Arline Taliaferro v. Trump Entertainment Resorts In ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1083
___________
ARLINE TALIAFERRO,
Appellant
v.
TRUMP ENTERTAINMENT RESORTS INC, d/b/a TRUMP PLAZA HOTEL &
CASINO; XYZ CORP. 1-10; TRUMP PLAZA ASSOCIATES; INDIVIDUALS ABC 1-
10, ALL FICTITIOUS NAMES AND/OR ENTITIES WHO SHOULD BE IDENTIFIED
THROUGH DISCOVERY, ET AL.; PLAN ADMINISTRATOR FOR
THE TRUMP PLAZA HOTEL & CASINO GROUP MEDICAL PLAN
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-12-cv-03883)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 6, 2017
Before: KRAUSE, NYGAARD and ROTH, Circuit Judges*
(Opinion filed February 1, 2018)
___________
OPINION**
___________
PER CURIAM
*
We note that this case was originally submitted to a panel comprising Judges
Hardiman, Nygaard and Roth; it was necessary to reconstitute the panel.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
Arline Taliaferro appeals from the District Court’s entry of summary judgment in
favor of the defendants. We will affirm.1
I.
The parties are familiar with the background of this case, which is set forth more
fully in the District Court’s thorough opinion. Taliaferro worked as a casino dealer at the
Trump Plaza Hotel and Casino in Atlantic City, New Jersey, for over 20 years. After
permanently injuring her right hand in 2008, she returned to work for a time before being
terminated in 2011. As a result of her injury, she later obtained a workers’ compensation
settlement in the amount of $148,500. She also later began receiving Social Security
Disability Insurance benefits after the Social Security Administration (“SSA”) agreed
with her contention that she could not perform her former duties because she had become
completely disabled as of March 11, 2011. Trump Plaza terminated Taliaferro’s medical
benefits on May 5, 2011, because she had failed to pay premiums. It then terminated her
employment on May 27, 2011, citing unauthorized absences.2
Taliaferro was represented by counsel at all relevant times during this process.
She also was represented by counsel when she filed suit in state court against Trump
Plaza and the other defendants, all of which we refer to collectively by that name.
not constitute binding precedent.
1
The Clerk stayed this appeal pending a bankruptcy proceeding involving some of the
appellees, but that proceeding has since concluded and the stay has been lifted.
2
Taliaferro claims that Trump Plaza actually terminated her employment on March 11,
2011, but that dispute is not relevant to the issues addressed below.
2
Taliaferro asserted two claims. First, she claimed that Trump Plaza terminated her
employment on the basis of a disability in violation of the New Jersey Law Against
Discrimination (“NJLAD”), N.J. Stat. Ann. §§10:5-1 to 10:5-49. Second, she claimed
that Trump Plaza violated the Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. §§ 1001-1461, by failing to notify her of her right to elect continuing medical
coverage under the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”), 29
U.S.C. §§ 1161-1169.
Trump Plaza removed the suit to federal court and the parties engaged in
discovery. Taliaferro eventually filed a motion for summary judgment on her NJLAD
claim. Trump Plaza filed a cross motion for summary judgment on that claim, and later
filed a motion for summary judgment on the ERISA claim as well. By order entered
December 11, 2013, the District Court denied Taliaferro’s motion, granted Trump Plaza’s
motions, and entered judgment in Trump Plaza’s favor.
In particular, the District Court concluded that Taliaferro’s successful
representation to the SSA that she had become completely disabled as of March 11, 2011,
estopped her from proving an essential element of her NJLAD claim—i.e., that, despite a
protected disability, she was “qualified to perform the essential functions of the job” at
the time of her termination on May 27, 2011. Conoshenti v. Pub. Serv. Electric & Gas
Co., 364 F.3d 135, 150 (3d Cir. 2004). In reaching that conclusion, the District Court
applied the framework set forth in Cleveland v. Policy Management Systems Corp., 526
U.S. 795 (1999), which addressed the estoppel effect of Social Security benefits on a
3
claim under the Americans with Disabilities Act, and on our decisions applying the
Cleveland framework to analogous claims, including claims under the NJLAD.3
As for Taliaferro’s ERISA claim, the District Court concluded that there was no
material dispute but that Trump Plaza terminated her medical benefits because she failed
to pay premiums and that it did so before terminating her employment. The District
Court further concluded that Trump Plaza’s termination of Taliaferro’s benefits for
nonpayment of premiums (unlike a termination of employment) was not a “qualifying
event” within the meaning of 29 U.S.C. § 1161(a) that triggered a duty to provide the
COBRA notice. Taliaferro appeals.4
II.
On appeal, Taliaferro has challenged only the District Court’s ruling on her
NJLAD claim and has not mentioned her ERISA claim at all. Thus, we agree with
Trump Plaza that Taliaferro has waived any challenge as to her ERISA claim. See
3
See, e.g., Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 272-74 (3d Cir. 2012)
(applying Cleveland in affirming entry of summary judgment on claim under the Family
and Medical Leave Act); Detz v. Greiner Indus., Inc., 346 F.3d 109, 115-21 (3d Cir.
