United States District Court, M.D. Pennsylvania
D. Mariani, United States District Judge
Introduction and Procedural History
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.
Statement of Undisputed Facts
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).
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. 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
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).
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).
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
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).
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).
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). 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).
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).
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
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.(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).
Standard of Review
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).
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
"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
puts forth a variety of arguments as to why it is entitled to
summary judgment on Plaintiff's claims. The ...