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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) | Outten & Golden LLP
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Ondricko had been working in the gaming industry since 1994 and began working for MGM in 2003.
MGM promoted Ondricko to floor supervisor in 2005.
At least six other supervisors had engaged in misconduct related to shuffle procedures.
Only two were terminated.
She sued for race and gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.
The district court found that Ondricko admitted the employment misconduct that resulted in her termination and that she had not shown disparate treatment of similarly situated comparators.
The Sixth Circuit reversed, finding that the misconduct was insufficient to justify termination and that Ondricko had established disparate treatment of male comparators.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0254p.
N Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
ONDRICKO, Plaintiff-Appellant, Decided and Filed: August 8, 2012 Before: KENNEDY, MARTIN, and STRANCH, Circuit Judges.
Wahl, STERLING ATTORNEYS AT LAW, P.
Louis Theros, Regan K.
Dahle, BUTZEL LONG, Detroit, Michigan, for Appellee.
Plaintiff Kimberly Ondricko seeks reversal of the district court s grant of summary judgment in favor of Defendant MGM Grand Detroit, LLC in her suit for race and gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.
� 2000e et seq.
The district court found that Ondricko admitted the employment misconduct that resulted in her termination and that she had not shown disparate treatment of similarly situated comparators.
For the following reasons, we REVERSE the judgment of the district court.
MGM Grand Detroit Page 2 I.
BACKGROUND Kimberly Ondricko had been working in the gaming industry since 1994 and began working as a Casino Dealer-Trainee for MGM Grand Detroit MGM in September 2003.
MGM promoted Ondricko first to a Dealer 1, then to a part-time Floor Supervisor, and lastly to a full-time Table Games Floor Supervisor in October 2005.
As a Floor Supervisor, Ondricko was responsible for supervising the Dealers at as many as six gaming tables in an area referred to as a Pit.
MGM argues it fired Ondricko because she participated in a bad shuffle at a blackjack table she was supervising.
Some background is necessary to understand this argument.
Dealers use two sets of different-colored playing cards at each blackjack table and before a Dealer puts any cards into play, they must be shuffled.
The Dealer raises a cut card into the air to request https://allo-hebergeur.com/blackjack/d21-digital-blackjack.html the Supervisor approve the shuffle.
Upon approval, the Dealer gathers the cards on the table that have already been played the discards and places them in a shuffle machine.
The machine has two chambers: an empty chamber into which the Dealer places the discards and a chamber containing shuffled cards to be put into play.
The Dealer presses a button on the shuffle machine, causing the empty chamber to elevate, then places the discards into the empty chamber and presses the button again, causing the chamber with the discards to lower and the chamber with the shuffled cards to rise.
The Dealer removes the shuffled cards which will always be a different color than the discarded cards from the shuffle machine and puts those cards into play.
On April 27, 2008, Ondricko was the Floor Supervisor in a blackjack Pit where only one customer was playing at one table with Dealer Vivian Baran.
Ondricko was standing next to Baran when it came time for Baran to shuffle.
Baran gathered the discarded cards and Ondricko pressed the button on the shuffle machine to raise the empty chamber.
Baran placed the discards into the empty chamber, but instead of pressing the button to lower that chamber and raise the chamber with the shuffled cards, Baran then removed the same unshuffled cards from the chamber and put them back into -2- No.
MGM Grand Detroit Page 3 play.
Ondricko testified that she was not aware Baran failed to press the button to lower the chamber with the discards and raise the chamber with the shuffled cards.
As Baran was putting the cards into play, Ondricko noticed the chamber door was still open.
She asked Baran whether she was dealing the same cards, to which Baran said no, and then investigated whether the shuffle all free online blackjack tutorial phrase had malfunctioned.
Ondricko s investigation occurred while Baran dealt hands for about ninety seconds, after which Ondricko told Baran to stop dealing.
Ondricko immediately notified her superior, the Pit Manager, about the bad shuffle.
Ondricko never left the blackjack table during this shuffle procedure.
MGM continue reading Ondricko pending investigation into the incident.
On May 9, 2008, MGM terminated Ondricko based on its 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.
MGM alleged Ondricko s conduct violated MGM s Procedures for Dealing the Cards Using an Automatic Shuffle Devise, which resulted in a violation of Policy 417.
At least six other Supervisors engaged in misconduct related to shuffle procedures.
Only two were terminated.
In January 2004, Yancy Yharbrough, a black male, click at this page disciplined, but not terminated, for his failure to remove the 10 cards from playing decks during a game which required their omission.
In late July 2008, Carl Barney, a black male, was also disciplined, but not terminated, for two shuffle procedure violations within two weeks, including playing un-cut decks and playing six decks where a game required eight.
Gary Swick, a white male, was terminated in January 2009 after approving a shuffle at a blackjack table.
Specifically, Swick approved this shuffle, the Dealer placed the discards in the empty shuffler chamber, and then Swick left the table to speak with the Pit Manager.
When Swick returned, the Dealer removed the unshuffled cards from the chamber, instead of the newly shuffled cards, and dealt one hand.
Another Floor Supervisor noticed the error and alerted Swick, who was still standing at the table, but had not been watching the shuffle, and Swick reported this to his Pit Manager.
In contrast, in February 2009, Greg Hood, a white male, was given a -3- No.
