Casino wins appeal against injured worker awarded $76K

An injured Chinese national awarded more than $76,000 in disability discrimination damages lost those winnings Wednesday as the Indiana Court of Appeals reversed in favor of the southern Indiana casino that had employed her.

Yufen (He) Dusan worked as a guest room attendant for the Belterra Casino in Florence until she was injured in April 2013, after which she was restricted from lifting anything more than 10 pounds and limited to working only in a sit-down job, among other restrictions. Dusan was later told she was responsible for finding and applying for a new position at Belterra within 30 days. She contends she was told she could apply for such positions as a barista, bartender, concession worker or other potential jobs with or without accommodation.

The parties disagree about whether Dusan pursued further employment opportunities with Belterra, but she was deemed terminated in May 2013. She filed a claim in October of that year with the Indiana Civil Rights Commission alleging discrimination based on national origin and disability.

The commission last year rejected the national origin discrimination claim but ruled that Dusan had suffered disability discrimination. She was awarded $76,583.41 in back pay, but the commission rejected her request for front pay.

Belterra appealed, and Dusan cross-appealed seeking additional damages. The Indiana Court of Appeals on Wednesday ruled for the casino.

“In this case, the Commission found as follows: (1) that Belterra caused the interactive process to break down; and (2) that Belterra could have accommodated Dusan’s disability by reassigning her to a barista position or by extending the thirty-day job-search window by a ‘reasonable period of time[.]’ … Belterra challenges both findings, but we need not address the first because we agree with Belterra that Dusan failed to carry her burden of demonstrating the existence of a reasonable accommodation for her disability,” Judge Terry Crone wrote for the panel.

“Belterra further contends that the Commission erred in finding that Dusan could perform the essential functions of the barista position without an accommodation. We agree. The Commission found that Dusan had permanent restrictions of limited bending and a lifting limit of ten pounds, and it further found that the barista position involved stocking shelves by lifting thirty-pound containers of chips and twenty- to thirty-pound containers of coffee. Clearly, Dusan could not perform this essential function without an accommodation,” Crone wrote, adding in a footnote that Dusan spoke limited English. “The Commission’s finding that Dusan’s limited English-speaking skills were sufficient for that position in April 2013 is highly dubious at best.”

“In sum, we conclude that the Commission erred in concluding that Dusan carried her burden to prove that Belterra discriminated against her by failing to provide her with a reasonable accommodation for her disability. Therefore, we reverse the Commission’s ruling in favor of Dusan, and we need not address Dusan’s cross-appeal regarding damages,” the panel concluded.

The case is Belterra Casino v. Yufen (He) Dusan, 19A-EX-2650.