Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vaughn v. Empire City Casino at Yonkers Raceway

United States District Court, S.D. New York

July 14, 2017

PARNELL VAUGHN, Plaintiff,
v.
EMPIRE CITY CASINO AT YONKERS RACEWAY, MICHAEL PALMIERE, RYAN MONROE, ROBERT GALTERIO, Defendants.

          Eileen M. Burger, Esq. Mitchell B. Pollack, Esq. Mitchell Pollack & Associates PLLC Tarrytown, NY Counsel for Plaintiff.

          Joseph DeGiuseppe, Jr., Esq. William P. Harrington, Esq. Justin M. Gardner, Esq. Bleakley Platt & Schmidt, LLP White Plains, NY Counsel for Defendants.

          OPINION & ORDER

          KENNETH M. KARAS UNITED STATES DISTRICT JUDGE.

         Plaintiff Parnell Vaughn (“Plaintiff”) brought this Action against Defendants Empire City Casino at Yonkers Raceway, Michael Palmiere, Ryan Monroe, and Robert Galterio (collectively, “Defendants”), alleging that Defendants unlawfully discriminated against him and retaliated against him during his employment. (See Am. Compl. (Dkt. No. 18).) Before the Court is Defendants' Motion for Summary Judgment. (See Dkt. No. 79.) For the following reasons, the Motion is granted in part and denied in part.

         I. Background

         A. Factual Background

         The following facts are taken from the documents submitted and the Parties' respective statements pursuant to Local Rule 56.1.

         1. The Parties

         Defendant Empire City Casino at Yonkers Raceway (“YRC”) is a New York corporation based in Yonkers, New York. (See Aff. of Robert Galterio (“Galterio Aff.”) ¶ 3 (Dkt. No. 81); see also Defs.' Local Rule 56.1 Statement of Undisputed Material Facts (“Defs.' 56.1”) ¶ 1 (Dkt. No. 85); Pl.'s Counter-Statement of Material Facts Pursuant to Federal Rule 56.1 (“Pl.'s 56.1 Resp.”) ¶ 1 (Dkt. No. 96).)[1] Defendant Robert Galterio was the General Manager of YRC from 2008 to 2013, (see Aff. of Joseph DeGiuseppe, Jr. (“DeGiuseppe Aff.”) Ex. C (“Galterio I Tr.”) 11-13 (Dkt. No. 84); see also Defs.' 56.1 ¶ 4; Pl.'s 56.1 Resp. ¶ 4), and was YRC's Chief Operation Officer and Vice President from 2005 to 2008, and has been in that position again since 2013, (see Galterio I Tr. 12-13; see also Defs.' 56.1 ¶¶ 3-4; Pl.'s 56.1 Resp. ¶¶ 3-4). Defendant Michael Palmieri was the Director of Video Gaming Operations at YRC from July 16, 2007 to November 26, 2013, and was Vice President of Video Gaming Operations from November 27, 2013 to April 7, 2015. (See Galterio Aff. Ex. 4; see also Defs.' 56.1 ¶ 6; Pl.'s 56.1 Resp. ¶ 6.)[2] Defendant Ryan Munroe was hired by YRC in September 2008 as a Video Gaming Machines (“VGM”) Manager and was promoted in August 2015 to his current position of Director of Video Gaming Operations. (See DeGiuseppe Aff. Ex. D (“Munroe I Tr.”) 14; see also Defs.' 56.1 ¶¶ 7-8; Pl.'s 56.1 Resp. ¶¶ 7-8.)[3] Non-party Cheri Czerniowski was hired by YRC in July 2006 as a VGM Manager, became Assistant Director of the VGM Department in 2007, served temporarily as the Interim Director of the VGM Department, and resumed her duties as Assistant Director of the VGM Department after Munroe became the Director of Video Operations. (See DeGiuseppe Aff. Ex. E (“Czerniowski I Tr.”) 12; see also Defs.' 56.1 ¶¶ 9-10; Pl.'s 56.1 Resp. ¶¶ 9-10.)

