United States District Court, D. New Jersey, Camden Vicinage
DEBRA L. SYLVESTER, Plaintiff,
DGMB CASINO, LLC d/b/a RESORTS CASINO HOTEL, et al., Defendants.
Zachary R. Wall, Esq. Wall & London LLC Attorney for
Plaintiff Debra L. Sylvester
Russell L. Lichtenstein, Esq. Stephanie E. Farrell, Esq.
Cooper Levenson, PA Attorneys for Defendant DGMB Casino, LLC
d/b/a Resorts Casino Hotel
RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE
matter comes before the Court upon the Motion for Summary
Judgment [Docket No. 16] by Defendant DGMB Casino, LLC d/b/a
Resorts Casino Hotel (the “Defendant” or
“Resorts”), seeking the dismissal of the
above-captioned matter brought by Plaintiff Debra L.
Sylvester (the “Plaintiff”) in its entirety.
Having considered the parties' submissions and for the
reasons set forth below, the Court grants, in part, and
denies, in part, Defendant's motion.
FACTUAL AND PROCEDURAL BACKGROUND
was hired as a dual rate dealer by Resorts Casino Hotel,
owned at the time by Defendant's predecessor entity, on
or about September 26, 2005. Pl. Dep. Tr. 25:18-26:1, Def.
MSJ Ex. A [Docket No. 16-3]. In 2010, once ownership of the
Resorts Casino Hotel was transferred to Defendant, all
employees of Resorts Casino Hotel, including Plaintiff, were
required to reapply for their positions. Plaintiff was
rehired by Defendant in late 2010. Id. 27:12-28:22.
As a dual rate dealer, Plaintiff worked some shifts as a
dealer and others as a supervisor. Id. 26:5-22.
Plaintiff received satisfactory work performance evaluations
throughout her employment and was never disciplined. Def. MSJ
Ex. H [Docket No. 16-3]; Pl. Dep. Tr. 118:16-20. On occasion,
Plaintiff received commendations based upon positive customer
feedback. Pl. Opp. Exs. 4-7 [Docket No. 18-5].
August 2015, Plaintiff sought medical treatment for back pain
at Atlantic County Family Spine and Rehabilitation Center.
Pl. Dep. Tr. 71:1-20; Pl. Opp. Ex. 8 [Docket No. 18-5].
Plaintiff's medical and chiropractic records note back
pain, lumbar spondylosis, and facet osteoarthritis. Pl. Opp.
Ex. 8. Thereafter, on September 12, 2015, Plaintiff requested
and obtained FMLA leave paperwork from Defendant's human
resources office. Plaintiff testified that she went to the
human resources office, told the human resources
representative her name and department and asked for the
paperwork for FMLA leave. Pl. Dep. Tr. 57:6-58:13. Plaintiff
did not have to fill out any forms to obtain the FMLA leave
paperwork; she “just went and asked for it.”
Id. 69:10-14. Plaintiff does not know the name or
position of the person she spoke with and cannot describe the
person. Id. 58:3-19. She did not provide the
individual with a doctor's note or indicate why she
needed the FMLA paperwork. Id. 58:20-25. Indeed,
Plaintiff does not know whether anyone at Resorts was aware
that she had a disability. Id. 59:1-3.
is no evidence that the individual in human resources who
gave Plaintiff the blank FMLA leave paperwork recorded
Plaintiff's name or request. See id. 69:16-18.
Importantly, Barbara Hulsizer, Defendant's Executive
Director of Workforce Development, explained that, pursuant
to Defendant's policies, an employee may request an FMLA
application packet from the human resources office, but that
the office does not ask for or record the employee's name
or job title. Hulsizer Dep. Tr. 86:1-24, Def. MSJ Ex. E
[Docket No. 16-3].
then took the FMLA leave application paperwork to her
chiropractor to complete. She believes she gave the paperwork
to her chiropractor before September 22, 2015, but cannot
recall the exact date. Pl. Dep. Tr. 125:25-127:1. On
September 23, 2015, Plaintiff's healthcare provider
completed the FMLA leave application form, indicating that
Plaintiff required chiropractic treatment twice a week for
cervical and lumbar spine pain and that Plaintiff would be
unable to work during pain flare-ups that may occur one to
two times per month for a day or two at a time. Pl. Opp. Ex.
