Case 2:06-cv-01225-BES-PAL Document 1-1 Filed 09/29/2006 Page 1 of 5

1 Anna Y. Park U.S. EQUAL EMPLOYMENT
2 OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor
3 Los Angeles, CA 90012 Telephone: (213) 894-1083
4 Facsimile: (213) 894-1301 Email: lado.legal@eeoc.gov
5 Attorneys for Plaintiff
6 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
7

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

U.S. EQUAL EMPLOYMENT

)

11 OPPORTUNITY COMMISSION,

)

)

12

Plaintiff,

)

v.

)

13

)

GNLV, CORP. d/b/a GOLDEN NUGGET )

14 HOTEL AND CASINO, and DOES 1-10, )

Inclusive.

)

15

)

Defendants.

)

16 ---------------------------------)

17

CASE NO.
COMPLAINT - CIVIL RIGHTS EMPLOYMENT DISCRIMINATION
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.
DEMAND FOR TRIAL BY JURY

18

NATURE OF THE ACTION

19

This is an employment discrimination action brought by the United States Equal

20 Employment Opportunity Commission (the "Commission") under Title VII of the Civil Rights

21 Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices

22 on the basis of race, sex, and retaliation, and to provide appropriate reliefto Robert Royal and

23 other similarly situated individuals who were adversely affected by such practices. The

24 Commission alleges that Defendants GNLV, Corp., d/b/a Golden Nugget Hotel and Casino, and

25 Does 1-10 (collectively "Defendants" or "Defendant Employers"), subjected certain claimants

26 and others to a hostile work environment based on their race (Black) and sex (female), including

27 intimidation and threats ofphysical force, as well as racial epithets by co-workers, supervisors

28 and third parties. The Commission further alleges that Defendants retaliated against individuals

Case 2:06-cv-01225-BES-PAL Document 1-1 Filed 09/29/2006 Page 2 of 5

1 for reporting such unlawful practices, subjecting them to verbal warnings, written warnings, and

2 even suspension from work.

3

JURISDICTION AND VENUE

4

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,

5 1343 and 1345. This action is authorized and instituted pursuant to Section 706(£)(1) and (3) and

6 707 ofTitle VII of the Civil Rights Act of1964, as amended, 42 U.S.C. §§ 2000e-5(f)(l) and (3)

7 and -6 ("Title Vll") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

8

2.

The employment practices alleged to be unlawful were committed within the

9 jurisdiction of the United States District Court for the District ofNevada.

10

PAJRTIES

11

3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is

12 the agency of the United States of America charged with the administration, interpretation and

13 enforcement of Title Vll, and is expressly authorized to bring this action by Section 706(£)(1) and

14 (3) and 707 of Title Vll, 42 U.S.C. § 2000e-5(f)(l) and (3) and -6.

15

4.

At all relevant times, Defendant Employer, GNLV, Corp., d/b/a Golden Nugget

16 Hotel and Casino, aNevada corporation, has continuously been doing business in the State of

17 Nevada and the City of Las Vegas, and has continuously had at least 15 employees. At all

18 relevant times, Defendant Employer, GNLV, Corp., d/b/a Golden Nugget Hotel and Casino, has

19 continuously been an employer engaged in an industry affecting commerce within the meaning of

20 Sections 701(b), (g) and (h) ofTitle Vll, 42 U.S.C. §§ 2000e(b), (g) and (h).

21

5. Plaintiff is ignorant of the true names and capacities of Defendants sued as DOES

22 1 through 10, inclusive, herein and therefore Plaintiff sues said Defendants by such fictitious

23 names. Plaintiff reserves the right to amend the complaint to name the DOE defendants

24 individually or corporately as they become known. Plaintiff alleges that each of the Defendants

25 named as DOES was in some manner responsible for the acts and omissions alleged herein and

26 Plaintiff will amend the complaint to allege such responsibility when same shall have been

27 ascertained by Plaintiff.

28 Ill

Case 2:06-cv-01225-BES-PAL Document 1-1 Filed 09/29/2006 Page 3 of 5

1

6.

All ofthe acts and failures to act alleged herein were duly performed by and

2 attributable to all Defendants, each acting as a successor, agent, joint employer, integrated

3 enterprise, employee and/or under the direction and control of the other Defendants, except as

4 otherwise specifically alleged. Said acts and failures to act were within the scope of such agency

5 and/or employment, and each Defendant participated in, approved and/or ratified the unlawful

6 acts and omissions by other Defendants complained of herein. Whenever and wherever reference

7 is made in this Complaint to any act by a Defendant or Defendants, such allegations and

8 reference shall also be deemed to mean the acts and failures to act of each Defendant acting

9 individually, jointly, and/or severally.

10

7.

It is further alleged on information and belief that the unnamed Defendants in the

11 complaint are alter egos, joint employers, and/or integrated enterprises of Defendant GNLV,

12 Corp., d/b/a Golden Nugget Hotel and Casino.

13

STATEMENT OF CLAIMS

14

8.

All conditions precedent to the institution of this lawsuit have been fulfilled.

15 More than thirty days prior to the institution of this lawsuit, Robert Royal filed a charge with the

16 Commission alleging violations of Title VII by Defendant Employers.

17

9.

Since at least September 1, 2002, Defendant Employers have engaged in unlawful

18 employment practices at their Las Vegas, Nevada, facility in violation of Sections 703(a), 704

19 and 707 ofTitle VII, 42 U.S.C. § 2000e-2(a), -3(a) and -6. These violations include subjecting

20 employees to a hostile work environment based on their race (Black) and sex (female), including

21 intimidation, threats of physical force, and racial epithets. Female employees were subjected to a

22 hostile work environment based on their sex, including sexual advances and abusive comments.

23 Defendants also retaliated against individuals for reporting such unlawful practices, subjecting

24 the employees to verbal warnings, written warnings, and even suspension from work.

25

10. The effect of the practices complained of above has been to deprive Robert Royal

26 and other similarly situated individuals of equal employment opportunities and otherwise

27 adversely affect their status as employees because of their race (Black) and for engaging in

28 protected activites. The effect of the practices also deprived female employees of equal

Case 2:06-cv-01225-BES-PAL Document 1-1 Filed 09/29/2006 Page 4 of 5

1 employment opportunities and otherwise adversely affect their status as employees because of

2 their sex (female).

3

11: The unlawful employment practices complained of above were intentional.

4

12. The unlawful employment practices complained of above were done with malice

5 or with reckless indifference to the federally protected rights of Robert Royal and other similarly

6 situated individuals.

7

PRAYERFORRELIEF

8

Wherefore, the Commission respectfully requests that this Court:

9

A. Grant a permanent injunction enjoining Defendant Employers, their officers,

10 successors, assigns, and all persons in active concert or participation with them, from 1) engaging

11 in disparate treatment and any other employment practice which discriminates on the basis of

12 race, and/or sex, and 2) discriminating against any individual because he or she has opposed any

13 unlawful employment practice or because he or she has made a charge, testified, assisted, or

14 participated in any manner in an investigation, proceeding, or hearing under 42 U.S.C. § 2000e-3.

15

B. Order Defendant Employers to institute and carry out policies, practices, and

16 programs which provide equal employment opportunities for Blacks and females and to prevent

17 retaliation for engaging in a protected activity, and which eradicate the effects of their past and

18 present unlawful employment practices.

19

C. Order Defendant Employers to make whole Robert Royal and other similarly

20 situated individuals by providing appropriate backpay with prejudgment interest, in amounts to

21 be determined at trial, and other affirmative relief necessary to eradicate the effects of their

22 unlawful employment practices, including but not limited to reinstatement and frontpay.

23

D. Order Defendant Employers to make whole Robert Royal and other similarly

24 situated individuals by providing compensation for past and future pecuniary losses resulting

25 from the unlawful employment practices described above, including relocation expenses, job

26 search expenses, and medical expenses not covered by the Employer's employee benefit plan, in

27 amounts to be determined at trial.

28 I I I

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1

E. Order Defendant Employers to make whole Robert Royal and other similarly

2 situated individuals by providing compensation for past and future nonpecuniary losses resulting

3 from the unlawful practices complained of above, including emotional pain, suffering,

4 inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.

5

F. Order Defendant Employers to pay Robert Royal and other similarly situated

6 individuals punitive damages for its malicious and reckless conduct described above, in amounts

7 to be determined at trial.

8

G. Grant such further relief as the Court deems necessary and proper in the public

9 interest.

10

H. Award the Commission its costs of this action.

11

JURY DEMAND

12

The Commission requests a jury trial on all questions of fact raised by its Complaint

13 Dated: September 29, 2006

Respectfully Submitted,

14

RONALD S. COOPER

General Counsel

15

JAMES L. LEE

16

Deputy General Counsel

17

GWENDOLYN YOUNG REAMS

Associate General Counsel

18

U.S. EQUAL EMPLOYMENT

19

OPPORTUNITY COMMISSION

1801 "L" Street, N.W.

20

Washington, D.C. 20507

21

en?:~~--?

22

Regional Attorney 23

U.S. EQUAL EMPLOYMENT

24

OPPORTUNITY COMMISSION

25

26

27

28

 
 Case 2:06-cv-01225-BES-PAL Document 31 Filed 03/07/2008 Page 1 of 5

1

2

3

4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

7 U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

8

)

)

9

Plaintiffs, )

)

10 vs.

)

)

11 GNLV CORP., etc., et al.,

)

)

12

Defendants. )

__________________________________________)

13

Case No. 2:06-cv-01225-BES-PAL
ORDER
(M/Compel - #16) (M/Protective Order - #17)
(M/Compel - #18)

14

Before the court are a series of motions concerning the parties’ discovery disputes: Plaintiff

15 EEOC’s Motion to Compel Discovery (#16), Defendant’s Motion for Protective Order Concerning the

16 Scope of Discovery Requested by Plaintiff and Confidentiality of Documents (#17), and Defendant’s

17 Motion to Compel Answers to Defendants’ First Set of Interrogatories and First Request for Production

18 of Documents (#18). The court has considered the motions, Oppositions (## 25, 23, 24), Notice of

19 Errata (#26), Replies (## 27, 28, 29), and the arguments of counsel at a hearing conducted February 12,

20 2008. During the hearing, the court indicated that both parties would be compelled to further respond

21 to discovery requests and that the court would enter a written order given the volume of the moving and

22 responsive papers and number of disputes at issue.

23

BACKGROUND

24

This is an action by the U.S. Equal Employment Opportunity Commission (“EEOC”) against

25 defendant GNLV Corp., d/b/a Golden Nugget Hotel and Casino, which alleges the defendant subjected

26 a class of employees to a hostile work environment based on their race and sex. The EEOC brought

27 this action on behalf of a charging party, and other similarly situated employees. The EEOC

28 / / /

Case 2:06-cv-01225-BES-PAL Document 31 Filed 03/07/2008 Page 2 of 5

1 alleges the unlawful conduct occurred “since at least September 1, 2002.” The pending motions all

2 involve disputes over the scope of permissible discovery.

3

Having reviewed and considered the matters,

4

IT IS ORDERED:

5

1. Plaintiff EEOC’s Motion to Compel Discovery (#16) is GRANTED in part and

6

DENIED in part. The motion is GRANTED to the extent that:

7

a. Defendants shall supplement answer to Interrogatory No. 8 to provide all of the

8

information contained in subparagraphs “a,” “c,” and “e” through “i” for dealers

9

employed at the Golden Nugget for the period of January 1, 2002 through the

10

present.

11

b. Defendants shall supplement response to Request for Production No. 21 for the

12

period of January 1, 2002 to the present.

13

c. Defendants shall supplement response to Request for Production No. 41 by

14

providing information from the identified employees’ personnel files pertaining

15

to their training concerning the defendant’s EEOC and other employment

16

policies, disciplinary record and history, employment qualifications, and

17

employment history for the period of January 1, 2002 to the present.

18

d. Defendants shall supplement their response to Request for Production No. 44 to

19

produce documents concerning customer complaints about Golden Nugget

20

dealers involving alleged rude or discourteous treatment, and/or the type of

21

treatment about which the EEOC complains in this case, i.e., race and gender

22

discrimination, hostile work environment, intimidation and threats of physical

23

force and use of racial epitaphs for the time period from June 24, 2002 to the

24

present.

25

e. Defendants shall supplement their response to Request for Production No. 45 to

26

provide documents which reflect or refer to GNLV Corporation’s response to

27

complaints about Golden Nugget dealers identified in response to Request for

28 / / /

2

Case 2:06-cv-01225-BES-PAL Document 31 Filed 03/07/2008 Page 3 of 5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

2.

24

25

26

27

28 / / /

Production No. 44, including documents pertaining to discipline of the employee about whom the customer complained for the time period from June 24, 2002 to the present. f. Defendants shall supplement their response to Request for Production No. 46 by providing the last known address, telephone number, and date of birth for Bernie Martini. The defendant shall be compelled to provide Mr. Martini’s social security number only if the EEOC is able to meet its burden of demonstrating that despite the exercise of reasonable diligence it has been unable to locate Mr. Martini. g. With respect to Request for Production No. 31 which requests “all documents” pertaining to GNLV Corp.’s financial condition including financial statements, and/or reports, balance sheets, assets and liability statements, and profit and loss statements for the period of January 2001 to the present, the court will DENY the motion to compel at this time. The EEOC indicates it seeks discovery of the defendant’s financial condition because of its claim for punitive damages. The EEOC does not assert that this information is otherwise discoverable. In the event the EEOC’s punitive damages claim survives summary judgment, defendant shall produce its financial statements, annual reports, balance sheets, assets and liability statements, and profit and loss statements for the time period of January 1, 2002 through the present within fifteen days of decision of any dispositive motion. h. The motion is DENIED in all other respects. Defendant’s Motion for Protective Order Concerning the Scope of Discovery Requests by Plaintiffs in Confidentiality of Documents (#17) is GRANTED in part and DENIED in part. The motion is GRANTED to the extent the court has limited the scope of the EEOC’s discovery requests at issue here in the preceding subparagraphs. The motion is also GRANTED to the extent the court will enter a separate protective order concerning
3

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1

confidentiality of documents produced in discovery. The motion is DENIED in all other

2

respects.

3

3. Defendant’s Motion to Compel Answers to Defendant’s First Set of Interrogatories and

4

First Request for Production of Documents (#18) is GRANTED in part and DENIED in

5

part. The motion is GRANTED to the extent that:

6

a. The EEOC shall supplement its answer to Interrogatory No. 11 by providing

7

information concerning the evaluations and/or treatments of any class members

8

for whom a claim is made that he or she suffered any physical or emotional

9

injury, illness or condition by virtue of the defendant’s conduct. The answer to

10

the interrogatory shall identify the type of harm or damage claimed and the

11

doctor, hospital, or health care professional involved in such treatment. The

12

information shall be provided for the time period from January 1, 2002 to the

13

present.

14

b. The EEOC shall supplement its answer to Interrogatory No. 14 to provide the

15

information sought as to any employee other than Ervin Nixon and Susan Fein

16

for whom the EEOC seeks to recover back pay and/or front pay.

17

c. The EEOC shall supplement its response to Request for Production No. 2 by

18

providing responsive documents concerning communications between the six

19

claimants and the persons or entities specified.

20

d. The EEOC shall supplement its response to Request for Production No. 3 by

21

providing responsive documents concerning communications between the six

22

claimants and the persons or entities specified.

23

e. The EEOC shall supplement its response to Request for Production No. 7 by

24

providing responsive documents concerning communications between the six

25

claimants and the persons or entities specified.

26

f. The EEOC shall supplement its responses to Requests for Production of

27

Documents Nos. 16 through 21 by providing the income tax returns for any

28

claimant for whom front pay and/or back pay is sought.

4

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1

g. The EEOC shall supplement its response to Request for Production No. 22 to

2

produce responsive documents for any claimant for whom back pay and/or front

3

pay is sought.

4

h. The EEOC shall supplement its response to Request for Production No. 23 to

5

produce responsive documents for any claimant for whom back pay and/or front

6

pay is sought.

7

i. The EEOC shall supplement its response to Request for Production No. 24 to

8

produce responsive documents for any claimant for whom back pay and/or front

9

pay is sought.

10

j. With respect for Request for Production No. 13 which requests documents and

11

materials created, reviewed, or relied upon by any expert witness expected to

12

testify at trial, the motion to compel is DENIED at this time as premature.

13

However, defendants may obtain these materials after the expert witness

14

disclosures have been made in accordance with the court’s discovery plan and

15

scheduling order.

16

k. The motion is DENIED in all other respects.

17

4. Both parties shall provide the supplemental responses required by this order no later

18

than March 27, 2008.

19

Dated this 7th day of March, 2008.

20

21

___________________________________

PEGGY A. LEEN

22

UNITED STATES MAGISTRATE JUDGE

23

24

25

26

27

28

5

 
 Case 2:06-cv-01225-BES-PAL Document 33 Filed 03/24/2008 Page 1 of 8

1

2

3

4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

7 U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

8

) Case No. 2:06-cv-01225-BES-PAL

)

9

Plaintiffs, )

PROTECTIVE ORDER

) GOVERNING CONFIDENTIALITY

10 vs.

)

OF DOCUMENTS

)

11 GNLV CORP., etc., et al.,

)

)

12

Defendants. )

__________________________________________)

13

14

The court conducted a hearing on February 12, 2008 on a series of motions concerning the

15 parties’ discovery disputes. The court has entered a separate Order (#31) resolving those discovery

16 disputes, the time has run for filing objections, and no objections have been filed. This protective order

17 is entered to protect the confidentiality of documents produced in pretrial discovery in this case.

18

The defendant requests that the court enter a protective order in the form approved in the United

19 States District Court for the Eastern District of California attached as Exhibit “14” to the Defendant’s

20 Motion for Protective Order (#17). The EEOC suggested alternative language in its Opposition to

21 Defendant’s Motion for Protective Order (#23). During oral argument at the hearing conducted

22 February 12, 2008, counsel for the EEOC indicated she would not oppose entry of a protective order in

23 the form attached as Exhibit “7” to Defendant’s Reply (#28) which the EEOC stipulated to in an order

24 entered in another case in this district. That protective order governed confidentiality of documents

25 from personnel files the parties anticipated would be disclosed in discovery. Counsel for the defendant

26 indicated that he had no objection to the proposed protective order attached as Exhibit “7,” provided it

27 was expanded in scope to include documents in addition to personnel files and records produced in this

28 case during discovery.

Case 2:06-cv-01225-BES-PAL Document 33 Filed 03/24/2008 Page 2 of 8

1

BACKGROUND

2

This is an action by the U.S. Equal Employment Opportunity Commission (“EEOC”) against

3 defendant GNLV Corp., d/b/a Golden Nugget Hotel and Casino, which alleges the defendant subjected

4 a class of employees to a hostile work environment based on their race and sex. The EEOC brought

5 this action on behalf of a charging party, and other similarly situated employees. The EEOC alleges the

6 unlawful conduct occurred “since at least September 1, 2002.” In the current motion, the defendant

7 seeks a protective order protecting the confidential nature of records and documents the parties

8 anticipate will be produced in discovery in this case. The defendant asks for a protective order

9 maintaining the confidentiality of employment records of its employees or former employees who are

10 not parties or class members, financial and proprietary information and the identification of its

11 customers’ names, addresses, telephone numbers, and other “customer-related information.” The court

12 has compelled the defendant to supplement its discovery responses to provide information from

13 employee files and customer complaints related to the types of claims the EEOC has asserted in this

14 complaint. The court has also ordered that the defendant produce non-public financial information in

15 the event the EEOC prevails on a punitive damage claim after dispositive motions are decided.

16 Additionally, the court compelled the EEOC to produce employment records, tax records, and medical

17 records and information for employees on whose behalf the EEOC seeks to recover damages. While

18 the EEOC initially resisted entry of the protective order, during oral argument counsel for the EEOC

19 agreed privacy concerns in certain categories of documents justified entry of a protective order to

20 preserve confidentiality.

21

DISCUSSION

22

A. Protective Orders

23

Fed. R. Civ. P. 26(c) permits the court in which an action is pending to “make any order which

24 justice requires to protect the party or person from annoyance, embarrassment, oppression or undue

25 burden or expense” upon motion by a party or a person from whom discovery is sought. The burden of

26 persuasion under Fed. R. Civ. P. 26(c) is on the party seeking the protective order. Cipollone v. Liggett

27 Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). To meet that burden of persuasion, the party seeking

28 the protective order must show good cause by demonstrating a particular need for the protection sought.

2

Case 2:06-cv-01225-BES-PAL Document 33 Filed 03/24/2008 Page 3 of 8

1 Beckman Indus., Inc., v. Int’l. Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). Rule 26(c) requires more

2 than “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning.” Id.,

3 citing Cipollone v. Liggett. “A party asserting good cause bears the burden, for each particular

4 document it seeks to protect, of showing that prejudice or harm will result if no protective order is

5 granted.” Foltz v. State Farm, 331 F.3d 1122, 1130 (9th Cir. 2003), citing San Jose Mercury News,

6 Inc., v. District Court, 187 F.3d 1096, 1102 (9th Cir. 1999).

7

In Seattle Times Co. v. Rhinehart, the Supreme Court interpreted the language of Fed. R. Civ. P.

8 26(c) as conferring “broad discretion on the trial court to decide when a protective order is appropriate

9 and what degree of protection is required.” 467 U.S. 20, 36 (1984). The Supreme Court acknowledged

10 that the “trial court is in the best position to weigh fairly the competing needs and interests of the parties

11 affected by discovery. The unique character of the discovery process requires that the trial court have

12 substantial latitude to fashion protective orders.” Id. Although the trial court has broad discretion in

13 fashioning protective orders, the Supreme Court has also recognized “a general right to inspect and

14 copy public records and documents, including judicial records and documents.” Nixon v. Warner

15 Communications, 435 U.S. 589, 597 (1978). However, the common law right to inspect and copy

16 judicial records is not absolute. Id. Thus, the Supreme Court concluded, “[e]very court has supervisory

17 power of its own records and files, and access has been denied where the court files might have become

18 a vehicle for improper purposes.” Id.

19

B. The Presumption of Public Access

20

Unless court records are of the type “traditionally kept secret” the Ninth Circuit recognizes a

21 “strong presumption in favor of access.” Foltz v. State Farm Mutual Auto Insurance Company, 331

22 F.3d 1122, 1135 (citing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). Grand jury

23 transcripts and warrant materials involved in pre-indictment investigations are two categories of

24 documents and records which have “traditionally been kept secret for important policy reasons.” Times

25 Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989). Although the federal common law

26 right of access exists, it “does not mandate disclosure in all cases.” San Jose Mercury News, Inc., 187

27 F.3d at 1102. The strong presumption in favor of public access recognized by the Ninth Circuit “can be

28 overcome by sufficiently important countervailing interests.” Id.

3

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1

1. Pretrial Discovery

2

In the Ninth Circuit, “[i]t is well-established that the fruits of pretrial discovery are, in the

3 absence of a court order to the contrary, presumptively public.” San Jose Mercury News v. United

4 States District Court, 187 F.3d 1096, 1103 (9th Cir. 1999). Thus, the Ninth Circuit concluded,

5 “[g]enerally, the public can gain access to litigation documents and information produced during

6 discovery unless the party opposing disclosure shows ‘good cause’ why a protective order is necessary.”

7 Phillips v. General Motors, 307 F.3d 1206, 1210 (9th Cir. 2002). “For good cause to exist, the party

8 seeking protection bears the burden of showing specific prejudice or harm will result if no protective

9 order is granted.” Id. at 1210-11. Or, as the Ninth Circuit articulated the standard in Foltz, “[t]he

10 burden is on the party requesting a protective order to demonstrate that (1) the material in question is a

11 trade secret or other confidential information within the scope of Rule 26(c), and (2) disclosure would

12 cause an identifiable, significant harm.” Foltz at 1131, quoting Deford v. Schmid Prods. Co., 120

13 F.R.D. 648, 653 (D. Md. 1987). “If a court finds particularized harm will result from disclosure of

14 information to the public, then it balances the public and private interests to decide whether a protective

15 order is necessary.” Id. at 1211 (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.

16 1995)).

17

2. Sealed Discovery Documents

18

In Phillips, the Ninth Circuit carved out an exception to the presumption of public access,

19 holding that the presumption does not apply to materials filed with the court under seal subject to a

20 valid protective order. 307 F.3d at 1213. The Phillips decision relied on the Seattle Times decision in

21 concluding that protective orders restricting disclosure of discovery materials which are not admitted in

22 evidence do not violate the public right of access to traditionally public sources of information. Id. at

23 1213 (quoting, Seattle Times, 467 U.S. at 33. The Ninth Circuit reasoned that the presumption of

24 public access was rebutted because a district court had already determined that good cause existed to

25 protect the information from public disclosure by balancing the need for discovery against the need for

26 confidentiality in issuing the protective order. Id. Therefore, “when a party attaches a sealed discovery

27 document to a non-dispositive motion, the usual presumption of the public’s right of access is

28 rebutted.”

4

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1

3. Materials Attached to Dispositive Motions

2

The Ninth Circuit recently and comprehensively examined the presumption of public access to

3 judicial files and records in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006).

4 There, the court recognized that different interests are at stake in preserving the secrecy of materials

5 produced during discovery, and materials attached to dispositive motions. Citing Phillips and Foltz, the

6 Kamakana decision reiterated that a protective order issued under the Rule 26(c) may be issued once a

7 particularized showing of good cause exists for preserving the secrecy of discovery materials. “Rule

8 26(c) gives the district court much flexibility in balancing and protecting the interests of private

9 parties.” 447 F.3d at 1180. The Kamakana court, therefore, held that a “good cause” showing is

10 sufficient to seal documents produced in discovery. Id.

11

However, the Kamakana decision also held that a showing of “compelling reasons” is needed to

12 support the secrecy of documents attached to dispositive motions. A showing of “good cause” does not,

13 without more, satisfy the “compelling reasons” test required to maintain the secrecy of documents

14 attached to dispositive motions. Id. The court found that:

15

Different interests are at stake with the right of access than with

Rule 26(c); with the former, the private interests of the litigants are not

16

the only weights on the scale. Unlike private materials unearthed during

discovery, judicial records are public documents almost by definition, and

17

the public is entitled to access by default. (Citation omitted). This fact

sharply tips the balance in favor of production when a document formally

18

sealed for good cause under Rule 26(c) becomes part of the judicial

record. Thus, a “good cause” showing alone will not suffice to fulfill the

19

“compelling reasons” standard that a party must meet to rebut the

presumption of access to dispositive pleadings and attachments.

20

21 Id. Kamakana recognized that “compelling reasons” sufficient to outweigh the public’s interests in

22 disclosure and justify sealing records exist when court records may be used to gratify private spite,

23 permit public scandal, circulate libelous statements, or release trade secrets. Id. at 1179 (internal

24 quotations omitted). However, “[t]he mere fact that the production of records may lead to a litigant’s

25 embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court

26 to seal its records.” Id., citing, Foltz, 331 F.3d at 1136. To justify sealing documents attached to

27 dispositive motions, a party is required to present articulable facts identifying the interests favoring

28 continuing secrecy, and show that these specific interests overcome the presumption of public access by

5

Case 2:06-cv-01225-BES-PAL Document 33 Filed 03/24/2008 Page 6 of 8

1 outweighing the public’s interests in understanding the judicial process. Id. at 1181 (internal citations

2 and quotations omitted).

3

ANALYSIS

4

The parties seek a protective order governing confidentiality of materials produced in pretrial

5 discovery. The court finds the parties have established good cause for maintaining the confidentiality

6 of private materials produced during discovery. Specifically, the court finds that discovery materials

7 consisting of documents and records contained in personnel files, medical files and records, and tax

8 files and records implicate the privacy rights of both parties and non-parties and should be protected

9 from public disclosure during discovery. Similarly, the court finds that defendant’s financial and

10 accounting information which is treated as confidential proprietary information by the defendant

11 deserves protection from public disclosure during discovery. Finally, defendant’s customer information

12 which defendant treats as confidential and proprietary deserves protection during the discovery phase of

13 the litigation.

14

The form of protective order the defendant requests has provisions which would require

15 documents designated as confidential information by a party attached to any applications or motions to

16 be submitted under seal. However, neither party has attempted to make a showing of “compelling

17 reasons” to maintain the secrecy of documents attached to dispositive motions. This protective order

18 governing confidentiality will protect private and confidential documents and records produced in

19 discovery from public disclosure. However, any party wishing to seal any documents attached to a

20 dispositive motion will be required to make a showing of compelling reasons to maintain the secrecy of

21 documents attached to any dispositive motions filed in this case. The parties may, however, redact

22 personal data identifiers covered by the policy of the Judicial Conference of the United States and the

23 E-Government Act of 2002 from any document attached to dispositive motions filed in this case

24 without seeking further leave of the court. See the court’s Special Order 108 (requiring parties filing

25 papers with personal identifiers to redact documents containing social security numbers, names of

26 minor children, dates of birth, financial account numbers, and home addresses).

27

To protect the privacy, confidentiality, and proprietary interests of the parties and non-parties to

28 discovery materials produced in this case,

6

Case 2:06-cv-01225-BES-PAL Document 33 Filed 03/24/2008 Page 7 of 8

1

IT IS ORDERED:

2

1. Documents produced in discovery which consist of employment records of the defendant

3

related to employees or former employees who are not parties or class members in this

4

litigation, medical files and records, and tax files and records produced in discovery shall

5

not be used for any purpose unrelated to the preparation for and trial of this matter

6

except upon consent of the person(s) whose records are produced, or upon further order

7

of the court.

8

2. Financial information which the defendant considers in good faith to constitute

9

confidential commercial information such as its financial statements, non-public annual

10

reports, balance sheets, assets and liabilities statements, and profit and loss statements

11

shall not be used for any purpose unrelated to the preparation for and trial of this action

12

except upon consent of the defendant or upon further order of the court.

13

3. Customer lists and personal identifiers of customers which defendant considers in good

14

faith to constitute confidential proprietary and commercial information shall not be used

15

for any purpose unrelated to the preparation for and trial of this action except upon

16

consent of the person(s) whose records are produced, or upon further order of the court.

17

4. Any documents designated as confidential and subject to this protective order which are

18

attached to, referred to, or are exhibits to any non-dispositive motion, brief,

19

memorandum, document, or transcript filed in this case shall be filed in a sealed

20

envelope bearing the following legend:

21

Confidential Materials Subject to Protective Order (Filed under Seal)

22

5. No documents which are filed with the court as attachments to a summary judgment or

23

other dispositive motion may be filed under seal unless the proponent seeking protected

24

status for the document(s) establishes “compelling reasons” to rebut the presumption of

25

public access to dispositive pleadings and attachments.

26

6. Any party seeking to seal attachments to a motion for summary judgment or other

27

dispositive motion filed with the court shall submit the documents they propose to file

28

under seal for in camera review with a memorandum presenting articulable facts

7

Case 2:06-cv-01225-BES-PAL Document 33 Filed 03/24/2008 Page 8 of 8

1

identifying the interests favoring continuing the secrecy of the attachments, and showing

2

that these specific interests outweigh the public’s interests in disclosure sufficient to

3

overcome the presumption of public access to dispositive pleadings and attachments.

4

7. Any application to seal documents attached to a motion for summary judgment or other

5

dispositive motion shall be served on opposing counsel together with the documents

6

filed under seal and submitted to the court for in camera review. Opposing counsel shall

7

have fifteen days from service of any application to seal documents attached to a motion

8

for summary judgment or other dispositive motion in which to file a response.

9

8. At the conclusion of this action (including any appeals) and unless the court orders

10

otherwise, any files and records produced in discovery which are covered by this

11

protective order shall be destroyed according to the EEOC’s Records Disposition

12

Program, EEOC Directives, Transmittal 201.001, and shall not be released to the public.

13

Dated this 21st day of March, 2008.

14

15

___________________________________

PEGGY A. LEEN

16

UNITED STATES MAGISTRATE JUDGE

17

18

19

20

21

22

23

24

25

26

27

28

8

 
 Case 2:06-cv-01225-RCJ-PAL Document 59 Filed 10/28/08 Page 1 of 2

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

9 U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

10

)

Plaintiff,

)

11

)

v.

)

12

)

GNLV CORP., et al.,

)

13

)

Defendants.

)

14 ___________________________________

2:06-CV-1225-BES-PAL ORDER

15

Before the Court are Defendant’s Motion to Preclude Plaintiff From Adding Additional

16 Class Members and Motion to Strike as Untimely the Inclusion of Leroy Lee, L.C. Kennedy,

17 Kelly Hawthorne and Romilda Sarant as Class Members (#38) filed on July 15, 2008, and

18 Plaintiff U.S. Equal Employment Opportunity Commission’s (“EECO”) Emergency Motion for

19 Leave to Take Additional Depositions and Request for Additional Time in Which to Take the

20 Depositions (#39) filed on July 16, 2008. This action was referred to U.S. Magistrate Judge

21 Peggy A. Leen pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. The Magistrate Judge

22 submitted her Report and Recommendation (#49) on September 9, 2008. Plaintiff filed an

23 Appeal of and Objections to the Magistrate Judge’s September 8, 2008 Order (#50) on

24 September 19, 2008 and on October 6, 2008 Defendants filed an Opposition to Plaintiff’s

25 Appeal and Objection to the Magistrate Judge’s September 8, 2008 Order (#51).

26 ///

27

28

Case 2:06-cv-01225-RCJ-PAL Document 59 Filed 10/28/08 Page 2 of 2

1

I. ANALYSIS

2 A. Review of Magistrate Judge’s Order

3

Any party may object to a magistrate judge's case dispositive proposed order, findings,

4 or recommendations. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); LR 74.2. The district

5 court must make a de novo determination of those portions of the magistrate judge's report

6 to which objection is made and may accept, reject, or modify, in whole or in part, the findings

7 or recommendations made by the magistrate judge. Id. De novo review means the court must

8 consider the matter anew, the same as if it had not been heard before and as if no decision

9 previously had been rendered. Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir. 1992).

10 Thus, although the district court need not hold a de novo hearing, the court's obligation is to

11 arrive at its own independent conclusion about those portions of the magistrate judge's

12 findings or recommendation to which objections are made. United States v. Remsing, 874

13 F.2d 614, 617 (9th Cir. 1989).

14

After conducting a de novo review of the record, the Court accepts and adopts the

15 Magistrate Judge’s Recommendation (#49).

16

III. Conclusion

17

IT IS HEREBY ORDERED that Defendant’s Motion to Preclude Plaintiff from Adding

18 Additional Class Members and Motion to Strike as Untimely the Inclusion of Leroy Lee, L.C.

19 Kennedy, Kelly Hawthorne, and Romilda Sarant as Class Members (#38) is GRANTED.

20

IT IS FURTHER ORDERED that Plaintiff’s Emergency Motion for Leave to Take

21 Additional Depositions and Request for Additional Time in Which to Take the Depositions

22 (#39) is GRANTED to the extent the EEOC is granted leave to take the eight additional

23 depositions of the individuals identified in the motion and given an extension subject to the

24 discretion of the Magistrate Judge. The EEOC’s request to “reserve” two additional

25 depositions is DENIED.

26 IT IS SO ORDERED.
27 DATED: This 28th day of October, 2008.
28

UNITED STATES DISTRICT JUDGE

 
 Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 1 of 14

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UNITED STATES DISTRICT COURT

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7

DISTRICT O F NEVADA

8

9 U.S.EQ UALO PPO RTUNITY

2:06-C V-01225-BES-PA L

EM PLOYM ENT COM M ISSION,

10

Piaintif,

11

O RDER

VS.

12

GNLV CO RP,sd/b/a/G OLDEN NUGG ET

13 HOTEL AND CASINO ,and DO ES 1-10

lnclusive,

14

Defendants.

1 5

Presentlybefore the Coud isDefendantG NLV Corp.,d/b/a Golden NuggetHoteland

16

Casino's ('CGNLV'')MotionforSummaryJudgmenton PlaintiffEEOC'S Pattern orPractice

1 7

Claim (#61) filed December 12, 2008. Plaintiff U.S. EqualOpportuniW Em ployment

1 8

Comm ission(atheEEOC'')fileditsOpposition(#89)onJanuary30,2009.GNt-v fileditsReply

1 9

(#100)onFebruary27,2009.
20

AlsobeforetheCoud isGNLV'SM otionforsum m aryludgm entontheIssueofPunitive

2 1

Damages(#62)filedDecember12,2008.TheEEOC fileditsOpposition(#80)onJanuary3O,
22

2009.GNLV fileditsReply(#101)on February27,2009.
23

Also beforethe Courtis GNLV'SM otionforSum m aryJudgm entRegardingthe Merits

24

ofCiassMemberRobertRoyal'sClaims(#63)filedDecem ber12,2008.TheEEOC filedits

25

Opposition(#78)onJanua!'y30,2009.GNLV fileditsReply(#99)onFebruary27,2009.

26

Also beforethe CourtisG NLV'SM otionforSum mal'yJudgm entRegarding the Merits

27

ofClassMemberSusie Fein'sClaims(#64)filed December12,2008.The EEOC filedits
28

1

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 2 of 14

l Opposition (#79)onJanuary30,2009.GNLV fileditsReply(#97)onFebruary27,2009.

2

Alsobeforethe CourtisGNLV'S M otionforSum m aryJudgmentRegarding the M erits

3 ofClassMemberErvin Nixon'sClaims(#65)filed December15,2008.The EEOC filed its

4 Opposition(#81)onJanuary3O,2009.GNLV filed itsReply(#102)on March2,2009.

5

Also before the CourtisG NLV'SM otionforSum m arydudgmentRegardingthe M erits

6 ofClassMemberEddieMaeHunter'sClaims(#66)filedDecember15,2008.TheEEOC filed

7 itsOpposition(#82)onJanuary30,2009.GNLV fileditsReply(#98)onFebruary27,2009.

8

Also before the Coud is the EEO C'S M otion forSum m ary Judgm enton Defendant's

9 First,Second,Third,Fourth,Seventh,Ninth,Tenth,Eleventh,Twelfth,Thideenth,Fourteenth,

10 Sixteenth,TwentiethandTwenty-FirstAffirmative Defenses(#67)filed December15,2008. 11 GNLV filed itsOpposition(#75)onJanuary30,2009.The EEOC filed itsReply(#103)on

12 M arch 2,2009.

13

Also beforethe CourtisGNLV'S MotionforSum m aryJudgm entRegardingthe Merits

14 ofClassMemberDorothyBlake'sClaims(#68)filedDecember15,2008.The EEOC filedits

15 Opposition(#83)onJanuary30,2009.GNLV filed itsReply(#105)onMarch2,2009.

16

Also before the CourtisG NLVY M otionforSum m aryJudgm enton the lssue ofthe

17 EEOC'S Failure to M eetthe Adm inistrative Prerequisites forClaim s Pertaining to Tequella

18 Candice Smith (#69)filed December15,2008. The EEOC filed its Opposition (#84)on

19 January30,2009.GNLV fileditsReply(#96)onFebruary27,2009.

20

Also before the CourtisG NLV'SM otionforSum m aryJudgmentRegardingthe M erits

21 ofClassMemberTequella Candice Smith'sClaims (#70)filed December15,2008. The

22 EEOC fileditsOpposition(#85)onJanuary3O,2009.GNLV fileditsReply(#104)onMarch

23 2,2009.

24

Finally,beforethe Courtisthe EEOC'SMotiontoStriketheAffidavitofPhilipBouthillier,

25 PodionsofDefendant'sM otionforsum m aryludgm entonPlaintiffEEoc'sPatternorPractice

26 Claim ,Exhibits Relating to Philip Bouthillier's Affidavit,and Purported Num ericalAnalysis

27 (#106)filedApril14,2009.GNLvfiieditsOpposition(#107)onMay4,2009.TheEEOCfiled

28 itsReply(#108)onMay12,2009.TheCoudheldhearingonaIIofthesemotionsonM ay18,

2

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 3 of 14

1 2009.

2

1.BACKGROUND

3

This m atterarisesoutofallegations bythe em ployees ofGNLV ofracialand gender

4 discrim ination and retaliation. On Septem ber29,2006,the EEOC filed a com plaintagainst

5 GNLV on behalfofRobertRoyal('Royal'')and a class ofsim ilarly situated individuals
6 em ployed by G NLV,onthe basisofracialand sexualharassm entand retaliation underTitle

7 VI1ofthe CivilRightsActof1964.The charging party,Royal,and severalotherindividuals

8 allege thatGNLV engaged in a pattern and practice ofcondoning and tolerating racialand

9 sexualharassm entand retaliationdirected atitsem ployees. Specifically,the EEOC alleges

10 thatG NLV supew isors and m anagers ignored orstifled com plaints by its em ployees of

l1 harassm entbycustomers,failedtofollow itsproceduresforhandlingharassmentcom plaints,

12 andfosteredanenvironm entwheresexualandracialharassm entofem ployeesbycustom ers,

13 coworkers and managers was tolerated and ignored. The EEO C'S theory is that GNLV

14 created and maintained a sexually and racially hostile work environm entatits Las Vegas

15 Iocation because ittolerated individualacts ofsexualand racialharassm ent both by its

16 em ployeesand by custom ers,and by itsalleged refusaltotake notice of,investigate,and/or

17 disciplineworkersorcustomerswhosubjecteditsemployeestosexualorracialharassment.
18 Uponfurtherinvestigation,the EEO C found five m ore class representatives,Ervin Nixon,Jr.

19 (ddNixon''),Susie Fein CFein''),Dorothy Blake (''BIake''),Eddie Mae Hunter(''Hunter''),and

20 TequellaCandiceSmith($Smith'').AIIoftheclassmem bersareorweretablegamesdealers

21 atGNLV,exceptforSm ith,whoworked inthe stewarding depadm ent.

22

II.LEGALSTANDARD

23

Sum maryjudgmentdtshallberenderedfodhwithifthepleadings,depositions,answers

24 to interrogatories,and adm issionson file,togetherwith the affidavits,ifany,show thatthere

25 isnogenuine issue astoanymaterialfactandthatthemoving partyisentitledtojudgment

26 asa matteroflaw.''FED.R.CIV.P.56(c). The burden ofdemonstratingthe absence ofa
27 genuine issue ofm aterialfactIiesw ith the m oving party,and forthis purpose,the m aterial

28 Iodged bythe m oving partym ustbe view ed in the Iightm ostfavorable to the nonm oving party.

3

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 4 of 14

1 Adickesv.S.H.Kress& Co.,398U.S.144,157(1970).,Madinezv.CitvofLosAnoeles,141

2 F.3d1373,1378(9thCir.1998).A materialissueoffactisonethatafectstheoutcomeofthe
3 Iitigationand requiresatrialto resolve the differingversionsofthetruth.Lvnnv.Shee. tM etal
4 W orkersInt'lAss'n.8O4F.2d1472,1483(9thCir.1986).,S.E.C.v.SeaboardCoro.,677F.2d

5 1301,1306 (9thCir.1982).

6

lfthemovingpadypresentsevidencethatwouldcallforjudgmentasamaqerof

7 attrialifIeftuncontroverted,thenthe respondentm ustshow byspecificfactsthe existence

8 ofa genuine issue fortrial. Anderson v.Liberty Lobbv.Inc.,477 U.S.242,250 (1986). 9 $$ET)here isno issuefortrialunlessthere issufficientevidencefavoringthe nonmoving party

10 fora juryto return a verdictforthatpady. Ifthe evidence is merely colorable,oris not 11 significantlyprobative,summaryjudgmentmaybegranted. .$-uat249-50(citationsomitted). 12 ''A merescintillaofevidencewillnotdo,forajuryispermittedtodraw onlythose inferences
13 ofw hich the evidence is reasonably susceptible',itmay notresortto speculation.'' British

14 AirwaysBoardv.BoeinnCo.,585 F.2d946,952(9thCir.1978).,seealsoDaubertv.Merrell 15 Dow Pharmaceuticals.Inc.,509U.S.579,596(1993)C(lJntheeventthetrialcoudconcludes
16 that the scintilla of evidence presented supporting a position is insuficient to allow a

17 reasonablejurorto concludethatthe positionmore likelythan notistrue,thecoud remains

18 free ..to grantsummal'yjudgment.n). Moreover,llEilfthe factualcontextmakes
19 m oving pady's claim ofa disputed factim plausible,then thatpartym ustcom e fo- ard with

20 m ore persuasive evidence than otherwise would be necessary to show there is a genuine

21 issue fortrial.''BlueRidae lnsuranceCo.v.Stanewich,142 F.3d 1145,1149(9thCir.1998) 22 (citing Cal.ArchitecturalBlda.Products.Inc.v.Franciscan Ceram ics.lnc.,818 F.2d 1466,

23 1468 (9th Cir.1987)).Conclusoryallegationsthatare unsuppoded byfactualdatacannot

24 defeatamotionforsummal'yjudgment.TavlorM.List,880 F.2d 1040,1045(9thCir.1989).