         Plaintiff, a Black male, was hired by YRC on or about December 7, 2006 as a VGM Attendant and remained in that position until the effective date of his dismissal on October 5, 2013. (See DeGiuseppe Aff. Ex. B (“Vaughn I Tr.”), at 11; Aff. of Parnell Vaughn (“Vaughn Aff.”) ¶ 1 (Dkt. No. 92); see also Defs.' 56.1 ¶ 11; Pl.'s 56.1 Resp. ¶ 11.) Plaintiff and all other regular full-time and part-time VGM Attendants and Promotion Booth Representatives employed by YRC are represented by Local 1105, Communications Workers of America, AFL/CIO (“Local 1105”). (See Vaughn I Tr. 10; Decl. of Robert Shannon in Supp. of the Summ. J. Mot. (“Shannon Decl.”) Ex. 1 (Dkt. No. 80); see also Defs.' 56.1 ¶ 13; Pl.'s 56.1 Resp. ¶ 13.)[4]Throughout Plaintiff's employment, Local 1105 and YRC were parties to a collective bargaining agreement. (See Shannon Decl. Ex. 1.) Article 6 of that collective bargaining agreement sets forth the grievance and arbitration provisions relating to disciplinary and termination issues, and Article 7 provides that employees may be discharged only for “just cause” and gives Local 1105 the right to grieve any discharge “that it believes is not for just cause.” (Id. at 9-13.)

         2. Casino Rules and Policies YRC is subject to Section 5117.1 of the Gaming Commission Rules, which provides:

No video lottery gaming agent, representative, licensed employee or contractor thereof, shall allow, permit or suffer any person under the age of 18 years (underage person) to: . . . (3) loiter or remain on the gaming floor longer than reasonably necessary for a legitimate non-gaming purpose or to reach a destination that is not on the gaming floor.”

(DeGiuseppe Aff. Ex. NN; see also Defs.' 56.1 ¶ 16; Pl.'s 56.1 Resp. ¶ 16.) Section 5113 of the Gaming Commission Rules sets forth the various penalties that may be imposed for violations of the rules, which include, among other things, revocation or suspension of the casino's Video Lottery Gaming License. (See DeGiuseppe Aff. Ex. OO; see also Defs.' 56.1 ¶ 17; Pl.'s 56.1 Resp. ¶ 17.) YRC's VGM Departmental Policy VGM-GA011 instructs VGM Attendants to “[c]ontinuously scan [the] area to observe underage patrons, ” and to “[i]mmediately notify a VGM Manager/Assistant Manager (VGM Ops 1) or Security (Security Ops 1) by two-way radio for assistance.” (See DeGiuseppe Aff. Ex. I; see also Defs.' 56.1 ¶ 18; Pl.'s 56.1 Resp. ¶ 18.) Plaintiff is familiar with this provision. (See Vaughn I Tr. 30-33; see also Defs.' 56.1 ¶ 21; Pl.'s 56.1 Resp. ¶ 21.)

         YRC's Employee Handbook sets forth additional information regarding the monitoring of underage gambling, saying that “[a]ny employee observing an individual gambling who may be under the age of eighteen (18) should notify Security or their immediate supervisor, ” and that “[s]ecurity shall make routine checks of identification and maintain a log of such requests.” (DeGiuseppe Aff. Ex. F, 41; see also Defs.' 56.1 ¶ 25; Pl.'s 56.1 Resp. ¶ 25.) Plaintiff has acknowledged that he has read those portions of the Employee Handbook. (See Vaughn I Tr. 28-30; see also Defs.' 56.1 ¶ 26; Pl.'s 56.1 Resp. ¶ 26.)

