Curry v. Hollywood Casino Corporation

Filing 51

MEMORANDUM OPINION re 50 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 3/28/2013. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
CURTIS CURRY

PLAINTIFF

v.

CIVIL ACTION NO.: 2:11-CV-00195-SA-SAA

HOLLYWOOD CASINO CORPORATION

DEFENDANT

MEMORANDUM OPINION
Presently before the Court is Defendant’s Motion for Summary Judgment [34]. For the
reasons set forth in this opinion, that motion shall be GRANTED, in part, and DENIED, in part.
FACTUAL BACKGROUND
The undisputed and pertinent facts are as follows. The African-American Plaintiff, Curtis
Curry, began employment with Hollywood Casino in November 2009. Specifically, Curry was
employed as a part-time server in the Hollywood Casino diner. While employed at the diner,
Curry worked under the authority of the director of hospitality, Odran Campbell. In April 2010,
Hollywood began an investigation into the diner in an attempt to ameliorate financial, service,
and theft issues. During the course of that investigation, the Hollywood surveillance department
became suspicious of a number of Plaintiff’s actions. Specifically, according to Hollywood, the
investigative summary indicated that there was reason to believe that on a number of occasions
Plaintiff had not paid for food which he received and had also allowed guests to leave without
payment.

Around that same time, in May 2010, Curry and his fellow employees at the

Hollywood diner were informed that the casino planned to close the diner, necessitating a scaledown in the workforce. Although Plaintiff was not formally terminated, Curry understood that
he was being taken off of the work schedule indefinitely. Curry received no working hours at the
casino after May 2010.

In June of 2010, Plaintiff allegedly learned that a handful of former diner employees had
been given alternative placements in other departments of the casino.

Plaintiff therefore

contacted his former supervisors to inquire about whether he too would be able to return to the
active work schedule. However, Plaintiff failed to achieve placement elsewhere in the casino,
and he subsequently filed a complaint with the Equal Employment Opportunity Commission
(EEOC) on June 28, 2010, alleging that he was being discriminated against in violation of Title
VII. In that charge, Curry stated, “On May 12, 2010, I was taken off the work schedule
indefinitely and told by Abby Justice and James McBride that I would by contacted when they
[found] the area that I would be working in.” Curry stated that he believed he was the subject of
discrimination because three younger African-Americans had received working hours after the
initial downgrade in staffing. Thus, according to Curry’s charge, he believed the casino’s refusal
to place him back on the schedule constituted discrimination on the basis of his race, sex, and
national origin.
Then, on August 17, 2010, Plaintiff allegedly learned that the casino had released a
number of employees from the dining buffet area. In an attempt to find out whether the potential
openings would provide him an avenue back to the active work schedule, Curry contacted his
former supervisors. On August 18, 2010, Curry sat down with Hollywood Casino vice president
of human resources Andrea Sueing to discuss why he had not received any work hours since
May 13, 2010.1 According to Curry, Sueing informed him at that meeting that the fact that he
had filed a charge with the EEOC rendered him unemployable. According to Curry, Sueing
inquired whether Curry had filed a complaint with the EEOC, and, upon receiving confirmation,
then stated, “Well, I’ve just got to tell you, now that you have filed a complaint, it makes—we

1

Although Curry’s EEOC charge reflects that he was told on May 12, 2010, that he was being removed from the
schedule indefinitely, Suieng’s affidavit indicates that Curry’s last day of work was May 13, 2010.

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cannot employ you at this moment because—because you have filed a litigation.” Plaintiff
alleges that he then asked, “so you’re saying I can’t work because I filed an EEOC complaint?”
According to Curry, Sueing answered that final query in the affirmative, prompting him to lodge
yet another complaint with the EEOC on September 1, 2010.
In that later charge, Plaintiff averred, “[o]n June 28, 2010, I filed a charge of
discrimination…[and was later informed]…that because of my filing an EEOC complaint against
the company that I would not be able to work at Hollywood Property.” Thus, Curry alleged that
he had been “retaliated against and denied employment in retaliation for filing a discrimination
complaint in violation of Title VII.”

Plaintiff filed an action in this Court averring liability on

the part of the Defendant for retaliation under 28 U.S.C. § 1981 and Title VII of the Civil Rights
Act. Defendant subsequently moved this Court for summary judgment.2
SUMMARY JUDGMENT STANDARD
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).

