Merritt v. Harrah's Entertainment, Inc

Filing 22

ORDER. Harrahs' motion for summary judgment 15 is GRANTED in part and DENIED in part. Harrahs' motion for summary judgment on Merritt's ADA, ADEA and tortious breach of contract claims is GRANTED. Harrahs' motion for summary judgment on Merritt's claim for interference with FMLA and breach of contract claims is DENIED. IT IS SO ORDERED. Signed by Judge Howard D. McKibben on 7/26/2012. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SALLY MERRITT, an individual,

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Plaintiff,
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vs.
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HARRAH’S ENTERTAINMENT, INC., a )
Nevada corporation,
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Defendant.
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_________________________________ )

3:11-cv-00312-HDM-WGC
ORDER

Before the court is the defendant’s motion for summary

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judgment (#15).

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District Court for the State Nevada in and for Washoe County,

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alleging violations of the Americans with Disabilities Act (“ADA”),

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Age Discrimination in Employment Act (“ADEA”), interference with

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the Family Medical Leave Act (“FMLA”), breach of implied covenant

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of good faith and fair dealing in contract and tortious breach of

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good faith and fair dealing in contract against the defendant.

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Ex. A).

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federal question jurisdiction (#1).

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judgment on all claims (#15), plaintiff opposed (#19) and defendant

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replied (#21).

Plaintiff filed a complaint in the Second Judicial

(#1

Defendant removed the action to this court based on
Defendant moved for summary

For the reasons set forth below, the defendant’s
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motion for summary judgment on plaintiff’s ADA, ADEA and tortious

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breach of contract claims shall be GRANTED.

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summary judgment on plaintiff’s interference with FMLA and ordinary

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breach of contract claims shall be DENIED.

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I. Facts

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Defendant’s motion for

Plaintiff, Sally Merritt (“Merritt”), is a 63 year-old former

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employee of defendant Harrah’s Entertainment, Inc. (“Harrah’s”).

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(Def.’s Mot. Summ. J., Decl. Susan Heaney Hilden (“Hilden Decl.”)

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Ex. 1 (“Pl.’s Dep.”), 8:12-20 ).

Merritt was hired by Harrah’s as

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a casino host in July 2004 when she was 54 years old.

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8:16-20).

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asthma, joint problems and feet problems.

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At times, her health problems caused her to be away from work.

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When Merritt was hired, she informed Harrah’s that she suffered

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from lupus and foot problems and that her lupus was likely going to

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get worse.

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Harrah’s that when her lupus flares-up, it incapacitates her and

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she could not predict how often she would have to take leave.

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(Id.).

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take unpredictable periods of medical leave.

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(Pl.’s Dep.

Merritt suffers from lupus, chronic Epstein Barr,

(Pl.’s Dep. 52:5-12).

(Pl.’s Dep. 76:24-77:1).

Moreover, Merritt informed

Thus, Harrah’s was aware that Merritt would likely need to

In addition to the statutorily required FMLA leave, Harrah’s

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leave policy outlines two other avenues for employees to take

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medical leave.

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Harrahs’ employee handbook, which was provided to Merritt.

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Dep. 36:4-11).

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per twelve-month period.

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of employment, Harrahs’ employees are entitled to up to fourteen

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weeks of Harrah’s Medical Leave (“HML-5").

(Hilden Decl. Ex. 2).

These policies are found in
(Pl.’s

The policy provides for twelve weeks of FMLA leave
(Hilden Decl. Ex. 2).

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After five years

(Id.).

And, Harrahs’

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employees may apply for up to six weeks of personal leave.

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Significantly, the decision to grant personal leave is based on

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business demands and must be approved by both the department head

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and human resources–a distinguishing characteristic from FMLA and

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HML-5.

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the employee handbook, personal leave form and accompanying policy.

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(Id.; Hilden Decl. Ex. 14).

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(Id.).

(Id.).

This dual-approval requirement is clearly stated in

In March of 2005, Merritt was promoted to executive casino
host (“ECH”), which is the position she occupied until her

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termination from Harrah’s.

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involved meeting and greeting guests, making telephone contacts

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with guests, working on programs to bring guests into the casino,

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and running various guest special events in the casino.

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Dep. 11:15-20).

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on her feet most of the day.

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As such, Merritt contends she could not work when her foot problems

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were aggravated.

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(Pl.’s Dep. 8:21-22).

The ECH position

(Pl.’s

Furthermore, the position required Merritt to be
See (Pl.’s Dep. 46:12-14, 50:1-8).

On May 26, 2006, Merritt submitted a request for FMLA leave

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from August 1, 2006 to September 1, 2006, along with documentation

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from her orthopedic surgeon, stating that she would need to take

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leave for four to six weeks due to foot pain and surgery.

