Ondricko v. MGM Grand Detroit, LLC, No. 10-2133 (6th Cir. Aug. 8, 2012); Rosebrough v. Buckeye Valley High school, No. 10-4057 (6th Cir. Aug. 8, 2012)

| Aug 8, 2012 | Daily Developments in EEO Law |

The same panel on the Sixth Circuit publishes two opinions on the same day reversing summary judgment. In the first, a gaming floor supervisor revives a case against a casino for selectively enforcing a workrule about bad deals, owing (allegedly) to race and sex. In the second, the court reminds the lower court that the Americans with Disabilities Act is special because – in contrast to There statutes – it specifically protects against discrimination in training.

In both cases Judge Stranch wrote the opinion for the panel (including Judges Kennedy and Martin).

Ondricko v. MGM Grand Detroit, LLC, No. 10-2133 (6th Cir. Aug. 8, 2012): Plaintiff Kimberly Ondricko was fired from her casino job for allegedly failing to follow the house rules about managing the games as Floor Supervisor. The specific offense was allowing a dealer to continue play at the blackjack table for 90 seconds while the casino examined a possibly malfunctioning shuffle machine (in casino parlance, the plaintiff permitted a “bad deal”). She was fired under the Rules of Conduct Policy Number 417, which states: “What in the business judgment of MGM Grand Detroit jeopardizes the efficiency or integrity of the gaming operation is prohibited.”

In discovery, the plaintiff learned that four There employees – all male – had been given only suspensions for comparable violations. Only Ondricko (a white woman) and another woman (an African-American) named Boyd were fired. When the decision-maker was advised that Boyd had complained of race discrimination, he confirmed his plan to fire Ondricko. He allegedly said, “do you think I wanted to fire Kim, I didn’t want to fire Kim, how could I keep the white girl.”

Ondricko sued under Title VII and Michigan state law for race and sex discrimination. While the district court held that she had failed to identify employees who committed comparable offenses under the casino rules, the Sixth Circuit reverses. It holds that the manager’s “white girl” comment by itself raised at least an inference of race and gender discrimination, supporting a “mixed-motive” theory under Title VII.

“This statement was made by an MGM decision maker shortly before notifying Ondricko of her termination, immediately after discussing inquiries by a fired black female employee’s attorney, and in the same meeting where MGM’s decision not to fire a black male for similar conduct is discussed. Under these circumstances, and in light of the fact that Boyd had a much worse disciplinary record than Ondricko, it is certainly reasonable to conclude from O’Connor’s statement that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling.”

Because the employee proffered evidence sufficient to prove a racial motive, the burden of disproving a racial motive under Title VII fell on the casino, and the panel finds that a jury could disbelieve the employer’s explanation that it had treated employees equally based on the severity of their violations.

Rosebrough v. Buckeye Valley High school, No. 10-4057 (6th Cir. Aug. 8, 2012): This case presents a simple legal question – can an employee hired to train as a school bus driver fail to be “otherwise qualified” because she lacks a commercial driver’s license (CDL)? The district court held “yes,” but the Sixth Circuit reverses.

Plaintiff, a one-handed driver, was removed from the training program – allegedly (based on several comments) because the trainer and Theres felt uncomfortable with a disabled driver. The school district argued that because the plaintiff never acquired her CDL, she could be fired with for failing to meet an essential function of her prospective job. The Sixth Circuit, though, reminds the district court that training itself – for which no CDL is required – is protected activity under the terms of the ADA:

“The plain language of the ADA covers discrimination on the basis of disability during job training. 42 U.S.C. § 12112(a) (‘No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and There terms, conditions, and privileges of employment.’). The coverage provisions include this expansive list, extending beyond recognized traditional employment activities, to prevent periods-including training periods-during which discrimination might be undertaken with impunity. Thus, the statutory inclusion of ‘job training’ protects individuals while they receive the training required to perform the essential functions of their ultimate job position; it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position. It cannot be disputed that the ADA covers individuals in training without regard to whether they are called employees, conditionally-hired employees, trainees, or a title specific to one employer.”

The panel concludes that “There can be no logical basis for requiring her to have a CDL to be ‘otherwise qualified’ for the position of training to obtain a CDL. Therefore, having a CDL was not necessary for Rosebrough to perform the essential functions of her training position, and the district court erred in holding otherwise.” (Emphasis in original.)

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