MGM Grand Detroit Page 4 five-day suspension for supervising tables where washed not yet used, but unshuffled cards were put into play.
The remaining two Supervisors engaged in shuffle-procedure misconduct in the months immediately before Ondricko was terminated and were directly addressed by MGM in relation to her termination.
In December 2007, Nakeisha Boyd, a black female, what is blackjack 2133 terminated after supervising a mini-baccarat game where the Dealer apparently had trouble removing cards from the shuffler.
Boyd assisted the Dealer by removing unshuffled discards from the shuffler and giving those cards, instead of the shuffled cards, to the Dealer to put back into play.
In contrast, Warren Black, a black male, was given a three-day suspension after approving a bad shuffle1 continue reading October 2007 based on violations of the same policies MGM alleges Ondricko violated.
After approving the shuffle, Black stepped away from the game table2 and the Dealer placed the discards into the empty shuffler chamber and then immediately removed the same cards.
After a customer cut these cards, but before they were put into play, another Dealer arrived as relief.
The new Dealer noticed the wrong cards were on the table and notified Black, who advised the Dealer to put the shuffled cards into play.
Around the time MGM decided to terminate Ondricko, but before she was notified of this decision, Tables Games Assistant Shift Manager Mike Hannon spoke to Mike O Connor, Vice President of Operations, about Ondricko.
Hannon asked O Connor why Black was only given a three-day suspension, but Ondricko was to be terminated.
In response, O Connor asserted Black did not approve a bad shuffle, but Ondricko did.
Black did approve the shuffle.
MGM asserts he was assisting another customer, while Ondricko notes Black simply does not appear in the surveillance video and there is no indication of why he was not by the table.
MGM Grand Detroit Page 5 about Kim.
O Connor then said do you think I wanted to fire Kim, I didn t want to fire Kim, how could I keep the white girl.
On March 23, 2009, Ondricko filed this action against MGM alleging claims of gender and race discrimination in violation of Title VII and ELCRA.
In 2010, MGM filed a Motion for Summary Judgment asserting Ondricko could not establish a prima facie case of race or gender discrimination based on circumstantial evidence or prove MGM s legitimate nondiscriminatory motive was pretext.
Ondricko opposed this motion, asserting she presented direct evidence of race discrimination and circumstantial evidence of both race and gender discrimination under a mixed-motive standard.
The district court held a hearing and granted MGM s motion from the bench, simply reasoning that the plaintiff admitted the conduct that had gotten her fired, the bad shuffle, and nobody was treated differently whatsoever, or disparately, that she has called attention to.
No explanatory memorandum or order was entered.
On appeal, Ondricko argues the district court improperly granted summary judgment to MGM because she presented direct and circumstantial evidence of discrimination and the court erred in failing to apply a mixed-motive analysis to her claims.
Standard of Review This court reviews a district court s grant of summary judgment de novo.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
As the party seeking summary judgment, MGM bears the burden to show there are no genuine issues of material fact.
All facts, including inferences, are viewed in the light most favorable to the -5- No.
MGM Grand Detroit Page 6 nonmoving party.
The central issue is whether the evidence presents a sufficient disagreement to require submission of Ondricko s claims to a jury or whether the evidence is so onesided that MGM must prevail as a matter of law.
Title VII Claims Title VII s anti-discrimination provision makes it an unlawful employment practice for an employer.
� 2000e-2 a 1.
Intentional discrimination claims under Title VII can be proven by direct or circumstantial evidence.
Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer s actions.
Circumstantial evidence, on the other hand, is proof that does not classic mens watch blackjack sport its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.
Mixed-Motive Analysis We must first determine whether Ondricko s race and gender discrimination claims should be analyzed under a mixed-motive or single-motive analysis.
It is not entirely clear from the motion hearing transcript whether the district court conducted a mixed-motive analysis or analyzed Ondricko s claims using the McDonnell Douglas burden-shifting framework.
A mixed-motive analysis applies to cases where an adverse employment decision was the product of a mixture of legitimate and illegitimate motives.
White s Fine Furniture, Inc.
Under � 2000e-2 m of Title VII, Ondricko can proceed on a mixed-motive claim by demonstrating that her -6- No.
MGM Grand Detroit Page 7 protected status was a motivating factor in her termination, even though other factors also motivated her discharge.
Ondricko can pursue a mixed-motive claim under Title VII based on direct evidence or solely on circumstantial evidence.
See Desert Palace, Inc.
At the summary judgment stage, the ultimate question is whether Ondricko presented evidence, direct or circumstantial, from which a reasonable jury could logically infer that her race or gender were motivating factors in MGM s decision here terminate her employment.
See Wright, 455 F.
A plaintiff triggers mixed-motive analysis by giving notice of bringing such claims.
App x 485, 488 n.
This treatment can be triggered expressly by invoking the mixed-motive analysis or impliedly through use what is blackjack 2133 the motivating factor test in the complaint and responsive pleadings.
See Spees, 617 F.
App x 777, 779 6th Cir.
Ondricko gave adequate notice of mixed-motive claims in her response to MGM s motion for summary judgment.
Specifically, Ondricko corrected MGM s discussion of pretext in its motion brief by citing this court s explanation of the summary judgment analysis of mixed-motive claims in White v.