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Defendant’s Reply Memorandum in Support of its Motion for Summary Judgment requests that the Court deem a
number of facts admitted based on Plaintiff’s failure to rebut Defendant’s Statement of Material Facts with citations
to the record in his immediate response to that Statement of Material Facts. Defendant requests that such relief be
granted under Federal Rule of Civil Procedure 56(e). Although 56(e) allows the Court to deem unaddressed facts as
undisputed, the Court finds that Plaintiff has addressed those contentions in Curry’s Response to the Motion for
Summary Judgment. The Court declines to exercise such action under the present circumstances.

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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.
DISCUSSION
Discriminatory Retaliation
Defendant has filed a motion for summary judgment, alleging that Curry’s claims for
retaliation, under either Title VII or Section 1981, are due to fail. Both Title VII and § 1981
retaliation claims are governed by the same rubric, and the Court analyzes them conjunctively.
Jones v. Robinson Property Grp., Ltd., 427 F.3d 987, 992 (5th Cir. 2005) (citing Raggs v. Miss.
Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002)); Foley v. Univ. of Houston Sys., 355
F.3d 333, 340 n. 8 (5th Cir. 2003) (“Retaliation claims under § 1981 and Title VII…are parallel
causes of action. Each requires proof of the same elements in order to establish liability.”)).

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Specifically, Defendant contends that Curry cannot establish a causal connection between his
filing of an EEOC charge and any adverse employment action. Curry, on the other hand, argues
that he has direct evidence of wrongful retaliation, resulting in three separate adverse
employment actions. According to Curry:
Andrea Sueing testified that she was the person who made the
decision to take Curry off the Schedule. Sueing also testified that
she was the person who made the decision to terminate Curry’s
employment. Curry has testified that Sueing told him that the
reason Defendant could not put him back on the schedule was
because he filed an EEOC charge.
(emphasis added). Thus, in the eyes of Plaintiff, there are three separate employment actions at
issue: 1) the decision to remove Curry from the work schedule indefinitely; 2) the decision not to
add Curry back to the work schedule; and 3) the decision to formally terminate Curry.
Moreover, Curry contends that Sueing’s revelation that Curry would not be placed back on the
schedule constitutes direct evidence that the adverse employment decisions were motivated by a
discriminatory animus. The Court takes up the proffered instances of alleged adverse
employment actions in turn.
Indefinite Removal from the Work Schedule
The first potential adverse employment action at issue is that of removing Curry from the
work schedule. It is undisputed that on May 12, 2010, Curry was informed that he would be
removed from the work schedule indefinitely. Likewise, the uncontroverted evidence of record
conclusively establishes that May 13, 2010 was the last day that Curry actually received working
hours at Hollywood. Curry, however, did not file a charge of discrimination with the EEOC
until June 28, 2010, and Defendant thus logically argues that an adverse employment action
occurring before Plaintiff’s exercise of protected activity cannot give rise to a retaliation claim.

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In order to establish a prima facie case of retaliation, plaintiff must show: 1) that he
engaged in protected activity, 2) that he suffered an adverse employment action, and 3) that a
causal connection exists between the protected activity and adverse employment action. Byers v.
Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000).

The Court agrees with

Defendant, and finds Curry’s reliance on the May 12 removal from the schedule misplaced.
An adversary employment action occurring before the employee engages in protected
activity cannot provide the basis for a claim that the employer disciplined the employee for
exercising his or her protected rights. See Chaney v. New Orleans Pub. Facility Mgmt, Inc., 179
F.3d 164, 168 (5th Cir. 1999) (“If an employer is unaware of an employee’s protected conduct at
the time of the adverse employment action, the employer plainly could not have retaliated
against the employee based on that conduct.”); Yancy v. U.S. Airways, 469 F. App’x 339, 344
(5th Cir. 2012) (discounting alleged incident of discriminatory conduct occurring before the
filing of a complaint). Plaintiff’s attempt to obfuscate the issue by hailing back to Curry’s
remote exercises of protected activity in the past is equally without merit. In an argument that is
strained from its conception, Curry attempts to establish that his supervisor Campbell had also
supervised him at a former place of employment and was thus aware that he had previously filed
a complaint with the EEOC while under the employ of that former casino. Thus, according to
Curry, Hollywood’s decision to remove him from the schedule could have simply been in
retaliation for previously filing charges with the EEOC.
First of all, this assertion is far too vague to provide the basis for a genuine dispute of
material fact as Curry provides no dates for the previous charges or any indication that such
knowledge was relied upon by Hollywood. Little, 37 F.3d at 1076 (holding that a dispute of
material fact is not created by metaphysical doubt, conclusory allegations, or unsubstantiated