25

111.D ISCUSSION

26 A.The EEOC'S M otion to Strike

27

Beforereachingtheparties'variousm otionsforsummaryjudgm ent,theCouftm ustfirst

28 addressthe EEOC'SobjectionstoGNLV'Sevidencesubmitted insupportofGNLV'Sm otion

4

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 5 of 14

1 forsum maryjudgmentonthe EEOC'S patternorpractice claim (#61). The EEOC filed a

2 motiontostriketheaffidavitofPhilipBouthillier(''Bouthillier'),podionsofGNLV'Smotionfor 3 sum mary judgmenton the pattern orpractice claim ,and exhibits relating to Bouthillier's

4 affidavitregardingthe numberofworkersemployed atGNLV.I The EEOC objectsto this

5 evidence on the groundsthatBouthillierwas neveridentified in G NLV'S pretrialdisclosure

6 statements underFed.R.CiV.P.26.The EEOC also objects underFed,R.Civ.P.37 onthe

7 groundsthatitpreviouslyaskedforthisinform ationinan interrogatory,andG NLV im properly

g objected tothe interrogatory asover-burdensome and neversupplemented itsresponses.

9 (PI.'sMot.(#106)5-9).Inaddition,initsreplybrief,the EEOC arguesthattheCourtshould

grantits m otion because G NLV'S Oppositionwas nottim elyfiled.2 1 0

11

TheCourtfindstheEEOC'Sargum entregardingpretrialdisclosuresunderFed.R.civ.p.

12 26 unpersuasive. The purpose ofpretrialdisclosures is to provide the nam es ofthose

13 individualsIikelytohavediscoverableinform ationsothattheopposingpadym aydeposethem 14 in advance of trial. Bouthillier appears to have no inform ation regarding any alleged

15 harassm entordiscrim ination in this m atter. His affidavitappears to have been subm itted

16 solelyforsummaryjudgmentpurposesto show the relativelysmallnumberofcomplaints
17 compared with G NLV'S entire workforce. Bouthillierdid notprovide any expertstatistical

18 anaiysisofthese num bers,hesim ply performedtheclericaffunction ofidentifying how m any

19 individualswereem ployedbyG NLV duringthe period inquestion.Hisafhdavitisbased upon

20 hispersonalknowledgeasGNLV'Sinformationsystemsmanager,and Fed.R.CiV.P.56(e)(1)

21 permitsapartytosubmitsuch affidavitswith asummaryjudgmentmotion.EvenifGNLV'S

22

2 3

discrim

1Asdiscussedin more detailbelow, G NLV arguesthatthere is no evidence ofa pattern orpracticeof ination because there are only 10 people who choseto be involved in this Iawsuit. GNLV arguesthat

24 becausesuchasmallnum berofpeopleallegediscriminationoutofapoolofthousandsofGNLV empioyees,the EEOC cannotprovethatthediscriminationand harassmentwerepadofGNLV,sstandardoperatingprocedure.

25 (Def.'sOpp'n(#107)13-15).

26

2initsreply theEEOC makesmuchofthefactthatGNLV'SOppositionwasfifedonMay4,2009,which,

underlocalrule7-2,(b),wasfivedaysafterthedeadiinetosubmititsopposition,April29,2009.(PI.,sRep.(#108)

27 3-4).However,areview ofthedocketindicatesthattheCourtCierksetthedeadlineforGNLV'SresponseatMay

2,200%whichwasaSaturdayandGNLVsubmitteditsresponseonthefollowingbusinessday,MondayMay4,
28 2009.GiventheClerk'sentr'yofthedeadlineforMay2,2009,andthefactthattheEEOC suffersnoprejudice,

theEEOC,stim elinessargumentiswithoutmerit.

5

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 6 of 14

failuretodiscloseBouthillierwasaviolationofRule26,theEEO C could haverequested under
1
2 Rule 56(9 todeposehim .TheEEOC madenosuchrequest,andthereforetheCoudwillnot

3 strike the afhdavitonthese grounds.
The EEOC also argues thatthis evidence should be stricken because the EEOC
4
requested inform ation regarding G NLV'S workforce during discovery and GNLV allegedly
5
6 improperly objectedto the requestas overlybroad. In the EEOC'S InterrogatoryNo.8,it

7 requestedinformationfor''everypersonemployedat(GNLW sinceJanuary2001throughtbe
present''including each em ployee's nam e,date ofbirth,lastknown addressandtelephone 8
num ber,socialsecurity num ber,datesofem ploym ent,reasonsforseparation,departments 9
10 andpositionsworked,andnamesofimmediatesupervisors.(Def.'sOpp'n(#107)8).GNLV

11 objectedtothisrequestasoverlybroad,andtheEEOC agreedtoiimitthisinterrogatory.The

12 partiesagreedto Iim itthesedisclosurestodealersonly.Ld-. GNLV then supplemented its

13 response with a Iistofdealersem ployed byG NLV during the relevanttime period.Ld-uat9.
14 Basedonthe foregoing,thisCourtdoesnotbelieveGNLV acted improperlybyobjectingto

the EEOC'S volum inous interrogatory request. The record indicatesthatthe EEOC never l 5
actually requested the num ber of G NLV em ployees. Instead,the EEOC focused its
l 6
l7 interrogatory on other,m ore detailed inform ation,and Iateragreed to Iim itthatrequestto

dealers. Therefore,this Courtwillnotstrike the afidavitornum ericalevidence on these l 8
groundseitherbecause GNLV neverim properlyrefusedtodisclosethetotalnum berofG NLV
! 9
20 em ployees.

2 1

Finafly,the Coud notesthatthe EEOC did notobjectto thisevidence initsoriginal

22 opposition to GNLV'S motionforsummaryjudgment. Infact,the EEOC appears to have

designatedthe num ericalevidenceas undisputed and reliedon itin itsopposition.W hilethe
23
FederalRulesofCivilProcedure do notprescribe a specifictim e period during which a party
24 m ustm ovetostrikean afhdavit,thetrialcourtm ustexercise itsdiscretionindecidingwhether
25
26 apartyhastimelyobjectedtoorwaiveditsrighttoobjecttoanaffidavit.Nat'lUnionFire lns.
27 Co.ofPittsburnh,Pa.v.SiliconixInc.,726F.supp.264,268(N.D.Cal.1989).Becausethe

28 EEOC didnottimelyobjecttothisevidenceandreliedonitinitsopposition,theCcurtbelieves

6

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 7 of 14

1 the EEOC haswaived anyobjections atthis point. Based onthe foregoing,the EEOC'S

2 motiontostrike(#106)isdenied.

B. DefendantGNLV'S M otion forSum m ary Judgm enton PlaintiffEEOC'S Pattern or
3 4 Practice Claim

5

TurningtoGNLV'Sfirstmotionforsum maryjudgment,GNLV arguesthatthe EEOC

cannot,asam atterofIaw,establishapatternorpractice ofdiscrim inationand/orharassm ent 6
bythe com pany.Specifically,GNLV arguesthatthe EEO C cannotshow anything m orethan
7 'iisolated,accidental,orsporadic''discrim inatoryacts,and that'takentogether,these actsdo
8
9 notamounttoapatternandpracticeofdiscriminationbyGNLV.(Def.'sMot.(#61)21).GNLV
subm itsseveralstatisticalfigureswhich,itargues,show thatthere are no genuine issuesof
l 0
m aterialfact regarding the issue ofw hether G NLV engaged in a pattern orpractice of
11 condoning and tolerating racialand sexual harassm ent and retaliation directed at its
12
em ployees.Specifically,itarguesthatbecausethe EEOC wasonlyableto identifytencurrent
13
14 and formerem ployeesthatwere subjected to harassmentoverthecourseofsixyearsand
becausethereisnoevidencetoindicatethereareadditionalclassm em bersorcom plaintsyet-
l 5
to-be uncovered,itcannotdem onstrateasa matterofIaw thatdiscrim inationandharassm ent
1 6
17 areapatternandpracticeofGNLV.Ld..at22.lnitsopposition,theEEOC arguesthat,viewed

18 intheIightmostfavorabletotheEEOC,substantialevidenceexistsfrom whichajurycould
findthatGNLV ''repeatedlyandregularlytolerated racialand sexualharassm entandfailedto 1 9
20 take appropriatecompany-widepreventative orremedialaction.''(Pl.'sOpp'n(#89)9).
Neitherthe Ninth Circuitnorthe Suprem e Coud have spoken asto whetherand how
2 1
a pattern-or-practice action forsexualand racialharassm entcan be tried and proven. For 22
purposesofthism otion,the Coud willassum ethatthe EEO C can bring apattern-or-practice
23 action forhostile work environm entsexualand racialharassmentgiven thatseveraldistrict
24 coudshaveso held.See EEO C v,CRST VanExoedited.Inc.,- F.supp.zd-,No.07-CV-95-
25
26 LRR,2009W L 1175169 (N.D.IowaApril30,2009)., EEOC v.int'lProfitAssoc.,No.01-C-
27 4427,2007W L3120069(N.D.III.Oct.23,2007),.EEOC v.ScolariW arehouseMarkets.lnc.,
28 488F.supp.zd 1117,1129(D.Nev.2007)',EEOC v.CarrolsCorn.,No.5:98-CV-1772,2005

7

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 8 of 14

1 W L928634 (N.D.N.Y.2005)', EEOC v.DialCorD.,156F.supp.zd926,946 (N.D.III.2001)., 2 EEOC v.MitsubishiMotorManufacturinnofAmerica,990 F,supp.1059,1070-71(C.D.111. 3 1998).Thosecourtshavedeterminedthatpattern-or-practice casesshould betriedintwo
4 phases basedonthe modelprovided inInrlBrotherhood ofTeam stersv.United States,431
5 U.S.324,360(1977).AtPhaseI(the'Iiabilityphase'')thecoudsabovehavedeterminedthat
6 the EEOC m ustprove i'm orethanthe m ere occurrence ofisolated or'accidental'orsporadic
7 discriminatoryacts.'Ld=.at336.Itm ustprove,byapreponderanceoftheevidence,thatthe
8 harassmentwasG NLV'SS'standardoperating procedure -the regularratherthantheunusual 9 practice.'' Ld=. A finding in the EEOC'S favorin Phase Iwould allow the courtto award
10 prospective reliefunderTeamsters,and the courtshould then proceed to Phase 11(the 11 'remedialphasenl.3Seeid.at361.However,''thequestionofindividualreliefdoesnotarise
12 untilithas been proved thatthe em ployerhas followed an em ploym entpolicy ofunlaM ul

13 discrim ination.''Ld-.
lnthespecificcontextofahostileworkenvironm entpatternorpracticeclaim ,theEEOC 14
15 mustprove,byapreponderance ofthe evidence:(1)thatthe harassmentthatoccurredat
1 GNLV during the relevanttim e period,taken as a whole,was so severe orpervasive thata 6 17 reasonable personofsim ilarbackground would find the workenvironm entto be hostile and

18 abusive,and(2)thatGNLV knew orshouldhaveknownthatregularorsystematicharassment
19 wasoccurring am ong itsworkforce butdid nottake adequate stepsto addressthe problem .

20 See M itsubishi,99O F.supp.at1073.

2 l

Indeterm iningwhetheranenvironm entissusicientlyhostile orabusive,thecoudm ust

22 Iook atddallthe circum stances,including the frequency ofthe discrim inatol conduct',its

23 severity;whetheritisphysicallythreatening orhum iliating,ora mere o/ensiveutterance;and

24 whetheritunreasonably interferesw ithan em ployee'sworkpe/orm ance.''Faracherv.Citv

25 ofBocaRaton,524U.S.775,788(1998).However,asthe SupremeCourthaspointedout,

26 3phase 11requiresaninquiryintothediscriminationorharassmentsufferedbytheindividualclaimants,
27 and allowsthecoud to addressthe issue ofmonetarydam ageswithrespectto each individualclaimant.See Teamsters,431U.S.at361.Because GNLV'Sfirstmotionforsummaryjudgment(# 61)dealsoniywiththe
28 pattern-or-practice issue, and itssubsequentmotions address each individualclaimant,the Courtneed only considerthe Phase Ianalysisatthispoint.
8

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 9 of 14

1 ''the m ere utterance ofan...epithetwhichengenders ofensive feelingsin anem ployee does 2 notsufficiently affectthe conditions ofem ploymentto im plicate Title VII.'' Harris v.Forklift

3 Sys..Inc.,510 U.S.17,21 (1992). lndeed,the objective aspect ofthe hostile work
4 environm enttestis m eantto 'ifilteroutcom plaints attacking the ordinary tribulations ofthe

5 workplace,such as the sporadic use ofabusive Ianguage,gender-related jokes,and
6 occasionalteasing.''Faraoher,524 U.S.at788. iisim ple teasing,off-hand com m ents,and
7 isolatedincidents(unlessextremelyserious)willnotamounttodiscriminatow changesinthe

8 termsand conditionsofemployment.''Ld=.

9

GNLV arguesthattheevidenceEEOC providesdoesnotestablishatriableissueoffact

10 thatthe harassm entthatoccurred atG NLV was so severe and pervasive thatitbecam e

11 'dstandardoperatingprocedure.'GNLV focusesonthe totalnumberofclaimants(tentotall2 fourwere stricken due to the EEOC'S late disclosures),versusthe totalnumberofGNLV 13 employees (9,265),dealers (986),table gamesdepadmentemployees (848)and kitchen 14 stewards(270)em ployedbyGNLV from January1,2002toAugust31,2008.(Def.'s Mot. 15 (#61)17-22).GNLV arguesthatbecausethe EEOC,overasix-yearperiod,hasonlybeen 16 abletoIocateandidentià tenpotentialclassmembersthatallegedlysu#ereddiscrimination,
17 the EEO C cannot,as a m aoeroflaw,dem onstrate thatdiscrim ination was partofGNLV'S

18 ''standard operating procedure.''Ld-uat22.

19

The Suprem e Courthasnotedthat''dstatisticalanalyseshave served andwillcontinue

20 to serve anim podantrole'incaseswheretheexistence ofdiscrim inationisa disputedissue.'

21 Team sters,431 U.S.at339. However,whilestatisticsare one m ethod byw hich a pattern or 22 practiceclaim m aybe proven,the Supreme Coud hascautionedthattheydare notirrefutable',

23 they come in infinite variety and,Iike any otherkind ofevidence,they m ay be rebutted. In

24 short,theirusefulnessdependsonaIIofthesurroundingfactsandcircumstances.''Ld=.at339-

25 40.

26

Even assum ingthateach ofthe ten potentialclaim antshassetforthfactssufficientto

27 constitutevalid,individualclaim sforsexualharassm ent,andevenviewingthefactsintheIight

28 m ostfavorabietothe EEOC,theCourtfindsitim possibletoignorethecritical,undisputedfact thatthe EEO C hasonly presented thisCourtwithcom plaintsfrom tenpeople outofa poolof

9

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 10 of 14

1 9,265GNLV em ployeesoverasix-yearperiod(0.10A).W hilethe Coud cannotadiculatea
2 specific threshold forthe num berof claims required to establish a pattern orpractice of 3 harassm entorretaliation,the num bers indicate thatthe EEO C'Sallegationsfallwellshortof

4 showing anyllstandard operating procedure''ofallowing orcondoning discrim ination.

5

lntworecentcases,districtcourtshavegrantedsummaryjudgmentagainsttheEEOC

6 onpattern-or-practiceclaim swhereonlyasm allpercentageoftheworkforcem adeallegations

7 ofharassm entordiscrim ination. See CRST Van Expedited,2009 W L 1175169 at*26

8 (grantingsummaryjudgmentonpattern-or-practiceclaim wherethe EEOC presentedatotal

9 of146 allegationsofsexualharassmentbyfemale driversoutofa totalof2,701(5.4QA)).,

10 CarrolsCoro.,2005W L928634 at*4 (grantingsummaryjudgmentonapattern-or-practice

11 claim where 333outof90,835employees(.36704)atatotalof2O6distinctrestaurantshad

12 alleged actionablesexualharassment). The same analysisappliesherewithequalforce.

13 Notably,inthiscase,the incidence ofharassm entis Iowerthan thatin both Carrols and in

14 CRST.W hile this Courtrecognizesthatbare statisticscan be refuted,allegations by atotal

l5 of0.1 % ofG NLV'Sworkforce overthe spanofsixyearsdoes not,withoutm ore,am ountto
16 ''systemic,company-wide discrimination,''or''an objectively verifiable policyorpractice of
17 discrim ination''byG NLV againstitsem ployees.M itsubishi,990 F.supp.at1070.M oreover,

l8 the EEOC has notpresented any tangible evidence to dispute the factthat noteven a 19 substantialm inority ofG NLV em ployees experienced harassm entorretaliation during the

20 relevanttim e period.

2 1

The EEO C attem ptsto downplaythis statisticalevidence by citing Scolari.In Scolari,

22 this Courtnoted thatthe factthatthere were only 17 claim ants outof a totalof 5,200

23 em ployeessolicitedwas notdispositive ofa pattern-or-practice claim forsexualharassm ent

24 given the surrounding circum stances in that case. Scolari, 488 F.supp.zd at 1130. 25 Specifically,the Courtnoted thatthe EEOC ,in thatcase,had received m ore than 5O0

26 com plaints bywom en and m en attestingto the hostile work environm entatScolariand the
27 com pany'sfailure to rem edythe harassment..4.4.1. TheCour'tconcludedthatbasedonthese
28 surroundingfactsand circum stances,therewere Iikelym orethan 17 claim antsoutthere,and thatgiven the allegations ofretaliation,m any currentem pioyees were Iikely afraid to step

1 ()

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 11 of 14

1 forward. See Scolari,488 F.supp.zd at1131.

2

In this case,the EEOC argues thatthese ten claimants are m erely the ''tip ofthe

3 iceberg,''and that the num ber of claim ants does not necessarily reflect the num ber of

4 occurrences ofactualharassment. (PI.'s Opp'n (#89) 3). However,this statementis
5 speculative and,unlike inScolari,the EEO C hasnotpresented thisCourtwithanyevidence

6 to indicate thatthere are a Iarge num berofunnam ed claim ants outthere. In addition,

7 pursuanttothisCoud'sorder,the EEO C m aynotexpanditsclassofclaim antsbeyondthe six

8 nam edclaim antsasdiscoveryinthiscase hasconcluded. Hence,the totalpossible num ber

9 ofclaim antsthe EEOC can useto supportitspattern-or-practice claim in thiscase isIim ited

l0 tosixindividuals.W hiletheCourtrecognizesthatoftenstatistic,sdonotrevealtheentirestory,

11 inthis case,even accepting aIlsixclaimantsand aIIfourstricken claim ants'allegationsover

12 asix-yearperiodastrue,the relativelyfew instancesofharassm entand retaliationwhichthe

13 EEOC presentsdo notadd uptothefindingthatharassm entwaswidespreadatG NLV ,orthat 14 perm itting orcondoning itwasG NLV'Sstandard operating procedure.4

1 5

Aside from the statistics in this case,the Coud notes thatofthe severalalleged

16 incidents ofharassm entinvolving the six claim ants,itis undisputed thatm any were either

17 unreported oraddressed iftheywere reported. Forexam ple,Royaladm its thatduring the

18 years of1999-2002,he heard severalcustom ersm ake racistrem arks buthe neverrepoded

19 them. (Def.'s Mot.(#61)Ex.15,171-172,183-84,232). Fein also admitsthatshe never
20 com plained to hersupervisors orto Hum an Resources regarding any alleged instances of

21 customerorsupervisorharassment.1.4uEx.21,No.37-38.Asto Nixon,he admitsthatno

22 racialremarkswereeverdirectedathim norstatedinhispresence.Ld-.Ex.19,42.Thefailure

23

24

4InitsOpposition,theEEOC reliesheavilyonthedepositiontestimonyofAlexZakalykfortheproposition

thatitwasG NLV'S''standardpractice''totolerateharassmentofitsdealersbyhigh-rollercustomers.(Pl.'sOpp'n

25 (#89)6).Mr.Zakalykdidtestifythatthereweresomecustomerswhowerenotejectedwhentheyengagedin

inappropriateconducttowardsthedealers.(ZakalykDep.(#77)Ex.J,40..41).Specifically,Mr)Zakalykrecalled

26 Onepadicularcustomerwhowasabusivetowardsthedealers,shoutedatthem ,andthesupervisorsapproached

thecustomerandspokewithhim ,buthewasnotejected.Ld=at116.EvenviewingthisevidenceintheIightm ost 27 favorabletotheEEOC,asthisCourtisrequiredtodo,itdoesnotshow thatGNLV regularlytoleratedharassment
by customerstowards its dealers on a giobaiscale. M r.Zakalyk'stestim ony may dem onstrate thatsome

28 customerswhobehavedinappropriatelywerenotejected,howeveritdoesnotdemonstratethatGNLV failedto
take corrective actionon a regularbasiswhen inappropriate conductwasreported. Therefore Mr.Zakalyk's

testimony does notcreate a genuine issue ofm aterialfactas to whetherallowing harassmentto occurwas

G NLV'Sstandardoperating procedure.

11

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 12 of 14

1 ofthese alleged victim s to repod the harassm entto supervisors orHum an Resources is

2 significantbecause it reveals that,in m any ofthese instances,G NLV was notgiven an

3 opportunityto respondto anyallegedly harassing behavior.These undisputed factsweaken

4 the EEOC'S contention thatGNLV allowed orfostered a hostile work environm enton a

5 w idespread orsystem atic basis.

6

Additionally,ofthealleged instancesw heretheclaim antsdid complain,theundisputed

7 evidence showsthatGNLV tookaction.Forexam ple,Royaladm itsthatinseveralinstances

8 where custom ers m ade racialcom m entsin his presence,he repoded those incidentsto his

9 supew isors,and the supewisors eitherasked the custom erto leave,called security,or

10 monitoredRoyal'stable.sLd= Ex.15,184-98,207,211-13,284,288.Blakeadm itsthatwhen

l1 she reported to her supervisorthe fullextent of the sexually inappropriate language a

l2 customerusedtowardsher,the supervisorcametohertable and stoodwatch,afterw hichthe

13 custom errefrainedfrom m akingsuch com m ents.Ld=.Ex.23,93-94.Finally,astoHunter,she

14 adm itsthatafterreportinganincidentwhereacustom erreferredto anotherAfrican-Am erican

l5 custom erasa 'lm onkey,''the supervisorgave thatcustom era bad rating..$-.Ex.24,96-97.
16 Again,these undisputed facts furtherserve to weaken the EEOC'S contention thatG NLV

l7 createdaperm issiveworkplacebyregularlyfailingtorespondproperlytoallegedharassm ent.

1 8

Finally,the Coud notes thatataIIrelevanttim es,G NLV has had a facially valid anti-

19 discrim ination policy,which it distributed to its em ployees. Fudherm ore,it ensured its

20 supervisorsandem ployeesreceivedspecifictrainingonitsanti-discrim inationandharassm ent

21 policies. The policy is specific and detailed and provides potentialclaim ants w ith m ultiple

22

23

5The EEOC argued initsOpposition and atthe hearing thatthe customers'use ofthei'n-word''alone

showsthattheharassmentthatallegedlytookplaceatGNLV wassevere.(Pl.'sOpp'n(#89)17).ThisCoud 24 recognizesthatthisparticularracialslurishighlyoffensiveanddemeaning,and,inthewordsoftheNinthCircuit,

is'perhapsthe mostoffensive and inflam matoryracialslurin English...aword expressive ofracialhatred and

25 bigotry.' McGinestv.GTE SewiceCorp,,360F.3d1103,1116(9thCir.2004).Royaladmitsthatonseveral

occasions when customers used this word,he reported the conductto his supervisorswho then asked the

26 customerstoleave.See(Def.'sMot.(#61)Ex.15,165-69 284-85.lnseveralotherinstanceswherecustomers usedtheword,Royaldidnotreportthecom mentstoanyone..1.j.at171-71,232.RoyaltestifiedthatinJune2002,
27 onecustomerdirectedthisepithetatRoyalwhileathistable.(EEOC ExhibitsinSupportofOpp'n(#78-2)Ex.A, 219-221).Royalthencalledhissupervisortothetabfeandthecustomerleft.Ld=.at221.However.Royalfeltthe

28 situationwashandledinappropriatelybecausethecustomerwasnotejectedfrom thecasino..$=.at222.W hile

thisCourtagreesthattheseinstancesofcustomerharassmentwere cedainlysevereand abusive,theseverity

oftheseinstancesalonedoesnotestablishGNLV'Spatternorpracticeoftoleratingharassm ent,padiculariywhere

itrespandedpromptlyand effectivelyinm ostcases

1 2

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 13 of 14
avenues to repod harassm entordiscrim ination by coworkers,supervisors and custom ers
1
alike. This undisputed fact also weighs against a finding that itwas GNLV'S standard
2
operating procedure totolerate harassm entam ong itsworkforce. 3
Giventhattheuniverseofpossibleclaim antsinthiscaseisIim itedtosix,andgiventhat
4
the universe ofpossible incidentsthe EEO C m ayuseto supportitspattern-or-practice claim
5
is Iim ited by the claimants'failures to repod orby G NLV'S corrective action, this Court
6 concludesthatthe EEO C has notshown thatthere isa genuine issue ofm aterialfactasto
7
w hethera pattern or practice of retaiiation orhostile work environm entsexualor racial
8
harassment existed at G NLV. Based upon the record presently before the Court, a 9
reasonablejurycouldnotfindthatitwasGNLV'Sstandard operating proceduretotolerate
l O
harassm entortoretaliateagainstem ployeeswhocom plained.The EEOC haspresentedthe
11
Courtwith anecdotalevidence thatsom e ofG NLV'S custom ers and em ployees behaved
l 2
inappropriately,andthatsom e supew isorsm ayhaveoccasionallyfailedtodealappropriately
1 3
w ith em ployee com piaints ofharassm ent. However,the EEOC has presented insufficient
14
evidence to show thatthiswasthe dregularratherthan the unusualpractice.''Evenview ing
1 5
aIIthe evidence in the Iightm ostfavorable to the EEOC ,the Coud cannotfind thatthese
1 6 relativelyfew instancesofalleged harassmentduringtherelevanttim eperiodshow thatthere
1 7
was so m uch harassm ent and retaliation thatG NLV m ust have been tolerating it on a
1 8
widespreadbasis.Inaddition,the undisputedfactsdonotsuppodtheEEO C'Scontentionthat 1 9
GNLV knew orshouldhaveknow nthatregularorsystem aticharassm entwasoccurringorthat 20
itrepeatedlytookinadequatestepstoaddressanyproblem s.Accordingly,G NLV'SM otionfor
2 l
SummaryJudgmentonPlaintil EEOC'SPatternorPractice Claim (#61)isgranted.
22
Because the Courtgrants G NLV'S M otion forSum m ary Judgm enton the EEOC'S
23
pattern-or-practice claim,GNLV'S motions forsummaryjudgmentregarding the issue of
24
punitivedam agesandregardingthe meritsoftheindividualclassm em bers'claim slnavebeen
25
rendered m ootand the Coud willnotaddressthem here. See Team sters,431 U.S.at361 26
(stating,'ithe question ofindividualreliefdoes notarise untilithas been proved thatthe
2 7
employerhasfollowed anemploymentpoiicyofunlawfuldiscriminationo). In addition,the
28
EEOC'Smotionforsumm aryjudgmentregardingvariousaffirmativedefenseshasalscbeen
13

Case 2:06-cv-01225-RCJ-PAL Document 110 Filed 06/02/09 Page 14 of 14

1 rendered m ootandthe Courtw illnotaddressithere.

2

IV .CONCLUSION

3

IT IS HEREBY O RDERED thatPlaintiffEEOC'S M otion to Strike AffidavitofPhilip

4 Bouthillier,Portion'sofDefendant'sMotionforsum m aryludgm entonPlaintiffEEo c'sPattern

5 orPractice Claim ,Exhibit'sRelating to Philip Bouthillier'sAfhdavit,and Purpoded Numerical

6 Anafysis(#106)isDENIED.

7

IT IS FURTHER ORDERED thatDefendantGNLV'SM otionforSum m aryludgm enton

8 PlaintiffEEOC'SPatternorPracticeClaim (#61)isGRANTED.

9

IT IS FURTHER O RDERED thatDefendantG NLV'SM otionforSum m aryludgm enton

10 the IssueofPunitive Damages(#62)isDENIED asmoot.

11

IT IS FURTHER ORDERED thatDefendantGNLVY MotionsforSum m aly Judgment

12 Regardingthe MeritsoftheIndividualClaimants(#63,64,65,66,68,69,70)areDENIED as

l3 m oot.

14

IT IS FURTHER O RDERED thatPlaintiffEEOC'S Motion forSum m aryJudgm enton

15 Defendant'sFirst,Second,Third,Fourth,Seventh,Ninth,Tenth,Eleventh,Twelfth,Thideenth,

16 Foudeenth,Sixteenth,Twentieth,andTwenty-firstAffirmativeDefenses(#67)isDENIED as

17 m oot.

1 8

The Clerkofthe CourtshallenterJudgmentin favorofDefendantG NLV and against

19 PlaintiffEEOC accordingly.

20

DATED:This 2nd dayofJune,2009.

2 l

22

23

UNITED STATES DISTRICT JUDG E

24

25

26

27

28

14

 
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Case 2:06-cv-01225-RCJ-PAL

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DISTRICT O F NEVA DA

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9 U.S.EQUALEMPLOYMENT OPPORTUNITY COMMISSION,

10

Plaintiff,

l l

v.

12 GNLVCORP.,

13

Defendant,

14

1 5

'

) 2:O6-CV-O1225-RCJ-(PAL) )
y ORDER
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k y j

16

OnJune2,2009,thisCourtgranted summaryjudgmentforDefendantGNLV Corp,

17 ('Defendanr). OnJune 12,2009,Defendantfileda billofcosts. (BiII(//112)). Because

18 PlaintiffU.S.EqualEmploymentOppodunityCommission t''plaintiff'lobjectedtothebillof

19 costs,theCourttreatsDefendant'sBillofCosts(#112)asamotionandPlaintiff'sObjection

20 totheBillofCosts(#113)asaresponse.SeeLocalRule54-13(b)(3).W iththeCourt'sIeave,

21 Defendantfiledareply(#116).TheCoudheldahearingonApril26,2010.TheCoudnow

22 issuesthefollowingorder.IT IS HEREBY ORDERED thatDefendant'sBillofCosts(#112)

23 isG RANTED IN PART AND DENIED IN PART and costsshallbetaxed againstPlaintifffor

24 $14,681,25.

25

1. BAC KG RO U ND

26

On Septem ber29,2006,PlaintiffU.S.EqualEm ploymentOpportunity Com m ission,

27 t'iplaintiff''l,filedsuitagainstDefendantGNLV Corp.,(''Defendantn),allegingviolationsofTitle 28 VllaftheCivilRightsActcf1964.(Compl.(//1)).PlaintiffallegedthatDefendantsubjected

1

Case 2:06-cv-01225-RCJ-PAL Document 135 Filed 05/24/10 Page 2 of 10

1 its Blackand fem ale em ployeesto a hostile work environm entbased on race and sexthrough

2 intimidation,racialepithets,sexualadvances,andabusivecomments.(/d.at!r9).OnJune

3 2,2009,thisCoudgranted Defendant'smotionforsummaryjudgmentandtheClerkofthe

4 CourtenteredjudgmentforDefendant.(Order(#110).,Judgment(#111)).

5

On June 12,2009,Defendantfiled a billofcosts. (Bil1(#112)). The billofcosts

6 requestedtheclerktotaxthefollowingcosts:(1)$878.00forfeesforserviceofsummonsand 7 subpoenas,(2)$29,750.15forfeesofthecoul'treporterfortranscriptsnecessarilyobtained,

8 and(3)$270.00forfeesforwitnesses.(/d.).GNLV requested$30,898,15intotal.(/d.).

9

1I.LEGAL STANDARD

10

d'U nlessafederalstatute,these rules,oracourtorderprovidesotherwise,costs--other

1l than attorney'sfees- should be allow ed to the prevailing party.Butcosts againstthe United

12 States,its officers,and its agencies m aybe im posed only to the extentallow ed by law .' Fed.

13 R.Civ.P.54(d)(1)',seealsoLocalRule54-1(a)('iunlessotherwiseorderedbythecourt,the

14 prevailing partyshallbe entitled to reasonable costs.''). In Title VIIactions,S'the (Equal

15 EmploymentOppodunity)CommissionandtheUnitedStatesshallbeIiableforcoststhesame

16 asaprivateperson.''42U.S.C.j200Oe-5(k).

17

There is a presum ption in favorofaw arding costs,butthe districtcourtm ay refuse an

18 awardofcostsatitsdiscretion,Assb ofMexican-Am erican Educators7.California,231F.3d

19 572,591 (9th Cir.2000). 'Thatdiscretion is notunlimited. A districtcoud must''specify
20 reasons''foritsrefusaltoawardcosts,'/d,Thefollowingreasonsareappropriatefordenying

21 costs:(1)theIosingparty'sIimitedfinancialresources;(2)misconductbytheprevailingparty;

22 (3)thechillingeffectofawardingcostsonfutureIitigants',(4)thecomplexityandclosenessof

23 thecase;(4)thenominalorpartialnatureoftheprevailingpady'srecovery;(5)thegoodfaith

24 ofthe losing party;(6)the public importance ofthe issue, See id.at591-93 & n.15

25 (aggregatedfrom thecourt'sownholdinganditsexaminationofNinthCircuitholdings,other

26 circuitholdings,andSeventhCircuitdicta).Inessence,thedistrictcourtmustexplainwhythe

27 caseisextraordinaryinordertojustifyrefusaltoawardcosts.Id.at593.

28 ///

2

Case 2:06-cv-01225-RCJ-PAL Document 135 Filed 05/24/10 Page 3 of 10

l

''Everybillofcostsand disbursem entsshallbeverified and distinctlysetforth eachitem

2 so thatits nature can be readily understood, The billofcosts shallstate thatthe item s are

3 correctand thatthe servicesand disbursem ents have beenactuallyand necessarilyprovided

4 and m ade.An item ization and,where available,docum entation of requested costs in a1I

5 categoriesmustbeattachedtothebillofcosts.''LocalRule54-1(b).Thepartyseekingcosts
6 bears the burden ofproving the am ountofcom pensable costs.A llison v.Bank O ne-Denver,

7 289F.3d 1223,1248-49(10thCir.2002).

8

111. A NALY SIS

9 A . Aw ard ofcosts

1 0

Plaintiffasks the Coud to deny Defendant's claim forcosts in its totality because the

11 case w as com plex and close and because an aw ard ofcosts would be againstthe interests

12 ofjusticeandpublicpolicy,(PI.'sObj.(#113)2:4-10).Plaintiffarguesthatitfiledthesuitto

13 vindicate the im podantpublic interestin eradicating workplace discrim ination and thatthe

14 chilling effectofan aw ard ofcosts and the closenessand com plexity ofthe case favorrefusal

15 toawardcosts.(Id.at5:18-8:24).Plaintiff'srelymainlyonthegeneralpurposeofTitleVII
16 and Plaintiff's role in enforcing it. Ifthe Courtwere to acceptPlaintiff's argum ents regarding

17 public im portance and the chilling effectofan aw ard ofcosts,Plaintifïw ould neverpay costs

18 foranyactionitbringsunless,possibly,iftheactionwasfrivolousorbroughtinbadfaith.In

19 any suitby PlaintiffforTitle V IIviolations,the sam e public im portance and chilling effect

20 elem ents are present. However,Congress clearly contem plated thatPlaintiffw ould be liable

21 forcostsinunsuccessfulactions.See42U.S.C j2000e-5(k).

22

Plaintiff has not established that this case is extraordinary in its com plexity or

23 closeness. InAssociation ofM exican-Am erican Educators,the Ninth Circuitfound a suitby

24 educators againstthe State of California thatim plicated the state's educators and public

25 education system to be extraordinarilycom plex and im podant.231 F.3d at593, Inthis case,

26 Plaintiffsueda single em ployerforallegedviolationsatasinglehoteland casino.

27 ///

28 ///

3

Case 2:06-cv-01225-RCJ-PAL Document 135 Filed 05/24/10 Page 4 of 10

1

Finally,thiscase involvesenforcementbyagovernm entagency,notaprivate Iitigant

2 oflimitedfinancialm eans.Considerationsofthefinancialstatusofthe partiesortheam ount

3 oftheaward do notfavorrefusingto award costs,

4 B. Proceduraldefects in billofcosts

5

Plaintiffalso argues thatDefendant's billofcosts mustbe rejected forfailure to

6 specificallyitemize and identify costs, (PI.'s Obj.(#113)2:11-20). However,Defendant
7 attached item izationsofitscostsand docum entssuppoding the costs in itsattachm entsto its

8 billofcosts, This complies with LocalRule 54-1(b). ln fact,Plainti; has used the
9 docum entation supporting Defendant's billofcoststo challengethe appropriateness ofsom e 10 ofthose costs. This is a strong indication that Defendant's item izations and supporting 11 docum ents are fulfilling theirfunction- to give the opposing party a chance to review and

12 challenge claim ed costs.

13 C. Defendantis entitled to $14,681.25 in costs.

14

Defendantisentitledto $13,533.25indepositioncosts.

15

a. The depositions w ere necessarily obtained.

16

''A judgeorclerkofanycourtoftheUnitedStatesmaytaxascosts.,.(fleesforprinted

17 orelectronicallyrecordedtranscriptsnecessarilyobtainedforuseinthe case ....''28U.S.C.

18 j 192042). Notably,thedepositionsmustbenecpssarilyobtainadforuseinthecase,notfor

19 useattrial.SeeHorningv.W ashoeCounty,1O8F.R.D.364,366(D.Nev.1985).And,under

20 thisCourt'sIocalrules,''Itlhecostofadepositiontranscript(eithertheoriginaloracopy,but

21 notboth)istaxablewhethertakensolelyfordiscoveryorforuse attrial.''LocalRules54-4

22 (emphasisadded).''Actualintroductionoradmissionintoevidenceattrialisnotaprerequisite

23 forallowance,''W om en'sFed.Satt & LoanAss'nv.Nevada Nat'lBank,1O8 F.R.D.396,398

24 (D.Nev1985).''lfadepositionisnecessaryforaparty'spreparationfortrial,itscostsmaybe
25 taxed,''Id.'d-rhatisnottrue where the deposition w astaken m erelyforthe convenience ofthe 26 attorney.''/d.dd-rhe determ ination ofnecessityismade inIightofthefactsknownatthetime

27 28

4

Case 2:06-cv-01225-RCJ-PAL Document 135 Filed 05/24/10 Page 5 of 10

1 ofthe deposition.' /d.1

2

Defendantdid notuse the depositionsofmedicaldoctors Thom pson,Manjooran,or

3 Sohrinsuppor'tofitsmotionforsummaryjudgment.Plaintiffcontendsthattheirdepositions

4 were unnecessarybecause itdid notintend to callany physicians in itscase in chiefand only

5 soughtdam agesfor'garden-variety em otionaldistress underTitle Vtlas opposed to severe

6 emotionaldistress.''(PI.'sObj,(#113)11:11-16),But,Plaintiffsoughtd'medicalexpensesnot

7 coveredbythe(Defendant'slemployeebenefitplan''aswellascompensationfor''emotional

8 pain,suffering,inconvenience,IossofenjoymentofIife,andhumiliation.''(Compl.(#1)$11D,

9 E),Defendantscontenditwasreasonablynecessarytodeposethedoctorsofthealleged
10 victim s ofthe hostile w ork environm entto determ ine the extentofthe victim 's physicaland

11 mentalsufferingandwhethersuchsufferingcouldbeduetootherstressors.(Def,'sReply

12 (#116)8:7:17-8:26),

13

Plaintiffcites severalcasesin supportofitsproposition thatDefendantdid notneed to

14 depose these doctors because itonly m ade claim s for''garden-variety em otionaldistress,'

15 (Pl.'sObj.(#113)11:23-12:3), These cases are inapposite as they aIIinvolvethe strict

16 standard under Rule 35 ofthe FederalRules ofCivilProcedure forcom pelling a party to

17 submittoamentalexamination.SeeSchlagenhaufv.Holder,379U,S.104,118-20(1964)

18 (holdingthat,underRule35,amovantseekingtocompelamentalorphysicalexamination

19 ofanotherpady m ustshow good cause and thatthe otherpady puthis m entalorphysical

20 conditionincontroversyl;O'Sullivan v.Minn.,176 F.R.D.325,327(D,Minn.1997)(holding

21 thatplaintiffdid notputherm entalcondition in controversy to com pelm entalexam ination

22 underRule 35 by alleging she suffered m entalanguish,em barrassm entand hum iliation,or

23

24

:PlaintiffnotesthattheNinthCircjithasstated:''Ifthedepositionswerem erelyuseful

fordiscoverythentheyw ere nottaxable Item sand theirexpense should have been borne by

25 26

t&Nhriesntp.hasCrtteiyrect/auCiktiohnregpldt.h,te3h2ma2t,taFhse.2idndec6pid5oe6sn,itti6ao7ln8tso(inn9otqhrumCeasirlt,ipo1rne9w6pa3er)ra.etiTporhnoispfoewrrltayrsitaadlx.nicetdIan,bdheeocpwa.ueIrsvoeenrth?WeboeIorckwasue,srIneccot.uh7er,t

had held so aftera hearingand thetranscriptofthe hearingw as noton the recordso the Ninth

27 Circuithad nq basisto review the Iolercourt'sdecision.Id. Furtherm ore,the Ninth Circuit

noted thattaxlng costs forthe deposltlons m ighthave been properbecause,though som e of

28 the depojitions were notintroduced,they mighthave been ifthe issue ofdamages was

actually trled. Id.

5

Case 2:06-cv-01225-RCJ-PAL Document 135 Filed 05/24/10 Page 6 of 10

1 emotionaldistressbutnotclaimingadiagnosable medicalorpsychologicalconditionl;Lahr 2 v.Fulbright&Jaworski,L.L.P.,164F.R.D.204,210-11(N,D,Tex.1996)(holdingthatplaintiff

3 put her m entalcondition in controversy for a com pelled exam ination under Rule 35 by

4 asserting a claim forintentionalinfliction ofem otionaldistress,butnotby alleging dam ages

5 ofemotionaldistressfrom ahostileworkenvironmentl;Smith$/.J,/,CaseCorp.,163F.R.D.

6 229,231 (E.D.Pa.1995)(holdingthata'claim ofembarrassment,withoutmore,doesnot 7 placeplaintiff'smentalcondition'incontroversy'withinthemeaningof(RuIe)35,anditisnot

8 'good cause'forrequiringplaintifftosubmittosixhourpsychiatricexamination.''l',Turnerl/. 9 ImperialStores,161F,R,D,89,98(S.D.Cal.1995)(holdingthatplaintiffdidnotplace her
10 m entalcondition in controversy by claim ing dam ages forhum iliation,m entalanguish,and

l1 emotionaldistressalleged to have resulted from discrimination underRule 35). Because
12 Plaintiffsoughtdam ages form entalanguish,the source and extentofthe alleged victim s'

13 m entalsufferingw as atissue.Defendantreasonablyfound depositionsofthealleged victim s'

14 doctors necessary.

15

b. Defendantis entitled to $11,578.25fortranscripts ofdepositions it

16

conducted.

