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Mercado v. Sugarhouse HSP Gaming, L.P.

United States District Court, E.D. Pennsylvania

July 23, 2019

RITA MERCADO, Plaintiff,



         This suit centers on a casino employee's allegations of workplace pregnancy discrimination. Plaintiff Rita Mercado brings this suit against her former employers Sugar House HSP Gaming, L.P., Sugarhouse HSP Gaming, L.P. doing business as Sugarhouse Casino, and Sugarhouse HSP Gaming Prop. GP, L.L.C. (collectively, “Sugarhouse”), Sugarhouse's Director of Human Resources, Jay Tarbell, and another Sugarhouse employee, Dominick Montanaro. She principally brings claims of hostile work environment and constructive termination, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., the Pennsylvania Human Rights Act (“PHRA”), 43 Pa. Cons. Stat. §§ 951 et seq., and the Philadelphia Fair Practices Ordinance (“PFPO”), Phila. Code §§ 9-1101 et seq. Defendants now move for summary judgment. For the reasons that follow, the motion shall be granted in part and denied in part.

         I. BACKGROUND

         A. Facts[1]

         Sugarhouse operates a casino in Philadelphia. The casino itself has both smoking and nonsmoking sections. Sugarhouse uses an electronic management system, Virtual Roster, to assign employees to specific parts of the casino. Once Virtual Roster assigns a location, changes must be made manually by management. Casino employees are organized in a hierarchy: table games dealers are at the lowest rung and report to floor supervisors; floor supervisors report to pit managers; pit managers report to a shift manager.

         To accommodate nursing mothers, the casino also has a private lactation room, known as the “Pump Room.” The Pump Room is locked, and a key is held by Sugarhouse security employees. While dealers are generally afforded one twenty-minute break for each eighty minutes they work, nursing mothers are permitted two additional twenty-minute breaks per shift, which they may “stack” with other breaks to allow up to forty minutes of break time to pump. Sugarhouse maintains an anti-harassment policy.

         Plaintiff began working for Sugarhouse in June of 2013. At the time relevant to the events underlying this suit, she was working as a dealer. In May of 2016, Plaintiff became pregnant with her first child. Plaintiff testified that she began to encounter difficulty at work once she requested that she be assigned to nonsmoking areas of the casino. If she had been assigned by Virtual Roster to a smoking area of the casino, she would ask the pit manager on duty to move her to a nonsmoking area. According to Plaintiff, whenever she made such a request, she was told that she would have to begin work at the assigned table in the smoking section while management attempted to find a new placement. “Sometimes, eventually, ” her request to move to a nonsmoking section was accommodated, while other times it was not. Defendants, for their part, dispute this characterization of Plaintiff's assignments while pregnant, and assert that all of Plaintiff's requests to move to nonsmoking sections were accommodated.

         Plaintiff also testified that during her pregnancy, a particular pit manager, Berneia ‘Bernie' Taylor, frequently told Plaintiff that her requests to work in nonsmoking areas were “an inconvenience.” Plaintiff reported Taylor's comments to shift manager Robin Ryan, who said she would speak to Taylor. Nonetheless, according to Plaintiff, Taylor subsequently repeated her comment that Plaintiff's requests were an inconvenience. Defendants dispute both that Taylor made these comments, and that Plaintiff reported them to Ryan.

         Plaintiff began a leave of absence in connection with her pregnancy in January of 2017; gave birth on January 31, 2017; and returned to work on March 22, 2017.

         Upon her return, Plaintiff informed her colleagues that she would be breastfeeding her child and regularly using the Pump Room during breaks. According to Plaintiff, she soon began to experience issues with both management and other staff members related to her pumping. For example, on one occasion, Plaintiff asked Defendant Dominick Montanaro, a pit manager, to take a pump break. Montanaro responded by asking how big Plaintiff's breasts would get if someone refused to let her pump. On another occasion, a different pit manager told Plaintiff that she was “beautiful, if only [she] could stop pumping.” Another pit manager commented to Plaintiff “isn't that boy done eating by now?” Others commented to Plaintiff that she was pumping too much, and that her son “should be on formula by now.” Defendants accept that Plaintiff testified to these statements, and do not specifically refute that these events took place.

