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MORENO v. GRAND VICTORIA CASINO

March 3, 2000

LAURIE MORENO, PLAINTIFF,
V.
GRAND VICTORIA CASINO, DEFENDANT.



The opinion of the court was delivered by: Moran, Senior District Judge.

    MEMORANDUM AND ORDER

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.

BACKGROUND

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.

There are two types of slot machines aboard the Grand Victoria. The "upright" machine has a door which swings open from right to left on a vertical hinge on the left side of the machine. The "slant top" machine has a door at the top which swings up on a horizontal hinge at the back of the machine. On the slant-top machine, there is a support arm that locks the open door and a damper that serves as a shock-absorber for the door, allowing it to close slowly. On the "upright" machine there is no lock or damper, but there is a cable that restricts the door from opening much more than 90 degrees. Many of the slot machines also have a "secondary hopper" compartment located underneath the standard hopper. This locked compartment can be used to store additional bags of money to alleviate the need for slot floor personnel to make separate trips to the coin booth when a hopper fill is necessary. Filling the secondary hopper requires opening the machine door, kneeling or squatting on the ground and placing the bags, each weighing approximately 25 pounds, into the lower compartment.

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.

By June 1996, plaintiff was again having problems with her knee. On June 12, she was again evaluated by Dr. Berkson, who concluded that it was time for an arthroscopic assessment of the knee joint. He noted that "[i]f the condition is one that would resolve on its own over time, it would have gotten better long ago." Again, defendant was notified of the results of his evaluation, but no work restrictions were communicated.

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.

Over the next five months there is an undisputed record of plaintiff's ongoing problems with her knee, a second arthroscopic procedure on April 29, another recovery period, and an accommodation of Moreno's physical needs by her employer. The only real dispute regarding the events of this period concerns alleged communications between Meyer and Moreno regarding her surgery, her switch to Dr. Hill, and her work schedule. We will address these later, as necessary.

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 jackpot.
  (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 ...


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