KING v. MARINA DIST. DEV. CO. LLC

Filing 27

OPINION. Signed by Judge Joseph H. Rodriguez on 11/8/2018. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GEORGE KING,

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Plaintiff,
v.
MARINA DIST. DEV. CO., LLC d/b/a
BORGATA HOTEL AND CASINO & SPA,
Defendant.

Hon. Joseph H. Rodriguez
Civil Action No. 15-8707
OPINION

This matter comes before the court on Motion of Defendants Marina Dist. Dev.
Co., LLC d/b/a Borgata Hotel and Casino & Spa (“Borgata”) for summary judgment
pursuant to Fed. R. Civ. P. 56. The Court has considered the written submissions of the
parties as well as the arguments advanced at the hearing on October 17, 2017. For the
reasons stated on the record that day, as well as those that follow, Defendants’ motion is
granted.
I.

Background

Plaintiff George King was a well-liked employee of the Borgata who was hired in
June, 2008 as a Mail Room Runner. See King Dep., Farrell Cert., Ex., A. pp. 12:22-13.2.
Despite applying for nineteen positions at the Borgata during his employment, King
remained in the mail room until his termination in June, 2013. Id. at pp. 42:5-13,
144:13-14.5. King was terminated pursuant to the Borgata’s attendance policy. Id.
King brings this action on the theory that the Borgata’s failure to hire him was
racially motivated. During his time at the Borgata, King completed an online course of
study to improve his chances for advancement. Id. at pp. 54:20-55:7. King applied for
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nineteen different positions and, in each instance, he alleges that Borgata’s failure to
hire him was racially motivated. During oral argument, the Court noted that the record
lacked evidence to support King’s claims as to each instance. Plaintiff’s counsel agreed
that King is unable to sustain his claims of racial discrimination for the majority of the
positions and conceded that King is only pursuing this action as to the following
positions for which he was not hired: (1) Part-Time Club Host Mixx Nightclub, (2) Box
Office Supervisor, (3) Direct Marketing Coordinator, (4) Customer Assurance
Coordinator, and (5) Advertising/Branding Manager.
The Borgata claims that King lacked the requisite qualifications for each position and
that King cannot establish an inference of discrimination because he is unable to
identify the qualifications of and the identity of the persons ultimately hired for these
positions. Even if King establishes a prima facie case of discrimination, there is no
genuine issue of material fact related to whether the Borgata’s decision was motivated
by racial animus because the Borgata has articulated legitimate, nondiscriminatory
reasons for each decision. King fails to identify evidence in the record to challenge the
Borgata’s reasons.
II.

Summary Judgment Standard

“Summary judgment is proper if there is no genuine issue of material fact and if,
viewing the facts in the light most favorable to the non-moving party, the moving party
is entitled to judgment as a matter of law.” Pearson v. Component Tech. Corp., 247 F.3d
471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986));
accord Fed. R. Civ. P. 56 (a). Thus, the Court will enter summary judgment in favor of a
movant who shows that it is entitled to judgment as a matter of law, and supports the
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showing that there is no genuine dispute as to any material fact by “citing to particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56 (c)(1)(A).
An issue is “genuine” if supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id. In determining whether a
genuine issue of material fact exists, the court must view the facts and all reasonable
inferences drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has met this burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum
v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a
properly supported motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those offered by the moving party.
Andersen, 477 U.S. at 256-57. “A nonmoving party may not ‘rest upon mere allegations,
general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l
Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v.
Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed,

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the plain language of Rule 56(c) mandates the entry of summary judgment,
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.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot
be genuinely disputed by showing that “an adverse party cannot produce admissible
evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed.
R. Civ. P. 56(c)(2).
III.