9 [Docket No. 18-5]. Plaintiff never submitted the completed
FMLA leave paperwork to Defendant. Pl. Dep. Tr. 69:19-70:2;
109:19-24. Moreover, and significantly, Plaintiff admits that
she did not tell anyone at Resorts about her request for FMLA
leave. Id. 138:23-139:3.
about September 18, 2015, Resorts announced a new customer
service initiative called “GET it!” and a
training session in connection with the initiative. Def. MSJ
Ex. C [Docket No. 16-3]. Plaintiff became aware of the
training session via a memo that was placed in the gaming pit
where she worked. Pl. Dep. Tr. 41:3-24; Def. MSJ Ex. C. The
memo advised employees that the training session would be
facilitated by the human resources team and would last
approximately three hours. Def. MSJ Ex. C. It also advised
employees to be “prepared to do the hula, impersonate
Elvis, dance to YMCA, and many, many more exciting
things!” Id. Plaintiff was required to attend
the training session on September 22, 2015. Pl. Dep. Tr.
training session on September 22, 2015 involved several team
building and icebreaker activities, as well as presentations
regarding customer service. These included activities
involving nametags, a beach ball, a hula hoop, and
blindfolds. The nametag activity, for example, required the
attendees to write the name of their first pet and the street
on which they lived on a nametag, instead of their real name.
Pl. Dep. Tr. 49:2-4. The beach ball activity involved passing
around a beach ball and, depending on the color that the
participant's thumb landed on, each participant had to
answer a question or do a task. Id. 49:4-8. Another
activity involved two teams leading blindfolded participants
through an obstacle course set up with small cones.
Id. 52:2-13. This activity only required a small
number of attendees to participate. Plaintiff was not amongst
the participants. Id. 52:18-53:2. Finally, the hula
hoop activity involved several people balancing a hula hoop
on their fingers and getting it down to the ground.
to Plaintiff, she participated fully in both the nametag and
beach ball activities. Id. 49:16-50:17. Plaintiff
testified that she wrote the words “Rex” and
“Center Street, ” the names of her pet and
street, respectively, on her nametag as part of the nametag
activity. Id. 133:3-17. As part of the beach ball
activity, Plaintiff was asked her favorite quote, to which
she honestly responded that she does not have one.
Id. 50:2-17. Plaintiff testified that she
participated in the hula hoop activity to the best of her
ability, but that she was prevented from fully participating
due to back pain. Id. 53:13-22; 54:5-12; 116:15-24;
136:25-137:8. Notably, Plaintiff did not inform anyone that
she was unable to participate in the training because of pain
or disability. Id. 55:2-8; 97:5-23. According to
Plaintiff, she was cooperative throughout the training and
did not make any negative comments. Id. 134:1-13.
Hulsizer, however, had a different impression of
Plaintiff's participation during the training session.
She observed Plaintiff to be “inflexible,
uncooperative, [and] unwilling to participate.”
Hulsizer Dep. Tr. 72:10-15. According to Ms. Hulsizer, who
also attended the training session, Plaintiff did not wear a
nametag during the nametag activity and was uncooperative
during the beach ball activity. During the beach ball
activity, Ms. Hulsizer saw Plaintiff scowling and telling her
coworker that she did not want to participate in the
activity. Id. 74:4-14. Ms. Hulsizer testified that
Plaintiff did not want to answer questions as part of the
activity and described the process as “like pulling
teeth.” Id. 74:15-75:1. As to the hula hoop
activity, Ms. Hulsizer heard Plaintiff state that she did not
want to participate in the activity, but noted that she
eventually did. Id. 75:1-9. Overall, in Ms.