         Plaintiff further testified that she reported these incidents to Ryan on at least three separate occasions. At one point, Ryan told Plaintiff that she should “watch [her] back” because several employees had approached Ryan and complained that Plaintiff was taking advantage of her breaks and was not actually pumping. Ryan suggested to Plaintiff that she exit the Pump Room holding a bottle of milk or some other object to show that she was in fact pumping. Ryan did not report any of these conversations to Human Resources. Defendants dispute some of the contents of what was said in these conversations, but generally accept that they occurred and that Ryan did not report them to Human Resources.

         On September 1, 2017, Plaintiff was exiting the Pump Room holding a bottle of milk. Another dealer, Lauren Roche, happened to be nearby and commented to Plaintiff, “[i]s that all the milk you pumped? You look like you're drying out.” Plaintiff responded that she had more milk in her bag. Roche then replied, “[w]ell I just want you to know you are jacking up everyone's schedule.” Roche then continued talking to others in the vicinity, saying that Plaintiff's breaks were unfair to others. The next day, Plaintiff reported Roche's comment to Ryan. Ryan asked Plaintiff to fill out a form, documenting the incident, and said that Sugarhouse would investigate. Plaintiff also reported the incident to Defendant Jay Tarbell, the Director of Human Resources. Plaintiff told Tarbell that she felt that other employees thought that she was taking advantage of her pump breaks. Tarbell asked Plaintiff if she was in fact taking advantage of the pump break policy, and she responded she was not. Tarbell then told her “I guess [you] have nothing to worry about.” Defendants do not dispute these events.

         Plaintiff also testified that either Tarbell or Ryan informed her that the employees in charge of surveillance had reviewed footage of the incident with Roche, and had “seen nothing.” However, Plaintiff herself spoke to those employees, and was told that in fact they had seen the incident on the surveillance footage. Plaintiff then raised this with management, and testified that management “suddenly found people to ask” once she brought it up. Defendants, for their part, contend that Ryan requested and reviewed the footage, and that Sugarhouse conducted a full investigation into the incident. Documentation from Sugarhouse reflects that Roche was asked about the incident and denied it occurred, but that others present recalled Roche making the comments. Roche was initially issued a “Written Warning Level 2” for the incident, which was later scaled back to verbal feedback.

         Plaintiff stopped working for Sugarhouse two weeks later, following another incident with a coworker related to the Pump Room. In the time immediately after giving birth and returning to work, Plaintiff would sign out the Pump Room key from security and return it on each occasion that she used the room, which occurred multiple times per day. At some point, however, Plaintiff testified that she was told by a security officer that she was the only person using the key and that she should just keep the key for her full shift and return it at the end of the day, rather than sign it out each time, and that she began doing so. The sign out sheet for the key shows that between May and August of 2017, Plaintiff was the only person signing out the key.

         On September 14, 2017, Plaintiff went to retrieve the key from security, and security officer Tequila Phillips was on duty. Plaintiff testified that Phillips started yelling at her and physically approached her, and refused to give her the key, saying that Plaintiff never returned it. Defendants do not dispute that an incident with Phillips occurred, though they note that Phillips reported that she did not refuse to give Plaintiff the key, and that she simply told Plaintiff to bring the key back when she was done pumping instead of keeping it for her full shift.

         After the incident, Plaintiff went to Phillips's supervisor, Charles Skorski, and reported that Phillips refused to provide the key. Skorski told Plaintiff that Phillips was “just high strung” and said that whenever Plaintiff needed the key, she should call him and he would obtain the key for her. Plaintiff then reported this incident to Ryan, who acknowledged that Phillips had not handled the situation properly. Plaintiff then left early, and Ryan accounted for Plaintiff's early departure in a manner than ensured that Plaintiff would not receive any adverse attendance ...

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