Ondricko v. MGM Grand Detroit, LLC

• Decision Date: 08 August 2012
• Docket Number: No. 10–2133.,10–2133.
• Citation: 689 F.3d 642,115 Fair Empl.Prac.Cas. (BNA) 1300
• Parties: Kimberly C. ONDRICKO, Plaintiff–Appellant, v. MGM GRAND DETROIT, LLC, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

689 F.3d 642

115 Fair Empl.Prac.Cas. (BNA) 1300

Kimberly C. ONDRICKO, Plaintiff–Appellant,

v.MGM GRAND DETROIT, LLC, Defendant–Appellee.

No. 10–2133.

United States Court of Appeals, Sixth Circuit.

Aug. 8, 2012.

ON BRIEF:Gerald D. Wahl, Sterling Attorneys at Law, P.C., Farmington Hills, MI, for Appellant. Louis Theros, Regan K. Dahle, Butzel Long, Detroit, MI, for Appellee.

Before: KENNEDY, MARTIN, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

Plaintiff Kimberly Ondricko seeks reversal of the district court's grant of summary judgment in favor of Defendant MGM Grand Detroit, LLC in her suit for race and gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Michigan's Elliott–Larsen Civil Rights Act (“ELCRA”), M.C.L. § 37.2101 et seq. The district court found that Ondricko admitted the employment misconduct that resulted in her termination and that she had not shown disparate treatment of similarly situated comparators. For the following reasons, we REVERSE the judgment of the district court.

I. BACKGROUND

Kimberly Ondricko had been working in the gaming industry since 1994 and began working as a Casino Dealer–Trainee for MGM Grand Detroit (“MGM”) in September 2003. MGM promoted Ondricko first to a Dealer 1, then to a part-time Floor Supervisor, and lastly to a full-time Table Games Floor Supervisor in October 2005. As a Floor Supervisor, Ondricko was responsible for supervising the Dealers at as many as six gaming tables in an area referred to as a “Pit.” MGM argues it fired Ondricko because she participated in a “bad shuffle” at a blackjack table she was supervising. Some background is necessary to understand this argument. Dealers use two sets of different-colored playing cards at each blackjack table and before a Dealer puts any cards into play, they must be shuffled. The Dealer raises a “cut card” into the air to request that the Supervisor approve the shuffle. Upon approval, the Dealer gathers the cards on the table that have already been played (the “discards”) and places them in a shuffle machine.

The machine has two chambers: an empty chamber into which the Dealer places the discards and a chamber containing shuffled cards to be put into play. The Dealer presses a button on the shuffle machine, causing the empty chamber to elevate, then places the discards into the empty chamber and presses the button again, causing the chamber with the discards to lower and the chamber with the shuffled cards to rise. The Dealer removes the shuffled cards (which will always be a different color than the discarded cards) from the shuffle machine and puts those cards into play.

On April 27, 2008, Ondricko was the Floor Supervisor in a blackjack Pit where only one customer was playing at one table with Dealer Vivian Baran. Ondricko was standing next to Baran when it came time for Baran to shuffle. Baran gathered the discarded cards and Ondricko pressed the button on the shuffle machine to raise the empty chamber. Baran placed the discards into the empty chamber, but instead of pressing the button to lower that chamber and raise the chamber with the shuffled cards, Baran then removed the same unshuffled cards from the chamber and put them back into play. Ondricko testified that she was not aware Baran failed to press the button to lower the chamber with the discards and raise the chamber with the shuffled cards.

As Baran was putting the cards into play, Ondricko noticed the chamber door was still open. She asked Baran whether she was dealing the same cards, to which Baran said “no,” and then investigated whether the shuffle machine had malfunctioned. Ondricko's investigation occurred while Baran dealt hands for about ninety seconds, after which Ondricko told Baran to stop dealing. Ondricko immediately notified her superior, the Pit Manager, about the bad shuffle. Ondricko never left the blackjack table during this shuffle procedure. MGM suspended Ondricko pending investigation into the incident. On May 9, 2008, MGM terminated Ondricko based on its Rules of Conduct Policy Number 417, which states: “What in the business judgment of MGM Grand Detroit jeopardizes the efficiency or integrity of the gaming operation is prohibited.” MGM alleged Ondricko's conduct violated MGM's “Procedures for Dealing the Cards Using an Automatic Shuffle Devise,” which resulted in a violation of Policy 417.