Therefore, Ondricko is entitled to a mixed-motive analysis of her Title VII claims.
In discrimination cases, direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer s actions.
In direct evidence cases, once a plaintiff shows that the prohibited classification played a motivating part in the employment decision, the burden of both production and persuasion shifts to the employer to prove that it would have terminated the employee even if it had not been motivated by impermissible discrimination.
City of Cleveland, 229 F.
MGM argues O Connor s statement is similar to the employer s statement in Dabrowski v.
Dabrowski, a white male, was fired because he lied about his GPA on his application.
His manager explained that the company would enforce its gender- and race-neutral requirement for applicants and could not grant him preferential treatment.
The district court decision in Dabrowski is unpublished, not binding on this court, and factually inapposite.
Dabrowski involved a request by an unqualified job applicant for waiver of a clear, neutrally-enforced application requirement.
That situation is clearly distinguishable from the situation alleged here: a discharge based on an ambiguous guideline, accompanied by evidence of inconsistent application, and explained on the basis of race.
We turn now to de novo review of the grant of summary judgment under applicable precedent.
Looking at O Connor s statement in the light most favorable to Ondricko and drawing all reasonable inferences in her favor, a reasonable jury could conclude that Ondricko s race was a motivating factor in MGM s decision to terminate her -8- No.
MGM Grand Detroit Page 9 employment.
See Wright, 455 F.
This statement was made by an MGM decisionmaker 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 Go here Connor s statement that MGM was motivated by topic casino blackjack secrets apologise desire to be racially balanced in its terminations for misconduct related to shuffling.
App x 717, 720 6th Cir.
Because Ondricko proffered direct evidence of discrimination, the burdens of production and persuasion shift to MGM to demonstrate that it would have fired Ondricko irrespective of its discriminatory intent.
Although MGM does not argue its case under a mixed-motive analysis, it asserts that it consistently terminated employees who have actively participated in bad shuffles.
Ondricko argues this alleged distinction between active participation and other forms of shuffle supervision click here arbitrary and pretext for MGM s true discriminatory motivation.
Viewing the record in the light most favorable to Ondricko, a jury could reasonably disbelieve MGM s proffered explanation.
See White, 533 F.
First, O Connor explains to Hannon that Black was not terminated because he did not approve the bad shuffle, while Ondricko did.
However, Black s disciplinary record includes a statement by MGM that Black was being disciplined for approving a bad shuffle, and MGM concedes this approval by Black for the purposes of -9- No.
MGM Grand Detroit Page 10 summary judgment.
Second, MGM relies on the fact Black walked away from the table and was not present for the improper procedure removing the same unshuffled cards from the machine as proof he did not actively participate in the bad shuffle.
However, Ondricko notes that it seems contradictory for MGM to reward Black for violating a policy which requires him to observe the entire shuffle procedure.
Third, Ondricko points out that her prior disciplinary record was clean while Black, who was not fired, had several prior disciplinary infractions.
Because of these disputed material facts pertaining to the actual motivation involved in MGM s decision, the what is blackjack 2133 court erred in granting summary judgment on Ondricko s Title VII race discrimination claim.
Circumstantial Evidence of Gender Discrimination Ondricko relies on circumstantial evidence to establish her Title VII gender discrimination claim.
The same analysis applies for mixed-motive claims under Title VII based on direct or circumstantial evidence, see Desert Palace, 539 U.
Ondricko relies on the disparate treatment of her male coworkers as evidence of MGM s discriminatory motive.
Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.
United States, 431 U.
Ondricko shows that seven Supervisors were disciplined for involvement in improper shuffling procedures: five were men, four of whom were suspended for five or fewer days.
In contrast, both women were terminated for their involvement in bad shuffles.
The one remaining man, Swick, was fired about eight months after MGM fired Ondricko and shortly before she filed the - 10 - No.
MGM Grand Detroit Page 11 instant action.
Like Ondricko, the plaintiff in Wright v.
Murray Guard pointed to different punishment of an alleged comparator to establish an inference of unlawful discrimination under a mixed-motive analysis.
Wright s comparator was alleged to have engaged in sexual harassment, including coercing one or more subordinates into having sexual relations blackjack simulator game him.
Wright was alleged to have allowed an unauthorized person into the company facility and to have spread rumors.
We found that the alleged acts of misconduct so diverged that they merited different treatment.
This case is not comparable to Wright.
The different treatment of Ondricko, as compared to that of the four retained male Supervisors, provides an what is blackjack 2133 of discrimination at the summary judgment stage.
As discussed above, there is a disputed issue of fact regarding whether Black s conduct was sufficiently different from Ondricko s conduct to warrant different treatment.
The other three men Yharbrough, Barney, and Hood who were not terminated were involved in misconduct that differed only slightly from the exact facts involved in Ondricko s offense.
MGM does not point to any established policy, either written or verbally communicated to its employees, that distinguishes between different shuffle-related misconduct and provides the corresponding levels of 3 The date Ondricko filed her charge of discrimination with the EEOC, and therefore the date MGM became aware of Ondricko s discrimination claims, is not in the record.
She only asserts she filed it timely with the EEOC and that she filed the instant action within ninety days after receiving her Right to Sue Letter.
MGM Grand Detroit Page 12 discipline.
