A New Jersey appeals court has castigated retired Superior Court Judge Nelson Johnson for disregarding an Appellate Division ruling when he granted the Borgata Hotel Casino & Spa's motion to dismiss a personal appearance discrimination suit brought by cocktail servers known as “Borgata Babes.”

When he dismissed the suit in June 2016, Johnson bypassed the Appellate Division's September 2015 decision finding as a matter of law that the servers made a prima facie claim of sexual harassment based on the Borgata's imposition of its weight standards when he granted the casino's motion to dismiss that claim, the appeals court said.

“A decision of this court is binding on the trial court on remand. If we decided the issue on appeal, the parties may not re-litigate the issue in the trial court,” Appellate Division Judges Susan Reisner and Hany Mawla said. “The trial court had no authority to reconsider the same evidence we reviewed and reach a different legal conclusion from that evidence.”

The 2015 appeals court ruling affirmed an earlier decision by Johnson that a Borgata policy mandating that its cocktail servers maintain a certain weight range does not constitute discrimination. That decision also said certain plaintiffs who claim that they were harassed over weight gained after pregnancy or because of a medical condition were entitled to a trial. The decision ”did not specifically state that on remand the case should be tried unless settled, that was the clear import of our holding,” Reisner and Mawla said.

On Monday, Reisner and Mawla ordered the case remanded to the Law Division for trial on the claim by five remaining plaintiffs that the Borgata's imposition of personal appearance standards subjected them to sexual harassment and, in some cases, adverse employment actions. Johnson, who dismissed the case in 2013 and again in 2016, retired in 2018, and the case is now assigned to Judge John Porto. The five plaintiffs who remain in the suit have been waiting more than a decade for a trial in the case, which was filed in 2008,” said their attorney, Robert Herman of  the Law Offices of Robert D. Herman in Linwood.

Herman called the appeals court's order remanding the case for trial “fantastic news. On behalf of my clients, it's been a long time coming,” he said.

Twenty-one women were plaintiffs at the time the suit was filed in 2008. By 2015, 11 plaintiffs were in the case; four of those reached settlements with the Borgata, Reisner and Mawla said. Five of the seven remaining participated in the appeal.

On remand, Reisner and Mawla said, Johnson initially said he intended to hold a trial. But the Borgata, in an effort to avoid a trial, sought and obtained Johnson's permission to renew its summary judgment motion, and he complied.

“The trial court should have followed its initial inclination and scheduled the case for trial, instead of giving defendant a second bite of the apple on summary judgment issues this court already decided,” Reisner and Mawla said.

The five plaintiffs remaining in the case have varying experiences with the Borgata appearance regulations. Tara Kennelly was required by her shift manager to wear a maternity costume in the early stages of her pregnancy, before any need to do so, the appeals court said. When she returned from maternity leave, she was required to undergo a weigh-in twice in one day.

Noelia Lopez suffered severe asthma for which she was prescribed medications that impacted her weight. Despite medical documentation, she was suspended for violating the weight standard and was ordered to lose one pound per week. Lopez's doctor documented that her health would suffer if she lost the weight, but the Borgata rejected that notice.

Cindy Nelson was required to be weighed despite being pregnant, and a supervisor suggested the “real reason” she wore a maternity costume was that she was gaining weight.

Tania Nouel recounted offensive remarks by a boss that women who have children should not come back to work because they get fat.

And Jacqueline Schiavo was suspended from work for failing to meet the Borgata weight standard. She provided a doctor's note stating that post-surgery medication contributed to her weight gain, but the Borgata rejected that excuse.

Emily DeSmedt of Morgan, Lewis & Bockius in Princeton, who represented the Borgata, said she did not have approval to comment on the decision. Michelle Silverman of Morgan Lewis and Russell Lichtenstein of Cooper Levenson, also representing the Borgata, did not return calls about the decision.