At least six other Supervisors engaged in misconduct related to shuffle procedures. Only two were terminated. In January 2004, Yancy Yharbrough, a black male, was disciplined, but not terminated, for his failure to remove the “10” cards from playing decks during a game which required their omission. In late July 2008, Carl Barney, a black male, was also disciplined, but not terminated, for two shuffle procedure violations within two weeks, including playing un-cut decks and playing six decks where a game required eight. Gary Swick, a white male, was terminated in January 2009 after approving a shuffle at a blackjack table. Specifically, Swick approved this shuffle, the Dealer placed the discards in the empty shuffler chamber, and then Swick left the table to speak with the Pit Manager. When Swick returned, the Dealer removed the unshuffled cards from the chamber, instead of the newly shuffled cards, and dealt one hand. Another Floor Supervisor noticed the error and alerted Swick, who was still standing at the table, but had not been watching the shuffle, and Swick reported this to his Pit Manager. In contrast, in February 2009, Greg Hood, a white male, was given a five-day suspension for supervising tables where “washed” (not yet used, but unshuffled) cards were put into play.

The remaining two Supervisors engaged in shuffle-procedure misconduct in the months immediately before Ondricko was terminated and were directly addressed by MGM in relation to her termination. In December 2007, Nakeisha Boyd, a black female, was terminated after supervising a mini-baccarat game where the Dealer apparently had trouble removing cards from the shuffler. Boyd assisted the Dealer by removing unshuffled discards from the shuffler and giving those cards, instead of the shuffled cards, to the Dealer to put back into play. In contrast, Warren Black, a black male, was given a three-day suspension after approving a bad shuffle ¹ in October 2007 based on violations of the same policies MGM alleges Ondricko violated. After approving the shuffle, Black stepped away from the game table ² and the Dealer placed the discards into the empty shuffler chamber and then immediately removed the same cards. After a customer cut these cards, but before they were put into play, another Dealer arrived as relief. The new Dealer noticed the wrong cards were on the table and notified Black, who advised the Dealer to put the shuffled cards into play.

Around the time MGM decided to terminate Ondricko, but before she was notified of this decision, Tables Games Assistant Shift Manager Mike Hannon spoke to Mike O'Connor, Vice President of Operations, about Ondricko. Hannon asked O'Connor why Black was only given a three-day suspension, but Ondricko was to be terminated. In response, O'Connor asserted Black did not approve a bad shuffle, but Ondricko did. O'Connor also brought up Boyd, a black female, during the meeting, saying “her attorneys had already called and wanted to know what we were going to do about Kim.” O'Connor then said “do you think I wanted to fire Kim, I didn't want to fire Kim, how could I keep the white girl.”

On March 23, 2009, Ondricko filed this action against MGM alleging claims of gender and race discrimination in violation of Title VII and ELCRA. In 2010, MGM filed a Motion for Summary Judgment asserting Ondricko could not establish a prima facie case of race or gender discrimination based on circumstantial evidence or prove MGM's legitimate nondiscriminatory motive was pretext. Ondricko opposed this motion, asserting she presented direct evidence of race discrimination and circumstantial evidence of both race and gender discrimination under a mixed-motive standard. The district court held a hearing and granted MGM's motion from the bench, simply reasoning “that the plaintiff admitted the conduct that had gotten her fired, the bad shuffle, and nobody was treated differently whatsoever, or disparately, that she has called attention to.” No explanatory memorandum or order was entered. On appeal, Ondricko argues the district court improperly granted summary judgment to MGM because she presented direct and circumstantial evidence of discrimination and the court erred in failing to apply a mixed-motive analysis to her claims.

II. ANALYSIS

A. Standard of Review

This court reviews a district court's grant of summary judgment de novo. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.2009). Summary judgment is appropriate if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (2010). As the party seeking summary judgment, MGM bears the burden to show there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inference from the facts are jury functions, not those of a judge [.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All facts, including inferences, are viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is whether the evidence presents a sufficient disagreement to require submission of Ondricko's claims to a jury or whether the evidence is so one-sided that MGM must prevail as a matter of law. Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.

B. Title VII Claims

Title...