         3. Munroe's Treatment of Plaintiff

         Plaintiff alleges that beginning in 2009, Munroe, one of his supervisors, began to use abusive and racist language toward him.[5] Specifically, Plaintiff alleges that in 2009, Munroe became angry at Plaintiff and used the “N-word” for the first time. (See Decl. of Eileen M. Burger (“Burger Decl.”) Ex. 3 (“Vaughn II Tr.”), at 75-76 (Dkt. No. 91); see also Pl.'s 56.1 Resp. ¶ 114.)[6] In mid-2010, while Plaintiff was fixing a video gaming machine, Munroe walked by and told Plaintiff, “[y]ou know why I put you in the N section, because that is where all the Ns need to be, ” an apparent reference to Section N on the casino floor. (Vaughn II Tr. 81-82; see also Pl.'s 56.1 Resp. ¶ 116.) In 2011, Chancy Marsh, a “cage supervisor, ” heard Munroe tell Plaintiff, in response to a suggestion by Plaintiff that a gaming machine be moved, to “[s]tay in your place, that's our job, ” and “you need to stay in your place, nigger.” (Vaughn II Tr. 72-74; Aff. of Chancy Marsh IV (“Marsh Aff.”) ¶¶ 4-5 (Dkt. No. 93); see also Pl.'s 56.1 Resp. ¶ 117.) In April 2012, Marsh witnessed another incident in which Munroe referred to Plaintiff and Marsh as “Obama Niggers.” (See Vaughn II Tr. 77-78; Marsh Aff. ¶ 6; see also Pl.'s 56.1 Resp. ¶ 118.) Marsh told Galterio about Munroe referring to Plaintiff and Marsh as “Obama Niggers, ” but Galterio merely responded, “listen, I don't feel like dealing with you people, report it to HR.” (Marsh Aff. ¶ 7; see also Pl.'s 56.1 Resp. ¶ 119.) In 2013, Munroe told Plaintiff “to be a good little black monkey and start moving faster to [his] machine.” (Vaughn II Tr. 85; see also Pl.'s 56.1 Resp. ¶ 120.) Munroe continued to use the “N-word” at least once a week throughout 2013, and Plaintiff estimates that Munroe used the word more than 100 times during Plaintiff's time with YRC. (See Vaughn II Tr. 76, 83; see also Pl.'s 56.1 Resp. ¶ 121.)[7]

         In accordance with the instructions in the Employee Handbook regarding harassment and discrimination, (see DeGiuseppe Aff. Ex. F, at 35; see also Pl.'s 56.1 Resp. ¶ 104), Plaintiff made complaints about Munroe's behavior to Palmieri, the VGM Director, on at least two occasions, (see Vaughn Aff. ¶ 18; see also Pl.'s 56.1 Resp. ¶ 105). No action was taken by Palmieri in response to those complaints, (see Vaughn Aff. ¶ 18), although Czerniowski's 2009 Performance Review of Munroe noted disapproval of Munroe's use of “lingo, ” (see Burger Decl. Ex. 8; see also Pl.'s 56.1 Resp. ¶ 122). After Plaintiff complained to Palmieri about Munroe, Munroe confronted Plaintiff and warned him that if he continued to complain about Munroe's behavior, Plaintiff could be terminated. (See Vaughn II Tr. 79-80; see also Pl.'s 56.1 Resp. ¶ 106.) After this encounter sometime in or before 2010, Plaintiff stopped complaining about Munroe's behavior because he was “too afraid to speak up.” (See Vaughn II Tr. 79-82; see also Pl.'s 56.1 Resp. ¶ 107.)

         4. Incident With Hassan

         Plaintiff alleges that on July 27, 2013, he reported an incident to Czerniowski wherein his supervisor, Adeel Hassan, failed to promptly respond to Plaintiff's call for a supervisor after a customer hit a jackpot. (See Vaughn II Tr. 89-90; see also Pl.'s 56.1 Resp. ¶ 125.) The next day, on July 28, 2013, Vaughn and Hassan were involved in an incident with one another, the details of which are the subject of some dispute. At some point, someone at YRC viewed the surveillance footage of the incident and put together a surveillance log of that footage. (See Defs.' 56.1 ¶ 32; Pl.'s 56.1 Resp. ¶ 32.) That summary, the Video Review Request surveillance summary (the “VRR”), relays the following information:

-On July 28, 2013, Plaintiff clocked in for work at approximately 17:04 (according to the timer on the footage);
-After clocking in at the VGM office, he left the office at 17:06 with VGM Assistant Manager LaMont Brown;
-At 17:07, Plaintiff reentered the VGM office;
-At 17:10, he left the VGM office with VGM Attendant John Francesconi;
-At 17:12, Plaintiff entered the VGM office again as Francesconi walked out onto the casino floor;
-At 17:14, Plaintiff exited the VGM office and spoke with VGM Attendant Shaun Saldivia outside the employee bank;
-At 17:17, Hassan walked up to Plaintiff and pointed to his own wrist;
-After the two spoke for a moment, Plaintiff entered the employee bank at 17:17.

(See Aff. of Caralyn Taromina Ex. 1 (“July 28 VRR”) (Dkt. No. 83).) The VRR indicates that it was prepared at the request of Palmieri, (see id.), but Plaintiff disputes that this is accurate, (see Pl.'s 56.1 Resp. ¶ 32). The Parties also dispute who put together the VRR, with Defendants claiming it was Caralyn Taromina and Plaintiff arguing that the evidence is inconclusive on this issue and pointing out that none of Defendants could recall during their depositions who drafted the VRR, (see Defs.' 56.1 ¶ 32; Pl.'s 56.1 Resp. ¶ 32), but there appears to be no disagreement that the VRR is a generally accurate summary of the events that took place, other than some ambiguity as to whether the timestamp on the footage aligns perfectly with YRC's time clock records, (see Defs.' 56.1 ¶ 33; Pl.'s 56.1 Resp. ¶ 33; see also Burger Decl. Ex. 4 (“Munroe II Tr.”), at 136). The surveillance footage that the VRR purports to summarize has not been produced in this litigation.

         Whatever the circumstances of the encounter, Plaintiff, believing Hassan's behavior to be retaliation for Plaintiff's complaint about his job performance the night before, thereafter sought to make a complaint to Czerniowski about Hassan's alleged harassment, (see Vaughn II Tr. 96; Munroe II Tr. 89; Vaughn Aff. ¶¶ 19-20; see also Pl.'s 56.1 Resp. ¶ 127), but on his way to the VGM office was intercepted by Munroe, (see Vaughn II Tr. 96; Munroe II Tr. 89-90; see also Pl.'s 56.1 Resp. ¶ 128). The two stepped into the VGM office where Plaintiff relayed to Munroe that he felt he was being harassed by Hassan in retaliation for his comments to Czerniowski the day before. (See Munroe II Tr. 89-91; see also Defs.' 56.1 ¶ 28; Pl.'s 56.1 Resp. ¶ 28.) According to Munroe, he told Plaintiff that he would investigate the matter and instructed Plaintiff to return to the casino floor. (See Munroe II Tr. 90.)

         Following this exchange, Defendants aver that Hassan met with Munroe the same day and told him that Plaintiff had twice failed to follow Hassan's directive to proceed to his assigned work area and was disrespectful to Hassan, asking Hassan, “What are you going to do about it?” (Munroe I Tr. 91-92; see also Defs.' 56.1 ¶ 31.) Although Plaintiff does not dispute that Munroe met with Hassan after speaking with Plaintiff, (see Pl.'s 56.1 Resp. ¶ 31), Plaintiff does dispute Hassan's account, saying that he was engaged only briefly with Shaun Saldivia to discuss a work issue, that Hassan quickly became agitated and harassing when Plaintiff did not immediately cease his conversation with Saldivia, and that he never told Hassan, “What are you going to do about it?”, (see Vaughn II Tr. 90-95; Vaughn Aff. ¶¶ 20-21; see also Pl.'s 56.1 Resp. ¶ 126).