17

''Thecostofadepositiontranscript(eithertheoriginaloracopy,butnotboth)istaxable

18 whethertaken solelyfordiscovery orforuse attrial.'' LocalRule 54-4. Defendant's invoices

19 containchargesforbothoriginalsandcedifiedcopiesoftranscripts.(SeeBillofCosts(#112)

20 Attachment2),Defendantshavenow filedanaffidavitstatingthatPrestigeCoud Reporting
21 provides a cedified copy ofan originaltranscriptatno extra charge so thatthe totalcharged

22 ontheinvoicesforanoriginalandacertifiedcopyisthesameastheamountchargedforjust

23 theoriginal.(Def.'sReply(#116)Ex,1at!14).However,oneofthedepositionsconducted
24 by Defendantwas notdone through Prestige CourtReporting, The Septem ber 19,2008

25 deposition ofW illiam EricSohr,M ,D ,w asconducted byM eritRepoding & V ideo and charged

26 Defendantforan originaland a certified copyofthe deposition. (BiI1ofCosts(#112)at

27 Attachment2 part2at4),Because thereisnoindicationthatthe$666.75charged isthe
28 sam easthe price foran originalalone,the Courtwillalsow alIthe deposition transcriptfees

6

Case 2:06-cv-01225-RCJ-PAL Document 135 Filed 05/24/10 Page 7 of 10

1 chargedbyDefendantIess$666.75.Thus,Defendantisentitledto$11,578,25fortheoriginal

2 depositiontranscriptsitobtainedfrom depositionsitconducted.

3

c. Defendant'scostsforrealtim ehookupsand realtim epagesare not

4

taxable.

5

Forthe depositionsconducted byDefendant,Defendantincludessubtotalsfor'Real

6 time hookup''and''Retained realtime Pages,''(See BillofCosts(#112)atAttachment2).
7 ThisCoud'sIocalrulesdonotprovidefortaxingofcostsforrealtimetranscription.SeeLocal

8 Rule54-4.Real-tim etranscriptioncostsarenottaxable unlesstheyarenecessary,Maurice

9 MitchellInnovations,L.P.t/.IntelCorp.,491 F.Supp.2d 684,688 (E.D.Tex.2007).

10 Defendantnotes thatreal-tim e transcription allow s both parties to operate m ore efficiently.

l1 (Def.'sReply(#116)6n.1),Defendantcontendsthatreal-timetranscriptionisconvenient,but
12 notthatitwasnecessary.Defendanthasnotsuggested a needforexpeditedtranscription.

13 Therefore,Defendantis notentitled to costsforreal-tim e hookups and transcripts.

14

d. Defendantis entitled to $1,955.00 fordeposition reporterfees.

15

Plaintiflcontends thatwithoutm ore detail,itcannotdetermine ifthe $2,320.00 in

16 appearancefeesforthe depositionreporterarereasonable. (PI,'sObj.(#113)13:19-24).
17 'The reasonable expenses ofa deposition repoderand the notar'y orotherofficialpresiding

18 atthedepositionaretaxable,includingtravel,wherenecessary,andsubsistence.''LocalRule

19 54-4.Defendantpaidareporterforfifteendepositions.(BilIofCosts(#112)atAttachment 20 2pad 1at2-W). Tenwerefull-daydepositionschargedat$160aday.Fourwerehalf-day 21 depositionschargedat$8Oaday.Onewasa half-daydepositionchargedat$35aday,ln 22 total,$1,955.00 ofDefendant's alleged deposition costs were due to appearance by the

23 reporter.(BiIIofCosts(#112)atAttachment2),

24

Ratherthanargue thatthesecostsareunreasonable,PlaintiffcontendsitIacksenough

25 inform ation to m ake thatdeterm ination. ButPlaintiffdoes notsuggestw hatotherinform ation

26 isneeded.Plainti; hasthe rateschargedforeachdeposition.IfPlaintiffbelievesthatthese

27 ratesareexcessive,itmaysoargue.Butithasnot.Therefore,Defendant'scostsforreporter

28 ///

7

Case 2:06-cv-01225-RCJ-PAL Document 135 Filed 05/24/10 Page 8 of 10

1 fees are reasonable and should stand. Defendantis entitled to $1,955,00 fordeposition

2 repoderfees.

3

e. Defendant's costs forcopies ofdeposition exhibits are nottaxable.

4

Plaintiffassertsthatcostsforexhibitsindepositionsarenottaxable.(PI.'sObj,(#113)

5 12:12-22). TheIocalrulesdo notmentionexhibitsto depositions. See LocalRule 54-4.

6 ''Copyingcostsarerecoverableunderj192044)ifthecopieswerenecessarilyobtainedfor 7 useinthecase.''RobinsonttAlutiq-Mele,LLC,643F.Supp.2d1342,1354(S.D.Fla.2009).
8 ''The prevailing partycannotrecoverforcopiesm ade merelyforcounsel'sconvenienceand

9 the burden rests on the prevailing parly to show the requested costs are recoverable.'' Id.

10 d'Islinceneitherpartyhasdemonstratedhow theseexhibitswereusedinthedepositions,and 11 neithertheIocalrulesnor28U.S.C.j1920explicitlyprovideforthecostsassociatedwiththe
12 reproduction ofexhibits fordepositions,the courl declines to award these costs.'' Belle.

13 ColumbiaSt.Mary's,Inc.,No.O7-CV-81,2009W L959637,*3(E.D.W is.April8,2009).

14

f. Defendant'scostsforshippingandhandlingofdepositionm aterials

15

are nottaxable.

1 6

The Iocal rules only allow shipping and handling costs for court-ordered filings of

17 depositions.LocalRule 54-5.Section 1920 does notallow forshipping and handling costs.

18 'Shipping and handling charges by the stenographerare nottaxable.'' Robinson v,Alutiq-

19 Mele,LLC,643 F.Supp.2d 1342,1354 (S,D,Fla.2009),.see alsoE.E.O.C.v.Con-Way

20 Freight,Inc.,No,4:07-CV-1638,2010W L577289,at*2 (E.D,Mo.Feb,11,2010).,AvilaB.

21 WillitsEnvl,No,C 99-03941,2009W L4254367,at*6(N.D,Cal.Nov.24,2009).Therefore,
22 Defendantis notentitled to costs forshipping and handling.

23

g. Defendant's costs fora w itness signatures are nottaxable.

24

Signature procurem entis an ordinary business expense and signature procurem ent

25 fees are nottaxable. M enasha Corp.v.NewsA m erica M ktg.Instore,Inc.,No.00 C 1895,

26 2003W L21788989,at*1-3(N.D.111.July31,2003),

27

h. Defendant's costs forJiproduction''are nottaxable.

28

The costofproduction ofdeposition transcripts is taxable. LocalRule 54-4. But,it

8

Case 2:06-cv-01225-RCJ-PAL Document 135 Filed 05/24/10 Page 9 of 10

l is notclearw hatDefendant's charge ford'Production''refers to. (SeeBillofCosts(#112)at 2 Attachment2part2at4).Totheextentitreferstoproductionofexhibitcopies,mini
3 transcript,orCDs,itis nottaxable.Defendantbearstheburden ofestablishing its

4 entitlem entto costs. Therefore,Defendantisnotentitled to $15.00forproduction.

5

i. Defendanthas failed to establish its costs forordering transcripts

6

from depositions conducted by Plaintiff.

7

Forthe depositions conducted by Plaintiff,Defendantincludes single totals foreach

8 deposition. The descriptions ofservices forthese totals include ''Copy Regular,''d'M iniCopy

9 Regular,'''Black& W hite Exhibitsp'''ASC IIDisk/CD ,''Read & Sign Letter,''Photocopies,''and

10 ''Shipping&Handlingr''(See BillofCosts(#112)atAttachment2).Plaintiffassedsthatthese

1l costsarenottaxable,(PI.'sObj.(#113)9:15-22).Asdiscussedabove,Defendantisentitled
12 to costsfora copy ofthe deposition transcripts,butnotm inicopies,exhibitcopies,signature 13 fees,orshipping and handling. Costs forASC IIdiscs oftranscripts are nottaxable unless

14 Defendantshow s they are necessary, M aurice M itchellInnovations,L.P.v.IntelCorp.,491

15 F.Supp.2d684,688(E.D.Tex.2007).Norarecostsforphotocopieswithoutashowingof

16 necessity.28U.S.C.j192044).Defendanthasnotshownanyoftheseitemizedcoststobe
17 necessary. Defendanthas onlyprovided totalcosts,notsubtotalsforthe individualservices.

18 The Coud cannotdetermine how much Defendant's incurred solelyto obtain copies ofthe

19 deposition transcripts, Therefore, Defendant is not entitled to costs stem m ing from

20 depositions conducted by Plaintiff.

21

2. Defendantisentitledto$270.00inwitnessfees.

22

'The rate forwitnessfees,m ileage,andsubsistence are fixed bystatute (see

23 28U.S.C,1821).Suchfeesaretaxableeventhoughthewitnessdidnottestifyifitisshown
24 thatthe attendance w as necessary,butifa w itness is notused,the presum ption is thatthe

25 attendancewasunnecessary.'LocalRule54-5(a).Defendantsdidnotusemedicaldoctors

26 SohrandThompson'stestimonyinitsmotionforsummaryjudgmentbutincluded$45.00for
27 each oftheirattendance in its billofcosts. How ever,as discussed above,these w itnesses

28 weredeposed.''Feesforthewitnessatthetakingofadepositionaretaxableatthesamerate

9

Case 2:06-cv-01225-RCJ-PAL Document 135 Filed 05/24/10 Page 10 of 10

1 asforattendance attrial.''LocalRule 54-4.Plaintiffdoesnotdisputethatthese witnesses

2 attended depositions. Thus,the w itness fees are proper.

3

3. Defendantisentitledto $878.00 in service fees.

4

Plaintiffarguesthatthe feesforservice ofsubpoenason m edicaldoctorsThom pson

5 and Manjooranshouldnotbaincludedinthebillofcostsbpcausethedepositionsofthese 6 witnesseswasunnecessary,(PI.'sObj.(#113)14:9-18).Asdiscussedabove,depositionof
7 these witnesses was reasonably necessary atthe time. Therefore,Defendantproperly

8 included service feesforservingsubpoenasonthesewitnessesinitsbillofcosts.

9

IV. CO NC LUSIO N

10

Accordingly,IT IS ORDERED thatDefendant'sBillofCosts(#112)isGRANTED IN

11 PART AND DENIED IN PART.

12

IT IS FURTHER ORDERED thatcostsshallbe taxedagainstPlajntifffor$14,681.25.

13

The Clerk ofthe Courtshalltax costs accordingly.

14 DATED:ThisSp1XJ dayofMay,2010.

1 5

1 6

1 7

o ertê.Jo -

18

UNITED ST T S DISTRICT JUDGE

19 20 21 22 23 24 25 26 27 28

10

 
 Case 2:06-cv-01225-RCJ-PAL Document 137 Filed 04/19/11 Page 1 of 4
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

APR 18 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant,
v.
GNLV CORPORATION, DBA Golden Nugget Hotel and Casino,
Defendant - Appellee.

No. 09-16640 D.C. No. 2:06-cv-01225-BES-PAL
MEMORANDUM*

Appeal from the United States District Court for the District of Nevada
Brian E. Sandoval, District Judge, Presiding
Argued and Submitted February 14, 2011 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Case 2:06-cv-01225-RCJ-PAL Document 137 Filed 04/19/11 Page 2 of 4
Before: TALLMAN and BEA**, Circuit Judges, and TARNOW, Senior District Judge.***
The Equal Employment Opportunity Commission (EEOC) appeals the district court’s dismissal of six individual class members’ employment discrimination claims against GNLV Corporation following a grant of summary judgment in favor of GNLV on EEOC’s pattern-or-practice claim. EEOC also appeals the district court’s prior order striking as untimely the inclusion of four additional class members and precluding the addition of new class members. Because the parties are familiar with the general facts of the case, we do not repeat them here.
A judgment in favor of an employer on a classwide pattern-or-practice claim does not preclude class members from bringing individual discrimination claims. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 878 (1984). Thus, the district court erred in dismissing the six class members’ individual claims. We
** Due to the death of the Honorable David R. Thompson, the Honorable Carlos T. Bea, United States Circuit Judge for the Ninth Circuit, has been drawn to replace him on this panel. Judge Bea has read the briefs, reviewed the record, and listened to the audio recording of oral argument held on February 14, 2011.
*** The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.
2

Case 2:06-cv-01225-RCJ-PAL Document 137 Filed 04/19/11 Page 3 of 4
reverse and remand to allow the district court to consider whether summary judgment is appropriate as to any of the individual claims.
The district court did not abuse its discretion by striking the four class members EEOC identified in June 2008 and precluding the addition of new class members, regardless of whether those class members, as “claimants,” were subject to the August 24, 2007, deadline for adding “parties” to the lawsuit. See Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986) (reviewing for abuse of discretion a district court’s orders concerning discovery or leave to amend pleadings and add parties). We recognize that EEOC’s mandate to pursue discrimination claims may be furthered by expanding the scope of an existing lawsuit to include new claims discovered as a result of reasonable investigation. See Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 331 (1980). However, the interests of the defendant must also be considered. See id. at 333. At some point, the district court must close the universe of potential claims against the defendant so that discovery can be completed and the case can proceed to judgment. We cannot say that it was an abuse of discretion for the court to draw that line where it did, when the names of the four class members had been provided to EEOC over four years earlier, the new claims would require plaintiff-specific discovery, and less than ninety days remained until the discovery cut-off date.
3

Case 2:06-cv-01225-RCJ-PAL Document 137 Filed 04/19/11 Page 4 of 4
AFFIRMED in part, REVERSED and REMANDED in part. Each party to bear its own costs.
4

 
 Case 2:06-cv-01225-RCJ-PAL Document 160 Filed 12/18/14 Page 1 of 61

1

2

3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5

6 ______________________________________

)

7 U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

8

)

Plaintiff, 9
vs.

) ) ) )

10

)

GNLV CORP., d/b/a GOLDEN NUGGET )

11 HOTEL AND CASINO, and DOES 1–10, )

Inclusive,

)

12

)

Defendants.

)

13

Case No.: 2:06-cv-01225-RCJ-PAL ORDER

14

This employment discrimination case is on remand from the Ninth Circuit Court of

15 Appeals. Previously, this Court granted Defendant’s motion for summary judgment on

16 Plaintiff’s claims that Defendant harbored a pattern or practice of racial and sexual

17 discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). (ECF No.

18 110). Because it granted summary judgment in Defendant’s favor as to the pattern-or-practice

19 allegations, the Court found that the claims of the six individual employees were moot. (Id. at 4).

20 On appeal, the Ninth Circuit affirmed the pattern-or-practice ruling but held that the ruling

21 regarding the merits of the individual employees’ claims was in error, reasoning that “[a]

22 judgment in favor of an employer on a class-wide pattern-or-practice claim does not preclude

23 class members from bringing individual discrimination claims.” (Ninth Circuit Op. 2, ECF No.

24 137, at 2).

1 of 61

Case 2:06-cv-01225-RCJ-PAL Document 160 Filed 12/18/14 Page 2 of 61

1

The Court now rules on Defendant’s individual motions for summary judgment related to

2 the merits of each separate employee’s claims of racial or sexual discrimination. (ECF Nos. 63,

3 64, 65, 66, 68, 70). Also before the Court are the U.S. Equal Employment Opportunity

4 Commission’s (“EEOC”) responses to Defendant’s motions on behalf of each employee, (ECF

5 Nos. 78, 79, 81, 82, 83, 85), and Defendant’s replies to each of the EEOC’s responses, (ECF

6 Nos. 97, 98, 99, 102, 104, 105).

7 I. PROCEDURAL HISTORY AND FACTS

8

The procedural history of this case applies equally to each of the six individual employee

9 claimants. In September 2006, the EEOC sued Golden Nugget Las Vegas (“GNLV”) on behalf

10 of Robert Royal and a class of similarly situated individuals employed by GNLV on the basis of

11 racial and sexual harassment and retaliation under Title VII. The charging party, Royal, and

12 several other individuals allege that GNLV engaged in a pattern or practice of condoning and

13 tolerating racial and sexual harassment and retaliation directed at its employees. The EEOC’s

14 theory is that GNLV created and maintained a sexually and racially hostile work environment

15 because it tolerated individual acts of sexual and racial harassment both by its employees and by

16 customers. The EEOC also alleges that GNLV refused to take notice of, investigate, or discipline

17 workers or customers who subjected its employees to sexual or racial harassment. GNLV moved

18 for summary judgment on the pattern-or-practice allegations in December 2008, (ECF No. 61),

19 and Judge Brian E. Sandoval granted the motion. Judge Sandoval concluded that the EEOC

20 provided insufficient evidence that Royal and the other GNLV employees were subjected to a

21 general pattern or practice of harassment or discrimination, rendering the individual employees’

22 claims moot. (ECF No. 110). The Ninth Circuit agreed with the pattern-or-practice ruling but

23 disagreed that the individual employees’ claims were moot and remanded the case so that this

24 Court could determine whether to grant summary judgment as to the individual employees’

2 of 61

Case 2:06-cv-01225-RCJ-PAL Document 160 Filed 12/18/14 Page 3 of 61

1 claims. The individual employees allege various instances of employment discrimination that the

2 Court will now summarize.

3

A. Robert Royal

4

Royal, an African-American, was hired to work at the Golden Nugget as a games dealer

5 in September of 1998. (Royal Dep. 66:22–25, May 7, 2008, ECF No. 76-2) (“VI Royal Dep.”).

6 He remained employed there until February 2008 when he voluntarily left to attend barber school

7 in Arizona. (Royal Dep. 99:22–100:12, May 8, 2008, ECF No. 76-21) (“VII Royal Dep.”).

8 Royal alleges that during his employment he was subjected to a hostile work environment arising

9 from racial discrimination and retaliation. Royal identifies certain incidents with customers,

10 co-workers, and supervisors that the EEOC argues are supportive of his allegations. In 1999, a

11 customer used the word “nigger” in Royal’s presence, although Royal is unsure whether it was

12 directed at him. (VI Royal Dep. 166:4–167:6). Royal reported the customer and the floor

13 manager on duty forced the customer to leave. (Id. at 169:3–10). Between 1999 and 2002, a

14 customer used the term “blackie” as he was leaving the table where Royal was dealing. (Id. at

15 171:12–172:14). However, Royal did not report this incident to any supervisor. (Id. at 172:15–

16 18). Royal also alleges that a customer once told him, “I’ll kick your black ass.” (Id. at 171:1,

17 182:10–18). The statement was made by a customer who was losing money in the game and was

18 leaving Royal’s table, and Royal did not report the incident to anyone. (Id. at 182:22–183:22).

19

Royal allegedly heard other egregious comments directed towards him by customers. In

20 2002, two white men were playing a three-card poker game at Royal’s table when one of the men

21 began talking about “playing craps with these two niggers . . . and them black son of bitches sure

22 could shoot some dice.” (Id. at 219:6–13). The man refused to apologize for his language and

23 Royal called his floor supervisor. (Id. at 219:21–25). While Royal was explaining what

24 happened to the floor supervisor, the men left the table and they did not play at Royal’s table

3 of 61

Case 2:06-cv-01225-RCJ-PAL Document 160 Filed 12/18/14 Page 4 of 61

1 again. (Id. at 221:1–22). Another incident stands out to Royal in which he was called vulgar

2 names by customers, including “cocksucker” and “nigger.” (Id. at 184:11–16). Royal estimates

3 that he heard the word “nigger” directed at him or others five to ten times during his employment

4 at GNLV. (Id. at 232:15–233:1).

5

Royal also alleges that his co-workers and supervisors used racially demeaning language.

6 In 2006, a co-worker told customers at Royal’s table on two different occasions that “once you

7 give it to a black, you’ll never get it back.” (Id. at 293:15–294:9). The co-worker would then

8 grab Royal’s buttocks. (Id. at 294:14–25). This incident was investigated by GNLV and the

9 co-worker was eventually terminated, though not solely for his actions against Royal. (Id. at

10 298:21–299:5). Royal claims that on two separate occasions, two different supervisors made the

11 comment to others that “all blacks look alike.” (Id. at 305:8–20). After the first occurrence,

12 Royal immediately reported the incident and Royal’s superiors addressed the issue by speaking

13 to the supervisor about his racial remarks. (Id. at 306:25–308:3). The second time a supervisor

14 made this remark Royal did not report the incident to anyone at GNLV. (Id. at 309:21–310:12).

15 Royal alleges that another supervisor made racial jokes on two different occasions, but that the

16 jokes were not about “blacks.” (Id. at 311:4–21). Royal did not report this incident either; he

17 believed it would not change the supervisor’s behavior. (Id. at 314:9–14).

18

Royal further alleges that the Golden Nugget retaliated against him. Royal submitted a

19 letter dated July 12, 2002 to GNLV’s Human Resources Manager regarding an incident during

20 which customers directed racial epithets at him. (Pl.’s Resp. to Def.’s First Set of Req. for

21 Admis. ¶ 16, ECF No. 63-2). Thereafter, the EEOC claims that Royal was subjected to a pattern

22 of disciplining that he felt was retaliatory, including Royal’s suspicions that GNLV was

23 encouraging customers to submit complaints about him. (VII Royal Dep. 47:17). The EEOC

24 also identifies a situation in which Royal was suspended for a day after calling a customer a

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1 vulgar name. (Id. at 82:9–16). Royal alleges that the suspension was an extreme measure,

2 though he does not remember any other dealer directing that particular type of vulgarity towards

3 a customer. (Id. at 82:13–25). Despite these allegations, Royal never experienced a pay decrease

4 or the denial of benefits, requests for time off, or requests for a leave of absence during his

5 employment at the Golden Nugget. (Id. at 91:8–92:15).

6

B. Susie Fein

7

GNLV hired Susie Fein in November 1999 as a blackjack dealer. (Fein Dep. 37:18–20,

8 38:18–20, May 12, 2008, ECF No. 76-34). Fein’s employment was terminated in September

9 2002. (Id. at 39:2–7). Fein complains that she suffered sexual harassment at GNLV and alleges

10 she was retaliated against for reporting the harassment.

11

Fein claims she suffered sexual harassment from Ray Allen, an employee at GNLV with

12 whom she previously had a personal relationship. (Id. at 48:22–49:14). Fein alleged that Allen

13 “stalked” her, “star[ed] her down” at work, left a note in her pocket, left flowers on her car and

14 “followed [her] around after work.” (Id.). When Fein initially reported Allen’s behavior to

15 supervisor Jimmy Threet, Threet confronted Allen. (Id. at 50:18–51:4). While Allen’s conduct

16 outside of work stopped, his staring at Fein during work continued. (Id. at 51:8–13, 54:7–17).

17 Fein alleges she complained again to Threet about Allen’s staring, but nothing was done. (Id. at

18 53:11–54:6). Fein was dissatisfied with the way Threet handled her complaint. (Id. at 48:21–24).

19

Fein alleges she was sexually harassed by supervisor Dave Tuttle through his actions of

20 touching her hair 20–30 times, inviting her to a cabin in Big Bear about five times, telling her

21 “how nice [she] looked,” and his “generally, just coming on to [her].” (Id. at 55:18–58:21). Fein

22 did not report Tuttle’s behavior to anyone. (Id. at 59:10–19).

23

Fein also claims that one customer, “Mr. Martini,” committed particularly bad acts of

24 sexual harassment. She alleges that he kissed her on the lips about 20 times. (Id. at 74:15–22,

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1 76:8–13). She is not sure any supervisors witnessed these incidents. (Id. at 76:18–22). Mr.

2 Martini also called Fein a “fucking cunt” about five times. (Id. at 77:1–7). Fein alleges that

3 supervisors Jimmy Threet overheard this comment at least once due to his close proximity to

4 Fein’s table. (Id. at 78:5–16). Fein also alleges that a supervisor named “Del” heard these

5 comments. (Id. at 79:15–24). Mr. Martini also called Fein a “fucking bitch” about 100–200

6 times. (Id. at 80:22–25). Fein alleges that supervisors Jimmy Threet, Allan Joseph, Bobby Plutte,

7 Robert Williamson, and Dave Tuttle heard these comments due to their proximity to Fein’s table.

8 (Id. at 81:9–82:16). Fein also claims that Robert Williamson addressed Mr. Martini’s comments

9 by instructing Fein to bring a tape recorder to work. (Id. at 85:7–15). Mr. Martini also, in a

10 “hostile” manner, slapped Fein’s hands from across the table. Fein further alleges that the same

11 supervisors witnessed this behavior (Id. at 87:18–88:10). Last, Fein alleges that Mr. Martini

12 threw cards at her on numerous occasions and believed her supervisors witnessed this conduct

13 because of their proximity to Fein’s workspace. (Id. at 94:1–13, 95:1–7).

14

Fein claims a customer named “Joe” called her a “fucking bitch” about 100 times. (Id. at

15 96:6–20, 97:11–13). Fein believes a supervisor named “Maurice” overheard these comments at

16 least more than once and “did nothing” about it. (Id. at 97:8–10). Fein also alleges Joe threw

17 cards at her about 25 times and believes her supervisors saw this conduct because of their

18 proximity to her workspace. (Id. at 98:2–4, 98:10–12, 98:25–99:3). Fein also alleges that Joe

19 would ask for dealers of certain ethnicities and gender, and that the supervisors would

20 accommodate these requests. (Id. at 99:12–16, 99:23–100:1).

21

A third customer, “Mr. Hello” allegedly called Fein a “fucking bitch” about 10 times. (Id.

22 at 101:14–16). Fein never sought assistance from her supervisors to address Mr. Hello’s

23 comments. (Id. at 101:17–20). Fein is not sure there were witnesses to Mr. Hello’s comments but

24 believes that her supervisors witnessed the conduct due to their proximity to her workspace. (Id.

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1 at 101:21–102:10). Mr. Hello also threw cards at her about 10 times. (Id. at 105:19–106:4). Fein

2 never reported these customers’ behavior to Human Resources or Employee Relations. (Id. at

3 105:19–106:4).

4

Prior to Fein’s termination in September 2002, she was reprimanded for attendance

5 issues. Fein received a verbal warning in July 2002, a written warning in August 2002, and a

6 one-day suspension in September 2002. (Id. at 108:21–109:11, 110:9–12, 111:14–23). At a due

7 process hearing on her attendance issues, Fein submitted a document that she drafted that said “I

8 love working at the Golden Nugget.” (Id. at 134:15–136:8). Fein also mentioned anxiety and

9 panic attacks she experienced at work at this hearing. (Id. at 136:12–15, 172:8–20). Fein was

10 thereafter terminated from employment at GNLV in September 2002. (Id. at 39:2–7).

11

Fein encountered Supervisor David Tuttle in 2007 and claims he encouraged her to

12 reapply for a position at GNLV. (Id. at 145:15–20). Fein claims she initiated the reapplication

13 process, yet was never contacted for employment at GNLV. (Id. at 146:7–148:4, 148:22–

14 149:21). Fein believes the reason she was not rehired was because of her participation in this

15 lawsuit. (Id. at 148:5–10).

16

C. Ervin Nixon, Jr.

17

GNLV hired Ervin Nixon, Jr. as a part-time table games dealer in November 2002. (Pl.’s

18 Resp. Req. Admis., Set Three, ECF No. 65-3, at 3). Nixon is African-American. (Nixon Decl.

19 ¶ 2, ECF No. 76-22). Nixon alleges he suffered racial discrimination and retaliation while

20 employed at GNLV.

21

Nixon first claims GNLV discriminated against him in the manner that work was

22 assigned and shifts were scheduled. Nixon claims GNLV’s casino department was segregated by

23 race, precluding Nixon from working in the Dice Pit. (Nixon Decl. ¶ 8). Nixon further claims

24 that other African-American dealers were not scheduled to work in the Dice Pit, a shift Nixon

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1 considered to be the “most sought after.” (Id.). Instead, Nixon worked at Table 25 for most of his

2 time employed by GNLV, an assignment Nixon considered undesirable. (Id. ¶ 9). In the spring of

3 2003, Nixon complained to the Casino Manager Tommy Newman that he believed he was being

4 discriminated against because he was black. (Id. ¶ 11). Nixon claims “nothing was done” in

5 response to his complaint. (Id.). In January 2004, Nixon made a verbal complaint to supervisors

6 Jack Brooks and Leonard Sina that only white dealers were assigned to work in the Dice Pit. (Id.

7 ¶ 26). Brooks only observed minorities working at Table 25. (Nixon Dep. 126:2–4, ECF No. 65-

8 2, at 22).

9

Nixon also complained to supervisors Leonard Sina and Art Fahey that other part-time

10 dealers with less seniority than Nixon received more shifts than him. (Nixon Decl. ¶ 12).

11 According to Nixon, “nothing was done” in response to his complaint. (Id.). In March 2003,

12 Nixon complained to Tommy Newman about Sina not scheduling Nixon for more hours. (Id.

13 ¶ 13). Nixon alleges that after he complained to Newman, Sina approached Nixon at Nixon’s

14 table and made physical contact with Nixon to nudge him out of the way. (Id. ¶). This contact

15 was accompanied by Sina telling Nixon that “because [Nixon] had complained about [Sina] to

16 Newman, [Sina] would make sure [Nixon] did not get any work days.” (Id.). Nixon alleges that

17 Sina continued to threaten Nixon for the rest of the year and assign him to Table 25 for “running

18 to Newman reporting Sina’s behavior.” (Id. ¶ 18). In December 2003, Nixon complained to

19 Tommy Newman and Human Resources regarding Sina’s threats, including a written complaint

20 to Human Resources in late December 2003. (Id. ¶¶ 19, 21).

21

Nixon also complained that Russell Leach, a white dealer, called Nixon “kid” two to

22 three times in March 2004. (Id. ¶ 32). Nixon found this comment demeaning because he was

23 about ten years older than Leach and believed that “kid” is a modern equivalent of “boy” which

24 is a racially derogatory name towards African-Americans. (Id. ¶¶ 32, 38). When Nixon

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1 complained to Fahy about Leach’s comments, Fahy said he did not “have time to bay-sit” and

2 nothing further was done. (Id. ¶ 33). Other than Leach’s “kid” remarks, there were no other racial

3 remarks directed at Nixon during his employment at GNLV, including from customers. (Nixon

4 Dep. 46:8–11).

5

Nixon also claims that he was wrongfully reprimanded for two guest complaints. First, a

6 customer complained in August 2003 about Nixon’s purportedly “rude” behavior, resulting in

7 Nixon receiving a written warning. (Pl.’s Resp. Req. Admis., Set Three, at 4–5). In February

8 2004, Nixon received another written warning for the stated reason that a guest had complained

9 about his behavior. (Id. at 7). Nixon believed that these customer complaints were “camouflage”

10 for disliking him because he is black. (Nixon Dep. 43:5–44:22).

11

Nixon additionally complained of difficulty switching shifts with co-workers. Nixon

12 learned that a co-worker who wanted to switch shifts with Nixon was unable to because she was

13 told by either Fahy or Sina that “only certain people can switch” shifts. (Nixon Decl. ¶¶ 28–29).

14

Nixon alleges he was retaliated against for reporting these various instances of

15 discrimination. In December 2003, GNLV suspended Nixon for the stated reason of violating

16 GNLV’s “Zero Tolerance Policy.” (Pl.’s Resp. Req. Admis., Set Three, at 7). In April 2004,

17 Nixon received a three-day suspension for GNLV’s stated reason of unauthorized use of a cell

18 phone in a public area. (Id. at 9). On April 21, 2004 Nixon resigned from GNLV, allegedly

19 because he “could no longer tolerate the cumulative effect of the racial harassment and

20 unwarranted discipline and suspensions.” (Id.; Nixon Decl. ¶ 39).

21

D. Eddie Mae Hunter

22

GNLV hired Eddie Mae Hunter as a casino dealer effective February 23, 2000. (Pl.’s

23 Resp. Req. Admis., Set Four, ECF No. 98-3, at 3). Hunter is an African-American female.

24

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1 (Hunter Dep. 127:4–9, May 9, 2008, ECF No. 76-42). Hunter complains of racial discrimination

2 and retaliation while employed at GNLV.

3

On her first day of work, one of the shift managers, Kathy Garrison, called Hunter into an

4 office and informed her she could not wear her hair in braids. (Hunter Dep. 101:1–18). When

5 Hunter informed Garrison that the prohibition was discriminatory, Garrison promised to “find

6 out” and “get back with [Hunter]” on the issue. (Id. at 101:20–102:2). Hunter ultimately was

7 never required to remove her braids while employed at GNLV. (Pl.’s Resp. Req. Admis., Set

8 Four, at 21).

9

In another incident, a female customer was speaking to her husband at Hunter’s blackjack

10 table and twice referred to a black man sitting at the table as “monkey.” (Hunter Dep. 94:13–

11 95:13). Hunter believes the comment was directed at her, too, because the female said “I need

12 that other monkey back over here.” (Id.). Hunter informed her supervisor, “Paul,” of the incident

13 at her next break. (Id. at 96:3–16). Hunter also informed Leonard Sina. (Id.). In response, Sina

14 told Hunter that the wife and husband “were just ignorant,” while Paul said he would “give them

15 a bad rating.” (Id. at 97:2–4).

16

On one occasion, Hunter accidentally bumped into a female co-worker when both were

17 turning a corner in the dealers’ room. (Id. at 97:11–14). The co-worker physically pushed Hunter

18 off, rolled her eyes, and walked off. (Id. at 97:15–17). The co-worker was Asian. (Id. at 97:12).

19 When Hunter informed Supervisor Jack Brooks of the incident, he told Hunter that “it’s [Asian]

20 culture to be rude.” (Id. at 97:18–24). Hunter believed this comment to be racial and it offended

21 her. (Id. at 110:20–24, 111:7–8). Hunter is not sure whether Brooks said anything to the

22 co-worker about the incident and Brooks did not discuss the incident further with Hunter. (Id. at

23 111:18–21).

24

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1

In another experience, a co-worker “Phil” made negative comments about Al Sharpton to

2 Hunter in the break room, offending Hunter. (Id. at 114:1–115:6). While Hunter does not

3 remember the content of the exact comments, she does not think they were racial slurs. (Id. at

4 115:1–4). Hunter did not make a complaint to anyone regarding Phil’s comments. (Id. at 115:20–

5 21).

6

Hunter also complains that a supervisor named “Yolanda” once spoke with a customer

7 from Mexico in Spanish while looking at Hunter and making hand gestures, which Hunter

8 understood to mean that the two were talking about her. (Id. at 111:22-112:7). Hunter was

9 uncomfortable with Yolanda speaking about her in another language. (Id. at 112:7–12). Hunter

10 believes Yolanda’s conduct was racial because Yolanda was Mexican, Hunter was African-

11 American, and Yolanda knew that Hunter did not speak Spanish. (Id. at 131:24–132:5). Hunter

12 informed supervisor “Art” of this incident, and Hunter believes Art addressed the situation with

13 Yolanda. (Id. at 112:18–113:3).

14

Last, Hunter complains of an incident involving supervisor David Tuttle where Tuttle

15 called Hunter into his office and told her she had to quit her part-time job at Fitzgerald’s casino

16 or quit her job at GNLV. (Id. at 121:21–122:11). Hunter felt Tuttle’s instruction singled her out

17 because most other employees at GNLV had other jobs at other casinos. (Id. at 122:24–123:2).

18 While Hunter considers Tuttle’s conduct harassing, she is not sure whether it was because of her

19 race. (Id. at 126:17–127:19). Hunter continued to work at both jobs after confirming with

20 GNLV’s Human Resources that she was permitted to have another outside job. (Id. at 123:14–

21 21).

22

Hunter admits to never making a complaint of harassment by customers or co-workers to

23 Human Resources or Employment Relations at GNLV. (Pl.’s Resp. Req. Admis., Set Four, at

24 19–20). Hunter submitted a letter of voluntary resignation on or around March 15, 2005. (Id. at

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1 8). In the letter, she stated, “I truly enjoyed working at the Golden Nugget and being a proud

2 member of the team.” (Id.).

3

E. Dorothy Blake

4

GNLV hired Dorothy Blake effective September 23, 1998 as a blackjack dealer. (Pl.’s

5 Resp. Req. Admis., Set Five, ECF No. 68-2, at 4). GNLV terminated Blake on or around

6 November 15, 2004, with Blake’s last day working at GNLV in May 2004. (Id. at 5; Blake Dep.

7 32:3–5, May 13, 2008, ECF No. 76-32). Blake claims she was sexually harassed and

8 discriminated against because she is African-American. (Blake Dep. 117:11–22).

9

Blake complains that a supervisor, “Gisela” would call over male pit managers to see

10 women’s artificial breasts and then the pit managers would “gawk” at these women and talk

11 about their breasts. (Blake Dep. 75:13–23, 85:6–17). On about ten occasions, another female

12 supervisor, Carol Andreason, would make sexual gestures and converse with Blake about sex,

13 embarrassing Blake. (Id. at 75:24–76:7, 164:8–10). Blake told Andreason she was embarrassed

14 and asked her to stop and Andreason would thereafter call Blake a “prude.” (Id. at 75:24–76:7,

15 163:20–24).

16

On about ten occasions, supervisors Gisela and James Gelfo would hug, kiss, and pat

17 each other’s rear ends in the pit. (Id. at 76:7–13, 84:22–85:3). While this conduct made Blake

18 uncomfortable, Blake did not report it because they were supervisors and Blake liked Gisela and

19 did not want to get her in trouble. (Id. at 86:2–7).

20

One time in mid-2002 during 15 minutes of downtime in the pit, a supervisor “Lisa” drew

21 a man on a rating slip with a large penis and laughed and joked with the floor supervisor about

22 how she wanted a man with a penis that size. (Id. at 76:14–25, 82:14–19, 102:13–17). Blake

23 found the incident offensive but did not report it because it was a supervisor and Blake did not

24

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1 want to lose her job. (Id. at 103:5–15). Richard Freeman had told Blake to “be careful” about

2 what she complained about “because she might end up in the mail room.” (Id. at 103:16–24).

3

Sometime in 2001 or 2002, a male customer told Blake that he would like to take Blake

4 out and “eat [her] pussy.” (Pl.’s Resp. Req. Admis., Set Five, ECF No. 68-2, at 23). The male

5 customer made comments to this effect about three times while playing at Blake’s table. (Blake

6 Dep. 90:3–8, ECF No. 68-3). Blake called out to supervisor Carol Andreason across the pit to get

7 her attention and told her she needed to “come over here and get this man, because he’s talking

8 out of line.” (Id. at 91:7–9). Andreason said, “You can handle it. You’re a big girl.” (Id. at

9 91:13–15). Blake did not tell Andreason the particular comments that the customer had said to

10 her at this time. (Id. at 91:21–24). Blake continued to deal to the customer for 20 more minutes.

11 (Id. at 92:16–19). When Blake went on break, she told Andreason the exact words the customer

12 told her. (Id. at 92:20–24). When Blake returned from the break, the customer was still at her

13 table and played for another 30 minutes. (Id. at 94:10–12). Andreason and Leonard Sina both

14 came to stand by Blake’s table for a few minutes and the customer’s vulgar comments ceased.

15 (Id. at 94:10–16, 96:7–9, 96:10–20). Blake believes Andreason and Sina handled the situation

16 improperly and thought they should have removed the customer from Blake’s table. (Id. at

17 97:16–21). Blake did not report this incident to Human Resources. (Id.).

18

Blake also witnessed several supervisors, including Jack Brooks, James Gelfo, and

19 Leonard Sina, comment on “how hot women were” and talk about “want[ing] to take them

20 home.” (Id. at 158:9–25). On about 15 occasions, Gelfo used graphic words to describe how he

21 would satisfy women in bed but Blake could not recall the exact words. (Id. at 159:1–25, 162:6).

22 Supervisor “Todd” also made comments about women’s anatomy and talked about what “he

23 [was] going to do to them” on about five to ten occasions. (Id. at 165:7–25, 166:13–15, 167:16–

24

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1 23). When Blake told Todd his comments made her uncomfortable, Todd laughed. (Id. at

2 166:16–21).

3

Blake believes she was also racially discriminated against at GNLV. (Id. at 125:6–126:4).

4 She believes she was discriminated against on the basis of her race by being assigned to work the

5 “Big Six” game for more than six months after she was hired, because there were other dealers

6 that could have been assigned to the game but were not. (Id.). Blake also observed several white

7 dealers that were hired after Blake and were immediately given a schedule with Saturdays and

8 Sundays off, while Blake had a standing request for that schedule and was denied the request for

9 over six months. (Id. at 126:24–127:8, 128:20–129:4). Additionally, people hired after Blake

10 received priority over Blake in the hours they worked. (Id. at 123:13–124:5). Blake specifically

11 identifies a Caucasian woman who was given Blake’s preferred schedule of 11:00 a.m. to 7:00

12 p.m. before Blake, even though she was hired after Blake. (Id. at 130:9–23). Blake also believes

13 she was discriminated against by being assigned to the “Super Fun” game because she was the

14 only African-American on that particular shift and was “always assigned to Super Fun.” (Id. at

15 197:14–21). The Super Fun game was less desirable because it was difficult to deal the cards.

16 (Id. at 198:6–13).

17

In 1998, Blake overheard Sina telling another African-American dealer that they only got

18 their jobs because they are black or on welfare. (Id. at 116:21–117:10). Blake believes this

19 comment was directed at her, too, because there was a large group of African-Americans,

20 including Blake, hired at the same time. (Id. at 117:11–22).

21

One supervisor, “Kimberly,” asked Blake about ten to twenty times if the black

22 customers at Blake’s table were her friends, when the customers were in fact not Blake’s friends.

23 (Id. at 124:6–19, 133:12–19). Kimberly did not ask whether a white customer at Blake’s table

24 was her friend when in fact the customer was Blake’s friend. (Id.).

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1

In another instance, Blake asked “Pamela,” the acting pit manager, to go home early

2 because she was ill. (Id. at 134:10–25). Pamela instructed Blake she may leave early with the

3 implication that Blake would not receive any attendance “points.” (Id.). Subsequently, GNLV

4 assessed the points to Blake and did not remove the points from Blake’s record until Pamela

5 verified that no points should be assessed. (Id. at 135:1–136:5). Blake learned that another white

6 employee, Valerie Funk, “[went] home all the time without a point.” (Id. at 136:5–14).

7

Starting in March 2001, Blake received a series of attendance points, verbal counselings,

8 and warnings as a result of absences from work. (Pl.’s Resp. Req. Admis., Set Five, at 5–7).

9 From May 2003 to October 2004, GNLV granted a series of Blake’s requests for leave and

10 intermittent leave due to a medical condition associated with back issues. (Id. at 8–10). On or

11 around November 1, 2004, after Blake failed to return to work from a medical leave of absence,

12 GNLV placed Blake on a suspension pending investigation. (Id. at 10). Blake had a due process

13 meeting with GNLV on November 5, 2004 where she expressed that she hoped to be able to

14 reapply for her job because she enjoyed working at GNLV. (Id. at 11). Blake made no

15 complaints of employment discrimination or harassment at this meeting. (Id.).

16

Blake admits to never complaining of harassment by customers, co-workers, or

17 supervisors to Human Resources or Employee Relations during her employment at GNLV. (Pl.’s

18 Resp. Req. Admis., Set Five, at 21–22). As of the date of Blake’s deposition in May 2008, Blake

19 had still not returned to work due to her medical condition. (Blake Dep. 32:9–11).

20

F. Tequella Candice Smith

21

GNLV hired Tequella Candice Smith as a kitchen steward on August 1, 2002. (Smith

22 Dep. 15:15–24, ECF No. 76-42). As a kitchen steward, Smith worked in multiple kitchens and

23 locations at the GNLV property. (Id. at 26:17–20). Smith complains of sexual harassment, racial

24 discrimination, and retaliation.

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1

Smith complained of problems with supervisor Daniel Quintana “kissing on [her]” during

2 the swing shift four or five times over a period of approximately one month. (Id. at 38:9–12,

3 40:18–23, 41:11–18). After she would return from a break, Quintana would “come to [her]

4 station, and he would come get [her] and take [her] to the second floor where the banquets were .

5 . . . [to] a ballroom storage closet . . . [a]nd he would kiss on [her].” (Id. at 38:22–39:4, 52:9–12).