In fact, Vice President of Human Resources Deborah Moffatt testified that MGM references the same Policy 417 on almost all of MGM s termination notices.
Therefore, as with Black, when viewed in the light most favorable to Ondricko, there is a disputed issue of material fact regarding whether the misconduct of these men diverges sufficiently to justify different treatment.
MGM also points out that it fired a male Supervisor, Gary Swick, for very similar misconduct.
However, given the four similarly situated male employees who were not terminated based on similar conduct, MGM cannot defeat the inference of a discriminatory motive with one comparator who was treated similarly.
Based on these disputed issues of material fact, Ondricko has presented evidence from which a reasonable jury could logically infer that gender was a motivating factor in MGM s decision to terminate her employment.
See Wright, 455 F.
Thus, the district court erred in granting MGM summary judgment on Ondricko s Title VII gender discrimination claim.
In re Rodriguez, 487 F.
Direct Evidence of Race Discrimination Ondricko presented direct evidence in support of her race discrimination claim based on O Connor s statement to Hannon.
ELCRA mixed-motive discrimination - 12 - No.
MGM Grand Detroit Page 13 claims based https://allo-hebergeur.com/blackjack/live-blackjack-online-usa.html direct evidence are subject to the same analysis as Title VII discrimination claims.
Therefore, for the reasons discussed above, the district court erred in granting summary judgment to MGM on Ondricko s ELCRA race discrimination claim.
Gender Discrimination Ondricko s Basic payout blackjack strategy gender discrimination claim, however, requires a different analysis than that under Title VII because Ondricko relies entirely on circumstantial evidence.
Although in Desert Palace, Inc.
Lowe s Home Ctrs.
App x 900, 911 6th Cir.
continue reading order to survive summary judgment on her ELCRA gender discrimination claim, Ondricko cannot rely on a mixed-motive theory and must satisfy the McDonnell Douglas burden-shifting framework based on a single-motive theory.
To establish an ELCRA discrimination claim using the McDonnell Douglas framework, a plaintiff is required to present evidence that 1 she was a member of a protected class, 2 she was subject to an adverse employment action, 3 she was qualified for the position, and 4 others, similarly situated and outside the protected class, were treated differently.
If the plaintiff successfully proves a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the - 13 - No.
MGM Grand Detroit Page 14 employment decision.
Once the employer carries this burden, the burden of production shifts back to the plaintiff to show that the legitimate reasons offered by the employer were not its true reasons, but rather were pretext for unlawful discrimination.
Prima Facie Case It is undisputed that Ondricko satisfies the first three elements of a prima facie case of gender discrimination.
MGM disputes that similarly-situated comparators were treated differently than Ondricko based on its claim that Boyd and Swick, both terminated, were the only two proper comparators.
The plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered similarly-situated.
Rather, the plaintiff and the employee with whom the plaintiff seeks to compare herself must be similar in all relevant aspects.
Further, a plaintiff s burden at the prima facie stage is not onerous and poses a burden easily met.
Catholic Diocese of Toledo, 206 F.
There are five potential male comparators: Black, Swick, Yharbrough, Barney, and Hood.
All five were Floor Supervisors, like Ondricko, overseeing Dealers that engaged in misconduct.
MGM concedes that the misconduct in each case related to shuffling procedures.
Each of these cases relied only on the failure to properly supervise the shuffle and not on other concurrent misconduct.
Based on these facts, all five men are similarly situated in all relevant aspects to Ondricko.
Because four of these men were given short suspensions without pay, rather than terminated, Ondricko has shown - 14 - No.
MGM Grand Detroit Page 15 that similarly situated employees outside the protected class were treated differently.
Nondiscriminatory Justification and Pretext Because Ondricko has shown a prima facie case of discrimination, the burden of production shifts to MGM to articulate some legitimate, nondiscriminatory reason for the employment decision.
MGM asserts it terminated Ondricko because she admittedly participated in a bad shuffle which violates its procedures and policies.
Ondricko asserts this is pretext for discrimination.
A plaintiff can establish that a defendant s reasons for termination read article pretext what is blackjack 2133 by showing the reasons had no basis in fact, 2 if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or 3 if they were factors, by showing that they were jointly insufficient to justify the decision.
Stroh Brewery Co, 462 N.
For the same reasons discussed under her Title VII gender discrimination claim, Ondricko has presented evidence creating a genuine issue of material fact that, although her misconduct was a factor in her discipline, it was not sufficient to justify the decision to terminate her employment.
Therefore, the district court erred in granting summary judgment on Ondricko s ELCRA gender discrimination claim.
MGM Grand Detroit Page 16 III.
CONCLUSION For the foregoing reasons, the district court erred in granting summary judgment in favor of MGM on Ondricko s discrimination claims and we REVERSE the grant of summary judgment and REMAND the case for trial.

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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) | Outten & Golden LLP
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MGM Grand Detroit, LLC, No.
Buckeye Valley High school, No.
MGM Grand Detroit, LLC, No.
Buckeye Valley High school, No.
In the first, a gaming floor supervisor revives a case against a casino for selectively icandy peach blackjack travel system 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.
The specific offense article source 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.
Only Ondricko a white woman and another woman an African-American named Boyd were fired.
When the decision-maker was advised what is blackjack 2133 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 what is blackjack 2133 white girl.
