Smith v. Caesars Baltimore Management Company, L.L.C.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE

         In this employment case, Diana Smith filed suit against Caesars Baltimore Management Company, LLC, trading as Horseshoe Baltimore Management Co. (“Caesars” or the “Company”), alleging that she was terminated in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., and the Maryland Fair Employment Practices Act (“FEPA”), Md. Code (2014 Repl. Vol., 2018 Supp.), § 20-606 of the State Government (“S.G.”) Article. See ECF 2 (the “Complaint”); ECF 13 (“First Amended Complaint”); ECF 25 (“Second Amended Complaint”).^[1]According to Smith, Caesars suspended her and then terminated her for taking FMLA leave to bring her minor son to a doctor for an asthma episode. See ECF 25 at 3-5 (citing 29 U.S.C § 2615(a)). She also claims that her supervisors gave her “a disapproving look” when she informed them of her pregnancy. ECF 25, ¶¶ 2, 21-28 (citing S.G. § 20-606).

         Following discovery, Caesars moved for summary judgment (ECF 39), supported by a memorandum of law (ECF 39-1) (collectively, the “Motion”) and numerous exhibits. ECF 39-3 to ECF 39-40. Plaintiff opposes the Motion (ECF 40, the “Opposition”) and has submitted several exhibits. ECF 40-1 to ECF 40-13; ECF 40-16. Notably, in her Opposition, plaintiff abandoned her claim of pregnancy discrimination due to a lack of evidence. ECF 40 at 3. Defendant replied (ECF 43) and filed an additional exhibit. ECF 43-1.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall DENY defendant's Motion. ECF 39.

         I. Factual and Procedural Background ^[2]

         On July 28, 2014, Smith began working as a slot attendant at the Horseshoe, a Baltimore casino operated by Caesars. ECF 39-25, ¶¶ 2, 4; ECF 39-4 at 3: 9-12. When she started work, she received an employee handbook. ECF 39-4 at 11:10 to 12:2; ECF 39-5 at 2. Between October 2014 and January 2015, she received two “documented coachings” for failure to follow Company policies. ECF 39-6 at 2; ECF 39-7 at 2. The first coaching resulted from absences from work, in violation of defendant's attendance policy. ECF 39-6 at 2. The second coaching resulted from her failure to turn in unspecified receipts. ECF 39-7 at 2.

         In December 2015, Smith applied for intermittent FMLA leave-“leave taken in separate blocks of time due to a single qualifying reason”-so that she could tend to her son. 29 C.F.R. § 825.202(a); ECF 39-4 at 24:1-8. I shall refer to Smith's son by his initials, “A.C.”, to protect his privacy. Born in 2013, A.C. suffers from dermatitis, asthma, and allergies related to his asthma. ECF 40-1, ¶ 3.

         To effectuate her requested leave, Smith contacted human resources (“HR”), and H.R. provided Smith with a phone number to call Caesars' centralized employee service center (“ESC”). ECF 39-4 at 24:5. ESC administers FMLA leave for Caesars. ECF 39-25, ¶ 10. Supervisors at the Horseshoe do not make decisions regarding FMLA leave, such as eligibility for FMLA leave, certification for FMLA leave, or length of FMLA leave. Id. ¶¶ 10-11.

         When Smith called the phone number, the ESC instructed her to obtain information from her son's doctor and to fax it to them for approval. ECF 39-4 at 24:6-7. She followed their instructions, and submitted a “Family Member Serious Health Condition Leave Certification Form” to the ESC on January 6, 2016. Id. at 24:12 - 25:21; see also ECF 39-8 (incorrectly noting the date as January 6, 2015).

         The ESC approved plaintiff's request for intermittent FMLA leave for a one-year period from January 5, 2016 to January 5, 2017. ECF 39-4 at 27:19-21. By letter dated January 13, 2016 (ECF 39-26), the ESC informed Smith's then-supervisors in the Slots Department that she had been approved for intermittent FMLA leave. ECF 39-25, ¶ 13. The letter did not state the reason for Smith's FMLA leave, nor was it sent to any other department, such as the Food and Beverage Department where Smith would later work. Id. ¶ 14; ECF 39-26 at 3.

