United States District Court, D. Nevada
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
WYNN LAS VEGAS, LLC, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
this Court are Defendant Wynn Las Vegas
(“Defendant”)'s Motion for Summary Judgment
(ECF No. 26) and Plaintiff U.S. Equal Employment Opportunity
Commission (“EEOC” or
“Plaintiff”)'s Partial Motion for Summary
Judgment (ECF No. 27). For the reasons stated below, both
Motions are denied.
September 16, 2016, Plaintiff filed its Complaint with Jury
Demand against Defendant. (ECF No. 1). Plaintiff asserts the
following causes of action: (1) failure to provide a
reasonable accommodation in violation of the Americans with
Disabilities Act (“ADA”); (2) failure to engage
in the interactive process in violation of the ADA; and (3)
retaliation in violation of the ADA. Defendant filed its
Answer on November 14, 2016. (ECF No. 5).
parties filed their respective Motions for Summary Judgment
on September 22, 2017. (ECF Nos. 26, 27). Responses were
filed on October 27, 2017. (ECF Nos. 28, 29). Plaintiff filed
an Errata to its Response on November 8, 2017. (ECF No. 30).
On November 9, 2017, Defendant filed its Reply. (ECF No. 31).
On November 10, 2017, Plaintiff filed its Reply. (ECF No.
32). The Court held a hearing on the matter on July 9, 2018,
and took the matter under submission.
Motion for Summary Judgment
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show “that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); accord Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). When considering the propriety of summary
judgment, the court views all facts and draws all inferences
in the light most favorable to the nonmoving party.
Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th
Cir. 2014). If the movant has carried its burden, the
non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts . .
. . Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Scott v.
Harris, 550 U.S. 372, 380 (2007) (alteration in
original) (quotation marks omitted).
Court finds that the following facts are undisputed.
Plaintiff brings this suit on behalf of Soloman Hussey
(“Hussey”), a United States Army veteran who
served in the Iraq War. Hussey is a former employee of
Defendant. Hussey was diagnosed with Post Traumatic Stress
Disorder (“PTSD”) after his military service. He
first received treatment by the United States Department of
Veterans Affairs Southern Nevada Healthcare System
(“VA”) in December 2008.
is a major casino resort in Las Vegas, Nevada. Defendant
hired Hussey in February 2007 as a full-time security
officer. At the time of his employment, Hussey received a Job
Summary for his security officer position and signed it,
representing to Defendant that he was capable of performing
the position's essential functions. Later in 2007, Hussey
became a bike security officer. The bike security officer
position is different from a regular security officer in that
a bike security officer receives additional training on
riding and maneuvering a bike, and is required to patrol the
exterior of Defendant's resort property. The training for
this position is two or three days long. As a bike officer,
Hussey was responsible for patrolling and monitoring his
assigned areas to provide a safe environment for
Defendant's guests and employees. Hussey's job
involved responding to emergency situations as needed. As a
bike security officer, Hussey was required to be physically
present at work, inasmuch as he could not perform any of his
job duties if he was absent from work.
performed his job as a bike security officer for Defendant
without incident throughout 2007, 2008, 2009 and the first
half of 2010. During his employment, he performed
satisfactorily and was never counseled or disciplined for any
attendance or performance problems. Hussey never shared his
PTSD diagnosis with any management official at Defendant
until the summer of 2010. That summer, Hussey started
experiencing problems with the medication he was taking for
his PTSD. As a result, Hussey spoke with his then-Shift
Manager, Tammy Rogers (“Rogers”), in early August
2010, telling her he had PTSD and informing her that he might
need to take some leave. At that time, Hussey described his
working relationship with Rogers as “real good.”
