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MORENO v. GRAND VICTORIA CASINO
March 3, 2000
LAURIE MORENO, PLAINTIFF,
GRAND VICTORIA CASINO, DEFENDANT.
The opinion of the court was delivered by: Moran, Senior District Judge.
Plaintiff Laurie Moreno (Moreno) sues her former employer,
Grand Victoria Casino (Grand Victoria), for negligence and
unseaworthiness under the Jones Act, 46 U.S.C.App. § 688 et
seq., and general maritime law, and for retaliatory discharge in
violation of general maritime law and the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. On September 2,
1998, we awarded plaintiff retroactive maintenance and cure for
the knee injury she sustained while refilling a slot machine in
defendant's river boat casino. Defendant Grand Victoria now moves
for summary judgment pursuant to Federal Rule of Civil Procedure
56(c) on all remaining claims. Because we find that there are
material facts which remain in dispute, that motion is denied.
Defendant Elgin River Boat Resort-River Boat Casino (d/b/a
Grand Victoria Casino) operates a gaming casino aboard the vessel
M/V Grand Victoria on the Fox River in Elgin, Illinois. Plaintiff
began working for Grand Victoria in September 1994 as a "slot
floor person." As such, her duties included customer service,
paying jackpots, minor service on the slot machines, and
performing "hopper fills."
Because plaintiff was injured during a hopper fill and
allegedly reinjured during a "secondary hopper fill" it is worth
describing these procedures. When a slot machine has no more
coins in its hopper, the machine will flash a code in its window
indicating that a hopper fill is necessary. Grand Victoria
procedure requires the slot floor person on duty to first open
the machine door with the appropriate key to confirm that the
hopper is empty and to make an appropriate entry in a log book.
The employee then places his or her name tag on the machine to
alert other employees that the "problem" with the machine is
being addressed. After closing the machine, the employee proceeds
to a coin booth for the appropriate change. Upon returning to the
machine with a sealed bag of money, the employee reopens the
machine, makes another entry in the log book, and then radios the
security and surveillance departments (on separate channels) to
identify the machine number and report that a hopper fill is
about to be performed. The employee then cuts open the bag and
waits for the security guard to arrive before filling the hopper.
Company policy requires that a security guard actually witness
the employee pouring the coins into the machine. For a two-week
period, April 17-May 1, 1995, Grand Victoria tested a new
procedure whereby a guard would accompany the slot floor person
from the coin booth to the machine for the hopper fill. According
to the assignment memo, the new procedure was designed to
expedite hopper fills, decrease waiting time, and to eliminate
radio traffic on the security channel.
On May 9, 1995, Moreno was "flagged down" by a female patron
after her slot machine had run out of coins during a payout.
Moreno observed the appropriate code flashing and asked the
patron if she could examine the machine to confirm that it was
out of money. The patron initially refused, and plaintiff
explained that it was not her intention to "fix the machine so it
would stop paying out jackpots" but rather that she could not pay
out the money won by the patron unless she refilled the machine.
The patron acquiesced and moved away from the machine so that
Moreno could open the door. Moreno then followed company
procedure and upon returning to the machine with the required
coins, noted that the patron was playing the "wild cherry" game
two machines down the aisle. Plaintiff reopened the machine, made
the entry in the log book, and called security to ask that a
guard meet her at the machine so she could complete the fill.
The parties quibble over the subtleties of what happened next
but both rely on Moreno's deposition testimony. According to her
deposition, as Moreno stood with the bag of dollar coins ready to
pour, "the patron notices that I'm back in the machine and she
lunges from here to the door (indicating) and slams it on me and
tells me to get out" (Moreno dep. at 79). Later, Moreno described
the woman as "crazed," "that she went bananas," or was a "little
schizo." Moreno testified that "[s]he pushed the door on me" with
considerable force (id. at 80, 82), though plaintiff now
suggests that the patron may not have deliberately hit her with
the door. In any case, the impact caused Moreno to cut her arm on
the door latch and caused her body to twist such that the inside
of her right knee hit the coin tray on the bottom of the machine.
Moreno contends that she would not have been injured if the doors
on the upright slot machines were fitted with the same sort of
damper that exists on the slant top machines.