         The ESC directed Smith to use the call-out line to request leave. ECF 39-4 at 30:12 - 31:6 She was directed to say: “This is Diana Smith. I'm calling out for this date and I'm using FMLA for my son.” Id. Pursuant to Caesars' employee handbook, “[w]hen a Team Member calls off for intermittent leave she/he must confirm that the absence is related to a previously approved FMLA leave.” ECF 39-28 at 3. In 2016, Smith took FMLA leave on at least three days, with the last occurring around August 13, 2016. ECF 39-25, ¶ 16; ECF 29-27.

         At her deposition, Smith testified that she was familiar with the process of requesting FMLA leave. ECF 39-4 at 32:9-11. She also testified that she was not treated differently after applying for FMLA leave, nor after being approved for intermittent FMLA leave. Id. at 32:15-20. Further, she stated that no one interfered with her use of intermittent FMLA leave. Id. at 32:21 - 33:5. After her intermittent FMLA expired on January 5, 2017, Smith did not contact ESC to renew the approval for intermittent leave. Id. at 33:6-8. Nor did she use FMLA leave in 2017, other than the contested use on May 19 and May 20 of 2017, discussed below. Id. at 29:21 - 30:2.

         On November 18, 2016, Smith was promoted to “Supervisor” in the Beverage Department. See ECF 39-25, ¶ 7. In this new role, she was responsible for overseeing between 25 and 40 employees, ensuring that the cocktail servers provided “proper service, ” and “assigning responsibilities and job duties to the bar porters, bartenders, and servers” throughout the casino. ECF 39-4 at 5:18 - 6:3; ECF 39-10 at 3:11-16.

         Upon Smith's transfer to the Beverage Department, she reported to different managers. ECF 39-25, ¶ 8. The Food and Beverage Department, where Smith worked, was led by the Vice President of Food and Beverage, Jay Lattimer. Food and Beverage Operations Manager Henry Olaya served underneath him. Kristin Carter served under Olaya as the Assistant Beverage Manager; she was also Smith's direct supervisor. Smith and at least three other employees were Beverage Supervisors. ECF 39-31, ¶ 9. None of Smith's supervisors had managed her when she was a slot attendant. ECF 39-25, ¶ 9.

         In March 2017, plaintiff received a “documented coaching” for failing to report to work with her gaming license. ECF 39-11. On April 26, 2017, Smith emailed Olaya stating: “I would like to request 5/19 - 5/22/17 off it is very important. Pleaaaaaasssseeeeee if poosible [sic].” ECF 39-12. Olaya replied by email, informing her that he could only approve time off for May 21 and May 22, 2017. ECF 39-13. Olaya marked these two days as “personal time off” on office-wide schedules that he circulated on April 30, 2017. ECF 39-14; ECF 39-15.

         At plaintiff's deposition, defense counsel asked her why the time off was important to her. Smith explained: “I felt very overworked . . . I just found out I was pregnant and I needed some time off.” ECF 39-4 at 33:21 - 34:4. Further, she testified that she chose those specific days because she “knew probably no one else would have those days.” Id. at 34:5-8. And, in her Declaration (ECF 40-1), she stated that she made the request because her “PTO was expiring” and May 20, 2017 was her friend's birthday. Id. ¶ 17.^[3]

         On May 17, 2017, Smith received a call from her sister, inviting her to go to Ocean City, Maryland. ECF 39-4 at 35:18-19. Smith testified that she told her sister: “I had to be home with the baby on May the 19th or I told her I had to work on May the 19th and May the 20th.” Id. at 35:20 - 36: 1. As of May 18, 2017, Smith had agreed to go to Ocean City on May 21 and return on May 22. Id. at 35:11-15.

