Schulman v. Wynn Las Vegas LLC et al

Filing 33

ORDER Denying without prejudice Defendants' 29 Motion for Summary Judgment. FURTHER ORDERED that the Complaint in Case No. 2:13-cv-1447 is Dismissed and the Clerk shall close that case. Signed by Judge Robert C. Jones on 5/7/2015. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JEFFREY MARTIN SCHULMAN,
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Plaintiff,
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vs.
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WYNN LAS VEGAS, LLC et al.,
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Defendants.
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2:12-cv-01494-RCJ-GWF
ORDER

This case arises out of alleged employment discrimination on the basis of Plaintiff’s

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diabetes. Pending before the Court is a Motion for Summary Judgment (ECF No. 29). For the

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reasons given herein, the Court denies the motion, without prejudice.

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Plaintiff Jeffrey Schulman is an employee at Wynn Las Vegas Hotel and Casino

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(“Wynn”). (Compl. ¶ 1, Aug. 22, 2012, ECF No. 1). He began work with Wynn on or about

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November 14, 2008 as a night shift security officer, at which time he disclosed to Wynn his type

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I diabetes. (Id. 10). Schulman’s diabetes requires him occasionally to check his blood sugar and

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eat, and he applied for a day shift position because of unspecified difficulties with managing his

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diabetes during the night shift. (See id. ¶¶ 12–13). Schulman gave a doctor’s note to his

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supervisor, Jeff Jackson (who forwarded the note to Assistant Director of Security Tony

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Wilmont), indicating that a day shift would assist in managing his diabetes in an unspecified

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way. (See id. ¶¶ 16–18). Schulman identifies the transfer to a day shift as the “reasonable

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accommodation” for his diabetes he requested under the Americans with Disabilities Act

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(“ADA”). (See id. ¶ 17). Although Jackson told Schulman he was ninth on the list for transfer to

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the day shift, and although Employee Relations employee Lucy Vitaro and Executive Director of

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Security Marty Lethitien told Schulman at a December 1, 2009 meeting that he would be

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transferred to the day shift in January 2010, he was never transferred to the day shift. (See id.

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¶¶ 14–15, 20–21). On November 23, 2009, Wynn had disciplined Schulman for falling asleep on

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the job. (Id. ¶ 23). This may have been what led to the December 1, 2009 meeting. Wynn

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disciplined Schulman again for falling asleep on the job on February 14, 2010. (Id.). Schulman

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alleges that his blood sugar was 439 (either before or after he fell asleep on February 14, 2010),

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but Jackson refused to believe his diabetes was the cause. (See id.). Eventually, Wynn suspended

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Schulman without pay, pending an investigation. (Id. ¶ 27). After a month, Wynn informed

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Schulman that he would not be permitted to return as a security officer, but that he could apply

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for other positions. (Id. ¶¶ 28–29).

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After Schulman filed a charge of discrimination, Wynn rehired him as an “assistant shift

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manager for public areas,” which position did not provide as many opportunities for overtime as

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the position of security officer did, although the hourly pay was not lower. (See id. ¶ 34). The

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position was again for the night shift, and Wynn refused his request to be placed on the day shift.

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(Id. ¶¶ 35). After three months, Schulman experienced low blood sugar of 38, which led Wynn

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to suspend him for one week; Schulman does not allege the actual cause of the suspension, but

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presumably he fell asleep or had to leave his post. (See id. ¶ 36). Wynn told Schulman he would

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have to sign a “release” to return to his position, but he refused. (Id. ¶ 37). Wynn then provided

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Schulman a position in retail, making less money. (Id. ¶ 38).

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Schulman filed a charge of discrimination with the Equal Employment Opportunity

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Commission (“EEOC”). After the EEOC rejected the charge, Schulman sued three Wynn

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entities in the Court on four causes of action under the ADA: (1) discrimination; (2) requirement
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of a pre-employment medical examination; (3) failure to accommodate; and (4) implementation

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of impermissible standards, criteria, and methods of administration. Defendants moved to

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dismiss for failure to file suit within ninety days of receiving the right-to-sue letter. The Court

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granted the motion, but the Court of Appeals reversed and remanded, ruling that Plaintiff’s claim

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of having received the letter several days after Defendants’ counsel received a copy of the same

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letter, even when the letters were sent from and to the same cities on the same day, was sufficient

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to rebut the three-day mailing presumption.

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While the case was on appeal, Plaintiff sued Defendants again in this District, Case No.

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2:13-cv-1447, bringing the same claims based on the same events, but this time with different

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counsel. The cases have now been consolidated, with the present case as the lead case. Before

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consolidation, Defendants filed a motion for summary judgment in the ‘1447 case. That motion

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has been copied into the present case and terminated in the ‘1447 case.

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The Court denies the present motion without prejudice—Defendants may re-file such a

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motion in the present case at the appropriate time—and dismisses the Complaint in the ‘1447

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case. A court should dismiss for improper claim-splitting any claims filed by the same party as

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affirmative claims in an earlier action and which would be precluded in the later case were there

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a final judgment on the merits on the claims in the earlier case. See Adams v. Cal. Dep’t. of

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Health Servs., 487 F.3d 684, 688–89 (9th Cir. 2007). It is clear the conduct alleged in the second

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action is the same as that alleged in the present, first action. To the extent the second action

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includes slightly different causes of action under the ADA, Plaintiff must amend (and request

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leave to do so, if necessary) in the present action.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 29) is
DENIED, without prejudice.
IT IS FURTHER ORDERED that the Complaint in Case No. 2:13-cv-1447 is DISMISSED,
and the Clerk shall close that case.

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IT IS SO ORDERED.

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Datedthis 1st day of of May, 2015.
Dated this 7th day May, 2015.

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_____________________________________
ROBERT C. JONES
United States District Judge

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