Analysis

Plaintiff’s Title VII claim is governed by the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973). To prevail on a Title VII racial discrimination claim in a failure to hire
posture, a plaintiff must demonstrate prima facie that that (1) that he falls within a
protected class; (2) that he was qualified for the work for which he applied; (3) that he
was not hired; and (4) that the employer continued to seek others with the same
qualifications or hired someone with the same or lesser qualifications who was not in
the protected status. Andersen v. Exxon Co., 89 N.J. 483, 492, 446 A.2d 486 (1982).
If the plaintiff makes out a prima facie case, the burden of production shifts to the
defendant to establish a legitimate, nondiscriminatory reason for the adverse
employment action. See Burton v. Teleflex, 707 F.3d 417, 426 (3d Cir. 2013). If the
defendant establishes a legitimate, nondiscriminatory reason for its actions, the burden
of production shifts back to the plaintiff to show that the defendant's proffered reason

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was a pretext for actual discrimination. Id. The plaintiff must show that the defendant's
proffered reason is a pretext for discrimination.
For the reasons that follow, the Court finds that Plaintiff cannot establish a prima
facie case of discrimination. Even assuming Plaintiff can carry his burden on the prima
facie case, there are no genuine issues of material fact related to whether Defendant's
proffered reasons for its hiring decisions are a pretext for discrimination. Summary
judgment will be entered in favor of Defendant Borgata.
A. Prima Facie Case
Plaintiff cannot sustain his burden of establishing a prima facie of racial
discrimination because he cannot demonstrate that he was either qualified for the
positions he applied for, that the employer continued to seek others with the same
qualifications, or hired someone with the same or lesser qualifications who was not in
the protected status.
Here, the parties agree that Plaintiff can satisfy the first and third elements of the
prima facie case. The Court will address each position separately.
1. Part-Time Club Host for Mixx Nightclub
Plaintiff cannot demonstrate that he was qualified for the position of Club Host for
the Mixx Nightclub because the position was seasonal and no full-time team members
were considered and because he did not possess the requisite experience. See Ex. “D” at
No. 7-19. In his deposition, King admits that he does not have any facts to suggest that
other full-time employees were considered for this position. See King Dep., Farrell Cert,
Ex. A., p. 124:12-21; see also Plaintiff’s response to paragraph 118 of Borgata’s Statement
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of Undisputed Material Facts. [Doc. No. 1]. In addition, the job description for the Club
Host for Mixx, required applicants to “have a minimum of six months experience as a
host/hostess in a high volume and/or fine dining environment.” See Job Descriptions,
Farrell Cert., Exs. EE & H. Plaintiff admits he lacked the requisite “experience as a
host/hostess in a high volume and or fine dining restaurant.” Id.; see also, King Dep.,
Farrell Cert., Ex. A., pp. 76:6-17; 77:14-78:13; see also Plaintiff’s response to paragraph
22 of Borgata’s Statement of Undisputed Material Facts. [Doc. No. 22].
The Borgata offered Kelly Willet the position, but she declined. Ms. Willet was not
a full-time team member at Borgata and she boasted prior service experience in a fastpaced environment. See Willett Application, Farrell Cert., Ex. FF. The Borgata
ultimately hired Alissa Marinello for the position. Like Ms. Willet, Ms. Marinello had
never worked at the Borgata before, and therefore was not a full-time Borgata team
member during the application process, and had relevant prior experience. See
Marinello Application, Farrell Cert., Ex. GG.
Given King’s admission that he did not have relevant food service experience and
the fact that the Borgata hired someone who met the qualifications specified in the job
description, King fails to set forth a prima facie case of discrimination because there is
no evidence that he was qualified for the position and because the person ultimately
hired by the Borgata had the relevant experience for the position. Summary judgment is
granted as to this claim.
2. Box Office Supervisor
Plaintiff cannot demonstrate that he was qualified for the position of Box Office
Supervisor. The job description for the Box Office Supervisor requires “[s]trong
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leadership, supervisory and communication skills.” The job posting provides that “Box
Office experience or equivalent hotel/casino experience” is preferred. See Job
Description, Farrell Cert., Ex. N. Plaintiff has not pointed to any evidence in the record