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assertions.). Furthermore, as a simple matter of necessity, any complaint initiated in connection
with employment at that previous casino would have been far too tenuous to provide a sound
basis for causation. According to Curry’s own exhibit, he left the employment of that previous
entity in November 2008, approximately 18 months prior to the relevant adverse action.
Temporal proximity, without more, demands a more exacting causal connection. See Clark
Cnty. School Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001)
(citing, with approval, cases finding three-and-four-month periods between protected activity and
adverse employment action failed to establish prima facie case under Title VII based on temporal
proximity); Raggs, 278 F.3d at 471-72 (holding five-month lapse precluded inference of causal
link from temporal proximity). Thus, any reliance on the May 12 removal from the Hollywood
work schedule is incapable of supporting Curry’s retaliation claim.
Refusal to Grant Work Hours
The next potential adversary employment action upon which Curry attempts to hang his
retaliation claim is that of refusing to add Curry back to the work schedule.3 Specifically, Curry
relies on an August 18 conversation with Andrea Sueing to support that retaliation claim. He
contends that he approached his supervisor and inquired whether recent vacancies within the
food and beverage department would allow him to regain any scheduled work hours. Sueing,

3

According to Defendant, the “decision” to not add Curry back to the schedule was not a decision at all. Rather,
according to Hollywood, the closing of the diner dissolved Curry’s position and only full-time employees were
given the opportunity to apply for other positions. Nonetheless, it is undisputed that Curry was not formally
terminated upon the closing of the diner and that there was a brief shortage of hourly workers in the food and
beverage department following Curry’s complete reduction of hours. Furthermore, while the closure of the diner
might have provided Hollywood a legitimate, non-discriminatory reason capable of justifying an adverse
employment action, the Court fails to see how such a factor should be incorporated into the inquiry as to whether an
adverse employment action occurred. The test for an adverse employment action in the retaliation context is simply
whether the employer’s conduct “might well have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Bustillos v. Miss. Valley State Univ., 2013 U.S. Dist. LEXIS 3369, *13 (N.D. Miss Jan.
9, 2013) (citing McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007)). The Court is unable to determine
as a matter of law that a refusal to add an employee back to the active work schedule does not constitute an adverse
employment action.

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according to Curry, informed him that because he had filed a charge with the EEOC he would
not be eligible for any work scheduling.
Thus, Curry contends that he has direct evidence that he was wrongfully retaliated against
for filing a charge. Direct evidence proves intentional discrimination without inference or
presumption when believed by the trier of fact. Jones v. Overnite Transportation Co., 212 F.
App’x. 268, 272 (5th Cir. 2006) (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897
(5th Cir. 2002)). It includes “statements or documents which show on [their] face that an
improper criterion served as a basis . . . for the adverse employment action.” Fabela v. Socorro
Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003). Those statements, however, must be direct
and unambiguous. Read v. BT Alex Brown Inc., 72 F. App’x 112, 119 (5th Cir. 2003).
Where a plaintiff offers verbal remarks as direct evidence, however, the court must apply
the four part test of CSC Logic to determine whether they are sufficient to overcome summary
judgment. Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012). Thus, such remarks
may constitute direct evidence if they are 1) related [to the protected class of persons of which
the plaintiff is a member]; 2) proximate in time to the [complained-of adverse employment
decision]; 3) made by an individual with authority over the employment decision at issue; and 4)
related to the employment decision at issue.’” Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th
Cir. 1996); Patel v. Midland Memorial Hosp. & Med. Ctr., 298 F.3d 333, 343-44 (5th Cir. 2002)
(quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222-23 (5th Cir. 2001)); see also
Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000), cert. denied, 532
U.S. 937, 121 S. Ct. 1393, 149 L. Ed. 2d 316 (2001). If the comments fail to meet these criteria,
e.g., if they are vague and remote in time, or the speaker has no authority or influence over the
employment decisions, they are merely “stray remarks.” See, e.g., Krystek v. Univ. of So. Miss.,

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164 F.3d 251, 256 (5th Cir. 1999); see also Brauninger v. Motes, 260 F. App’x 634, 640 (5th Cir.
2007) (noting that to be evidence of animus, a remark must be related to and proximate to a
specific employment decision and the remark must be “direct and unambiguous.”).
In the case at hand, the Court finds that the remarks at issue are direct evidence of
discrimination. Accepting Curry’s allegations as true, Sueing informed Plaintiff, “Well, I’ve just
got to tell you, now that you have filed a complaint, it makes—we cannot employ you at this
moment because—because you have filed a litigation.”