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Dep. 12:11-13:4; Hilden Decl. Exs. 3-5).

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request for leave.

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to work until four months later, in late November 2006, due to

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continued foot problems.

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6).

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(Pl.’s Dep. 12:8-10).

(Pl.’s

Harrah’s granted this
Merritt did not return

(Pl.’s Dep. 14:11-17; Hilden Decl. Ex.

Merritt again requested leave from February 6, 2007 to March
19, 2007, due to continued foot problems and surgery.
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(Pl.’s Dep.

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15:15-18; Hilden Decl. Exs. 7-8).

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request.

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request until May 1, 2007 because her foot was not healing.

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Dep. 16:3-11).

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16:12-13).

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(Pl.’s Dep. 15:16-20).

Harrah’s granted this leave
Merritt subsequently extended her

Harrah’s granted this request as well.

(Pl.’s

(Pl.’s Dep.

In 2008, Merritt submitted a request for intermittent leave.

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(Pl.’s Dep. 16:17-17:5; Hilden Decl. Ex. 9).

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granted.

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This request was

(Pl.’s Dep. 17:8-9).

Merritt requested further FMLA leave from July 2 to July 15,

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2009, to recover from yet another surgery.

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Hilden Decl. Exs. 10-11).

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until December 8, 2009.

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this request.

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leave in 2009, she took a number of sick days.

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18).

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(Pl.’s Dep. 18:8-19:11;

Merritt later requested an extension
(Pl.’s Dep. 25:10-18).

(Pl.’s Dep. 25:13-18).

Harrah’s granted

Upon Merritt’s return from
(Pl.’s Dep. 27:14-

On April 25, 2010, Merritt emailed her manager, Stacey Wagner

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(“Wagner”), informing him that she was suffering from foot pain

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again, that she had difficulty walking, and she was going to need

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to take some time off to visit the doctor.

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28:13).

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Culpepper (“Culpepper”), a member of Harrah’s Risk Management

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department and informed Culpepper that she was directed by her

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doctor to stay off work.

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authorized the leave.

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from Merritt’s doctor, submitted by Merritt, stated that she had

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continued foot problems and she would be able to return to work

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without restrictions on May 3, 2010.

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Decl. Ex. 12).

(Pl.’s Dep. 27:23-

The following day, Merritt spoke by telephone with Amilia

(Pl.’s Dep. 28:22-29:3).

(Pl.’s Dep. 28:22-29:6).

A subsequent note

(Pl.’s Dep. 29:11-24; Hilden

Merritt was granted this leave.
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Culpepper

(Pl.’s Dep. 29:25-

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30:2).

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On May 3, 2010, Merritt telephoned Culpepper and left a

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message that stated she needed to be away from work a few more

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days, and should be released to work on May 6, 2010.

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30:14-21).

(Pl.’s Dep.

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On May 5, 2010, Merritt submitted a request to extend her

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leave until May 17, 2010 because she continued to have severe foot

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pain.

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(Pl.’s Dep. 31:13-14).

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(Pl.’s Dep. 31:2-12).

Harrah’s granted this request.

On May 12, 2010, Merritt contacted her doctor for a note

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extending her leave until May 31, 2010.

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That same day, Merritt left a message with Culpepper stating that

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she may be out until the end of the month for medical reasons.

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(Pl.’s Dep. 32:20-23).

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that she had exhausted her FMLA leave, and in two weeks she would

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exhaust all of her HML-5 leave.

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Culpepper informed Merritt that she could apply for an additional

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six weeks of personal leave and she would send her a personal leave

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request form to complete.

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Culpepper that she was unsure if she could continue to perform her

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job duties and wondered if the department would just buy out her

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contract.

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lupus and increasing problems, she could not perform her job and it

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may be best if she just left her employment.

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19).

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(Pl.’s Dep. 32:15-19).

Later that day, Culpepper informed Merritt

(Pl.’s Dep. 32:24-33:6).

(Pl.’s Dep. 33:7-9).

(Pl.’s Dep. 33:10-13).

Merritt told

Merritt felt that because of her

(Pl.’s Dep. 33:14-

Culpepper’s May 12, 2010 letter stated that Merritt had
exhausted her FMLA leave and would soon exhaust her additional HML-

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5 leave.1

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Additionally, the letter stated that Merritt might be eligible for

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personal leave.

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Absence policy and form was included, which stated that personal

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leave was granted at the discretion of the department manager and

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human resources and was based on business demands.

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38:15-22; Hilden Decl. Ex. 14).

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guarantee leave will be granted and Merritt understood that.