to show that he possessed the requisite qualifications for this position. In addition,
Plaintiff admits that he did not have any box office experience or employee management
experience. See King Dep., Farrell Cert., Ex. A., 76:6-17; 77:14-78:13; 82:11-20; see also
Plaintiff’s responses to paragraphs 37 and 47 of Borgata’s Statement of Undisputed
Material Facts. [Doc. No. 22].
The Borgata hired Kelly Paolino for the position. Ms. Paolino’s qualifications
include multiple years of experience as a supervisor and in ticketing for casino-related
entertainment. See Paolino Application, Farrell Cert., Ex. O. In contrast to King, the
hired person had current and relevant experience. Id. As a result, King fails to set forth
a prima facie case of discrimination because there is no evidence that he was qualified
for the position and because the person ultimately hired by the Borgata had the relevant
experience for the position. Summary judgment is granted as to this claim.
3. Direct Marketing Coordinator
Plaintiff cannot demonstrate that he was qualified for the position of Direct
Marketing Coordinator. The job description for the Direct Marketing Coordinator
position preferred “recent and relevant casino experience.” See job description for the
Direct Marketing Coordinator position attached to Farrell Cert. as Exhibit “P.”
Contrary to King’s claim that he had the necessary experience, his application for this
position did not reflect the experience Borgata was seeking. See response to paragraph
60 of Borgata’s Statement of Undisputed Material Facts. [Doc. No. 22]. He offers no
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facts in support of his claim that he had relevant, or any, marketing experience, but
states that because Borgata already had a few African Americans in those higher
positions, they were not going to give him the opportunity. See King Dep., Farrell Cert.,
Ex. A, p. 91:19-92:10. King admits that his application did not reflect the experience
Borgata was seeking for this position. Id.; see also response to paragraph 60 of Borgata’s
Statement of Undisputed Material Facts. [Doc. No. 22].
The Borgata hired Kristen Fulmer for this position. Ms. Fulmer had the
necessary experience and was already a member of the marketing department prior to
being hired as the Direct Marketing Coordinator. See Fulmer Application, Farrell Cert.,
Ex. Q. As a result, King fails to set forth a prima facie case of discrimination because
there is no evidence that he was qualified for the position and because the person
ultimately hired by the Borgata had the relevant experience for the position. Summary
judgment is granted as to this claim.
4. Customer Assurance Coordinator
Plaintiff cannot demonstrate that discrimination played any part in the Borgata’s
decision not to hire him for the Customer Assurance Coordinator position. King initially
applied for this position in October, 2012. Ex. A., p. 98:7-10. He was interviewed and
considered for the position. See King Dep., Farrell Cert., Ex. A. pp. 107:21-109:10; see
also Def. Ans. To Interrog., Farrell Cert., Ex. D, Nos. 7-11 and 7-14. The Borgata claims
that it did not immediately fill the position due to business needs. However, the
position was reposted in or about March or April of 2013. Id. Plaintiff reapplied for the
Customer Assurance Coordinator position, but was not re-interviewed. See King Dep.,
Farrell Cert., Ex. A., p. 107:12-20. Plaintiff remained under consideration for the
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position, but the Borgata hired Christina Thomas. Ms. Thomas had experience in the
Customer Care group as a VIP Specialist and had prior experience as a Concierge
Manager, dealing directly with customer service for guests. See Thomas Application,
Farrell Cert., Ex. W. The Borgata claims Thomas’ relevant experience gave her an edge
over King.
As a result, King fails to set forth a prima facie case of discrimination because
there is no dispute that the Borgata hired a person with superior qualifications.
Summary judgment is granted as to this claim.
5. Advertising/Branding Manager
Plaintiff cannot demonstrate that he possessed the necessary qualifications
and/or that discrimination played any part in the Borgata’s decision not to hire him for
the Advertising/Branding Manager position. The job description for the
Advertising/Branding Manager position lists a minimum of “five years recent and
relevant experience in managing advertising and marketing; or equivalent combination
of education and experience” and “prior management/supervisory experience of 2 years
or more.” See Job Description, Farrell Cert., Ex. Z. King agrees that he lacks these
qualifications and had no experience in marketing, advertising or branding for casinos
or the gaming industry. See King Dep., Farrell Cert., Ex. A., pp. 76:6-17; 77:14-78:13;
103:13-14; see also King Resume, Farrell Cert., Ex. C. King fails to point to any evidence