6 Quintana kissed Smith on the mouth and would touch Smith “[a]ll over [her] body.” (Id. at 39:5–

7 11). The first incident lasted about one hour and the incidents were unwelcome according to

8 Smith. (Id. at 39:22–25). Smith was “scared” to try to leave the storage closet during these

9 incidents because she “didn’t know where to go.” (Id. at 40:1–8). After about a month, Smith

10 told Quintana she “didn’t want him touching on [her],” and the incidents stopped. (Id. at 40:12–

11 19). Smith talked to a shop steward, Albert Warner, about the incident but did not tell anyone

12 else, including any supervisor, while employed at GNLV. (Id. at 42:17–21, 44:13–45:1). A shop

13 steward is a worker that reports back to the union. (Id. at 36:20–24). Smith said she was afraid

14 she would lose her job if she told anyone else. (Id. at 45:25–46:1, 47:14–18).

15

Smith also complained of problems with a co-worker, Michael Bada. In July of 2003, she

16 alleges that Bada sexually harassed her by making comments to Smith and touching her rear end

17 and chest in the buffet kitchen. (Id. at 101:18–23, 102:5–7). Bada touched Smith “whenever . . .

18 [they] worked together” over a period of weeks. (Id. at 103:1–22). Smith reported this conduct to

19 supervisor “Danny” and requested to be taken off the banquet kitchen assignment. (Id. at

20 109:23–110:3). Danny subsequently switched Smith to a different kitchen and Smith wrote a

21 statement about the incident. (Id. at 110:4–8).

22

When Smith returned to the buffet kitchen after a period of about two to three months,

23 Bada continued to bother Smith. (Id. at 124:3–6, 136:17–20). According to Smith, Bada would

24 do things intentionally to “get under [her] skin” such as flipping over silverware, grabbing things

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1 from Smith, and bumping into Smith. (Id. at 124:10–25). After this behavior continued for one to

2 two weeks, Smith reported Bada’s conduct to supervisors “William” and “Danny.” (Id. at

3 134:11–15). Smith believes neither William nor Danny did anything about the situation. (Id.).

4

In another incident, Bada tried to take a dish rack from Smith. (Id. at 148:9–13). At one

5 point, while Smith was lifting the rack, Bada touched Smith on her chest, leading to a physical

6 altercation between the two. (Id. at 148:20–25). Smith ultimately threw a bus tub at Bada. (Id. at

7 151:2–4). Smith’s written statement provided to GNLV made no allegation of Bada touching her

8 chest. (Id. at 150:22–151:4). Smith also made no such allegation at a due process meeting

9 discussing the incident. (Id. at 155:3–10). Smith was suspended for three days by GNLV for her

10 involvement in this incident with Bada. (Id.). While Bada continued to engage in bothersome

11 conduct such as flipping over silverware and interfering with dishes and glasses after Smith

12 returned from her suspension, Smith did not report the conduct to any supervisors or Human

13 Resources. (Id. at 163:5–16).

14

Smith also complaines that a certain chef, whose name she cannot recall, made a

15 comment to Smith while working the graveyard shift, saying that “I wish you will wash me the

16 way you wash your silverware.” (Id. at 56:13–23). Smith told supervisor Daniel Quintana about

17 the incident. (Id. at 57:3–8). Quintana told Smith that he would “take care of it” and Smith

18 believes he did because the chef never spoke to Smith again. (Id. at 57:9–13).

19

Another employee, Jon Pope, hugged Smith roughly but Smith did not believe Pope was

20 trying to sexually harass her. (Id. at 90:20–25). However, Smith observed Pope make sexual

21 comments to Lubertha Smith. (Id. at 92:24–93:5). Smith reported this conduct to supervisor

22 Willy Johnson. (Id.).

23

Smith also complains of racial discrimination. First, Smith alleges that at the time she

24 was hired, management told Smith that they were not sure she could wear her hair in braids and

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1 in a black and burgundy color. (Id. at 180:15–24). Smith admits that she was never required to

2 remove her braids while employed at GNLV. (Pl.’s Resp. Req. Admis., Set Six, ECF No. 70-6,

3 at 20). Smith also contends that she was harassed by the security guards at GNLV. For example,

4 Smith believes that they unnecessarily asked her to show her employee badge. (Smith Dep.

5 183:10–185:15). According to Smith, the security guards were generally “mean” to Smith and

6 her African-American co-workers. (Id.).

7

Last, Smith alleges that manager Jay Bluhm directed Smith to stick her hands into soapy

8 water to retrieve dishes knowing that she was allergic to the soap, which caused her to break out

9 in a rash. (Id. at 205:19–207:10). Smith does not know if Bluhm was retaliating against Smith for

10 complaining about the security guards. (Id. at 207:4–10).

11

Smith submitted a voluntary letter of resignation to GNLV on or about March 22, 2005.

12 (Pl.’s Resp. Req. Admis., Set Six, at 10–11). Her last day of employment was April 5, 2005. (Id.

13 at 11).

14 II. LEGAL STANDARDS

15

A principal purpose of the summary judgment rule is to “isolate and dispose of factually

16 unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). A

17 court grants summary judgment only if “the movant shows that there is no genuine issue as to

18 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

19 56(a). In making this determination, the court “must draw all reasonable inferences supported by

20 the evidence in favor of the non-moving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d

21 1054, 1061 (9th Cir. 2002). “[T]his standard provides that the mere existence of some alleged

22 factual dispute between the parties will not defeat an otherwise properly supported motion for

23 summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Rather,

24 only genuine issues of material facts are relevant to the summary judgment analysis. A fact is

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1 material if it “might affect the outcome of the suit under the governing law.” Id. at 248. “The

2 moving party bears the initial burden of establishing the absence of a genuine issue of material

3 fact.” Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The burden is

4 met by demonstrating to the court “that there is an absence of evidence to support the nonmoving

5 party’s case.” Celotex Corp., 477 U.S. at 325. This is done by citing to depositions, documents,

6 electronically stored information, affidavits or declarations, stipulations, admissions,

7 interrogatory answers, or other materials. Fed. R. Civ. P. 56(c)(1)(A). Once the initial burden is

8 met, however, “Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify

9 facts which show a genuine issue for trial.” Fairbank, 212 F.3d at 531.

10

Moreover, summary judgment is mandated “against a party who fails to make a showing

11 sufficient to establish the existence of an element essential to that party’s case, and on which that

12 party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “In such a situation,

13 there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof

14 concerning an essential element of the nonmoving party’s case necessarily renders all other facts

15 immaterial.” Id. at 322–23. This causes the moving party to be entitled to judgment as a matter

16 of law because the nonmoving party failed to sufficiently show facts supportive of an essential

17 element of the case for which she bears the burden of proof. Id. at 323. Conversely, where

18 reasonable minds could differ on the facts proffered in support of a claim, summary judgment

19 should not be granted, Petzak v. Nevada ex rel. Dep’t of Corr., 579 F. Supp. 2d 1330, 1333

20 (D. Nev. 2008) (Reed, J.). The nonmoving party may defeat summary judgment only if a

21 reasonable jury might return a verdict in its favor based on evidence in the record, Anderson, 477

22 U.S. at 251–52, 257.

23 ///

24 ///

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1 III. DISCUSSION

2

The EEOC claims several employees at GNLV were subject to racially and sexually

3 hostile work environments in violation of Title VII. Under Title VII, it is “an unlawful

4 employment practice for an employer . . . to discriminate against any individual with respect to

5 his compensation, terms, conditions, or privileges of employment because of such individual’s

6 race, color, religion, sex, or national origin.” 42 U.S.C. § 2000(e)-2(a)(1). Discrimination can

7 take the form of a negative employment action, or it may arise when an employer requires

8 employees to work in a hostile or abusive work environment. Harris v. Forklift Sys., Inc., 510 9 U.S. 17, 21 (1993).1 Indeed, an employer violates Title VII when “the workplace is permeated

10 with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to

11 alter the conditions of the victim’s employment.’” Id. (internal citation omitted) (quoting Meritor

12 Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). However, Title VII is not a “general

13 civility code,” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998), but instead protects

14 individuals from workplace hostility based on certain characteristics (e.g., race, sex, or national

15 origin), 42 U.S.C. § 2000e-2(a)(1). See also Faragher v. City of Boca Raton, 524 U.S. 775, 787

16 (1998) (“[A] mere utterance of an ethnic or racial epithet which engenders offensive feelings in

17 an employee would not sufficiently alter terms and conditions of employment to violate Title

18 VII.”); Oncale, 523 U.S. at 81 (“[Title VII] does not reach genuine but innocuous differences in

19 the ways men and women routinely act with members of the same sex and of the opposite sex.”).

20

To prevail on a hostile work environment claim under Title VII, the plaintiff must

21 demonstrate that his or her workplace was permeated with discriminatory intimidation that was

22

23

1 The same standards apply when reviewing hostile work environment claims based on

racial harassment and sexual harassment. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 24 116 n.10 (2002). Thus, cases dealing with racial harassment can be instructive in cases dealing

with sexual harassment, and vice versa.

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1 sufficiently severe or pervasive to create an abusive working environment. Brooks v. City of San

2 Mateo, 229 F.3d 917, 923–24 (9th Cir. 2000) (citing Harris, 510 U.S. at 21). The working

3 environment must be both “subjectively and objectively” perceived as abusive by the plaintiff.

4 Id. (quoting Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)). Moreover, a court

5 must consider the totality of the circumstances when determining whether the racial or gender

6 hostility in a work environment is so severe or pervasive as to violate Title VII. See McGinest v.

7 GTE Serv. Corp., 360 F.3d 1103, 1112–13 (9th Cir. 2004). The alleged conduct need not cause

8 mental harm, but it is enough “if such hostile conduct pollutes the victim’s workplace, making it

9 more difficult for her to do her job, to take pride in her work, and to desire to stay on in her

10 position.” Id. (quoting Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994)).

11 While a single incident is usually insufficient to demonstrate a hostile work environment, if the

12 harassment is more severe, there is less need for the plaintiff to show the pervasive nature of the

13 conduct. Brooks, 229 F.3d at 926.

14

When evaluating the objective hostility of a work environment, the court considers a

15 number of factors including the “frequency of discriminatory conduct; its severity; whether it is

16 physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

17 interferes with an employee’s work performance.” McGinest, 360 F.3d at 1113 (quoting Nichols

18 v. Azteca Rest. Enters., 256 F.3d 864, 872 (9th Cir. 2001)); see also Harris, 510 U.S. at 23

19 (listing these factors). Allegations of a racially hostile workplace “must be assessed from the

20 perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” Id. at

21 1115. Likewise, allegations of a sexually hostile workplace are assessed from the perspective of

22 the reasonable victim. Brooks, 229 F.3d at 924.

23

An employer’s liability for harassing conduct varies according to whether the harasser is

24 a supervisor, co-worker, or non-employee. McGinest, 360 F.3d at 1119; Vance v. Ball State

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1 Univ., 133 S. Ct. 2434, 2439 (2013). “In general, an employer is vicariously liable for a hostile

2 environment created by a supervisor.” Nichols, 256 F.3d at 877 (citing Faragher, 524 U.S. at

3 780). In situations where there is no tangible employment action against the plaintiff, the

4 employer retains the affirmative defense that it “exercised reasonable care to prevent and

5 correct” the harassing behavior, and “that the plaintiff unreasonably failed to take advantage of

6 any preventative or corrective opportunities.” Id. (quoting Burlington Indus., Inc. v. Ellerth, 524

7 U.S. 742, 765 (1998)). An employer is liable for a hostile work environment created by

8 co-workers only if the employer “knew or should have known about the conduct and failed to

9 stop it,” amounting to a negligence standard. Ellerth, 524 U.S. at 759; Vance, 133 S. Ct. at 2441

10 (citing Faragher, 524 U.S. at 789). Ultimately, an employer’s liability for the harassing

11 behavior of a plaintiff’s co-worker depends on the adequacy of the employer’s response to

12 reports of harassment. See Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991). Whether the

13 employer’s response was adequate depends on whether the remedy persuades “individual

14 harassers to discontinue unlawful conduct.” Id.

15

Finally, an employer may be liable for the harassing behavior of its customers and

16 patrons “where the employer either ratifies or acquiesces in the harassment by not taking

17 immediate and/or corrective actions.” Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754,

18 756 (9th Cir. 1997); see also Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073–74 (10th Cir.

19 1998) (holding that an employer who “condones or tolerates” a hostile work environment should

20 be liable regardless of whether the environment is created by co-workers or nonemployees). As

21 with liability based on a co-worker’s actions, an employer will be liable for a private individual’s

22 conduct only “when it knew or should have known of the conduct.” Folkerson, 107 F.3d at 756.

23 With these standards in mind, the Court now addresses whether each employee’s claims survive

24 GNLV’s motions for summary judgment.

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1

A. Robert Royal

2

1. Hostile Work Environment—Race Discrimination

3

To survive summary judgment on his hostile work environment claim based on racial

4 discrimination, Royal must show that “(1) [he] was subjected to verbal or physical conduct of a

5 [racial] nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or

6 pervasive to alter the conditions of [his] employment and create an abusive work environment.”

7 Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 892 (9th Cir. 2005). There is no question as to

8 whether Royal satisfies the first two prongs of this test. Royal alleges that he was called names

9 such as “nigger” and “blackie,” and that he was threatened by individuals promising to “kick his

10 black ass.” (See, e.g., VI Royal Dep. 171:1, 171:12–127:14, 182:10–18, 184:11–16). However,

11 the Court is not convinced that his allegations demonstrate that GNLV either created an abusive

12 work environment or condoned harassing behavior.

13

The Court first addresses alleged harassment by Royal’s supervisors. Royal alleges that

14 in 2002 two different supervisors made the comment that “all blacks look alike” to customers at

15 Royal’s table as he and another African-American dealer exchanged places. (Id. at 305:8–20). It

16 is well-recognized that “[s]imple teasing, offhand comments, and isolated incidents (unless

17 extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of

18 employment.’” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1034 (9th Cir. 2005)

19 (quoting Faragher, 524 U.S. at 788). These two isolated incidents thus cannot support Royal’s

20 claims of racial discrimination by his Golden Nugget supervisors. But even if these occurrences

21 were enough to overcome summary judgment, the Court cannot find that GNLV is vicariously

22 liable for the supervisors’ actions because it may avail itself of an affirmative defense. See

23 Faragher, 524 U.S. at 780; Ellerth, 524 U.S. at 765.

24

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1

Royal only reported the first of the two incidents to his superiors at GNLV. (VI Royal

2 Dep. 306:25–308:3, 309:21–310:12). The floor supervisor who had made the comment was

3 questioned regarding the incident and told not to speak that away again. (Id. at 306:25–308:3).

4 Royal was informed that the supervisor had been spoken to, and he acknowledges that GNLV

5 handled his complaint appropriately. (Id. at 307:22–308:3). Accordingly, GNLV exercised

6 reasonable care to correct the harassing behavior. See Nichols, 256 F.3d at 877 (stating the first

7 prong of Faragher/Ellerth affirmative defense as employer’s exercise of reasonable care to

8 prevent or correct harassment). Royal also failed to take advantage of any preventative

9 opportunities when he failed to report the second supervisor’s comment. See id. (noting the

10 second prong of Faragher/Ellerth affirmative defense is employee’s failure to exercise

11 reasonable care to take advantage of opportunities to prevent or correct harassment). Therefore,

12 Royal’s allegations of discrimination at the hands of his supervisors are insufficient to

13 demonstrate a racially hostile work environment because GNLV corrected the harassing

14 behavior when it was reported and Royal unreasonably failed to report the other harassing

15 behavior.

16

The Court next considers the evidence of co-worker harassment. Royal identifies only

17 one co-worker who engaged in making racial comments and gestures towards Royal. The

18 co-worker allegedly said to the customers at Royal’s table on more than one occasion that “once

19 you give it to a black, you never get it back,” after which he would grab Royal’s buttocks. (VI

20 Royal Dep. 294:14–25). After Royal reported this co-worker to his superiors, the co-worker was

21 eventually terminated, though not solely for his conduct directed at Royal. (Id. at 298:21–299:5).

22 Royal also received a letter from the Human Resources department thanking him for his report

23 and explaining that the co-worker no longer worked at the Golden Nugget. (Id.). Under the

24 negligence standard, not only did GNLV address Royal’s harassment claim once it became

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1 aware of it, but it completely stopped this particular co-worker’s conduct by firing him.

2 Therefore, GNLV cannot be liable on the basis that Royal’s co-workers created a hostile work

3 environment.

4

The most egregious incidents of harassment that Royal suffered were by the customers at

5 GNLV. Royal was called “nigger” on more than one occasion, and he heard customers use the

6 word at other times even when not directed at him. (See, e.g., VI Royal Dep. 219:6–13, 184:11–

7 16, 232:18–233:1). As courts have recognized, “[i]t is beyond question that the use of the word

8 ‘nigger’ is highly offensive and demeaning, evoking a history of racial violence, brutality, and

9 subordination.” McGinest, 360 F.3d at 1116. (quoting Swinton v. Potomac Corp., 270 F.3d 794,

10 817 (9th Cir. 2001)). If GNLV knew or should have known that customers were using such

11 language and nonetheless ratified or acquiesced to its usage, then it could face liability. See

12 Folkerson, 107 F.3d at 756. However, by Royal’s own account, each time Royal reported a

13 customer for using a racial slur or epithet, a supervisor responded by asking the customer to

14 leave Royal’s table or, in the extreme case, calling security.

15

For example, in 1999 a customer used the word “nigger” during a game at Royal’s table.

16 (VI Royal Dep. 166:7–169:10). Royal reported the customer to his floor supervisor and the

17 supervisor “made the customer leave.” (Id.). The 2002 incident involving the customers who

18 referred to shooting dice with “niggers” also ended when Royal called over his supervisor. (Id. at

19 219:4–221:8). The supervisor came to the table and the customers got up and left. (Id.). In 2006

20 customers used the word “nigger” as they talked amongst themselves at Royal’s table. (Id. at

21 190:15–191:8). Royal reported the customers to the floor supervisor who then responded by

22 telling the customers the term was derogatory and asking them not to use it again. (Id.). When

23 the customers continued to use the word, Royal called another supervisor over who eventually

24

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1 called security, but by that time the customers had left Royal’s table. (Id. at 195:9–196:23).

2 Royal believed that his supervisor properly responded to his complaint in this case. (Id.).

3

On other occasions, Royal did not report the customers’ racist comments or conduct.

4 Although GNLV may be aware that customers are prone to racial harassment of its

5 African-American employees, it cannot respond to particular instances of racist behavior if it is

6 not informed of them. Folkerson, 107 F.3d at 756. In each instance where Royal reported the

7 harassing conduct, Royal was never subjected to harassment by the offending customer again.

8 (See, e.g., VI Royal Dep. 221:1–22). In fact, in most cases, Royal never even saw the customer

9 again. Thus, when the Court considers the totality of the circumstances relating to harassing

10 behavior by supervisors, co-workers, or customers, the Court does not find sufficient evidence to

11 overcome summary judgment that GNLV created or condoned a racially hostile work

12 environment during the ten years of Royal’s employment. The Court therefore grants GNLV’s

13 motion as to Royal’s hostile work environment claim based on racial discrimination.

14

2. Retaliation

15

To establish a prima facie case of retaliation a plaintiff must show that (1) he was

16 engaged in an activity protected by Title VII, (2) his employer subjected him to an adverse

17 employment action, and (3) a causal connection exists between the two. Manatt v. Bank of Am.,

18 339 F.3d 792, 800 (9th Cir. 2003) (citing Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir.

19 2000)). If a plaintiff makes out a prima facie case, the burden shifts to the employer to advance

20 legitimate, non-retaliatory reasons for its actions. See McDonnell Douglas Corp. v. Green, 411

21 U.S. 792, 802 (1973). If the employer rebuts the presumption of retaliation, the plaintiff must put

22 forth “specific, substantial evidence” of pretext. Collings v. Longview Fibre Co., 63 F.3d 828,

23 833–34 (9th Cir. 1995) (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)).

24 The EEOC argues that “as soon as Royal began complaining [of harassment], he rapidly began

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1 receiving regular and increasingly severe disciplinary actions from management in the form of

2 his work history entries in his discipline log—many based on bogus customer complaints,

3 leading to counseling notices, a severe one day suspension without pay and the final denial of his

4 request to transfer.” (Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 78, at 30). The unwarranted

5 discipline, according to the EEOC, constitutes retaliation in violation of Title VII.

6

Royal sent a letter on July 12, 2002 to Human Resources regarding an incident in June

7 2002 during which customers directed racial epithets towards Royal. (ECF No. 76-15). On July

8 30, 2002, Royal was verbally counseled for being “too sensitive” towards customers and

9 employees. (VII Royal Dep. 23:19–24:10). In September 2002, Royal received a verbal

10 counseling after a customer complained that Royal was rude and unfriendly. (Id. at 22:23–25,

11 23:1–18).

12

Complaining of workplace racial harassment is an activity protected by Title VII. 42

13 U.S.C. § 2000e-3(a). Discipline issued to an employee may constitute an adverse employment

14 action if it “materially affect[s] the compensation, terms, conditions, or privileges of . . .

15 employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (quoting Chuang v.

16 Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1126 (9th Cir. 2000)). The Court doubts whether

17 the verbal counselings Royal received qualify as an adverse employment action. See Nunez v.

18 City of L.A., 147 F.3d 867, 875 (9th Cir. 1998) (finding “harsh words” insufficient to constitute

19 an adverse employment action); McCaw v. Potter, 2006 WL 2520328, at *7 (D. Nev. Aug. 28,

20 2006) (Hunt, J.) (noting that public humiliation in the form of verbal constructive criticism does

21 not rise to the level of an adverse employment action). The record shows Royal’s verbal

22 counselings were mere criticism that did not result in any written warning or suspension. Absent

23 any evidence that the verbal counselings materially affected the terms or conditions of Royal’s

24 employment, the Court cannot find them to be adverse employment actions.

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1

Royal received subsequent instances of discipline including a one-day suspension in

2 February 2004, (see id. at 25), a verbal warning in 2006, (see id. at 28), and a written warning in

3 2007, (see id. at 31). Even if Royal could establish that these were adverse employment actions,

4 Royal fails to submit evidence of a causal connection between his participation in an activity

5 protected by Title VII and these instances of discipline. Royal argues that GNLV’s actions were

6 retaliatory and asks the Court to infer retaliatory intent. However, there is no evidence in the

7 record from which the Court can infer GNLV’s retaliatory intent beyond Royal’s own

8 speculation that the events were retaliatory. Moreover, the Court cannot infer retaliatory intent

9 based on temporal proximity because the incidents are too far removed from Royal’s July 2002

10 complaint about the customer directing racial epithets towards him. See Porter, 419 F.3d at 895

11 (concluding that temporal proximity “merely provides an evidentiary basis from which an

12 inference of [retaliation] can be drawn”). Therefore, the later incidents of discipline cannot form

13 the basis for Royal’s retaliation claim and Royal fails to establish a prima facie case of

14 retaliation.

15

The Court also notes that even if Royal could establish a prima facie case of retaliation,

16 GNLV nonetheless rebuts the presumption with evidence of legitimate, non-retaliatory reasons

17 for the discipline and Royal presents no evidence of pretext. Royal received a one-day

18 suspension in 2004 for calling a customer a “cocksucker,” (see ECF No. 63-2, at 25), a verbal

19 warning in 2006 for “hustling tips” in violation of GNLV’s policy, (see id. at 28), and a written

20 warning in 2007 for signing for the wrong amount of chips, (see id. at 31). The Court is satisfied

21 that these violations of work rules are legitimate reasons to discipline an employee. To show that

22 GNLV’s proffered reasons are pretext, Royal would need to show that either: “(1) . . . [GNLV’s]

23 proffered explanation is unworthy of credence because it is internally inconsistent or otherwise

24 not believable, or (2) . . . unlawful [retaliation] more likely motivated [GNLV].” Noyes v. Kelly

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1 Servs., 488 F.3d 1163, 1171 (9th Cir. 2007). Royal’s “mere refutation” of GNLV’s reasons for

2 discipline, without further explanation, (see Pl.’s Resp. Mot. Summ. J., ECF No. 78, at 30–31), is

3 insufficient to establish pretext. Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th

4 Cir. 2001). Even the argument that GNLV’s actions were “disproportionately severe” given

5 Royal’s alleged offenses is without supporting evidence. The Court therefore finds that Royal

6 has failed to establish a prima facie case of retaliation, and even if he has, he has not established

7 that GNLV’s legitimate, non-retaliatory reasons for disciplining him are pretext. GNLV’s motion

8 as to Royal’s retaliation claim is accordingly granted.

9

Therefore, GNLV’s motion for summary judgment as to Royal (ECF No. 63) is

10 GRANTED in its entirety.

11

B. Susie Fein

12

1. Hostile Work Environment—Sexual Harassment

13

To defeat GNLV’s summary judgment motion, the EEOC must show that Fein “(1) was

14 subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and

15 (3) the conduct was sufficiently severe or pervasive to alter the conditions of her employment

16 and create an abusive work environment.” Porter, 419 F.3d at 892. Fein complains of the

17 following instances of sexual harassment that she argues created a hostile working environment:

18 (1) a co-worker and ex-boyfriend, Ray Allen, “stalked” her, stared at her, followed her around at

19 work, and left notes and flowers for her, (Fein Dep. 48:22–49:14); (2) supervisor David Tuttle

20 made romantic advances towards Fein including touching her hair, inviting her to a cabin, and

21 telling her “how nice [she] looked,” (id. at 55:18–58:21); (3) a customer named “Mr. Martini”

22 kissed her on the lips multiple times, called her a “fucking cunt” about five times, called her a

23 “fucking bitch” about 100 to 200 times, slapped her hands while she was dealing cards, and

24 threw his cards at Fein on numerous occasions, (id. at 74:15–22, 77:1–7, 87:18–88:10, 94:1–13);

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1 (4) a customer named “Joe” called Fein a “fucking bitch” about 100 times, threw cards at Fein

2 about 25 times, (id. at 96:6–20, 97:11–13, 98:2–12); and (5) a customer “Mr. Hello” called Fein

3 a “fucking bitch” about ten times and threw cards at Fein about ten times, (id. at 101:14–16,

4 105:19–106:4). The Court addresses each of these incidents in turn.

5

The Court first finds that each of the complained of incidents was of a sexual nature and

6 each was unwelcome. See Meritor, 477 U.S. at 68 (“The correct inquiry is whether respondent

7 by her conduct indicated that the alleged sexual advances were unwelcome, not whether her

8 actual participation in [the conduct] was voluntary.”). Accordingly, the Court must next consider

9 whether, under the totality of circumstances, the conduct was so severe or pervasive so as to alter

10 Fein’s working conditions. Harris, 510 U.S. at 23.

11

Fein first complains of harassing conduct by Ray Allen, a former boyfriend and

12 co-worker. Fein complained to supervisor Threet regarding Allen’s conduct, and Threet

13 immediately spoke to Allen. (Fein Dep. 50:6–51:4). The only conduct that persisted after Threet

14 spoke with Allen was Allen’s “staring” at Fein at work. (Id. at 51:8–21, 54:7–14). Thus, the only

15 actionable conduct in regards to Allen’s behavior towards Fein is his staring, because GNLV

16 took action to stop the other inappropriate conduct. See Ellison, 924 F.2d at 882 (limiting

17 employer liability for a co-worker’s conduct that it knew or should have known about and failed

18 to stop). Simply staring or leering at an employee is not sufficiently severe or pervasive to

19 maintain a hostile work environment claim. See, e.g., EEOC v. Scolaris Warehouse Mkts., Inc.,

20 488 F. Supp. 2d 1117, 1147 (D. Nev. 2007) (Erza, J.) (finding that allegation that manager

21 “stared at [employee’s] chest . . . a lot” was insufficient to maintain an individual claim for

22 sexual harassment”); Mendoza v. Borden, Inc., 195 F.3d 1238, 1248 (11th Cir. 1999) (indicating

23 that a supervisor’s “following and staring” of employee, without more, is insufficient to maintain

24 claim, especially when individuals work in the same area). Allen’s conduct, on its own, cannot

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1 support Fein’s hostile work environment claim based on sexual harassment because it is not

2 sufficiently severe or pervasive.

3

Fein next complains of romantic advances by a supervisor, David Tuttle. Considering the

4 totality of circumstances, the Court finds that Tuttle’s advances towards Fein were neither severe

5 nor pervasive. While it is true that conduct is even more egregious if perpetrated on the claimant

6 by a direct supervisor, mere inter-sexual flirtation and socializing in the workplace does not

7 create a hostile work environment. Oncale, 523 U.S. 75 at 81; Craig v. M&O Agencies, Inc., 496

8 F.3d 1047, 1051 (9th Cir. 2007); see also Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337

9 (7th Cir. 1993) (finding supervisor’s actions of asking plaintiff out on dates, calling her a “dumb

10 blonde,” placing his hand on her shoulder several times, leaving “I love you” signs in her

11 workspace, and attempting to kiss her were not sufficiently severe or pervasive to create an

12 abusive working environment). The record contains no evidence that Tuttle’s advances created

13 an abusive working environment for Fein. Therefore, Tuttle’s conduct, on its own, does not

14 support Fein’s hostile work environment claim.

15

The bulk of Fein’s sexual harassment allegations stem from conduct by repeat customers

16 that played cards at her table. An employer may be liable for a third party’s sexual harassment of

17 an employee if “the employer either ratifies or acquiesces in the harassment by not taking

18 immediate and/or corrective actions when it knew or should have known of the conduct.” Little,

19 301 F.3d at 968 (quoting Folkerson, 107 F.3d at 756). While Fein complains of particularly

20 egregious comments directed towards her from customers including “fucking bitch” and

21 “fucking cunt” amounting to hundreds of separate comments, she failed to report these

22 comments to anyone and testified that she knows supervisors definitively heard these comments

23 only a few times. Fein testified in her deposition that supervisor “Del” heard Mr. Martini call

24 Fein a “fucking cunt” once and apologized to her for the comment. (Fein. Dep. 79:15–80:9). Fein

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1 also testified that supervisor Robert Williamson responded to Martini calling Fein a “fucking

2 bitch” by instructing Fein to bring a tape recorder to work. (Id. at 85:7–15). Last, Fein testified

3 that a manager, “Maurice,” heard “Joe” call Fein a “fucking bitch” while sitting at Fein’s table

4 “on more than one occasion” but does not specify how many comments Maurice heard. (Id. at

5 97:8–10).

6

Fein testified that she believes supervisors witnessed the rest of the customers’ harassing

7 conduct due to their proximity to her workspace in the pit, but admits she has no personal

8 knowledge that the supervisors actually heard or witnessed the conduct. (See, e.g., id. at 78:5–16,

9 81:9–82:16, 87:18–88:10, 94:1–13, 95:1–7, 98:2–4, 101:21–102:10).While most of the

10 supervisors deny hearing these comments, supervisor James Gelfo testified that he thinks he may

11 have heard these types of comments directed at dealers, but not Fein specifically, on about fifty

12 occasions over the course of his twelve years employed at GNLV. (See Gelfo Dep. 70:25–71:7,

13 120:5–121:5–25, ECF No. 77-7).

14

While the evidence is thin that GNLV “knew or should have known” about the ongoing

15 harassment of Fein by customers, Little, 301 F.3d at 968, especially considering that Fein never

16 complained to Human Resources or Employee Relations about the incidents, (see Fein Dep.

17 105:19–106:4), the Court finds there is still a genuine dispute of fact on the issue. See Anderson,

18 477 U.S. at 249 (“[A]t the summary judgment state the judge’s function is not himself to weigh

19 the evidence and determine the truth of the matter but to determine whether there is a genuine

20 issue for trial.”). There is enough evidence in the record for a reasonable jury to find that Fein’s

21 supervisors heard the offensive comments and either ratified or acquiesced in the conduct or

22 failed to take corrective action. A few comments spread out over almost three years of

23 employment are neither severe nor pervasive. See Harris, 510 U.S. at 23 (distinguishing between

24 a “mere offensive utterance” and conduct that is humiliating, abusive, and threatening);

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1 Dominguez-Curry, 424 F.3d at 1034 (finding that “offhand comments” will not sustain a hostile

2 work environment claim). However, when a plaintiff presents evidence that she was subject to

3 hundreds of such comments, the totality of the circumstances could show severe or pervasive

4 harassment amounting to an abusive working environment. The Court therefore finds a genuine

5 issue of fact as to whether Fein suffered severe or pervasive sexual harassment as a result of

6 constant offensive comments by customers and a genuine issue of fact as to whether GNLV

7 knew or should have known about the comments. GNLV’s motion as to Fein’s hostile work

8 environment claim is accordingly denied.

9

2. Retaliation

10

The EEOC also claims Fein was retaliated against in violation of Title VII when GNLV

11 terminated her in 2002 and failed to rehire her in 2007. Fein’s actions of both reporting

12 workplace harassment, if proven, and participating in the instant litigation, are undoubtedly

13 protected actions under Title VII. 42 U.S.C. § 2000e-3(a). Termination from employment is a

14 quintessential adverse employment action, while failure to rehire can also constitute an adverse

15 employment action. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1999). However, Fein’s

16 evidence of the last element, a causal connection between reporting harassment and an adverse

17 employment action, is lacking. First, the EEOC provides no evidence that GNLV terminated

18 Fein because of her complaints about sexual harassment. GNLV’s stated reason for her

19 termination was for repeated absences, which is what Fein also understood to be the reason for

20 her termination. (Fein Dep. 140:19–23). Fein told GNLV at her due process meeting prior to her

21 termination that she was having panic attacks causing absences, but she also told GNLV that she

22 did not believe the panic attacks were job-related. (Id. at 125:23–126:2). At her deposition, Fein

23 testified that her prior statement was false. (Id.). Fein also did not complain of any type of

24 harassment at her due process meeting. (Id. at 140:24–141:9). The record shows that Fein was

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1 terminated because of attendance issues, not because she reported workplace harassment, and

2 Fein fails to create a genuine dispute of fact on the issue.

3

Fein also testified at her deposition that she thinks the reason GNLV did not rehire her in

4 2007 was because it knew of her participation in the instant litigation. (See id. at 148:5–10).

5 Aside from Fein’s speculation, there is no other evidence that GNLV, or Tuttle, who Fein

6 communicated with in the re-application process, knew of Fein’s involvement in this lawsuit at

7 the time she sought to be rehired. Fein’s allegations and speculative conclusions are not evidence

8 of Tuttle’s or GNLV’s knowledge of her involvement in the litigation. Nelson v. Pima Cmty.

9 Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a

10 factual dispute for purposes of summary judgment.”) (citing Witherow v. Paff, 52 F.3d 264, 266

11 (9th Cir. 1995)). Making all reasonable inferences in favor of Fein, the record shows that GNLV

12 refused to rehire Fein because she had previously been terminated for attendance problems. Fein

13 fails to create a genuine dispute of fact on this issue. Therefore, the Court grants GNLV’s motion

14 as to Fein’s claim for retaliation in violation of Title VII.

15

Therefore, GNLV’s motion for summary judgment (ECF No. 64) as to Fein’s hostile

16 work environment claim is DENIED, while the motion as to Fein’s retaliation claim is

17 GRANTED.

18

C. Ervin Nixon, Jr.

19

1. Hostile Work Environment—Race Discrimination

20

Nixon complains that he suffered racial discrimination in the following ways: (1) he and

21 other African-American dealers were not assigned to the Dice Pit and were instead assigned to

22 less preferable games including “Table 25” while white dealers received the preferred work

23 assignments, (Nixon Decl. ¶¶ 8, 9, 11, 26; Nixon Dep. 126:2–4); (2) Nixon received less work

24 hours as compared to other part-time dealers with less seniority, and when Nixon complained to

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1 a supervisor, nothing was done and he was retaliated against, (Nixon Decl. ¶¶ 12–13, 18–19, 21);

2 (3) a white co-worker called Nixon “kid” two to three times and when Nixon complained to a

3 supervisor, his supervisor did nothing and said that he did not have time to “baby-sit,” (Id.

4 ¶¶ 32–33, 38); (4) Nixon was reprimanded for two guest complaints reporting Nixon’s “rude”

5 behavior, complaints Nixon believed were based upon Nixon’s race, (Nixon Dep. 43:5–44:22);

6 and (5) Nixon learned that a co-worker was told by a supervisor that “only certain people can

7 switch” shifts, causing Nixon difficulty in switching shifts with co-workers, (Nixon Decl. ¶¶ 28–

8 29).

9

In order to maintain his hostile work environment claim based upon racial discrimination,

10 Nixon must first show that “[he] was subjected to verbal or physical conduct of a [racial]

11 nature.” Porter, 419 F.3d at 892. Nixon presents no evidence that he was subjected to verbal or

12 physical conduct of a racial nature when he was given less desirable work assignments, when he

13 received fewer hours than other part-time dealers, when he was wrongfully disciplined for what

14 he believed to be racially-motivated guest complaints, and when a co-worker had difficulty

15 switching shifts with him. While Nixon himself perceives these incidents to be racially-charged,

16 his speculation is not enough to establish a hostile work environment. Nelson, 83 F.3d at 1081–

17 82. There must be objective evidence that racial harassment “pollute[d] [Nixon’s] workplace.”

18 McGinest, 360 F.3d at 112–13. The Court finds the record lacks evidence that these incidents

19 were racial in nature. Therefore, these incidents cannot support Nixon’s claim for a hostile work

20 environment based on racial discrimination, although they may support a disparate treatment

21 claim, which the Court will address in the next section

22

Nixon’s remaining evidence is that he was called “kid” two or three times by a co-worker

23 and that his supervisor ignored the complaint. Nixon believes that “kid” is the modern equivalent

24 of “boy,” a racially derogatory name towards African Americans. (Nixon Decl. ¶¶ 32, 38).

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1 According to Nixon, the fact that Nixon was about ten years older than the co-worker shows that

2 the term was used as a racial slur. (Id.). The term “kid” may or may not have racial connotations

3 in this case, and there is at least a genuine dispute of fact on this issue. Thus, the Court must

4 analyze whether Nixon provided evidence that the conduct was severe or pervasive enough to

5 alter his working environment. Porter, 419 F.3d at 892. The Ninth Circuit is clear that isolated

6 epithets, even if racially or sexually derogatory, will not support the claim unless the comments

7 create an abusive working environment. Ellison, 924 F.2d at 878. Aside from finding the

8 comments irritating, there is no evidence in the record that Nixon’s work environment became

9 abusive as a result of a co-worker calling Nixon “kid” two or three times. Therefore, the Court

10 grants GNLV’s motion for summary judgment as to Nixon’s hostile work environment claim

11 because Plaintiff fails to produce enough evidence that Nixon was subjected to an abusive

12 working environment.

13

2. Disparate Treatment—Race Discrimination

14

While not plead, the EEOC’s allegations regarding GNLV’s failure to assign Nixon and

15 other African-American employees to the Dice Pit, GNLV’s failure to give Nixon more hours,

16 and Nixon’s difficulties in switching shifts appear to more closely state a discrimination claim

17 for disparate treatment rather than for hostile work environment. To establish a prima facie case

18 of disparate treatment in employment conditions, Nixon must show that: “(1) [he] belong[ed] to

19 a protected class, (2) [he] was performing according to [his] employer’s legitimate expectations,

20 (3) [he] suffered an adverse employment action, and (4) other employees with qualifications

21 similar to [his] own were treated more favorably.” Noyes, 488 F.3d at 1168 (quoting Godwin v.

22 Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)).

23

It is clear here that Nixon fails to make out a prima facie case of disparate treatment

24 discrimination. Even though Nixon is a member of a protected class and even if he suffered

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1 adverse employment actions through undesirable work assignments (although the Court is not

2 sure that he has), Nixon fails to put forth enough evidence to show that similarly situated

3 non-African-American employees were treated more favorably than him. Hawn, Hawn v. Exec.

4 Jet Mgmt., 615 F.3d 1151, 1158 (9th Cir. 2010) (explaining burden on non-moving party to show

5 that the plaintiff is similarly situated to the employees allegedly receiving preferential treatment).

6 There is no evidence of Nixon’s qualifications to work in the Dice Pit, receive more hours, and

7 switch shifts with other employees. Similarly, there is no evidence of the qualifications of the

8 white employees allegedly receiving preferential treatment. For example, Nixon was a part-time

9 employee at GNLV, (see Pl.’s Resp. Req. Admis., Set Three, ECF No. 65-3, at 3), and whether

10 the other employees allegedly receiving more favorable treatment were part-time or full time is

11 unknown. (See Nixon Dep. 126:125, ECF No. 65-2, at 22). It is Nixon’s burden to show he is

12 similarly situated to the employees allegedly receiving preferential treatment in “all material

13 respects,” and Nixon fails to do so. See Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006);

14 Vasquez v. Cnty. of L.A., 349 F.3d 634, 641 (9th Cir. 2003) (“[I]ndividuals are similarly situated

15 when they have similar jobs and display similar conduct.”). Without this evidence, the Court

16 cannot find that Nixon established that he was wrongfully treated differently to make out a prima

17 facie case of disparate treatment discrimination. See Hawn, 615 F.3d at 1159 (9th Cir. 2010)

18 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)) (stating the “ultimate issue”

19 as “whether the employer is treating some people less favorably than others because of their

20 race”) (emphasis added). Thus, GNLV’s motion for summary judgment on a disparate treatment

21 theory is granted as to Nixon.

22

3. Retaliation

23

Nixon also claims he was retaliated against in violation of Title VII when GNLV

24 disciplined Nixon for illegitimate reasons. The Court finds the record contains evidence of

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1 complaints by Nixon to GNLV about racial discrimination followed by instances of discipline

2 against Nixon. The Court also finds the record replete with complaints by Nixon not based on

3 race discrimination, which the Court will not consider for purposes of Nixon’s retaliation claim.

4

In the spring of 2003, Nixon verbally complained to Tommy Newman that he felt he was

5 being discriminated against on the basis of race by being assigned to less desirable locations in

6 the casino. (Nixon. Decl. ¶ 11). In August 2003, Nixon received counseling notices for rudeness

7 to customers and insubordination. (Nixon Decl. Ex. B-22, ECF No. 76-23; Nixon Decl. Ex. B-

8 23, ECF No. 76-24). In January 2004, Nixon verbally complained that only white dealers were

9 assigned to the Dice Pit. (Nixon Decl. ¶ 26). On February 18th, Nixon received a counseling

10 notice for rudeness to customers. (Nixon Decl. Ex. B-27, ECF No. 76-28). In March 2004, Nixon

11 complained to supervisor Art Fahy regarding co-worker Russell Leach’s “kid” comments.

12 (Nixon Decl. ¶ 33). The next day, Nixon received a counseling notice for being argumentative

13 with a box person and supervisor. (Nixon Decl. Ex. B-29, ECF No. 76-30). On March 30, 2004,

14 Nixon wrote a complaint to Human Resources on a form entitled “RACE HARASSMENT,”

15 complaining about his supervisors’ failure to respond to his previous complaints. (Nixon Decl.

16 Ex. B-30, ECF No. 76-31). On April 20, 2004, Nixon received a counseling notice and a

17 three-day suspension for violating a cell phone policy prohibiting use in the public areas and for

18 entering and exiting through a prohibited entrance. (Nixon Decl. Ex. B-32, ECF No. 76-33).

19

Assuming the proximity in time provides the required evidence of causation, Porter, 419

20 F.3d at 895, the Court finds the above-described incidents sufficient to establish a prima facie

21 case of retaliation in violation of Title VII. In each instance, Nixon complained about racial

22 discrimination and an incident of discipline against Nixon followed in a relatively short period of

23 time. Thus, the burden shifts to GNLV to provide evidence of legitimate, non-retaliatory reasons

24 for disciplining Nixon on these occasions. McDonnell Douglas Corp., 411 U.S. at 802.

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1 Addressing rudeness to customers, insubordination to supervisors, and violations of work rules

2 are appropriate reasons to discipline an employee, and GNLV meets its burden. Therefore, to

3 survive summary judgment, therefore, Nixon must provide specific and substantial evidence that

4 GNLV’s reasons for disciplining him were pretextual. Collings, 63 F.3d at 833–34 (citing Steckl,

5 703 F.2d at 393).

