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August 29, 2014

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AGE DISCRIMINATION:

$25,000 check cuts no ice with bartender

Boomer who sued casino says he was pressured into settling

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Steve Marcus

Bartender Robert Thomas, 53, poses in the Las Vegas Sun studio Monday. Thomas was among bartenders who received a settlement in a 2-year-old lawsuit against the Mirage and Light Group.

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Robert Thomas is one of thousands of bartenders on the Strip. Yet, at 53, he has the distinction of being one of the oldest working at a casino nightclub.

He is also one of only a few to win a settlement from a casino in a federal age discrimination case — a lawsuit that was quietly resolved a few months ago.

Still, Thomas isn’t feeling too victorious these days.

He makes about as much money working three nights a week at the Mirage’s Jet nightclub as he did when he worked five days a week in his previous job in a bar on the casino floor. But the late hours, blaring music and hustling for customers is taking a toll on a man with heart problems and back pain. “This is a tough job, but I’m a fighter,” Thomas said.

And then there’s the matter of the settlement.

Thomas had hoped to take his case to trial, believing his was an obvious case of age discrimination in a business where youth and good looks trump years of experience.

Legal experts had said the case could help clarify a murky and controversial area of discrimination law, specifically how far employers can go in favoring workers based on their appearance. But the question of whether the Mirage and its business partner, the Light Group, discriminated against older workers remains unresolved.

Thomas said his attorney, Lani Esteban-Trinidad, pressured him to settle after he was arrested on a DUI charge in Henderson — a trumped-up charge, he said, that had nothing to do with the lawsuit.

“She said my arrest was going to destroy the case. She told me, ‘If you don’t sign today they’re going to take the money off the table and you’ll get nothing.’ ”

Esteban-Trinidad declined to comment on the case other than to deny pressuring her clients to settle.

The four over-40 bartenders who sued the Mirage, including Thomas, received $25,000 each — a fraction of the $2.9 million total they initially sought, court documents show. The settlement also included no admission of guilt on the part of the Mirage and Light Group, which operate Jet and other venues at the resort. The bartenders’ attorneys — chastised by both the Mirage and a federal judge for seeking $672,446 in legal fees — received $200,000 for their efforts, documents show.

Thomas filed a complaint against Esteban-Trinidad in April with the State Bar of Nevada, which determined there wasn’t enough evidence to go forward.

In a letter to the State Bar, Esteban-Trinidad cited Thomas’ arrest in January as the reason for abruptly settling the case.

Henderson Police dropped felony DUI charges against Thomas, who was instead charged with possession of narcotics, a misdemeanor. Thomas admitted to having a handful of painkillers and the drug Ecstasy in his car. He signed the settlement agreement the day Esteban-Trinidad bailed him out of jail at a cost of $7,000, records show.

“She took her money and threw me under the bus,” Thomas said. “I wasn’t sure what I signed because I never got a copy of it.”

Steven Roberts, another plaintiff in the case, signed a similar settlement the day before, records show.

Esteban-Trinidad “called me and told me Robbie had been arrested ... and that we had to settle the case,” Roberts said. “I said, ‘Why is this affecting me like this?’ ” Roberts also said he has no copy of the settlement agreement and little record of the case aside from his $25,000 check.

Thomas accepted the bartending job at Jet in November 2007 while the lawsuit, filed in December 2006, was in progress. The job, he said, was a token offering to counter his claim that Mirage and the Light Group had passed over union workers in favor of younger first-time hires for plum jobs at Jet and the Stack restaurant.

In court documents, Mirage acknowledged it had created separate union contracts with the venues, allowing Light to bypass union seniority rules and hire nonunion people “on the basis of merit rather than on union seniority.”

Standard union contracts at casinos allow workers to transfer into jobs at new venues according to their seniority at a property, virtually ensuring that experienced union workers will get jobs.

Instead of first offering bartending and cocktail service jobs to union employees, the Light Group advertised the jobs to Mirage employees as well as the general public, hiring primarily younger, non-Mirage workers.

Employers can legally change their contracts or create new ones as long as union officials consent to the changes, even over the objections of union members. But companies are prohibited by law from discriminating on the basis of age, an allegation that can be tough to prove in court.

In court documents, the Mirage said the bartenders’ case lacked merit, in part because only two of the four bartenders actually applied for jobs at the new venues before filing the lawsuit. After submitting applications, each of the four bartenders was offered a job.

Thomas said the reason the bartenders didn’t apply for jobs at the outset was they were not aware the venues had begun hiring. Mirage didn’t post job transfer opportunities for union members and had already hired most of the staff at Jet by the time the bartenders became aware of the jobs, and complained to the union and management, Thomas said.

Moreover, he said, union members were told by supervisors that they would have to resign from the Mirage before they could submit applications to Light Group venues.

Mirage attorneys gave a different version of events in court filings, saying workers weren’t required to forfeit their jobs to apply for positions at the new venues.

The lawsuit put Bartenders and Beverage Union Local 165 in the position of defending itself against claims it conspired with management to create new contracts that passed over senior union members to hire younger employees.

Prior to the suit, more than 20 bartenders filed grievances against the Bartenders union, which was initially named in the lawsuit. Thomas said the union was reluctant to help members get jobs at the new venues but warmed to the idea after the Las Vegas Sun publicized the case in March 2007.

While the lawsuit was under way, the Bartenders union and its sister Culinary Union negotiated new language in contracts with Strip casinos in mid-2007 clarifying the rights of union workers to transfer to third-party venues.

Bartenders union Secretary-Treasurer Terry Greenwald said union workers have always been able to bid into new venues before other applicants but that the contract language “wasn’t clear.” Greenwald said interest from union members, rather than Thomas’ lawsuit, triggered the clarification.

Months after the bartenders signed their settlements, their attorneys were battling Mirage for higher attorney fees.

In court filings, Mirage attorneys accused Esteban-Trinidad and her Los Angeles co-counsel of racking up fees for unnecessary motions and depositions. U.S. District Court Judge Lloyd George agreed, calling the hourly rates of $325 and $450 requested by Thomas’ attorneys “unreasonable” compared with more typical hourly rates in Las Vegas of $250 and $275.

Mirage attorneys called the fees “outrageous” and a “world record” for a discrimination case. Granting them, they said, would lead to frivolous litigation that “produce little or nothing for clients — merely a windfall for counsel.”

It’s not uncommon for plaintiffs attorneys to receive disproportionately high fees and awards in discrimination cases relative to their clients, attorneys say.

Alan Feldman, a spokesman for Mirage parent company MGM Mirage, said the judgment wasn’t a win or loss for either side because the case was settled. “Any time you settle a case without having to get into prolonged litigation it’s a victory for everybody,” he said.

But Thomas said he feels used and tired after his nearly two-year legal battle.

“Our attorneys screwed us over to get big money from the Mirage,” he said. “But I believe in quantum physics and in karma — that what goes around comes around.”

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