartenders
do not have to ride the mechanical bull.
A-2299-23 26 The motion judge concluded defendants did not take any adverse
employment action against Mulhern. She did not take the requisite courses or
steps to apply for the position and did not seek an accommodation for the bull
riding requirement.
Lebron
Lebron worked as a bartender at Bally's from 1997 until 2018. In 2015,
he ranked twenty-seventh in seniority. He is five feet, ten inches in height, was
born in 1968, and weighed 220 pounds in 2016.
Lebron did not take the BarSmarts or Cicerone courses and exams because
of computer-access issues and he "didn't have a lot of time to do it." He did not
complete any of the requirements to work at the Boardwalk Saloon and did not
bid for any shifts. Lebron testified he could not participate in bull riding and
lacked hand-eye coordination for flair training because of his age. He was active
on Instagram and could have learned to post online as a social media
ambassador. Neither Edley nor Giunta ever spoke to him in a discriminatory
way about his age.
The judge found Bally's did not take any adverse employment action
against Lebron. This was because he took no steps to apply for the Boardwalk
Saloon position.
A-2299-23 27 Giraldo
Giraldo began working at Bally's in 2013. In 2015, his seniority number
was sixty-five. He was born in 1971, weighed around 182 pounds in 2016, and
is approximately five feet, seven inches in height.
Giraldo was unsure if he finished the BarSmarts course or exam, and he
did not take the Cicerone course and exam. He did not know about the interest
sheet for the Boardwalk Saloon, so he never signed it. Giraldo testified his age
prevented him from participating in the bull riding safety training but did not
prevent him from taking the BarSmarts or Cicerone exams. Neither Edley nor
Giunta ever spoke to him in a discriminatory way about his age.
The motion judge found Giraldo did not apply to work at the Boardwalk
Saloon since he did not sign the interest sheet or take the requisite courses. As
a result, Bally's did not take any adverse employment action against him.
Berkin
Berkin became a bartender for Bally's in 2002 after it purchased the
Claridge, where he had been working since 1985. He was born in 1962, weighs
around 170 pounds, and is five feet, eleven inches in height. His seniority rank
was thirty-eighth.
A-2299-23 28 Berkin did not sign the interest sheet to work at the Boardwalk Saloon and
did not take the BarSmarts or Cicerone courses and exams because he thought
he would not qualify after comparing himself to coworkers who were denied
positions. He also did not participate in the bull riding training because of
concerns over his age and risk of injury to his back.
Berkin admitted his age would not prevent him from taking the BarSmarts
or Cicerone courses, participating in choreography training, working flair
training, wearing the Boardwalk Saloon uniform, serving food, or working as a
social media ambassador. He testified neither Edley nor Giunta said anything
inappropriate to him or acted discriminatorily towards him because of his age.
The judge concluded Bally's did not take adverse employment action
against Berkin because he failed to apply for the position since he neither signed
the interest sheet nor took the requisite courses.
I.
A motion for summary judgment must be granted "if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law." R. 4:46-2(c). The court must "consider whether the competent
A-2299-23 29 evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
"To decide whether a genuine issue of material fact exists, the trial court
must 'draw[] all legitimate inferences from the facts in favor of the non -moving
party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original)
(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "The court's
function is not 'to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm.,
Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540).
"Summary judgment should be granted, in particular, 'after adequate time
for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial.'" Friedman, 242
N.J. at 472 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). "If
there is no genuine issue of material fact, [the court] must then 'decide whether
the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.
A-2299-23 30 Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)).
A party opposing summary judgment must provide evidence "beyond
mere 'speculation' and 'fanciful arguments.'" Cortez v. Gindhart, 435 N.J. Super.
589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.com, Inc., 404 N.J.
Super. 415, 426 (App. Div. 2009)). "[C]onclusory and self-serving assertions
by one of the parties are insufficient to overcome the motion." Puder v. Buechel,
183 N.J. 428, 440-41 (2005). "If the evidence [submitted by the non-movant] is
merely colorable or is not significantly probative, summary judgment may be
granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)
(citations omitted). Thus, bare conclusions, "without factual support in tendered
affidavits, will not defeat a meritorious application for summary judgment."
Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)
(quoting U.S. Pipe & Foundry Co. v. Am. Arb. Ass'n, 67 N.J. Super. 384, 399-
400 (App. Div. 1961)).