6

Nixon may demonstrate pretext by either showing that GNLV’s reasons for disciplining

7 him are not believable or by showing that retaliation more likely motivated the discipline. Noyes,

8 488 F.3d at 1171. The EEOC argues that GNLV’s reasons for disciplining Nixon were pretextual

9 because:

10

[m]any of the adverse actions taken against Nixon by Defendant were

disproportionately severe for Nixon’s alleged offenses. Ervin Nixon testified that

11

other employees received lesser discipline for similar actions, leading him to think

of these actions as retaliatory. Furthermore, Defendant has exhibited a complete

12

failure to properly investigate the allegations before issuing the disciplinary

actions, and never took Nixon’s point of view into account.

13

(Pl.’s Resp. Mot. Summ. J., ECF No. 81, at 28). GNLV points out that these arguments are

14

without reference to evidence in the record, and that Nixon actually testified in his deposition

15

that “[he] wouldn’t have knowledge of [other employees’] discipline.” (Nixon Dep. 285:18–19,

16

ECF No. 102-2). The Court concludes that there is no evidence beyond the EEOC’s arguments in

17

its briefing that other employees actually received lesser discipline for similar offenses.

18

Nonetheless, the Court cannot conclude that the record is completely devoid of evidence of

19

pretext.

20

The Court focuses particularly on the evidence that Nixon received a counseling notice

21

one day after complaining about being called “kid” and received a three-day suspension for

22

violation of a cell-phone policy about three weeks after complaining to Human Resources on a

23

form entitled “RACE HARASSMENT.” Sometimes, temporal proximity between the protected

24

activity and adverse action is enough to show pretext. Bell v. Clackamas Cnty., 341 F.3d 858,

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1 865–66 (9th Cir. 2003). The short period of time between events in Nixon’s case, coupled with

2 what seems like a potentially lengthy suspension, provides enough evidence such that a

3 reasonable jury could find that GNLV’s proffered reasons for disciplining Nixon were

4 pretextual, and that the true motivation was retaliation. While Nixon did not submit evidence that

5 he was disciplined more severely than other employees for similar offenses, GNLV also puts

6 forward no evidence that it issues similar discipline to employees for similar offenses. The Court

7 denies GNLV’s motion as to this claim.

8

Therefore, the Court GRANTS GNLV’s motion for summary judgment (ECF No. 65) as

9 to Nixon’s hostile work environment and disparate treatment claims and DENIES its motion as

10 to Nixon’s retaliation claim.

11

D. Eddie Mae Hunter

12

Hunter’s hostile work environment race discrimination claim is based upon the following

13 incidents while employed at GNLV: (1) On Hunter’s first day of work a shift manager

14 questioned her ability to wear her hair in braids, although Hunter was ultimately never required

15 to remove her braids at GNLV, (Hunter Dep. 101:1–18); (2) a female customer at Hunter’s table

16 referred to a black man as a “monkey” twice, and when Hunter complained to her supervisors,

17 the supervisors said the customer was “ignorant” and promised to give the customer and the

18 customer’s husband a “bad rating,” (id. at 95:13–97:4); (3) Hunter reported to her supervisor that

19 an Asian co-worker was rude when bumping into her in a hallway and the supervisor told her

20 that it was in the co-worker’s culture to be rude, (id.at 97:11–24); (4) a co-worker made negative

21 comments to Hunter about Al Sharpton but Hunter does not believe they were racial slurs and

22 did not report the incident to anyone, (id. at 114:1–4, 115:20–21); (5) a supervisor spoke about

23 Hunter in Spanish to a customer making Hunter uncomfortable, (id. at 111:22–112:12); and (6)

24 Hunter felt supervisor David Tuttle singled her out, although not necessarily based on race, when

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1 he informed her once that she had to quit her other part-time job (id. at 121:21–123:21; 126:17–

2 127:19).

3

Most of Hunter’s supporting evidence shows verbal conduct of a racial nature. See

4 Porter, 419 F.3d at 892 (requiring verbal or physical conduct of a racial nature to sustain hostile

5 work environment claim). However, Hunter’s complaint about a co-worker making “negative,”

6 but not “racial,” comments about Al Sharpton is not racial in nature. Likewise, Hunter’s

7 complaints regarding her supervisor speaking about Hunter to a customer in Spanish and Tuttle’s

8 incident of informing Hunter she must quit her job were not incidents of a racial nature.

9 Therefore, these incidents cannot support Hunter’s hostile work environment claim. The Court

10 therefore must analyze the remaining incidents to determine whether they were unwelcome and,

11 under the totality of circumstances, whether they were sufficiently severe or pervasive to create a

12 hostile work environment. Id.

13

While the Court finds the remaining incidents were unwelcome to Hunter, the Court

14 struggles to find a genuine issue of material fact as to whether the incidents were severe or

15 pervasive. There is no evidence that these few comments spread out over Hunter’s almost five

16 years of employment created an abusive working environment. Brooks, 229 F.3d at 923–24

17 (citing Harris, 510 U.S. at 21). Even though a customer’s conduct of calling an

18 African-American man a “monkey” is racially offensive and egregious, and even if Hunter’s

19 supervisors did not respond appropriately to Hunter’s complaint, the Court still cannot find this

20 incident is sufficiently severe or pervasive to maintain Hunter’s hostile work environment claim.

21 See Faragher, 524 U.S. at 787 (finding that a “mere utterance of an ethnic or racial epithet which

22 engenders offensive feelings in an employee would not sufficiently alter terms and conditions of

23 employment to violate Title VII”); Ellison, 924 F.2d at 878 (“[A]n isolated epithet by itself fails

24 to support a cause of action for a hostile environment.”). Her supervisors’ comments cautioning

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1 Hunter about her braids and noting that Asians have a “rude” culture are similarly offhand and

2 isolated.

3

The Court therefore GRANTS GNLV’s motion for summary judgment as to Hunter (ECF

4 No. 66) because these few comments are not sufficiently severe or pervasive, as a matter of law,

5 to sustain a hostile work environment claim based on racial discrimination.

6

E. Dorothy Blake

7

1. Hostile Work Environment—Sexual Harassment

8

Blake’s hostile work environment claim based upon sexual harassment is based on the

9 following facts: (1) Blake witnessed a female supervisor call over male managers to discuss and

10 “gawk” at women’s breasts, (Blake Dep. 75:13–23, 85:6–17); (2) a female supervisor made

11 sexual gestures and discussed sex with Blake, and when Blake asked her to stop and told her she

12 was embarrassed, the supervisor called Blake a “prude,” (id. at 75:24–76:7, 163:20–24); (3) a

13 male and female supervisor would frequently hug, kiss, and pat each other’s rear ends in the pit,

14 (id. at 76:7–13, 84:22–85:3, 86:2–7); (4) one time a female supervisor drew a man with a large

15 penis on a piece of paper and joked with another supervisor about the image and her sexual

16 preferences, (id. at 76:14–25, 82:14–19, 102:13–17); (5) one time a male customer told Blake

17 that he would like to take her out and “eat [her] pussy,” and when Blake tried to call her manager

18 over to deal with the situation she was told “You can handle it. You’re a big girl.” (id. at 90:3–8,

19 91:7–9, 91:13–15); and (6) male supervisors talked about sex and women’s anatomy on multiple

20 occasions in Blake’s presence.

21

First, the Court addresses the single occasion where a customer made sexually offensive

22 comments to Blake about wanting to take her out and “eat [her] pussy.” The Court notes that

23 GNLV will be liable for the customer’s conduct only if it knew or should have known of the

24 conduct and failed to take immediate corrective action. Folkerson, 107 F.3d at 756. In this

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1 particular instance, Blake admits to not relaying the exact words the customer said to her when

2 she first called out to a supervisor and instead relayed the message to “come over here and get

3 this man, because he’s talking out of line.” (Blake Dep. 91:7–24). When Blake finally relayed

4 the exact comments to her supervisors, the supervisors stood at Blake’s table and the customer’s

5 vulgar comments ceased. (Id. at 94:10–16, 96:7–20). While Blake felt that the supervisors

6 handled the situation improperly because they should have removed the customer from her table,

7 (id. at 97:16–21), the Court finds the supervisors’ response falls short of “condon[ing] or

8 tolerat[ing]” the harassment to make GNLV liable for the customer’s comments. See Lockard,

9 162 F.3d at 1073–74. Thus, even if the comments were severe or pervasive enough to create a

10 hostile work environment, GNLV cannot be liable for the customer’s misconduct because when

11 Blake’s supervisors learned of it, they addressed her complaint and stopped the harassment.

12

Next, the Court considers Blake’s supervisors’ comments and conduct. The Court finds

13 all of the supervisors’ comments and conduct to be unwelcome and of a sexual nature. See

14 Meritor, 477 U.S. at 68. Thus, the remaining inquiries are whether, under the totality of

15 circumstances, the conduct was sufficiently severe or pervasive to create a hostile work

16 environment for Blake and whether GNLV can be liable for the conduct. Porter, 419 F.3d at

17 892; McGinest, 360 F.3d at 1119.

18

With the exception of being called a “prude” in response to asking a supervisor to stop

19 discussions of a sexual nature, the bulk of Blake’s complaints about her supervisors involve

20 situations that Blake witnessed, but in which she did not participate. Witnessing harassing

21 conduct can be enough to establish a hostile work environment claim even if the harassment was

22 never aimed at the plaintiff. See, e.g., Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1194

23 (C.D. Cal. 2013) (noting that witnessing such conduct can affect perception of hostility of

24 workplace). It is unclear in this case, however, whether observing the distasteful conversations

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1 and conduct of her supervisors was sufficiently severe or pervasive to establish a hostile work

2 environment in Blake’s case. Although there is evidence that Blake was embarrassed on a few

3 occasions, there is no evidence that the supervisors’ behavior was physically threatening to Blake

4 or that it unreasonably interfered with her work performance. See McGinest, 360 F.3d at 1113.

5 The record instead shows that Blake observed the sexually-charged banter but the conversations

6 were rarely directed at Blake. “[I]ntersexual flirtation” and “offhand comments” are not the types

7 of conduct Title VII forbids. Oncale, 523 U.S. at 81. Even so, there is evidence in the record that

8 Blake’s supervisors were aware that their comments embarrassed her and made her

9 uncomfortable but that the supervisors continued with their conduct in spite of Blake’s protests.

10

Given that Blake was never threatened and that Blake herself was never the object of the

11 sexual jokes, the evidence is thin that Blake suffered from an abusive working environment as a

12 result of her supervisors’ sexualized comments and behavior. See Jenott v. St. Alphonsus Reg’l

13 Med. Ctr., 2009 WL 5200524, at *7 (D. Idaho, Dec. 23, 2009) (placing importance on the fact

14 that the harassing incidents were never aimed at the plaintiff). However, due to the volume of

15 alleged acts by her supervisors, Blake has at least created a genuine issue of material fact as to

16 whether she suffered from sufficiently severe or pervasive harassment to create a hostile work

17 environment. Thus, the Court moves on to analyze whether GNLV may avail itself of the

18 Faragher/Ellerth affirmative defense to avoid liability for Blake’s supervisors’ alleged sexual

19 harassment. Nichols, 256 F.3d at 877.

20

2. Faragher/Ellerth Affirmative Defense

21

Employers are vicariously liable for sexual harassment by supervisors, subject to the

22 Faragher/Ellerth affirmative defense. Nichols, 256 F.3d at 877. To avoid liability, GNLV must

23 show that it “exercised reasonable care to prevent and correct” the harassing behavior and that

24 Blake “unreasonably failed to take advantage of any preventative or corrective opportunities.” Id.

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1 (quoting Ellerth, 524 U.S. at 765). To establish the affirmative defense, GNLV relies on its

2 sexual harassment policy and Blake’s failure to report any of her supervisors’ harassing

3 behavior.

4

To establish the first prong of the affirmative defense, the employer must have

5 “preventative and remedial measures” in place to address workplace harassment. Hardage v.

6 CBS Broad., Inc., 427 F.3d 1177, 1185 (9th Cir. 2005) (citing Kohler v. Inter-Tel Techs., 244

7 F.3d 1167, 1180–81 (9th Cir. 2001)). Promulgation of an anti-harassment policy and efforts to

8 disseminate the policy to employees demonstrate that the employer exercised reasonable care to

9 prevent workplace sexual harassment. Id. (citing Kohler, 244 F.3d at 1181). However, if the

10 employer did not exercise reasonable care to implement the policy to correct workplace

11 harassment, the employer may still be liable. See, e.g., EEOC v. Braun Elec. Co., 2014 WL

12 1232212, at *7 (E.D. Cal. Mar. 24, 2014) (finding that employer failed to take reasonable

13 corrective measures in two previous instances of harassment, negating the employer’s

14 affirmative defense). Reasonable corrective measures should stop the harassment complained of

15 and deter others from engaging in harassing behavior. Ellison, 924 F.2d at 882.

16

The Court finds that GNLV satisfies the first prong of the Faragher/Ellerth affirmative

17 defense by showing it had both preventative and corrective measures in place to address sexual

18 harassment. GNLV promulgated and disseminated a policy prohibiting sexual harassment in

19 written form, (ECF No. 68-5, at 16), and through in-person sexual harassment trainings, (Blake

20 Dep. 62:25–63:2). The printed policy prohibits sexual harassment, which includes “physical

21 [and] visual . . . sexually oriented” conduct by “hourly, salaried, supervisory and managerial”

22 employees. (ECF No. 68-5, at 16). The policy defines sexual harassment as specifically

23 including “when an employee tells sexually offensive or degrading jokes or stories,” or “when an

24 employee uses sexually oriented profanity, offensive gestures of a sexual nature, or makes

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1 unwelcome comments about the appearance or anatomy of another.” (Id.). The policy instructs

2 employees who have “experienced or witnessed” sexual harassment to report the behavior to

3 their supervisor, or if the employee is uncomfortable discussing the matter with the supervisor, to

4 report it to the Employee Relations or Human Resources departments. (Id.) (emphasis added).

5 The policy states that GNLV will investigate reports of sexual harassment and issue “appropriate

6 disciplinary action.” (Id.). Last, the policy states that it prohibits retaliation against an employee

7 who reports sexual harassment. (Id.).

8

The Court is satisfied that GNLV, through its promulgation and dissemination of its

9 sexual harassment policy, exercised reasonable care to prevent workplace sexual harassment.

10 The Court also finds that GNLV exercised reasonable care to correct workplace harassment. In

11 Blake’s case, the one time she complained of sexual harassment by a customer at her table,

12 Blake’s supervisors came to her table and the harassment stopped. (Blake Dep. 94:10–16, 96:7–

13 20). Thus, concluding that GNLV meets the first prong of the Faragher/Ellerth affirmative

14 defense, the Court considers the second prong and whether Blake “unreasonably failed to take

15 advantage of any preventative or corrective opportunities.” Nichols, 256 F.3d at 877.

16

Generally, an employee’s “unreasonable failure to use any complaint procedure”

17 established by the employer will “suffice to satisfy the employer’s burden” under the second

18 prong. Ellerth, 524 U.S. at 765. Blake signed a copy of GNLV’s sexual harassment policy, (see

19 ECF No. 68-5, at 16), and attended in-person sexual harassment training at GNLV, (Blake Dep.

20 62:25–63:2). In her deposition, Blake admits to not complaining to anyone of her supervisors’

21 inappropriate and sexualized conduct. (Id. at 162:7–168:4). Blake testified that she did not

22 complain because it was her supervisors who engaged in the conduct and Blake “never thought

23 about” going to an assistant casino manager or casino manager to complain. (Id. at 107:8–18).

24 Blake also testified that a supervisor told her to “be careful” about complaining because “[she]

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1 might end up in the mail room,” which Blake understood to mean that she could not complain

2 about sexual harassment. (Id. at 104:14–105:3). The Court finds that Blake’s failure to report her

3 supervisors’ alleged sexual harassment was unreasonable. Blake’s vague concern that she might

4 “end up in the mail room,” is unreasonable given GNLV’s anti-retaliation provision in its sexual

5 harassment policy. That she “never thought about” complaining to anyone besides her

6 supervisors is unreasonable given the explicit instruction in GNLV’s policy that allows

7 employees to bypass their supervisors to report sexual harassment. The purpose of the second

8 prong of the Faragher/Ellerth affirmative defense is to prohibit employees from recovering for

9 those damages that could have been reasonably mitigated. Faragher, 524 U.S. at 806–07. Blake

10 unreasonably failed to report workplace sexual harassment and mitigate her damages, thus

11 establishing GNLV’s affirmative defense. Therefore, the Court grants GNLV’s motion for

12 summary judgment as to Blake’s claim for hostile work environment based on sexual

13 harassment.

14

3. Hostile Work Environment—Race Discrimination

15

Blake’s racially hostile work environment claim is based on the following facts: (1)

16 Blake believes she was assigned to undesirable table games when other dealers could have been

17 assigned to the games but were not, (Blake Dep. 125:6–126:4, 197:14–21); (2) white dealers

18 were immediately given Saturdays and Sundays off, while Blake had to wait for over six months

19 to receive this requested schedule, (id. at 126:24–127:8, 128:20–129:4); (3) employees hired

20 after Blake, including white employees, were given preferred hours for work even though they

21 were hired after Blake, (id. at 123:13–124:5, 130:9–23); (4) Blake overheard a supervisor telling

22 another dealer that they only got their job because they are black or on welfare, (id. at 116:21–

23 117:10); (5) one particular supervisor asked Blake about ten to twenty times if the black

24 customers at her table were Blake’s friends but did not ask whether white customers were her

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1 friends, (id. at 124:6–19, 133:12–19); and (6) Blake received attendance points when she

2 requested to go home early while a white employee “[went] home all the time without a point,”

3 (id. at 136:5–14).

4

Of these facts, the only incident that could support a hostile work environment claim

5 based on racial discrimination is Blake’s overhearing a supervisor say that the only reason

6 African-Americans got their jobs at GNLV was because they are black or on welfare. All of the

7 other incidents do not qualify as verbal or physical conduct of a racial nature. Porter, 492 F.3d at

8 892. While not supportive of a hostile work environment claim, these other incidents may

9 support a disparate treatment claim, which the Court will discuss below. The single isolated

10 offensive comment about African-American employees being black or on welfare is not, as a

11 matter of law, sufficiently severe or pervasive to create a hostile work environment. Ellison, 924

12 F.2d at 878; Faragher, 524 U.S. at 787 (“[A] mere utterance of an ethnic or racial epithet which

13 engenders offensive feelings in an employee would not sufficiently alter terms and conditions of

14 employment to violate Title VII.”). Therefore, the Court grants GNLV’s motion as to Blake’s

15 hostile work environment claim based on racial discrimination.

16

4. Disparate Treatment—Race Discrimination

17

Establishing a prima facie case of disparate treatment in employment conditions requires

18 Blake to show she was performing according to GNLV’s legitimate expectations and that GNLV

19 treated other non-African-American employees with similar qualifications more favorably.

20 Noyes, 488 F.3d at 1168 (citing Godwin, 150 F.3d at 1220). The bulk of Blake’s evidence of

21 disparate treatment centers on receiving less desirable work assignments, receiving fewer work

22 hours, and being disciplined more than white employees. For example, Blake complains that

23 white employees were immediately given Saturdays and Sundays off, while Blake had to wait

24 for over six months to receive the same schedule. (Blake Dep. 126:24–127:8, 128:20–129:4).

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1 Blake also complained that she received attendance points when she requested to go home early

2 but hat a certain white employee “[went] home all the time without a point.” (Id. at 136:5–14).

3

While Blake testified that GNLV gave preferential treatment to white dealers, Blake

4 provides no other evidence to show that her qualifications were equal to or exceeded that of these

5 dealers who allegedly received the preferential treatment. Without some evidence in the record,

6 the Court cannot infer that Blake was “similarly situated” in “all material respects” to the white

7 dealers at GNLV, which is required to make out a prima facie claim of disparate treatment

8 discrimination. Moran, 447 F.3d at 755. Accordingly, the Court grants GNLV’s motion as to

9 Blake under a disparate treatment theory.

10

5. Retaliation

11

Blake claims two instances of retaliation in violation of Title VII. First, Blake argues that

12 she was retaliated against by being assigned to a less desirable game after complaining to Pit

13 Manager Richard Freeman about her work assignments. (See Pl. Resp. Def. Mot. Summ. J., ECF

14 No. 83, at 28). Second, Blake argues she was terminated for her participation in this lawsuit. (See

15 id.). As to Blake’s first asserted instance of retaliation, the Court cannot find that Blake has

16 presented evidence of a prima facie case of retaliation. A prima facie case requires showing a

17 causal connection between Blake engaging in an activity protected by Title VII and GNLV’s

18 adverse employment action. Manatt, 339 F.3d at 800 (citing Ray, 217 F.3d at 1240). Blake

19 complained to Freeman that the game she was assigned to was hurting her back. (Blake Dep.

20 104:1–12). Blake testified that Freeman responded by telling her to “be careful” about what she

21 complained about “because she might end up in the mail room.” (Id. 103:16–24). Blake did not

22 engage in any activity protected by Title VII when she complained about her game assignment

23 because she was not complaining about something that violates Title VII; in other words, Blake

24 was not complaining about discrimination on the basis of her race, gender, religion, or national

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1 origin. See EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 963 (9th Cir. 2009) (concluding

2 that complaining about discrimination based upon national origin and religion constitutes a

3 “protected activity”). Therefore, there is no basis for a retaliation claim based upon GNLV

4 allegedly giving Blake undesirable work assignments in response to Blake’s complaint that a

5 particular game was hurting her back, because Blake did not engage in any protected activity.

6

There is slightly more evidence to support Blake’s theory that she was terminated for her

7 participation in this lawsuit rather than for the stated reason of taking excessive medical leave.

8 Blake spoke with the EEOC before being terminated in November 2004. (Id. at 170:22–171:9).

9 Blake learned that GNLV knew of her involvement in the lawsuit prior to being terminated,

10 although Blake cannot remember who told her these facts. (Id. at 171:6–172:2). Blake also

11 learned from a co-worker that another employee that had taken more medical leave than Blake

12 was not terminated. (Id. at 172:3–22). Assuming Blake can make out a prima facie case of

13 retaliation, the burden shifts to GNLV to provide legitimate, non-retaliatory reasons for

14 terminating Blake. McDonnell Douglas Corp., 411 U.S. at 802. The Court finds that GNLV

15 adequately rebuts the presumption with evidence of Blake’s documented attendance issues

16 including a series of attendance points, verbal counselings, warnings, leaves of absence, and a

17 suspension pending investigation. (See Pl.’s Resp. Req. Admis., ECF No. 68-2, at 5–10). The

18 attendance issues culminated in a due process meeting where Blake expressed that she hoped to

19 be able to return to work but was unsure if she would be able to. (Id. at 11). Making all

20 reasonable inferences in favor of Blake, the Court finds that the record supports that Blake was

21 terminated because she failed to return to work from medical leave and was unsure if she would

22 be able to return because of her medical condition. Given that Blake provides no specific and

23 substantial evidence that GNLV’s reasons for terminating Blake were pretext, Collings, 63 F.3d

24 at 833–34, the Court grants GNLV’s motion as to Blake’s retaliation claim.

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1

Therefore, the Court GRANTS GNLV’s motion for summary judgment as to Blake (ECF

2 No. 68) in its entirety.

3

F. Tequella Candice Smith

4

1. Hostile Work Environment—Sexual Harassment

5

Tequella Candice Smith’s claim for hostile work environment based upon sexual

6 harassment is based on the following facts: (1) over a period of about a month, a supervisor

7 would “come get [Smith]” and take her to a storage closet and “kiss on [her] and touch her all

8 over body, (Smith Dep. 38:9–39:11, 40:18–23, 41:11–18, 5:9–12); (2) a co-worker touched

9 Smith on her rear and chest while they worked together, (id. at 101:18–23); (3) a chef once told

10 Smith that “I wish you will wash me the way you wash your silverware,” (id. at 56:13–23); and

11 (4) Smith witnessed a male co-worker make sexual comments to a female employee, (id. at

12 92:24–93:5).

13

The Court first addresses Smith’s complaints about sexual harassment by co-workers.

14 GNLV will only be liable if it knew or should have known of the conduct and failed to stop it.

15 Ellerth, 524 U.S. at 759. Smith complained to her supervisors that a co-worker was harassing her

16 over a period of weeks when he would make comments to her inappropriately. (Smith Dep.

17 101:18–102:7). In response, Smith’s supervisor accommodated her request to be assigned to a

18 different kitchen. (Id. at 109:23–110:8). When Smith returned to working with the co-worker, he

19 continued to bother her, but not sexually. (Id. at 124:3–25, 136:17–20). In a subsequent incident,

20 Smith claims the co-worker touched her on her chest again, but Smith failed to report this to

21 GNLV. (Id. at 148:20–25, 150:22–151:4). Accordingly, even if these incidents were severe or

22 pervasive enough to create a hostile work environment for Smith, GNLV will not be liable for

23 this co-worker’s conduct because GNLV stopped the sexually harassing conduct that it was

24 made aware of. GNLV cannot be held liable for the final incident of the co-worker touching

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1 Smith’s chest because Smith failed to report it and there is no evidence that GNLV should have

2 known about the incident.

3

In regards to the chef’s comment to Smith about wanting her to “wash [him]” like the

4 silverware, Smith reported the incident to a supervisor and Smith believes the supervisor “[took]

5 care of” the situation because the chef never spoke to Smith again. (Id. at 57:9–13). The Court

6 finds that GNLV avoids liability for this chef’s conduct because GNLV took action to stop the

7 harassment. Last, Smith complained about a male co-worker making sexually explicit comments

8 to a fellow female employee. (Id. at 92:24–93:5). Smith complained about the conduct to a

9 supervisor and recalls that the co-worker was required to talk with Human Resources about the

10 incident. (Id. at 96:7–11). There is no evidence that the conduct continued after the co-worker

11 was required to speak with Human Resources, but even if it did, the Court finds GNLV would

12 not be liable for creating a hostile work environment. The sexual comments were not directed at

13 Smith, and even if offensive, they were not sufficiently severe or pervasive to alter the terms and

14 conditions of Smith’s employment and create an abusive working environment. Oncale, 523 U.S.

15 at 81; Jenott, 2009 WL 5200524, at*7–*8. Therefore, the Court finds that GNLV is not liable for

16 co-worker sexual harassment creating a hostile work environment for Smith.

17

Smith’s evidence of supervisor sexual harassment, however, may impose liability on

18 GNLV. Smith’s account of supervisor Daniel Quintana taking her to a storage closet on four to

19 five occasions over a period of a month to “kiss on [her]” and touch her all over her body is most

20 certainly physical conduct of a sexual nature. Porter, 419 F.3d at 892. Smith also testified that

21 the conduct was unwanted. (Smith Dep. 40:1–8, 40:12–19). Moreover, a reasonable jury could

22 conclude that such unwanted kissing and touching by a supervisor in a secluded storage area

23 could alter the terms and conditions of Smith’s employment to create an abusive working

24 environment. The Court accordingly finds there is a genuine issue of material fact as to whether

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1 the conduct was sufficiently severe or pervasive to create a hostile work environment for Smith.

2 Harris, 510 U.S. at 21.

3

2. Faragher/Ellerth Affirmative Defense

4

While GNLV could be vicariously liable for Quintana’s conduct if proven, GNLV may

5 still avail itself of the Faragher/Ellerth affirmative defense at the summary judgment stage.

6 Nichols, 256 F.3d at 877. To avoid liability, GNLV must show that it “exercised reasonable care

7 to prevent and correct” the harassing behavior and that Smith “unreasonably failed to take

8 advantage of any preventative or corrective opportunities.” Id. (quoting Ellerth, 524 U.S. at 765).

9 To establish the affirmative defense, GNLV relies on the policies in its employee handbook and

10 Smith’s failure to report Quintana’s conduct.

11

First, GNLV must show it has “preventative and remedial measures” in place to address

12 workplace harassment. Hardage, 427 F.3d at 1185 (citing Kohler, 244 F.3d at 1180–81).

13 Promulgation of an anti-harassment policy and efforts to disseminate the policy to employees

14 demonstrate that the employer exercised reasonable care to prevent workplace sexual

15 harassment. Id. (citing Kohler, 244 F.3d at 1181). However, if the employer did not exercise

16 reasonable care to implement the policy to correct workplace harassment, the employer may still

17 be liable. See, e.g. EEOC v. Braun Elec. Co., 2014 WL 1232212, at *7 (E.D. Cal. Mar. 24, 2014)

18 (finding that employer failed to take reasonable corrective measures in two previous instances of

19 harassment, negating the employer’s affirmative defense). Reasonable corrective measures

20 should stop the harassment complained of and deter others from engaging in harassing behavior.

21 Ellison, 924 F.2d at 882.

22

The Court finds that GNLV satisfies the first prong of the Faragher/Ellerth affirmative

23 defense by showing it had both preventative and corrective measures in place to address sexual

24 harassment. As previously stated, GNLV promulgated and disseminated its anti-harassment

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1 policy in written form through its employee handbook, (ECF No. 70-6, at 31), and through

2 in-person “zero tolerance” trainings, (Smith Dep. 58:23–59:17). The policy in the handbook

3 prohibited workplace harassment based on sex and advised employees the following regarding

4 reporting harassment:

5

If you feel that you have experienced or witnessed harassment, you should discuss

it with your supervisor or department head. If you are uncomfortable discussing

6

the matter with your supervisor or department head, contact a member of the

Employee Relations Department, Director of Human Resources, or the Vice

7

President of Human Resources immediately. Do not let a problem fester . . . . If an

investigation confirms that harassment has occurred, discipline will be imposed as

8

appropriate.

9 (ECF No. 70-6, at 31–32). The handbook also advised employees that “victims of harassment

10 shall not be retaliated against in any way for making a complaint or cooperating in an

11 investigation.” (Id. at 32). Smith testified in her deposition that she received and read the

12 employee handbook at or near the time she was hired and attended a “zero tolerance” training.

13 (Smith Dep. 58:23–59:17). Smith also testified that she understood that GNLV prohibited sexual

14 harassment of its employees and that an employee was to “tell [their] supervisor or someone

15 higher” if experiencing sexual harassment. (Id. at 61:17–24).

16

GNLV also established that it had reasonable corrective measures to address sexual

17 harassment. Although GNLV was not made aware of the incidents involving Quintana until

18 Smith’s deposition, the record shows that when Smith complained of sexual harassment on other

19 occasions, GNLV took action to stop the harassing conduct. When Smith complained about a

20 co-worker touching her rear end and chest, GNLV transferred Smith to work in another kitchen

21 per her request and promptly conducted an investigation. (Id. at 109:23–110:3, 113:17–115:12).

22 When Smith complained of a chef’s inappropriate comments, Smith believes her supervisor

23 “took care of” the situation by speaking to the chef which led to the chef no longer speaking to

24 Smith. (Id. at 57:3–13). When Smith complained of a co-worker making inappropriate comments

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1 to another female employee, the co-worker was required to speak with Human Resources. (Id. at

2 96:3–11). The evidence shows that GNLV was responsive to her complaints about sexual

3 harassment, and Smith fails to create a genuine dispute of fact on this issue.

4

Under the second prong of the Faragher/Ellerth affirmative defense, GNLV must show

5 that Smith unreasonably failed to take advantage of preventative or remedial measures.

6 Faragher, 524 U.S. at 806–07. The purpose of the second prong is to require the employee to

7 mitigate her damages and prohibit recovery of damages for what could have been avoided. Id.

8 Generally, an employee’s “unreasonable failure to use any complaint procedure” established by

9 the employer will “suffice to satisfy the employer’s burden under” the second prong. Ellerth, 524

10 U.S. at 765. GNLV argues that Smith’s failure to report the incidents with Quintana was

11 unreasonable. Smith testified in her deposition that “[she] didn’t tell anyone because [she] was

12 scared of losing [her] job.” (Smith Dep. 47:14–15). Smith did not give any reason for her

13 subjective fears and admitted that she understood that sexual harassment was prohibited at

14 GNLV and that she was permitted to report problems to the Employee Relations or Human

15 Resources departments instead of her supervisors. (Id. at 47:20–48:4, 50:1–15). The Court finds

16 three Ninth Circuit cases instructive on whether an employee is unreasonable in failing to report

17 sexual harassment.

18

In Holly D. v. Cal. Inst. of Tech., the court found that the plaintiff’s delay in reporting

19 supervisor sexual harassment for two years after the first incident was unreasonable given that

20 written policy materials specifically identified numerous individuals that could receive and

21 process complaints. 339 F.3d 1158, 1178–1179 (9th Cir. 2003). Even though the plaintiff felt

22 uncomfortable in making the complaint with the employee relations department due to a

23 previous bad experience with a disability discrimination complaint, the plaintiff’s failure to

24 explain why she did not seek help through the various other sources offered by the employer

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1 established the employer’s affirmative defense. See id. at 1179 (finding it unreasonable that the

2 plaintiff “made no attempt to seek relief from any person able to help put a stop to the

3 harassment”).

4

In Montero v. AGCO Corp., the plaintiff waited almost two years from the start of the

5 alleged sexual harassment before complaining to the human resources department. 192 F.3d 856,

6 863 (9th Cir. 1999). The court found this delay to be unreasonable given the plaintiff knew about

7 the policy prohibiting sexual harassment and knew who to contact if she was being subjected to

8 sexual harassment. Id. In Kohler v. Inter-Tel Techs., the plaintiff failed to tell anyone she had

9 quit because of sexual harassment prior to initiating a lawsuit against the employer. 244 F.3d at

10 1181. The record showed that the plaintiff was aware of the policy prohibiting sexual harassment

11 and that she was aware she could report harassment to management or the human resources

12 department. Id. The court found the plaintiff’s failure to report the harassment while working for

13 the defendant was unreasonable. Id. at 1182.

14

Like in these cases, Smith’s complete failure to report the harassment by Quintana was

15 unreasonable. The record shows that Smith was permitted to bypass her immediate supervisors

16 and managers and report the incident to Human Resources and/or Employee Relations if she felt

17 more comfortable doing so. GNLV’s employee handbook also reiterated an anti-retaliation

18 policy, making her fear of being fired for reporting Quintana’s conduct unreasonable. Smith fails

19 to create a genuine issue of fact as to whether she was unreasonable in failing to report

20 Quintana’s conduct. Therefore, the Court finds GNLV has established an affirmative defense and

21 grants its motion as to Smith’s hostile work environment claim based upon sexual harassment.

22

3. Hostile Work Environment—Race Discrimination

23

Smith also alleges that she was forced to work in a hostile work environment based upon

24 race discrimination. There are two factual allegations supporting this claim. First, Smith alleges

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1 that when she was hired, she was told by GNLV’s management that they were not sure she was

2 allowed to wear her hair in braids or in a burgundy color. (Smith Dep. 180:15–24). Second,

3 Smith believes she was harassed based on the fact that she is African-American when security

4 guards at GNLV would unnecessarily ask her and other minorities to show her employee badge.

5 (Id. at 183:10–185:15). There is no evidence other than Smith’s suspicions that the guards’

6 actions of asking for badges were motivated by race. As such, these instances fall well short of

7 establishing a hostile work environment based on severe or pervasive conduct of a racial nature.

8 Therefore, the Court grants GNLV’s motion as to Smith’s claim for a hostile work environment

9 based on race discrimination.

10

4. Retaliation

11

Smith claims GNLV violated Title VII when it issued her unwarranted discipline. Three

12 instances of discipline form the basis for Smith’s retaliation claim. First, the EEOC argues that

13 Smith was retaliated against by being suspended for one day after first complaining that Bada

14 inappropriately touched her in July 2003. (See Pl.’s Resp. Def. Mot. Summ. J., ECF No. 85, at

15 9). The Court rejects this argument as Smith herself testified that she was not suspended at all for

16 this incident. (Smith Dep. 258:8–17). Second, the EEOC argues that Smith was retaliated against

17 when she was suspended for three days for throwing a bus tub at Bada and engaging in a

18 physical altercation with Bada after complaining that Bada was sexually harassing her. (See Pl.’s

19 Resp. Def. Mot. Summ. J., ECF No. 85, at 9). Again, the Court rejects this argument because

20 Smith testified that she did not notify GNLV of any sexually offensive conduct by Bada leading

21 up to the altercation and therefore could not be retaliated against for complaining that Bada was

22 sexually harassing her. (Smith Dep. 150:22–151:4; 155:6–10).

23

Third, the EEOC argues that Smith was retaliated against when she was suspended for

24 five days for using her cell phone to call her brother to tell him about Bada groping her breast.

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1 (See Pl.’s Resp. Def. Mot. Summ. J., ECF No. 85, at 10). Smith testified in her deposition that

2 she told at least one supervisor of Bada’s conduct before being suspended. (Smith Dep. 174:13–

3 23). The EEOC argues that the disciplinary actions taken by GNLV, including the five day

4 suspension for Smith’s cell phone policy violation “were disproportionately severe for Ms.

5 Smith’s alleged offenses since Ms. Smith was merely protecting herself from Bada's egregious

6 sexual conduct toward her, and Defendant has exhibited a complete failure to properly

7 investigate the allegations before issuing the disciplinary actions.” (Pl.’s Resp. Def. Mot. Summ.

8 J., ECF No. 85, at 28). GNLV argues that the discipline was appropriate, considering Smith

9 violated GNLV’s cell phone policy and that Smith allowed dishes to break while she left her

10 work station to use her cell phone. (See ECF No. 76-49). Smith denies she allowed any dishes to

11 break during this incident. (Smith Dep. 176:17–24).

12

To make out a prima facie case of retaliation, there must be evidence in the record that:

13 (1) Smith engaged in an activity protected by Title VII, (2) GNLV subjected Smith to an adverse

14 employment action, and (3) a causal connection exists between the two. Manatt, 339 F.3d at 800

15 (citing Ray, 217 F.3d at 1240). The Court finds that Smith establishes that she engaged in a

16 protected activity when she told a supervisor about Bada’s conduct leading up to her use of the

17 cell phone and that GNLV’s five-day suspension suffices as an adverse employment action.

18 Smith also establishes a causal connection between the two events for purposes of making out a

19 prima facie case of retaliation because of the close proximity in time between her complaining

20 about Bada and her suspension, Porter, 419 F.3d at 895, as it appears that the incident and

21 suspension occurred on the same day, (see ECF No. 76-49).

22

Because Smith makes out a prima facie case of retaliation, the burden shifts to GNLV to

23 advance a legitimate, non-retaliatory reason for the discipline. McDonnell Douglas Corp., 411

24 U.S. at 802. The Court finds that GNLV meets this burden because the proffered reasons for

58 of 61

Case 2:06-cv-01225-RCJ-PAL Document 160 Filed 12/18/14 Page 59 of 61

1 Smith’s suspension, violation of a work rule prohibiting use of cell phones while working and

2 allowing dishes to break, if proven, are legitimate and non-retaliatory. Thus, the burden shifts

3 back to Smith to put forth “specific, substantial evidence” of pretext. Collings, 63 F.3d at 833–34

4 (quoting Steckl, 703 F.2d at 393). Smith may demonstrate pretext by showing that GNLV’s

5 reasons for disciplining her are false or by showing that retaliation more likely motivated GNLV.

6 Noyes, 488 F.3d at 1171. Sometimes, temporal proximity between a protected activity and the

7 adverse employment action is enough to show pretext. Bell, 341 F.3d at 865–66.

8

Viewed in the light most favorable to Smith, the evidence in the record shows that Smith

9 told a supervisor that Bada groped her breast and that this is the reason she left her work station

10 to use her cell phone. Contemporaneously, Smith was suspended for five days. A reasonable jury

11 could conclude that the suspension was disproportionately severe and pretext for retaliation

12 against Smith, considering that the reason Smith claims she left her workstation was because

13 Bada groped her breast. GNLV’s motion as to Smith’s claim for retaliation therefore is denied.

14

Smith also claims she was retaliated against by manager Jay Bluhm when he directed her

15 to stick her hands in soapy water to retrieve dishes knowing of her allergies to the soap after she

16 had reported discriminatory conduct by the security guards. (See Smith Dep. 205:19–207:10).

17 Even if Smith could establish a prima facie case of retaliation for this incident, the Court finds

18 that GNLV successfully rebuts the presumption with evidence that the reason Bluhm gave the

19 instruction to Smith was because that particular work station was understaffed and dishes needed

20 to be retrieved immediately. (Smith Dep. 200:1–7, 206:23–207:3). The Court finds this reason to

21 be legitimate and non-retaliatory. Smith fails to provide any evidence that these proffered

22 reasons are pretext. Accordingly, Bluhm’s conduct will not support Smith’s claim for retaliation.

23 In sum, GNLV’s motion for summary judgment of Smith’s retaliation claim is denied with

24 respect to the allegations regarding Smith’s suspension for violating the cell phone policy.

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1

Therefore, the Court GRANTS GNLV’s motion for summary judgment (ECF No. 70) as

2 to Smith’s claim for hostile work environment and DENIES the motion as to Smith’s claim for

3 retaliation.

4 ///

5 ///

6 ///

7 ///

8 ///

9 ///

10 ///

11 ///

12 ///

13 ///

14 ///

15 ///

16 ///

17 ///

18 ///

19 ///

20 ///

21 ///

22 ///

23 ///

24

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Case 2:06-cv-01225-RCJ-PAL Document 160 Filed 12/18/14 Page 61 of 61

1

CONCLUSION

2

IT IS HEREBY ORDERED that Defendant’s motion for summary judgment as to Robert

3 Royal (ECF No. 63) is GRANTED.

4

IT IS FURTHER ORDERED that Defendant’s motion for summary judgment (ECF No.

5 64) as to Susie Fein is GRANTED in part and DENIED in part. The motion as to the hostile

6 work environment claim is DENIED, but the motion is GRANTED as to Fein’s retaliation claim.

7

IT IS FURTHER ORDERED that Defendant’s motion for summary judgment (ECF No.

8 65) as to Ervin Nixon Jr. is GRANTED in part and DENIED in part. The motion is GRANTED

9 as to the hostile work environment and disparate treatment claims, but it is DENIED as to

10 Nixon’s retaliation claim.

11

IT IS FURTHER ORDERED that Defendant’s motion for summary judgment as to Eddie

12 Mae Hunter (ECF No. 66) is GRANTED.

13

IT IS FURTHER ORDERED that Defendant’s motion for summary judgment as to

14 Dorothy Blake (ECF No. 68) is GRANTED.

15

IT IS FURTHER ORDERED that Defendant’s motion for summary judgment as to

16 Tequella Candice Smith (ECF No. 70) is GRANTED in part and DENIED in part. The motion is

17 GRANTED as to the hostile work environment claim, but it is DENIED as to Smith’s retaliation

18 claim.

19

IT IS SO ORDERED.

20

21 Dated: _D_a_t_e_d__th_i_s_1_8__th__d_a_y__o_f _D_e_cember, 2014.

22

_____________________________________

23

ROBERT C. JONES

United States District Judge 24

61 of 61

 
 Case 2:06-cv-01225-RCJ-PAL Document 178-1 Filed 02/24/16 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

GNLV CORP., d/b/a GOLDEN NUGGET )

HOTEL AND CASINO, and DOE 1-10, )

inclusive

)

)

)
_________________D_ef_e_nd_a_nt_. __ ))

CIVIL ACTION NO. 2:06-CV-01225-RCJ-PAL

FINAL ORDER

The parties to this Final Order are the Plaintiff, United States Equal Employment

Opportunity Commission ("EEOC"), Defendant, GNLV Corp., d/b/a Golden Nugget Hotel and

Casino, and DOE 1-10 inclusive ("GNLV"). This Final Order resolves Civil Action No. 2-cv-

01225-RCJ-PAL, which the EEOC initiated under Title VII of the Civil Rights Act of 1964, as

amended, and Title I of the Civil Rights Act of 1991 (the "Lawsuit").

This case is resolved as set forth in this Final Order.

THEREFORE, this Court ORDERS, ADJUDGES AND DECREES that:

1. This Court has jurisdiction to enforce the provisions of this Final Order.

2. This Final Order resolves all issues, including all like-and-related issues, raised in

EEOC Charge Number 340A300813 and the Lawsuit. This Final Order further resolves all

issues in the Complaint filed by the EEOC in this civil action. This case is hereby dismissed

with prejudice. The EEOC does not waive processing or litigating charges or cases other than

the above-referenced charge and Complaint.

