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Laborde v. Mount Airy Casino

United States District Court, M.D. Pennsylvania

June 12, 2018



          Robert D. Mariani, United States District Judge

         I. Introduction and Procedural History

         In this civil rights action Plaintiff, Rodney Laborde, claims that Defendant, Mount Airy Casino, unlawfully terminated his employment as a Table Games Floor Supervisor. Specifically, Plaintiff asserts that Defendant decided to discharge Plaintiff because of his disabilities and in retaliation for Plaintiff taking intermittent medical leave from work. As a result, Plaintiff asserts three claims in his Amended Complaint: a disability discrimination claim under the Americans with Disabilities Act of 1990 ("ADA"), as amended, 42 U.S.C. § 12101 et seq., (Count I), a retaliation claim under the Family and Medical Leave Act of 1993, ("FMLA"), as amended, 29 U.S.C. § 2601 etseq., (Count II), and a disability discrimination claim under the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq., (Count III). (Doc. 7). Presently before the Court is Defendant's Motion for Summary Judgment. (Doc. 26). For the reasons that follow, the Court will grant in part and deny in part Defendant's Motion.

         II. Statement of Undisputed Facts

         Before turning to the facts of this case, the Court must address a preliminary issue. In compliance with Local Rule 56.1, Defendant submitted a statement of facts, (Doc. 28), which it contends are undisputed. Plaintiffs response, (Doc. 29), contains a number of denials based on evidentiary objections. See Fed. R. Civ. P. 56(c)(2). Most of Plaintiff's evidentiary objections, however, are severely flawed. For example, the second fact contained in Defendant's Statement of Undisputed Material Facts states: "Mount Airy offers over 1, 800 slot machines and over 70 table games such as Blackjack, Craps, Roulette, and Baccarat." (Doc. 28 at ¶ 2). Defendant supports this fact with a citation to the seventh paragraph of a declaration authored by Dennis Asselta, Defendant's Executive Director of Table Games. (Doc. 28-2). Plaintiff denies that this fact is undisputed because "[paragraphs 27, and 31-36 of Dennis Asselte's [sic] Declaration contain hearsay statements from third parties." (Doc. 29 at ¶¶ 1-6).

         Setting aside the merits of Plaintiffs hearsay objections, Defendant's second fact does not rely on any of the paragraphs in Asselta's declaration that Plaintiffs contends contain inadmissible hearsay. Thus, it appears that Plaintiff asks this Court to reject all forty-three paragraphs of Asselta's declaration because the document contains seven paragraphs which Plaintiff believes contain inadmissible hearsay. Plaintiff, however, cites no authority that would endorse such draconian measures. Accordingly, the Court has deemed admitted any fact opposed only by improper denials of this nature.[1] See Local Rule 56.1 ("All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."). With that in mind, the following facts are undisputed unless specifically noted otherwise:

         Defendant operates a casino and resort located in Mount Pocono, Pennsylvania. (Doc. 28 at ¶ 1). On March 5, 2010, Defendant offered Plaintiff a full-time position as a Floor Supervisor in the casino. (Doc. 28 at ¶ 51; Doc. 29 at ¶ 51). A Floor Supervisor oversees tables and dealers to ensure compliance with Defendant's policies and state regulations. (Doc. 28 at ¶¶ 11, 16; Doc. 29 at ¶ 11). While a Floor Supervisor may supervise up to a maximum of six tables at one time, the number of tables he or she is assigned to supervise vary from day to day, or even within the same shift. (Doc. 28 at ¶¶ 20-21). Floor Supervisors report to Pit Managers, who report to Shift Managers, who report to the Director of Table Games, who reports to the Vice President of Casino Operations. (Doc. 28 at ¶ 7; Doc. 29 at ¶ 7). At the time of Plaintiffs employment, Jim Tuthill was the Vice President of Casino Operations, Dennis Asselta was the Director of Table Games, and John Collins was a Shift Manager. (Doc. 28 at ¶ 8).