         According to Munroe, he next called surveillance and asked them to inspect the footage to determine how many times Hassan had approached Plaintiff, and also asked them to describe Plaintiff's and Hassan's “general mannerisms.” (See Munroe II Tr. 93-94; see also Defs.' 56.1 ¶ 38; see also Pl.'s 56.1 Resp. ¶ 38.) Based on Munroe's conversations with the surveillance team (Munroe testified that he did not himself view the footage), he believed that Plaintiff was the aggressor. (See Munroe II Tr. 100-01.) Munroe also checked the time clock software and determined that Plaintiff had punched in at 5:02 (his scheduled shift started at 5:00). (See Id. at 94-95.)

         There is some dispute as to what happened after Munroe spoke with Plaintiff, Hassan, and the surveillance team. Munroe testified that he spoke to Palmieri and reported his basic findings, after which Palmieri instructed him to send Plaintiff home for the day and suspend him pending an investigation. (See Id. at 102, 105; see also Defs.' 56.1 ¶ 39.) Plaintiff avers, however, that an email sent from Munroe to Palmieri on September 12, 2013, which included a summary of the events at issue, suggests that it was Munroe who made the decision to temporarily suspend Plaintiff. (See Burger Decl. Ex. 17 (“Summary of Facts”); see also Burger Decl. Ex. 5 (“Galterio II Tr.”), at 95-96; Pl.'s 56.1 Resp. ¶ 39.) In any event, after the decision was made to send Plaintiff home pending an investigation, Munroe, Hassan, Plaintiff, and Plaintiff's union representative, Colleen Smith, met in Czerniowski's office, wherein Munroe informed Plaintiff that he was being suspended pending an investigation. (See Munroe I Tr. 102-03; see also Defs.' 56.1 ¶¶ 42-43; Pl.'s 56.1 Resp. ¶¶ 42-43.)

         At some point, Munroe (or, perhaps, someone else) drafted the first Notice of Disciplinary Action, which is dated July 29, 2013 and purports to relay events that transpired on July 29, formally suspending Plaintiff pending an investigation. (See Burger Decl. Ex. 11; see also Munroe II Tr. 119-20.) Under “Type of Violation, ” the boxes for “Unsatisfactory Work Quality, ” “Insubordination, ” and “Abuse of Company Time” are checked. (See Burger Decl. Ex. 11.) The signatures of Munroe and Hassan indicate that the notice was signed on July 28, 2013, notwithstanding that it is otherwise dated July 29, 2013. (See id.; see also Defs.' 56.1 ¶ 41.) Plaintiff argues, however, that some evidence indicates that the document was actually drafted on July 29 (the day after the incident and suspension) and backdated by Munroe to make it appear as though it had been drafted and signed on July 28. (See Burger Decl. Exs. 11, 12; see also Pl.'s 56.1 Resp. ¶ 41.) Plaintiff did not sign the first Notice of Disciplinary Action, (see Burger Decl. Ex. 11; see also Defs.' 56.1 ¶ 44; Pl.'s 56.1 Resp. ¶ 44), though Plaintiff attests that Local 1105 instructs its members not to sign such forms, (see Vaughn Aff. ¶ 25; see also Pl.'s 56.1 Resp. ¶ 44). It is unclear whether Munroe prepared and presented to Plaintiff the first Notice of Disciplinary Action on July 28, 2013, before he sent Plaintiff home. (Compare Munroe II Tr. 120-21 (testifying that he believed he prepared the first Notice of Disciplinary Action on July 28, before the meeting with Plaintiff and Colleen), with Vaughn Aff. ¶ 25 (denying that Munroe presented him with the first Notice of Disciplinary Action on July 28, 2013).)

