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WRIGHT v. HOLLYWOOD CASINO-AURORA

April 14, 2003

EMMA L. WRIGHT, PLAINTIFF
v.
HOLLYWOOD CASINO-AURORA, DEFENDANT.



The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Emma Wright*fn1 filed the instant suit against her former employer, Hollywood Casino-Aurora ("HCA"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Defendant moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated herein, defendant's motion is granted in its entirety.

FACTS*fn2

In 1999, HCA's Assistant Manager of Operations, Robert Casas, interviewed plaintiff, an African-American woman, and recommended that HCA hire her. Thereafter, from May 24, 1999, to January 2, 2001, plaintiff worked as a third shift housekeeper for HCA's Stage Crew Department (also known as the Housekeeping Department). On the date of her termination, plaintiff was 72 years old. In her deposition, plaintiff acknowledged that her employment was at will, and HCA could therefore terminate her employment at any time, without reason or notice.

During 2000, the housekeeping department was managed by Kathy Brakebill, a non-Hispanic woman whose date of birth is December 17, 1954. Plaintiff's supervisors included Gilbert Ramos, a Hispanic male whose date of birth is December 29, 1968, and James Jeffries, an African-American male whose date of birth is September 15, 1943. The "crew leaders" assigned to the third shift in 2000 included Herlinda Arrendondo, a Hispanic female whose date of birth is February 14, 1956, and Tony Padilla, a Hispanic male whose date of birth is April 9, 1942.

According to plaintiff's deposition testimony, HCA provided her with a two or three day orientation session shortly after she was hired. During the orientation session, plaintiff received written literature regarding HCA's policies, such as HCA's "Hooray for Hollywood" booklet and HCA's "Cast Member Handbook" ("Handbook"), both of which contain HCA's "Open Door Policy." In May 1999, plaintiff signed a document acknowledging that she received and understood the handbook. In September 1999, after receiving a revised Handbook, plaintiff signed another document acknowledging that she received and understood the revised Handbook.

The "Open Door Policy" provides that employees may speak to any member of management regarding issues of concern and may request strict confidentiality. HCA also maintains a "Cast Member Help Line" that allows employees to talk in confidence about work-related problems with a member of the Human Resources Department. During her employment, plaintiff never called the Cast Member Help Line.

If an HCA employee does not feel that the Open Door Policy has satisfactorily resolved a workplace issue, then she may initiate the "Fair Treatment" process, which involves informal discussion, conference, conciliation meeting, and review by the Board of Review, Under this process, an employee who has reasons to dispute a record of corrective action is required to bring the matter to his supervisor's attention within three calendar days of the alleged occurrence or dispute. Plaintiff acknowledged in her deposition that she was familiar with both the Open Door and Fair Treatment policies.

HCA's Lost Time Policy and Plaintiff's Absences

HCA's Lost Time Policy states that regular, predictable and on-time attendance at work is expected and necessary for the successful operation of HCA, and provides that severe corrective action, "up to and including termination of employment," may be taken in response to lost time. Each absence under the Lost Time Policy remains active for one year and within that year counts towards Lost Time corrective action. Generally, employees who have completed three months of employment with HCA are issued a written record of coaching after seven absences, a written record of corrective action after eight absences, and are terminated after nine absences.

An employee is charged with an "absence" if he or she, (1) is unavailable for a full shift and has notified his/her department head at least two hours prior to the start of his/her shift, (2) reports to work more than three hours after the start of her shift, or (3) requests to leave early and has not completed at least four hours of his/her shift. A sick day (or series of continuous sick days) counts as one absence under HCA's Lost Time Policy. Calling in absent on Friday or Saturday, or being absent from one's designated shift on an HCA-designated holiday, "mandatory day," or "Important Business Day," counts as two absences. A "no call/no show" absence, in which the employee does not notify HCA that she will be absent, also counts as two absences; the Lost Time Policy states that HCA will terminate employees who accrue two no call/no shows within a twelve-month period.

