Erickson v. Penn National Gaming, Inc

CourtDistrict Court, M.D. Louisiana
DecidedMarch 25, 2021
Docket3:19-cv-00451
StatusUnknown

This text of Erickson v. Penn National Gaming, Inc (Erickson v. Penn National Gaming, Inc) is published on Counsel Stack Legal Research, covering District Court, M.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erickson v. Penn National Gaming, Inc, (M.D. La. 2021).

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

VICTORIA ERICKSON CIVIL ACTION VERSUS PENN NATIONAL GAMING, INC. NO, 19-00451-BAJ-EWD

RULING AND ORDER Before the Court is Defendant’s Motion for Summary Judgment (Doc. 40). The Motion is opposed. (Doc. 43). Defendant filed a Reply. (Doc. 44). Plaintiff filed a sur-reply in opposition. (Doc. 50). For the reasons stated below, Defendant’s Motion is GRANTED. I. BACKGROUND Plaintiff worked as a dealer and supervisor in the Table Games Department for Defendant from November 2014 to July 2018. (Doc. 40-5, at § 1). Beginning in January 2016, Plaintiff began to request intermittent leave under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seg. (“FMLA”) due to “her own serious health conditions and complications with fibromyalgia.” (Ud. at 7 3). Plaintiff was initially approved for FMLA intermittent leave in 2016. (Doc. 48, p. 5). As a condition of continuing to receive FMLA leave, she was required to recertify her eligibility for leave every six months. (Doc. 40-1, p. 3). The final time Plaintiff attempted to recertify her eligibility, Defendant ordered her to submit to a medical examination by a physician at Prime Occupational

Medicine for a second opinion. (Doe. 40-1, p. 4). The physician did not object to the recertification of Plaintiffs leave, but recommended that she complete a “return to work evaluation” when she returned from her intermittent leave because the physician was concerned “that the medications [Plaintiff] was using could impair her ability to safely perform her job.” Ud.), On January 17, 2018, Plaintiffs supervisor notified Plaintiff that she was once again eligible for intermittent FMLA leave from January 17, 2018 to July 17, 2018. (Doc. 40-2, p. 77). However, this time Defendant wrote “YOU ARE REQUIRED TO GO TO PRIME OCCUPATIONAL EVERYTIME [sic] YOU USE FMLA INTERMITTENT.” (d.). Plaintiff contacted counsel and was informed that this requirement was unlawful. (Doc. 25, at { 9). Plaintiff alleges that she discussed the requirement with Defendant's Human Resources Department on February 19, 2018 (Doc. 43-1, at § 14). (Doc. 50, p. 2). Thereafter, Plaintiff was suspended on February 21, 2018. (d.). Counsel for Plaintiff responded by sending a letter to Defendant on February 23, 2018 informing it that Plaintiffs suspension (referred to as a termination) as well as the placement of “unlawful interference requirements on her FMLA intermittent leave. .. are likely direct violations of the interference and anti-retaliation provisions of the FMLA.” (Doc. 43-5, p. 2), Plaintiff was called to work on February 28, 2018. (Doc. 50, p. 2}. On March 9, 2018, Plaintiff was informed “that there was an error” on her FMLA certification form and Defendant removed the requirement. (Doc. 43-6). Following this communication, Plaintiff was never required to return to Prime Occupational. (Doc. 40-1, p. 5).

Plaintiff brought this action alleging interference with her rights under the FMLA and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ADA”). (Doe, 25, at | 1). Specifically, Plaintiff argues that her February 21, 2018 suspension was in retaliation for and as a result of her conversation with Human Resources two days prior and, as such, constitutes unlawful interference with her FMLA rights in violation of 29 U.S.C. § 2615(a)(1), unlawful retaliation in violation of 29 U.S.C. § 2615(a)(2), as well as an adverse employment decision based on her disability in violation of 42 U.S.C. § 12112(a). See (Doc. 25). Defendant asserts that Plaintiffs suspension was not based on her disability or attempts to assert her rights under the FMLA, but rather because Plaintiff violated company policy the week prior. (Dec. 44, p. 2). Plaintiff was “written up” on February 14, 2018 “for her inappropriate dealings with customer wagers at a blackjack table, failing to immediately notify security of the mistake, and prematurely collecting wagers at the blackjack table” in violation of company policy. (Doc. 40-1, p. 6). Defendant suspended Plaintiff one week later, on February 21, 2018, allegedly to “preserve the integrity of the investigation as well as the parties involved.” (Doc. 40-2, p. 32). Plaintiff argues that this was pretextual, as the suspension was only two days after she met with Human Resources. (Doc. 50, p. 4). Defendant now moves for summary judgment. TI, LEGAL STANDARD Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” FEp. R. Civ. P. 56(a). A party asserting that a fact cannot be

genuinely disputed must support the assertion by citing materials in the record, including “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, [and] interrogatory answers” or that an adverse party cannot produce admissible evidence to support the presence of a genuine dispute. See FED. R. □□□□□ P. 56(c)(1). “[W]hen a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotation marks and footnote omitted). “This burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air Corp., 37 F.8d 1069, 1075 {5th Cir. 1994) (quotation marks and citations omitted). In determining whether the movant is entitled to summary judgment, the Court “view[s] facts in the light most favorable to the non-movant and draw[s] all reasonable inferences in her favor.” Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). ill. ANALYSIS A. FMLA Claims i, Interference To prove an interference claim under the FMLA, “a plaintiff ‘must at least show that [defendant] interfered with, restrained, or denied [her] exercise or attempt to exercise FMLA rights, and that the violation prejudiced [her].” Acker v. General Motors, L.L.C., 853 F.8d 784, 788 (th Cir. 2017) (citing Bryant v. Tex. Dep’t of Aging

& Disability Servs., 781 F.3d 764, 770 (5th Cir. 2015)). Interference “includes not only refusing to authorize FMLA leave but also discouraging an employee from using such leave.” Park v. Direct Energy GP, £.£.C., 832 Fed. Appx. 288, 290 (5th Cir. 2020) (citation omitted) (unpublished). “An interference claim merely requires proof that the employer denied the employee his entitlements under the FMLA.” Jd. (citing Stallings v. Hussman Corp., 447 F.3d 1041, 1051 (8th Cir. 2006)).

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Erickson v. Penn National Gaming, Inc, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erickson-v-penn-national-gaming-inc-lamd-2021.