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Demarce v. Robinson Property Group Corporation

United States District Court, Fifth Circuit

December 12, 2013



SHARION AYCOCK, District Judge.

Presently before the Court are Defendant's Motion for Summary Judgment [54], Defendant's Unopposed Motion for Leave to File Excess Pages [62][1], Defendant's Motion to Strike [63], and Plaintiff's Motion to Amend or Correct [66]. After reviewing the motions, responses, and applicable legal authority, the Court finds that summary judgment is appropriate.


Plaintiff Yvonne Demarce began employment with the Robinson Property Group in July of 2000 as a dealer at the Horseshoe Casino located in Tunica, Mississippi. Throughout her employment with Defendant, Plaintiff received warnings for excessive absences on several occasions. During the pertinent time period, Horseshoe's attendance policy was based on a ten point system whereby employees received points for a number of activities, including work absences, arriving to work late, or leaving early. Under the attendance system, employees who desired to be the first to leave on a particular day could sign the early out (EO) list. Thus, if business slowed, they would be the first sent home. If, however, an employee failed to sign the list, but nonetheless left work early, the employee would be given a point for circumventing, or bypassing, the EO list. Demarce received warnings based on her attendance patterns in 2001, 2002, 2003, 2004, 2005, 2006, 2007, and 2010.

In 2008, Demarce began to complain to management about the difficulty of performing her job due to back pain. According to Demarce, who suffers from osteoarthritis, she eventually informed her supervisor, "because of my arthritis and that getting so bad, it's pushing on my sciatic nerve which is making my knees and hips go numb and give out on me standing and at times I would even get dizzy." Demarce therefore asked Renee Suhr, who was in charge of assigning dealers to specific tables, if she could work a sit-down table. Suhr informed Demarce that she would have to return with a note from a healthcare provider.

In May of 2008, Demarce was approved for intermittent or non-continuous FMLA leave from May 28, 2008 to May 28, 2009, due to her arthritis and COPD. In July of 2008, Demarce was informed that her FMLA leave had been erroneously granted since she had not worked the required 1250 hours in the previous twelve months. Demarce's hourly requirement was calculated on a rolling calendar basis. On May 21, 2009, Demarce again requested FMLA leave but was denied because she again failed to meet the minimal hourly requirements. She then applied for intermittent FMLA leave for a third time on July 31 2009. On August 6, 2009, Robinson approved that request for leave until July 6, 2010.

Demarce began a regimen of physical therapy, but failed to achieve any improvement in her arthritic condition. On October 16, 2009, Demarce returned with a note from her healthcare provider indicating that she could no longer stand while working due to her osteoarthritis. Lisa Kinard, the leave of absence administrator, requested additional information from Demarce's healthcare provider but reassigned her to sit-down work while the request was pending. The Casino had four sit-down games: a blackjack derivative game called "21 plus 3, " three card poker, and two mini baccarat tables. At the time, Plaintiff knew how to deal "21 plus 3" and three card poker. Demarce, who had initially dealt blackjack, was assigned to deal at the "21 plus 3" table.

On October 23, 2009, Dr. James Varner filled out the request for supplemental clarification and returned it to Horseshoe, indicating that Demarce needed an accommodation for two to four weeks. On November 11, 2009, Kinard requested additional information regarding Demarce's need for accommodation. On January 22, 2010, Varner responded to the request, stating that Demarce could only perform seated work and that the limitation would span an indefinite period of time. That note, however, also indicated that she could not perform standing work beyond eight hours. Viewing the limitations as inconsistent, Kinard requested clarification. Varner then sent another note with the prolonged standing limitation eliminated.

On February 17, 2010, Defendant approved Plaintiff's request for an indefinite accommodation. According to that letter, Demarce was "approved for sit down' games only." However, the letter further articulated that "[w]hen the sit down' game has closed, you will have to leave under FMLA or take a regular stand up' game." Further, it reiterated that "[y]our FMLA EO's will count against your available FMLA." (emphasis in original). The parties proceeded under the agreement for several months without incident. On July 9, 2010, Plaintiff again requested FMLA intermittent leave for her own health. At the time, Plaintiff was not an eligible employee under the FMLA, and her request was therefore denied.

