Yaba v. Stratosphere Gaming, LLC, No. 2:2009cv00450 - Document 35 (D. Nev. 2011)
Court Description: ORDER Denying 26 Motion for Summary Judgment. Signed by Judge Kent J. Dawson on 3/29/11. (Copies have been distributed pursuant to the NEF - MMM)
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Yaba v. Stratosphere Gaming, LLC Doc. 35 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 MINERVA D. YABA, 11 Plaintiff, 12 v. 13 Case No. 2:09-CV-00450-KJD-GWF STRATOSPHERE GAMING, LLC, 14 ORDER Defendant. 15 16 Presently before the Court is Defendant’s Motion for Summary Judgment (#26). Plaintiff 17 filed a response in opposition (#31) to which Defendant replied (#34). 18 I. Facts 19 Plaintiff, Minerva Yaba, was hired as a dealer by Defendant in June 2006. On February 16, 20 2007, Yaba submitted a written complaint to one of her managers, Ray Pingree, alleging sexual 21 harassment by Floorperson, Tom Rogers. Yaba alleged that Rogers swore, moved his arms in a 22 manner that would cause his hands to touch her buttocks, and that on February 14, 2007, in a 23 hallway, Rogers exposed himself to her by unzipping his pants “and inserting his hand in and out of 24 his zipper area [making] sexual movements with his groin.” 25 26 Pingree referred Plaintiff’s complaint to his superior and the matter was referred to Human Rescources. Fred Houghland, Corporate Vice-President of Human Resources, counseled Rogers Dockets.Justia.com 1 about swearing. However, after reviewing surveillance tapes, Houghland only determined that, at 2 worst, Rogers tucked in his shirt as he walked past Plaintiff. Houghland informed Plaintiff of his 3 determination that the incident had not happened as described on February 28, 2007. As a 4 precaution, Houghland instructed casino management to try to minimize contact between Rogers and 5 Yaba. 6 On March 18, 2007, Yaba again submitted a written complaint to Human Resources asserting 7 that Rogers had again sexually harassed her on February 23, February 28, and March 10, 2007. 8 However, no surveillance tapes were available, because they are recycled every seven days. On May 9 10, 2007, Yaba again complained that Rogers had touched her buttocks at approximately 1:20 a.m. 10 that day. Houghland requested security review surveillance tapes of that day from the gaming floor. 11 The tapes revealed that from 12:58 a.m. to 1:21, Yaba was on a break. From 1:21 to 2:00 a.m., Yaba 12 worked as a dealer on the floor, but no physicaal contact between her and any employee occurred 13 during that time. 14 On September 24, 2007, Yaba submitted another letter to Human Resources complaining that 15 another Floorman, Tony Zigo, was harassing her. Specifically, Yaba complained that Zigo “kept 16 making sexual innuendo with his eyes” and “kept positioning himself to walk behind her[.]” Yaba 17 alleges that Zigo would position the Floorperson’s podium or the pit’s trashcan in such a way that he 18 would be forced to walk close to her and brush his hand against her buttocks. She also alleges that 19 he would appear to hold the door open for her, but as she passed through he would narrow the door 20 so that their bodies would touch. Again, Houghland reviewed tapes, but there was nothing observed 21 from the video available that could be construed as sexual harassment. However, the tapes were only 22 reviewed for one of the many days that she complained about. 23 Yaba’s supervisor, Mike Mascolino, independently decided to keep Yaba and Zigo working 24 in different areas. On several occasions, Yaba was asked to end her shift early so that she would not 25 be put in the same area as Zigo. On October 23, 2007,Yaba again complained to the Director of 26 Human Resources. Yaba complained about being asked to leave early to avoid working with Zigo. 2 1 Specifically, Yaba mentioned that she believed that she was being treated differently than Zigo who 2 was not asked to end his shifts early. After receiving Yaba’s complaint, Houghland told Mascolino 3 to stop separating Yaba and Zigo. When Mascolino reminded Houghland that “[t]here’s going to be 4 a problem”, Houghland gave him “a direct order” to put Yaba in the same pit as Zigo. 5 On October 27, 2007, upon learning that she was scheduled to work in Zigo’s area, Yaba 6 wanted to work with a different supervisor. Yaba was ordered by her supervisor, Mike Mascolino, to 7 go to her assigned area and did not do so. Yaba did not believe that she refused to go to her assigned 8 area, but other employees assert that she refused to obey the order. Yaba was suspended, pending an 9 investigation, and was finally terminated November 13, 2007. 10 Plaintiff filed her Amended Complaint on June 4, 2009, asserting claims for gender 11 discrimination, hostile work environment and retaliation. Defendant has now moved for summary 12 judgment on all of Plaintiff’s claims. In response, Plaintiff has not opposed Defendant’s motion 13 based on conduct that occurred early in 2007. However, Plaintiff still asserts claims based on the 14 conduct occurring in September, October and November 2007. Further, it appears that Plaintiff is 15 only asserting claims for a hostile work environment and retaliation. All other claims are dismissed. 16 II. Standard for Summary Judgment 17 Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, 18 and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any 19 material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. 20 P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the 21 initial burden of showing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 22 323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a 23 genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 24 587 (1986); Fed. R. Civ. P. 56(e). 25 All justifiable inferences must be viewed in the light must favorable to the nonmoving party. 26 See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the mere 3 1 allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit or 2 other evidentiary materials as provided by Rule 56(e), showing there is a genuine issue for trial. See 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual 4 issues of controversy in favor of the non-moving party where the facts specifically averred by that 5 party contradict facts specifically averred by the movant. