Yashenko v. Harrah's Nc Casino Company, LLC

• Decision Date: 20 January 2005
• Docket Number: No. CIV.2:03 CV 226.,CIV.2:03 CV 226.
• Citation: 352 F.Supp.2d 653
• Court: U.S. District Court — Western District of North Carolina
• Parties: Edward YASHENKO, Plaintiff, v. HARRAH'S NC CASINO COMPANY, LLC, Defendant.

352 F.Supp.2d 653

Edward YASHENKO, Plaintiff, v. HARRAH'S NC CASINO COMPANY, LLC, Defendant.

No. CIV.2:03 CV 226.

United States District Court, W.D. North Carolina, Bryson City Division.

January 20, 2005.

Michael G. Wimer, Arden, NC, for Plaintiff.

Karen M. Tyner, The Edwards Ballard Law Firm, Spartanburg, SC, for Defendant.

MEMORANDUM AND ORDER

THORNBURG, District Judge.

THIS MATTER is before the Court on the parties' cross motions for summary judgment and Plaintiff's motion to strike Defendant's amended answer to the first amended complaint.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant Harrah's North Carolina Casino Company, LLC ("Defendant" or "Harrah's") entered into a Management Agreement with The Eastern Band of Cherokee Indians in June 1996 to manage the Tribe's casino operation in Cherokee, North Carolina. See, Exhibit A, Management Agreement between Harrah's N.C. Casino Company and The Eastern Band of Cherokee Indians ["Management Agreement"], attached to, Plaintiff's Motion for Summary Judgment on Plaintiff's FMLA claims ["Plaintiff's FMLA Brief"], filed June 7, 2004.¹ Under the Agreement, Harrah's was granted the authority to hire individuals to staff the casino and who would be employed with the Tribal Casino Gaming Enterprise ("TCGE"), the casino management arm of the Tribe. Id., at § 4.6.3. In its capacity as an agent of the Tribe, Harrah's agreed to follow defined hiring preferences, which favored the "recruiting, training and employment [of] qualified members of the Tribe and their spouses and adult children in all job categories" of the TCGE at the casino.² Id., at § 4.6.6. Harrah's also had the authority to staff some positions at the new casino with its own employees. Id., at § 4.6.2. These Harrah's employees were considered "leased employees," in the sense that the TCGE would reimburse Harrah's for the salaries paid to these employees while they were working at the Cherokee Casino. Exhibit C of the Management Agreement, at § 2. Leased employees are also subject to the tribal hiring preferences before they are assigned to the Cherokee Casino. Defendant's Brief in Support of Motion for Summary Judgment on Plaintiff's Racial Discrimination Claims ["Defendant's Racial Discrimination Brief"], filed November 19, 2004, at 6.³

Plaintiff Edward Yashenko was first employed by Harrah's Entertainment, Defendant's parent company, at its facility in Shreveport, Louisiana, in 1994. Defendant's Memorandum in Support of Motion for Summary Judgment on Plaintiff's FMLA Claims ["Defendant's FMLA Brief"], filed June 7, 2004, at 2. Yashenko received a transfer in 1997 to the Harrah's Cherokee, North Carolina, casino under the employment of the Defendant, and thus became a "leased employee" under the Management Agreement. Id. In 1999, Yashenko applied for and was awarded a promotion to the position of Employee Relations Manager at the Cherokee Casino. Id.

While employed with Defendant, Yashenko was granted numerous medical leaves of absence, many of which were designated as protected leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. Id., at 3. In December 2000 to February 2001, Yashenko missed almost 2 months for back surgery. Id. Yashenko missed an additional period of almost four months from May 1, 2001, to August 23, 2001, for problems associated with the back surgery. Id. Part of this four-month medical leave was designated as FMLA leave. Id., at 3-4. Yashenko took additional FMLA leave in March and April 2002; and even though by the end of April 2002 he had exhausted all his available FMLA leave, Defendant granted him a medical leave of absence on May 1, 2002, through August 12, 2002. Id., at 4-5. After returning from each of the extended medical leave absences, Yashenko was restored to his prior position with the same pay, benefits, and responsibilities. Id., at 5.