         While working at the Horseshoe on May 18, 2017, Smith received a phone call from Sharon Uzzell, her son's daycare provider. ECF 40-1, ¶ 6. Uzzell told Smith that A.C. was wheezing and having problems breathing. Id. Smith contacted the office of her son's physician, Dr. Kevin Kelly, but she could not get an appointment for A.C. until the next day. Id. ¶ 7. Smith was afraid that A.C.'s condition would worsen, as it had in the past when A.C. did not receive prompt medical care. Id. ¶ 8. Furthermore, Smith was running out of A.C.'s nebulizer formula and Ventolin solution for his inhaler. Id. But, Smith did not want to take the child to any other healthcare provider because Dr. Kelly had the most familiarity with A.C.'s condition. Id.

         Between May 4, 2016 and May 18, 2017, Dr. Kelly treated A.C. for asthma and allergies on six different occasions. ECF 40-1, ¶ 5. For A.C.'s previous asthma episodes, Dr. Kelly had directed Smith to stay home with A.C. for two days. Id. ¶ 13. Therefore, Smith attempted to find a substitute to fill in for her on May 19 and May 20, 2017. However, she was unsuccessful. Id.

         On May 18, 2017, Smith's supervisors received information that Smith planned to use the hourly employee call-out line to take time off from work on May 19 and May 20, 2017. ECF 39-10 at 7: 8-10; ECF 39-22, ¶ 3; ECF 39-23 at 2. Kristen Carter, Smith's immediate supervisor, called Smith around 5:30 p.m. on May 18, 2017. ECF 39-4 at 40:2-10; ECF 39-31, ¶ 3. At Smith's deposition, she recounted the call, ECF 39-4 at 40:12-20:

[Carter] said that [she] was told that [Smith] might be calling out tomorrow which is May 19th for [Smith's] son. And I told her, yes, I was trying to get [Beverage Supervisors] Katya [Waters] and Lisa [Petkovich] to work for me and both of them told me that they couldn't work for me. So I was trying to call around to see if someone else can take my son to the doctor's and I hadn't heard anything yet, but I wasn't going to call out yet. But if I do, I was going to let you all know.

         Smith also told Carter, “I will have to take leave for my son on [May 19 and] May 20, 2017.” Id. at 43:7-15. And, Smith said that if her son was feeling better, she might make a doctor's appointment for herself because she has also been sick. Id. at 42:11-16.

         Carter asked what Smith would be doing on May 20. Id. at 41:10-11. Smith responded, “[C]an you grant me May 20th off also because I know that I will have to continue treatment for my son for 24 hours which will be May the 20th.” Id. at 41:11-14. Carter said yes, and asked whether Smith's “son was okay.” Id. at 41:15-16, 42:2.

         At some point during the call, Smith told Carter that she intended to use the call-out line. Id. at 40:21 - 41:3. Carter replied that using the call-out line “was inappropriate because managers and supervisors don't use the call out line.” Id. at 41:4-5. “So [Smith] said okay.” Id. at 41:5-6. In Carter's Declaration, she explained that it is a violation of Horseshoe policy for supervisors not to notify their managers directly about intended absences from work. ECF 39-31, ¶ 5. Although this policy does not appear to be in Caesars' employee handbook (ECF 39-29), at least one beverage supervisor appeared to be aware of it. See ECF 39-25.

         Smith did not use the term “FMLA” during her conversation with Carter on May 18, 2017. ECF 39-4 at 43:3-4. She also did not contact the ESC at any time to request FMLA leave for May 19 and May 20, 2017. Id. at 43:16-19. Nor did she use the Company's employee call-out line at that time to obtain leave.

         Carter testified that she was unaware that Smith's son had asthma or that Smith had previously been approved for FMLA leave. ECF 39-31, ¶ 19. But, in Smith's Declaration, she asserts: “Ms. Carter was aware that my son had asthma and allergies because I had told her about it in the past, and because I submitted to my employer Family Member Serious Health Condition Certification form for intermittent medical leave for the period January 5, 2016 through January 5, 2017.” ECF 40-1, ¶ 10.

