United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE
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”).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.
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.
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.
Factual and Procedural Background 
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.
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.
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.
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,
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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
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
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.”
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.
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.
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.
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
On April 26th 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
Performance Documentation Form further details the
“rules of the road” that ...