2003) (same as to claim under the Age Discrimination in Employment Act); Motley v.
N.J. State Police, 196 F.3d 160, 164-67 (3d Cir. 1999) (same as to NJLAD claim).
4
The District Court had federal question jurisdiction over Taliaferro’s ERISA claim
under 28 U.S.C. § 1331 and supplemental jurisdiction over her NJLAD claim under 28
U.S.C. § 1367(a). We have jurisdiction under 28 U.S.C. § 1291. Our review of the entry
of summary judgment is plenary. See Macfarlan, 675 F.3d at 271. Summary judgment is
appropriate when, viewing the evidence in the light most favorable to the non-moving
party, “there is no genuine issue of material fact and . . . the moving party is . . . entitled
to judgment as a matter of law.” Id.
4
Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3d Cir. 2002). Taliaferro’s challenge to
the District Court’s ruling on her NJLAD claim does not squarely address the District
Court’s reasoning and is otherwise cursory, but we will liberally construe her brief to
raise four arguments that warrant discussion. Each lacks merit.
First, Taliaferro asserts that she was not in fact disabled as of March 11, 2011, that
she attempted to and could have returned to work on that date, and that she has a “return
to work note from Dr. Parks [sic]” to that effect. (Appellant’s Br. at 6.) These assertions,
however, do not address the reasons for the District Court’s conclusion that Taliaferro is
estopped from establishing that she was able to perform the essential function of her job
as of that date. As the District Court explained, Taliaferro claimed before the SSA that,
inter alia, she “stopped working” on March 11, 2011 “[b]ecause of my condition(s),” of
which she identified four. (ECF No. 91-9 at 34.) Those representations and others led
the SSA to conclude that she had become disabled as of March 11, 2011, and to award
her disability benefits based on that specific disability date. (Id. at 75.) The District
Court reviewed the record and applicable case law in detail (ECF No. 136 at 19-32) and
properly concluded both that Taliaferro’s present NJLAD claim squarely conflicts with
her successful assertions before the SSA and that Taliaferro did not adequately explain
the inconsistency at the summary judgment stage. See Cleveland, 526 U.S. at 805-07;
Detz, 346 F.3d at 120-21; Motley, 196 F.3d at 164-67 & n.9. Taliaferro has raised
nothing calling these conclusions into question, and our own review of the record reveals
5
no error of law or genuine issue of material fact in this regard.5
Second, Taliaferro asserts that she never resigned from her position and that
Trump Plaza instead wrongfully terminated her. Whether Taliaferro resigned or was
terminated, however, is irrelevant to the ground on which the District Court concluded
that she is estopped from establishing her NJLAD claim. Taliaferro makes several
references to wrongful termination, but she did not assert a wrongful termination claim in
the District Court apart from her claim under the NJLAD.
Third, Taliaferro appears to fault her counsel for failing to raise a separate
wrongful termination claim and appears to take issue with other aspects of his
representation, including his presentation of her case to the District Court. Taliaferro’s
apparent dissatisfaction with counsel does not state a basis for relief on appeal in this
civil action. See Walker v. Sun Ship, Inc., 684 F.2d 266, 268-69 (3d Cir. 1982) (citing
Link v. Wabash R.R. Co., 370 U.S. 626, 634 n.10 (1962)). We thus express no opinion
on Taliaferro’s contentions in that regard except to note that any remedy she may have
lies elsewhere.6
5
Our review of the record does not reveal the “return to work note from Dr. Parks [sic]”
to which Taliaferro refers. The District Court thoroughly addressed Dr. Park’s
correspondence (ECF No. 136 at 6-8), and Dr. Park’s last word on the issue, in a letter
dated March 10, 2011, was that “I don’t think [Taliaferro] is able to work as a dealer
given her present symptoms.” (ECF No. 65-3 at 32.) Even if Dr. Park had given
Taliaferro a note stating that she could return to work on March 11, 2011, however, that
would not explain why Taliaferro stated just the opposite to the SSA.
6
In a related vein, Taliaferro states that “I would like the court to address how [counsel]
is being paid since this case was not awarded any money.” (Appellant’s Br. at 6.)
6
Finally, Taliaferro asserts that she obtained SSA benefits only after Trump Plaza
terminated her employment. Taliaferro does not explain why she believes that fact to be
relevant, and it is not because it has no bearing on the inconsistency between her claim
for SSA benefits and her NJLAD claim, which she also asserted after her employment
with Trump Plaza concluded.
These arguments aside, Taliaferro’s brief consists largely of generalized assertions
that the District Court’s decision and unspecified portions of the record are erroneous or
incorrect. We have reviewed the District Court’s decision in light of the record and
discern no error for the reasons summarized above and those that the District Court
explained more fully in its thorough opinion.
For these reasons, we will affirm the judgment of the District Court.
Although it is beyond the scope of this appeal, we note for Taliaferro’s benefit that the
District Court has ordered Trump Plaza to pay attorney’s fees to Taliaferro’s counsel in
connection with a motion to compel discovery. (ECF No. 144.)
7