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" what is blackjack 2133 by itself raised at least an inference of race and gender discrimination, supporting a "mixed-motive" theory under Title VII.
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.
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 what is blackjack 2133 ADA covers discrimination on the basis of disability during job training.
� 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.
Therefore, having a CDL was not necessary for Rosebrough to perform what is blackjack 2133 essential functions of her training position, and the district court erred in holding otherwise.
Tags:, Related Posts:,The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.
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Ondricko v. MGM Grand Detroit, LLC, No. 10-2133 (6th Cir. 2012) :: Justia
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Ondricko had been working in the gaming industry since 1994 and began working for MGM in 2003.
MGM promoted Ondricko to floor supervisor in 2005.
At least six other supervisors had engaged in misconduct related to shuffle procedures.
Only two were terminated.
She sued for race and gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.
The district court found that Ondricko admitted the employment misconduct that resulted in her termination and that she had not shown disparate treatment of similarly situated comparators.
The Sixth Circuit reversed, finding that the misconduct was insufficient to justify termination and that Ondricko had established disparate treatment of male comparators.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0254p.
N Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
ONDRICKO, Plaintiff-Appellant, Decided and Filed: August 8, 2012 Before: KENNEDY, MARTIN, and STRANCH, Circuit Judges.
Wahl, STERLING ATTORNEYS AT LAW, P.
Louis Theros, Regan K.
Dahle, BUTZEL LONG, Detroit, Michigan, for Appellee.
Plaintiff Kimberly Ondricko seeks reversal of the district court s grant of summary judgment in favor of Defendant MGM Grand Detroit, LLC in her suit for race and gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.
� 2000e et seq.
The district court found that Ondricko admitted the employment misconduct that resulted in her termination and that she had not shown disparate treatment of similarly situated comparators.
For the following reasons, we REVERSE the judgment of the district court.
MGM Grand Detroit Page 2 I.
BACKGROUND Kimberly Ondricko had been working in the gaming industry since 1994 and began working as a Casino Click to see more for MGM Grand Detroit MGM in September 2003.
MGM promoted Ondricko first to a Dealer 1, then to a part-time Floor Supervisor, and lastly to a full-time Table Games Floor Supervisor in October 2005.
As a Floor Supervisor, Ondricko was responsible for supervising the Dealers at as many as six gaming tables in an area referred to as a Pit.
MGM argues it fired Ondricko because she participated in a bad shuffle at a blackjack table she was supervising.
Some background is necessary to understand this argument.
Dealers use two sets of different-colored playing cards at each blackjack table and before a Dealer puts any cards into play, they must be shuffled.
The Dealer raises a cut card into the air to request that the Supervisor approve the shuffle.
Upon approval, check this out Dealer gathers the cards on the table that have already been played the discards and places them in a shuffle machine.
The machine has two chambers: an empty chamber into which the Dealer places the discards and a chamber containing shuffled cards to be put into play.
The Dealer presses a button on the shuffle machine, causing the empty chamber to elevate, then places the discards into the empty chamber and presses the button again, causing the chamber with the discards to lower and the chamber with the shuffled cards to rise.
The Dealer removes the shuffled cards which will always be a different color than the discarded cards from the shuffle machine and puts those cards into play.
On April 27, 2008, Ondricko was the Floor Supervisor in a blackjack Pit where only one customer was playing at one table with Dealer Vivian Baran.
Ondricko was standing next to Baran when it came time for Baran to shuffle.
Baran gathered the discarded cards and Ondricko pressed the button on the shuffle machine to raise the empty chamber.
Baran placed the discards into the empty chamber, but instead of pressing the button to lower that chamber and raise the chamber with the shuffled cards, Baran then removed the same unshuffled cards from the chamber and put them back into -2- No.
MGM Grand Detroit Page 3 play.
Ondricko testified that she was not aware Baran failed to press the button to lower the chamber with the discards and raise the chamber with the shuffled cards.
As Baran was putting the cards into play, Ondricko noticed the chamber door was still open.
She asked Baran whether she was dealing the same cards, to which Baran said no, and then investigated whether the shuffle machine had malfunctioned.
Ondricko s investigation occurred while Baran dealt hands for about ninety seconds, after which Ondricko told Baran to stop dealing.
Ondricko immediately notified her superior, the Pit Manager, about the bad shuffle.
Ondricko never left the blackjack table during this shuffle procedure.
MGM suspended Ondricko pending investigation into the incident.
On May 9, 2008, MGM terminated Ondricko based on its 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.
MGM alleged Ondricko s conduct violated MGM s Procedures for Dealing the Cards Using an Automatic Shuffle Devise, which resulted in a violation of Policy 417.
At least six other Supervisors engaged in misconduct related to shuffle procedures.
Only two were terminated.
In January 2004, Yancy Yharbrough, a black male, was disciplined, but not terminated, for his failure to remove the 10 cards from playing decks during a game which required their omission.
In late July 2008, Carl Barney, a black male, was also disciplined, but not terminated, for two shuffle procedure violations within two weeks, including playing un-cut decks and playing six decks where a game required eight.
Gary Swick, a white male, was terminated in January 2009 after approving a shuffle at a blackjack table.
Specifically, Swick approved this shuffle, the Dealer placed the discards in the empty shuffler chamber, and then Swick left the table to speak with the Pit Manager.
