Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—D. Md.: Casino cocktail server, fired for not wearing high heels, advances claims, (Apr 10, 2025)

By Todd Harrison, J.D.

Although her initial request for an accommodation was granted, whether sneakers were permitted as part of the accommodation was, among other things, in dispute.

Denying summary judgment with regard to the ADA and state-law disability discrimination claims brought by a former cocktail server against MGM Hotel and Casino, a federal district court in Maryland determined that the doctrine of judicial estoppel did not apply despite the employee initially listing the lawsuit as having a value of $0.00 in an unrelated bankruptcy proceeding. Further, factual disputes existed as to whether the employer refused to make accommodations concerning its footwear policy, violations of which ultimately led to the employee’s termination (Lopez-Duprey v. MGM National Harbor, LLC, No. DKC 23-2812 (D. Md. Apr. 9, 2025)).

In November 2016, the employee began working as a cocktail server at the MGM Hotel and Casino in Oxon Hill, Maryland. Like other cocktail servers, the employee was required to wear black high heels as part of her work uniform.

Accommodation requests. According to the employee, she requested an accommodation to wear flat shoes at work in January 2017. The employer maintained that it had no record of such a request.

On July 1, 2019, the employer sent a “Request for Information from Health Care Provider” to the employee’s doctor. The doctor filled out the form the following day, stating that the employee had “Equinus Deformity” and “Achillis Tendinits,” should “avoid heels” and “wear good supportive shoes” to help her perform her job duties. On August 30, the employer granted the employee an accommodation to “wear flats/good support shoes instead of heels.”

Shoe standards. Per the accommodation, the employee alleged that she wore “Skechers-style black shoes” to work from July 2019 to December 2021. The employer did not dispute that she wore this style of shoe but contended that her conduct was “contrary to the accommodation granted and in violation of the dress policy.”

Sometime in December 2021 or January 2022, the employer issued a memo concerning “shoe standards” for beverage employees. The memo stated that “[s]hoes that are not approved are: Ballerinas, Birkenstocks, bedroom slippers, wedge heels, flip flops, sling backs, crocs, any slipper style, sneakers, tennis shoes or shoes with excessive strapping or ornamentation.” The memo provided images of three non-heeled shoes for workers with ADA accommodations and stated that employees needed to wear the correct shoes no later than January 3, 2022.

Discipline. On March 16, 2022, the employee received a second written disciplinary notice for failing to wear approved shoes during her shift. On April 22, she received medical treatment and was provided with a note from her doctor stating, “[p]atient has achilles tendonitis and equinus secondary to poor shoegear that has caused contracture of the patient’s achilles tendon. Please allow patient to wear previously approved sketcher like soft top shoes without a heel and/or similar style to them permanently due to patient’s foot condition.”

At the end of April, the employee commented on the March 16 disciplinary notice, stating she was forced to wear shoes contrary to doctor’s orders, that the employer had denied her an accommodation, and that her ADA documents had been deleted from the employer’s systems.

On May 12, the employee was terminated after receiving progressive discipline for violating the employer’s appearance standards. Subsequently, the employee filed this suit alleging ADA and state-law claims for failure to accommodate, disability discrimination, and retaliation. The employer moved for summary judgment against all claims and the employee moved for partial summary judgment on her failure to accommodate claims.

Bankruptcy. One week after filing this lawsuit, the employee filed for Chapter 11 bankruptcy. She declared this lawsuit as an exempt asset valued at $0.00. She later amended the value to “unknown.”

Judicial estoppel. In its motion for summary judgment, the employer argued that because the employee valued this lawsuit at zero dollars, the doctrine of judicial estoppel precluded her from proceeding with her claims. The court was not moved.

With regard to the employer’s argument, the court explained that the employer has not shown that judicial estopped applies in this situation because there are disputes as to several factors, including whether a court accepted the employee’s initial assertion of this suit’s value and whether the employee intentionally valued her suit at zero dollars to mislead the court.

Further, state law provides that money payable in the event of injury is exempt from execution on a judgment. The meaning of “injury” has been construed broadly, and likely includes the employee’s discrimination claims, said the court. If the employee’s claims in this action are exempt, continued the court, their value would be immaterial because the value of an exempt asset has no practical effect on a bankruptcy plan. As such, the employer failed to show the bankruptcy court would have “accepted” the employee’s valuation, and its motion for summary judgment was denied.

Accommodation prohibited? Turning to the employee’s motion for partial summary judgment on her failure to accommodate claims, she contended that the employer had prohibited the very accommodation she needed—sneaker type footwear. The employer argued that it had granted the employee the only accommodation request she had ever made, and even if she had made another request for an accommodation, it did not have to grant the subsequent requested accommodation.

It was undisputed that the employer granted the employee’s accommodation request on August 30, 2019. Whether sneakers were permitted as part of this accommodation was in dispute, as was evidence of the employee’s doctor later “insist[ing] that the Defendant permit her to wear[] ‘sketcher like soft top shoes without a heel.’” The employer asserted that it did not receive the April 22 doctor’s note until July, two months after the employee had been fired. Based on these factual disputes, the court denied the employee’s motion for partial summary judgment on her failure to accommodate claims.

The case is No. DKC 23-2812.

Judge: Chasanow, D,

Attorneys: Morris Eli Fischer (Law Offices of Morris E. Fischer) for Rebecca Lopez-Duprey. Jeremy Schneider (Jackson Lewis) for MGM National Harbor, LLC.

Companies: MGM National Harbor, LLC

Cases: Discrimination DisabilityDiscrimination Discharge Retaliation Procedure RemediesDamages MarylandNews