In May 2003, Plaintiff requested and was granted 12 weeks of FMLA leave to expire on July 21, 2003, for a serious health condition. Plaintiff's FMLA Brief, at 3; Defendant's FMLA Brief, supra. On June 3, 2003, while Plaintiff was on FMLA leave, the TCGE board of advisors approved a decision to eliminate Yashenko's position of Employee Relations Manager, a Harrah's "leased employee" position, along with the position of Employment Manager, a TCGE position, and create a new position of Employment/Employee Relations Manager. Plaintiff's FMLA Brief, at 4; Defendant's FMLA Brief, at 5-6. The person hired for this position would be employed under the TCGE and not Harrah's, and would have substantially similar responsibilities as the two positions eliminated. Defendant's FMLA Brief, at 6.

Defendant notified the Plaintiff, who was at that time on FMLA leave, and Doris Johnson, the Employment Manager, and informed them that their positions were being eliminated and that they could apply for the new position of Employment/Employee Relations Manager. Id., at 9. Plaintiff did not apply for the new position and it was awarded to Johnson. Id., at 12. Because the tribal hiring preferences policy would be applied to all applicants for the position, and because Johnson is an enrolled member of the Tribe, Johnson would have received the position over Plaintiff even if he had applied. Plaintiff's FMLA Brief, at 4; Defendant's FMLA Brief, at 12-13. When Plaintiff returned from his FMLA leave on July 21, 2003, and had failed to apply for any new positions with Defendant or the TCGE, his employment with Defendant was terminated. Defendant's FMLA Brief, at 13.

Plaintiff filed suit against Defendant in state court in Jackson County, North Carolina, for violations of the FMLA. The case was removed to this Court by Defendant on September 9, 2003. Plaintiff alleges two violations under the FMLA: the Defendant interfered with the exercise of his rights protected under the FMLA, and the Defendant retaliated against him for exercising his protected rights under the FMLA. Both Plaintiff and Defendant filed for summary judgment on the FMLA claims on June 7, 2003. Each party duly filed responses and replies thereto. On September 23, 2003, the Court granted Plaintiff's motion to file an amended complaint which added two additional claims alleging wrongful discharge in violation of North Carolina public policy and a violations of 42 U.S.C. § 1981. Both parties have since filed and fully briefed opposing motions for summary judgment as to Plaintiff's racial discrimination claims as well. Plaintiff also filed a motion to strike Defendant's amended answer to Plaintiff's first amended complaint on the grounds that it was untimely filed; Defendant has responded to that motion as well.

II. SUMMARY JUDGMENT STANDARD OF REVIEW

The Court should grant a motion for summary judgment where there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue of material fact exists where there is evidence such that a reasonable jury could find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of [his] pleadings," but instead must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003). When considering opposing motions for summary judgment, the Court must consider each motion "separately on its own merits ... [and] the court must take care to `resolve all factual disputes and any competing, rational inferences in the light most favorable' to the party opposing that motion." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.), cert. denied, 540 U.S. 822, 124 S.Ct. 135, 157 L.Ed.2d 41 (2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996)).

III. PLAINTIFF'S FMLA CLAIMS

A. Plaintiff's Interference Claim

The FMLA states that,

any eligible employee who takes leave under [the FMLA] ... shall be entitled, on return from such leave — (A) to be restored by the employer to the position of employment held by the employee when the leave commenced, or, (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

29 U.S.C. § 2614(a)(1)(A). While some courts interpreting this provision of the FMLA statute have held that the statute confers an absolute right of restoration following protected leave, see, e.g., Williams v. Shenango, Inc., 986 F.Supp. 309, 316-318 (W.D.Pa.1997), other courts, including two of our sister courts in this Circuit, have held that an employer may avoid liability for failing to restore the employment of an employee following protected leave by showing the employee would have been discharged even if the employee had not taken the leave. See O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1354 (11th Cir.2000); Blankenship v. Buchanan Gen. Hosp., 140 F.Supp.2d 668, 673 (W.D.Va.2001); Leary v. Hobet Mining, Inc., 981 F.Supp. 452, 455 (S.D.W.Va.1997). The Fourth Circuit has not decided the question of whether this strict liability regime should be applied to an employee's right of restoration under the FMLA. This Court sides with those courts' rulings that the right to restoration following protected leave is not absolute under the FMLA. The Court finds this interpretation is the only interpretation consistent with the Act's provision that an employer is not required to grant an employee on FMLA leave "any right, benefit, or position of employment other than the right, benefit, or position to which the employee would have been entitled to had [he] never taken leave." 29 U.S.C. § 2614(a)(3)(B); see also, Blankenship, 140 F.Supp.2d at 673 ("[The Court] believe[s] to hold otherwise would grant employees who qualify for FMLA leave greater rights than...