Desmond v. Charles Town Gaming, L.L.C., d/b/a Charles Town Races & Slots, No. 08-1216 (4th Cir. Apr. 30, 2009); Buonanoma v. Sierra Pacific Power Co., No. 05-17195 (9th Cir. Apr. 29, 2009)

| Apr 29, 2009 | Daily Developments in EEO Law |

One of the things we like about employment law is that we get to learn what other people do for a living, and this Fourth Circuit FLSA case opens a door into a world of work in the gaming industry. The Ninth Circuit, in an unpublished decision, reverses summary judgment in an age and sex discrimination case.

Desmond v. Charles Town Gaming, L.L.C., d/b/a Charles Town Races & Slots, No. 08-1216 (4th Cir. Apr. 30, 2009):  The issue on appeal is whether the plaintiffs — Racing Officials — fell within the “administrative exemption” of the FLSA (the district court granted summary judgment on the affirmative defense; the panel reverses and remands for trial).  Their tasks involved the staging of each day’s races:

“In the morning and on non-race work days, Racing Officials assist with clerical duties in the secretaries’ office, including noting rider changes, putting together the next day’s racing program, and completing racing entries for the following day. Racing Officials, including the Former Employees, rotated work in four roles: Placing Judge, Paddock Judge, Horse Identifier, and Clerk of Scales during horse races.”

Each role is essential and at the same time esoteric.  The Placing Judge watches the races and calls the winners; the Paddock Judge inspects the horses for compliance with the rules; the Clerk of Scales inspects the jockies; and (my favorite) the Horse Identifier makes sure that each horse is who they claim they are (i.e. “responsible for foal papers, Coggins test results, and tattoos insuring the correct horse is running in any given race. The [Horse] Identifier goes to the paddock at race time and checks each horse’s tattoo”).

The panel rejects the argument, tendered by the defendant, that because the Racing Officials must be present for the race course to lawfully operate, that they should thus be regarded as “indispensible” under the exemption.  Holds the panel:

“State or local law may also require a construction company to post a flagman around a highway work site in order to coordinate traffic, but no colorable argument can be made that the flagman’s work is directly related to the construction company’s general business operations. Looking to the ‘significance’ or ‘indispensability’ of a position within a company’s business operations diverts attention from the requisite inquiry. Both the FLSA and its regulations make clear that an employee is exempt based on the type of work performed by that individual, not whether business practice or applicable law require a particular position to exist. Therefore, the district court erred in holding that the Former Employees’ work was directly related to Charles Town Gaming’s business operations because that work was necessary in order for the company to operate lawfully.”

Buonanoma v. Sierra Pacific Power Co., No. 05-17195 (9th Cir. Apr. 29, 2009):  The panel cuts to the facts establishing pretext in an ADEA and Title VII case —

“SPPC offered his poor performance as a non-discriminatory reason for his removal from the Team Leader position. Buonanoma offered circumstantial evidence that this reason was pretextual including: (a) seventeen years of prior service at SPPC; (b) evidence that his supervisor had thought he was not qualified to be a Team Leader before he was appointed as Team Leader; (c) a course of treatment by management that arguably mirrors an improper method for disposing of older workers; (d) evidence that from the time he was appointed Team Leader, his supervisor kept a file on him arguably in anticipation of firing him; (e) evidence that his supervisor continued to be dissatisfied with Buonanoma even after he received a satisfactory evaluation; (g) evidence that his supervisor misled Buonanoma concerning the time of the ‘anthrax meeting’; and (h) evidence that even during his last six months at SPPC he performed useful work. This circumstantial evidence is sufficiently ‘specific and substantial’ to defeat SPPC’s motion for summary judgment, as it raises material questions of fact concerning SPPC’s reason for terminating his employment.”

The panel also observes that although Buonanoma (age 47) was replaced by someone just five years younger than himself, “the person who replaced him was then replaced by an even younger employee.”  On the same rationale, because he was replaced by a woman, the panel also remands the case for trial on the sex discrimination theory.  (Still, all is not peaches and cream:  summary judgment is affirmed on a race discrimination claim, and the plaintiff’s attorney separately fails to win a reversal of a $3500 sanction and mandatory CLE classes for a bad faith joinder of the defendant’s lawyer as an addition al defendant.)

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