         Following the meeting, Munroe instructed Hassan to draft a statement detailing what happened during the incident. (See Munroe II Tr. 106, 112; see also Defs.' 56.1 ¶ 46; Pl.'s 56.1 Resp. ¶ 46.) Hassan provided that statement in an email message dated July 29, 2013. (See DeGiuseppe Aff. Ex. LL; see also Defs.' 56.1 ¶ 46; Pl.'s 56.1 Resp. ¶ 46.) Before Munroe received Hassan's statement, however, he drafted his own email message, summarizing the July 28, 2013 incident, which he sent to the VGM management team. (See Munroe I Tr. 106-08; Summary of Facts; see also Defs.' 56.1 ¶ 45; Pl.'s 56.1 Resp. ¶ 45.) The entirety of Munroe's email was as follows:

Team….
Parnell has been suspended pending investigation for an incident at the start of his shift today.
At 5:02pm Parnell punched in and proceeded to speak with John F inside and outside of the office until approximately 5:10pm. Christine had to go retrieve him from the vestibule and tell him to get his keys and radio and get on the floor. He then got his belongings and went to the front of satellite at 5:12pm. He talked to Shaun there for 2 minutes and Adeel walked by and asked him to get on the floor. He did not stop his conversation, or move towards satellite. Before Adeel turned the corner to go to Rd. 4 he looked back and saw that Parnell was carrying on. He then turned around and approached him again, he told him to get on the floor again and Parnell's response was “What are you going to do about it?”. Based on these facts Parnell was suspended for insubordination and Poor Work Quality.
Thanks.

(Summary of Facts.)

         Munroe testified that he had no further involvement in the investigation of the incident between Plaintiff and Hassan. (See Munroe I Tr. 110-11; see also Defs.' 56.1 ¶ 47.) Plaintiff disputes this, but points out only that the VGM management team relied heavily on Munroe's summary of the facts. (See Pl.'s 56.1 Resp. ¶ 47.)[8] The only other involvement by Munroe mentioned by Plaintiff is an email from Munroe to Czerniowski on July 30, 2013, asking Czerniowski to remind whatever manager was on duty when Plaintiff returned from his suspension to give Plaintiff his “First Notice Returned From Suspension.” (See Id. (citing Burger Decl. Exs. 14, 15).) Whatever weight should be given to this communication, the Parties are thus in agreement that Munroe's involvement in the investigation after July 28, 2013 was limited to a one-line email sent on July 30. (See Defs.' 56.1 ¶ 47; Pl.'s 56.1 Resp. ¶ 47.)

         The events immediately following Plaintiff's suspension are the subject of some ambiguity. Czerniowski was asked by Palmieri to handle Plaintiff's return to work, as Palmieri was off work. (See Czerniowski I Tr. 51-52; see also Defs.' 56.1 ¶ 48; Pl.'s 56.1 Resp. ¶ 48.) Czerniowski, however, did not conduct any investigation of her own, and accepted the facts in Munroe's Summary of Facts as true. (See Burger Decl. Ex. 6 (“Czerniowski II Tr.”), at 61-62; see also Pl.'s 56.1 Resp. ¶¶ 152-53.) She interpreted Palmieri's instructions to mean that she should coordinate with Danette Jordan-Woods, the director of human resources, to determine what the appropriate disciplinary action should be. (See Czerniowski II Tr. 54.) Czerniowski emailed Jordan-Woods, who she believed was already aware of the situation, that she was going to return Plaintiff from his suspension on July 30, but wanted Jordan-Woods's recommendation. (See id.; see also DeGiuseppe Aff. Ex. T.) Jordan-Woods asked for Hassan's statement, which Czerniowski forwarded to her. (See Czerniowski II Tr. 58; DeGiuseppe Aff. Ex. T.) The record does not reflect, however, whether Jordan-Woods ever gave her input on Plaintiff's suspension, nor does it reflect who made the final decision to return Plaintiff from his suspension after two days, although Czerniowski believed that it was Palmieri's decision to suspend Plaintiff for two days without pay. (See Czerniowski II Tr. 55, 71.) Moreover, Czerniowski was not sure whether Jordan-Woods or Palmieri, or anyone else for that matter, conducted any further investigation into the incident, although she believed that someone would have viewed the surveillance footage. (See Id. at 54-55.) As Palmieri was not deposed, the scope of his investigation and involvement, if any, in Plaintiff's discipline is largely a matter of speculation.