Hulsizer's view, Plaintiff's demeanor and conduct
during the activity was rude and uncooperative. Id.
fifteen minutes before the training session ended, Plaintiff
and another employee stood up to leave. Pl. Dep. Tr.
55:18-21. Plaintiff stated that she needed to leave because
her shift was beginning shortly and she did not want to be
late. Id. 95:15-17; 134:19-135:10. Ms. Hulsizer told
Plaintiff to retake her seat as the training had not yet
concluded. Hulsizer Dep. Tr. 75:10-22; see also Pl.
Dep. Tr. 55:25-56:3; 135:11-13. At her deposition, Plaintiff
testified that she later told Kevin Brady, the Resorts Vice
President of Casino Operations, that she stood up because she
was in pain. Id. 94:23-95:3. In the remaining
minutes of the session, Ms. Hulsizer directly addressed
Plaintiff by name to “engage her, ” but Plaintiff
did not respond. Hulsizer Dep. Tr. 75:21-25. After the
training session had concluded, Ms. Hulsizer was “so
furious with [Plaintiff's] behavior, ” which she
found to be “so disrespectful.” Id.
75:23-76:5. She described being “incensed by
[Plaintiff's] conduct.” Id.
Ms. Hulsizer met with Mr. Brady and Daniel Fanty, the Resorts
Casino Manager, to discuss Plaintiff's behavior during
the training session. Id. 76:4-22; Fanty Dep. Tr.
54:9-55:4, Def. MSJ Ex. E [Docket No. 16-3]. During that
meeting, Ms. Hulsizer described Plaintiff's behavior as
the “total antithesis to everything that our department
stands for.” Fanty Dep. Tr. 54:22-55:4. Mr. Brady
stated that, according to Ms. Hulsizer, Plaintiff did not
participate in the training session and had “numerous
pejorative type of encounters in there with the training
personnel.” Brady Dep. Tr. 15:24-16:16. He had also
been informed that Plaintiff refused to answer questions
during the training session, attempted to leave the session
before it was over, and refused to participate in the beach
ball activity. Id. 16:24-17:13. He testified that
Plaintiff's reported conduct and demeanor “was
probably the worst behavior [he has] ever encountered . . .
by an employee with respect to people participating in a
training in a customer service class.” Id.
17:14-19. He further described Plaintiff's behavior as
“deplorable” and “unbecoming” of a
Resorts employee. Id. 21:22-25. Mr. Brady told Ms.
Hulsizer that he “won't have somebody like that
work for [him].” Hulsizer Dep. Tr. 78:18-22. Mr. Fanty
likewise noted that Plaintiff's reported conduct was
insubordinate and reflect an unwillingness to participate in
the training session. Fanty Dep. Tr. 51:24-52:10. Ms.
Hulsizer further informed Mr. Fanty that Plaintiff's
“lack of participation was horrible as a manager”
and that “her lack of participation was [such that] if
she wasn't there she couldn't have participated
less.” Id. 68:3-11. Ms. Hulsizer stated that
“she had never seen anything like that before.”
meeting, the decision was made that Plaintiff's
employment should be terminated as a result of the reports
about her conduct during the September 22, 2015 training
session. Brady Dep. Tr. 15:24-16:16; 44:16-45:3. This
decision was the result of a collaborative effort.
Id. 15:4-14; Fanty Dep. Tr. 51:13-17. Mr. Brady
explained, however, that the decision was not yet final and
that Plaintiff was to be given an opportunity to present a
plausible explanation for her behavior. Brady Dep. Tr.
September 24, 2015, Plaintiff received a call from her direct
supervisor, Frank Jakimowicz, informing her that she needed
to come to work the following day to meet with Mr. Brady and
Mr. Fanty. Pl. Dep. Tr. 60:1-21. Plaintiff told Mr.
Jakimowicz that she had a chiropractor's appointment that
morning and he informed her that would not be a problem as
the meeting was scheduled for 12:00 p.m. Id.
