Schurr v. Resorts Int'l Hotel Inc., 98-5356

Page 486

196 F.3d 486 (3rd Cir. 1999)

KARL C. SCHURR, APPELLANT,

V.

RESORTS INTERNATIONAL HOTEL, INC; NEW JERSEY STATE CASINO CONTROL COMMISSION; JAMES HURLEY^*, CHAIRMAN OF THE NEW JERSEY STATE CASINO CONTROL COMMISSION

No. 98-5356

U.S. Court of Appeals, Third Circuit

Argued March 11, 1999

Filed November 12, 1999

Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 96-cv-03159) District Judge: Honorable Stephen M. Orlofsky

[Copyrighted Material Omitted]

Stephen G. Console, Esquire Joseph J. Ayella, Esquire (Argued) Law Offices of Stephen G. Console 126 White Horse Pike Suite 201 Haddon Heights, NJ 08035 Counsel For Appellant

John M. Donnelly, Esquire (Argued) Levine, Staller, Sklar, Chan, Brodsky & Donnelly 3030 Atlantic Avenue Atlantic City, NJ 08401 Counsel For Appellee Resorts International Hotel Casino

John R. Zimmerman, Esquire (Argued) Casino Control Commission Tennessee Avenue and the Boardwalk Arcade Building, 2nd Floor Atlantic City, NJ 08401-0208 Counsel For Appellees Bradford Smith, Chairman of the New Jersey State Casino Control Commission and James R. Hurley, Chairman of the New Jersey Casino Control Commission

Before: Mansmann, Scirica and Nygaard, Circuit Judges.

OPINION OF THE COURT

Mansmann, Circuit Judges.

Karl C. Schurr, a light and sound technician in the casino industry in New Jersey, appeals from an order of the District Court granting summary judgment in favor of Resorts International Hotel, Inc., and Bradford Smith, Chairman of the New Jersey Casino Control Commission, in connection with Schurr's claims of reverse discrimination in hiring.¹ In his complaint, Schurr alleged that race was the determining factor in Resorts' decision not to offer him a job which was ultimately filled by an equally well qualified minority candidate. Schurr sought declaratory and injunctive relief against Smith, contending that his Fourteenth Amendment rights were violated by the Commission's regulations establishing minority employment goals. Schurr also alleged that Resorts' affirmative action plan as drafted and applied was invalid, resulting in violation of his rights under Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, the New Jersey Law Against Discrimination, N.J.S. 10:5-1 et seq., and the Fourteenth Amendment to the United States Constitution. Because we are convinced that the District Court erred in granting summary judgment in favor of the defendants on Schurr's Title VII and other statutory claims, we will reverse that portion of the District Court's Order and remand the matter for further proceedings. As to Schurr's Fourteenth Amendment claim against the Commission Chairman, we will affirm the grant of summary judgment in favor of the Chairman on standing grounds, although for reasons different from those set forth by the District Court.

I.

Because this matter, both legally and factually, arises against the regulatory background established by the Casino Control Commission pursuant to the Casino Control Act, N.J.S. 5-12:134, we examine this background first. The Casino Control Act requires that every casino license holder undertake affirmative measures to ensure equal employment opportunities. Relevant regulations require that casino licensees take affirmative steps "to ensure that women, minorities and persons with disabilities are recruited and employed at all levels of the operation's work force and treated during employment without regard to their gender, minority status, or disability." N.J.A.C. 19:53- 4.3(a). Equal opportunity efforts are to be undertaken in all employment practices including promotion, demotion, layoffs and termination. Id. Casino licensees are required to improve the representation of "[w]omen and minorities in job titles within EEOC job categories in which the casino licensee is below the applicable employment goals established by N.J.A.C. 19-53-4.4." See N.J.A.C. 19:53- 4.3(b)(2). The regulations establish the following goals:

   Minority Goal      Goal Female  
Goal EEOC Job Category             (Percentage)       (Percentage)  
Officers and Managers                   25                 46
Professionals                           25                 46
Technicians                             25                 46
Sales workers                           25                 46 
Office and Clerical                     25                 46 
Crafts persons                          14                  5 
Operatives                              25                 30 
Laborers                                25                 14 
Service Workers                         25                 46 

N.J.A.C. 19:53-4.4.