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(Hilden Decl. Ex. 14; Pl.’s Dep. 38:2-10).

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(Pl.’s Dep. 37:7-39:9; Hilden Decl. Ex. 13).

(Hilden Decl. Ex. 13).

A Personal Leave of

(Pl.’s Dep.

The policy states that there is no

Merritt submitted her request for personal leave on

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approximately May 18 or 19, 2010.

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Merritt’s request stated that she needed the personal leave for

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medical reasons, however, she did not include an anticipated date

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of return.2

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spoke with Culpepper on May 21, 2010 and informed Culpepper that

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she had submitted her Personal Leave Request.

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21).

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stated that she had requested a severance package, but she was

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still waiting to hear back from the department.

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25).

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the department and any issues should be brought to the department’s

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attention.

(Hilden Decl. Ex. 15).

(Pl.’s Dep. 39:12-40:9; Hilden Decl. Ex. 15).

Merritt

(Pl.’s Dep. 41:15-

Merritt inquired if her job was in jeopardy.

(Id.).

Merritt

(Pl.’s Dep. 41:22-

Culpepper told Merritt that severance was discretionary with

(Pl.’s Dep. 42:1-4).

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According to Harrah’s, Vice President of Human Resources and

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Risk Management, Matt Krystofiak (“Krystofiak”) spoke with Wagner

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Documents provided by Harrah’s show that Merritt took her first FMLA leave
of the year on July 2, 2009 and exhausted it by September 28, 2009. Merritt took
her first HML-5 leave on September 29, 2009 and exhausted it as of May 23, 2010.
(Def.’s Mot. Summ. J., Decl. Matt Krystofiak (“Krystofiak Decl.”) Ex. A).
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Merritt’s exact response was: “?/to be determined.” (Hilden Decl. Ex. 15).

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regarding the business needs of his department to determine whether

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to grant Merritt her personal leave request.

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4).

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the busy season and could not be without a casino host much

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longer.3

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(Krystofiak Decl. ¶

Wagner allegedly indicated that his department was entering

(Id.).

On May 24, 2010, Merritt’s podiatrist provided documentation

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indicating that he had evaluated Merritt for foot pain that day and

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was restricting her from work at least until June 30, 2010.

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(Hilden Decl. Ex. 16; Pl.’s Dep. 47:10-48:3).

On June 30th,

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Merritt’s podiatrist would reevaluate her to see if she could

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return to work. (Id.).

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Harrah’s Manager of Risk Management, Chris Hill (“Hill”),

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discussed Merritt’s personal leave request with Krystofiak.

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(Def.’s Mot. Summ. J., Decl. Chris Hill (“Hill Decl.”) ¶¶ 2, 4).

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Hill allegedly indicated that Merritt had used all FMLA and

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Harrah’s medical leave and was requesting additional personal

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leave.

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since Merritt’s department was entering a very busy period,

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Harrah’s could not grant the personal leave request.

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Decl. ¶ 5; Hill Decl. ¶ 4).

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Merritt would need to return to work or provide information from

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her doctor with her specific restrictions and seek an accommodation

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to return to work with restrictions.

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(Hill Decl. ¶ 4).

Krystofiak allegedly told Hill that

(Krystofiak

Krystofiak allegedly told Hill that

(Id.).

On May 25, 2010, Hill called Merritt to tell her that her
request for personal leave had been denied based on the business

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In her opposition(#19), Merritt claims that this conversation is hearsay.
The court disagrees. The conversation is offered to prove the conversation took
place, not whether the department was actually busy. See FRE 801(c).

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demands of the department and her employment with Harrah’s would be

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severed.

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disputes that Hill told her that her personal leave request was

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denied and adds that Hill gave her no reason for her termination.

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(Pl.’s Compl.; Pl.’s Opp’n Def.’s Mot. Summ. J., Decl. Sally

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Merritt (“Merritt Decl.”), 2; Pl.’s Dep. 48:20-49:7).

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allegedly advised Hill that she could not return to work.

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Decl. ¶ 5).

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exhausted all of her available leave time and this would be

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(Pl.’s Dep. 48:15-49:4; Hill Decl. ¶ 5).

Merritt

Merritt
(Hill

Hill claims that he explained to Merritt that she had

confirmed by letter.

(Id.).

A May 25, 2010 letter from Hill to Merritt memorialized

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Harrah’s decision.

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Decl. ¶ 6).

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all of her FMLA and HML-5 leave and had not been released to work

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with or without an accommodation, her employment was being

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separated effective May 24, 2010.

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Decl. Ex. 17; Hill Decl. ¶ 6).

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Merritt’s request for personal leave was denied.