EEOCv.GNLV Final Order

Pagel

Case 2:06-cv-01225-RCJ-PAL Document 178-1 Filed 02/24/16 Page 2 of 6

3. GNLV acknowledges and will comply with its statutory obligation under Title VII, and will not retaliate in any way against any employee because of opposition to any practice declared unlawful under the Title VII.
4. GNLV agrees to post the Notice appended hereto as Attachment "A" on the employee bulletin board at its Las Vegas location within 10 days after the entry of this Final Order. GNLV will send a letter to the EEOC that it has complied with this requirement within 30 days after posting the notice. The Notice will remain posted through February 2018.
5. Defendant agrees to conduct annual training for all employees before December 31, of each year- 2016 and 2017. The training shall be at least one (1) hour in duration and will include:
a. Training regarding all aspects of how to handle any harassment by a third party, including customers and suppliers of GNLV, including how to address and report claims of harassment, as well as the process associated with the investigation ofsuch claims.
b. Training of all employees regarding the anti-retaliation provisions of Title VII, with specific examples of what constitutes "protected activity and clear articulation of the mandatory prohibition against taking any adverse employment action when an employee engages in such activity.
c. GNLV will send a letter to the EEOC confirming that the annual training was conducted within 30 days of the completion of the training.
6. The Court previously issued orders in the Lawsuit dismissing all class "pattern or practice" allegations brought in the matter, dismissed all claims asserted on behalf of Robert Royal, Eddie Mae Hunter and Dorothy Blake, and to date has made no finding of wrongdoing on the part of GNLV as to any remaining individual claimant.

EEOCv.GNLV Final Order

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Case 2:06-cv-01225-RCJ-PAL Document 178-1 Filed 02/24/16 Page 3 of 6

7. GNLV denies any such wrongdoing and without admitting liability, and to avoid the expense of further litigation, simply agrees to buy its peace by paying the remaining individual claimants, Susan Fein, Ervin Nixon and Candace Smith, a total of $30,000 (thirty thousand dollars) in full and final settlement of the claims asserted in this dispute. GNLV denies any wrongdoing against anyone named in the Lawsuit including the remaining individual claimants and GNLV is making the payments to such individuals and agreeing to entry of this Final Order solely to buy its peace. The EEOC will infonn GNLV how to allocate the $30,000 among the remaining individual claimants and of the current mailing address of each individual claimant, and will provide GNLV with a current IRS Fonn W9 executed by each such claimant within 14 days of the entry of this Final Order. Within 14 days of receipt of such infonnation from the EEOC, GNLV will mail payment to the individual claimants by certified mail and shall send a letter to the EEOC with proof of payment. GNLV will issue an IRS Form 1099 to each recipient in the ordinary course of business.
8. All letters to the EEOC required by this Final Order, as referenced in Paragraphs 4, 5 and 7 above, shall be sent to Devika Seth, Senior Trial Attorney, 207 S. Houston Street, 3rd Floor, Dallas, Texas 75202.
9. The parties agree to bear their own costs associated with this action, including attorney's fees.
10. The Court has the right to specifically enforce the terms of this Final Order. Nothing in this Final Order shall preclude further actions by the EEOC or any other person to remedy any other alleged violations of Title VII by GNLV.
11. The effective date of this Final Order shall be the date upon which it is signed by the Court.