         In any event, when Plaintiff returned to work from his suspension on July 30, Czerniowski drafted a second Notice of Disciplinary Action, (see Burger Decl. Ex. 15; see also Defs.' 56.1 ¶ 53; Pl.'s 56.1 Resp. ¶ 53), which Czerniowski described as the document that puts an employee, like Plaintiff, on notice of the disciplinary incident, (see Czerniowski II Tr. 67). Under “Type of Violation, ” the boxes for “Unsatisfactory Work Quality” and “Insubordination” are checked. (See Burger Decl. Ex. 15.) The description of the incident closely matches the description provided by Munroe in the Summary of Facts. (See id.) On the second page, the second Notice of Disciplinary Action states that Plaintiff's actions were “in violation of VGM policy VGM003, ” and references three rules regarding rude behavior and failure to comply with supervisor instructions and departmental rules. (Id.) Directly below the three rules are the words “Theft of time, ” with no other explanation. (Id.) The second Notice of Disciplinary Action is signed by Czerniowski. (See id.) Where Plaintiff's signature would be, it says “Refused to sign, ” and below Czerniowski's signature is a notation by Vaunesha Cole, (id.), whom Czerniowski identified as the shop steward for Local 1105, (see Czerniowski II Tr. 66). Czerniowski testified that if the allegations against Plaintiff were substantiated, he would have lost pay during his two-day suspension. (See Id. at 67.)

         Plaintiff's and Local 1105's response to the suspension is somewhat unclear. At some point after the incident, Plaintiff filed a “Statement of Occurrence” with the union, setting forth his version of the events. (See Vaughn II Tr. 117; Burger Decl. Ex. 16; see also Defs.' 56.1 ¶ 57; Pl.'s 56.1 Resp. ¶ 57.) Although not sworn to, and thus of questionable value on this Motion, the Statement of Occurrence sets forth some of the missing details in the record. Namely, Plaintiff states that he was never given an opportunity to give his side of the story to a union representative; that after being sent home, he received a call from Munroe the next day telling him that he was suspended that day as well; and that he did not receive a Notice of Disciplinary Action until he returned to work and met with Czerniowski and Cole on July 30. (See Burger Decl. Ex. 16.) On September 11, 2013, Jordan-Woods wrote Palmieri, copying Czerniowski, saying that human resources had met with the union that day to discuss Plaintiff's suspension and asking Palmieri to give her a call to discuss, as she was “[n]ot sure what led to [his] suspension and was hoping [Palmieri] could provide some insight.” (Burger Decl. Ex. 21.) Presumably as a reaction to that request, Palmieri emailed Munroe the next morning asking him to a write up a summary of the incident. (See Summary of Facts.) Munroe promptly responded, forwarding the Summary of Facts he had sent the management team in July and alerting Palmieri that before Hassan had spoken to Munroe about the incident, Plaintiff had come off the floor to discuss the incident with Munroe. (See id.) The Court has no information as to whether Palmieri and Jordan-Woods spoke after that (neither was deposed), nor can it discern whether Jordan-Woods spoke again to Local 1105 about the incident. On September 17, 2013, however, the union wrote Jordan-Woods with a list of the grievances it intended to discuss at an upcoming meeting, and Plaintiff's suspension was among them. (See Burger Decl. Ex. 19.)

         Although Galterio testified that a proper investigation of the incident between Plaintiff and Hassan would have included an interview of Saldivia, (see Galterio II Tr. 86-87), Munroe did not interview Saldivia, (see Munroe II Tr. 92; see also Czerniowski II Tr. 72). Saldivia was not disciplined for congregating while on duty or for “theft of time.” (See Vaughn II Tr. 103; Czerniowski II Tr. 73; see also Pl.'s 56.1 Resp. ¶ 133.)