Following her injury, Moreno was sent by defendant to Sherman
Benefit Manager. The examining physician, Dr. Powers, recommended
restricted work, including "mostly sitting work," and referred
Moreno to Dr. Michael Berkson. On August 3, 1995, Dr. Berkson
examined Moreno and filled out an extensive progress report. He
noted intermittent knee symptoms, "where something feels like it
goes out of place, her knee locks and has pain." After the
episodes, he reported, "It then improves over the next several
days and near normal. . . . She has had several episodes of
collapsing." The report speculated that Moreno had a "torn medial
meniscus" in her right knee, but advised an MRI to aid diagnosis
and recommended continued observation before any arthroscopic
procedure. Dr. Berkson notified defendant of his opinion and
recommendations. See Exhibits to Affidavit of Sharon McGill
(McGill), human resources manager, defendant's 12(m) statement,
tab D. A prescription written that same day by Dr. Berkson
indicates: "This patient may return to work on Sunday 8/6. No
work restriction needed." Moreno was given an injection of
cortisone for her pain.
In August 1996, assistant slot manager John-Martin Meyer
(Meyer) was promoted to manager of the slot department. On
September 2, Moreno was promoted to slot shift manager. A week
and-a-half later, Meyer issued an inter-office memorandum
advising that slot floor people would be required to do secondary
hopper fills on the slot machines. Several slot floor people
complained to plaintiff and other supervisors that doing the
secondary hopper fills was too hard because of the strain the
task placed on their legs, backs, and arms. They also complained
about getting burned with cigarettes from patrons who were gaming
in the area, getting hit with machine doors while attempting to
fill the secondary hopper, and patrons stepping on their hands
while performing this procedure (Moreno dep. at 110). Meyer was
aware of these complaints and, in order to determine whether
there was cause for complaint, issued an order at the October 9,
1996, department meeting requiring all managers to perform at
least twelve secondary hopper fills by October 14, Moreno was
concerned about performing these secondary fills because of her
knee. She had already begun efforts to schedule her arthroscopic
procedure. She reportedly informed shift managers Dixie Winter
and Bill Green, and slot manager Dean Bridge that she could not
safely perform this task.
According to Moreno, she also went to Meyer's office to inform
him that she could not safely perform the secondary hopper fills.
Meyer allegedly responded that "everybody is going to do them,
and that includes you" (Moreno dep. at 112). Meyer has no
recollection of this meeting. Despite her reservations, Moreno
completed her twelve fills and, she alleges, further injured her
knee in the process.*fn1 At the October 14, 1996, department
meeting, she reportedly told Meyer: "[T]hanks a lot. My knee is
shot." Although Dr. James Hill did not begin treating Moreno
until the following spring, he posits in an affidavit that
"[w]ith a diagnosis of medial meniscus tear of the right knee,
not yet repaired, activities involving squatting, kneeling,
bending, climbing, prolonged standing, prolonged walking or heavy
lifting greater than twenty-five (25) pounds would have been
contraindicated." Grand Victoria asserts that it has no record or
knowledge that plaintiff ever made any complaint concerning her
inability to perform any tasks she was asked to perform at work.
Defendant further notes that at all times after her original
injury, light duty employment would have been available to
plaintiff upon written request by one of her physicians.
In November 1996, plaintiff underwent partial arthroscopic
medial meniscectomy. She remained off work from November 5-17
on the advice of Dr. Berkson. After November 17, Dr. Berkson
returned plaintiff to work without any physical restrictions. As
of December 11, 1996, he advised Grand Victoria that he expected
Moreno's knee to have "near normal function" within six weeks.
Plaintiff, however, continued to have problems with her knee. On
January 22, 1997, Dr. Berkson advised plaintiff that she should
restrict her work schedule to four days a week and that she
should consider using an assistive device. Plaintiff informed
Meyer and McGill of these recommendations; Meyer approved
Moreno's request for the four-day week and for her use of a
motorized cart. Apparently, plaintiff reverted to a five-day
schedule in February.
On July 3, 1997, Moreno was informed by Dr. Hill that she might
need a third surgery on her right knee. Dr. Hill gave plaintiff a
note continuing her four-day work week restriction and
prohibiting "prolonged standing, prolonged walking, squatting,
kneeling, bending, climbing, or heavy lifting greater than 25
pounds." Four days later, on July 7, 1997, Moreno communicated
this news to Meyer and explained that the procedure would
necessarily involve an extended period of recuperation. He was
reportedly upset at this news and asked plaintiff, "What do you
mean another surgery? How long [will you be off] this time?" She
conveyed Dr. Hill's estimate of three to six months and allegedly
asked what the best time would be for her surgery, to which Meyer
allegedly replied, "It's never a good time." Meyer remembers this
event differently and testified that he was not concerned about
another surgery because plaintiff's shifts had always been
covered when she was off work for medical reasons.