EEOCv.GNLV Final Order

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Case 2:06-cv-01225-RCJ-PAL Document 178-1 Filed 02/24/16 Page 4 of 6
12. The Court shall retain jurisdiction to enforce the terms of this Final Order.
~~~:&A~ Re= tfully sub.mitted~ _
ROBERT A. CANINO Regional Attorney Oklahoma State Bar No. 011782
~JtsTf~ Supervisory Trial Attorney Texas State Bar No. 04855720
DEVIKASETH Senior Trial Attorney District of Columbia Bar No. 975161
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 Phone: (214) 253-2760 Fax: (214) 253-2749
ATTORNEYS FOR PLAINTIFF EEOC

EEOCv.GNLV Final Order

Page4

Case 2:06-cv-01225-RCJ-PAL Document 178-1 Filed 02/24/16 Page 5 of 6

ROBERT EDWARD PERKINS SHEEHY WARE & PAPPAS, P.C. 909 Fannin Street Houston , TX 770 10 Phone: (713) 951-1004
Fax: (713) 289-2004
eperkins@ sheehyware.c o m
ERIC W. SWANIS GREENBERG TRAURIG LLP 3773 Howard Hughes Parkway, Suite 400 North Las Vegas, NV 89169 Phone: (702) 792-3773
Fax: (702) 792-9002
swanise@ gtlaw.com
ATTORNEYS FOR DEFENDANT GNLV CORP d/b/a GOLDEN NUGGET HOTEL AND CASINO
SO ORDERED AND ENTERED:

DATE

ROBERT C. JONES UNITED STATES DISTRICT JUDGE

EEOCv.GNLV Final Order

PageS

Case 2:06-cv-01225-RCJ-PAL Document 178-1 Filed 02/24/16 Page 6 of 6
Exhibit A
NOTICE TO ALL EMPLOYEES
This Notice is being posted pursuant to a request by the U.S. Equal Employment Opportunity Commission ("EEOC") and Golden Nugget Hotel and Casino ("Golden Nugget") agreed to do so.
Federal and state law require that there be no discrimination against any employee or applicant for employment because of the employee's religion, race, color, sex, national origin, age or disability ("protected category") with respect to hiring, firing, compensation or other terms and conditions of employment. Harassment by customers based on any protected category will not be tolerated.
Federal and state law require that there be no retaliation against any employee because that person has opposed what he or she believes to be an unlawful employment practice, has filed a charge of discrimination, or has given testimony, assistance, or participated in any manner in any investigation, proceeding or hearing under Title VII of the Civil Rights Act of 1964, as amended.
An employee has, and should exercise, the right to report allegations of discrimination, including customer harassment based on any protected category in the workplace. An employee may do so by notifying any one of the following: The Employee Relations Department at 702.398.8217, the Vice President of Human Resources at 702.386.8136 or to any other supervisor or Member of Management with whom the employee feels comfortable. Supervisors and managers who are informed of a complaint or allegations of discrimination must immediately notify the Employee Relations Department at 702.386.8217 or the Vice President of Human Resources at 702.386.8136. In addition or in the alternative, an employee may contact the EEOC, Las Vegas Local Office: 333 Las Vegas Blvd. South, Suite 8112, Las Vegas, NV 89101, toll-free: 1-800669-4000; TTY: 1-800-669-8820.
Any report of discrimination will be thoroughly investigated, and appropriate disciplinary action, up to and including termination, may be taken against any person(s) found to have engaged in such conduct.

EEOCv.GNLV Final Order

Page6

 
 1

2

3

4

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA 5

6 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
7
Plaintiff, 8
vs. 9
GNLV CORP. d/b/a GOLDEN NUGGET HOTEL 10 AND CASINO, and DOES 1-10, inclusive,

11

Defendants.

12

2:06-cv-01225-RCJ-PAL ORDER

13

This employment discrimination case is on remand from the Ninth Circuit Court of

14 Appeals. Previously, Judge Brian E. Sandoval granted Defendant GNLV’s motion for summary

15 judgment on Plaintiff’s claim that Defendant harbored a pattern or practice of racial and sexual

16 discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). (ECF No.

17 110). Because summary judgment was granted in Defendant’s favor as to the pattern-or-practice

18 allegations, Judge Sandoval found that the claims of the six individual employees were moot.

19 (Id. at 4). On appeal, the Ninth Circuit affirmed the pattern-or-practice ruling but held that the

20 mootness finding as to the individual employees’ claims was in error, reasoning that “[a]

21 judgment in favor of an employer on a class-wide pattern-or-practice claim does not preclude

22 class members from brining individual discrimination claims.” (Ninth Circuit Op. 2, ECF No.

23 137). The case was thus remanded for further proceedings on the individual employees’ claims.

24 1

1 I. FACTS AND PROCEDURAL HISTORY

2

The parties are well-acquainted with the facts of this case and the Court provides only a

3 brief summary here. In 2003, Robert Royal, a table-games dealer at Defendant’s casino, filed a

4 complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging that GNLV

5 had subjected him to a racially-hostile work environment and that GNLV retaliated against

6 Royal for complaining about how customers treated him. The EEOC conducted an investigation.

7 The investigation produced five other employees who claimed to have suffered a hostile work

8 environment, based either on sex or race, and who claimed that GNLV had retaliated against

9 them when they reported such behavior. Concluding that Defendant was engaged in a pattern or

10 practice of discriminatory behavior, the EEOC filed this lawsuit in 2006 on behalf of Royal,

11 Susie Fein, Ervin Nixon, Jr., Eddie Mae Hunter, Dorothy Blake, and Tequella Candice Smith.

12

In December 2008, Defendant submitted a motion for summary judgment as to the

13 EEOC’s pattern-or-practice claim as well as motions for summary judgment as to the claims of

14 the individual employees. As stated, the motion was granted by Judge Sandoval and affirmed in

15 part by the Ninth Circuit. In reversing the mootness ruling, this Court was directed on remand to

16 consider the merits of the individual employees’ claims.

17

On December 18, 2014, the Court ruled on GNLV’s individual motions for summary

18 judgment related to each of the six separate employees’ claims of racial or sexual discrimination

19 and retaliation. (ECF No. 160). The Court granted Defendant’s motions in their entirety as to

20 Royal, Hunter, and Blake and in part as to the other complainants. Accordingly, the only

21 remaining issues in this case are the EEOC’s claims that Fein was subjected to a hostile work

22 environment and that GNLV retaliated against Nixon and Smith for reporting discriminatory

23 conduct.

24 2

1

Now pending before the Court is the EEOC’s Motion for Summary Judgment on a

2 number of GNLV’s affirmative defenses. (ECF No. 67). The Court has considered the Motion

3 along with the Response (ECF No. 75) and the EEOC’s Reply (ECF No. 103). For the reasons

4 contained herein, the Motion is GRANTED in part and DENIED in part.

5 II. LEGAL STANDARD

6

A principal purpose of the summary judgment rule is to “isolate and dispose of factually

7 unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). A

8 court grants summary judgment only if “the movant shows that there is no genuine issue as to

9 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

10 56(a). In making this determination, the court “must draw all reasonable inferences supported by

11 the evidence in favor of the non-moving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d

12 1054, 1061 (9th Cir. 2002). “[T]his standard provides that the mere existence of some alleged

13 factual dispute between the parties will not defeat an otherwise properly supported motion for

14 summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Rather,

15 only genuine issues of material facts are relevant to the summary judgment analysis. A fact is

16 material if it “might affect the outcome of the suit under the governing law.” Id. at 248. “The

17 moving party bears the initial burden of establishing the absence of a genuine issue of material

18 fact.” Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The burden is

19 met by demonstrating to the court “that there is an absence of evidence to support the nonmoving

20 party’s case.” Celotex Corp., 477 U.S. at 325. This is done by citing to depositions, documents,

21 electronically stored information, affidavits or declarations, stipulations, admissions,

22 interrogatory answers, or other materials. Fed. R. Civ. P. 56(c)(1)(A). Once the initial burden is

23

24 3

1 met, however, “Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify

2 facts which show a genuine issue for trial.” Fairbank, 212 F.3d at 531.

3

Moreover, summary judgment is mandated “against a party who fails to make a showing

4 sufficient to establish the existence of an element essential to that party’s case, and on which that

5 party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “In such a situation,

6 there can be no genuine issue as to any material fact, since a complete failure of proof

7 concerning an essential element of the nonmoving party’s case necessarily renders all other facts

8 immaterial.” Id. at 322–23. Conversely, where reasonable minds could differ on the facts

9 proffered in support of a claim, summary judgment should not be granted. Petzak v. Nevada ex

10 rel. Dep’t of Corr., 579 F. Supp. 2d 1330, 1333 (D. Nev. 2008). “Summary judgment is

11 inappropriate if reasonable jurors . . . could return a verdict in the nonmoving party’s favor.”

12 Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).

13 III. DISCUSSION

14

The EEOC challenges the GNLV’s first, second, third, fourth, seventh, ninth, tenth,

15 eleventh, twelfth, thirteenth, fourteenth, sixteenth, twentieth, and twenty-first affirmative

16 defenses. The Court will consider the parties’ arguments in light of the remaining claims,

17 recognizing that the briefing on this Motion was completed over six years ago.

18

A. First Affirmative Defense – Failure to State a Claim

19

Defendant’s first affirmative defense alleges that the EEOC’s “Complaint fails to state a

20 claim upon which relief can be granted.” (Answer 2, ECF No. 4). In its December 18, 2014

21 Order, the Court determined that the EEOC has presented evidence demonstrating genuine issues

22 of material facts regarding three claims—Fein’s allegation of a hostile work environment and

23 Nixon’s and Smith’s allegations of retaliation. To the extent the first affirmative defense is a

24 4

1 Rule 12(b)(6) challenge, it fails. See EEOC v. NCL America, Inc., 536 F. Supp. 2d 1216, 1224

2 (D. Haw. 2008). However, to the extent that the EEOC is seeking summary judgment on the

3 substantive issues raised by the defense, the Court finds that those matters should be left for trial.

4 The Motion as to this defense is therefore granted in part and denied in part.

5

B. Second & Seventh Affirmative Defenses – Non-Discriminatory Reasons

6

The second affirmative defense alleges that “any actions taken by Defendant were proper,

7 legitimate, based upon good faith and were not motivated by hatred, ill-will or with the

8 deliberate intent to injure the individuals . . . .” (Answer 2). The seventh affirmative defense

9 alleges that “Defendant had legitimate, non-discriminatory, and non-retaliatory reasons for any

10 actions taken with respect to the individuals for whom [the EEOC] seeks relief.” (Id. at 3).

11

The EEOC acknowledges that the second and seventh affirmative defenses “may be

12 defenses to the retaliatory claims.” (Mot. Summ. J. 9 n.2, ECF No. 67). Since Nixon’s and

13 Smith’s retaliation claims survived GNLV’s motion for summary judgment, these defenses are

14 still applicable. Accordingly, the Motion is denied as to these defenses.

15

C. Third Affirmative Defense – Privilege of an Employer

16

GNLV’s third affirmative defense claims that the EEOC’s Complaint is barred because

17 its conduct “at all times was privileged in that [GNLV] and its authorized agents at all times

18 engaged in conduct within [GNLV’s] rights and did so in a permissible way . . . .” (Answer 2).

19 The EEOC argues that there “is no privilege which allows employers to discriminate against its

20 employees based on their race or sex.” (Mot. Summ. J. 11, ECF No. 67). GNLV, however,

21 contends that this defense refers to an employer’s privilege to discipline employees for

22 inappropriate conduct. (Resp. 16, ECF No. 103). Essentially, this defense relates to GNLV’s

23 claim that it exercised reasonable care in preventing harassment and that the claimants

24 5

1 unreasonably failed to take advantage of corrective opportunities. (Id.). To that extent, the

2 defense is allowed. The Court does not interpret this defense as claiming a privilege to

3 discriminate against employees as the EEOC suggests. Rather, it is clear that this defense, as

4 with the second and seventh affirmative defenses, is raised as part of the Faragher/Ellerth

5 framework. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v.

6 Ellerth, 524 U.S. 742 (1998). The Court denies the Motion as to this defense.

7

D. Fourth Affirmative Defense – Punitive Damages

8

The fourth affirmative defense alleges that the EEOC “fails to allege facts sufficient to

9 give rise to a claim for punitive damages.” The EEOC argues that as a matter of law, an

10 employer can be held liable for punitive damages under Title VII and that the Complaint

11 properly pleaded the basis for punitive damages. (Id. at 9). As with GNLV’s first affirmative

12 defense, to the extent that the fourth affirmative defense is a Rule 12(b)(6) challenge, it fails.

13 The Complaint claims that GNLV’s alleged employment practices “were done with malice or

14 with reckless indifference to the federal protected rights of [the complainants],” (Compl. ¶ 12,

15 ECF No. 1), which conforms with the applicable standard in awarding punitive damages, see 42

16 U.S.C. § 1981a(b)(1). However, to the extent that the EEOC is seeking summary judgment on

17 whether punitive damages should be awarded, that is a matter that should be left for trial. As

18 such, the Court will grant in part and deny in part the EEOC’s Motion as to this defense.

19

E. Ninth Affirmative Defense – Failure to Mitigate

20

The ninth affirmative defense claims that an award of damages is barred, in whole or in

21 part, by the failure of the complainants “to undertake reasonable efforts to mitigate damages.”

22 (Answer 3). The failure to mitigate defense is relevant to an award of back pay. See Sangster v.

23 United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980). The EEOC acknowledges that it is

24 6

1 seeking back pay on behalf of claimants Fein and Nixon, and that this defense would be

2 applicable to those claims. (Mot. Summ. J. 11 n.3). Since both Fein and Nixon have claims

3 remaining in this case, this defense remains viable. The Motion is denied as to the ninth

4 affirmative defense.

5

F. Tenth Affirmative Defense – Proximate Cause

6

Defendant’s tenth affirmative defense alleges that the damages suffered by the individual

7 employees “were caused by their own willful acts, negligence, or omission and/or from acts

8 and/or omissions of persons other than Defendant or its authorized agents.” (Answer 4). GNLV

9 claims that this defense is relevant to whether it can be held liable for the hostile work

10 environment that the EEOC claims was suffered by Fein. The Court agrees. A remaining issue

11 in this case is whether GNLV knew or should have known about the discriminatory comments

12 directed at Fein by certain customers. If Fein’s alleged failure to report the instances of

13 discrimination prohibited GNLV from discovering and addressing the offensive conduct, then

14 Fein’s damages may in fact be a result of her own omissions. Therefore, the EEOC’s Motion is

15 denied as to this defense.

16

G. Eleventh & Twelfth Affirmative Defenses – Failure to Exhaust Administrative

Remedies

17

The eleventh and twelfth affirmative defenses claim that the EEOC failed to exhaust

18

administrative remedies before filing this lawsuit and that at least some of the claims fall outside

19

of the scope of the EEOC complaint filed by Royal. (Answer 4). The EEOC argues that these

20

defenses are inapplicable to this case since “[e]xhaustion of administrative remedies is not an

21

issue when the EEOC itself is the plaintiff” and because “the EEOC’s lawsuit is not confined to

22

the initial charge.” (Mot. Summ. J. 12).

23

24 7

1

As GNLV notes, there are “a series of procedural steps that the EEOC must take before

2 filing suit under Title VII.” (Resp. 19). Title VII requires that once the EEOC receives a charge

3 by an aggrieved employee it must “serve a notice of the charge” on the employer. 42 U.S.C.

4 § 2000e-5(b). The EEOC must then conduct an investigation of the charge. Id. If at the

5 conclusion of the investigation the EEOC finds reasonable cause for the complaint, the EEOC

6 must seek to eliminate the unlawful employment practice “by informal methods of conference,

7 conciliation, and persuasion.” Id. Only after informal means of resolution have failed may the

8 EEOC file a lawsuit against the employer. Id. § 2000e-5(e).

9

Thus, to argue that the EEOC is not required to exhaust administrative remedies is a bit

10 disingenuous when it is clear that there are procedures that the EEOC must follow before filing

11 suit. See Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977) (explaining that Congress

12 created administrative procedures whereby the EEOC could initiate civil actions in federal

13 court). In particular, the EEOC has the duty to identify to the accused employer “the groups of

14 persons that it has reason to believe have been discriminated against, the categories of

15 employment positions from which they have been excluded, the methods by which the

16 discrimination may have been effected, and the periods of time in which [the EEOC] suspects the

17 discrimination to have been practiced.” EEOC v. Shell Oil Co., 466 U.S. 54, 73, 81 (1984)

18 (setting the standard for notices in a pattern-or-practice case).

19

However, the EEOC is allowed to pursue any violations of Title VII that are ascertained

20 “in the course of a reasonable investigation of the charging party’s complaint.” Gen. Tel. Co. of

21 the Nw., Inc. v. EEOC, 446 U.S. 318, 331 (1980). It is undisputed that Royal filed a charge of

22 discrimination against GNLV alleging racial harassment and retaliation. During its investigation

23 of those claims, the EEOC discovered that other employees were allegedly being retaliated

24 8

1 against and that in addition to racial harassment there were allegations by other table-games

2 dealers, such as Fein, of sexual harassment. Accordingly, GNLV cannot argue that the EEOC

3 failed to follow procedure or exhaust remedies as to Fein’s and Nixon’s claims, and the Motion

4 is granted in that respect.

5

There is a genuine dispute, however, whether Smith’s claims fell within the scope of the

6 notice that the EEOC provided to GNLV. Unlike the other claimants, Smith was not employed

7 as a table-games dealer but rather as a kitchen steward. And, in fact, there is evidence to suggest

8 that no conciliation efforts were made on Smith’s behalf since she was not a member of the

9 identified group that was allegedly subjected to discrimination and harassment. (See Smith

10 Dep.73:13–22, 74:1–75:5, ECF No. 75-3). Since a genuine dispute exists regarding the EEOC’s

11 compliance with administrative procedure as to Smith and her claims, the Court denies summary

12 judgment on GNLV’s eleventh and twelfth affirmative defenses in regards to Smith’s claim.

13

H. Thirteen Affirmative Defense – Laches

14

The thirteenth affirmative defense alleges that the EEOC’s claims “are barred by the

15 doctrine of laches.” (Answer 4). “Laches is an equitable defense that prevents a plaintiff, who

16 ‘with full knowledge of the facts, acquiesces in a transaction and sleeps upon his rights.’”

17 Danjaq LLC v. Sony Corp., 263 F.3d 942, 950–51 (9th Cir. 2001) (citation omitted). “The

18 defense of laches ‘requires proof of (1) lack of diligence by the party against whom the defense

19 is asserted, and (2) prejudice to the party asserting the defense.’” Bratton v. Bethlehem Steel

20 Corp., 649 F.2d 658, 666 (9th Cir. 1980) (quoting Costello v. United States, 365 U.S. 265, 282

21 (1961)).

22

In this case, GNLV argues that the EEOC failed to diligently pursue the claims raised in

23 this lawsuit and that this failure has hindered GNLV’s ability to defend itself. The EEOC

24 9

1 received Royal’s complaint on April 18, 2003 but did not file suit until September 29, 2006, a

2 span of approximately forty-one months. Although the EEOC argues that it did not engage in

3 inexcusable delay, a reasonable jury could find that this three-and-a-half year gap was not

4 justified. This defense further withstands summary judgment because a juror would certainly be

5 reasonable in concluding that prejudice arose from the delay, given that memories undeniably

6 fade over time and individuals with personal knowledge surrounding the allegations surely

7 remembered less in 2006 than they did in 2003. The Motion is denied as to this defense.

8

I. Fourteenth Affirmative Defense – Statute of Limitations

9

Defendant’s fourteenth affirmative defense claims that the EEOC’s Complaint “is barred

10 as untimely.” (Answer 4). The Supreme Court has held that a statute of limitations does not

11 apply to Title VII claims brought by the EEOC. Occidental Life Ins. Co., 432 U.S. at 369–70.

12 Moreover, the Court finds that GNLV’s interest in having this case timely pursued is better

13 protected under its laches defense. The Motion is granted as to the EEOC’s Title VII claims.

14

However, the EEOC apparently also seeks recovery for emotional distress, which would

15 be governed by state law rather than Title VII, including the applicable statute of limitations. See

16 Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459 (1975) (holding that Title VII does not

17 deprive an aggrieved individual of other remedies and that the plaintiff “is not limited to Title

18 VII in his search for relief). To the extent that the EEOC does seek damages for emotional

19 distress on the remaining claims, GNLV is entitled to assert a statute of limitations defense on

20 the state tort claim. The Motion is denied as to the emotional distress claim and any other claim

21 for damages arising from state law.

22

J. Sixteenth Affirmative Defense – Nevada Industrial Insurance Act

23

The sixteenth affirmative defense alleges that the EEOC’s “claims for alleged emotional

24 10

1 distress are barred by the exclusive remedy provisions of the Nevada Industrial Insurance Act

2 [“NIIA”].” (Answer 4). The EEOC argues that “[b]ecause this case is a federal lawsuit brought

3 by a federal government agency pursuant to Title VII, Nevada state law is not controlling and

4 has absolutely no bearing on this federal suit.” (Mot. Summ. J. 17–18). However, the EEOC

5 overlooks the fact that damages for emotional distress are not available under the remedies

6 section of Title VII. Williams v. U.S. Gen. Servs. Admin., 905 F.2d 308, 311 (9th Cir. 1990).

7

“Although plaintiffs may not recover emotional distress damages under a Title VII claim,

8 Title VII does not supplant independent state remedies. Thus, where the emotional distress claim

9 arises in conjunction with the Title VII claim, damages may be awarded for harm that is distinct

10 from the employment discrimination injury.” Miller v. Fairchild Indus., Inc., 797 F.2d 727, 737

11 n.5 (9th Cir. 1986). In such a case, the state law scheme for recovery would certainly be relevant

12 and could potentially bar recovery. See id. at 737 (considering whether an employer’s conduct

13 could be considered “outrageous” under California law such that the employer caused emotional

14 distress). Accordingly, the EEOC has failed to demonstrate that summary judgment is warranted

15 on the sixteenth affirmative defense, and the Motion is denied.

16

K. Twentieth Affirmative Defense – Lack of Jurisdiction

17

GNLV’s twentieth affirmative defense essentially alleges that this case is barred because

18 “the jurisdictional prerequisites of genuine investigation, reasonable cause determination and

19 conciliation have not been met by [the EEOC].” (Answer 5). The EEOC argues that it is entitled

20 to summary judgment on this defense because it engaged in both investigation and conciliation

21 efforts and that the Court should not consider the sufficiency of those efforts. (Mot. Summ. J.

22 20). Recently, the Supreme Court explained that the language contained in Title VII directing

23 the EEOC to attempt to eliminate the unlawful employment action by conciliation “is mandatory,

24 11

1 not precatory.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, --- (2015). “And the duty it

2 imposes serves as a necessary precondition to filing a lawsuit.” Id.

3

The Court held that judicial review of whether the EEOC has complied with its duty to

4 attempt conciliation is therefore subject to limited judicial review. Id. at ---. Indeed, “the EEOC

5 must inform the employer about the specific allegation . . . [a]nd the EEOC must try to engage

6 the employer in some form of discussion (whether written or oral), so as to give the employer an

7 opportunity to remedy the allegedly discriminatory practice.” Id. “A sworn affidavit from the

8 EEOC stating that it has performed the obligations noted above but that its efforts have failed

9 will usually suffice to show that it has met the conciliation requirement.” Id. at ---. “If, however,

10 the employer provides credible evidence of its own, in the form of an affidavit or otherwise,

11 indicating that the EEOC did not provide the requisite information about the charge or attempt to

12 engage in a discussion about conciliating the claim, a court must conduct the factfinding

13 necessary to decide that limited dispute.” Id.

14

In this case, GNLV concedes that an investigation occurred and that conciliation

15 negotiations took place. (See Resp. 21–22). But GNLV contends that the conciliation efforts

16 were in regards to the table-games dealers and that GNLV was unaware of Smith’s allegations at

17 the time of the negotiations. As such, GNLV argues that it did not have adequate notice that

18 harassing conduct was allegedly occurring not only on its games’ floors but also in its kitchens.

19 Smith states that she did not contact the EEOC regarding her potential claims until after she was

20 no longer employed by GNLV. (Smith Dep. 73:13–74:12). Smith’s employment with GNLV

21 ended on April 5, 2005, (id. at 75:6–76:5), and the EEOC considered conciliation efforts

22 concluded on June 6, 2005, (EEOC’s Statement of Undisputed Facts ¶ 8, ECF No. 67-2).

23

24 12

1

By Smith’s own testimony, she contacted the EEOC after April 5, 2005, and the EEOC

2 has offered no evidence demonstrating that it actually attempted to conciliate Smith’s claims

3 along with the table-game dealers’ claims prior to June 6, 2005, only a month later. Since

4 conciliation efforts are insufficient if they do not give the employer an opportunity to remedy the

5 discrimination, i.e. by informing the employer where the discrimination is occurring, GNLV

6 overcomes summary judgment on this defense because the evidence indicates the possibility that

7 “the EEOC did not provide the requisite information” about Smith’s charge. See Mach Mining,

8 135 S. Ct. at ---. The EEOC’s Motion on this defense is granted as it relates to Fein’s and

9 Nixon’s claims, but it is denied as it relates to Smith’s.

10

L. Twenty-First Affirmative Defense – Unnamed Defenses

11

The twenty-first affirmative defense reserves GNLV’s “right to amend its Answer to

12 assert any applicable, additional, or other defenses constituting an avoidance or affirmative

13 defense at such time as the nature of [the EEOC’s] claims and facts related to them are revealed

14 to Defendant.” (Answer 5). As other courts have recognized, an affirmative defense must give

15 the plaintiff fair notice of the defense. Hernandez v. Creative Concepts, Inc., 295 F.R.D. 500,

16 504 (D. Nev. 2013) (citing Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979)).

17 GNLV’s twenty-first defense offers no specific defense and therefore fails the pleading

18 requirement. Furthermore, GNLV “has by now had sufficient discovery opportunities to make

19 this vague defense inappropriate.” NCL America, Inc., 536 F. Supp. 2d at 1226. The EEOC’s

20 Motion is granted as to this defense.

21 ///

22 ///

23 ///

24 13

1

CONCLUSION

2

IT IS HEREBY ORDERED that the EEOC’s Motion for Summary Judgment on GNLV’s

3 affirmative defenses (ECF No. 67) is GRANTED in part and DENIED in part.

4

The Motion is GRANTED as to the first and fourth affirmative defenses to the extent

5 those are Rule 12(b)(6) defenses going to the sufficiency of the pleading. However, to the extent

6 those defenses raise substantive issues, those issues are left for trial and the Motion is DENIED.

7

The Motion is GRANTED as to the eleventh and twelfth affirmative defenses to the

8 extent those defenses allege administrative deficiencies as to Fein’s and Nixon’s claims. The

9 Motion is DENIED as to the eleventh and twelfth affirmative defenses to the extent those

10 defenses relate to Smith’s retaliation claim.

11

The Motion is GRANTED as to the fourteenth affirmative defense to the extent GNLV

12 claims that the EEOC’s Title VII action is barred by a statute of limitations. However, to the

13 extent that the defense applies to any state tort claim being raised by the EEOC, the Motion is

14 DENIED.

15

The Motion is GRANTED as to the twentieth affirmative defense to the extent GNLV

16 challenges Fein’s and Nixon’s claims. It is DENIED as to Smith’s remaining claim.

17

The Motion is GRANTED as to the twenty-first affirmative defense.

18

The Motion is DENIED as to the second, third, seventh, ninth, tenth, thirteenth, and

19 sixteenth affirmative defenses.

20

IT IS SO ORDERED.

21 DDaatteedd:: J_u_n_e__1_, _2_0_1_5_____________ 22 23 24

_____________________________________ ROBERT C. JONES
United States District Judge
14

 
 Case 2:06-cv-01225-RCJ-PAL Document 170 Filed 07/06/15 Page 1 of 6

1

2

3

4

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA 5

6 EQUAL EMPLOYMENT OPPORTUNITY COMISSION,
7
Plaintiff, 8
vs. 9
GNLV CORP. d/b/a GOLDEN NUGGET HOTEL 10 AND CASINO, and DOES 1-10, inclusive,

11

Defendants.

12

2:06-cv-01225-RCJ-PAL ORDER

13

This case arises from Defendant GNLV Corporation’s (“GNLV”) alleged discrimination

14 against various employees. Plaintiff Equal Employment Opportunity Commission (“EEOC”)

15 brought claims on behalf of six individually named complainants in addition to alleging that

16 GNLV harbored a pattern or practice of discriminatory conduct. The pattern-or-practice claim

17 was resolved in GNLV’s favor on summary judgment and the Ninth Circuit Court of Appeals

18 affirmed. However, since the claims of the individual complainants had not been addressed, the

19 Ninth Circuit remanded. The case was subsequently assigned to this Court.

20 I. BACKGROUND

21

On December 18, 2014, the Court granted GNLV’s motions for summary judgment as to

22 all claims of the six individual complainants with the exception of three. (ECF No. 160). The

23 Court found triable issues of material fact as to Susie Fein’s third-party hostile work environment

24 1

Case 2:06-cv-01225-RCJ-PAL Document 170 Filed 07/06/15 Page 2 of 6

1 claim and as to whether GNLV retaliated against Ervin Nixon, Jr. and Tequella Candice Smith

2 for reporting discriminatory conduct. On June 1, 2015, the Court ruled on the EEOC’s motion

3 for summary judgment on a number of GNLV’s affirmative defenses. The motion was granted

4 in part and denied in part. (ECF No. 166). The EEOC has now filed a Motion to Amend (ECF

5 No. 167) that ruling pursuant to Federal Rule of Civil Procedure 59(e).

6 II. LEGAL STANDARD

7

District courts should reconsider and amend previous orders only as an “extraordinary

8 remedy” that is “used sparingly in the interests of finality and conservation of judicial

9 resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). A motion for reconsideration

10 should not be granted unless the court “is presented with newly discovered evidence, committed

11 clear error, or if there is an intervening change in the controlling law.” Kona Enters., Inc. v.

12 Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). However, a district court

13 “possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory

14 order” if proper cause is shown. City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d

15 882, 887 (9th Cir. 2001).

16 III. DISCUSSION

17

The EEOC challenges the Court’s ruling as to GNLV’s third, ninth, tenth, fourteenth, and

18 sixteenth affirmative defenses. The EEOC argues that the Court erred in failing to grant

19 summary judgment on these defenses.

20

A. Third Affirmative Defense – Privilege of Employer

21

GNLV’s third affirmative defense asserts that the claims against it are barred because its

22 conduct “at all times was privileged in that [GNLV] and its authorized agents at all times

23 engaged in conduct within [GNLV’s] rights and did so in a permissible way . . . .” (Answer 2,

24 2

Case 2:06-cv-01225-RCJ-PAL Document 170 Filed 07/06/15 Page 3 of 6

1 ECF No. 4). In its previous order, the Court stated that this defense remained viable as it was

2 raised as part of the Faragher/Ellerth framework. (June 1, 2015 Order 6, ECF No. 166). The

3 EEOC argues that since none of the remaining claims allege harassment by a supervisor, the

4 Faragher/Ellerth defense is inapplicable and summary judgment on this defense is appropriate.

5 (Mot. to Amend 2, ECF No. 167).

6

The Court acknowledges that none of the remaining claims, third-party hostile work

7 environment and retaliation, involve allegations of harassment by GNLV supervisors. As such,

8 the Court agrees that a rote application of Faragher/Ellerth likely does not apply in this case. See

9 Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). The only hostile work environment

10 claim left in this case arises from Fein’s allegations that customers, not supervisors, subjected her

11 to harassment. Nevertheless, the third affirmative defense remains viable.

12

GNLV claims that it acted properly in disciplining employees for inappropriate conduct,

13 including in its handing Nixon a three-day suspension. As the Court stated in its previous order,

14 the third affirmative defense is similar to the second and seventh affirmative defenses, each of

15 which alleges that GNLV acted legally in its treatment of employees. The third affirmative

16 defense specifically adds that GNLV did not abuse the privilege of an employer in its treatment

17 of employees, which is relevant as to whether Nixon’s suspension was lawful. (Answer 2).

18 Therefore, the Court denies the EEOC’s Motion on this defense.

19

B. Ninth Affirmative Defense – Mitigation of Damages

20

GNLV’s ninth affirmative defense alleges that damage suffered by the complainants is a

21 result, at least in part, of their own failure to mitigate. The parties agree that the defense is

22 applicable to damages for back pay. However, the EEOC argues that none of the remaining

23 claims are of the nature for which the failure-to-mitigate defense would apply, though the agency

24 3

Case 2:06-cv-01225-RCJ-PAL Document 170 Filed 07/06/15 Page 4 of 6

1 is adamant that it is still seeking an award of back pay. (See Reply 2, ECF No. 169). Regardless

2 of the context in which the damages are asserted, the Court does not find that granting summary

3 judgment on this defense is appropriate notwithstanding the EEOC’s contentions to the contrary.

4 Accordingly, the Motion is denied as to this defense.

5

C. Tenth Affirmative Defense – Proximate Cause

6

The Motion is also denied as to GNLV’s tenth affirmative defense. This defense alleges

7 that any harm suffered by the complainants was proximately caused by “their own willful acts,

8 negligence, or omissions and/or from acts and/or omissions of persons other than [GNLV] or its

9 authorized agents.” (Answer 4). The EEOC argues that this defense no longer is applicable since

10 no claims of supervisor harassment remain and that imposing a burden on victims to report

11 harassment is unfair and not required by law.

12

GNLV responds that the defense is relevant to even third-party harassment claims

13 because it pertains to whether the employer knew or should have known of harassment

14 committed by customers. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir.

15 2001) (articulating the negligence standard for non-employee harassment). The Court agrees.

16 This defense remains valid as to whether GNLV negligently failed to respond to customers’

17 alleged harassment. The Court denies the EEOC’s request to amend its ruling as to this defense.

18

D. Fourteenth and Sixteenth Affirmative Defenses – State Law

19

GNLV’s fourteenth and sixteenth affirmative defenses argue that the EEOC’s complaint

20 was untimely and that the claims for emotional distress are barred by state law. (Answer 4). As

21 the Court stated in its previous order, Title VII claims are not subject to a statute of limitations

22 when brought by the EEOC. See Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 369–70

23 (1977). The fourteenth affirmative defense therefore fails. The Court initially kept the defense

24 4

Case 2:06-cv-01225-RCJ-PAL Document 170 Filed 07/06/15 Page 5 of 6

1 alive because it appeared that the complainants were also seeking state law damages to which

2 state law limitation periods would apply. The EEOC has now clarified, however, that “the

3 damages that the EEOC [is] seeking are governed by federal, not state law.” (Mot. to Amend 4).

4 Because no damages are being sought under state law, the statute of limitations defense does not

5 apply. Summary judgment is therefore warranted in the EEOC’s favor on this defense, and the

6 Court grants the Motion by which it amends its previous order accordingly.

7

Summary judgment on the sixteenth affirmative defense is also appropriate. In its

8 previous order the Court denied the EEOC’s motion, finding that claims for emotional distress

9 arising from workplace harassment and discrimination were governed by state law rather than

10 Title VII. (See June 1, 2015 Order 10–11). To reach this conclusion, the Court relied on a case

11 that has since been superseded by statute, as pointed out by the EEOC. (Mot. to Amend 5). In its

12 order, the Court cited Williams v. U.S. General Services Administration, 905 F.2d 308, 311 (9th

13 Cir. 1990) for the proposition that emotional distress damages are not available under Title VII.

14

However, subsequent amendment of the applicable statute authorized plaintiffs in

15 employment discrimination cases to “recover compensatory and punitive damages.” 42 U.S.C.

16 § 1981a(a)(1); see also Canada v. Boyd Grp., Inc., 809 F. Supp. 771, 779 (D. Nev. 1992)

17 (recognizing that the rule in Williams regarding emotional distress damages was “reversed” by

18 the Civil Rights Act of 1991). The statute currently states that compensatory damages awarded

19 thereunder may include “future pecuniary losses, emotional pain, suffering, inconvenience,

20 mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” 42 U.S.C.

21 § 1981a(b)(3); Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1059 (9th Cir. 2009)

22 (“[T]he Civil Rights Act of 1991 made available compensatory damages for emotional pain and

23 suffering and punitive damages under Title VII.”).

24 5

Case 2:06-cv-01225-RCJ-PAL Document 170 Filed 07/06/15 Page 6 of 6

1

Since the EEOC is not bringing a tort claim for infliction of emotional distress, which

2 would be governed by state law, and instead only seeks an award for emotional distress as a

3 compensatory remedy as provided by Title VII, the sixteenth affirmative defense based on a state

4 law bar to recovery is inapplicable. The Court thus finds that summary judgment on the defense

5 should have been granted and it hereby amends its previous order.

6

CONCLUSION

7

IT IS HEREBY ORDERED that the EEOC’s Motion to Amend (ECF No. 167) is

8 GRANTED in part and DENIED in part.

9

The Motion is DENIED as to GNLV’s third, ninth, and tenth affirmative defenses.

10

The Motion is GRANTED as to GNLV’s fourteenth and sixteenth affirmative defenses.

11 Summary judgement is granted in the EEOC’s favor on those defenses.

12

IT IS SO ORDERED.

13

14 Dated: _J_u_l_y_6__, _2_0_1_5____________ 15 16 17

_____________________________________ ROBERT C. JONES
United States District Judge

18

19

20

21

22

23

24 6

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 09­16640 Nature of Suit: 1442 Jobs EEOC v. GNVL Corporation Appeal From: U.S. District Court for Nevada, Las Vegas Fee Status: USA ­ No Fee Req

Case Type Information: 1) civil 2) united states 3) null

Originating Court Information:

District: 0978­2 : 2:06­cv­01225­BES­PAL

Court Reporter: Margaret Ellen Griener, Official Court Reporter

Trial Judge: Brian E. Sandoval, District Judge

Date Filed: 09/29/2006

Date Order/Judgment:

Date Order/Judgment EOD:

06/02/2009

06/02/2009

Date NOA Filed: 08/03/2009

Prior Cases: None

Current Cases: None

Docketed: 08/04/2009 Termed: 04/18/2011
Date Rec'd COA: 08/03/2009

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff ­ Appellant,
v. GNVL CORPORATION, DBA Golden Nugget Hotel and Casino
Defendant ­ Appellee,

Gail S. Coleman, Attorney Direct: 202­663­4055 [COR LD NTC Government] EEOC ­ U.S. Equal Employment Opportunity Commission 5SW24L Firm: 202­663­4900 131 M Street, NE Washington, DC 20507
Connie K. Liem Direct: 619­557­7282 [COR LD NTC Government] EEOC Firm: 619­557­7282 555 W. Beech Suite 504 San Diego, CA 92101
Anna Y. Park Direct: 213­894­1080 [COR NTC Government] U.S. Equal Employment Opportunity Commission 4th Floor 255 East Temple Street Los Angeles, CA 90012
Carolyn L. Wheeler Direct: 202­663­4739 [COR NTC Government] EEOC ­ U.S. Equal Employment Opportunity Commission 5NW20P Firm: 202­663­4900 131 M Street, NE Washington, DC 20507
Richard Sheehy, Attorney Direct: 713­951­1111 [COR LD NTC Retained]

Sheehy Ware and Pappas PC Firm: 713­951­1111 909 Fannin St. Suite 2500 Houston, TX 77010
Robert Rosenthal, Esquire, Attorney Direct: 702­257­1483 [COR NTC Retained] Howard & Howard 3800 Howard Hughes Parkway Suite 1000 Las Vegas, NV 89169

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff ­ Appellant,
v. GNVL CORPORATION, DBA Golden Nugget Hotel and Casino,
Defendant ­ Appellee.

08/04/2009

1

5 pg, 267.32 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: Yes. The schedule is set as follows: CADS due by Attorney Connie Liem, Attorney due on 08/03/2009. Transcript order for Appellant Equal Employment Opportunity Commission due 09/02/2009. Transcript due for Orig Clerk USDC, Las Vegas on 10/02/2009. Certificate of record due 10/09/2009. Appellant Equal Employment Opportunity Commission opening brief due 11/18/2009. Appellee GNVL Corporation answering brief due 12/18/2009. Appellant's optional reply brief is due 14 days after service of the answering brief. [7014913] (GR) [Entered: 08/04/2009 10:26 AM]

08/04/2009

2

Filed representation notice of Connie Liem, Anna Park, Carolyn Wheeler. [7014955] (GR) [Entered:

4 pg, 44.06 KB 08/04/2009 10:38 AM]

08/04/2009

3

Terminated Edward Perkins for GNVL Corporation in 09­16640, Richard Sheehy for GNVL Corporation in 09­16640 [7014960] (GR) [Entered: 08/04/2009 10:38 AM]

08/06/2009

4

Filed (ECF) Appellant EEOC Civil Appeals Docketing Statement (Form 6). Date of service: 08/06/2009.

20 pg, 996.7 KB [7018639] (Wheeler, Carolyn) [Entered: 08/06/2009 01:36 PM]

08/07/2009

5

Filed (ECF) Appellant EEOC Civil Appeals Docketing Statement (Form 6). Date of service: 08/07/2009.

3 pg, 613.63 KB [7019293] (Wheeler, Carolyn) [Entered: 08/07/2009 07:20 AM]

08/18/2009

6

9 pg, 67.27 KB

Filed order MEDIATION (EPM): This case is under consideration for inclusion in the Mediation Program. See Fed. R. App. P. 33 and Ninth Cir. R. 33­1. A settlement assessment conference will be held by telephone on September 15, 2009, at 11:00 a.m. PACIFIC (San Francisco) Time. The briefing schedule previously set by the court remains in effect. [7030585] (WL) [Entered: 08/18/2009 08:49 AM]

08/26/2009

7

Filed (ECF) notice of appearance of for Appellee GNVL Corporation. Date of service: 08/26/2009.

1 pg, 208.82 KB [7040690] (Sheehy, Richard) [Entered: 08/26/2009 09:02 AM]

08/26/2009

8

Attorney Scott M. Abbott in 09­16640 substituted by Attorney Richard Sheehy in 09­16640 [7040701] (EL) [Entered: 08/26/2009 09:06 AM]

09/02/2009

9

Filed (ECF) notice of appearance of Gail S. Coleman for Appellant EEOC. Date of service: 09/02/2009.

2 pg, 487.21 KB [7048684] (Coleman, Gail) [Entered: 09/02/2009 08:03 AM]

09/02/2009

10

Added attorney Gail S. Coleman for EEOC. [7048728] (JFF) [Entered: 09/02/2009 08:54 AM]

09/03/2009

11

1 pg, 37.56 KB

09/16/2009

12

1 pg, 24.01 KB

Filed certificate of record on appeal. RT filed in DC None [7051465] (JFF) [Entered: 09/03/2009 03:01 PM]
Filed order MEDIATION (LJE): On September 15, 2009, a telephone conference was held with Circuit Mediator Lisa J. Evans. The court will initiate a further assessment conference by telephone on September 30, 2009, at 11:30 a.m. PACIFIC (San Francisco) Time/2:30 p.m. Eastern Time. Counsel are requested to contact the undersigned should circumstances develop that warrant further discussions prior to the next scheduled conference. [7063486] (WL) [Entered: 09/16/2009 11:11 AM]

09/30/2009

13

2 pg, 24.93 KB

Filed order MEDIATION (LJE): On September 30, 2009, a telephone conference was held with Circuit Mediator Lisa J. Evans. The court will initiate a further assessment conference by telephone with appellee’s counsel only on October 5, 2009, at 11:30 a.m. PACIFIC (San Francisco) Time. The court will initiate a further assessment conference by telephone with both counsel on October 15, 2009, at 11:30 a.m. PACIFIC (San Francisco) Time. Counsel are requested to contact the undersigned should circumstances develop that warrant further discussions prior to the next scheduled conferences. [7080075] (WL) [Entered: 09/30/2009 03:12 PM]

10/15/2009

14

1 pg, 23.24 KB

Filed order MEDIATION (LJE): At the request of counsel, the follow­up conference scheduled for October 15, 2009, is rescheduled to October 22, 2009, at 11:30 a.m. PACIFIC (San Francisco) Time. Counsel are requested to contact the undersigned should circumstances develop that warrant further discussions prior to the scheduled conference. [7096624] (WL) [Entered: 10/15/2009 03:08 PM]

10/22/2009

15

1 pg, 22.91 KB

Filed order MEDIATION (LJE): Due to a conflict that has arisen for the Circuit Mediator, the further assessment conference originally scheduled for October 22, 2009, is rescheduled to November 9, 2009, at 11:00 a.m. PACIFIC (San Francisco) Time/2:00 p.m. Eastern Time. Counsel are requested to contact the undersigned should circumstances develop that warrant further discussions prior to the scheduled conference. [7104502] (WL) [Entered: 10/22/2009 01:46 PM]

11/09/2009

16

2 pg, 24.49 KB

Filed order MEDIATION (LJE): On November 9, 2009, a telephone conference was held with Circuit Mediator Lisa J. Evans. The briefing schedule previously set by the court is reset as follows: appellant shall file an opening brief on or before January 22, 2010; appellee shall file an answering brief on or before February 22, 2010; appellant may file an optional reply brief within fourteen (14) days from the service date of the answering brief. The court has determined that this appeal will not be selected for inclusion in the Mediation Program. [7124752] (WL) [Entered: 11/09/2009 04:15 PM]

01/22/2010

17

Submitted (ECF) Opening brief for review. Submitted by Appellant EEOC. Date of service: 01/22/2010.

34 pg, 94.74 KB [7203933] (Coleman, Gail) [Entered: 01/22/2010 08:12 AM]

01/22/2010

18

Filed clerk order: The opening brief [17] submitted by EEOC is filed. Within 7 days of the filing of this order,

1 pg, 27.12 KB

filer is ordered to file 7 copies of the brief in paper format, with a blue cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7205517] (FT) [Entered: 01/22/2010 04:04 PM]

01/25/2010

19

Filed Appellant EEOC excerpts of record in 1 volumes. Served on 1/22/10 [7210361] (FT) [Entered: 01/27/2010 02:13 PM]

02/01/2010

20

Received 7 paper copies of Opening brief [17] filed by EEOC. One copy to Case Files, the remainder to Records. [7216878] (YA) [Entered: 02/02/2010 01:30 PM]

02/12/2010

21

10­day (TEN­day) oral extension by phone of time to file Appellee GNVL Corporation brief. Appellee GNVL Corporation answering brief due 03/04/2010. The optional reply brief is due 14 days after service of the appellee brief. [7229826] (TH) [Entered: 02/12/2010 08:35 AM]

03/04/2010

22

Submitted (ECF) Answering brief for review. Submitted by Appellee GNVL Corporation. Date of service:

41 pg, 4.15 MB 03/04/2010. [7253365] (Sheehy, Richard) [Entered: 03/04/2010 02:44 PM]

03/04/2010

23

Filed (ECF) Appellee GNVL Corporation Correspondence: Letter regarding extension to file answering

1 pg, 200.96 KB brief. Date of service: 03/04/2010 [7253373] (Sheehy, Richard) [Entered: 03/04/2010 02:46 PM]

03/05/2010

24

2 pg, 81.53 KB

Filed clerk order: The answering brief [22] submitted by GNVL Corporation is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7254685] (FT) [Entered: 03/05/2010 12:48 PM]

03/08/2010

25

Filed Appellee GNVL Corporation supplemental excerpts of record on appeal in 1 volumes. [7260970] (FT) [Entered: 03/10/2010 04:38 PM]

03/10/2010

26

Received 7 paper copies of Answering brief [22] filed by GNVL Corporation. [7261177] (SD) [Entered: 03/11/2010 09:03 AM]

03/17/2010

27

Submitted (ECF) Reply brief for review. Submitted by Appellant EEOC. Date of service: 03/17/2010.

28 pg, 711.05 KB [7268642] (Coleman, Gail) [Entered: 03/17/2010 09:11 AM]

03/19/2010

28

2 pg, 81.54 KB

Filed clerk order: The reply brief [27] submitted by EEOC is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a gray cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7272967] (FT) [Entered: 03/19/2010 03:15 PM]

03/29/2010

29

Received 7 paper copies of Reply brief [27] filed by EEOC. [7283395] (SD) [Entered: 03/30/2010 12:14 PM]

09/22/2010

30

6 pg, 52.99 KB

Notice of Oral Argument on NOVEMBER 4, 2010 Calendar. Please return ACKNOWLEDGMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Attention: The Notice of Docket Activity may not list your case number. Please open attached documents to view details about your case. [7483115] (AM) [Entered: 09/22/2010 10:57 AM]

09/27/2010

31

Filed (ECF) Appellee GNVL Corporation Motion to continue hearing of case. Date of service: 09/27/2010.

6 pg, 542.72 KB [7488453] (Sheehy, Richard) [Entered: 09/27/2010 03:50 PM]

10/08/2010

32

1 pg, 31.21 KB

Filed clerk order (Deputy Clerk:WL): The motion to continue oral argument is granted. The hearing scheduled for November 4, 2010 in San Francisco, California is vacated and shall be rescheduled for oral argument on the next available calendar. [7502063] (WL) [Entered: 10/08/2010 10:25 AM]

01/03/2011

34

7 pg, 91.5 KB

Notice of Oral Argument on FEBRUARY Calendar. Please return ACKNOWLEDGMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Attention: The Notice of Docket Activity may not list your case number. Please open attached documents to view details about your case. [7597508] (JZ) [Entered: 01/03/2011 12:12 PM]

02/09/2011

35

Filed (ECF) Appellant EEOC Correspondence: Errata sheet for Reply Brief. Date of service: 02/09/2011

1 pg, 35.13 KB [7641280] (Coleman, Gail) [Entered: 02/09/2011 10:46 AM]

02/14/2011

36

ARGUED AND SUBMITTED TO DAVID R. THOMPSON, RICHARD C. TALLMAN and ARTHUR J. TARNOW. [7647151] (LBS) [Entered: 02/14/2011 11:22 AM]

02/18/2011

37

Filed (ECF) Appellee GNVL Corporation citation of supplemental authorities. Date of service: 02/18/2011.

2 pg, 444.77 KB [7654358] (Sheehy, Richard) [Entered: 02/18/2011 01:23 PM]

02/22/2011

38

Filed (ECF) Appellant EEOC citation of supplemental authorities. Date of service: 02/22/2011. [7655915]

2 pg, 79.48 KB (Coleman, Gail) [Entered: 02/22/2011 12:51 PM]

03/10/2011

39

Filed clerk order (Deputy Clerk:WL): Due to the death of Judge Thompson, Judge Bea has been drawn to

1 pg, 22.13 KB replace him on the panel. [7675937] (WL) [Entered: 03/10/2011 12:53 PM]

04/18/2011

40

FILED MEMORANDUM DISPOSITION (RICHARD C. TALLMAN, CARLOS T. BEA and ARTHUR J.

11 pg, 402.11 KB TARNOW) AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Each party shall bear its own

costs on appeal. FILED AND ENTERED JUDGMENT. [7719863] (PH) [Entered: 04/18/2011 09:54 AM]

06/10/2011

41

MANDATE ISSUED.(RCT, CTB and AJT) [7781286] (TB) [Entered: 06/10/2011 11:04 AM]

1 pg, 82.04 KB

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 Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 1 of 24
United States District Court District of Nevada (Las Vegas) CIVIL DOCKET FOR CASE #: 2:06−cv−01225−RCJ−PAL

CLOSED

U.S. Equal Employment Opportunity Commission v. GNLV Corporation Assigned to: Chief Judge Robert C. Jones Referred to: Magistrate Judge Peggy A. Leen Case in other court: 9th Circuit Court of Appeals, 09−16640 Cause: 42:2000 Job Discrimination (Race)
Plaintiff

Date Filed: 09/29/2006 Date Terminated: 03/01/2016 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

U.S. Equal Employment Opportunity Commission

represented by Anna Park U.S. Equal Employment Opportunity Commission 255 East Temple Street 4th Floor Los Angeles, CA 90012− 213−894−1083 Email: anna.park@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blaine T Welsh U.S. Attorney's Office 501 Las Vegas Blvd South Suite 1100 Las Vegas, NV 89101− 702−388−6336 Email: Blaine.Welsh@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Connie Liem U.S. Equal Employment Opportunity Commission Legal Unit 555 West Beech, Ste 504 San Diego, CA 92101 619 557−7282 Fax: 619 557−7274 Email: connie.liem@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Devika Seth EEOC Dallas District Office 207 S. Houston St. 3rd Floor Dallas, TX 75202 214−253−2764 Fax: 214−253−2749 Email: Devika.Seth@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth A Naccarato United States Equal Employment Opportunity Commission 333 Las Vegas Boulevard South Las Vegas, NV 89101

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 2 of 24
(702) 388−5072 Email: Elizabeth.Naccarato@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Toby W. Costas EEOC 207 S. Houston St. 3rd Floor Dallas, TX 75202 214−253−2760 Fax: 214−253−2749 Email: Toby.Costas@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amrita Mallik U.S. Equal Employment Opportunity Commission 300 Ala Moana Boulevard, 7th Floor Honolulu, HI 96850 (808) 541−3133 Fax: (808) 541−3390 Email: amrita.mallik@eeoc.gov ATTORNEY TO BE NOTICED
Angela D Morrison Nevada Immigrant Resource Project William S Boyd School of Law, Thomas & Mack Legal Clinic 4505 Maryland Parkway Box 451082 Las Vegas, NV 89154−1082 702−895−2082 Fax: 702−895−2081 Email: angela.morrison@eeoc.gov TERMINATED: 10/15/2008
Lorena Garcia EEOC/Los Angeles District Office 255 E. Temple Street, 4th Floor Los Angeles, CA 90012 213−894−1108 Email: Lorena.Garcia@eeoc.gov ATTORNEY TO BE NOTICED
Sue J. Noh United States Equal Employment Opportunity Commission Legal Unit 255 East Temple Street 4th Floor Los Angeles, CA 90012− (213) 894−1082 Fax: 213−894−1118 Email: sue.noh@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
GNLV Corporation doing business as

represented by Richard A. Sheehy Sheehy Ware & Pappas PC

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 3 of 24

Golden Nugget Hotel and Casino

909 Fannin Street Houston, Te 77010 713−951−1111 Fax: 713−951−1199 Email: rsheehy@sheehyware.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Edward Perkins Sheehy, Ware & Pappas, P.C. 909 Fannin Street Houston, TX 77010 713−951−1004 Fax: 713−289−2004 Email: eperkins@sheehyware.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert L Rosenthal Howard and Howard 3800 Howard Hughes Parkway Suite 1000 Las Vegas, NV 89169 702−257−1483 Fax: 702−567−1568 Email: rrosenthal@howardandhoward.com TERMINATED: 12/04/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas F. Kummer Greenberg Traurig LLP 3773 Howard Hughes Parkway Suite 400N Las Vegas, NV 89169 702−792−3773 Fax: 702−792−9002 Email: kummert@gtlaw.com LEAD ATTORNEY

Edwin A. Keller , Jr. Kamer Zucker Abbott 3000 West Charleston Blvd. Suite 3 Las Vegas, NV 89102−1990 702−259−8640 Fax: 702−259−8646 Email: ekeller@kzalaw.com TERMINATED: 04/30/2010

Eric W. Swanis Greenberg Traurig 3773 Howard Hughes Pkwy Ste 400 North Las Vegas, NV 89169 702−792−3773 Fax: 702−792−9002 Email: swanise@gtlaw.com ATTORNEY TO BE NOTICED

Richard T Creer Kamer Zucker Abbott 3000 West Charleston Boulevard Las Vegas, NV 89102 (702) 259−8640

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 4 of 24
Fax: (702) 259−8646 Email: ecf@kzalaw.com TERMINATED: 04/30/2010
Scott M. Abbott Kamer Zucker & Abbott 3000 West Charleston Blvd. Las Vegas, NV 89102 702−259−8640 Fax: 702−259−8646 Email: sabbott@kzalaw.com TERMINATED: 04/30/2010

Date Filed 09/29/2006
09/29/2006 10/02/2006 01/25/2007 02/12/2007 02/12/2007 02/12/2007 02/15/2007 03/09/2007 03/12/2007 03/13/2007 04/19/2007 05/22/2007 05/23/2007 09/24/2007

# Docket Text
1 COMPLAINT Civil Rights Employment Discrimination against all defendants, filed by U.S. Equal Employment Opportunity Commission. Certificate of Interested Parties due by 10/9/2006. (Attachments: # 1 Civil Cover Sheet # 2 Summons)(Park, Anna) (Entered: 09/29/2006)
Case assigned to Judge Brian E. Sandoval and Peggy A. Leen. (MJZ) (Entered: 10/02/2006)
2 SUMMONS Issued as to GNLV Corporation. (MJZ) (Entered: 10/02/2006)
3 CERTIFICATE OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission. Proof of Service of Summons & Complaint (Morrison, Angela) (Entered: 01/25/2007)
4 ANSWER to 1 Complaint by Defendant GNLV Corporation. Certificate of Interested Parties due by 2/22/2007. Discovery Plan/Scheduling Order due by 3/29/2007.(Abbott, Scott) (Entered: 02/12/2007)
5 CERTIFICATE of Interested Parties by Defendant GNLV Corporation. (Abbott, Scott) (Entered: 02/12/2007)
6 STATEMENT of GNLV CORP. Rule 7.1 Disclosure Statement by Defendant GNLV Corporation. (Abbott, Scott) (Entered: 02/12/2007)
7 ORDER Scheduling Early Neutral Evaluation Session: Early Neutral Evaluation set for 4/4/2007 09:00 AM before Magistrate Judge George W Foley Jr.. Signed by Judge George W Foley Jr. on 2/13/07. (AXM) (Entered: 02/15/2007)
9 ORDER Re−Scheduling Early Neutral Evaluation Session: Early Neutral Evaluation set for 4/19/2007 09:00 AM in Chambers before Magistrate Judge George W Foley Jr. Signed by Judge George W Foley Jr. on 3/9/07. (MJZ) (Entered: 03/13/2007)
8 PROPOSED Discovery Plan/Scheduling Order filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Morrison, Angela) (Entered: 03/12/2007)
10 SCHEDULING ORDER. Discovery due by 11/23/2007. Motions due by 12/21/2007. Proposed Joint Pretrial Order due by 1/25/2008. Signed by Judge Peggy A. Leen on 3/13/07. (MAJ) (Entered: 03/15/2007)
11 MINUTE ORDER IN CHAMBERS of the Honorable George W Foley Jr., U.S. Magistrate Judge, on 4/19/2007. No settlement was reached. (AXM) (Entered: 04/23/2007)
12 STIPULATION and Request to Vacate Continued ENE Session by Defendant GNLV Corporation. (Abbott, Scott) (Entered: 05/22/2007)
13 ORDER ON STIPULATION granting 12 Stipulation to Vacate ENE Session. ORDERED this case should be returned to the normal litigation track. Signed by Judge George W Foley Jr. on 5/23/07. (MMM) (Entered: 05/24/2007)
14 STIPULATION Stipulation and Request for Extension of Discovery and Related Deadlines by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant GNLV Corporation. (Creer, Richard) (Entered: 09/24/2007)

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 5 of 24

09/26/2007 12/14/2007 12/14/2007
12/14/2007 12/17/2007 12/18/2007 12/20/2007
12/20/2007 01/18/2008 01/18/2008 01/18/2008 01/22/2008

15 ORDER ON STIPULATION Granting 14 Stipulation for Extension of Discovery and Related Deadlines. Discovery due by 5/21/2008. Motions due by 6/20/2008. Proposed Joint Pretrial Order due by 7/21/2008. Signed by Judge Peggy A. Leen on 09/25/07. (Copies have been distributed pursuant to the NEF − SRK) (Entered: 09/26/2007)
16 MOTION to Compel Discovery by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 1/2/2008. (Attachments: # 1 Declaration Declaration of Angela Morrison# 2 Exhibit Exhibit 1# 3 Exhibit Exhibit 2# 4 Exhibit Exhibits 3 through 7# 5 Exhibit Exhibit 8# 6 Exhibit Exhibit 9)(Morrison, Angela) (Entered: 12/14/2007)
17 First MOTION for Protective Order Defendant's Motion for Protective Order Concerning the Scope of Discovery Requests by Plaintiff and Confidentiality of Documents by Defendant GNLV Corporation. (Attachments: # 1 Exhibit Exhibits 1 through 5 to Motion for Protective Order# 2 Exhibit Exhibits 6 through 9 to Motion for Protective Order# 3 Exhibit Exhibit 10 to Motion for Protective Order# 4 Exhibit Exhibits 11 through 12 to Motion for Protective Order# 5 Exhibit Exhibits 13 through 18 to Motion for Protective Order)(Creer, Richard) (Entered: 12/14/2007)
18 First MOTION to Compel Defendant's Motion to Compel Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents by Defendant GNLV Corporation. Responses due by 1/2/2008. (Attachments: # 1 Exhibit Exhibits 1 through 6 to Motion to Compel)(Creer, Richard) (Entered: 12/14/2007)
19 STIPULATION Stipulation and Request for Extension of Deadlines for Oppositions and Replies to Motions to Compel and Motion for Protective Order by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant GNLV Corporation. (Creer, Richard) (Entered: 12/17/2007)
20 NOTICE of Hearing 16 MOTION to Compel Discovery, 18 First MOTION to Compel Defendant's Motion to Compel Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents, 17 First MOTION for Protective Order Defendant's Motion for Protective Order Concerning the Scope of Discovery Requests by Plaintiff and Confidentiality of Documents. (AXM) (Entered: 12/21/2007)
21 NOTICE of Hearing on 16 MOTION to Compel Discovery, 17 First MOTION for Protective Order Defendant's Motion for Protective Order Concerning the Scope of Discovery Requests by Plaintiff and Confidentiality of Documents, 18 First MOTION to Compel Defendant's Motion to Compel Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents : Motion Hearing set for 2/12/2008 09:30 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. (AXM) (Entered: 12/21/2007)
22 ORDER ON STIPULATION granting 19 Stipulation, to extend deadlines for Motions. Responses due by 1/18/2008. Replies due by 1/31/2008. Signed by Judge Peggy A. Leen on 12/19/07. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 12/21/2007)
23 RESPONSE to 17 First MOTION for Protective Order Defendant's Motion for Protective Order Concerning the Scope of Discovery Requests by Plaintiff and Confidentiality of Documents ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Declaration Declaration and Exhibits in Support of Oppn to Protective Order)(Morrison, Angela) (Entered: 01/18/2008)
24 RESPONSE to 18 First MOTION to Compel Defendant's Motion to Compel Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 2/1/2008. (Attachments: # 1 Declaration Declaration and Exs 1−4)(Morrison, Angela) (Entered: 01/18/2008)
25 RESPONSE to 16 MOTION to Compel Discovery ; filed by Defendant GNLV Corporation. Defendant's Opposition to Plaintiff's Motion to Compel Discovery Replies due by 2/1/2008. (Attachments: # 1 Exhibit Exhibits to Defendant's Opposition to Plaintiff's Motion to Compel)(Creer, Richard) (Entered: 01/18/2008)
26 ERRATA to 17 First MOTION for Protective Order Defendant's Motion for Protective Order Concerning the Scope of Discovery Requests by Plaintiff and Confidentiality of Documents, 25 Response to Motion to Compel, ; Notice of Errata filed by Defendant

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 6 of 24

01/31/2008 01/31/2008
01/31/2008
02/12/2008
03/07/2008 03/24/2008 03/24/2008 05/01/2008 05/06/2008 05/14/2008

GNLV Corporation. (Attachments: # 1 Exhibit Redacted Exhibit 10 to Defendant's Motion for Protective Order# 2 Exhibit Redacted Exhibit 5 to Defendant's Opposition to Plaintiff's Motion to Compel)(Creer, Richard) (Entered: 01/22/2008)
27 REPLY to Response to 16 MOTION to Compel Discovery ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Reply; Certificate of Service (Attachments: # 1 Declaration # 2 Exhibit Exhibits 1 & 2)(Morrison, Angela) (Entered: 01/31/2008)
28 REPLY to Response to 17 First MOTION for Protective Order Defendant's Motion for Protective Order Concerning the Scope of Discovery Requests by Plaintiff and Confidentiality of Documents ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Protective Order Concerning the Scope of Discovery Requests by Plaintiff and Confidentiality of Documents (Attachments: # 1 Exhibit Exhibits 1 through 7 to Defendant's Reply in Support of its Motion for Protective Order Concerning the Scope of Discovery Requests by Plaintiff and Confidentiality of Documents)(Creer, Richard) (Entered: 01/31/2008)
29 REPLY to Response to 18 First MOTION to Compel Defendant's Motion to Compel Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion to Compel Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents (Attachments: # 1 Exhibit Exhibits 1 through 2 to Defendant's Reply in Support of its Motion to Compel Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents)(Creer, Richard) (Entered: 01/31/2008)