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Ex. 17).

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conversation with Hill, or in a subsequent conversation with Hill

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and Krystofiak, did Merritt seek an accommodation.

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Decl. ¶ 6; Hill Decl. ¶ 7).

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Harrah’s never offered to engage her in the accommodation process.

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(Merritt Decl., 2).

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(Pl.’s Dep. 51:2-13; Hilden Decl. Ex. 17; Hill

The letter states that because Merritt had exhausted

(Pl.’s Dep. 51:2-11; Hilden

The letter did not state that
See (Hilden Decl.

It is Harrah’s position that at no point during Merritt’s

(Krystofiak

Merritt disputes this and asserts that

In a telephone conversation with Krystofiak on or about May 26

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or 27, 2010, Merritt discussed her termination and her request for

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severance pay.

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Merritt indicated that she was in severe pain and could not work

(Pl.’s Dep. 43:14-44:7).

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During this conversation,

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and was requesting a severance package.

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Krystofiak told Merritt that she was not entitled to severance pay.

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(Pl.’s Dep. 44:8-10).

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and Krystofiak, however, Merritt claims she did ask if there was

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another position within Harrah’s where she would not be required to

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be constantly on her feet.

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Krystofiak deny that Merritt made this request.

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Krystofiak Decl. ¶ 6).

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was in severe pain and could not work and was seeking a severance

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package.

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(Pl.’s Dep. 43:14-44:1).

In a conference call between Merritt, Hill

(Pl.’s Dep. 49:9-50:8).

Hill and

(Hill Decl. ¶ 7;

They claim that Merritt indicated that she

(Hill Decl. ¶ 7).

In a telephone conversation with Wagner, Merritt reiterated

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her request for severance pay.

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told Merritt that he would discuss the request with his boss.

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(Pl.’s Dep. 45:16-17).

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into a position in the sales department.

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Merritt never applied for the position, although she claims it was

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because Wagner told her he didn’t think she would be qualified due

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to her absenteeism.

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(Pl.’s Dep. 44:22-45:10).

Wagner

Merritt also asked if Wagner would look
(Pl.’s Dep. 53:3-20).

(Pl.’s Dep. 53:21-24).

Thereafter, Merritt and Wagner participated in a conference

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call with Wagner’s boss, Anne Chen (“Chen”).

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Krystofiak’s statement that Merritt was not entitled to severance

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pay.

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through her contract with her, but Chen told Merritt that she did

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not have the contract in front of her.

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explained that since Harrah’s was not eliminating Merritt’s

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position, she was not eligible for severance pay.

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then asked if they could find her another position with Harrah’s

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(Pl.’s Dep. 45:24-46:10).

Chen reiterated

Merritt requested Chen to go

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(Id.).

Furthermore, Chen

(Id.).

Merritt

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where she would not be on her feet all day.

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Wagner stated he would look into it.

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by leaving Wagner a telephone message, but did not take any further

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action.

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(Pl.’s Dep. 46:12-15).

(Id.).

Merritt followed up

(Pl.’s Dep. 46:16-25).

On March 29, 2011, Merritt applied for Social Security

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Disability Insurance Benefits (“SSDI”), claiming that she had

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become disabled and unable to work on April 26, 2010 and that she

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remains unable to work.

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(Hilden Decl. Ex. 18).

On April 4, 2011, this lawsuit was filed. (#1 Ex. A).
II. Summary Judgment Standard

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Summary judgment “shall be rendered if the pleadings, the

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discovery and disclosure materials on file, and any affidavits show

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that there is no genuine issue as to any material fact and that the

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movant is entitled to judgment as a matter of law.”

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P. 56(c).

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issue of material fact lies with the moving party, and for this

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purpose, the material lodged by the moving party must be viewed in

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the light most favorable to the nonmoving party.

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Kress & Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los

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Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998).

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fact is one that affects the outcome of the litigation and requires

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a trial to resolve the differing versions of the truth.

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Sheet Metal Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir.

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1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir.

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1982).

Fed. R. Civ.

The burden of demonstrating the absence of a genuine

Adickes v. S.H.

A material issue of

Lynn v.

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Once the moving party presents evidence that would call for

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judgment as a matter of law at trial if left uncontroverted, the

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respondent must show by specific facts the existence of a genuine

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issue for trial.

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250 (1986).

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sufficient evidence favoring the nonmoving party for a jury to

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return a verdict for that party.

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colorable, or is not significantly probative, summary judgment may

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be granted.”

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of evidence will not do, for a jury is permitted to draw only those

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inferences of which the evidence is reasonably susceptible; it may

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

“[T]here is no issue for trial unless there is

If the evidence is merely

Id. at 249-50 (citations omitted).