We review the trial court's grant or denial "of a motion for summary
judgment de novo, applying the same standard used by the trial court." Samolyk
v. Berthe, 251 N.J. 73, 78 (2022). On de novo review, "[a] trial court's
interpretation of the law and the legal consequences that flow from established
A-2299-23 31 facts are not entitled to any special deference." Rowe v. Bell & Gossett Co.,
239 N.J. 531, 552 (2019) (alteration in original) (quoting Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
II.
Plaintiffs contend the requirements for the bartender entertainer positions
"instituted per se discriminatory qualifications without justification." They
maintain defendants readily violated the LAD because the qualifications caused
disparate treatment and had an unlawful disparate impact on a distinctly older
group of employees.
Plaintiffs argue defendants' loss of the critical path document used to
formulate the operation and goals of the Boardwalk Saloon "only lends to the
argument that the qualifications were manifested for an improper purpose."
They claim the document was evidence of "some discriminatory purpose."
Plaintiffs assert the bartender entertainer qualifications are facially
discriminatory and evince a discriminatory purpose. The weight-to-height
proportionality requirement was ageist because plaintiffs' expert explained BMI
weight-to-height proportions were difficult to maintain with age. This was
corroborated by plaintiffs' testimony regarding these physiological issues.
A-2299-23 32 Plaintiffs point out defendants used charts containing body fat ranges
adjusted for age, despite basing their decisions on the BMI chart, which does
not adjust for age. Therefore, defendants did not level the playing field for older
employees. Although defendants claimed they made an exception in Roman's
case, the evidence they presented was only anecdotal and no other evidence was
provided to show an exception was made for others, or that defendants codified
the exception into policy.
Plaintiffs argue the disparate discriminatory effects caused by defendants'
weight-to-height requirements are evidenced by the age disparity between the
employees who qualified to work in the saloon versus those who did not.
Defendants' other requirements, including the bull riding, choreography, and
working flair trainings, as well as the social media ambassador requirement,
were cumulatively discriminatory because they "were extremely prohibitive
based upon age."
Defendants also lacked a business necessity for imposing the requirements
to work at the saloon. This was evidenced by the fact that the weight-to-height
ratio was discontinued in 2022. One manager even noted the requirement had
no impact on bartenders' abilities.
A-2299-23 33 The exam qualification was unnecessary because younger bartenders were
permitted to work without passing the exams, whereas others were held to the
test-taking requirements and often not given enough time to complete the exams.
Plaintiffs point out there was no need for the exams because other bars in the
casino served the same drinks as the Boardwalk Saloon.
Plaintiff's further assert the bull riding requirement was unnecessary
because the evidence showed saloon bartenders did not manage or operate the
bull. Likewise, there was no business justification for the choreography because
two employees testified they never saw saloon bartenders dance. And the social
media ambassador requirement was unnecessary because no bartender was
required to post on social media and defendants never monitored the posts.
Plaintiffs also claim summary judgment was improper because defendants
made discriminatory statements to various workers. They assert Edley told an
older female employee "she must wear 'age-appropriate' shorts while at the bar,
meaning . . . [defendants] did not want to see her in shorter shorts because she
was older." Edley also commented about employees being slow for their age,
laughed at an older employee who asked about working at the saloon, and stated
he "wouldn't be one of those to work that bar."
A-2299-23 34 The LAD prohibits employers, "because of . . . age, . . . [from] refus[ing]
to hire or employ or to bar or to discharge or require to retire, unless justified
by lawful considerations other than age." N.J.S.A. 10:5-12(a). The law is
construed liberally because "the overarching goal of [the] LAD [is] to eliminate
the cancer of discrimination." Viscik v. Fowler Equip. Co., 173 N.J. 1, 13
(2002); see N.J.S.A. 10:5-3.
Discrimination claims are examined under the McDonnell Douglas 2
framework, which requires plaintiffs to establish a prima facie discrimination
claim. Viscik, 173 N.J. at 13-14. Prima facie discrimination exists when: "(1)
complainant was a member of a class protected by the [LAD]; (2) complainant
was qualified for the position or rank sought; (3) complainant was denied
promotion; and (4) others with similar or lesser qualifications achieved the rank
or position." Chou v. Rutgers, The State Univ., 283 N.J. Super. 524, 538 (App.
Div. 1995); see also Dixon v. Rutgers, The State Univ., 110 N.J. 432, 443
(1988). "The evidentiary burden at the prima facie stage is 'rather modest'" and
"is to be evaluated solely on the basis of the evidence presented by the plaintiff,
irrespective of defendants' efforts to dispute that evidence." Zive v. Stanley
2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A-2299-23 35 Roberts, Inc., 182 N.J. 436, 447-48 (2005) (italicization omitted) (quoting
Marzano v. Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)).