30 MINUTES OF PROCEEDINGS − Motion Hearing held on 2/12/2008 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Angela D. Morrison, Esq.; Def Counsel: Scott M. Abbott, Esq., Richard T. Creer, Esq.; Court Reporter/FTR #: 9:23:45 − 9:57:15; Time of Hearing: 9:30am; Courtroom: 3B; The Court discusses with counsel the pending motions before it; Motion to Compel #16, Motion for Protective Order #17, and Motion to Compel #18. After hearing the representations of counsel, IT IS ORDERED: The Court will issue a separate written order containing the specific ruling on the pending motions before it, but informs counsel that they will both be compelled to provide further answers and that a protective order will be issued. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 02/12/2008)
31 ORDER Granting in part and denying in part 16 Motion to Compel. Granting in part and denying in part 17 Motion for Protective Order. Granting in part and denying in part 18 Motion to Compel. (see order for details) Signed by Magistrate Judge Peggy A. Leen on 3/7/08. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 03/10/2008)
32 Interim STATUS REPORT Joint Interim Status Report by Plaintiff U.S. Equal Employment Opportunity Commission. (Morrison, Angela) (Entered: 03/24/2008)
33 PROTECTIVE ORDER Governing Confidentiality of Documents. Signed by Magistrate Judge Peggy A. Leen on 3/21/08. (Copies have been distributed pursuant to the NEF − ES) (Entered: 03/24/2008)
34 STIPULATION Stipulation and Request for Extension of Discovery and Related Deadlines (Second Request) by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant GNLV Corporation. (Creer, Richard) (Entered: 05/01/2008)
35 ORDER GRANTING 34 Stipulation to Extend Discovery and Related Deadlines. Discovery due by 8/29/2008. Motions due by 10/31/2008. Proposed Joint Pretrial Order due by 12/1/2008. Signed by Magistrate Judge Peggy A. Leen on 5/2/08. (Copies have been distributed pursuant to the NEF − ES) (Entered: 05/06/2008)
36 STIPULATION Stipulated Protective Order Regarding Documentation, Information, and Medical Records of U.S. Equal Employment Opportunity Commission Claimants by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant GNLV Corporation. (Creer, Richard) (Entered: 05/14/2008)

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 7 of 24

05/20/2008 07/15/2008
07/16/2008 07/17/2008 07/17/2008 07/18/2008 07/25/2008 08/02/2008
08/04/2008
08/05/2008

37 ORDER GRANTING 36 Stipulation for Protective Order regarding documentation, information and medical records of U.S. Equal Employment Opportunity Commission claimants. Signed by Magistrate Judge Peggy A. Leen on 5/19/08. (Copies have been distributed pursuant to the NEF − ES) (Entered: 05/21/2008)
38 MOTION to Strike Defendant's Motion to Preclude Plaintiff from Adding Additional Class Members and Motion to Strike as Untimely the Inclusion of Leroy Lee, L.C. Kennedy, Kelly Hawthorne and Romilda Sarant as Class Members by Defendant GNLV Corporation. Responses due by 8/2/2008. (Attachments: # 1 Exhibit Exhibits 1 through 6 to Defendant's Motion to Preclude Plaintiff from Adding Additional Class Members, # 2 Exhibit Exhibits 7 through 9 to Defendant's Motion to Preclude Plaintiff from Adding Additional Class Members, # 3 Exhibit Exhibits 10 through 16 to Defendant's Motion to Preclude Plaintiff from Adding Additional Class Members, # 4 Exhibit Exhibits 17 through 18 to Defendant's Motion to Preclude Plaintiff from Adding Additional Class Members)(Creer, Richard) (Entered: 07/15/2008)
39 Emergency MOTION to Take Deposition by Plaintiff U.S. Equal Employment Opportunity Commission. Motion ripe 7/16/2008. (Attachments: # 1 Affidavit Morrison LR 26−7(c) Affidavit, # 2 Declaration Morrison Declaration, # 3 Exhibit 1−5, # 4 Exhibit 6−11, # 5 Certificate of Service Certificate of CM/ECF Service)(Morrison, Angela) (Entered: 07/16/2008)
40 NOTICE of Hearing on 38 MOTION to Strike Defendant's Motion to Preclude Plaintiff from Adding Additional Class Members and Motion to Strike as Untimely the Inclusion of Leroy Lee, L.C. Kennedy, Kelly Hawthorne and Romilda Sarant as Class Members : Motion Hearing set for 8/26/2008 10:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. (OXC) (Entered: 07/17/2008)
41 MOTION Defendant's Request for an Opportunity to Respond to Plaintiff EEOC's Emergency Motion for Leave to Take Additional Depositions and for Additional Time by Defendant GNLV Corporation. Responses due by 8/4/2008. (Keller, Edwin) (Entered: 07/17/2008)
42 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 7/18/2008. Motion Hearing set for 8/4/2008 at 01:45 PM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen RE: 39 Emergency MOTION to Take Deposition. (Copies have been distributed pursuant to the NEF − ES) (Entered: 07/18/2008)
43 ORDER GRANTING 41 Motion for Opportunity to Respond to Plaintiff EEOC's Emergency Motion for Leave to Take Additional Depositions and Request for Additional Time in Which to Take the Additional Depositions. Responses due by 8/4/2008 and Replies due by 8/15/2008 re EEOC's 39 Emergency Motion. Motion Hearing reset for 8/26/2008 at 10:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Signed by Magistrate Judge Peggy A. Leen on 7/24/08. (Copies have been distributed pursuant to the NEF − ES) (Entered: 07/25/2008)
44 RESPONSE to 38 MOTION to Strike Defendant's Motion to Preclude Plaintiff from Adding Additional Class Members and Motion to Strike as Untimely the Inclusion of Leroy Lee, L.C. Kennedy, Kelly Hawthorne and Romilda Sarant as Class Members, filed by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 8/16/2008. (Attachments: # 1 Declaration Leslie Goto−Brown, # 2 Declaration Angela Morrison, # 3 Exhibit Exs 1−6, # 4 Exhibit Exs 7−9, # 5 Exhibit Exs 10−11, # 6 Exhibit Exs 12−15, # 7 Errata Exs 16−18, # 8 Exhibit Ex 19, # 9 Certificate of Service)(Morrison, Angela) (Entered: 08/02/2008)
45 RESPONSE to 39 Emergency MOTION to Take Deposition, filed by Defendant GNLV Corporation. Defendant's Opposition to Plaintiff EEOC's Emergency Motion to Take Additional Depositions and Request for Additional Time in which to Take the Depositions Replies due by 8/18/2008. (Attachments: # 1 Exhibit Exhibits 1 through 4 to Defendant's Opposition to Plaintiff EEOC's Emergency Motion for Leave to Take Additional Depositions, # 2 Exhibit Exhibits 5 through 7 to Defendant's Opposition to Plaintiff EEOC's Emergency Motion for Leave to Take Additional Depositions)(Creer, Richard) (Entered: 08/04/2008)
NOTICE of Docket Correction to 45 Response to Motion: ERROR: Attorneys signature on document and filer do not match; CORRECTION: Attorneys Scott M.

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 8 of 24

08/15/2008 08/18/2008 08/26/2008 09/09/2008 09/19/2008 10/06/2008
10/09/2008

Abbott and Richard T Creer are advised to adhere to signature requirements of Special Order 109 on all future filings. (no image attached)(RFJ) (Entered: 08/05/2008)
46 REPLY to Response to 39 Emergency MOTION to Take Deposition ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Declaration Angela Morrison, # 2 Exhibit 1−2, # 3 Exhibit 3−6, # 4 Exhibit 7−8, # 5 Exhibit 9−10, # 6 Exhibit 11, # 7 Exhibit 12−15, # 8 Exhibit 16−18, # 9 Exhibit 19−20)(Morrison, Angela) (Entered: 08/15/2008)
47 REPLY to Response to 38 MOTION to Strike Defendant's Motion to Preclude Plaintiff from Adding Additional Class Members and Motion to Strike as Untimely the Inclusion of Leroy Lee, L.C. Kennedy, Kelly Hawthorne and Romilda Sarant as Class Members ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of Motion to Preclude Plaintiff from Adding Additional Class Members and Motion to Strike as Untimely the Inclusion of Leroy Lee, L.C. Kennedy, Kelly Hawthorne and Romilda Sarant as Class Members (Attachments: # 1 Exhibit Exhibit 1 to Defendant's Reply in Support of Motion to Preclude Plaintiff from Adding Additional Class Members)(Creer, Richard) (Entered: 08/18/2008)
48 MINUTES OF PROCEEDINGS − Motion Hearing held on 8/26/2008 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Angela D. Morrison, Esq.; Def Counsel: Scott M. Abbott, Esq., Richard T. Creer, Esq., Edwin A. Keller, Esq.; Court Reporter/FTR #: 10:10:45 − 10:39:45; Time of Hearing: 10:00am; Courtroom: 3B; The Court hears representations from counsel on the pending Motion to Strike... #38 and Motion to Take Deposition... #39. IT IS ORDERED: Motion to Strike #38 and Motion to Take Deposition #39 are GRANTED as stated in open court. A SEPARATE WRITTEN ORDER WILL ISSUE. Counsel are instructed that, if there are further disputes regarding the depositions requested, to request a telephonic resolution conference. (Copies have been distributed pursuant to the NEF − JAM) (Entered: 08/26/2008)
49 ORDER GRANTING 39 Emergency MOTION to Take Deposition filed by U.S. Equal Employment Opportunity Commission and GRANTING 38 MOTION to Strike / Preclude Plaintiff from Adding Additional Class Members and Motion to Strike as Untimely the Inclusion of Leroy Lee, L.C. Kennedy, Kelly Hawthorne and Romilda Sarant as Class Members filed by GNLV Corporation. EEOC is granted leave to take the eight additional depositions of the individuals identified in the motion and given an extension until 9/26/08 in which to conduct the additional depositions. The EEOC's request to "reserve" two additional depositions is DENIED without prejudice. Signed by Magistrate Judge Peggy A. Leen on 9/8/08. (Copies have been distributed pursuant to the NEF − ES) (Entered: 09/09/2008)
50 REQUEST for Review of Magistrate Judge Decision re 49 Order,,,, Set/Reset Deadlines,,, Appeal of & Objections to the Magistrate Judge's Order (Court Doc. #49) by Plaintiff U.S. Equal Employment Opportunity Commission. Motion ripe 9/19/2008. (Attachments: # 1 Declaration Decl of Angela Morrison, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Certificate of Service)(Morrison, Angela) (Entered: 09/19/2008)
51 RESPONSE to 50 REQUEST for Review of Magistrate Judge Decision re 49 Order,,,, Set/Reset Deadlines,,, Appeal of & Objections to the Magistrate Judge's Order (Court Doc. #49) by Plaintiff U.S. Equal Employment Opportunity Commission REQUEST for Review of Magistrate Judge Decision re 49 Order,,,, Set/Reset Deadlines,,, Appeal of & Objections to the Magistrate Judge's Order (Court Doc. #49) by Plaintiff U.S. Equal Employment Opportunity Commission, filed by Defendant GNLV Corporation. Defendant's Opposition to Plaintiff's Appeal and Objection to the Magistrate Judge's September 8, 2008 Order Replies due by 10/20/2008. (Attachments: # 1 Exhibit Exhibits 1−6 to Defendant's Opposition to Plaintiff's Appeal and Objection to Magistrate Judge's September 8, 2008 Order, # 2 Exhibit Exhibits 7−9 to Defendant's Opposition to Plaintiff's Appeal and Objection to Magistrate Judge's September 8, 2008 Order, # 3 Exhibit Exhibits 10−16 to Defendant's Opposition to Plaintiff's Appeal and Objection to Magistrate Judge's September 8, 2008 Order)(Abbott, Scott) (Entered: 10/06/2008)
52 NOTICE of Appearance by attorney Connie Liem on behalf of Plaintiff U.S. Equal Employment Opportunity Commission. (Liem, Connie) (Entered: 10/09/2008)

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53 STIPULATION Stipulation and Request for Extension of Deadlines for Dispositive Motions, Oppositions to Dispositive Motions, and Replies and Stipulation and Request for Permission to Take the Depositions of Leroy Lee, L.C. Kennedy, Romilda Sarant, and Kelly Hawthorne Outside Discovery Period by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant GNLV Corporation. (Creer, Richard) (Entered: 10/13/2008)
54 NOTICE of Change of Attorney on behalf of Plaintiff U.S. Equal Employment Opportunity Commission. (Liem, Connie) (Entered: 10/15/2008)
55 ORDER GRANTING 53 Stipulation to Extend Deadlines. Motions due by 12/15/2008. Responses due by 1/30/2009. Replies due by 3/2/2009. Proposed Joint Pretrial Order due by 4/15/2009. It is further ORDERED that Defendant has until 11/21/08 to depose Leroy Lee, L.C. Kennedy, Kelly Hawthorne and Romilda Sarant. Signed by Magistrate Judge Peggy A. Leen on 10/17/08. (Copies have been distributed pursuant to the NEF − ES) (Entered: 10/20/2008)
56 REPLY to Response to 50 REQUEST for Review of Magistrate Judge Decision re 49 Order,,,, Set/Reset Deadlines,,, Appeal of & Objections to the Magistrate Judge's Order (Court Doc. #49) by Plaintiff U.S. Equal Employment Opportunity Commission REQUEST for Review of Magistrate Judge Decision re 49 Order,,,, Set/Reset Deadlines,,, Appeal of & Objections to the Magistrate Judge's Order (Court Doc. #49) by Plaintiff U.S. Equal Employment Opportunity Commission ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Declaration Declaration of Connie Liem, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Certificate of Service)(Park, Anna) (Entered: 10/20/2008)
57 First MOTION to Strike 56 Reply to Response to Motion,, Defendant's Motion to Strike Plaintiff's Unauthorized Reply in Support of its Appeal and Objection to the Magistrate Judge's September 8, 2008 Order by Defendant GNLV Corporation. Responses due by 11/8/2008. (Creer, Richard) (Entered: 10/21/2008)
58 NOTICE of Appearance by attorney Lorena Garcia on behalf of Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Notice of Appearance of Government Attorney Lorena Garcia; Certificate of CM/ECF Service (Garcia, Lorena) (Entered: 10/22/2008)
59 ORDER GRANTING Defendant's 38 MOTION to Preclude Plaintiff from Adding Additional Class Members and Motion to Strike as Untimely the Inclusion of Leroy Lee, L.C. Kennedy, Kelly Hawthorne and Romilda Sarant as Class Members. It is further ORDERED that Plaintiff's 39 Emergency MOTION to Take Additional Depositions is GRANTED to the extent the EEOC is granted leave to take the eight additional depositions of individuals identified in the motion and given an extension subject to the discretion of the Magistrate Judge. The EEOC's request to "reserve" two additional depositions is DENIED. Signed by Judge Brian E. Sandoval on 10/28/08. (Copies have been distributed pursuant to the NEF − ES) (Entered: 10/28/2008)
60 ERROR: Minute Order entered in error by Court. (MJZ)MINUTE ORDER IN THE CHAMBERS of the Honorable Brian Sandoval, U.S. District Judge on 10/28/08 by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that 57 Defendant's Motion to Strike Plaintiff's Unauthorized Reply in Support of Its Appeal and Objection to the Magistrate Judge's September 8, 2008 Order is GRANTED. The Clerk of the Court shall STRIKE 56 Plaintiff EEOC's Reply in Support of Appeal of and Objections to the Magistrate Judge's September 8, 2008 Order; Declaration and Exhibits; Certificate of CM/ECF Service from the Court record. IT IS SO ORDERED. Signed by Judge Brian Sandoval. (Copies have been distributed pursuant to the NEF − CL) (Entered: 10/28/2008)
61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim by Defendant GNLV Corporation. Responses due by 12/30/2008. (Attachments: # 1 Exhibit Exhibit 1 to 4 to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 2 Exhibit Exhibits 5 to 8 to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 3 Exhibit Exhibit 9, Part 1, to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 4 Exhibit Exhibit 9, Part 2, to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 5 Exhibit Exhibits 10 to 14 to Defendant's Motion for

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Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 6 Exhibit Exhibit 15 to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 7 Exhibit Exhibits 16 to 20 to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 8 Exhibit Exhibits 21 to 23 to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 9 Exhibit Exhibits 24 to 31 to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 10 Exhibit Exhibits 32 to 39 to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 11 Exhibit Exhibits 40 to 43 to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 12 Exhibit Exhibit 44, Part 1, to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 13 Exhibit Exhibit 44, Part 2, to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 14 Exhibit Exhibit 44, Part 3, to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 15 Exhibit Exhibit 44, Part 4, to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, # 16 Exhibit Exhibits 45 to 55 to Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim)(Abbott, Scott) (Entered: 12/12/2008)
62 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of Punitive Damages by Defendant GNLV Corporation. Responses due by 12/30/2008. (Attachments: # 1 Exhibit Exhibits 1 to 9 to Defendant's Motion for Summary Judgment on the Issue of Punitive Damages, # 2 Exhibit Exhibits 10 to 15 to Defendant's Motion for Summary Judgment on the Issue of Punitive Damages, # 3 Exhibit Exhibits 16 to 22 to Defendant's Motion for Summary Judgment on the Issue of Punitive Damages, # 4 Exhibit Exhibits 23 to 26 to Defendant's Motion for Summary Judgment on the Issue of Punitive Damages)(Abbott, Scott) (Entered: 12/12/2008)
63 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims by Defendant GNLV Corporation. Responses due by 12/30/2008. (Attachments: # 1 Exhibit Exhibits 1 to 11 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, # 2 Exhibit Exhibits 12 to 13 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, # 3 Exhibit Exhibit 14, Part 1, to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, # 4 Exhibit Exhibit 14, Part 2, to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, # 5 Exhibit Exhibits 15 to 20 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, # 6 Exhibit Exhibits 21 to 25 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, # 7 Affidavit Affidavit of Jill Bell)(Abbott, Scott) (Entered: 12/12/2008)
64 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims by Defendant GNLV Corporation. Responses due by 12/30/2008. (Attachments: # 1 Exhibit Exhibit 1 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, # 2 Exhibit Exhibit 2 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, # 3 Exhibit Exhibits 3 to 10 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, # 4 Affidavit Affidavit of Jill Bell)(Abbott, Scott) (Entered: 12/12/2008)
65 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims by Defendant GNLV Corporation. Responses due by 1/2/2009. (Attachments: # 1 Exhibit Exhibit 1 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims, # 2 Exhibit Exhibits 2 to 8 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims, # 3 Affidavit Affidavit of Jill Bell)(Abbott, Scott) (Entered: 12/15/2008)
66 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims by Defendant GNLV Corporation. Responses due by 1/2/2009. (Attachments: # 1 Exhibit Exhibits 1 to 2 to Defendant's Motion for Summary Judgment Regarding the Merits of Class

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Member Eddie Mae Hunter's Claims, # 2 Exhibit Exhibit 3, Part 1, to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims, # 3 Exhibit Exhibit 3, Part 2, to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims, # 4 Exhibit Exhibits 4 to 6 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims, # 5 Affidavit Affidavit of Jill Bell)(Abbott, Scott) (Entered: 12/15/2008)
67 MOTION for Summary Judgment on Defendant's First, Second, Third, Fourth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth, Twentieth, and Twenty−First Affirmative Defenses by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 1/2/2009. (Attachments: # 1 EEOC's Memorandum of Points and Authorities Supporting Motion for Summary Adjudication, # 2 EEOC's Statement of Concise Undisputed Facts in Support of Its Motion for Summary Adjudication, # 3 Declaration Declaration of Attorney Lorena Garcia in Support of EEOC's Motion for Summary Adjudication, # 4 Exhibit Exhibit 1, # 5 Exhibit Exhibit 2, # 6 Exhibit Exhibit 3, # 7 Exhibit Exhibit 4, # 8 Exhibit Exhibit 5, # 9 Exhibit Exhibit 6, # 10 Exhibit Exhibit 7, # 11 Exhibit Exhibit 8, # 12 Exhibit Exhibit 9, # 13 Exhibit Exhibit 10, # 14 Exhibit Exhibit 11, # 15 Exhibit Exhibit 12, # 16 Exhibit Exhibit 13, # 17 Exhibit Exhibit 14, # 18 Exhibit Exhibit 15, # 19 Exhibit Exhibit 16, # 20 Exhibit Exhibit 17, # 21 Exhibit Exhibit 18, # 22 Exhibit Exhibit 19, # 23 Certificate of Service Certificate of Service)(Garcia, Lorena) (Entered: 12/15/2008)
68 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims by Defendant GNLV Corporation. Responses due by 1/2/2009. (Attachments: # 1 Exhibit Exhibit 1 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, # 2 Exhibit Exhibit 2, Part 1, to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, # 3 Exhibit Exhibit 2, Part 2, to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, # 4 Exhibit Exhibits 3 to 6 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, # 5 Affidavit Affidavit of Jill Bell)(Abbott, Scott) (Entered: 12/15/2008)
69 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Tequella Candice Smith by Defendant GNLV Corporation. Responses due by 1/2/2009. (Attachments: # 1 Exhibit Exhibits 1 to 5 to Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Class Member Tequella Candice Smith, # 2 Errata Exhibits 6 to 8 to Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Class Member Tequella Candice Smith, # 3 Exhibit Exhibits 9 to 13 to Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Class Member Tequella Candice Smith)(Abbott, Scott) (Entered: 12/15/2008)
70 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims by Defendant GNLV Corporation. Responses due by 1/2/2009. (Attachments: # 1 Affidavit Affidavit of Jill Bell, # 2 Exhibit Exhibit 1, Part 1, to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith, # 3 Exhibit Exhibit 1, Part 2, to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims, # 4 Exhibit Exhibit 1, Part 3, to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims, # 5 Exhibit Exhibits 2 to 6 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims, # 6 Exhibit Exhibit 7 to 14 to Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims)(Keller, Edwin) (Entered: 12/15/2008)
71 Emergency MOTION for Leave to File One Consolidated Opposition to Defendant's Nine Motions for Summary Judgment by Plaintiff U.S. Equal Employment Opportunity Commission. Motion ripe 1/12/2009. (Attachments: # 1 Declaration

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Lorena Garcia, # 2 Declaration Connie Liem, # 3 Exhibit A, # 4 Exhibit B)(Liem, Connie) (Entered: 01/12/2009)
72 RESPONSE to 71 Emergency MOTION for Leave to File One Consolidated Opposition to Defendant's Nine Motions for Summary Judgment, filed by Defendant GNLV Corporation. Defendant's Opposition to Plaintiff EEOC's Emergency Motion for Leave of Court to File One Consolidated Opposition to Defendant's Nine Motions for Summary Judgment Replies due by 1/29/2009. (Attachments: # 1 Affidavit Affidavit of R. Todd Creer)(Creer, Richard) (Entered: 01/15/2009)
73 REPLY to Response to 71 Emergency MOTION for Leave to File One Consolidated Opposition to Defendant's Nine Motions for Summary Judgment ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Decl. of Service (Liem, Connie) (Entered: 01/20/2009)
74 MINUTE ORDER IN CHAMBERS of the Honorable Judge Brian Sandoval, U.S. District Judge on 1/23/2009 by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that 71 Plaintiff EEOC's Emergency Motion for Leave of Court to File One Consolidated Opposition to Defendant's Nine Motions for Summary Judgment with 135 Page Limit is DENIED. IT IS SO ORDERED. Signed Judge Brian Sandoval.(Copies have been distributed pursuant to the NEF − CL) (Entered: 01/23/2009)
75 RESPONSE to 67 MOTION for Summary Judgment on Defendant's First, Second, Third, Fourth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth, Twentieth, and Twenty−First Affirmative Defenses, filed by Defendant GNLV Corporation. Defendant's Opposition to Plaintiff's Motion for Summary Adjudication on Defendant's First, Second, Third, Fourth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth, Twentieth, and Twenty−First Affirmative Defenses Replies due by 2/13/2009. (Attachments: # 1 Exhibit Exhibits 1 to 3 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 2 Exhibit Exhibits 4 to 11 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 3 Exhibit Exhibit 12 to 14 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 4 Exhibit Exhibits 15 to 16 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 5 Exhibit Exhibit 17 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 6 Exhibit Exhibits 18 to 19 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 7 Exhibit Exhibits 20 to 21 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 8 Exhibit Exhibit 22 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 9 Exhibit Exhibit 23 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 10 Exhibit Exhibits 24 to 25 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication, # 11 Exhibit Exhibits 26 to 33 to Defendant's Opposition to Plaintiff's Motion for Summary Adjudication)(Creer, Richard) (Entered: 01/30/2009)
76 First DECLARATION of Connie Liem re 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim, 70 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims, 68 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, 66 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims, 62 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of Punitive Damages, 69 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Tequella Candice Smith, 65 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims, 63 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, 64 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. In Support of EEOC's Oppositions (Attachments: # 1 Index Table of Exhibits (Volume 1), # 2 Exhibit A, # 3 Exhibit A−1, # 4 Exhibit A−2, # 5 Exhibit A−3, # 6 Exhibit A−4, # 7 Exhibit A−5, # 8 Exhibit A−6, # 9 Exhibit A−7, # 10 Exhibit A−9, # 11 Exhibit A−11, # 12 Exhibit A−12, # 13

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Exhibit A−13, # 14 Exhibit A−14, # 15 Exhibit A−15, # 16 Exhibit A−16, # 17 Exhibit A−25, # 18 Exhibit A−33, # 19 Exhibit A−34, # 20 Exhibit A−40, # 21 Exhibit B, # 22 Exhibit B−22, # 23 Exhibit B−23, # 24 Exhibit B−24, # 25 Exhibit B−25, # 26 Exhibit B−26, # 27 Exhibit B−27, # 28 Exhibit B−28, # 29 Exhibit B−29, # 30 Exhibit B−30, # 31 Exhibit B−32, # 32 Exhibit C, # 33 Exhibit D, # 34 Exhibit D−10, # 35 Exhibit D−11, # 36 Exhibit D−12, # 37 Exhibit D−13, # 38 Exhibit D−14, # 39 Exhibit D−15, # 40 Exhibit D−16, # 41 Exhibit E, # 42 Exhibit F, # 43 Exhibit F−12, # 44 Exhibit F−13, # 45 Exhibit F−14, # 46 Exhibit F−15, # 47 Exhibit F−16, # 48 Exhibit F−17, # 49 Exhibit G, # 50 Exhibit H, # 51 Exhibit I, # 52 Certificate of Service Certificate of Service)(Liem, Connie) (Entered: 01/30/2009)
77 Second DECLARATION of Connie K. Liem re 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim, 68 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, 66 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims, 62 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of Punitive Damages, 69 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Tequella Candice Smith, 65 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims, 63 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, 64 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, 70 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. In Support of All of EEOC's Oppositions (Attachments: # 1 Index Table of Exhibits (Vol. II), # 2 Exhibit J, # 3 Exhibit K, # 4 Exhibit L, # 5 Exhibit M, # 6 Exhibit N, # 7 Exhibit P, # 8 Exhibit Q, # 9 Exhibit T, # 10 Exhibit U, # 11 Exhibit W, # 12 Exhibit X, # 13 Exhibit Y, # 14 Exhibit Z, # 15 Certificate of Service)(Liem, Connie) (Entered: 01/30/2009)
78 RESPONSE to 63 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, filed by Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Memorandum of Points and Authorities Supporting Its Opposition to Defendant's Motion for Summary Judgment Re: The Merits of Class Member Robert Royal's Claims (Doc. No. 63), and Certificate of Service Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)
79 RESPONSE to 64 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, filed by Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Memorandum of Points and Authorities Supporting Its Opposition to Defendant's Motion for Summary Judgment Re: The Merits of Class Member Susie Fein's Claims (Doc. No. 64); and Certificate of Service Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)
80 RESPONSE to 62 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of Punitive Damages, filed by Plaintiff U.S. Equal Employment Opportunity Commission. Cert. of Service Replies due by 2/13/2009. (Liem, Connie) (Entered: 01/30/2009)
81 RESPONSE to 65 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims, filed by Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Memorandum of Points and Authorities Supporting Its Opposition to Defendant's Motion for Summary Judgment Re: The Merits of Class Member Ervin Nixon's Claims (Doc. No. 65) Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)
82 RESPONSE to 66 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims, filed by Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Memorandum of Points and Authorities Supporting Its Opposition to Defendant's Motion for Summary

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Judgment Re: The Merits of Class Member Eddie Mae Hunter's Claims (Doc. 66) Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)
83 RESPONSE to 68 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, filed by Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Memorandum of Points and Authorities Supporting Its Opposition to Defendant's Motion for Summary Judgment Re: The Merits of Class Member Dorothy Blake's Claims (Doc. No. 68); and Certificate of Service Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)
84 RESPONSE to 69 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Tequella Candice Smith, filed by Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Opposition to Defendant's Motion for Summary Judgment On the Issue of the EEOC's Alleged Failure to Meet the Administrative Prerequisites for Claims Pertaining to Class Member Tequella Candice Smith (Court Doc. 69); and Certificate of Service Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)
85 RESPONSE to 70 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims, filed by Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Memorandum of Points and Authorities Supporting Its Opposition to Defendant's Motion for Summary Judgment Re: The Merits of Class Member Tequella Candice Smith's Claims (Doc. No. 70); and Certificate of Service Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)
86 RESPONSE to 65 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims, 70 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims, 66 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims, 68 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, 64 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim, 69 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Tequella Candice Smith, 62 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of Punitive Damages, 63 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, 67 MOTION for Summary Judgment on Defendant's First, Second, Third, Fourth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth, Twentieth, and Twenty−First Affirmative Defenses, filed by Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Statement of Concise Material Facts In Support of All of Its Oppositions to All of Defendant's Motions for Summary Judgment (Doc. No.'s 61, 62, 63, 64, 65, 66, 68, 69, 70); and Certificate of Service Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)
87 RESPONSE to 64 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, 63 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, 62 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of Punitive Damages, 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim, filed by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff EEOC's Objections to Defendant's Statement of Uncontroverted Facts In Support of Its Motions for Summary Judgment With Docket # 61, 62, 63, and 64; and Certificate of Service Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)

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88 RESPONSE to 65 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims, 70 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims, 66 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims, 69 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Tequella Candice Smith, 68 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, filed by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff EEOC's Objections to Defendant's Statement of Uncontroverted Facts In Support of Its Motions for Summary Judgment With Docket # 65, 66, 68, 69, and 70; and Certificate of Service Replies due by 2/13/2009. (Garcia, Lorena) (Entered: 01/30/2009)
89 RESPONSE to 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim, filed by Plaintiff U.S. Equal Employment Opportunity Commission. Certificate of Service Replies due by 2/13/2009. (Liem, Connie) (Entered: 01/30/2009)
90 MINUTE ORDER IN CHAMBERS of the Honorable Judge Brian E. Sandoval, on 2/6/2009. By Deputy Clerk: Marti Campbell. IT IS ORDERED that a motions hearing is scheduled for Thursday, April 30, 2009, 9:00 AM in Las Vegas, Nevada, Courtroom TBA before Judge Brian E. Sandoval regarding the following motions. 61 Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim; 62 Motion for Summary Judgment on the Issue of Punitive Damages; 63 Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims; 64 Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims; 65 Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims; 66 Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims; 67 Motion for Summary Judgment on First, Second, Third, Fourth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth, Twentieth, and Twenty−First Affirmative Defenses; 68 Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims; 69 Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Tequella Candice Smith; and, 70 Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims. In the event counsel wish to use evidence display equipment for the hearing, counsel must furnish their own equipment. The Courtroom is not set up for evidence display equipment. (no image attached) (Copies have been distributed pursuant to the NEF − MLC) (Entered: 02/06/2009)
91 STIPULATION Stipulation and Request to Continue the April 30, 2009 Hearing on Plaintiff's Motion for Summary Adjudication and Defendant's Motions for Summary Judgment by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant GNLV Corporation. (Creer, Richard) (Entered: 02/10/2009)
92 MOTION for Leave to Appear U.S. Government Attorney. Motion to Permit Appearance of Government Attorney: Amrita Mallik. by Plaintiff U.S. Equal Employment Opportunity Commission. Motion ripe 2/11/2009. (Attachments: # 1 Certificate of Service of Motion to Permit Appearance of Government Attorney [A. Mallik])(Mallik, Amrita) (Entered: 02/11/2009)
NOTICE of Docket Correction to 92 MOTION for Leave to Appear U.S. Government Attorney. : ERROR: Attorneys signature on document and filer do not match; CORRECTION: Attorneys Blaine T Welsh and Amrita Mallik are advised to adhere to signature requirements of Special Order 109 on all future filings. (no image attached)(RFJ) (Entered: 02/11/2009)
93 ORDER ON STIPULATION re 91 Stipulation to Continue Motions Hearing Scheduled for 04/30/2009. IT IS ORDERED that the Stipulation to Continue Hearing 91 is APPROVED. IT IS FURTHER ORDERED that the motions hearing, currently scheduled for Thursday, 04/30/2009, is CONTINUED to Monday, 05/18/2009 9:00 AM in Las Vegas Courtroom TBA before Judge Brian E. Sandoval. See Minute Order dated 02/06/2009 90 for specifics. Signed by Judge Brian E. Sandoval on 02/12/09. (Copies have been distributed pursuant to the NEF − MLC) (Entered: 02/12/2009)

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 16 of 24

02/12/2009 02/13/2009 02/27/2009 02/27/2009 02/27/2009 02/27/2009 02/27/2009

94 MINUTE ORDER IN THE CHAMBERS of the Honorable Brian Sandoval, U.S. District on 02/12/09 by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that 92 Government's Motion to Permit Appearance of Government Attorney Amrita Mallik to practice before this Court is GRANTED. IT IS SO ORDERED. Signed by Judge Brian Sandoval. (Copies have been distributed pursuant to the NEF − CL) (Entered: 02/12/2009)
95 MINUTE ORDER IN CHAMBERS of the Honorable Judge Brian E. Sandoval, on 2/13/2009. By Deputy Clerk: Marti Campbell. IT IS ORDERED that in the event counsel wish to use evidence display equipment for the motions hearing scheduled for Monday, 05/18/2009 9:00 AM in Las Vegas, counsel must furnish their own equipment. The Courtroom is not set up for evidence display equipment. (no image attached) (Copies have been distributed pursuant to the NEF − MLC) (Entered: 02/13/2009)
96 REPLY to Response to 69 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Tequella Candice Smith ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Class Member Tequella Candice Smith (Attachments: # 1 Exhibit Exhibits 1 to 3 to Defendant's Reply in Support of its Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Class Member Tequella Candice Smith)(Creer, Richard) (Entered: 02/27/2009)
97 REPLY to Response to 64 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims (Attachments: # 1 Exhibit Exhibits 1 to 2 to Defendant's Reply in Support of Its Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, # 2 Exhibit Exhibit 3 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, # 3 Exhibit Exhibits 4 to 7 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims, # 4 Affidavit Affidavit of Jill Bell)(Creer, Richard) (Entered: 02/27/2009)
98 REPLY to Response to 66 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims (Attachments: # 1 Exhibit Exhibits 1 to 2 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims, # 2 Exhibit Exhibits 3 to 4 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims)(Creer, Richard) (Entered: 02/27/2009)
99 REPLY to Response to 63 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims (Attachments: # 1 Exhibit Exhibits 1 to 2 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, # 2 Exhibit Exhibits 3 to 5 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims, # 3 Exhibit Exhibits 6 to 11 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims)(Creer, Richard) (Entered: 02/27/2009)
100 REPLY to Response to 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim (Attachments: # 1 Exhibit Exhibits 1 to 2 to Defendant's Reply in Support of its Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim)(Creer, Richard) (Entered:

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 17 of 24

02/27/2009 03/02/2009 03/02/2009 03/02/2009 03/02/2009
04/14/2009

02/27/2009)
101 REPLY to Response to 62 MOTION for Summary Judgment Defendant's Motion for Summary Judgment on the Issue of Punitive Damages ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Summary Judgment on the Issue of Punitive Damages (Attachments: # 1 Exhibit Exhibits 1−5 to Defendant's Reply re Punitive Damages, # 2 Exhibit Exhibits 6−10 to Def Reply re: Punitive Damages, # 3 Exhibit Exhibits 11−13 to Def Reply re Punitive Damages)(Abbott, Scott) (Entered: 02/27/2009)
102 REPLY to Response to 65 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims (Attachments: # 1 Exhibit Exhibit 1 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon, Jr.'s Claims)(Creer, Richard) (Entered: 03/02/2009)
103 REPLY to Response to 67 MOTION for Summary Judgment on Defendant's First, Second, Third, Fourth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth, Twentieth, and Twenty−First Affirmative Defenses ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff EEOC's Reply In Support of Its Motion for Summary Adjudication on Defendant's First, Second, Third, Fourth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth, Twentieth, and Twenty−First Affirmative Defenses (Attachments: # 1 Declaration Declaration of Attorney Lorena Garcia in Support of the EEOC's Reply, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 4, # 4 Exhibit Exhibit 8, # 5 Exhibit Exhibit 20, # 6 Exhibit Exhibit 21, # 7 Exhibit Exhibit 22, # 8 Exhibit Exhibit 23, # 9 Exhibit Exhibit 24)(Garcia, Lorena) (Entered: 03/02/2009)
104 REPLY to Response to 70 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims (Attachments: # 1 Exhibit Exhibit 1 Part 1 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims, # 2 Exhibit Exhibit 1 Part 2 to Exhibit 3 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims, # 3 Exhibit Exhibit 4 to Exhibit 7 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims)(Creer, Richard) (Entered: 03/02/2009)
105 REPLY to Response to 68 MOTION for Summary Judgment Defendant's Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims ; filed by Defendant GNLV Corporation. Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims (Attachments: # 1 Exhibit Exhibit 1 Part 1 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, # 2 Exhibit Exhibit 1 Part 2 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, # 3 Exhibit Exhibits 2 to 4 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims, # 4 Exhibit Exhibits 5 to 6 to Defendant's Reply in Support of its Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims)(Creer, Richard) (Entered: 03/02/2009)
106 MOTION to Strike 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 5/2/2009. (Attachments: # 1 Declaration of Amrita Mallik in Support of EEOC's Motion to Strike, # 2 Exhibit 1−4 in Support of EEOC's Motion to Strike, # 3 Exhibit 5−7 in Support of EEOC's Motion to Strike, # 4 Exhibit 8−9 in Support of EEOC's Motion to Strike, # 5 Exhibit 10−13 in Support of EEOC's Motion to Strike)(Mallik, Amrita) (Entered: 04/14/2009)

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05/04/2009 05/12/2009 05/18/2009

107 RESPONSE to 106 MOTION to Strike , filed by Defendant GNLV Corporation. Replies due by 5/18/2009. (Attachments: # 1 Exhibit Exhibits 1 to 5 to Defendant's Opposition to Plaintiff EEOC's Motion to Strike Affidavit of Philip Bouthillier, # 2 Exhibit Exhibit 6 Part 1 to Defendant's Opposition to Plaintiff EEOC's Motion to Strike Affidavit of Philip Bouthillier, # 3 Exhibit Exhibit 6 Part 2 to Defendant's Opposition to Plaintiff EEOC's Motion to Strike Affidavit of Philip Bouthillier, # 4 Exhibit Exhibits 7 to 12 to Defendant's Opposition to Plaintiff EEOC's Motion to Strike Affidavit of Philip Bouthillier)(Creer, Richard) (Entered: 05/04/2009)
108 REPLY to Response to 106 MOTION to Strike 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim MOTION to Strike 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim MOTION to Strike 61 First MOTION for Summary Judgment Defendant's Motion for Summary Judgment on Plaintiff's EEOC's Pattern or Practice Claim ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Mallik, Amrita) (Entered: 05/12/2009)
109 MINUTES OF PROCEEDINGS − Motion Hearing held on 5/18/2009 before Judge Brian E. Sandoval. Crtrm Administrator: Lesa Ettinger; Pla Counsel: Connie Liem, Lorena Garcia and Amrita Mallik; Def Counsel: Scott Abbott, Edwin Keller and Richard Creer; Court Reporter/FTR #: Margaret Griener; Time of Hearing: 9:00 AM − 12:38 PM; Courtroom: 4B;

The Court addresses 106 Motion to Strike Affidavit of Philip Bouthillier, Portion's of Defendant's Motion for Summary Judgment on Plaintiff EEOC's Pattern or Practice Claim, Exhibit's Relating to Philip Bouthillier's Affidavit, and Purported Numerical Analysis. Ms. Liem presents opening argument. Mr. Abbott presents closing argument. Ms. Liem presents closing argument. IT IS ORDERED, 106 Motion shall stand submitted. However, for the purposes of this date's hearing, 106 Motion shall be denied.

06/02/2009
06/02/2009 06/12/2009

As to 61 Motion for Summary Judgment on Plaintff EEOC's Pattern or Practice Claim; 62 Motion for Summary Judgment on the Issue of Punitive Damages; 63 Motion for Summary Judgment Regarding the Merits of Class Member Robert Royal's Claims; 64 Motion for Summary Judgment Regarding the Merits of Class Member Susie Fein's Claims; 65 Motion for Summary Judgment Regarding the Merits of Class Member Ervin Nixon Jr.'s Claims; 66 Motion for Summary Judgment Regarding the Merits of Class Member Eddie Mae Hunter's Claims; 67 Motion for Summary Judgment on Defendant's 1st, 2nd, 3rd, 4th, 7th, 9th, 10th, 11th, 12th, 13th, 14th, 16th, 20th, and 21st Affirmative Defenses; 68 Motion for Summary Judgment Regarding the Merits of Class Member Dorothy Blake's Claims 69 Motion for Summary Judgment on the Issue of the EEOC's Failure to Meet the Administrative Prerequisites for Claims Pertaining to Tequella Candice Smith; and 70 Motion for Summary Judgment Regarding the Merits of Class Member Tequella Candice Smith's Claims. Counsel argue the facts and merits of the motions. IT IS ORDERED, Motions 61 through 70 shall stand submitted this date. (Copies have been distributed pursuant to the NEF − LE) (Entered: 05/19/2009)
110 ORDER that 106 is Denied. Motion for Summary Judgment 61 is Granted. Motion 62 is Denied as Moot. Motion for Summary Judgment on Claimants 63 , 64 , 65 , 66 , 68 , 69 , 70 are Denied as Moot. Motion 67 for Summary Judgment is Denied as Moot. Court to enter judgment for Defendant GNLV and against Plaintiff EEOC. Signed by Judge Brian E. Sandoval on 6/2/09. (Copies have been distributed pursuant to the NEF − AXM) Modified on 6/2/2009 (CL). (Entered: 06/02/2009)
111 JUDGMENT in favor of GNLV Corporation against U.S. Equal Employment Opportunity Commission. Signed by Lance S. Wilson. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 06/02/2009)
112 BILL OF COSTS Defendant GNLV, Corp.'s Bill of Costs by Defendant GNLV Corporation. Tax or object to Bill of Costs by 6/27/2009. (Attachments: # 1 Exhibit Attachment 1 to Defendant's Bill of Costs, # 2 Exhibit Attachment 2 Part 1 to Defendant's Bill of Costs, # 3 Exhibit Attachment 2 Part 2 to Defendant's Bill of Costs, # 4 Exhibit Attachment 3 to Defendant's Bill of Costs)(Creer, Richard) (Entered: 06/12/2009)

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 19 of 24

06/23/2009 06/23/2009 06/25/2009 06/30/2009 07/24/2009 07/30/2009
07/31/2009 08/03/2009 08/03/2009
08/03/2009 08/03/2009 08/04/2009 09/01/2009

113 OBJECTION to 112 Bill of Costs, ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Declaration Connie K. Liem)(Liem, Connie) (Entered: 06/23/2009)
114 First MOTION for Leave to File Reply to Plaintiff EEOC's Objections to Defendant's Application to the Clerk to Tax Costs by Defendant GNLV Corporation. Motion ripe 6/23/2009. (Creer, Richard) (Entered: 06/23/2009)
115 RESPONSE to 114 First MOTION for Leave to File Reply to Plaintiff EEOC's Objections to Defendant's Application to the Clerk to Tax Costs, filed by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 7/9/2009. (Liem, Connie) (Entered: 06/25/2009)
116 REPLY to 112 Bill of Costs, 113 Objection to Bill of Costs ; Defendant's Reply to Plaintiff EEOC's Objections to Defendant's Application to the Clerk to Tax Costs filed by Defendant GNLV Corporation. (Attachments: # 1 Exhibit Exhibit 1 to Defendant's Reply to the EEOC's Objections to Defendant's Application to the Clerk to Tax Costs)(Creer, Richard) (Entered: 06/30/2009)
117 MOTION to Withdraw as Attorney for GNLV, Corp. by Scott M. Abbott. by Defendant GNLV Corporation. Motion ripe 7/24/2009. (Attachments: # 1 Exhibit Exhibit 1 to Motion to Withdraw as Counsel of Record for GNLV, Corp.)(Abbott, Scott) (Entered: 07/24/2009)
119 TRANSCRIPT of Proceedings, 109 Motion Hearing, held on 05/18/09, before Judge Brian E. Sandoval. Court Reporter/Transcriber: Margaret Griener, 775−329−9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 8/20/2009. Redacted Transcript Deadline set for 8/30/2009. Release of Transcript Restriction set for 10/28/2009. (LG) (Entered: 08/03/2009)
118 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Richard A. Sheehy and Edward Perkins and DESIGNATION of Local Counsel Robert L. Rosenthal (Filing fee $ 175 receipt number 09780000000001317855) filed by Defendant GNLV Corporation. Motion ripe 7/31/2009. (Rosenthal, Robert) (Entered: 07/31/2009)
120 NOTICE OF APPEAL as to 111 Judgment by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Representation Statement, # 2 Certificate of Service)(Liem, Connie) (Entered: 08/03/2009)
121 ORDER granting 118 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Richard A Sheehy and R Edward Perkins for GNLV Corporation and approving Attorney Robert L. Rosenthal as Designation of Local Counsel. Signed by Judge Brian E. Sandoval on 8/3/09. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − ECS) (Entered: 08/03/2009)
122 NOTICE of Change of Attorney on behalf of Defendant GNLV Corporation. (Abbott, Scott) (Entered: 08/03/2009)
123 Designation of Transcripts and Transcript Order forms and instructions for 120 Notice of Appeal. The forms may also be obtained on the Court's website at www.nvd.uscourts.gov/Forms.aspx. (ECS) (Entered: 08/03/2009)
124 ORDER for Time Schedule as to 120 Notice of Appeal filed by U.S. Equal Employment Opportunity Commission. USCA Case Number 09−16640. (ECS) (Entered: 08/04/2009)
125 TRANSCRIPT DESIGNATION by Plaintiff U.S. Equal Employment Opportunity Commission re 120 Notice of Appeal, 109 Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,, Order on Motion to Strike,,,,,,,,, Motion Hearing,,,,,,,, 119 Transcript,,. Cert. of Service (Liem, Connie) (Entered: 09/01/2009)

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 20 of 24

09/03/2009 09/16/2009 12/04/2009 03/23/2010 03/29/2010
04/02/2010 04/26/2010

126 CERTIFICATE OF RECORD on 120 Appeal sent electronically to the US Court of Appeals, Ninth Circuit. (ECS) (Entered: 09/03/2009)
127 MINUTE ORDER IN CHAMBERS of the Honorable Roger L. Hunt, on 9/16/2009. Due to the resignation of the Honorable Brian E. Sandoval, it is appropriate to reassign this case to another district judge. IT IS ORDERED that this case is reassigned to Judge Robert C. Jones for all further proceedings. All further documents must bear the correct case number: 2:06−CV−01225−RCJ−PAL. (no image attached) (Copies have been distributed pursuant to the NEF − DRM) (Entered: 09/17/2009)
128 MINUTE ORDER IN CHAMBERS of the Honorable Robert C. Jones, U.S. District Judge on 12/4/2009, by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that a Motion Hearing RE: 114 Motion for Leave to File Reply to Plaintiff EEOC's Objections to Defendant's Application to the Clerk to Tax Costs, 117 Motion to Withdraw as Attorney for GNLV, Corp., is set for 3/29/2010 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones. IT IS SO ORDERED.(Copies have been distributed pursuant to the NEF − CL) (Entered: 12/04/2009)
129 MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 3/23/2010. By Deputy Clerk: Lesa Ettinger. The Motion Hearing RE: 114 First MOTION for Leave to File Reply to Plaintiff EEOC's Objections to Defendant's Application to the Clerk to Tax Costs and 117 MOTION to Withdraw as Attorney for GNLV, Corp. by Scott M. Abbott., scheduled for 3/29/2010 09:00 AM is RESCHEDULED (IN TIME ONLY) to 10:00 AM (same date) in LV Courtroom 7D before Judge Robert C. Jones.(no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 03/23/2010)
131 MINUTES OF PROCEEDINGS − Motion Hearing RE: 114 First MOTION for Leave to File Reply to Plaintiff EEOC's Objections to Defendant's Application to the Clerk to Tax Costs, and 117 MOTION to Withdraw as Attorney for GNLV, Corp. by Scott M. Abbott, held on 3/29/2010 before Judge Robert C. Jones. Crtrm Administrator: Lesa Ettinger / K. Goetsch; Pla Counsel: Connie Liem and Elizabeth Nakarado; Def Counsel: Robert Rosenthal, Todd Creer and Edwin Keller, Jr.; Court Reporter/FTR #: Recorder / A. Bareng; Time of Hearing: 11:58 AM − 12:02 PM; Courtroom: 7D; The Court hears arguments of counsel with respect to the motions at issue.The Court takes 114 Motion for Leave to File Reply under submission. Written ruling of the Court will issue. With respect to 117 Motion to Withdraw as Attorney by Scott Abbott, the Court intends to grant the motion following the final determination of cost. (no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 04/05/2010)
130 MINUTE ORDER IN CHAMBERS of the Honorable Robert C. Jones, U.S. District Judge on 4/2/2010, by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that a Motion Hearing RE: 113 Plaintiff EEOC's Objections to 112 Defendant's Application to the Clerk to Tax Costs is set for 4/26/2010 10:00 AM in LV Courtroom 7D before Judge Robert C. Jones. IT IS SO ORDERED. Signed Robert C. Jones, U.S. District Judge. (Copies have been distributed pursuant to the NEF − CL) (Entered: 04/02/2010)
134 MINUTES OF PROCEEDINGS − Motion Hearing RE: 113 Objection to Bill of Costs, 117 MOTION to Withdraw as Attorney for GNLV, Corp. by Scott M. Abbott, held on 4/26/2010 before Judge Robert C. Jones. Crtrm Administrator: Lesa Ettinger / K. Johnson; Pla Counsel: Connie Liem; Def Counsel: Robert Rosenthal and Todd Creer; Court Reporter/FTR #: Recorder: A. Bareng; Time of Hearing: 1:23 − 1:38 PM; Courtroom: 7D; The Court hears arguments of counsel with respect to 113 Objection to Bill of Costs. The Court takes this matter under submission. Written ruling of the Court will issue.

04/27/2010

The Court GRANTS 117 MOTION to Withdraw as Attorney for GNLV, Corp.. Counsel shall submitt proposed order. (no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 05/03/2010)
132 Submission of PROPOSED ORDER filed by Defendant GNLV Corporation Order Granting Kamer Zucker Abbott's Motion to Withdraw as Counsel for GNLV, Corp.. (Creer, Richard) (Entered: 04/27/2010)

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04/30/2010 05/24/2010 06/14/2010 04/19/2011 06/15/2011 04/11/2012
04/11/2012 04/18/2012 04/18/2012 04/19/2012

133 ORDER Granting 132 Proposed Order Submission to withdraw Kamer Zucker Abbott. Signed by Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 05/03/2010)
135 ORDER Granting in Part and Denying in Part 112 Bill of Costs. Costs shall be taxed against Plaintiff for $14,681.25. The clerk of the Court shall tax costs accordingly. Signed by Judge Robert C. Jones on 5/24/10. (Copies have been distributed pursuant to the NEF; CC: Las Vegas Operations Manager − ASB) (Entered: 05/25/2010)
136 COSTS TAXED against Plaintiff in the amount of $14,681.25 re 112 Bill of Costs. (MJZ) (Entered: 06/14/2010)
137 MEMORANDUM/OPINION of USCA, Ninth Circuit, as to 120 Notice of Appeal filed by U.S. Equal Employment Opportunity Commission. District court's judgment is AFFIRMED in part, REVERSED and REMANDED in part. Each party to bear its own costs. (JAG) (Entered: 04/19/2011)
138 MANDATE of USCA, Ninth Circuit, as to 120 Notice of Appeal filed by U.S. Equal Employment Opportunity Commission. (JAG) (Entered: 06/15/2011)
141 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on 4/11/2012, by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that a STATUS CONFERENCE is set for THURSDAY, APRIL 19, 2012 @ 09:00AM in LAS VEGAS COURTROOM TO BE NOTICED AT PUBLIC ELEVATORS, before Chief Judge Robert C. Jones. IT IS SO ORDERED. Signed Chief Judge Robert C. Jones.(no image attached) (Copies have been distributed pursuant to the NEF − CL) (Entered: 04/11/2012)
142 ORDER on Mandate as 138 USCA Mandate and 13 USCA Memorandum/Opinion re 120 Notice of Appeal. AFFIRMING in part, REVERSING in part, REMANDING. Signed by Chief Judge Robert C. Jones on 4/11/12. (ECS) (Entered: 04/11/2012)
143 MOTION to Appear Telephonically by Defendant GNLV Corporation re 141 Minute Order Setting Hearing. (Rosenthal, Robert) Event type corrected on 4/18/2012. (MJZ) (Entered: 04/18/2012)
NOTICE of Docket Correction to 143 Notice (Other). ERROR: Wrong event selected by attorney Robert L. Rosenthal. CORRECTION: Entry corrected by Court to 143 Motion to Appear Telephonically. (no image attached)(MJZ) (Entered: 04/18/2012)
145 MINUTES OF PROCEEDINGS − Status Conference RE: 137 Memorandum/Opinion of USCA, Ninth Circuit held on 4/19/2012 before Chief Judge Robert C. Jones. Crtrm Administrator: Lesa Ettinger; Pla Counsel: Connie Liem; Def Counsel: Tom Davis; Court Reporter/FTR #: Margaret Griener; Time of Hearing: 9:50 − 9:55 a.m.; Courtroom: 6C;

The Court and parties discuss the 137 Memorandum/Opinion of USCA, Ninth Circuit. Counsel shall have a period of 60 days to submit supplemental briefs in blind as specified on the record. (Brief due by 6/18/2012.)

The Court takes the matter under advisement and will withhold ruling to allow the parties to supplement the record as directed.

05/08/2012 06/14/2012

(no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 05/10/2012)
144 MINUTE ORDER IN THE CHAMBERS of the Honorable Chief Judge Robert C. Jones, on May 8, 2012, by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that 143 Motion to Appear Telephonically is DENIED AS MOOT. IT IS SO ORDERED. Signed Chief Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − CL) (Entered: 05/08/2012)
146 STIPULATION FOR EXTENSION OF TIME (First Request) Stipulation and Request for Extension of Submission Deadline by Defendant GNLV Corporation. (Rosenthal, Robert) (Additional attachment(s) added on 6/18/2012: # 1 Corrected Image) (MAJ). (Entered: 06/14/2012)

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03/25/2014 04/28/2014
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147 ERRATA to 146 Stipulation ; Errata to Joint Stipulation for Stay of Proceedings filed by Defendant GNLV Corporation. (Rosenthal, Robert) (Entered: 06/14/2012)
148 NOTICE of Corrected Image/Document re 146 Stipulation by Defendant GNLV Corporation. (Service of corrected image is attached). (Rosenthal, Robert) (Entered: 06/15/2012)
149 NOTICE Regarding Status of Case by Plaintiff U.S. Equal Employment Opportunity Commission re 146 Stipulation,. (Liem, Connie) (Entered: 09/13/2012)
150 NOTICE of Change of Address by Amrita Mallik. (Mallik, Amrita) (Entered: 11/23/2012)
151 MOTION to Substitute Attorney by Defendant GNLV Corporation. Substitute Attorney Thomas F. Kummer, Esq. of Greenberg Traurig, LLP, in the place of Robert L. Rosenthal, Esq. of Howard and Howard. Motion ripe 11/22/2013. (AF) (Entered: 11/22/2013)
152 CERTIFICATE OF SERVICE for 151 MOTION to Substitute Attorney by Defendant GNLV Corporation. (Kummer, Thomas) (Entered: 11/22/2013)
153 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones on 11/26/2013. Status Conference set for 12/11/2013 01:30 PM in LV Courtroom 4B before Chief Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − SLD) (Entered: 11/26/2013)
154 NOTICE of Appearance by attorney Elizabeth A Naccarato on behalf of Plaintiff U.S. Equal Employment Opportunity Commission. (Naccarato, Elizabeth) (Entered: 12/02/2013)
155 ORDER Granting 151 Motion to Substitute Attorney Thomas F. Kummer as counsel of record in place of Attorney Robert L. Rosenthal. Attorneys Richard A. Sheehy and R. Edward Perkins will remain as co−counsel. Signed by Chief Judge Robert C. Jones on 12/4/2013. (Copies have been distributed pursuant to the NEF − SLD) (Entered: 12/04/2013)
156 MINUTES OF PROCEEDINGS − Status Conference RE: 137 USCA Memorandum held on 12/11/2013 before Chief Judge Robert C. Jones. Crtrm Administrator: Lesa Ettinger; Pla Counsel: Elizabeth Naccarato; Def Counsel: Thomas Kummer and Robert Perkins; Court Reporter/FTR #: Margaret Griener; Time of Hearing: 1:36 − 1:39; Courtroom: 4B; The parties rest on the pleadings as filed. The Court takes this matter under submission. Written ruling of the Court will issue. (no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 12/17/2013)
157 NOTICE of Appearance by attorney Sue J. Noh on behalf of Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) Removed duplicate wording. (ASB) (Entered: 03/25/2014)
158 MOTION Special Show Cause Motion to Admit Government Attorney to Practice in the District of Nevada for Duration of Attorney's Government Employment by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 5/15/2014. (Attachments: # 1 Declaration Toby W. Costas, # 2 Declaration Devika Seth)(Welsh, Blaine) (Entered: 04/28/2014)
159 ORDER Granting 158 Special Show Cause Motion to Admit Government Attorneys Toby W. Costas and Devika Seth to Practice in the District of Nevada for the Duration of Attorney's Government Employment. Signed by Judge Robert C. Jones on 10/28/2014. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 10/29/2014)
160 ORDER that 63 MOTION for Summary Judgment as to Robert Royal is GRANTED. IT IS FURTHER ORDERED that 64 MOTION for Summary Judgment as to Susie Fein is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that 65 MOTION for Summary Judgment as to Ervin Nixon Jr. is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that 66 MOTION for Summary Judgment as to Eddie Mae Hunter is GRANTED. IT IS FURTHER ORDERED that

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 23 of 24

01/13/2015 01/14/2015 01/27/2015 06/01/2015 06/11/2015 06/25/2015 06/30/2015 07/06/2015
08/05/2015 08/06/2015 08/07/2015 08/19/2015
09/18/2015

68 MOTION for Summary Judgment as to Dorothy Blake is GRANTED. IT IS FURTHER ORDERED that 70 MOTION for Summary Judgment as to Tequella Candice Smith is GRANTED in part and DENIED in part. Signed by Judge Robert C. Jones on 12/18/14. (Copies have been distributed pursuant to the NEF − TR) (Entered: 12/24/2014)
161 NOTICE of Appearance by attorney Eric W. Swanis on behalf of Defendant GNLV Corporation. (Swanis, Eric) (Entered: 01/13/2015)
163 FOURTH STIPULATION FOR EXTENSION OF TIME re 10 SCHEDULING ORDER; filed by Defendant GNLV Corporation. (Swanis, Eric) (Entered: 01/14/2015)
165 ORDER ON STIPULATION Granting 163 FOURTH STIPULATION FOR EXTENSION OF TIME re 10 SCHEDULING ORDER. Signed by Judge Robert C. Jones on 1/27/15. (Copies have been distributed pursuant to the NEF − TR) (Entered: 01/27/2015)
166 ORDER that 67 Motion for Summary Judgment on GNLV's affirmative defenses is GRANTED in part and DENIED in part. Signed by Judge Robert C. Jones on 6/1/15. (Copies have been distributed pursuant to the NEF − TR) (Entered: 06/02/2015)
167 MOTION to Amend/Correct 166 Order. filed by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 6/28/2015. (Attachments: # 1 Proposed Order)(Seth, Devika) (Entered: 06/11/2015)
168 RESPONSE to 167 Motion to Amend/Correct, filed by Defendant GNLV Corporation. Replies due by 7/5/2015. (Attachments: # 1 Exhibit Exhibit 1, # 2 Proposed Order ORder)(Swanis, Eric) (Entered: 06/25/2015)
169 REPLY to Response to 167 Motion to Amend/Correct filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Seth, Devika) (Entered: 06/30/2015)
170 ORDER granting in part and denying in part 167 Motion to Amend. The Motion is DENIED as to GNLVs third, ninth, and tenth affirmative defenses. The Motion is GRANTED as to GNLVs fourteenth and sixteenth affirmative defenses. Summary judgement is granted in the EEOCs favor on those defenses. Signed by Judge Robert C. Jones on 7/6/15. (Copies have been distributed pursuant to the NEF − TR) (Entered: 07/06/2015)
171 STIPULATION FOR EXTENSION OF TIME (First Request) of the Proposed Joint Pretrial Order by Plaintiff U.S. Equal Employment Opportunity Commission. (Seth, Devika) (Entered: 08/05/2015)
172 ORDER Granting 171 Stipulation. Proposed Joint Pretrial Order due by 8/7/2015. Signed by Judge Robert C. Jones on 8/6/15. (Copies have been distributed pursuant to the NEF − TR) (Entered: 08/06/2015)
173 PROPOSED Pretrial Order Jointly Filed by GNLV and by Plaintiff U.S. Equal Employment Opportunity Commission. (Seth, Devika) (Entered: 08/07/2015)
174 JOINT PRETRIAL ORDER: Jury Trial set for 4/4/2016 09:00 AM in Courtroom to be determined before Judge Robert C. Jones. Calendar Call set for 3/28/2016 10:00 AM in Courtroom to be determined before Judge Robert C. Jones. Trial Briefs due by 3/25/2016. Proposed Voir Dire due by 3/25/2016. Signed by Judge Robert C. Jones on 8/19/15. (Copies have been distributed pursuant to the NEF − TR) (Entered: 08/19/2015)
175 MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 9/18/2015. By Deputy Clerk: Lesa Ettinger.

This case is currently scheduled for jury trial on the stacked calendar of Monday, 4/4/2016. Calendar call is scheduled for Monday, 3/28/2016. IT IS ORDERED this case is referred to The Honorable Peggy A. Leen, U.S. Magistrate Judge, for the purpose of conducting a settlement conference.

(no image attached) (Copies have been distributed pursuant to the NEF − LE) (Entered: 09/18/2015)

Case: 2:06-cv-1225 As of: 06/09/2017 12:57 PM PDT 24 of 24

09/21/2015 02/17/2016
02/24/2016 03/01/2016

176 ORDER Scheduling Settlement Conference: Settlement Conference set for 2/17/2016 at 09:30 AM in LV Chambers before Magistrate Judge Peggy A. Leen. Signed by Magistrate Judge Peggy A. Leen on 9/21/2015. (Copies have been distributed pursuant to the NEF − DC) (Entered: 09/21/2015)
177 MINUTES OF PROCEEDINGS − Settlement Conference held on 2/17/2016 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Teresa Hoskin; Pla Counsel: Devika Seth, Robert Canino, Elizabeth Naccarato, Toby Costas; Def Counsel: Robert Perkins, Eric Swanis; Court Reporter/FTR #: None; Time of Hearing: 9:42 am −3:30 pm; Courtroom: 3B; a settlement was reached. ORDERED that a Telephonic Status Check is set for 3/4/2016 02:00 PM before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 02/22/2016)
178 NOTICE re: Settlement; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order)(Seth, Devika) (Entered: 02/24/2016)
179 Final Order Granting 178 Notice of Settlement. Signed by Judge Robert C. Jones on 3/1/16. (Copies have been distributed pursuant to the NEF − TR) (Entered: 03/01/2016)