When Swick returned, the Dealer removed the unshuffled cards from the chamber, instead of the newly shuffled cards, and dealt one hand.
Another Floor Supervisor noticed the error and alerted Swick, who was still standing at the table, but had not been watching the shuffle, and Swick reported this to his Pit Manager.
In contrast, in February 2009, Greg Hood, a white male, was given a -3- No.
MGM Grand Detroit Page 4 five-day suspension for supervising tables where washed not yet used, but unshuffled cards were put into play.
The remaining two Supervisors engaged in shuffle-procedure misconduct in the months immediately before Ondricko was terminated and were directly addressed by MGM in relation to her read article />In December 2007, Nakeisha Boyd, a black female, was terminated after supervising link mini-baccarat game where the Dealer apparently had trouble removing cards from the shuffler.
Boyd assisted the Dealer by removing unshuffled discards from the shuffler and giving those cards, instead of the shuffled cards, to the Dealer to put back into play.
In contrast, Warren Black, a black male, was given a three-day suspension after approving a bad shuffle1 in October 2007 based on violations of the same policies MGM alleges Ondricko violated.
After approving the shuffle, Black stepped away from the game table2 and the Dealer placed the discards into the empty shuffler chamber and then immediately removed the same cards.
After a customer cut these cards, but before they were put into play, another Dealer arrived as relief.
The new Dealer noticed the wrong cards were on the table and notified Black, who advised the Dealer to put the shuffled cards into play.
Around the time MGM decided to terminate Ondricko, but before she was notified of this decision, Tables Games Assistant Shift Manager Mike Hannon spoke to Mike O Connor, Vice President of Operations, about Ondricko.
Hannon asked O Connor why Black was only given a three-day suspension, but Ondricko was to be terminated.
In response, O Connor asserted Gaming blackjack online did not approve a bad shuffle, but Ondricko did.
Black did approve the shuffle.
MGM asserts he was assisting another customer, while Ondricko notes Black simply does not appear in the surveillance video and there is no indication of why he was not by the table.
MGM Grand Detroit Page 5 about Kim.
O Connor then said do you think I wanted to fire Kim, I didn t want to fire Kim, how could I keep the white girl.
On March 23, 2009, Ondricko filed this action against MGM alleging claims of gender and race discrimination in violation of Title VII and ELCRA.
In 2010, MGM filed a Motion for Summary Judgment asserting Ondricko could not click at this page a prima facie case of race or gender discrimination based on circumstantial evidence or prove MGM s legitimate nondiscriminatory motive was pretext.
Ondricko opposed this motion, asserting she presented direct evidence of race discrimination and circumstantial evidence of both race and gender discrimination under a mixed-motive standard.
The district court held a hearing and granted MGM s motion from the bench, simply reasoning that the plaintiff admitted the conduct that had gotten her fired, the bad shuffle, and nobody was treated differently whatsoever, or disparately, that she has called attention to.
No explanatory memorandum or order was entered.
On appeal, Ondricko argues the district court improperly granted summary judgment to MGM because she presented direct and circumstantial evidence of discrimination and the court erred in failing to apply a mixed-motive analysis to her claims.
Standard of Review This court reviews a district court s grant of summary judgment de novo.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
As the party seeking summary judgment, MGM bears the burden to show there are no genuine issues of material fact.
All facts, including inferences, are viewed in the light most favorable to the -5- No.
MGM Grand Detroit Page 6 nonmoving party.
The central issue is whether the evidence presents a sufficient disagreement to require submission of Ondricko s claims to a jury or whether the evidence is so onesided that MGM must prevail as a matter of law.
Title VII Claims Title VII s anti-discrimination provision makes it an what is blackjack 2133 employment practice for an employer.
� 2000e-2 a 1.
Intentional discrimination claims under Title VII can be proven by direct or circumstantial evidence.
Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer s actions.
Circumstantial evidence, on the other hand, is proof that does not on its atlantic city blackjack rules establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.
Mixed-Motive Analysis We must first determine whether Ondricko s race and gender discrimination claims should be analyzed under a mixed-motive or single-motive analysis.
It is not entirely clear from the motion hearing transcript whether the district court conducted a mixed-motive analysis or analyzed Ondricko s claims using the McDonnell Douglas burden-shifting framework.
A mixed-motive analysis applies to cases where an adverse employment decision was the product of a mixture of legitimate and illegitimate motives.
White s Fine Furniture, Inc.
Under � 2000e-2 m of Title VII, Ondricko can proceed on a mixed-motive claim by demonstrating that what is blackjack 2133 -6- No.
MGM Grand Detroit Page 7 protected status was a motivating factor in her termination, even though other factors also motivated her discharge.
Ondricko can pursue a mixed-motive claim under Title VII based on direct evidence or solely on circumstantial evidence.
See Desert Palace, Inc.
At the summary judgment stage, the ultimate question is whether Ondricko presented evidence, direct or circumstantial, from which a reasonable jury could logically infer that her race or gender were motivating factors in MGM s decision to terminate her employment.
See Wright, 455 F.
A plaintiff triggers mixed-motive analysis by giving notice of bringing such claims.
App x 485, 488 n.
This treatment can be triggered expressly by invoking the mixed-motive analysis or impliedly through use of the motivating factor test in the complaint and responsive pleadings.