The LAD recognizes both disparate impact and disparate treatment
claims. Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 398 (2005).
Disparate impact claims "involve[] employment practices that are facially
neutral in their treatment of different groups but that in fact fall more harshly on
one group than another and cannot be justified by business necessity ." Peper v.
Princeton Univ. Bd. of Trs., 77 N.J. 55, 81-82 (1978) (quoting Int'l Bhd. of
Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). Proof of
discriminatory motive is not required. Ibid. Instead, a plaintiff must
demonstrate the facially neutral policy "resulted in a significantly
disproportionate or adverse impact on members of the affected class." United
Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 47
(App. Div. 2001); see Gerety, 184 N.J. at 399. A plaintiff must show an adverse
impact on more than one employee, "or even a few employees." Massarsky v.
Gen. Motors Corp., 706 F.2d 111, 121 (3d Cir. 1983); see also Schiavo v. Marina
Dist. Dev. Co., LLC, 442 N.J. Super. 346, 369-70 (App. Div. 2015).
Hiring criteria claims are examined like failure to hire or promote claims.
See Victor v. State, 203 N.J. 383, 408-09 (2010). They require some action by
A-2299-23 36 employees to qualify for a position and then the employer to take adverse
employment action against the employee. See id. at 409-12; Maiorino v.
Schering-Plough Corp., 302 N.J. Super. 323, 348-49 (1997) (holding the
employee-plaintiff satisfied the prima facie requirement to show age
discrimination because he was terminated from his position); cf. Lehmann v.
Toys 'R' Us, Inc., 132 N.J. 587, 617 (1993) ("For the remedial purpose of the
LAD to be fulfilled, the employer must take action, because generally the
employer is the party with the power and responsibility to hire, promote,
reinstate, provide back pay, and take other remedial action." (Emphasis added)).
A plaintiff must "show . . . the prohibited consideration[, age,] played a role in
the decision making process and . . . had a determinative influence on the
outcome of th[e] process." Maiorino, 302 N.J. Super. at 344 (alteration in
original) (quoting Miller v. Cigna Corp., 47 F.3d 586, 597 (3d Cir. 1995)).
Weight and height are not protected classes. See Schiavo, 442 N.J. Super.
at 380-81. Additionally, when requirements are uniformly applied
discrimination is not established. See Carroll v. Talman Fed. Sav. & Loan Ass'n
of Chi., 604 F.2d 1028, 1032-33 (7th Cir. 1979).
Here, under the first McDonnell Douglas prong, plaintiffs are clearly
members of a protected class based on their age. Likewise, plaintiffs have met
A-2299-23 37 the fourth prong, because there is evidence showing younger, less -qualified
workers were hired at the Boardwalk Saloon.
However, as the motion judge found, there is no evidence to support the
second McDonnell Douglas prong because no plaintiffs ever completed the
application process, and there is no objective evidence showing they were
qualified to work at the saloon. As a result, there was no evidence to support
the third prong as well because defendants did not have the opportunity to take
adverse employment action, which would have evinced plaintiffs' claims age
was used in the decision-making process. See Maiorino, 302 N.J. Super. at 347-
48.
Even if the second prong was met, plaintiffs must show a "significantly
disproportionate or adverse impact" on more than a few individuals. Gerety,
184 N.J. at 399; see Massarsky, 706 F.2d at 120-21. Plaintiffs clearly constitute
more than a few individuals. However, the record lacks evidence of the impact
of defendants' requirements on non-plaintiff employees, to show a prima facie
disparate impact. See Gerety, 184 N.J. at 404-06.
III.
Plaintiffs contend their disparate treatment claims should have survived
summary judgment because defendants' requirements to work at the Boardwalk
A-2299-23 38 Saloon were pretextual. Despite their health histories, plaintiffs assert there was
no evidence of performance issues or subpar bartending qualifications since the
drinks at all Bally's bars were the same. They reiterate there were bartenders
who did not pass the exams who were allowed to work at the saloon. One server
was not certified as a bartender but still worked as one. Edley also allegedly
bartended, despite not being certified. Therefore, the judge's finding plaintiffs
were not qualified to work at the saloon because they did not apply or complete
the qualification process was error because it ignored the fact the requirements
were discriminatory and prevented them from bidding to work at the saloon.