“A mere scintilla

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not resort to speculation.”

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585 F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (“[I]n the event

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the trial court concludes that the scintilla of evidence presented

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supporting a position is insufficient to allow a reasonable juror

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to conclude that the position more likely than not is true, the

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court remains free . . . to grant summary judgment.”).

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“[i]f the factual context makes the non-moving party’s claim of a

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disputed fact implausible, then that party must come forward with

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more persuasive evidence than otherwise would be necessary to show

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there is a genuine issue for trial.”

21

Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal.

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Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc.,

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818 F.2d 1466, 1468 (9th Cir. 1987)).

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are unsupported by factual data cannot defeat a motion for summary

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judgment.

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British Airways Board v. Boeing Co.,

Moreover,

Blue Ridge Insurance Co. v.

Conclusory allegations that

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

Finally, if the nonmoving party fails to present an adequate
opposition to a summary judgment motion, the court need not search
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the entire record for evidence that demonstrates the existence of a

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genuine issue of fact.

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Dist., 237 F.3d 1026, 1029-31 (9th Cir. 2001) (holding that “the

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district court may determine whether there is a genuine issue of

5

fact, on summary judgment, based on the papers submitted on the

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motion and such other papers as may be on file and specifically

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referred to and facts therein set forth in the motion papers”).

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The district court need not “scour the record in search of a

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genuine issue of triable fact,” but rather must “rely on the

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nonmoving party to identify with reasonable particularity the

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evidence that precludes summary judgment.”

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F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins.

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Co., 55 F.3d 247, 251 (7th Cir.1995)).

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burden to respond is really an opportunity to assist the court in

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understanding the facts.

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discharge that burden–for example by remaining silent–its

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opportunity is waived and its case wagered.”

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Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992).

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III. Discussion

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A. Disability Discrimination

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See Carmen v. San Francisco Unified Sch.

Keenan v. Allan, 91

“[The nonmoving party’s]

But if the nonmoving party fails to

Guarino v. Brookfield

Merritt’s ADA claim fails as a matter of law.

The ADA

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prohibits an employer from discriminating against a “qualified

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individual” on the basis of a disability with regards to discharge

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or failure to make reasonable accommodations to the known physical

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limitations of that otherwise “qualified individual.”

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§ 12112(a),(b)(5)(A).

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the ADA, a plaintiff must prove: 1) she is disabled; 2) she is

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42 U.S.C.A.

In order to make a prima facie case under

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qualified; and 3) she suffered an adverse employment action because

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of her disability.

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F.3d 1080, 1087 (9th Cir. 2001).

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facie burden because she failed to show she is a “qualified

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individual” with a disability.

6

Snead v. Metro. Prop. & Cas. Ins., Co., 237
Merritt has not met her prima

Merritt is a disabled person under the ADA.

A person is

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disabled under the ADA if she suffers “a physical or mental

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impairment that substantially limits one or more major life

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activities” of her person.

§ 12102(1)(A).

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are major life activities.

§ 12102(2)(A).

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Standing and walking

[S]ubstantially limits means . . . [s]ignificantly
restricted as to the condition, manner, or duration under
which an individual can perform a major life activity as
compared to the condition, manner, or duration under which
the average person in the general population can perform
that same major life activity.

14
29 C.F.R § 1630.2(j)(ii).

Merritt’s foot problems and lupus

15
constitute a disability because she could not stand or walk for
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long periods of time, she required multiple foot surgeries and was
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absent from work for substantial periods during her recovery.
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Merritt, however, was not a “qualified individual” under the
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ADA.

A “qualified individual” under the ADA is “an individual with

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a disability who, with or without reasonable accommodation, can
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perform the essential functions of the employment position that
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such individual holds or desires.”

42 U.S.C. § 12111(8).

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Essential functions are “the fundamental job duties of the
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employment position the individual with a disability holds or
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desires.”

29 C.F.R. § 1630.2(n)(1).

Factors to be considered

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include, but are not limited to: the employer’s judgment about
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28

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which functions are essential, the work experience of past

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incumbents in the job and/or current work experience of incumbents

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in similar jobs.

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§ 1630.2(n)(3).

Merritt has failed to show that she was a “qualified

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individual” because she could not attend work, and she therefore

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could not perform an essential function of her position.

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attendance may be an essential job function.

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World Airlines, Inc., 160 F.3d 442, 445 (8th Cir. 1998); Hypes v.

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First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998); Rogers v.

Regular

See Nesser v. Trans

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Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996).

11

Merritt understood that attendance was a essential function of her

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position at Harrah’s.

