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Former Batavia Downs employees file lawsuit alleging wage theft and sexual harassment; OTB documents point to inconsistencies

By Howard B. Owens
Batavia Downs 2022

Three former employees of Batavia Downs have filed a lawsuit against Western Regional Off-Track Betting Corp. and two supervisors, alleging sexual harassment and wage theft.

The suit was filed in Genesee County on Wednesday. It names as plaintiffs, Tara Sweet of Elba, Corrine Armison of Batavia, and Brooklynn Cline of Belmont.  

All three are claiming wage theft by supervisors keeping a share of pooled tips, and Sweet is making allegations of sexual harassment.

The defendants, besides Batavia Downs and WROTB, are Scott Kiedrowski, chief operating officer, and Daniel Wood, director of security.

WROTB has not yet had an opportunity to file with the court a response, but The Batavian obtained two letters previously written to a union representative and the attorney for the plaintiffs that provide assertions that seem to refute the allegations in the suit, along with a letter from the attorney representing the plaintiffs.

Sweet was terminated by Batavia Downs on Nov. 16. Armison and Cline both quit their jobs in the spring.

The lawsuit alleges that Sweet was fired because she filed a grievance over a policy that allowed supervisors to get a share of tips from customers. Supervisors getting a share of tips in a tip pool is both unlawful and a violation of the collective bargaining agreement between WROTB and the United Public Service Employees Union. 

She also alleges that Kiedrowski made unwanted sexual advances, sent texts that made her feel uncomfortable, made inappropriate requests and that Wood made inappropriate comments and inappropriately touched her.

According to a letter written to Antonella Rotilio, a labor relations representative for UPSEU in Albany, by Danielle N. Fleming, WROTB director of human resources, Batavia Downs became aware of the alleged sexual harassment through communications from the union.

The letter expresses frustration with the union for not providing more information to assist in the investigation and notes that the complaint to the union, rather than human resources, was contrary to the terms of the employee handbook and company policy. 

The complaints were reported by the union on Oct. 30th.

The letter states that on 10 prior dates, all of which are listed, Fleming requested that the union provide evidence and specific details, including screenshots of text messages, and the union never complied with these requests. 

"Your response to each of these requests has vacillated between promising to share all relevant information and then refusing to provide the information we need in order to conduct a thorough investigation of any and all allegations," it stated. 

The letter reminds Rotilio that her organization has a contractual obligation to cooperate in the investigation.

"The union is required to follow the collective bargaining agreement to mitigate any sexual harassment situations, just as the company is held to the same requirement," the letter states. "By withholding documentation that is necessary in order to investigate allegations of harassment in the workplace, the union is making it impossible for the company to investigate any potential wrongdoing and to provide appropriate measures to remediate the same."

On Dec. 18, an attorney for Batavia Downs sent a letter to Clare T. Sellers, with Hayes Dolce in Buffalo, the attorney representing Sweet, Armison, and Cline, in response to Dec. 8 letter demanding payment from Batavia Downs for $250,000 "to right these wrongs."  The letter from Sellers also demands that Sweet be reinstated and her disciplinary record be swept clean. If the demand isn't met by Dec. 22, the letter states, the demand for compensation increases to $500,000 and threatens a lawsuit if no settlement is reached.

Ginger D. Schroeder, with Schroder, Joseph & Associations, of Buffalo, informed Sellers that WROTB fully investigated claims of wage theft and retaliation against Sweet. The letter states the charges of sexual harassment could not be investigated because Sellers provided only generalized assertions and offered no evidence to support the allegation. 

Regarding the alleged theft of pooled tips, Schroeder states that the issue was resolved through the grievance process and that supervisors are no longer assisting employees with customer service.

"What your clients have overlooked in making these allegations is that they received the same amounts from the tip pool as they would have received if they had not been assisted by their supervisors in performing services for the patrons," the letter states. "This is because -- if the supervisors had not assisted them -- other employees in the bargaining unit would have assisted them, and the amounts received by your clients would have remained the same. Accordingly, when the supervisors were assigned to perform these tasks, they were not acting as supervisors but were doing the same work as your employees, and each such supervisor simply stepped in to perform the work that otherwise would have been performed by another employee." 

Because of these circumstances, the letter states that the employees did not suffer any economic loss as a result of the shared tips with supervisors. 

There is also an allegation that employees were not paid for work performed while on break.  The letter states that employees who choose to take a meal break but remain at the bar did not perform any work while at the bar during meal breaks.

As for alleged retaliation, the letter states Sweet and another employee (who is not a plaintiff in the suit but is named a person represented by Sellers in her Dec. 8 letter) were first disciplined for alleged policy violations well before Sweet filed a grievance. Sweet and the other employee were accused of over-serving a patron in 34 Rush on Aug. 5, which then resulted in a security incident involving that apparently intoxicated patron and two other patrons. Following an investigation, Sweet and the other bartender received a two-day suspension on Aug. 30.

The tip-pooling allegation was first brought to the attention of Batavia Downs two weeks later, according to the letter.

The lawsuit states that Sweet was suspended for "three days" on Aug. 30 "without just cause."

Sweet was previously warned, according to the letter, in October 2021, for allegedly over-serving a customer in September 2021. 

Another apparent incident is redacted from the letter and notes that Sweet was terminated on Nov. 16 "after providing both Ms. Sweet and her union representative an opportunity to respond to the evidence," and that she was dismissed from her job for cause.

The allegation in the suit is that Sweet was terminated without explanation and purely in retaliation for filing a grievance. 

While the letter from Schroeder states that up to that point, WROTB had received no evidence or specifics to support the claims of sexual harassment, nor even knew, prior to the Dec. 8 letter, the name(s) of accusers, the lawsuit filed on Wednesday specifies multiple incidents of alleged harassment.  

It accuses Wood of telling Sweet that she is beautiful, a hard worker and that they should run away together and get married, that "her fiance did not deserve her."  It accuses Wood of hugging her and rubbing her back without her consent. It also states that Wood invited her to his office for a back massage and that he texted her to offer her a 15-minute nap on his couch. 

The suit accuses Kiedrowski of taking Sweet and two other employees to Sabres and Bills games, to a private suite and then starting to refer to her as "Special T." That he sent her late-night texts that made her feel uncomfortable (the contents of the texts are not revealed in the suit).

In February 2022, the suit alleges Kiedrowski asked Sweet to bring him lunch in his office and that he would "give her a big tip." 

As a result, "Plaintiff Sweet was scared and creeped out by this request." 

The suit accuses Kiedrowski, along with additional complaints, of not doing anything about sexual harassment from patrons while acknowledging it occurred. 

The suit alleges that Sweet brought her complaint of alleged sexual harassment in August (without specifying a day), which is within the same time frame she is accused of over-serving a patron.  The suit does not explain how officials at WROTB would have known the complaints came from Sweet since she went to the union, which the suit acknowledges, and the union withheld the names of the employees making the allegations, according to the previously mentioned letter from human resources to the union.

The suit also claims that the other bartender was not disciplined, but Schroeder's letter states she was.

The suit states that on Nov. 16, just prior to her termination, Sweet, along with another employee, was "falsely accused" of stealing $8. This may be the incident redacted in the Schroeder letter. 

Among the relief sought in the suit, the plaintiffs are asking for payment of unpaid tips, damages, civil fines and penalties, and attorneys fees.

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