         5. Underage Gambling Incident

         On September 22, 2013, an underage youth was spotted on the floor at YRC. Many of the youth's movements and interactions with staff members were captured on surveillance footage, which has been both summarized and provided to the Court for review. As with the footage relating to the incident between Plaintiff and Hassan, there is some argument from Plaintiff about whether Jennifer Monaco, who purports to have drafted the summary of the footage, (see Aff. of Jennifer Monaco (Dkt. No. 82)), actually did so. More specifically, Plaintiff complains that he was not aware until summary judgment that Monaco is alleged to have drafted the summary, and believes he is entitled to cross-examine Monaco regarding the authenticity of the summary on that basis alone. (See Pl.'s 56.1 Resp. ¶ 59.) Notably, despite contesting the authenticity of the summary, Plaintiff has cited it and relied on it in his statement of additional material facts. (See, e.g., Pl.'s 56.1 Resp. ¶¶ 157, 159, 166-69.) Whatever the merits of Plaintiff's argument, however, the Court is in possession of the actual surveillance footage, and therefore sees no need to resolve the debate as to the authenticity of or the identity of the author of the summary.

         The minor, wearing a dark hoodie with the hood up, and three adults (one of whom was in a wheelchair) entered the casino at approximately 3:48 PM. (See Burger Decl. Ex. 25 (“September 22 Footage”), at 15:48:00.) There is no indication that a security guard was present at the entrance. At 4:03 PM, the group sat down at several adjacent gaming machines. (See Id. at 16:03:07.) It is not clear whether the minor was engaged in any gambling at that time. At approximately 4:04 PM, Suszan Oswald, the white, female, VGM attendant assigned to Section B on September 22, (see Burger Decl. Ex. 22), walked through the gambling area where the minor and the other adults were seated, (see September 22 Footage at 16:04:26). At 4:07 PM, Oswald returned and assisted one of the minor's companions. (See Id. at 16:07:08.) The minor was seated at the machine next to the one where the companion being assisted by Oswald was seated. (See id.) The minor and his companion got up and moved to converse with the two other adults at approximately 4:11 PM. (See Id. at 16:11:00.) At 4:12 PM, the minor and the adult he had been sitting with sat down at two new gaming machines across from the other two members of the group. (See Id. at 16:12:03.) Shortly thereafter, at 4:14 PM, the minor moved across the aisle and took the place of one of his companions who had gotten up. (See Id. at 16:14:36.) It is again unclear whether the minor was engaged in any gambling at this time. At 4:22 PM, after milling about for a few moments, the minor changed seats again, returning to his seat across the aisle. (See Id. at 16:22:11.) At 4:23 PM, both the minor and his companion got up and spent the next few minutes talking and watching other members of the group play. (See Id. at 16:23:14.)

         At 4:26 PM, the group arrived at a new set of slot machines, (see Id. at 16:26:32), where, after some other patrons got up, the minor and one of his companions sat down at two adjacent gaming machines, (see Id. at 16:27:49). The footage does not indicate that the minor was gambling. At 4:39 PM, Tahlaya Alston, another VGM attendant, walked through the area where the minor was seated. (See Id. at 16:39:21.) The minor's companion got up to assist the member in the wheelchair at approximately 4:53 PM, (see Id. at 16:53:53), after which the minor moved one seat over and began playing on a handheld video game device, (see Id. at 16:54:09). Moments later, Oswald entered the area and sat down to service the gaming machine two seats away from the minor. (See Id. at 16:54:18.) There was no one seated at the gaming machine between the minor and Oswald. A few moments later, the minor's companion returned, and the minor moved one seat over to make room, then sitting directly next to Oswald. (See Id. at 16:54:38.) At 4:55 PM, the minor got up and crossed the aisle to assist the companion in a wheelchair with his gaming machine. (See Id. at 16:55:03.) Oswald completed servicing the gaming machine and left the area at approximately 4:55 PM. (See Id. at 16:55:46.) At 4:57 PM, Oswald returned to service another gaming machine (one that the minor had been seated at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.