Taliaferro v. Trump Entm't Resorts, Inc.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Decision Date11 December 2013
Docket NumberCivil No. 12-3883 (JBS/AMD)
PartiesARLINE TALIAFERRO, Plaintiff, v. TRUMP ENTERTAINMENT RESORTS, INC., d/b/a Trump Plaza Hotel & Casino, et al., Defendants.

HON. JEROME B. SIMANDLE

OPINION

Appearances:

William B. Hildebrand, Esq.

LAW OFFICES OF WILLIAM B. HILDEBRAND, LLC

Attorney for Plaintiff

Mary Beth Clark, Esq.

Jenna M. Cook, Esq.

John M. Donnelly, Esq.

LEVIN, STALLER, SKLAR, CHAN & DONNELLY, PA

Attorney for Defendants

SIMANDLE, Chief Judge:

I. Introduction

Plaintiff Arline Taliaferro, a casino dealer at the Trump Plaza Hotel & Casino in Atlantic City, N.J., permanently injured her right hand and wrist, underwent surgery and took a leave of absence of morethan a year. When she returned to work, in 2010, she could deal only certain games. Two and half years after the accident, and a year after returning to work, Plaintiff was terminated.

Plaintiff claims she was fired because of her disability in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. § 10:5-12, et seq. ("Count I"), and she also brings a claim under the Employee Retirement Income Security Act ("ERISA"), as amended by COBRA, 29 U.S.C. § 1161, alleging she was never given COBRA notice of her right to continue health coverage ("Count II"). Defendants Trump Entertainment Resorts, Inc., Trump Plaza Associates, LLC, and the Plan Administrator for the Trump Plaza Hotel & Casino Group Medical Plan argue that Plaintiff was disabled and no longer could perform her job, and after Defendants tried to accommodate her by reassigning her within the company, she was terminated for missing scheduled work. Defendants also maintain that her health care coverage was terminated for non-payment of premiums prior to her termination, and thus she was not entitled to COBRA notice. Defendants add that estoppel bars Plaintiff from claiming that she was qualified to perform the essential duties of her job, based on representations she made to the Social Security Administration ("SSA") in her successful application for Social Security Disability Insurance benefits ("SSDI").

Before the Court are cross-motions for partial summary judgmenton the LAD claim [Docket Items 65 & 91], and Defendants' motion for summary judgment on the COBRA claim [Docket Item 121]. The key questions for the Court are whether Plaintiff adequately harmonizes the seemingly inconsistent representations she has made to the SSA and this Court about her ability to perform the essential duties of her job, and whether there is a dispute of material fact relevant to the legal inquiry of whether Plaintiff's employer-employee relationship was terminated in March 2011 or whether she was placed on reassignment due to her disability.

For the reasons explained below, the Court finds that Plaintiff has not adequately explained her inconsistent statements to the SSA and this Court, and thus she is barred from claiming she was qualified to perform her job under the LAD at the time of the onset date for her SSA disability. The Court further holds that the undisputed facts establish that Plaintiff was placed on reassignment and was not terminated due to her disability in March 2011, and therefore her non-payment of health insurance premiums predated her termination, eliminating Plaintiff's COBRA claim for statutory damages. The Court will grant Defendants' cross-motion for partial summary judgment on Count I and motion for summary judgment on Count II.

II. Background

A. Facts
i. Employment and medical treatment

In October 2008, Plaintiff Arline Taliaferro was working as a casino dealer at the Trump Plaza in Atlantic City, N.J., when a chair she was sitting on collapsed, causing injury to her right hand and wrist. (Statement of Undisputed Material Facts ("SMF") [Docket Item 65] ¶¶ 1-2.)1 Plaintiff, who is right-handed, requested her duties be modified as a result of her injuries, and she was assigned to perform light duty in the transportation department. (Id. ¶¶ 3, 8.) In December 2008, Plaintiff had surgery on her hand or wrist and took a leave of absence until March 10, 2010. (Id. ¶¶ 4-5; Def. SMF ¶ 7.) Plaintiff ultimately was diagnosed with, or exhibited symptoms of, reflex sympathetic dystrophy ("RSD").2 (Def. SMF ¶ 44.)