A plaintiff may establish a disparate treatment claim under the LAD when
"[t]he employer simply treats some people less favorably than others " because
of their protected class. Gerety, 184 N.J. at 398 (quoting Peper, 77 N.J. at 81).
"Proof of discriminatory motive is critical" to a disparate treatment claim.
Peper, 77 N.J. at 81 (quoting Int'l Bhd. of Teamsters, 431 U.S. at 335 n.15).
Mere evidence of being passed over for promotions or new roles is insufficient
unless "a more persuasive showing [is] made that the decision not to promote
. . . was based upon something other than a bona fide evaluation of [an
employee's] qualifications for the position." Id. at 86 (italicization omitted).
A-2299-23 39 In Peper, an employee claimed discrimination based on not being
promoted when other employees, who were employed by the defendant for
shorter amounts of time, were promoted. 77 N.J. at 62-63. However, the
employee resigned before the position she wanted was available. Id. at 64. The
Court noted because the employee prematurely resigned, "she was not in a
position to be considered for that job." Id. at 87. Therefore, the employee did
not meet the burden of showing disparate treatment. Ibid.
Plaintiffs' disparate treatment claims were properly dismissed because the
record lacks evidence of a discriminatory motive regarding the hiring decisions
at the Boardwalk Saloon, as plaintiffs were not qualified to work at the bar and
never applied for the position. Put differently, defendants did not have the
opportunity to discriminate by rejecting plaintiffs based on their age. See Raspa
v. Off. of Sheriff of Gloucester, 191 N.J. 323, 327 (2007) (holding an employee
must have bona fide qualifications for the role sought to trigger an employer's
obligations under a reasonable accommodation claim). Like Peper, plaintiffs
here, having never applied, were not "in a position to be considered for [the]
job." 77 N.J. at 87.
A-2299-23 40 IV.
Finally, plaintiffs argue it was error to dismiss their aiding and abetting
claims because Bally's engaged in discrimination, and Edley and Giunta, as
managers, knowingly and substantially assisted Bally's in its unlawful conduct.
We are unconvinced.
N.J.S.A. 10:5-12(e) prohibits "any person, whether an employer or an
employee or not, to aid, abet, incite, compel[,] or coerce the doing of any of the
acts forbidden under this act, or to attempt to do so." Aiding and abetting
liability requires a plaintiff to show "active and purposeful conduct." Tarr v.
Ciasulli, 181 N.J. 70, 83 (2004). Specifically: "(1) the party whom the
defendant aids must perform a wrongful act that causes an injury; (2) the
defendant must be generally aware of [their] role as part of an overall illegal or
tortious activity at the time that [they] provide[] the assistance; [and] (3) the
defendant must knowingly and substantially assist the principal violation ." Id.
at 84 (fourth alteration in original) (quoting Hurley v. Atl. City Police Dep't,
174 F.3d 95, 127 (3d Cir. 1999)).
In Cowher v. Carson & Roberts, the plaintiff was a truck driver employed
by the defendant and, while not Jewish himself, was offended by antisemitic
slurs made by two supervisors in the office. 425 N.J. Super. 285, 291 -92 (App.
A-2299-23 41 Div. 2012). The plaintiff filed a claim of religious discrimination against the
defendant and his supervisors for aiding and abetting the other supervisor
because the supervisors did not "restrain" each other. Id. at 291-92, 304. We
concluded there was sufficient evidence for a jury to find aiding and abetting
under N.J.S.A. 10:5-12(e), because the supervisors should have known their
actions violated company policy and, viewing the facts in the light most
favorable to the plaintiff, there was evidence the supervisors' conduct "fed off
each other." Id. at 304.
In Tarr, the plaintiff sued her employer and the owner of the company for
sexual harassment and discrimination. 181 N.J. at 73-74. The Supreme Court
found insufficient evidence the owner was individually liable because he did not
encourage the discriminatory behavior, was not present when the wrongful acts
occurred, and at most, was negligent in monitoring his employees. Id. at 84-85.
The motion judge here carefully considered the facts as they related to the
aiding and abetting claims alleged by each plaintiff. As we recounted with each
plaintiff, there was no evidence of aiding or abetting by Edley and Giunta.
Indeed, no evidence exists that Edley or Giunta made remarks or took actions
remotely colorable as active and purposeful conduct to assist Bally's in
A-2299-23 42 committing age discrimination, or that they "fed off each other" by engaging in
discriminatory conduct on behalf of Bally's.
Affirmed.
A-2299-23 43