Wilson v. Blue Sky Casino, LLC

BARRY WILSON, Plaintiff, v. BLUE SKY CASINO, LLC, Defendant.

No. 4:16-cv-00070-SEB-TAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION

December 29, 2017

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This cause is before the Court on Defendant's Motion for Summary Judgment [Docket No. 35], filed on May 12, 2017, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Barry Wilson ("Mr. Wilson") has brought this action against his employer, Defendant Blue Sky Casino, LLC, d/b/a French Lick Resort and Casino ("French Lick"), alleging that French Lick failed to promote him because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"). For the reasons detailed below, we GRANT Defendant's Motion for Summary Judgment.

Factual Background

Defendant's Business and Anti-Discrimination Policies

For many years, French Lick has undertaken historic restoration projects involving various locations, such as the French Lick Springs Hotel in French Lick, Indiana, and West Baden Springs Hotel in West Baden Springs, Indiana, which projects have included fully renovated guest rooms, a new event center, retail, shops, and the French Lick Casino. Tate Decl. ¶ 3. The French Lick Casino opened on November 3, 2006, offering slot machines, table games (blackjack, roulette, craps, and poker), a high limit gaming area, VIP services, live entertainment, and various dining options. Id. ¶ 4. As of January 1, 2008, French Lick has been owned by the Blue Sky Trust, a trust organized by CGI Resort Holdings, LLC, a wholly-owned subsidiary of Cook Group, Incorporated. Id. ¶ 5.

French Lick maintains policies prohibiting discrimination, harassment, and retaliation, all of which are set forth in French Lick's employee handbook. Id. ¶ 6. All employees receive a copy of the handbook when they are hired, including, we assume, Mr. Wilson. Wilson Dep. at 55.

Plaintiff's Position and the Promotion Process

Mr. Wilson began his employment with French Lick on November 6, 2006 as a Table Games Floor Supervisor; he still holds this position. Id. at 6, 41. French Lick's Table Games Floor Supervisors are supervised by the Table Games Shift Managers. Id. at 48. There are currently three managers and four assistant managers in the Table Games Department. Miller Dep. at 9-10. The Table Games Shift Managers report to Mike Miller, the Director of Table Games, who oversees the entire Table Games Department. Id. at 9; Wilson Dep. at 46-47. Mr. Miller has worked for French Lick in that capacity since November 2014. Miller Dep. at 9.

In June 2015, approximately seven months after Mr. Miller began working as the Director of Table Games, an opening arose in the department for a Table Games Shift Manager and Mr. Wilson applied for the promotion. Wilson Dep. at 58; Exh. 29 to Wilson Dep. At the time he applied, he was 55 years old. Wilson Dep. at 10, 60.Several other French Lick employees applied as well, including Michael Voegerl (age 55), Mark Stephenson (age 50), Stacey Steele (age 40), Rollie Cannon (age 38), and Tyler Whiting (age 35). Id. at 61; Tate Dep. at 19; Miller Dep. at 16-17.

After interviewing each of the candidates, Mr. Miller preferred to promote Mr. Voegerl. Exh. 4 at 15, 19; Tate Dep. at 20-21; Wilson Dep. at 63, 71. At that time, however, Mr. Voegerl was in a romantic relationship with one of the dealers, whom he would have been responsible for supervising as Table Games Shift Manager. Miller Dep. at 19; Tate Dep. at 21; Wilson Dep. at 70. Given this relationship, before officially selecting Mr. Voegerl for the position, Mr. Miller contacted French Lick's Director of Human Resources, Tina Tate, to determine whether he could promote Mr. Voegerl under those circumstances. Tate Dep. at 10-12. Ms. Tate, who at that time was a new French Lick employee, investigated and learned that it was a practice of Cook Group Incorporated, French Lick's parent company, not to allow an employee to supervise a family member or an individual with whom the employee had a romantic relationship. Id. at 11.