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 6 871, 888 (1990); see also Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 (9th 7 Cir. 1995) (stating that conclusory or speculative testimony is insufficient to raise a genuine issue of 8 fact to defeat summary judgment). Evidence must be concrete and cannot rely on “mere speculation, 9 conjecture, or fantasy. O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir. 1986). 10 “[U]ncorroborated and self-serving testimony,” without more, will not create a “genuine issue” of 11 material fact precluding summary judgment. Villiarimo v. Aloha Island Air Inc., 281 F.3d 1054, 1061 12 (9th Cir. 2002). 13 Summary judgment shall be entered “against a party who fails to make a showing sufficient to 14 establish the existence of an element essential to that party’s case, and on which that party will bear 15 the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall not be granted if a 16 reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248. 17 III. Analysis 18 A. Hostile Work Environment 19 Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of sex, which 20 includes sexual harassment in the form of a hostile work environment. 42 U.S.C. § 2000e-2(a)(1); 21 Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57 (1986). To survive summary judgment, the 22 respondent must submit cognizable evidence sufficient to establish a jury question on whether the 23 victim (1) was subjected to verbal or physical conduct of a sexual nature, (2) that was unwelcome; 24 and (3) that was sufficiently severe or pervasive to alter the conditions of the victim's employment 25 and create an abusive working environment. See E.E.O.C. v. Prospect Airport Servs., Inc., 621 F.3d 26 991, 997 (9th Cir. 2010)(citing Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)). The 4 1 respondent must present sufficient evidence for a jury question on whether the work environment was 2 “both objectively and subjectively offensive, one that a reasonable person would find hostile and one 3 that the victim in fact did perceive to be so.” Id. (quoting Nichols v. Azteca Restaurant Enterprises, 4 Inc., 256 F.3d 864, 871-72 (9th Cir. 2001). 5 In this action, it is unquestioned that the conduct alleged to have been done by Zigo was 6 unwelcome. Though Defendant disputes whether the conduct was severe or pervasive enough to 7 alter the terms and conditions of Plaintiff’s employment, Plaintiff has raised genuine issues of fact 8 that must be resolved by a fact finder. Whether a working environment is objectively “abusive” “can 9 be determined only by looking at all the circumstances,” which “may include the frequency of the 10 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere 11 offensive utterance; and whether it unreasonably interferes with an employee's work performance.... 12 [N]o single factor is required.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The “severe 13 or pervasive” element has both objective and subjective components. Prospect Airport, 621 F.3d at 14 999. The Court considers not only the feelings of the actual victim, but also “assume the perspective 15 of the reasonable victim.” Id. (quoting Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 16 2000)). There is a subjective requirement as well as an objective requirement, because “if the victim 17 does not subjectively perceive the environment to be abusive, the conduct has not actually altered the 18 conditions of the victim's employment.” Harris, 510 U.S. at 21-22. Here, it is undisputed that 19 Plaintiff subjectively perceived the environment to be abusive. 20 To be actionable, the conduct must go beyond the “merely offensive” so that it changes the 21 terms and conditions of the victim's job. See Prospect Airport, 621 F.3d at 999. Because a “sexual 22 harassment case” is against the employer, not the harasser, and “only the employer can change the 23 terms and conditions of employment, an isolated incident of harassment by a coworker will rarely (if 24 ever) give rise to a reasonable fear that sexual harassment has become a permanent feature of the 25 employment relationship.” Brooks, 229 F.3d at 924. The Court weighs both severity and 26 pervasiveness to evaluate whether a reasonable victim would think that sexual harassment had 5 1 become a permanent feature of the employment relationship. Prospect Airport, 621 F.3d at 999. And 2 because only an employer can change the terms and conditions of employment, that will rarely if ever 3 be the case, if the employer takes appropriate corrective action upon finding out about the 4 harassment. Id. In this case, the Court finds that if a reasonable person believes Plaintiff’s testimony, 5 they could readily conclude that the alleged conduct was severe and pervasive enough to alter the 6 terms and conditions of Plaintiff’s employment. 7 B. Retaliation 8 To establish a prima facie case for retaliation, Plaintiff must show that (1) she engaged in a 9 protected activity under Title VII; (2) her employer subjected him to an adverse employment action; 10 and (3) a causal link exists between the protected activity and the adverse action. See Porter, 419 at 11 894. When a plaintiff has asserted a prima facie retaliation claim, the burden shifts to the defendant 12 to articulate a legitimate non-discriminatory reason for its decision. See id. If the defendant 13 articulates such a reason, the plaintiff bears the ultimate burden of demonstrating that the reason was 14 merely a pretext for a discriminatory motive. See id. It is clear, looking at the facts in a light most 15 favorable to non-movant, that Plaintiff has raised genuine issues of fact on part of her claim. She 16 complained of her harassment and was allegedly terminated from conduct resulting directly from her 17 complaint. Therefore, the Court must deny Defendant’s motion. 18 IV. Conclusion 19 Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment 20 (#26) is DENIED. 21 DATED this 29th day of March 2011. 22 23 24 25 _____________________________ Kent J. Dawson United States District Judge 26 6
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