See Spees, 617 F.
App x 777, 779 6th Cir.
Ondricko gave adequate notice of mixed-motive claims in her response to MGM s motion for summary judgment.
Specifically, Ondricko corrected MGM s discussion of pretext in its motion brief by citing this court 888casino blackjack explanation of the summary judgment analysis of mixed-motive claims in White v.
Therefore, Ondricko is entitled to a mixed-motive analysis of her Title VII claims.
In discrimination cases, direct evidence is that evidence which, if believed, requires what is blackjack 2133 conclusion that unlawful discrimination was at least a motivating factor in the employer s actions.
In direct evidence cases, once a plaintiff shows that the prohibited classification played a motivating part in the employment decision, the burden of both production and persuasion shifts to the employer to prove that it would have terminated the employee even if it had not been motivated by impermissible discrimination.
City of Cleveland, 229 F.
MGM argues O Connor s statement is similar to the employer s statement in Dabrowski v.
Dabrowski, a white male, was fired because he lied about his GPA on his application.
His manager explained that the company would enforce its gender- and race-neutral requirement for applicants and could not grant him preferential treatment.
The district court decision in Dabrowski is unpublished, not binding on this court, and factually inapposite.
Dabrowski involved a request by an unqualified job applicant for waiver of a clear, neutrally-enforced application requirement.
That situation is clearly distinguishable from the situation alleged here: a discharge based on an ambiguous guideline, accompanied by evidence of inconsistent application, and explained on the basis of race.
We turn now to de novo review of the grant of summary judgment under applicable precedent.
Looking at O Connor s statement in the light most favorable to Ondricko and drawing all reasonable inferences in her favor, a reasonable click here could conclude that Ondricko s race was a motivating factor in MGM s decision to terminate her -8- No.
MGM Grand Detroit Page 9 employment.
See Wright, 455 F.
This statement was made by an MGM decisionmaker shortly before notifying Ondricko of her termination, immediately after discussing inquiries by continue reading 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.
App x 717, 720 6th Cir.
Because Ondricko proffered direct evidence of discrimination, the burdens of production and persuasion shift to MGM to demonstrate that it would have fired Ondricko irrespective of its discriminatory intent.
Although MGM does not argue its case under a mixed-motive analysis, it asserts that it consistently terminated employees who have actively participated in bad shuffles.
Ondricko argues this alleged distinction between active participation and other forms of shuffle supervision is arbitrary and pretext for MGM s true discriminatory motivation.
Viewing the record in the light most favorable to Ondricko, a jury could reasonably disbelieve MGM s proffered explanation.
See White, 533 F.
First, O Connor explains to Hannon that Black was not terminated because he did not approve the bad shuffle, while Ondricko did.
However, Black s disciplinary record includes a statement by MGM that Black was being disciplined for approving a bad shuffle, and MGM concedes this approval by Black for the purposes of -9- No.
MGM Grand Detroit Page 10 summary judgment.
Second, MGM relies on the fact Black walked away from the table and was not present for the improper procedure removing the same unshuffled cards from the machine as proof he did not actively participate in the bad shuffle.
However, Ondricko notes that it seems contradictory for MGM to reward Black for violating a policy which requires him to observe the entire shuffle procedure.
Third, Ondricko points out that her prior disciplinary record was clean while Black, who was not fired, had several prior disciplinary infractions.
Because of these disputed material facts pertaining to the actual motivation involved in Click s decision, the district court erred in granting summary judgment on Ondricko s Title VII race discrimination claim.
Circumstantial Evidence of Gender Discrimination Ondricko relies on circumstantial evidence to establish her Title VII gender discrimination claim.
The same analysis applies for mixed-motive claims under Title VII based on direct or circumstantial evidence, see Desert Palace, 539 U.
Ondricko relies on the disparate treatment of her male coworkers as evidence of MGM s discriminatory motive.
Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.
United States, 431 U.
Ondricko shows that seven Supervisors were disciplined for involvement in improper shuffling procedures: five were men, four of whom were suspended for five or fewer days.
In contrast, both women were terminated for their involvement in bad shuffles.
The one remaining man, Swick, was fired about eight months after MGM fired Ondricko and shortly before she filed the - 10 - No.
MGM Grand Detroit Page 11 instant action.
Like Ondricko, the plaintiff in Wright v.
Murray Guard pointed to different punishment of an alleged comparator to establish an inference of unlawful discrimination under a mixed-motive analysis.
Wright s comparator was alleged to have engaged in sexual harassment, including coercing one or more subordinates into having sexual relations with him.
Wright was alleged to have allowed an unauthorized person into the company facility and to have spread rumors.
We found that the alleged acts of misconduct so diverged that they merited different treatment.
This case is not comparable to Wright.
The different treatment of Ondricko, as compared to that of the four retained male Supervisors, provides an inference of discrimination at the summary judgment stage.
As discussed above, there is a disputed issue of fact regarding whether Black s conduct was sufficiently different from Ondricko s conduct this blackjack chance to win agree warrant different treatment.
The other three men Yharbrough, Barney, and Hood who were not terminated were involved in misconduct that differed only slightly from the exact facts involved in Ondricko s offense.