         As noted, the ESC only notified the Slots Department that Smith was entitled to FMLA. ECF 39-25, ¶ 14. Further, the ESC did not tell the Slots Department why Smith was entitled to leave. Id. Indeed, Lattimer and Olaya also stated that they were not aware that Smith's son had asthma. ECF 39-16 at 10:2-4, 14-20 (Lattimer); ECF 39-10 at 4:4 - 5:2 (Olaya).

         About an hour after Smith and Carter finished their conversation on May 18, 2017, Carter was shown a Facebook post allegedly made by Smith. ECF 39-31, ¶ 6; ECF 39-32. The Facebook post said, ECF 39-21 (alteration added):

For the record i don't need no [rat emoji] running back telling no one nothing i can tell them myself. I believe im grown and i make my own decisions so yes i will be calling out tomorrow. Grown ass people i tell u. On that note GN

         Smith allegedly commented on her own post, stating: “No its the ones in my department.” Id. The original post was seen and “liked” by at least 21 people, including a Horseshoe employee, Shelby Bonomolo, whom Smith “partly” supervised. Id.; ECF 39-4 at 10:3-4 (“I would supervise [Shelby], but partly.”) see also ECF 39-31, ¶¶ 7-8; ECF 39-32. It is undisputed that these comments were posted on Smith's Facebook account. See ECF 40-1, ¶ 19. However, Smith stated in her Declaration, “I genuinely do not recall ever writing the Facebook post at issue in this case. It does appear to be on my web page, but many people have access to my Facebook page and anyone [sic] of them could have written it.” Id.

         The next day, May 19, 2017, Smith took A.C. to Dr. Kelly. Id. ¶ 11. Dr. Kelly prescribed several medications for the child and directed Smith to stay home and monitor A.C.'s medication. Id. ¶¶ 11-12. He also gave Smith a note to take off work on May 19 and May 20, 2017. Id. ¶ 12.

         On May 20, 2017, Smith went to Ocean City to meet her sister. ECF 39-4 at 37: 8-10. She did not bring her son. ECF 39-4 at 46:12-14. On May 21 and May 22, 2017, Smith took her scheduled time-off. ECF 39-31, ¶ 18. And, on May 23, 2017, she did not have a scheduled shift. Id.

         Meanwhile, Smith's supervisors were discussing Smith's conduct with HR personnel: Lori Goldenthal, Manager Employee and Labor Relations, and Jeff Scher, Employee and Labor Relations Specialist. ECF 39-10 at 13:21 - 14:15; see also ECF 39-25, ¶ 1. According to Olaya, he and Lattimer told Goldenthal and Scher about Smith's actions and asked for a recommendation. ECF 39-10 at 14:8-10. Goldenthal and Scher suggested a “suspension of employment pending investigation.” ECF 39-25, ¶ 20; see also ECF 39-10 at 14:12-13; ECF 39-16 at 8:7-10.

         When Smith returned to work on May 24, 2017, she left a copy of Dr. Kelly's note (ECF 40-4 at 2) on Carter's desk. ECF 40-1, ¶ 14. Smith's supervisors told her that she was suspended pending an investigation into her Facebook post and improper plan to use the call-out line. ECF 39-4 at 4:1-8; see also ECF 39-16 at 8:20-9:15. She also signed a Performance Documentation Form (ECF 39-19) stating that she was receiving a suspension pending investigation. It states, in part, ECF 39-17 at 2:

WHAT was the actual behavior observed (versus the expectation)?

On April 26^th Diana requested PTO on 5/19/17-5/22/17. I replied on the same day 4/26/17 that we could only grant her PTO for 5/21/17 & 5/22/17. On Thursday 5/18/17 we got word that Diana intended to call out for Friday 5/19/17 and Saturday 5/20/17. Kristin Carter called her and asked her if this was true and she said yes and was planning on using the front line call out line as opposed to calling her supervisor or manager. Diana did not show for work on 5/19/17 or 5/20/17. Diana took to facebook where she made an inappropriate post about work which was also viewed by subordinates

         The Performance Documentation Form further details the “rules of the road” that ...