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Sylvester v. DGMB Casino, LLC

United States District Court, D. New Jersey, Camden Vicinage

September 6, 2017

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



         This 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.


         Plaintiff 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].

         In late 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.

         There 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].

         Plaintiff 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.

         On or 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. 40:11-23; 69:1-3.

         The 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. Id. 53:13-19.

         According 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.

         Ms. 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.

         Approximately 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.

         Thereafter, 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.” Id. 68:19-22.

         At that 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. 21:16-22:18.

         On 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.

         On 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.

         According 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.

         During 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.

         Based 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 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 ...

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