         On July 22, 2011, Mr. Collins and Mr. Asselta suspended Plaintiff for three days after receiving a report that Plaintiff swore at another employee. (Decl. of Dennis Asselta, Doc. 28-2 at ¶ 29). Using profane language is prohibited by Defendant's Code of Conduct. (Doc. 28 at ¶ 45; Doc. 29 ¶ 45). On the Employee Discipline Notice, Plaintiff denied using any profanity towards another employee. (Doc. 28-10). On January 10, 2012, Mr. Collins issued Plaintiff a second Employee Disciplinary Notice. (Decl. of Dennis Asselta, Doc. 28-2 at ¶ 30; Doc. 28-11). The notice stated that Plaintiff acted disrespectfully towards another employee when requesting ice from a service bar. (Doc. 28-11). Acting disrespectfully towards other employees is prohibited by Defendant's Code of Conduct. (Doc. 28 at ¶ 45; Doc. 29 ¶ 45). On the notice, Plaintiff denied any misconduct. (Doc. 28-11).

         On February 11, 2012, Plaintiff was suspended and issued a third Employee Disciplinary Notice. (Doc. 28-12). The notice accused Plaintiff of acting disrespectfully towards a Pit Manager when asked to fill in for another employee on break and of failing to maintain proper chip banks. (Id.). On the notice, Plaintiff denied any misconduct and stated that he was having trouble dealing with the death of his father which may have impacted his work. (Id.) Plaintiff also indicated that he was getting treatment. (Id.). Frances Kneisc, the Executive Director of Human Resources, met with Plaintiff during his suspension and discussed the treatment he was receiving to help him cope with the death of his father. (Doc. 28 at ¶ 66). After that meeting, despite a recommendation from Plaintiff's supervisors that he be discharged, Ms. Kneisc decided not to terminate Plaintiffs employment. (Decl. of Frances Kneisc, Doc. 28-13 at ¶ 5; Dep. of Rodney Laborde, Doc. 28-3 at 115).

         In June of 2012, Plaintiff talked with Carol Benginia in Defendant's Human Resources office about intermittent medical leave. (Doc. 28 at ¶ 75; Doc. 29 at ¶ 75). Ms. Benginia provided Plaintiff with information about FMLA leave, including a Notice of Eligibility form, an application to use FMLA leave, and certifications that needed to be completed by Plaintiff's doctors. (Doc. 28 at ¶ 76; Doc. 29 at ¶ 76). On July 3, 2012, Ms. Benginia received a certification from Plaintiffs doctor stating that Plaintiff "suffers from chronic back pain secondary to disk dx & spondylolisthesis" and "gout that frequently flares, " both of which would require Plaintiff to take time off of work when the conditions flared up. (Doc. 28 at ¶¶ 77-79; Doc. 29 at ¶¶ 77-79). On July 10, 2012, Plaintiff requested intermittent leave based on his medical issues. (Doc. 28 at ¶ 80; Doc. 29 at ¶ 80). Two days later, Ms. Benginia notified Plaintiff that he had been approved for intermittent FMLA leave and explained the procedure Plaintiff should use to take leave. (Doc. 28 at ¶ 81; Doc. 29 at ¶ 81). Plaintiff took FMLA leave from July 16, 2012, through July 20, 2012. (Doc. 28 at ¶ 88; Doc. 29 at ¶ 88).

         On July 17, 2012, Ms. Benginia received a second certification from a different doctor stating that Plaintiff suffered from anxiety and depression which would require Plaintiff to take time off of work when those conditions flared up. (Doc. 28 at ¶¶ 83-84; Doc. 29 at ¶¶ 83-84). The doctor also noted that "due to stress [Plaintiff's] anxiety can worsen resulting in irritability, anxiety and depression." (Doc. 28-21 at 4).