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Merritt’s doctor had not released her to return to work until at

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least June 30, 2010 and Merritt was not entitled to any further

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leave.

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Merritt requested a severance package because she admittedly could

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no longer work.4

18

(Pl.’s Dep. 35:9-12).

As of May 24, 2010,

(Pl.’s Dep. 48:9-14; Krystofiak Decl. Ex. A).

In fact,

See (Pl.’s Dep. 33:10-13).

Additionally, Merritt filed an application for SSDI benefits,

19

claiming she had been unable to work because of her disability

20

since at least April 26, 2010.

21

SSDI application is a factor in considering whether she was a

22

“qualified individual” under the ADA.

23

Management Systems, Corp., 526 U.S. 795, 802-03 (1999).

24

(Hilden Decl. Ex. 18).

Merritt’s

Cleveland v. Policy

An ADA plaintiff bears the burden of proving that she is
a “qualified individual with a disability” . . . . And a

25
26
27
28

4

Merritt “felt that because of [her] lupus and the increasing problems [she]
had, [she] felt bad that [she] wasn’t there to do [her] job, and [she] said maybe
it would be best if [she] just [left].” (Pl.’s Dep. 33:15-18).

14

1

plaintiff’s sworn assertion in an application for
disability benefits that is, for example, “unable to
work” will appear to negate an essential element of her
ADA case-at least if she does not offer a sufficient
explanation. For that reason, we hold that an ADA
plaintiff cannot simply ignore the apparent contradiction
that arises out of the earlier SSDI total disability
claim. Rather she must proffer a sufficient explanation.

2
3
4
5

Id. at 806.

Merritt has offered little explanation for her SSDI

6
application, except to state that “[p]laintiff’s SSDI application
7
is not dispositive, but is a factor to be considered by the jury”
8
(Pl.’s Opp’n Def.’s Mot. Summ. J., 4 (citing Cleveland, 526 U.S.
9
795)).

While partially accurate, Merritt’s explanation does not

10
create a genuine issue of material fact on whether she was a
11
“qualified individual” with a disability.

Her sworn application

12
stated that she was unable to work because of her disability at the
13
time of her termination.
14
Furthermore, personal leave was not a reasonable accommodation
15
because attendance was an essential function of Merritt’s position.
16
Merritt could not be absent while at the same time perform the
17
essential functions of her position.
18
Therefore, there is insufficient evidence to support a finding
19
that a material issue of fact exists that would establish that
20
Merritt was a qualified individual with a disability.
21
B. Age Discrimination
22
Merritt’s age discrimination claim also fails as a matter of
23
law.

The ADEA makes it “unlawful for an employer . . . to

24
discharge any individual . . . because of such individual’s age.”
25
29 U.S.C.A. § 623(a).

This prohibition is “limited to individuals

26
who are at least 40 years of age.”
27
28

15

§ 631(a).

The McDonnell

1

Douglas test framework applies to ADEA claims at the summary

2

judgment stage.

3

2012).5

4

violation of the ADEA, [plaintiff] must first establish a prima

5

facie case of age discrimination.”

6

Quaker Oats Co., 232 F.3d 1271, 1280-81 (9th Cir. 2000).

7

prima facie case using circumstantial evidence, a plaintiff must

8

demonstrate that she was: 1) over 40 years old; 2) performing her

9

job satisfactorily; 3) discharged; and 4) replaced by a

Shelley v. Geren, 666 F.3d 599, 607 (9th Cir.

“[T]o survive summary judgment on [her] claim for a

Id. at 608 (citing Coleman v.
To make a

10

substantially younger person.

11

Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.

12

1997).

13

prima facie case for . . . ADEA claims on summary judgment is

14

minimal.’”

15

Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).

16

establishes a prima facie case of age discrimination, the burden

17

then shifts to defendant to articulate a legitimate

18

nondiscriminatory reason for its employment decision.

19

plaintiff must demonstrate that the defendant’s alleged reason for

20

termination was a pretext for another motive, which is

21

discriminatory.

22

material fact as to whether she was terminated based on her age.

23

First, it is undisputed that Merritt is a member of a

Coleman, 232 F.3d at 1281 (citing

“‘The requisite degree of proof necessary to establish a

Coleman, 232 F.3d at 1281 (quoting Wallis v. J.R.

Id.

Once a plaintiff

Id.

Then,

Merritt fails to raise a genuine issue of

24
25
26
27
28

5

Defendant asserts in its motion for summary judgment (#15) that plaintiff
must prove that her age was the “but-for” cause for her termination. Gross v. FBL
Financial, 129 S. Ct. 2343, 2351 (2009).
The Ninth Circuit, however, recently
declined to extend Gross to summary judgment motions such as the one before this
court. Shelley, 566 F.3d at 607.