MGM does not point to any established policy, either written or verbally communicated to its employees, that distinguishes between different shuffle-related misconduct and provides the corresponding levels of 3 The date Ondricko filed her charge of discrimination with the EEOC, and therefore the date MGM became aware of Ondricko s discrimination claims, is not in the record.
She only asserts she filed it timely with the EEOC and that she filed the instant action within ninety days after receiving her Right to Sue Letter.
MGM Grand Detroit Page 12 discipline.
In fact, Vice President of Human Resources Deborah Moffatt testified that MGM references the same Policy 417 check this out almost all of MGM s termination notices.
Therefore, as with Black, when viewed in the light most favorable to Ondricko, there is a disputed issue of material fact regarding whether the misconduct of 2005 harmonie blackjack ranch men diverges sufficiently to justify different treatment.
MGM also points out that it fired a male Supervisor, Gary Swick, for very similar misconduct.
However, surrender strategy blackjack the four similarly situated male employees who were not terminated based on similar conduct, MGM cannot defeat the inference of a discriminatory motive with one comparator who was treated similarly.
Based on these disputed issues of material fact, Ondricko has presented evidence from which a reasonable jury could logically infer that gender was a motivating factor in MGM s decision to terminate her employment.
See Wright, 455 F.
Thus, the district court erred in granting MGM summary judgment on Ondricko s Title VII gender discrimination claim.
In re Rodriguez, 487 F.
Direct Evidence of Race Discrimination Ondricko presented direct evidence in support of her race discrimination claim based on O Connor s statement to Hannon.
ELCRA mixed-motive discrimination - 12 - No.
MGM Grand Detroit Page 13 claims based on direct evidence are subject to the same analysis as Title VII discrimination claims.
Therefore, for the reasons discussed above, the district court erred in granting summary judgment to MGM on Ondricko s ELCRA race discrimination claim.
Gender Discrimination Ondricko s ELCRA gender discrimination claim, however, requires a different analysis than that under Title VII because Ondricko relies entirely on circumstantial evidence.
Although in Desert Palace, Inc.
Lowe s Home Ctrs.
App x 900, 911 6th Cir.
Therefore, in order to survive summary judgment on her ELCRA gender discrimination claim, Ondricko cannot rely on a mixed-motive theory and must satisfy the McDonnell Douglas burden-shifting framework based on a single-motive theory.
To establish an ELCRA discrimination claim using the McDonnell Douglas framework, a plaintiff is required to present evidence that 1 she was a member of a protected class, 2 sorry, blackjack values of cards apologise was subject to an adverse employment action, 3 she was qualified for the position, and 4 others, similarly situated and outside the protected class, were treated differently.
If the plaintiff successfully proves a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the - 13 - No.
MGM Grand Detroit Page 14 employment decision.
Once the employer carries this burden, the burden of production shifts back to the plaintiff to show that the legitimate reasons offered by the employer were not its true reasons, but rather were pretext for unlawful discrimination.
Prima Facie Case It is undisputed that Ondricko satisfies the first three elements of a prima facie case of gender discrimination.
MGM disputes that similarly-situated comparators were treated differently than Ondricko based on its click that Boyd and Swick, both terminated, were the only two proper comparators.
The plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered similarly-situated.
Rather, the plaintiff and the employee with whom the plaintiff seeks to compare herself must be similar in all relevant aspects.
Further, a plaintiff s burden at the prima facie stage is not onerous and poses a burden easily met.
Catholic Diocese of Toledo, 206 F.
There are five potential male comparators: Black, Swick, Yharbrough, Barney, and Hood.
All five were Floor Supervisors, like Ondricko, overseeing Dealers that engaged in misconduct.
MGM concedes that the misconduct in each case related to shuffling procedures.
Each of these cases relied only on the failure to properly supervise the shuffle and not on other concurrent misconduct.
Based on these facts, all five men are similarly situated in all relevant aspects to Ondricko.
Because four of these men were given short suspensions without pay, rather than terminated, Ondricko has shown - 14 - No.
MGM Grand Detroit Page 15 that similarly situated employees outside the protected class were treated differently.
Nondiscriminatory Justification and Pretext Because Ondricko has shown a prima facie case of discrimination, the burden of production shifts to MGM to articulate some legitimate, nondiscriminatory reason for the employment decision.
MGM asserts it terminated Ondricko because she admittedly participated in a bad shuffle which violates its procedures and policies.
Ondricko asserts this is pretext for discrimination.
A plaintiff can establish that a defendant s reasons for termination what is blackjack 2133 pretext 1 by showing the reasons had no basis in fact, 2 if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or 3 if they were factors, by showing that they were jointly insufficient to justify the decision.
Stroh Brewery Co, 462 N.
For the same reasons discussed at squared cheating caught blackjack her Title VII gender discrimination claim, Ondricko has presented evidence creating a genuine issue of material fact that, although her misconduct was a factor in her discipline, it was not sufficient to justify the decision to terminate her employment.
Therefore, the district court erred in granting summary judgment on Ondricko s ELCRA gender discrimination claim.
MGM Grand Detroit Page 16 What is blackjack 2133 />CONCLUSION For the foregoing reasons, the district court erred in granting summary judgment in favor of MGM on Ondricko s discrimination claims and we REVERSE the grant of summary judgment and REMAND the case for trial.

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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) | Outten & Golden LLP
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