In setting these goals, the Commission reviewed 1990 census data for Atlantic City, New Jersey and for the Commission's casino industry work force composition analysis. See 25 N.J.R. 3690 (August 15, 1993). The goals for each category were "based on the actual number of employees in the comparative work force who were actually available to fill such positions," and were set so as not to exceed the cumulative Atlantic County work force statistics in the given category. Id. In addition, "if the Atlantic County availability statistic falls significantly (more than ten percent) below the cumulative Atlantic County work force statistic for that class, the employment goal for that particular EEOC category and class will be the Atlantic County availability statistic." Id.

In order to meet these goals and as a prerequisite to licensing, each casino licensee is required to develop an Equal Employment and Business Opportunity Plan ("EEBOP"). N.J.A.C. 19:53-6.1. The EEBOP must set forth a detailed description of "the means by which the[casino] intends to comply with the equal opportunity and regulatory obligations imposed by N.J.A.C. 19:53-4.4." N.J.A.C. 19:53-6.4. While the regulations do not specify the means which must be used to meet employment goals, the terms of the EEBOP are subject to the approval of the Commission.

By statute, the Commission is also charged with monitoring the composition of the workforce at each licensed casino. Each licensee is required to file quarterly and annual reports with the Commission and the Division of Gaming Enforcement on its "affirmative action efforts . . . concerning [its] operations work force." N.J.A.C. 19:53-4.5, 4.6. The quarterly report must include a listing of the operations workforce by race and gender in each EEOC job category and subclass. Id. Each casino is also required to supply a summary of new hires, promotions, terminations, and layoffs, a copy of all grievance reports relating to equal employment opportunity, and a report on the implementation of upward mobility training programs and the status of participants. Id. If in a given quarter the "casino licensee is below the applicable . . . goal established by the N.J.A.C. 19:53-4.4 for a job category in which a position with a salary of $35,000 or more is filled by someone other than a woman or minority, the casino licensee [must] document its efforts to hire or promote a woman or minority to the position." N.J.A. 19:53-4.5(c)(2). Similarly, "each casino licensee whose annual workforce composition report does not demonstrate that the casino licensee or applicant achieved the applicable employment goals . . . shall be required to document its efforts to implement and comply with the operations workforce section of its EEBOP. . . ." N.J.A.C. 19:53-4.6.

Casino licensees are also subject to periodic EEBOP assessment hearings at which the licensee is required to demonstrate its compliance with its equal opportunity and affirmative action obligations. If the Commission finds that the licensee has failed to meet performance goals, the licensee must document its good faith efforts to achieve these goals, showing that it has implemented and complied with those portions of its approved EEBOP which relate to achievement of performance goals. N.J.A.C. 19-53-6.8. Should the Commission determine that a casino licensee has failed to comply with the requirements of the Act, it may impose sanctions. Id. These penalties include, among others, denial, suspension, revocation of, or refusal to renew the casino license, the imposition of license conditions, referral of a matter for legal action, assessment of civil penalties, and "other action authorized or permitted by the Act." N.J.A.C. 19:53-6.11.

II.

With the legislative and regulatory background established, we turn to the facts. In July 1994 Karl Schurr, a white male resident of New Jersey, sought a position as a light and sound technician at Resorts in Atlantic City, New Jersey. Schurr had worked at Resorts in a number of full-time jobs from 1974 until 1986 when he resigned in order to enter the restaurant business. After June 1986 Schurr continued to work for Resorts on occasion as a "casual" worker² on an "as needed" basis.

In late 1993 a full-time light and sound technician at Resorts was suspended. While arbitration proceedings relevant to this suspension were pending, Schurr, still working as a casual employee, filled in for the suspended employee on a regular basis. In early July 1994, the labor arbitration was concluded and the full-time technician's job became available. Five people, including Schurr, applied for the job.³ Bill Stevenson, Resorts' Director of Show Operations and Stage Manager, narrowed those under consideration to Schurr and Ronald Boykin, a black male who was also employed as a casual worker at Resorts. Both Stevenson and his direct superior, Robert Chambers, believed that each of the applicants was qualified for the open position. Stevenson viewed the two as equally qualified. Acting pursuant to what he believed was required by the Resorts EEBOP, Stevenson hired Boykin. Stevenson stated that under the EEBOP, the "technician" classification was underutilized as of October, 1993, i.e., the percentage of minorities in the...