United States District Court, D. Nevada
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).
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.
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).
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.
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.
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.
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.
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).
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).
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.
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.
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).