Back in May and June, when Connecticut’s two gaming tribes were very publicly defying that state’s governor in reopening, California was acting out a similar tableau, but with dozens of tribal casinos considering ignoring Governor Gavin Newsom’s wishes about the safety of reopening.
One of these was Harrah’s Resort Southern California, whose general manager, Darrell Pilant, quit his job rather than reopen the resort in May, which he argued was unsafe. He later sued for wrongful termination—and is pushing back at Caesars Entertainment’s attempt to move the case to federal court—which would probably quash the suit.
Pilant’s “whistleblower” suit was filed in the Superior Court of the State of California, County of San Diego in September. In October Caesars Enterprise Services LLC, a subsidiary of Caesars Entertainment Inc., filed to remove the suit to the federal United States District Court for the Southern District of California.
If this succeeds, Pilant’s lawsuit could end up dead in the water, or so he argues. He would not be able to sue in federal court since he was not an employee of the Rincon Band of Luiseño Indians, which owns Harrah’s, he says.
Caesars, in its motion to move the case, argues that because the tribe owns the casino resort it must be included as a defendant since sovereign tribes may not be sued in state court. It calls the tribe an “indispensable party” to the lawsuit since it was the tribe’s decision to reopen rather than Caesars’.
Pilant retorts that he would be unable to pursue his case if it is moved, because he can’t sue a sovereign tribe.
Pilant’s wrongful termination complaint alleges violation of Cal. Labor Code§ 6310, violation of Cal. Labor Code§ 1102.1 and breach of written employment agreement.
He claims the Rincon tribe told him Governor Gavin Newsom
was “on board” with reopening. He later learned that was not true and he refused to reopen the casino. He was pressured to resign, an action he calls
wrongful termination.
In his filing, Pilant quotes from Governor Newsom’s May 15, 2020 letter: “[The plan to reopen casinos] deeply concerns me, and I urge tribal governments to reconsider…. I cannot stress enough that the risk of COVID-19 transmission remains a serious threat for all Californians. … [It] is in the best interest of public health to move toward a reopening in concert [with California’s phased reopening plan].”
On May 18 Pilant shared the letter with Caesars’s executives N. Lynne Hughes (VP Legal Affairs and Chief Legal Officer), Robert Livingston (Regional President and Pilant’s immediate supervisor} and Tom Jenkin (Global President}. Livingston later replaced Pilant as general manager.
Pilant, “expressed his health and safety concerns about reopening in contravention of advice and counsel of Governor Newsom. Later that evening, Mr. Pilant had a telephone call with Ms. Hughes and Mr. Livingston and was told that Caesars was going to proceed with the reopening on May 22, 2020,” according to Pilant’s filing.
Livingston replied to Pilant with an email later that night, CC’ing Hughes and Jenkin: “Did anyone else open today besides Viejas and Jamul? I feel better about opening in defiance of the Governor with others open.”
The next day: “Mr. Pilant telephoned Mr. Livingston and again reiterated his concerns that reopening the casino posed a serious health and safety risk. Mr. Pilant told Mr. Livingston that in good conscience he could not carry out the reopening and he felt he had no choice but to resign. Mr. Livingston confirmed that he knew Caesars’ plan to reopen was contrary to the advice of the Governor and he never once disagreed with Mr. Pilant regarding his concerns about employee and public health and safety. Nevertheless, Mr. Livingston urged Mr. Pilant to stay on and carry out the reopening.”
Caesars’ motion to remove the case to federal jurisdiction is based on two grounds:
1) federal question jurisdiction, pursuant to 28 U.S.C. sections 1331 and 1441(a), under the Indian Gaming Regulatory Act (“IGRA,” 25 U.S.C. §2701, et seq.); and (2) diversity of citizenship, pursuant to 28 U.S.C. sections 1332(a), 1441(b), 13 and 1446(b) as amended by the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758 (2011).
It argues that federal law states that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” It also argues “that Article I Section 8 of the United States Constitution, which provides that the real party-in-interest is a federally-recognized Indian Tribe and, thus, a domestic sovereign nation.”
It notes that the casino is on the Rincon Reservation, which
It points out that the casino is located on the Rincon Reservation, and “is wholly owned and controlled by the Rincon Band pursuant to IGRA, which establishes the regulatory framework that governs Indian gaming, as well as under government-to-government agreements between the Rincon Band and the State of California and, subsequently, with the United States Department of the Interior. It also “exercises ultimate authority and control over civil regulatory matters within the Rincon Reservation, including operations and decisions concerning the business, maintenance, and management of the Rincon Casino.”
Caesars maintains that it can’t be sued about reopening the casino without including the tribe, which actually made the decision: “On May 22, 2020, consistent with the Tribal Council’s directive to reopen essential businesses, the Rincon Casino reopened along with at least 6 other local tribal casinos. Specially Appearing Defendants CES and CEI had no role whatsoever in the decision to reopen the Rincon Casino when it reopened on May 22, 2020.”
Pilant is seeking redress because he disagreed with the tribe’s action reopening the casino, says the filing.
Pilant’s lawyers argue against dismissing the case because “Caesars waived its arguments because it entered into an employment agreement with Mr. Pilant expressly providing that Mr. Pilant has a right to pursue employment law claims against Caesars (not the tribe) arising out of his employment at Harrah’s.”
They write: “Caesars has not met its burden of providing that disposing of the action in the tribe’s absence would leave Caesars subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.” They add, “Plaintiff would have no remedy, much less an adequate remedy, if the case is dismissed.”
Pilant’s attorneys argue, “This is a case between an individual employee (who worked and resided in San Diego County), and a multi-billion corporation . . . It is not s dispute between Plaintiff and the Rincon Band.”
All the causes for action are made under state law. “The employment law claims are properly brought only against Caesars, which undeniably was Mr. Pilant’s employer. Mr. Pilant was not employed by the tribe. Mr. Pilant had no contract with the tribe. Mr. Pilant’s only employment relationship and only contractual relationship was with Caesars.”
Besides trying to deprive Pilant of his day in court. “The decision that is at the crux of this case is Caesars’ decision to send its own workforce back into the workplace that was unsafe and unhealthy.”
The attorneys declare, “Not only is the tribe not a proper party to this action (much less an indispensable party), but Mr. Pilant could not sue the Rincon Band even if the tribe were his employer.”
