Morro v. DGMB Casino LLC, Civil No. 13–cv–5530 (JBS/JS).

• Decision Date: 30 June 2015
• Docket Number: Civil No. 13–cv–5530 (JBS/JS).
• Citation: 112 F.Supp.3d 260
• Parties: Blanche MORRO, Plaintiff, v. DGMB CASINO LLC d/b/a Resorts Casino Hotel, ABC John and/or Jane Does, XYZ Corporation(s)/Legal Entities, Defendant.
• Court: U.S. District Court — District of New Jersey

112 F.Supp.3d 260

Blanche MORRO, Plaintiff,

v.DGMB CASINO LLC d/b/a Resorts Casino Hotel, ABC John and/or Jane Does, XYZ Corporation(s)/Legal Entities, Defendant.

Civil No. 13–cv–5530 (JBS/JS).

United States District Court, D. New Jersey.

Signed June 30, 2015.

Michelle J. Douglass, Esq., My Rights Lawyers Employment Law Group, LLC, Somers Point, NJ, for Plaintiff.

Russell L. Lichtenstein, Esq., Stephanie Farrell, Esq., Cooper, Levenson, PA, Atlantic City, NJ, for Defendant DGMB Casino, LLC.

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

Plaintiff Blanche Morro was hired by Defendant Resorts Casino Hotel in December 2010 as a "singing bartender" in the 25 Hours Bar inside Resorts Casino. Her job was to sing while simultaneously taking drink orders from patrons, mixing drinks, and making change. In 2012, Resorts Casino came under new management and underwent a strategic rebranding, which also included an overhaul of the casino's entertainment offerings. On June 1, 2013, while these changes to the casino's image were being implemented, Defendant eliminated the position of "singing bartender" and demoted Plaintiff to a regular bartender. Plaintiff was ultimately fired as a regular bartender on September 2, 2014.

In the two months before her position was terminated, Morro had filed a union grievance contesting her pay rate and had registered a complaint about the unsafe working conditions at the casino. She was also out on medical leave when her position was eliminated. After her position was eliminated, she filed a claim for worker's compensation. Plaintiff asserts that her termination was related to these actions.

Specifically, Plaintiff alleges that she was terminated for taking protected leave, in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. 2601 et seq. She also alleges that she was terminated in retaliation for filing a complaint with the Occupational Safety and Health Administration ("OSHA") about her workplace, for filing a union grievance, and for filing a worker's compensation claim, in violation of the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19–1 et seq. She argues that the elimination of her position violated her employment contract with Defendant, which was part of the collective bargaining agreement between Defendant and Plaintiff's union.

Defendant argues that the elimination of the "singing bartender" position was a strategic decision and was part of Defendant's plans to update the look and feel of the bar in which Plaintiff worked.

Presently before this Court is Plaintiff's motion to exclude as evidence a letter by OSHA dismissing Plaintiff's claim of retaliation. Defendant has filed a motion for summary judgment on all claims, which Plaintiff opposes. Plaintiff also seeks partial summary judgment and asks this Court to find that Defendant is not entitled as a matter of law to assert a "legitimate business reason" for Plaintiff's termination because her termination violated the contractual agreement between Defendant and Plaintiff's union. For the reasons below, the Court will grant Plaintiff's motion to exclude the OSHA letter and deny Plaintiff's motion for partial summary judgment. Defendant's motion for summary judgment will be granted.

II. BACKGROUND

A. Summary Judgment Record

1. Plaintiff's Union Grievance

Morro was a member of the collective bargaining unit at Resorts Casino, the Food and Beverage Workers Union, UNITE–HERE, Local 54. Her bartender position was the only one designated as a position which required singing skills (the "singing bid"). Under the Memorandum of Agreement ("MOU") executed between the Union and Defendant, Plaintiff was paid $21.63 per hour. (Morro Cert. ¶¶ 9–12.)

In December 2012, the union entered into a new collective bargaining agreement ("CBA") with Defendant. The CBA was effective from December 21, 2012 to September 14, 2014. A Memorandum of Agreement ("MOA") was also executed regarding the "singing bartender" position, which was incorporated as Side Agreement 12, an Attachment to the CBA. (CBA, Attachment 12, Ex. 7 to Morro Cert. [Docket Item 34–7].) Attachment 12 states,

The Employer shall be permitted to designate a total of one (1) Bartender bid that shall be considered a bid that requires singing skills ("singing bid.").... The Bartender who currently occupies the singing bid, ‘Blanche Travis–Morro’ shall remain in such bid and can not be bumped. This agreement shall expire upon Blanche's separation from the company.

(Id. )

Article 3 of the CBA provides that Defendant "reserves the right ... to recruit, hire, reclassify, retain, schedule, assign, promote, transfer, layoff/recall, discipline, discharge, or rehire according to the requirements of business ...." (CBA, Art. 3.) Article 22, Section 22.1 of the CBA states, "This contract shall supersede any other contract in effect between the Employer and the Union and any prior or pre-existing contract ...." (Id. Art. 22.) Attachment 7 to the CBA states that Attachments to the CBA "will not be superseded by Article 22, Section 22.1 ...." (Id. Attachment 7.)