Additionally, because Plaintiff's "21 plus 3" table was located in Pit 4 of the Casino, it was regularly closed when business slowed. Accordingly, Plaintiff began to both work fewer hours and accumulate points for circumventing the EO list. According to Plaintiff, she did not want to sign the EO list for fear of not being able to work sufficient hours to qualify for FMLA leave. On the other hand, she could not work a stand up game following the closure of her sitdown table and did not want to accumulate points for circumventing the EO list. Plaintiff discussed the possibility of learning to deal mini-baccarat, which was located in a continuously operated pit, but never became qualified to do so. On July 8, 2011, Plaintiff was terminated for accruing 10.5 attendance points in the preceding twelve month period. Of those, 8 points were accrued for calling out from work, while 2.5 were related to circumventing the EO list.

Plaintiff subsequently filed the present action, alleging intentional discrimination under the Americans with Disabilities Act (ADA), failure to accommodate under the ADA, FMLA interference, and FMLA retaliation. Defendant seeks summary judgment as to all of Plaintiff's claims.


Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when the evidence reveals both that there is no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party moving for summary judgment "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." Id. at 323, 106 S.Ct. 2548. The nonmoving party must then "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the Court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash. , 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile , 10 F.3d 1093, 1097 (5th Cir. 1997); Little , 37 F.3d at 1075.


Disability Discrimination

The ADA prohibits discrimination on the basis of an employee's disability. Under the ADA, it is unlawful for an employer to "discriminate against a qualified individual on the basis of disability in regard to job application procedures... discharge of employees, ... and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To sustain a claim for disability discrimination, a plaintiff must establish that she: (1) has a disability; (2) is qualified for the position in which she was employed; and (3) was discriminated against because of her disability. Griffin v. UPS , 661 F.3d 216, 222 (5th Cir. 2011); Jenkins v. Cleco Power , 487 F.3d 309, 315 (5th Cir. 2007).

Where, as here, the plaintiff produces no direct evidence of discrimination, but instead relies on circumstantial evidence to sustain her case, the Court applies the familiar McDonnell Douglas burden-shifting framework to determine whether she can meet such a standard. Daigle v. Liberty Life Ins. Co. , 70 F.3d 394, 396 (5th Cir. 1995). Under that analysis, the plaintiff must show that she: "1) suffers from a disability; 2) was qualified for the job; 3) was subject to an adverse employment action; and 4) was replaced by a non-disabled person or was treated less favorably than non-disabled employees." Owens v. Calhoun Co. Sch. Dist., ___ F.Appx. ___, 2013 WL 5530578, *2 (5th Cir. Oct. 8, 2013) (citing Daigle , 70 F.3d at 396)). If the plaintiff successfully establishes such a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. McInnis v. Alamo Cmty. Coll. Dist. , 207 F.3d 276, 279 (5th Cir. 2000). If the employer is able to do so, the burden then shifts back to the plaintiff to show that the proffered reason was merely pretext. Id.

In the case at hand, Defendant challenges only the second and fourth prongs of Demarce's prima facie case. That is, Robinson contests Demarce's ability to establish that she was a qualified individual and that she was replaced by a non-disabled person or was treated less favorably than non-disabled employees.

"[Under the ADA, ] it is the employee's burden to prove that he is a qualified individual with a disability...." Rizzo v. Children's World Learning Ctrs., Inc. , 213 F.3d 209, 218 (5th Cir. 2000). A "qualified individual" is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). A plaintiff must show either that "(1) she could perform the essential functions of the job in spite of her disability, or (2) that a reasonable accommodation of her disability would have enabled her to perform the essential functions of the job." Burch v. City of Nacogdoches , 174 F.3d 615, 619 (5th Cir. 1999); see Appel v. ...

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