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U.S. Equal Employment Opportunity Commission v. Wynn Las Vegas, LLC

United States District Court, D. Nevada

July 10, 2018





         Before 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.


         On 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).

         The 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.


         A. Motion for Summary Judgment

         Summary 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).


         A. Undisputed Facts

         The 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.

         Defendant 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.

         Hussey 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.

         Defendant 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.”

         Defendant 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.”

         Hussey 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.

         Concurrent 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.

         Prior 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 ...

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