Laborde v. Casino, 3:16-CV-769

RODNEY LABORDE, Plaintiff, v. MOUNT AIRY CASINO, Defendant.

3:16-CV-769

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

June 12, 2018

(JUDGE MARIANI)

MEMORANDUM OPINION

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 et seq., (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. Plaintiff's 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 "[p]aragraphs 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 Plaintiff's hearsay objections, Defendant's second fact does not rely on any of the paragraphs in Asselta's declaration that Plaintiff's 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 hasdeemed 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 Plaintiff's 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 Plaintiff's 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 Plaintiff's 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 $3000overpayment. (Decl. of John Collins, Doc. 28-9 at ¶¶ 15-16). Believing Plaintiff made a mistake, Mr. Collins issued Plaintiff a written warning that day. (Decl. of John Collins, Doc. 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...