When asked for clarification, she

allegedly confirmed that he could not continue to work for Hollywood because he had filed an
EEOC complaint. The alleged statements were directed at Curry based on his exercise of a
protected right, were proximate in time to the alleged contemporaneous refusal to grant Curry
any work hours, were made by the pertinent decision maker, and were related to whether he
would be granted additional hours. If believed by a trier of fact, Sueing’s alleged comments
would prove intentional discrimination without inference.
In the event that a plaintiff successfully produces direct evidence of discrimination, he
may “bypass the McDonnell Douglas burden-shifting framework [so] commonly applied in
discrimination cases and proceed [immediately] to the question of liability.” Moore v. United
States Dep’t of Agric., 55 F.3d 991, 995 (5th Cir. 1995); Fierros v. Texas Dep’t of Health, 274
F.3d 187, 192 (5th Cir. 2001); Stone v. Parish of East Baton Rouge, 329 F. App’x 542, 546 (5th
Cir. 2009). “The burden of proof [then] shifts to the employer to establish by a preponderance of
the evidence that the same decision would have been made regardless of the forbidden factor.’”
Fierros, 274 F.3d at 192 (quoting Brown v. East Miss. Elec. Power Assoc., 989 F.2d 858, 861
(5th Cir. 1993)). If the employer fails to carry this burden, plaintiff prevails. Rachid v. Jack In
The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004).

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Thus, Curry’s proffered direct evidence allows him to bypass the McDonnell Douglas
burden shifting framework and proceed immediately to the question of liability. In an attempt to
avoid liability, Hollywood contends that they would have made the decision to not schedule
Curry regardless of the filing of the EEOC complaint. In support of such a theory, Hollywood
has offered evidence that Curry had been suspected of and investigated for theft in April of 2010,
and management had made the decision not to allow him hours on such grounds alone. While
Defendant has certainly produced evidence from which a jury may conclude that Hollywood
would have made the same scheduling decision in spite of the existence of the alleged
discriminatory animus, the Court may not weigh evidence, resolve, factual disputes, or make
credibility choices at the summary judgment stage. See Fortenberry v. Gulf Coast Community
Action Agency, Inc., 2007 U.S. Dist. LEXIS 89831, *7 (S.D. Miss. Dec. 5, 2007) (declining to
grant summary judgment where defendant had proffered evidence supporting a legitimate nondiscriminatory reason in face of plaintiff’s direct evidence).

There are therefore questions of

material fact as to the failure to allow Plaintiff work hours.
Formal Termination
Finally, Plaintiff also attempts to rely on his formal termination to support his retaliation
claim. Although Curry was removed from the Hollywood schedule in May 2010 and received no
work hours thereafter, he was not officially terminated until several months later. According to
Hollywood’s personnel action form, Curry was not officially terminated until October 6, 2010.
Hollywood disputes the characterization of this formal termination as an adverse employment
action. Hollywood contends that the “one time” decision to remove Plaintiff was made earlier in
May 2010, and the fact that the termination paperwork was not completed contemporaneously

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“was simply an oversight that was corrected as the diner got closer to officially closing, and it
does not reflect that any decision-making process took place after May 2010.”
Hollywood, however, has provided no legal authority to suggest that the Court may
overlook the formal termination on grounds that it was merely a formality. Additionally, this
narrow view of the termination decision is not wholly supported by the factual record before the
Court. Campbell, when asked whether Curry had been terminated upon his removal from the
schedule, clearly stated that his termination had occurred later. Additionally, Sueing likewise
stated that the decision to remove Curry from the schedule was made initially, and the
termination actually occurred later. Although Campbell additionally testified that his view was
that the casino owed no obligation to provide scheduling for part-time workers and termination
was not therefore required, the Court is unable to overlook the fact that termination was a
separate and discernible personnel action.
Hollywood additionally contends, however, that even if the Court were to construe the
formal termination as a separate adverse employment action, Plaintiff’s reliance is due to fail
based upon the fact that any inference of a causal connection should be broken by Hollywood’s
finding of theft, which predated the EEOC charge. Again, in order to constitute direct evidence
of a retaliatory act, the statement “must show on its face that an improper criterion served as a
basis . . . for the adverse employment action.” Fabela, 329 F.3d at 415. The statement must be
direct and unambiguous and must not require an inference to be drawn. Read v. BT Alex Brown
Inc., 72 F. App’x 112, 119 (5th Cir. 2003).
In the case at hand, the Court finds that the alleged remarks so too provide direct
evidence in regard to Curry’s formal termination. Sueing allegedly stated, “Well, I’ve just got
to tell you, now that you have filed a complaint, it makes—we cannot employ you at this

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moment because—because you have filed a litigation.”

