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Rosales v. Bellagio, LLC

United States District Court, D. Nevada

March 27, 2019

JORGE ROSALES, Plaintiffs,
v.
BELLAGIO, LLC, Defendants.

          ORDER

         Presently before the court is defendant Bellagio, LLC's (“Bellagio”) motion for summary judgment. (ECF No. 20). Plaintiff Jorge Rosales filed a response (ECF No. 23), to which Bellagio replied (ECF No. 27).

         Also before the court is Bellagio's motion for leave to file excess pages. (ECF No. 26). Rosales did not file a response and the time to do so has passed.

         I. Facts

         Bellagio hired Rosales as a room service food server on September 28, 1998, and kept Rosales employed in that capacity until April 28, 2016. (ECF Nos. 1-1, 20). Rosales' work responsibilities included delivering food and beverage orders from the kitchen to hotel guests. (ECF No. 20-2). These tasks required Rosales to lift heavy items such as a hotbox that weighs approximately 36 pounds. (ECF Nos. 20, 20-1, 23).

         On May 15, 2013, Rosales injured his neck, back, and right shoulder while performing his job duties. (ECF No. 20-1, 23-4). In September 2014, Rosales underwent surgery on his shoulder. (ECF No. 20-1). Because his pain persisted for another year, Rosales had a second surgery in September 2015. Id. In March 2016, Rosales' doctor recommended that Rosales “return to work with permanent restrictions including maximum lifting of 36 pounds and avoidance of repetitive movements of the neck and avoidance of repetitive reaching overhead on the rights side.” Id.

         When Rosales initially returned to work, Jessica Harbaugh, a human resources personnel at Bellagio, prevented Rosales from working due to the restrictions that Rosales' doctor recommended. Id. Harbaugh contacted Mahnaz Gholizadeh, the director of in-room dining, to determine what accommodations could allow Rosales to perform his job duties. Id. Gholizadeh informed Harbaugh that there was no reasonable accommodation that would allow Rosales to return to work because servers regularly lift heavy objects, reach overhead, and move their necks respectively. Id. After conducting her own investigation into the duties of a server, Harbaugh agreed with Gholizadeh's assessment. Id.

         Eventually, Rosales met with Harbaugh to discuss if there was any accommodation that would allow Rosales to return to work. Id. Rosales informed Harbaugh that he could return to work if his duties were restricted to “light orders, just, like, coffee orders, amenities, regular orders that didn't involve to much effort.” Id. Bellagio determined that such a restriction would prevent Rosales from performing the essential functions of his job and that an alternative accommodation was not available. Id.

         Harbaugh subsequently offered Rosales Bellagio's job placement assistance program, where Bellagio would work with Rosales to find a vacant position at any MGM Resorts property that Rosales would be able to perform with or without accommodations. Id. Rosales agreed to meet with Harbaugh on a weekly basis so she could assist him in finding a new position. Id. Under the job placement assistance program, Rosales would have 30 days, from March 28, 2016, to April 27, 2016, to conduct the job search. Id.

         Harbaugh spoke with Rosales about his job skills and provided him with a list of jobs available at Bellagio on three different occasions. Id. On April 11, 2016, Rosales met with Harbaugh and informed her that he did not want to work a new job because he would lose his seniority status. (ECF Nos. 20-1, 23-4). Bellagio contends that after the April 11, 2016, meeting, Rosales ceased to meaningfully participate in the job placement assistance program. (ECF No. 20). When the 30-day search period ended, Rosales did not request to extend the job search. (ECF No. 20-1).

         On April 28, 2016, Bellagio terminated Rosales because he was unable to perform the essential functions of a server and declined to pursue other available positions within the company. Id. At the time of termination, Rosales was 66 years old. (ECF No. 1-1).

         Rosales thereafter initially agreed to participate in Bellagio's vocational rehabilitation program. (ECF No. 20-1). Rosales elected to go to Briarwood College to take an 18-month course to obtain a college degree that would allow him to work with medical records. Id. Bellagio agreed to pay Rosales $1, 800 per month while taking the course. Id. However, Rosales quit the vocational training program because he was afraid that the course would give him a brain stroke. Id.

         On September 6, 2017, Rosales initiated this action in state court. (ECF No. 1-1). In his complaint, Rosales asserts four causes of action: (1) discrimination in violation of the Americans with Disabilities Act (“ADA”); (2) discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); (3) discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII); and (4) discrimination in violation of the Civil Rights Act of 1966. Id.

         On December 27, 2017, Bellagio removed this action to federal court. (ECF No. 1). Now, Bellagio moves for summary judgment on all four causes of action. (ECF No. 20).

         II. ...


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