in the record tending to show that he was qualified for this position.
Brittany Raffill was selected for the position. The selection was actually a
promotion from her current position in that same department as the Brand Marketing
Coordinator at Borgata - a position she had held for nearly two and a half years before
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she was promoted. See Def. Ans. To Interrog., Farrell Cert., Ex. D., No. 7-13; Raffill
Application, Farrell Cert., Ex. AA. Ms. Raffill also had several years of prior casino
advertising and marketing experience before she joined the Borgata. Id. As a result,
King fails to set forth a prima facie case of discrimination because there is no evidence
that he was qualified for the position and because the person ultimately hired by the
Borgata had the relevant experience for the position. Summary judgment is granted as
to this claim.
For all of the reasons stated above, Plaintiff cannot satisfy the prima facie case of
discrimination because there are no genuine issues of material fact related to whether
Plaintiff was qualified for the position and/or whether the employer continued to seek
others with the same qualifications, or hired someone with the same or lesser
qualifications who was not in the protected status. Even if Plaintiff could successfully
make out a prima facie case, the burden of production shifts to Borgata establish a
legitimate, nondiscriminatory reason for the adverse employment action. See Burton v.
Teleflex, 707 F.3d 417, 426 (3d Cir. 2013).
B. Burden Shifting
To satisfy the relatively light burden of production in a Title VII case, the Borgata
must articulate a legitimate, nondiscriminatory reason for each decision to not hire King
for each position. Here, the Borgata offers sufficient evidence of non-discriminatory
reasons for each hiring decision to meet this burden. In each instance the Borgata
claims that an individual with qualifications superior to King was hired. As a result, the
burden of production rebounds to King, who must now show by a preponderance of the
evidence that the Borgata’s explanations for its hiring decisions are merely a pretext for
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discimination. Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 319 (3d Cir.
2000) (citing Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 120 S.Ct.
2097, 147 L.Ed.2d 105 (2000)). King fails to meet his burden.
Of the five positions, the only position that Plaintiff was arguably qualified for is the
Customer Assurance Coordinator position. To the extent that the Borgata’s
unchallenged decision to delay fulfillment of this post for business reasons is sufficient
to suggest that the Borgata manipulated the hiring process to frustrate Plaintiff’s
advancement, King fails to offer any evidence that the Borgata’s business decision is a
pretext for racial discrimination. King attempts to rely on the bulk of the nineteen
decisions to not hire him as evidence of racial discrimination, but fails to attach any
documents or evidence to support his claim that he was equally qualified for certain
positions and admits that for most, he was not qualified. King’s argument asks the Court
to consider applications for positions he withdrew from, was not qualified for, and
which his counsel agrees lack evidentiary support on his claims of racial discrimination.
For these reasons, the bulk of the Borgata’s decisions to forgo hiring King do not weigh
in favor of King’s unsupported assertion that the Borgata’s decisions were racially
motivated.
Moreover, there is no evidence to challenge the Borgata’s decision to delay hiring for
the Customer Assurance position as being related to anything other than business
considerations. Finally, the person ultimately hired had superior qualifications. King’s
reliance “upon mere allegations, general denials or . . . vague statements . . . .” are
insufficient on summary judgment. Trap Rock Indus., Inc., 982 F.2d at 890 (internal
quotation and citation omitted). As a result, King fails to demonstrate any weaknesses,
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implausibilities, inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them “unworthy of credence” and hence infer “that the employer did not act for [the
asserted] nondiscriminatory reasons.” Bray, 110 F.3d at 990 (citing Fuentes, 32 F.3d at
765) (emphasis in original).
For these reasons, even if King could establish a prima facie case of discrimination,
there are no facts in the record to challenge the legitimate non-discriminatory reasons
proffered by Borgata for its hiring decisions.
IV.

Conclusion

For the reasons set forth above, summary judgment is granted. An appropriate
Order shall issue.

Dated: November 8, 2017

s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

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