16

1

protected class.

2

Harrah’s.

3

performing her job satisfactorily.

4

discharged on May 24, 2010.

5

She was 61 years old when she was terminated from

(Pl.’s Compl., 1).

Second, by all accounts, she was
(Id.).

Third, Merritt was

(Hilden Decl. Ex. 17).

To support the fourth element of her prima facie case, Merritt

6

cites to a number of instances where she claims Harrah’s

7

discriminated against her because of her age.

8

states that younger employees were given more assignments than she

9

received.

First, Merritt

Particularly, she states that “older workers[’]” duties

10

were absorbed by younger persons.”

11

J., 5; Pl.’s Dep. 80:20-22).

12

older employees left, the new persons who were brought in were much

13

younger.

14

anybody in particular who replaced her, there is sufficient

15

evidence to satisfy her prima facie burden.

16

(Pl.’s Opp’n Def.’s Mot. Summ.

Second, Merritt states that when

(Pl.’s Dep. 79:9-80:6).

While Merritt does not point to

Harrah’s counters Merritt’s prima facie case with legitimate

17

nondiscriminatory reasons for her termination: 1) Merritt’s

18

absences were placing a strain on her department; 2) she could not

19

predict when she would return; 3) her authorized leave was

20

exhausted; and 4) her work required her presence.

21

Summ. J.).

22

(Def.’s Mot.

The burden shifts to Merritt to establish pretext.

Merritt states that her supervisor, Wagner, made comments

23

about her age.

24

“[y]ou’re getting up there, Sal,” and “[y]ou’re getting older.”

25

(Pl.’s Dep. 81:3-11).

26

(Id.).

27

younger hosts were get more assignments sometime in February

28

(Pl.’s Dep. 80:25-81:6)

These comments included:

This was allegedly repeated several times.

Merritt states that she complained to Wagner that the

17

1

2010–only a few months before she was terminated.

2

80:25-82:20).

3

establish discrimination.

4

F.2d 1424, 1438 (9th Cir. 1990).

(Pl.’s Dep.

Isolated comments, however, are insufficient to
See Merrick v. Farmers Ins. Group, 892

5

Merritt has presented insufficient evidence of age

6

discrimination to show that Harrahs’ legitimate reasons for

7

terminating her were pretextual.

8

C. Interference with FMLA

9

Merritt’s claim for interference with FMLA rights survives

10

Harrah’s motion for summary judgment.

11

employees up to twelve weeks of absences for personal or family

12

illnesses each year.

13

covered employer from using FMLA leave as a negative factor in its

14

employment decisions.

15

29 U.S.C. § 2612.

The FMLA entitles eligible

The FMLA prohibits a

29 C.F.R. § 825.220(c).

20

The regulation promulgated by the Department of Labor, 29
C.F.R. 825.220(c) plainly prohibits the use of FMLAprotected leave as a negative factor in an employment
decision. In order to prevail on her claim, therefore,
[plaintiff] need only prove by a preponderance of the
evidence that her taking of FMLA-protected leave
constituted a negative factor in the decision to
terminate her. She can prove this claim . . . by using
direct or circumstantial evidence, or both . . . . No
scheme shifting the burden of production back and forth
is required.

21

Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th

22

Cir. 2001).

23

“negative factor” in its decision to terminate her.6

16
17
18
19

Merritt claims Harrah’s used her past FMLA leave as a
(Pl.’s Opp’n

24
25
26
27
28

6

Merritt also claims that her termination occurred before her return from
medical leave.
(Merritt Decl., 1).
Merritt’s assertion is incorrect.
First,
Merritt used up all of her FMLA leave as of September 28, 2009. (Krystofiak Decl.
Ex. A). Second, Merritt’s termination came on the heels of her exhaustion of HML-5
leave. (Id.). This was exhausted on May 23, 2010. (Id.).

18

1
2

Def.’s Mot. Summ. J., 5).
Merritt asserts that temporal proximity may create an

3

inference that Merritt’s FMLA leave was a negative factor in

4

denying her personal leave and thus her termination.

5

Def.’s Mot. Summ. J., 5). Considering all the evidence in favor of

6

Merritt, a reasonable inference can be drawn that Harrah’s

7

considered Merritt’s past FMLA leaves in making its decision to

8

terminate her.

9

(Pl.’s Opp’n

Harrah’s motion for summary judgment cites repeated FMLA

10

approved absences over the years.

11

the fact that Harrah’s continually granted Merritt’s FMLA requests

12

and did not discourage her from taking these leaves, they also

13

reflect that Merritt was terminated soon after her approved

14

absences expired.