A "mandatory" day is one during which all employees are expected to work, regardless of their regular days off. In the Housekeeping Department, December 31 and January 1 are mandatory days. In early December 2000, HCA issued a holiday reminder stating that "Sunday 12/31/00, Monday 01/01/00 [sic] are Mandatory work days for all cast members. Cast Members that have Sundays and/or Mondays off must also work. They will have other days designated off for that week only." (Emphasis omitted.) This reminder was posted on a bulletin board in a janitor's room known as the "J-closet," where work schedules for Housekeeping Department employees are regularly posted. Plaintiff testified in her deposition that she did not see the reminder, however. Nonetheless, in her deposition, plaintiff did not dispute that HCA provided her with written information regarding the mandatory days and that she therefore already knew "what to do, what not to do."

On October 29, 1999, plaintiff received a written record of counseling after receiving her seventh absence on October 22, 1999. The written counseling stated, in part, that two more absences before June 15, 2000, would result in termination. Plaintiff refused to sign the record of counseling and wrote in the employee comments section that "I'm sure this incorrect. I have not called in absence on my regular day." Plaintiff did not inform the human resources department or Brakebill about her dispute, however.

On December 1, 1999, after an eighth absence on November 29, 1999, plaintiff received a written warning. In the comments section, plaintiff wrote, "This is incorrect," and refused to sign the warning. Again, she did not inform human resources or Brakebill about her dispute.

On May 22, 2000, plaintiff was absent from work and did not call or notify anyone at RCA that she would be absent. This no call/no show brought plaintiff's absences to ten, and RCA gave plaintiff a record of counseling indicating that she was being suspended without pay and recommended for termination. In response, plaintiff informed BOA that she was absent on May 22 because her car had been broken into. Although Brakebill believed that plaintiff could have called in to let RCA know she would not be coming to work, Brakebill reversed the termination decision and allowed plaintiff to continue working. Brakebill also counted the May 22, 2000, absence as one infraction, rather than two.

Plaintiff's June 2000 performance evaluation stated that plaintiff "needs to work on her attendance." On June 15, 2000, plaintiff called in sick to work; she was not paid for that day, but disputes that she was absent from work. RCA counted June 15, 2000, as an absence under its Lost Time Policy. Plaintiff received a written warning shortly thereafter, which she signed. In the comments section, she noted, "It has been over six months since I called off I was sick with a cold and came to work . . . I don't understand the call off" Plaintiff did not complain to human resources or Brakebill about her dispute, however.

Plaintiff was absent on June 26, 2000, and RCA's absence tracking sheet, filled out by Supervisor Ramos, shows that plaintiff was a no call/no show, which counts as two absences. Plaintiff called in two more absences on July 20, 2000, and September 5, 2000. The absence tracking sheet also showed that plaintiff was absent due to illness on "September 27" (no year included), although plaintiff did sign into work on September 27, 2000. On October 5, 2000, plaintiff received a written warning stating that her absence on "September 27" brought her absences to 8.5 and that one-half more absence before November 29, 2000, would result in termination. Plaintiff signed the written warning, did not include any comments, and did not dispute the warning with human resources or Brakebill. Before signing the warning, Casas verified that plaintiff was indeed absent on September 27, 2000.

On October 5, 2000, plaintiff called in sick, which counted as one absence. On December 28, 2000, plaintiff again called in sick and accrued an additional absence.

The housekeeping department employee schedule for the week beginning Monday, January 1, 2001, indicated that all third shift Housekeeping employees, including plaintiff, were scheduled to work on New Year's Day, 2001. The schedule states that New Year's Day is a "mandatory" day. According to plaintiff, when she left work on Sunday, December 31, 2000, the schedule was not posted in the J-closet. After she failed to show for work on January 1, 2001, her supervisor filled out an absence tracking form showing that plaintiff was a no call/no show, which counts as two absences. On January 3, 2001, plaintiff received a record of counseling indicating that she was being recommended for termination because she had accrued ten absences. The counseling noted that plaintiff had been warned several times about her attendance, and "was also given a break."

Plaintiff's housekeeping department file contains absence tracking sheets showing that plaintiff was absent on May 22, 2000, June 15, 2000, June 26, 2000, July 20, 2000, September 5, 2000, October 5, 2000, December 28, 2000, and January 1, 2000.*fn3 RCA's payroll department records confirm that plaintiff was not paid for work on any of these dates. of the days on which plaintiff was absent, the June 26 and January 1 absences were documented as no call/no shows, each of which counts as two absences; ...


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