Harrah’s answers wrongful termination lawsuit, seeks move to federal court


By DAVID ROSS

In September former Harrah’s Resort Southern California General Manager Darrell Pilant sued Harrah’s (through its parent company Caesars Entertainment) in a “whistleblower” lawsuit that claims the casino giant wanted him to reopen the casino on May 22 against his better judgment and forced him to resign when he refused.

In October Caesars Enterprise Services LLC, a subsidiary of Caesars Entertainment Inc., the largest gaming corporation in the U.S., filed to remove the lawsuit from the Superior Court of the State of California, County of San Diego to the federal  United States District Court for the Southern District of California. In other words, to have it tried in a federal, rather than state court.  If that motion is granted, the suit could end then and there since Pilant would probably not be able to sue in federal court, since he was not an employee of the tribe.

Caesars alleges that since the Rincon Band of Luiseño Indians own the casino resort the case must be removed to a federal court since tribes, being sovereign, can’t be sued in a state court. It argues that the tribe is an integral part (“indispensable party”) of the lawsuit since it was the tribe’s decision to reopen rather than Caesars’.

Pilant counterargues, in an answer to the Caesars filing, that he would be unable to pursue his case if it is moved, because he would be unable to sue a sovereign tribe.

Pilant, a Pauma Valley resident, alleges wrongful termination in violation of public policy, violation of Cal. Labor Code§ 6310, violation of Cal. Labor Code§ 1102.1 and breach of written employment agreement.

Pilant’s lawsuit claims that he was reassured by the Rincon tribe that California Governor Gavin Newsom was “on board” with reopening at that time. Once he learned otherwise, Pilant refused to go forward and was pressured to resign, which he characterizes as wrongful termination. 

In his filing, Pilant quotes from a May 15, 2020 letter from Newsom replying to the tribes’ announced plans to reopen:  “[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 management, including N. Lynne Hughes (VP Legal Affairs and Chief Legal Officer), Robert Livingston (Regional President and Mr. Pilant’s immediate supervisor} and Tom Jenkin (Global President}. Editor’s note: Livingston replaced Pilant as general manager of the casino resort.

At that time 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.”

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.”

On May 19, according to Pilant’s lawsuit, “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 the federal court has jurisdiction under 28 U.S.C. §1331, which provides 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 points out that the casino is located on the Rincon Reservation, and that it “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. Also that the tribe caused the casino to be built under the federal Indian Gaming Regulatory Act (IGRA,) which included a gaming compact with the State. 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.”

It argues that it is impossible to sue Caesars over reopening the casino without including the tribe, which decided to close the casino in March, and “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.”

It argues that Pilant is seeking restitution because he disagreed with the tribe’s decision to reopen the casino. Another reason for seeking a federal solution, says Caesars, is that Pilant is a citizen of California while the defendant is based in Nevada. 

In his argument against Caesars’ motion, Pilant’s attorneys argue that the case should not be dismissed 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.” They add, “Each and every cause of action plead in this case is a state law employment claim. 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.”

It adds that, besides trying to deprive Pilant of “his day in court,” “Caesars’ argument that the Rincon Band (not Caesars) made the decision to reopen the casino is a red herring. 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.”

The next step in the case will be for the federal court to rule whether it should take custody of the case.

4 responses to “Harrah’s answers wrongful termination lawsuit, seeks move to federal court”

  1. ER says:

    It appears, if this case is moved to the federal court. This would jepartise, Mr. Pilant further position to argue his case and thus deprive him of his due right in good faith and fairness under state law. The fact that Rincon is a sovereign nation and was not a direct party to Mr. Pilant hiring / employment but rather Caesars Corporation. The court should, refer the case back to the state to be heard as his employment was within California state guidelines. California should have full authority to hear the case and make a decision in the best interest of all concern and consistent with state law and prior cases heard with similar facts. At the least, to avoid unfairness and negative exposure due to covid 19. Both Harrahs, Rincon and Caesars should do the right thing in the best interest of all involve. Parties, should just make a good faith and fair offer to settle this case at this level to avoid any further negativity or expenses and satisfy all parties involve.

    • Chris says:

      Sad but true when you are on a reservation land there is very little if any protection of any kind of civil rites violations and the reason for that is basically that soveirn immunity translates to (no accountability) for ANYTHING that transpires on reservation land
      Sovern immunity ( the native people are incapable of violating any state laws while on reservation land?

  2. john says:

    “Pursuant to section 15 of the employment agreement, entitled ‘resolution of disputes,’ Pilant agreed to resolve all disputes arising out of his employment and/or termination of employment under the agreement through binding arbitration held before the American Arbitration Association,” Caesars said.

  3. James says:

    Harrah’s Casino 🎰 is not a spiritual member nor a Tribal member through historical traditions in any manner; that is what counts, nothing else! They can not reserve the rights of an original People of any Tribe in this Nation!!! Therefore Harrah’s is not under these protection for violations against employees and their civil and Constitutional Rights!

    (See or Goggle: Xia et al v. Harrah’s Arizona Corporations case ( 2:23-cv-02086 )

    James.

Leave a Reply

Your email address will not be published. Required fields are marked *