Gradek v. Horseshoe Cincinnati Mgmt., LLC
| Decision Date | 14 June 2017 |
| Docket Number | Case No. 1:16-cv-270 |
| Parties | Elizabeth Gradek, Plaintiff, v. Horseshoe Cincinnati Management, LLC, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Plaintiff in this action, Elizabeth Gradek, has filed a lawsuit alleging illegal disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and complementary Ohio law, Ohio Rev. Code § 4112.02. Gradek alleges counts for failure to accommodate and for disability discrimination under each statute. Defendant Horseshoe Cincinnati Management, LLC ("Horseshoe") has filed a Motion for Summary Judgment on all claims. (Doc. 17).
Having been fully briefed, the Motion is ripe for the Court's decision. For the reasons set forth below, the Court will DENY Defendant's Motion.
Horseshoe opened its Horseshoe Cincinnati Casino (the "Casino") on March 4, 2013. Gradek was hired as a Table Games Supervisor ("TGS") just prior to its opening on February 11, 2013. This position is part of the Table Games Department, which operates and staffs tablegames at the Casino, including blackjack, roulette, baccarat, craps, and various carnival games. The Table Games Department is comprised of a Director of Table Games, three Table Games Shift Managers, up to six Table Games Assistant Shift Managers, nearly one hundred TGSs, and hundreds of Table Game Dealers. Gradek was qualified to supervise every table game that the Casino offered.
The Casino, including this Department, is open twenty-four hours per day, seven days per week, and operates using three employee shifts. TGSs typically work an eight-hour shift, five days per week, with a thirty-minute break every two hours of work, though TGSs are sometimes required to work additional hours or days beyond their normal shift. During a given shift, a TGS is assigned a particular section and observes approximately four to six tables for suspicious activity. Craps is a particularly difficult game to supervise, because it is more complicated than other table games. There is a standing "floor person," responsible for supervising up to three craps tables per shift, and a "box" position, responsible for monitoring the two craps dealers on a particular table. Sitting "box" is the only defined TGS position that can be performed while seated.
A TGS may be assigned to a different table game each shift and is only made aware of their assigned table game upon reporting for her shift. In addition to the various table games, there is also a "relief string," which is a TGS position dedicated to covering the required thirty-minute breaks of other TGSs and that therefore may cover several different table games. Finally, some employees worked as a "Pencil," who is tasked with adjusting daily assignments based upon the Casino's needs.
In May 2014, Gradek suffered a knee injury that left her on crutches. While the crutches lasted only a few weeks, on May 28, 2014, her physician temporarily restricted her from standing for more than one hour without a thirty-minute break.2 Gradek then sought an accommodation and completed associated paperwork on May 30, 2014. Gradek's immediate supervisor was Assistant Shift Manager Chad Jenkins. He, with authorization from Director of Table Games Jay Bean, approved an approximately two-week accommodation beginning June 9, 2014 whereby Gradek would sit "box" or run "relief" on "boxes."
In late July 2014, the accommodation was still in place. Bean corresponded with Horseshoe Employee Relations Manager Chandra Deitmaring about the accommodation as updated. (See supra note 2.) Bean indicated to Deitmaring that a long-term accommodation was not possible, due to the difficulty in scheduling Gradek in positions allowing her to be seated the requisite amount of time for her condition and due to the fact that this would prohibit other TGSs from sharpening their craps skills.3 Nevertheless, Gradek was granted another temporary accommodation through August 28, 2014. When, according to her physician, Gradek's restrictions did not change, the Employee Relations Department notified Gradek on August 28, 2014 that she was being placed on a leave of absence. She remained on this leave of absence until her termination. By December of 2014, Gradek could not stand more than ten minutes at a time.
Horseshoe inquired with managers in other departments regarding prospective available positions. Gradek identified three positions for which she thought she may be qualified: Shuttle Bus Driver, Mousetrap Associate, and Casino Accounting Clerk. Horseshoe determined that Gradek was not qualified for the first two positions, but offered her the Accounting Clerk position. Gradek rejected the position,4 and Horseshoe terminated her employment by letter dated May 21, 2015.
Horseshoe argues that it fired Gradek, because she could not stand for two and a half to three hours, ambulate, or rotate among table games, and that these are "essential functions" to the TGS position. Gradek disputes these are "essential functions" of the TGS positions.
Although a grant of summary judgment is not a substitute for trial, it is appropriate "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). The process of evaluating a motion for summary judgment and the respective burdens it imposes upon the movant and the non-movant are well-settled. First, "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993). This burden may be satisfied, however, by the movant "pointing out to the court that the [non-moving party], having had sufficient opportunity for discovery, hasno evidence to support an essential element of his or her case." Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).
Faced with such a motion, the opposing party must submit evidence in support of any material element of the claim or defense at issue in the motion on which it would bear the burden of proof at trial. Celotex, 477 U.S. at 331-32. As "the requirement [of the Rule] is that there be no genuine issue of material fact," the Supreme Court has made clear that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). Ancillary factual disputes, those "that are irrelevant or unnecessary[,] will not be counted." Id. Furthermore, "[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Id. at 252. Instead, the opposing party must present "significant probative evidence" demonstrating that "there is [more than] some metaphysical doubt as to the material facts" to survive summary judgment and proceed to trial on the merits. Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993) (applying Anderson, 477 U.S. at 249-50; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
At this summary judgment stage, it is not the Court's role "to weigh the evidence and determine the truth of the matter but [rather] to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. In so doing, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962))). Adherence to this standard, however, does not permit the Court to assessthe credibility of witnesses. See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994) (citing Anderson, 477 U.S. at 255)).
The following elements comprise a prima facie case for failure to accommodate under the ADA:
(1) [the plaintiff] is disabled within the meaning of the ADA; (2) [the plaintiff] is otherwise qualified for the position, such that [the plaintiff] can perform the essential functions of the job with or without a reasonable accommodation; (3) the employer knew or had reason to know of his disability; (4) the employee requested an accommodation; and (5) the employer failed to provide a reasonable accommodation thereafter. Johnson v. Cleveland City Sch. Dist., 443 Fed.Appx. 974, 982-83 (6th Cir. 2011)[.]
Green v. BakeMark USA, LLC, No. 16-3141, 2017 WL 1147168, at *3 (6th Cir. Mar. 27, 2017) (internal quotations and citations omitted). Horseshoe does not deny that Gradek is disabled, that it knew of her disability, and that Gradek requested an accommodation. At issue between the parties are only elements two and five.
To demonstrate element two, Gradek must show (1) that she could perform the essential functions of the job without accommodation from the employer, (2) that the function she cannot perform is not an essential function, or (3) that she could have performed the essential functions of the job with a proposed reasonable accommodation. EEOC v. M.G.H. Family Health Ctr.,No. 1:15-cv-952, 2017 WL 410298, at *13 (W.D. Mich. Jan. 27, 2017) (internal citations omitted).
Gradek seeks to demonstrate the second of these:...
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