Rogers had never issued any disciplinary action to Hussey
throughout his entire employment with Defendant. In response
to Hussey's disclosure of his PTSD, Rogers advised him to
fill out paperwork for Family and Medical Leave Act
(“FMLA”) leave so that leave would cover whatever
he needed for his condition.
provided Hussey with FMLA medical certification forms on
August 3, 2010 to be completed by his health care provider
and returned by August 18, 2010. Hussey gave the forms to
Mildred L. Martin, RN (“Nurse Martin”), a nurse
practitioner at the VA who was then treating Hussey for his
PTSD. At that time, Nurse Martin did not complete the medical
certification form, and instead gave Hussey a letter dated
August 24, 2010 to provide to his employer. In late August
2010, Hussey furnished that letter to Defendant. In her
letter, Nurse Martin made the following recommendations for
Hussey: “It is recommended that he be permitted to
change duties and times to a less stressful situation when
needed. It is advised that he may need time to make
adjustments in an environment that is quieter that allows for
time to rest and readjust. She concluded in the letter:
“Therefore, I am requesting that this worthy
veteran's needs be considered when he reports to
supervisors that his anxiety and his inability to stay
focused is increasing and he may need to leave work before he
loses control in specific situations.” Between late
August and October 2010 Hussey did report to Rogers on one or
two occasions that his anxiety was increasing. Hussey admits
that when he reported his increased anxiety to Rogers, he
told Rogers he needed to step away from his duties. In
response, Rogers said, “Okay.”
issued a new certification form to Hussey on August 31, 2010
and requested its completion and return by September 15,
2010. This time, Nurse Martin did complete the medical
certification form, which she signed and dated September 8,
2010. In her certification, Nurse Martin stated that when
Hussey's PTSD symptoms arose, she suggested that his
employer allow him an opportunity “to deescalate in
certain times during his work hours [because that] is what he
deserves and needs . . . .” When asked in the medical
certification whether Hussey's condition would cause
episodic flare-ups that would prevent him from performing his
job functions, Nurse Martin stated: “PTSD symptoms
often present, negative behavior therefore leaving [sic] for
short times and/or changing hours are important.” At
the conclusion of the certification, Nurse Martin was asked
in Question 7(d) to estimate the “frequency of
flare-ups and the duration of related incapacity”
Hussey may have over the next 12 months. In response, Nurse
Martin wrote, “NA. Not a concrete time span or limit
can be predicted.”
provided the medical certification form to Defendant around
September 11, 2010. Upon receipt of the medical certification
form, Defendant's Employee Relations Department noted
that Question 7(d) pertaining to frequency and duration of
flare-ups had not been completed. Thus, Defendant advised
Hussey that his certification was deficient, and that his
health care provider needed to complete Question 7(d).
Defendant then gave Hussey until September 26, 2010 to return
the updated certification. Hussey did not provide an updated
or additional medical certification form to Defendant from
Nurse Martin or any other health care provider.
with Hussey's initial disclosure of his PTSD to Rogers in
early August 2010, Defendant's Security Department was
then experiencing a staffing shortage among its security
officers. Due to the staffing shortage, Security management
imposed a requirement in the summer of 2010 for all security
officers to work mandatory overtime, which included having
officers work on their regularly scheduled days off.
Defendant's then-Executive Director of Security, Marty
Lehtinen (“Lehtinen”), addressed the situation in
a memorandum dated August 2, 2010, and explained that
Defendant was in the process of hiring approximately 53
additional security officers. As of August 2010, Defendant
had a total of six (6) bike officers working on the graveyard
shift, including Hussey. While bike officers did require some
additional training, nothing prevented other security
officers from being so trained if they so desired and were
permitted to do so by Defendant.
to the mandatory overtime directive to all security officers,
Hussey had a regular work schedule as a bike security officer
from 12:00 a.m. until 8:00 a.m. on the graveyard shift. He
worked Monday through Friday, and had Saturdays and Sundays
as his regular days off. Between August 24, 2010, the date of
Nurse Martin's initial letter, and October 10, 2010,
Hussey worked a total of 13 extra days in addition to his
regular 5-day work schedule. These extra days primarily
consisted of Hussey ...