Casino v. Dusan, 102120 INCA, 19A-EX-2650

Docket Nº:19A-EX-2650
Opinion Judge:Crone, Judge.
Party Name:Belterra Casino, Appellant-Respondent/Cross-Appellee, v. Yufen (He) Dusan, Appellee-Complainant/Cross-Appellant
Attorney:Attorneys for Appellant Kevin D. Koons Joseph C. Pettygrove Kroger, Gardis & Regas, LLP Indianapolis, Indiana Attorney for Appellee Michael C. Healy Staff Counsel Indiana Civil Rights Commission Indianapolis, Indiana
Judge Panel:Robb, J., and Brown, J., concur.
Case Date:October 21, 2020
Court:Court of Appeals of Indiana
 
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Belterra Casino, Appellant-Respondent/Cross-Appellee,

v.

Yufen (He) Dusan, Appellee-Complainant/Cross-Appellant

No. 19A-EX-2650

Court of Appeals of Indiana

October 21, 2020

Appeal from the Indiana Civil Rights Commission ICRC No. EMha13101544 EEOC No. 24F-2014-0051 Caroline A. Stephens Ryker, Administrative Law Judge

Attorneys for Appellant Kevin D. Koons Joseph C. Pettygrove Kroger, Gardis & Regas, LLP Indianapolis, Indiana

Attorney for Appellee Michael C. Healy Staff Counsel Indiana Civil Rights Commission Indianapolis, Indiana

Crone, Judge.

Case Summary

[¶1] Belterra Casino hired Yufen (He) Dusan, a Chinese national, as a guest room attendant. Dusan injured her back and was placed on medical restrictions that could not be accommodated in her current position. Belterra gave Dusan a list of open positions, told her to work with human resources if she had any questions, and informed her that her employment would be terminated if she did not find a new position within thirty days. Dusan did not apply for any positions, stopped going to work, and was terminated. Dusan filed a complaint with the Indiana Civil Rights Commission (the Commission), alleging that Belterra had discriminated against her based on national origin and disability. After a hearing, an administrative law judge (ALJ) dismissed Dusan's national origin claim but ruled in her favor on her disability claim, concluding that Belterra discriminated against her by failing to provide her with a reasonable accommodation for her disability. The ALJ awarded Dusan $76, 583.41 in back pay but rejected her request for front pay. The Commission affirmed and adopted the ALJ's order as its final order.

[¶2] Belterra now appeals, arguing that the Commission applied an incorrect burden of proof, erred in finding that Dusan could perform the essential functions of a barista with or without an accommodation, and erred in finding that extending Dusan's job-search period was a reasonable accommodation. Dusan cross-appeals, arguing that she is entitled to front pay and more back pay. We agree with Belterra and therefore reverse the Commission's ruling in favor of Dusan.

Facts and Procedural History1

[¶3] In October 2013, Dusan filed a complaint with the Commission alleging that Belterra had discriminated against her based on national origin and disability. An ALJ held five days of hearings in December 2018 and February 2019. In May 2019, the ALJ issued an initial order with the following relevant findings:2

1. Belterra is a resort and casino property located in Florence, Indiana that employs more than 900 employees.

2. Dusan is a Chinese national who at the time relevant to her complaint lived and worked in Indiana.

3. In 2010, Belterra hired Dusan as a Guest Room Attendant. As a Guest Room Attendant, Dusan was responsible for cleaning hotel rooms on Belterra's property, which included a great deal of manual labor like cleaning bathrooms, moving furniture, making beds, taking out trash, and vacuuming.

4. Although Dusan spoke very little English, Dusan was generally able to communicate with her supervisors and co-workers concerning the day-to-day functions of her position as Guest Room Attendant. However, communication was often complicated by the language barrier because Dusan primarily spoke, and still primarily speaks, Cantonese.

….

7. On April 16, 2012, Dusan sustained a back injury while cleaning a room on Belterra's property. Dusan reported the injury to her supervisors.

8. Dusan arrived at work on April 19, 2012, her next scheduled work day, and requested to see a doctor for the first time.… Dusan's Housekeeping Supervisor sent Dusan to Belterra's Worker's Compensation Clinic, the Carrol [sic] County Memorial Hospital ("Clinic"), to receive treatment from Dr. Nunnelley.

….