15

Harrah’s took into account Merritt’s past FMLA leaves in its

16

determination to terminate her employment and that this constitutes

17

a negative factor in Harrahs’ decision to terminate Merritt.

While these citations support

A reasonable inference can be drawn that

18

Therefore, a genuine issue of material fact remains as to

19

whether Merritt’s previous FMLA absences were a negative factor in

20

her termination on May 24, 2010.

21

D. Breach of Contract

22

For the same reasons that Harrah’s motion for summary judgment

23

on Merritt’s FMLA claim is denied, so must defendant’s motion for

24

summary judgment on Merritt’s breach of contract claim be denied.

25

Merritt asserts that Harrah’s breached her employment contract

26

because she was terminated without cause and did not receive 26

27

weeks of severance pay.

28

Merritt’s contractual period ran from
19

1

April 31, 2009 to March 31, 2011.

2

Therefore, she was under contract when she was terminated.

3

(Pl.’s Dep. 34:3-25).

Section 6(d) of Merritt’s contract provides that an employee

4

who is terminated without cause shall receive 26 weeks of salary.

5

(Hilden Decl. Ex. 19).

6

that “a breach by Employee of any material provision of this

7

Agreement . . . or of the rules contained in the Company’s Employee

8

Handbook . . .” shall be considered a separation for cause.

9

Harrah’s has presented evidence that Harrah’s attendance policy

Section 5(b)(viii) of the contract provides

(Id.).

10

required employees to attend work unless their absence was

11

approved.

12

Employee Handbook and Merritt was aware that attendance was a

13

requirement of her position.

14

one or two days following her HML-5 leave because she did not come

15

to work.

16

and her podiatrist indicated that she could not return until at

17

least June 30, 2010.

(Pl.’s Dep. 35:21-36:9).

This policy is part of the

(Pl.’s Dep. 35:9-16).

See e.g. (Hilden Decl. Ex. 17).

Merritt missed

Additionally, both she

(Pl.’s Dep. 47:14-48:14).

18

Harrah’s also claims that Merritt did not give her best

19

efforts pursuant to section 3 of the employment agreement and this

20

constituted a material breach of the agreement.

21

Ex. 19).

22

Merritt gave her best efforts under section 3 of the agreement.

23

See (Hilden Decl.

However, issues of material fact exist as to whether

On the current record, a reasonable jury could infer that

24

Merritt was terminated without cause.

25

E. Tortious Breach of Implied Covenant of Good Faith and Fair

26

Dealing

27
28

To prevail on Merritt’s tortious breach of the implied
20

1

covenant of good faith and fair dealing, plaintiff must prove: 1)

2

contractual rights of continued employment with the defendant; 2) a

3

relationship of trust, reliance and dependency with the defendant;

4

3) justified expectations of the contract that were denied; and 4)

5

damages.

6

226, 232-33, 808 P.2d 919 (1991); D’Angelo v. Gardner, 107 Nev.

7

704, 712-13, 819 P.2d 206 (1991).

8
9

See Hilton Hotels v. Butch Lewis Productions, 107 Nev.

Merritt has provided evidence she was entitled to continued
employment.

She was not an at will employee.

Merritt was a party

10

to an employment agreement with Harrah’s, extending from April 30,

11

2009 to March 31, 2011.

12

on May 24, 2010.

13

support a reasonable conclusion her termination was without cause.

14

(Pl.’s Dep. 34:3-25).

E.g. (Hilden Decl. Ex. 17).

She was terminated
This evidence may

However, Merritt failed to establish she has a special

15

fiduciary relationship with Harrah’s.

16

reliance and dependency is not automatically deemed to exist in an

17

employment relationship.”

Alam v. Reno Hilton, Corp., 819 F.Supp.

18

905, 910 (D. Nev. 1993).

She has presented no evidence to support

19

this element of her claim.

20

“A special relationship of

Therefore, the court does not need to consider the other

21

elements of her good faith and fair dealing claim.

22

summary judgment is appropriate on this claim.

23

///

24

///

25

///

26

///

27

///

28

21

Accordingly,

1
2

IV. Conclusion
Harrahs’ motion for summary judgment (#15) is GRANTED in part

3

and DENIED in part.

4

Merritt’s ADA, ADEA and tortious breach of contract claims is

5

GRANTED.

6

for interference with FMLA and breach of contract claims is DENIED.

Harrahs’ motion for summary judgment on

Harrahs’ motion for summary judgment on Merritt’s claim

7

IT IS SO ORDERED.

8

DATED: This 26th day of July, 2012.

9
10

____________________________
UNITED STATES DISTRICT JUDGE

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