Caesars Enterprise Services LLC and Caesars Entertainment Inc. argued Tuesday that Darrell Pilant, the former senior vice president and general manager of Harrah's Resort Southern California on Rincon Band land, entered into a valid and enforceable arbitration agreement when he accepted his position in September 2016 at a base salary of $315,000 per year. Pilant's lawsuit should now be stayed pending arbitration, Caesars said.
"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.
When Caesars' counsel communicated with Pilant's lawyer on Dec. 28 about his agreement to arbitrate his claims and said it intended to file a motion to compel if he didn't agree voluntarily to binding arbitration, the lawyer refused to submit his client's claims to arbitration, according to Caesars.
Pilant's wrongful termination claims allege that Caesars constructively terminated him after he opposed the casino resort's reopening plan due to his concerns about the health and safety of employees.
Caesars declined to comment Wednesday. Counsel for Pilant didn't respond to a request for comment.
Meanwhile, the judge presiding over the suit, U.S. District Judge Cathy Ann Bencivengo, on March 30 denied the Rincon Band of Luiseño Indians' request to pause the former casino manager's suit while the tribe appeals the judge's Feb. 8 order refusing to let it intervene in the case.
In late December, the Rincon Band had tried intervening to bolster Caesars' dismissal arguments. But Judge Bencivengo in February denied the tribe and refused to let it join the suit even though it owns the casino, saying the tribe doesn't have a protectable interest in the suit against the Caesars unit that runs the facility.
The judge's Feb. 8 order said that the tribe was making variations of arguments the court had already rejected in denying Caesars Enterprise Services' motion to dismiss Pilant's suit late last year, and that "nothing decided in this case will change, reduce or eliminate any rights the Rincon Band currently has concerning the governance of activities on its land."
The Rincon Band had argued in a March 22 brief supporting its pause request that it meets all requirements for a stay: the appeal will likely succeed, the tribe would be irreparably harmed without a stay, more harm would be done by not pausing the suit and the issues at hand relate to the public's interest.
On March 30, Judge Bencivengo's order denying the Rincon Band's motion to stay found that the tribe did not make a strong showing that it is likely to succeed on the merits or that it will be irreparably injured without a stay.
A lawyer for the tribe, Scott David Crowell of Crowell Law Office – Tribal Advocacy Group LLP, told Law360 on Wednesday that the tribe filed a March 8 notice of appeal in the Ninth Circuit against the intervention denial and that it asked the appellate court for a stay on Tuesday.
Crowell told Law360 in a phone interview on March 23 that the "most concerning" aspect of the suit is a possible finding that state laws can govern business activities on Native American land.
"The Rincon tribe has been among the most aggressive for decades in terms of resisting the application of state jurisdiction, particularly in the context of the Indian Gaming Regulatory Act," Crowell said during the interview.
"Ultimately, this court is going to have to decide whether California law applies to employment activity on Indian reservations, and that clearly impacts the tribe's interest," he added, saying he thinks there is a strong argument for pausing the suit.
The March 22 brief also blasted Pilant for "unsubstantiated attacks" against the tribe in his March 17 filing that opposed pausing the suit. Pilant's main argument claimed that the Rincon Band was simply trying to delay his suit.
Pilant originally filed his four-count complaint in August with a California state court in San Diego County, but it was transferred to the California federal court in October due to jurisdictional reasons.
He recounted in the complaint how California Gov. Gavin Newsom had urged San Diego-area tribal leaders in late May to not reopen their casinos and that days after the letter, Pilant also urged his supervisor and a top Caesars legal officer to not reopen the resort.
But Caesars opened the resort in late May — within a week of the governor's letter — spurring Pilant to resign before its reopening and sue the Caesars entities for wrongful termination after they violated public policy.
Pilant is represented by Anthony F. Pantoni of Law Offices of Anthony Pantoni.
Caesars is represented by Maria C. Roberts and Ryan Blackstone-Gardner of Greene & Roberts LLP.
The Rincon Band of Luiseño Indians is represented in-house by its attorney general, Denise Kathlene Turner Walsh and by Scott David Crowell of Crowell Law Office – Tribal Advocacy Group LLP.
The case is Pilant v. Caesars Enterprise Services LLC et al., case number 3:20-cv-02043, in the U.S. District Court for the Southern District of California.
--Additional reporting by Diamond Naga Siu and Andrew Westney. Editing by Michael Watanabe.
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