One week later plaintiff was fired. Grand Victoria's motivation
for Moreno's termination is hotly contested and remains at the
center of this dispute. Grand Victoria maintains that Moreno was
fired for her role in an incident that occurred the evening of
July 13, 1997, during which a two-year-old child was allowed to
enter the Grand Victoria casino and was found sitting with his
parents at a slot machine. It is a violation of the River Boat
Gambling Act, 230 ILCS 10/11(a)10, for anyone under the age of
twenty-one to be in an area of a river boat where gambling is
conducted, and a casino found in violation of this statute can be
assessed significant fines and penalties. Moreno argues, on the
other hand, that her actions were completely appropriate and that
her termination on this basis was pretextual. In fact, she
alleges, Grand Victoria terminated her because of her disability
and in retaliation for her exercise of her legal rights under the
Jones Act and general maritime law.
The night the two-year-old boy was allowed to board the Grand
Victoria, plaintiff was on duty as a slot shift manager. She was
notified via radio by floor person Dan Smallwood that the minor
and his parents were on the gaming floor. Working from her
electric cart, Moreno moved to their location and found Smallwood
and Jeff Thorpe, a temporary assistant slot shift manager, with
the parents and the little boy. Thorpe told Moreno that he had
called security supervisor Debbie Bakke to advise her of the
situation and that a security officer was on his way. Plaintiff
then told the minor's parents (who spoke broken English) that
they were going to be escorted off the boat because children were
not allowed on board. The parents allegedly responded that they
did not understand, and that they were going to stay and play.
Moreno again informed them that they needed to leave. Security
officer Jason then arrived. He called surveillance to advise them
that he would be escorting the family off the vessel, which he
did. Plaintiff got back into her cart, went around by the main
door and saw that the family was properly escorted off the vessel
and then returned to her duties.
At approximately 4:30 a.m. the next morning, plaintiff, on her
own initiative, wrote out the following statement:
I was called over to B222 by Dan Smallwood, a floor
person where there was a small child maybe two years
old, a mother, father (Alice and Jeff) floorpeople.
The child was standing on the chair trying to push
the buttons again, apparently tells me they were
taking turns pushing the buttons. He said he didn't
think it was wrong to bring the child on the boat
because no one stopped them or even said anything
outside when they were in line. Then Jason from
Security (Jeff Thorpe had already called them) came
and escorted them off the boat. Thank goodness the
floorpeople saw the culprit before he actually hit a
(Thomason dep., Ex. K at p. 81). At noon, Moreno was called at
home by Meyer and told to come to McGill's office to discuss the
incident. She reported at 2:00 p.m. and spoke with McGill, Meyer
and two other Grand Victoria employees. At 8:00 p.m., plaintiff
was told that she would receive a "verbal warning" for her role
in the incident and was asked to rewrite the statement leaving
off the last line. At 9:15 p.m., plaintiff was again called into
the office and was informed by Meyer that she was being
terminated. She was told it was because she "dropped the ball"
and "didn't follow through." She was given no further
explanation. As Moreno was escorted off the ship, McGill
reportedly told her that "[i]f [she] got [her] legs fixed [the
company] might hire [her] back as a floor person."
General manager Jim Thomason allegedly made the decision to
terminate plaintiff based on his own assessment of the child
incident and the input of his managers. Thomason felt that
plaintiff's response was not sufficiently "immediate" and that
the final sentence of her statement was "totally inappropriate"
and a "smart aleck comment." Thomason testified that he was
particularly concerned with the statement because he had to
produce it to the Illinois Gaming Board, and he thought it would
reflect badly on the casino that the supervisor of the slot
department was making a sarcastic comment about a child sitting
at a slot machine. According to defendant, Thomason was aware of
plaintiff's knee surgery, but was unaware that the injury was
workrelated or that plaintiff may have had rights under the Jones
Act in connection with her accident.
Other assessments of Moreno's conduct vary dramatically.
According to McGill, her discussions with Moreno suggested that
plaintiff knew the seriousness of a child being at a slot machine
pushing buttons and that her decision nonetheless to stand by the
child and wait for a security guard to come without taking any
other action was an insufficient response. McGill wanted to
discuss the incident with Meyer despite the fact that she does
not typically get involved with employee disciplinary matters.
Meyer testified that he believed Moreno had acted
inappropriately, though, according to plaintiff, Meyer did not
want her to be fired. Plaintiff also presents the deposition
testimony of Joseph Thomas, an agent of the Illinois Gaming
Board, who was surprised to learn that plaintiff had been fired.
Thomas' official investigation included viewing the surveillance
video tapes of the incident and interviewing plaintiff and the
other staff involved. It was his impression "[t]hat ...