After consulting with Ms. Tate and learning of this policy, Mr. Miller determined that Mr. Voegerl was disqualified from the supervisory position due to his romantic relationship with the dealer. Miller Dep. at 19-20; Wilson Dep. at 71. Upon further inquiry, Mr. Miller learned that, like Mr. Voegerl, Mr. Wilson also could not be considered for the position because his wife was a dealer and would have been under his supervision if he were promoted, which would violate the anti-nepotism policy. Wilson Dep. at 61, 69. Ms. Steele and Mr. Cannon were also disqualified from the positionbecause their promotions would have resulted in their having to supervise family members as well. Tate Dep. at 25-26. Ultimately, Mr. Whiting, who was the only applicant who did not have a family member or significant other whom he would have been required to supervise as a result of the promotion,¹ was awarded the position. Miller Dep. at 21-22; Tate Dep. at 26; Wilson Dep. at 79; Tate Dep. at 26.

Defendant's Anti-Nepotism Policy

Ms. Tate had been hired by French Lick only a few weeks prior to Mr. Miller's inquiry regarding the company's anti-nepotism policy. At that time, she was not aware of a written anti-nepotism policy in place at French Lick, but after contacting French Lick's parent company, she learned that it did in fact have a practice of not allowing family members or those in romantic relationships to supervise one another. Tate Dep. at 10-11.

According to Ms. Tate, she has no knowledge of whether that practice was enforced prior to her hiring, but once she learned of the practice, in June 2015, she immediately began enforcing it from that point forward at French Lick and drafted a written anti-nepotism policy. Id. at 12-13; Miller Dep. at 26-27. After the written policy was approved and went into effect in June 2016, Mr. Miller notified Table Games Shift Managers in his department of the policy and posted a written memorandum on bulletin boards in the casino to notify the other employees in the department. Miller Dep. at 11-13; Tate Dep. at 16-17, 24-25; Exh. 1 to Tate Dep. French Lick imposed an internal deadline of June 1, 2017 by which time all known situations that would violate the anti-nepotism policy were to be corrected, by moving employees to different shifts or different departments to avoid their supervision by a relative or significant other. Tate Dep. at 17-18; Miller Dep. at 11-14.

Mr. Wilson testified that he was aware of at least two instances in which a French Lick employee is currently supervising either a family member or romantic partner, but does not know whether Ms. Tate was aware of those situations. Mr. Wilson also testified that approximately two weeks after he was denied the promotion, he learned that a new dealer had been hired in the Table Games Department who told him that her supervisor was her cousin. He does not know whether Ms. Tate was aware of this situation either. Wilson Dep. at 81-84.

The Instant Litigation

In September 2015, Mr. Wilson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and then filed an amended charge on October 6, 2015, alleging that he was denied a promotion due to his age.² He subsequently received his notice of right to sue from the EEOC, and, on May 12, 2016,timely filed his complaint in this action, alleging that French Lick failed to promote him because of his age. French Lick moved for summary judgment on May 12, 2017.

Legal Analysis

I. Standard of Review

Summary judgment is appropriate where there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must grant a motion for summary judgment if it appears that no reasonable trier of fact could find in favor of the nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). We neither weigh the evidence nor evaluate the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip, 573 F. Supp. 2d 1090, 1097 (S.D. Ind. 2008).

II. Discussion

Mr. Wilson's sole claim in this action is that he was denied a promotion to Table Games Shift Manager because of his age. Under the ADEA, an employer is prohibited from engaging in discrimination "because of [an] individual's age." 29 U.S.C. § 623(a)(1). To prevail on a claim under the ADEA, a plaintiff "must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).

Mr. Wilson's ADEA claim invokes the Seventh Circuit's decision in Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Under Ortiz, regardless ofwhether the court uses the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) or some other framework to evaluate a plaintiff's employment discrimination claim, "the ultimate legal question 'is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action." Reed v. Freedom Mortg. Corp., 869 F.3d 543, 547 (7th Cir. 2017) (quoting id. at 765). Under this "simplified" approach, the "[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself—or whether just the 'direct' evidence does so, or the 'indirect' evidence." Ortiz, 834 F.3d at 765.

Because Mr. Wilson has framed his arguments within the McDonnell Douglas framework and that framework was not changed or otherwise undermined by Ortiz, we will first address his ADEA claim using that approach. We...