10. Dusan's April 19, 2012 visit to the Clinic resulted in medical restrictions, including 1) not lifting over five (5) pounds, 2) minimized stooping, bending, or twisting, 3) no squatting, climbing, or crawling, and 4) working in a sit down job only. Her restrictions remained largely unchanged until June 6, 2012 when the limitation of a sit down only job was removed and September 6, 2012 when her weight limit was changed to ten (10) pounds. Her permanent restrictions of limited bending and a lifting limit of ten (10) pounds went into effect on November 9, 2012 when Dusan's physician determined she had reached maximum medical improvement ("MMI"). At no time did Dusan's physician ever restrict Dusan's ability to engage in pushing or pulling.

11. As with other employees, Belterra accommodated Dusan's physician-imposed restrictions through the transitional or "light" duty program ("transitional duty program"). Through the transitional duty program, employees were assigned a set of individually customized tasks within their physician's restrictions with the goal of keeping the affected employees engaged in the workforce. The tasks assigned, which did not constitute a position, were based on the employee's restrictions and the availability of work. Because no business need existed for the tasks performed, transitional duty was designed to end once the employee reached MMI.

12. Dusan provided her physician's restrictions to [Belterra's risk and safety manager, Lee Smela, ] so that Smela could assign compatible tasks. Accordingly, Dusan was placed on transitional duty in the laundry room because her restrictions could not be accommodated in the Guest Room Attendant position.

….

16. Once Dusan reached MMI, Belterra's policy required that Dusan return to regular work. As the first step in the process, Smela reviewed Dusan's restrictions and the essential functions of her current position as a Guest Room Attendant to see if she could be accommodated. Smela ultimately determined that Dusan's restrictions could not be accommodated in the Guest Room Attendant position. As a result, Belterra's policy mandated that Dusan find a different position where her restrictions could be accommodated.

….

18. On April 26, 2013, Smela, Belterra's Team Member Relations Counselor ("TMR Counsel"), one of Belterra's HR representatives, and Belterra's Housekeeping Supervisor, met with Dusan and with the use of a phone translation service, explained to Dusan that she was responsible for finding and applying for a new position within thirty (30) days. To facilitate her search, Belterra's TMR Counselor gave Dusan a list of open jobs and told her to work with HR if she had any questions. Dusan was also advised that if she did not find a new position within thirty (30) days, her employment with Belterra would be terminated.

19. Of the positions provided to Dusan, Dusan contends that at the time of her discharge, she could perform the following positions, with or without a reasonable accommodation: a) Barista, b) Bartender, c) Concession Worker, d) Beverage Server, e) Cage Cashier, and f) Specialty Room Foodserver. The positions' requirements with respect to Dusan's restrictions and qualifications were:

a. Barista: the position required the ability to lift or carry items for one (1) to two (2) hours a day. During those one (1) to two (2) hours, the weight of the items carried could range from fifty (50) pounds to ten (10) pounds or less. Generally, the lifting involved with the Barista position involved stocking shelves, including heavy items like chips (30 pounds) and coffee (20-30 pounds). Bending and twisting was required for one (1) to two (2) hours a day for tasks such as bussing tables. Although a front-of-house position, the guest interaction required was limited to taking orders and manning the register.

….

20. Of the six (6) positions Dusan contends she could have worked at the time of her discharge, only the Barista position is plausibly a position that Dusan could have completed with or without a reasonable accommodation. Dusan did not have a liquor license in 2013, and accordingly, she was not qualified for the Bartender or Specialty Room Foodserver positions. As Dr. Nunnelley testified, Dusan could not have performed the Concession Worker position in 2013 because she would not have been able to scoop ice cream, which was the core function of the position. As a Beverage Server, Dusan would be well outside of her limited bending instruction, and her limited English would disqualify her from being able to effectively handle guest complaints.

21. However, Dusan could perform the essential functions of the Barista position that were affected by her qualifications (guest communications, stocking shelves, and bussing tables) with or without an accommodation. The Barista position involved a more limited, vocation-specific and conversational vocabulary that would need to be learned on the job by any new employee, and Dusan could have been accommodated by having assistance with stocking the shelves with respect to the two items (chips and coffee) weighing over ten (10) pounds. Bussing tables falls within her restriction of limited bending, and although Dr. Nunnelley expressed concern about Dusan's ability to bus tables, he also concluded that the extent of Dusan's limitations might have best been determined based on a limited "…trial period to see what she could and couldn't do."

….

23. Although Smela and Belterra's TMR Counselor characterized the job search process as a collaborative search effort between HR and Dusan, Belterra's April 26, 2013 letter, Belterra's May 30, 2013 letter, Dusan's understanding, Smela's notes, and Belterra's own actions establish that Belterra placed the burden squarely on Dusan to find a new position. The sole assistance Belterra provided in the job search effort was a two-page list of positions open on...

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