When Plaintiff returned to work, she sought to limit the games she was required to deal.3 (SMF ¶ 7.) In May 2010, Plaintiff providedher employer with a note from her doctor's office4 stating that Plaintiff could not perform any movements other than those involved in dealing three-card poker and blackjack. (Id. ¶ 9.) Specifically, Plaintiff testified that she could not deal roulette or other "carnival" games that involved tiles, small chips or quarters, which were difficult for her to manipulate, but that she could deal poker and blackjack. (Taliaferro Dep. at 58:20-60:23.) Plaintiff's supervisor informally accommodated her limitations by permitting her to switch assignments if she were assigned to a game she could not deal. (Id. ¶ 11; Def. Responsive Statement of Undisputed Material Facts ("Def. RSMF") ¶ 13; Def. SMF ¶¶ 26-27.) Plaintiff was permitted to deal blackjack or poker but not other games. (Def. SMF ¶ 32.) On occasion, if there were no games for Plaintiff to deal, she would be sent home. (Def. SMF ¶ 26.) Other times, Plaintiff "couldn't deal," so she would cede her day "to a part-timer just to deal as less as I could and try to keep my insurance and benefits paid." (Def. SMF ¶ 33; Taliaferro Dep. at 66:16-19.) After some time, human resources officially reviewed Plaintiff's requests for accommodations. (Def. SMF ¶ 29.) Plaintiff admits that Defendants accommodated her untilMarch 2011. (Def. SMF ¶ 30.)

The parties disagree whether Plaintiff's condition worsened between May 2010 and March 2011. Plaintiff testified that her ability to deal did not change during that period. (Taliaferro Dep. at 60:24-61:3.) Defendants point to letters from Dr. John Park of South Jersey Spine & Pain Physicians, the doctor provided by Defendants' workers' compensation carrier, which arguably indicate Plaintiff's deterioration. (Def. RSMF ¶ 16.) On January 15, 2011, Plaintiff received a performance evaluation, which stated that she was performing at a satisfactory level. (SMF ¶ 14; Ex. E to Pl. Ex C.)

On November 22, 2010, Dr. Park evaluated Plaintiff and wrote that "she is having a hard time at work. Patient reports that she is able to continue to work on black[jack] table and 3 card poker table. . . . She can pick up chips but cannot pick up Dollar coins." (Pl. Ex. I.) Plaintiff had asked Dr. Park to write a letter for her stating she could not work certain games, but he felt conflicted.

I think her request makes some sense. Given her pain, she has [an] easier time picking up the larger chips than the smaller coins. On the other hand, I do not know enough about her jobs. I do not have intimate knowledge of exactly what a dealer has to do for each game.

(Id.) Dr. Park suggested that Plaintiff provide him with a job description for each game, at which time he would evaluate "whether she can do certain duties in the job descriptions." (Id.)

On January 21, 2011, Claudia Weinberg, Defendants' workers'compensation insurance adjuster, wrote to Dr. Park, attaching the ADA Job Description for a casino dealer. (Def. Ex. 31.) The "essential job duties" are listed as

1. Responsible for dealing assigned game in accordance with CCC regulations and procedures.

2. May perform duties as stickperson when required.

3. Promotes positive guests regulations using cordial conversation as related to assigned games.

4. Performs other related duties as assigned.

(Def. Ex. 31.) Essential physical functions include "finger dexterity" and "full use of both hands." (Id.) The description did not distinguish the demands of dealing one game versus another.

On February 7, 2011, Dr. Park responded to Ms. Weinberg:

As far as [Plaintiff's] job is concerned, I am not sure that she is able to continue to work as a dealer.

I believe her right upper extremity is essentially useless in terms of any employment is concerned. She has a lot of pain and limitations regarding her right upper extremity. I believe she is able to use her right upper extremity to some degree but cannot perform any job duties that require dexterity and ongoing use of the right upper extremity.

The patient had certain opinions about what type of games she can deal. As I stated to you in the past, I do not know enough about casinos and gambling to provide a medical opinion as to what type of games she can deal. So far, I have not received any information about what a dealer has to do in one particular games [sic] as compared to another.

(Pl. Ex. I.)5

On March 7, 2011, Dr. Park examined Plaintiff again. In his notes, he repeated opinions about the functionality of her right upper extremity, her dexterity, and pain and added:

The patient had been asking that her employment provide her with flexibility in choosing the games that she feels comfortable dealing. I don't think this will likely happen. In the end, I think it is reasonable to conclude that she cannot continue to work as a dealer. I suggested that she look for a new employment that does not require dexterity of the right upper extremity.

(Def. Ex. 10 [Docket Item 91-5].) Three days later, Dr. Park sent another letter to Defendants in response to a request about confirming Plaintiff's work status. He stated:

I had written a letter to Ms. Claudia Weinberg on February 7, 2011 expressing my opinion. In addition, I have also discussed my opinion regarding the work status in my dictation on March 7, 2011. My opinion regarding the work status has not changed.
I don't think she is able to work as a dealer given her present symptoms. I don't think she is totally disabled. I think she is able to work in a sedentary type of a job that does not involve use of right upper extremity except for occasional use. There is no limitation in terms of use of the left
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