66:4-20. Plaintiff did not tell Mr. Jakimowicz that she was
suffering from a disability or why she had an appointment
with a chiropractor. Id. 66:21-67:1.
September 25, 2015, Plaintiff met with Mr. Fanty and Mr.
Brady. Id. 59:5-25. Although Plaintiff's
termination notice had already been prepared, Mr. Brady
retained the ability to reconsider the decision to discharge
Plaintiff in the event that she presented a reasonable
explanation or justification for her behavior at the training
session. Brady Dep. Tr. 22:19-23:6. Mr. Brady informed
Plaintiff that he had spoken with someone regarding
Plaintiff's conduct and demeanor at the customer service
training session and that he was not happy with what he
heard. Pl. Dep. Tr. 61:5-62:11.
to Plaintiff's version, she informed Mr. Fanty and Mr.
Brady that she “had been under chiropractor's
care” and that she “had a female situation,
” namely menstrual cramps, at the time of the training
session, to which they responded that she “had two
choices; to resign or be terminated.” Id.
62:13-18; 96:21-97:3. Mr. Brady testified, however, that
Plaintiff did not tell him that she had back pain or
menstrual cramps during the training session or that she was
under the care of a chiropractor. Brady Dep. Tr. 24:7-25:13.
Indeed, he stated that she did not say anything during the
meeting that justified her conduct. Id. 21:3-11.
Similarly, Mr. Fanty does not recall Plaintiff stating that
she had back pain or menstrual cramps during the training
session or that she was under the care of a chiropractor.
Fanty Dep. Tr. 56:16-57:13. Mr. Brady further testified that
Resorts would have reconsidered its decision to terminate
Plaintiff's employment if she had presented a “bona
fide reason” or justification for her uncooperative
conduct at the training session. Brady Dep. Tr. 22:19-22;
25:16-26:21. Mr. Brady was not aware that Plaintiff had
requested an FMLA leave application or that she had any
intention of taking FMLA leave. Id. 26:22-27:8.
the meeting, the termination notice prepared by Defendant was
facedown on the desk. After Plaintiff stated that she would
not resign, Mr. Fanty turned the notice over, signed it, and
handed it to Plaintiff. Pl. Dep. Tr. 63:2-17. The paper,
which had been typed in advance, indicated that Defendant was
terminating Plaintiff's employment due to her
“uncooperative and unprofessional conduct” at the
customer service training session. Id. 63:19-64:6;
67:11-21; 93:23-94:18; Def. MSJ Ex. F [Docket No. 16-3].
Plaintiff refused to sign the termination notice because she
did not believe that she deserved to be fired. Pl. Dep. Tr.
93:5-22; see also Def. MSJ Ex. F; Fanty Dep. Tr.
56:3-6. Notably, Plaintiff testified that she has no evidence
or facts that suggest that this reason was not the real
reason for her termination. Pl. Dep. Tr. 64:16-65:2.
upon these facts, Plaintiff claims that Defendant wrongfully
terminated her employment for unlawful discriminatory
reasons. On November 30, 2015, Plaintiff commenced the
instant litigation, setting forth the following counts:
discriminatory termination on the basis of disability in
violation of the New Jersey Law Against Discrimination,
N.J.S.A. § 10:5-1, et seq.
(“NJLAD”) (Count One); failure to provide
reasonable accommodations in violation of NJLAD (Count Two);
interference and wrongful discharge in violation of the
Family and Medical Leave Act, 29 U.S.C. § 2601, et
seq. (“FMLA”) (Count Three); and gender
discrimination in violation of NJLAD (Count Four) [Docket No.
1]. Thereafter, on January 16, 2017, Defendant moved for
summary judgment in its favor on all counts [Docket No. 16].
On February 24, 2017, upon consent of the parties, Count Two
and Count Three of the Complaint, Plaintiff's reasonable
accommodation and gender discrimination claims, respectively,
were dismissed with prejudice [Docket No. 24].
SUMMARY JUDGMENT STANDARD
judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is “material” if it
will “affect the outcome of the suit under the
governing law[.]” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is