         On the evening of August 9, 2012, Plaintiff was assigned to supervise six tables including at least one roulette game. (Doc. 28 at ¶ 89, Doc. 29 at ¶ 89). Throughout his employment, Plaintiff supervised four to six tables at once. (Doc. 28 at ¶ 55; Doc. 29 at ¶ 55). At the time, when a Floor Supervisor was overseeing six tables at one time, the maximum bet permitted at a roulette game was fifty dollars. (Doc. 28 at ¶ 23). When a Floor Supervisor was supervising four tables, the maximum bet permitted at a roulette game was one hundred dollars. (Doc. 28 at ¶ 24). A sign on each table stated the maximum and minimum bet. (Doc. 28 at ¶ 22).[2] Absent a Pit Manager explicitly giving a Floor Supervisor the discretion to do so, only Pit Managers and Shift Supervisors were allowed to increase the maximum bet allowed at a table. (Doc. 28 at ¶¶ 25, 27).

         Sometime between 12:00 a.m. and 1:00 a.m. on August 10, 2012, surveillance notified Mr. Collins that Plaintiff had, over a period of twenty minutes, allowed a gambler to make eighteen bets over the $50 table limit on a roulette game. (Decl. of John Collins, Doc. 28-9 at ¶ 10). Plaintiff was not given the discretion to change the table maximums or minimums. (Id. at ¶ 9). The bets that were made over the table maximums resulted in the gambler receiving $3, 900 in extra winnings and $900 in extra losses. (Doc. 28 at ¶ 95; Doc. 29 at ¶ 95). The gambler became very upset after Mr. Collins recouped the $3000 28-9 at ¶ 17). On the Employee Disciplinary Notice, Plaintiff admitted to approving bets over the table maximum. (Doc. 28-22).

         Based on his schedule, Plaintiff had the next two days off of work. (Dep of Rodney Laborde, Doc. 28-3 at 129). On August 11, 2012, Mr. Collins met with the dealer who took the excessive bets, Robin Dawson. (Decl. of John Collins, Doc. 28-9 at¶¶ 11, 19). On the Employee Disciplinary Notice, Ms. Dawson wrote that the minimum and maximum bet sign was changed in the middle of the shift and Ms. Dawson was told not to tell anyone. (Id. at ¶ 20; Doc. 28-9 at 8). Based upon this information, Collins requested that the surveillance department show him the tape of Ms. Dawson's table. (Decl. of John Collins, Doc. 28-9 at ¶ 21). After viewing it himself, Mr. Collins gave Mr. Asselta the surveillance footage to view. (Id. at ¶ 23). According to Mr. Collins and Mr. Asselta, the surveillance footage shows Plaintiff changing the table limits sign at 12:12 a.m. and talking to Ms. Dawson while doing so. (Id. at ¶ 22; Decl. of Dennis Asselta, Doc. 28-2 at ¶ 37). The date and time stamped video, submitted as an exhibit, shows a man dressed in a black shirt, purportedly Plaintiff, taking a sign off of a roulette table, bringing a sign back, and talking to the table's dealer. Due to the video's quality, the signs cannot be read.[3]

         Mr. Asselta shared the surveillance footage with Mr. Tuthill and discussed the incident. (Decl. of Dennis Asselta, Doc. 28-2 at ¶ 38). Mr. Tuthill made the decision to suspend Plaintiff and seek approval from human resources to terminate his employment.[4](Id.). Plaintiff took approved FMLA leave on August 13, 2012. (Doc. 28 at ¶ 88; Doc. 29 at ¶ 88). When Plaintiff returned to work on August 14, 2012, two of Plaintiffs supervisors gave Plaintiff a notice that indicated that he was being suspended pending an investigation. (Dep of Rodney Laborde, Doc. 28-3 at 138; Doc. 28-23). That same day, Mr. Collins and Mr. Tuthill made Ms. Kneisc aware of the August 10, 2012, incident. (Decl. of Dennis Asselta, Doc. 28-2 at ¶ 40). After Ms. Kneisc approved the recommendation to terminate Plaintiffs employment, Plaintiff was discharged on August 16, 2012. (Decl. of Frances Kneisc, 28-13 at ¶ 13-14).

         III. Standard of Review

         Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). "As to materiality, .... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record... or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert, denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

         However, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material foci. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

         IV. Analysis

         Defendant puts forth a variety of arguments as to why it is entitled to summary judgment on Plaintiff's claims. The ...

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