When asked for clarification, she

allegedly confirmed that he could not continue to work for Hollywood because he had filed an
EEOC complaint. The alleged statements were directed at Curry based on his exercise of a
protected right, were made approximately three months before the formal termination, were
made by the pertinent decision maker, and were related to whether he would remain employed
with Hollywood.4

If believed by a trier of fact, Sueing’s alleged comments would prove

intentional discrimination without inference.
Thus, similar to the previously proffered employment action, the fact that Defendant has
provided a legitimate, non-discriminatory reason as to why Curry was actually terminated is
simply insufficient to support summary judgment. Curry has provided direct evidence that, if
believed by the trier of fact, shows that he was retaliated against based on his exercise of a
protected right.

Finding, in the face of that proffered evidence, that Hollywood instead

terminated Curry based on the surveillance report would require the Court to weigh the evidence
and judge credibility. Summary judgment is therefore inappropriate.
Punitive Damages
In the alternative, Defendants have also moved the Court for summary judgment as to
Plaintiff’s claim for punitive damages. Punitive damages are recoverable if the plaintiff shows
that the defendant acted “with malice or with reckless indifference to the federally protected
rights of an aggrieved individual.” Smith v. Xerox Corp., 602 F.3d 320, 334 (5th Cir. 2010)
(citing 42 U.S.C. § 1981a(b)(1)).

This standard is higher than the showing necessary for

4

When determining whether a causal connection exists based on temporal proximity alone, a three to four month
gap might be too remote. See, e.g., Raggs, 278 F.3d at 471-72. However, when determining whether a definite and
particularized statement is sufficiently proximate to constitute direct evidence, the court has found those statements
are rendered circumstantial evidence only when the temporal gap has been more significant. See Brown, 82 F.3d at
656 (finding vague comments not directed toward plaintiff and made sixteen months prior were insufficient);
Guthrie v. Tifco Insdus., 941 F. 2d 374, 379 (5th Cir. 1991) (finding vague comments with the most recent
occurring one year prior to be too indefinite).

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compensatory damages. Kolstad v. Am. Dental Ass’n., 527 U.S. 526, 534, 119 S. Ct. 2118, 144
L. Ed. 2d 494 (1999). Further, “not every sufficient proof of pretext and discrimination is
sufficient proof of malice or reckless indifference.” Hardin v. Caterpillar, Inc., 227 F.3d 268,
270 (5th Cir. 2000).

Nevertheless, a plaintiff need not show the defendant’s conduct was

especially egregious, as “[t]he availability of punitive damages turns on the defendant’s state of
mind, not the nature of the defendant’s egregious conduct.” EEOC v. E.I. Du Pont de Nemours
& Co., 480 F.3d 724, 732 (5th Cir. 2007). This is a subjective inquiry and focuses on whether
the employer “at least discriminate[d] in the face of a perceived risk that its actions will violate
federal law.” Kolstad, 527 U.S. at 536.
Plaintiff has alleged that Defendant specifically informed him that he would not be able
to work at Hollywood in the future due to the fact that Plaintiff had filed an EEOC complaint.
The Court is unable to say at this juncture that there is no genuine dispute of material fact as to
whether Sueing “at least discriminate[d] in the face of a perceived risk that [her] actions [would]
violate federal law.” Id. The Court therefore determines that Defendant’s motion for summary
judgment as to Plaintiff’s claim for punitive damages should also be denied.
CONCLUSION
Although the Court has determined that Plaintiff’s retaliation claim is due to fail insofar
as it is premised on Curry’s May 12, 2010 removal from the work schedule, the Court
nonetheless finds that Plaintiff has presented direct evidence that, if believed, provides proof that
Hollywood’s decision to not add Plaintiff back to the work schedule and the decision to
ultimately terminate Plaintiff were retaliatory. Further, the Court determines that there remains a
genuine dispute of material fact as to whether Defendant acted with the necessary malice or

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reckless indifference to justify the imposition of punitive damages. The Court therefore
GRANTS, in part, and DENIES, in part, Defendant’s Motion for Summary Judgment.
SO ORDERED, this the 28th day of March, 2013.
/s/ Sharion Aycock_____
U.S. DISTRICT JUDGE 

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