Appellate clears path to trial for ‘Borgata Babes’ case — again

The so-called Borgata Babes case can go to trial, an appellate court ruled for a second time Monday.
The decision puts back into play a case that began in 2008, when 22 women alleged that the Borgata Casino Hotel & Spa dress code and weight requirements created a hostile work environment.
“This has been a long time coming,” said Robert Herman, the attorney for the five women who remain in the case after 11 years, four settlements, two withdrawals and two appeals.
Jacqueline Schiavo, Noelia Lopez, Cindy Nelson, Tara Kennelly and Tania Nouel “are entitled to their day in court,” the appellate judges wrote in their latest decision.
But, they note, it’s a decision they made six years ago, when they reversed Judge Nelson Johnson’s first dismissal of the case.
Johnson first granted summary judgement — meaning a case lacks enough evidence to move forward — in 2013.
But in an appeal of that decision, the appellate court found that 11 of the 22 women had enough evidence to grant them a trial.
While the lawsuit cited weight issues, the judges at that time noted that “the claims are not discriminatory because of weight per se, but because of a gender-specific characteristic such as pregnancy or a medical condition such that the weight comments actually targeted women. In essence, but for the subjected plaintiffs’ sex, they would not have been the object of the harassment.”
The case was then returned to Johnson to proceed to trial.
He started down that path, but, in 2016, gave the defense “a second bite of the apple on summary judgment issues this court already decided,” the appellate panel wrote Monday.
Johnson again ruled the case could not proceed.
“The trial court had no authority to reconsider the same evidence we reviewed and reach a different legal conclusion from that evidence,” the judges wrote, chastising Nelson in Monday’s opinion.
The new opinion cited examples of discrimination based upon the pregnancy of four of the women and a medical condition of the fifth.
“The appellate division has seen it as clearly as we had,” Herman said. “The women who I represent are looking forward to having their day in court and the ability to present the facts unfiltered to a jury.
“We look forward to proceeding,” he added. “While justice here has been delayed that doesn’t mean it’s necessarily lost.”

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