The MOU that was negotiated in December 2012 originally stated that Morro would be paid $22.61 per hour, which was 98 cents higher than Plaintiff's hourly wage at the time. When a union representative showed Plaintiff the negotiated MOU, Plaintiff noticed that there was a difference in pay compared to what she was actually making. She was informed by a union representative that the increased wage was ratified by Defendant.

On or around March 2013, Plaintiff noticed that she was not being paid her increased hourly rate and brought the issue up with the Vice President of Human Resources, Greg Wackenheim. In April, Wackenheim wrote an email to a union representative, "If we owe Blanche wages we would pay them. We don't need a grievance. Just let me know the dates and hours we did not pay, I will research it and we will make her whole if we made a mistake." (April 5, 2013 Email, Ex. L to Farrell Cert. [Docket Item 31–18].) In an email exchange dated March 4, 2013, Wackenheim wrote to union's Financial Secretary Treasurer, Donna DeCaprio, that it "seem[ed] to me that we made an error. I do not remember talking about a raise for Blanche. What do you recollect?" (Mar 4, 2013 Emails, Ex. F to Farrell Cert. [Docket Item 31–12].) DeCaprio wrote back, "No, we did not talk about giving Blanch[sic] a raise. If you reference the side agreement, we indicated her wage rate [at] $22.51." (Id. ) Wackenheim responded, "She makes 21.6346. What must have happened is that the 22.61 was used and I didn't check to see if that was the rate." He then wrote, "Since this was a mutual mistake, I propose we amend the side agreement and move forward with Blanche at her current rate." DeCaprio agreed. (Id. )

Wackenheim told Plaintiff that Defendant had made an honest mistake in the MOU and that it had not intended to raise her hourly pay. (Morro Cert. ¶ 86, 92.) Plaintiff was also informed that DeCaprio believed that the pay increase had been a typographical error. (Morro Cert. ¶ 89; SMF ¶ 40.)

Plaintiff's pay rate in the MOU was amended. The $22.61 was crossed out by hand and replaced with $21.63, with DeCaprio's initials (Morro Cert. ¶ 93; MOU, Ex. 3 to Morro Cert. [Docket Itern 34–7].)

Plaintiff prepared a Step 1(a) grievance form to dispute her pay rate, but union representatives told her that the grievance would not be decided in her favor if she chose to go forward. (Morro Cert. 95, 98.) During a pre-grievance meeting with a union representative, Patty Burke, Burke told Plaintiff that the union and Defendant were in agreement that Plaintiff would not be entitled to the increase in pay to $22.61 because that amount was a typo. (Morro Dep. [Docket Item 34–9] 78:15–21.)

Plaintiff nevertheless filed a formal grievance on April 5, 2013 (Morro Cert. ¶ 100; Grievance Notice, Ex. J to Farrell Dep. [Docket Item 31–16].) The grievance was put on hold when Plaintiff went out on medical leave on April 26, 2013.

2. The rebranding of Resorts Casino

In a certification from Mary Tindall, the Vice President of Marketing at Resorts Casino responsible for overseeing and approving entertainment at the casino, Tindall asserts that the elimination of Plaintiff's "singing bartender" position was part of the strategic rebranding of Resorts Casino. (Tindall Cert. [Docket Item 31–5] ¶¶ 3–4; Counterstatement of Material Facts ("CMF") ¶ 26.) Tindall states that Defendant was in discussions regarding changes to the branding of the property and its entertainment offerings since October 2012. (Id. ¶ 8.) She noted that in or about July 2013, the 25 Hours Bar was given an "aesthetic overhaul" and changed its name to Bar One. The entertainment in Bar One "transitioned to disc jockeys and small live acts, ... as opposed to the 4–5 piece bands that previously performed in the 25 Hours Bar." As part of those changes, disc jockeys were added to the entertainment in March 2013, Plaintiff's "singing bartender" position was eliminated in June 2013, and live band entertainment was eliminated from the bar in August 2013. (Id. at ¶ 6.)¹

Plaintiff was aware of discussions to rebrand the casino and restyle the 25 Hours Bar as Bar One, but asserts that her "singing bartender" position was being incorporated into the casino's new entertainment offerings. She notes that even under new management, Defendant continued to promote Plaintiff through advertisements through the end of 2012 and into March of 2013. (Morro Cert. 40, 74; see Feb. 21, 2013 advertisement, Ex. 8 to Morro Cert. [Docket Item 34–7]; Mar. 1, 2013 advertisement, Ex. 11 to Morro Cert. [Docket Item 34–7].) Sometime around March 2013, Morro had several meetings with Mary Tindall on updating the drink menu and the look and feel of the 25 Hours Bar, and was trained in mixing new cocktails. (Morro Cert. [Docket Item 34–6] ¶ 76.) Plaintiff also incorporated updated genres of music into her performance in order to blend with the new vibe of the bar. (...