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Fung v. Nevada Property 1, LLC

United States District Court, D. Nevada

July 11, 2014

HARRY FUNG, Plaintiff,
v.
NEVADA PROPERTY 1, LLC, d/b/a COSMOPOLITAN OF LAS VEGAS, Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ANDREW P. GORDON, District Judge.

I. BACKGROUND

The parties are aware of the factual and procedural background of this case. In brief, Harry Fung was employed at the Cosmopolitan of Las Vegas (the "Cosmopolitan") from December 2010 to January 2012. He was initially hired as a dealer, and shortly thereafter he was promoted to the position of pit supervisor. On December 10, 2010, the Cosmopolitan suffered a theft of $20, 000 in $1, 000 chips from a roulette table in Fung's pit area.[1] At the precise moment of the theft, 10:00 p.m., Fung's back was turned on his pit area and he was speaking with a casino host at the "podium" - a furnishing in the center of a grouping of gaming tables that serves as a storage space, tabletop, and computer terminal. The parties dispute whether Fung's interaction with the host was part of his job duties or idle conversation, but that issue is irrelevant for purposes of this Order.

Fung noticed the missing $20, 000 at about 10:30 p.m., at which time he notified his superiors. Fung did not physically verify the amount of chips on each of his tables when his shift started earlier that evening; he alleges he trusted the prior shift supervisor's assertion that the chip counts were accurate. It is unclear whether his lack of physical verification had any bearing on the theft or whether he would have discovered the theft any sooner had he properly verified the chip counts. After an investigation and review of the surveillance footage, Fung's supervisors learned that a two-man team had distracted the roulette dealer when Fung's back was turned. Fung initially denied that a theft had occurred, and blamed the dealer for any loss that may have occurred. Fung was suspended on December 11, 2010. Fung claims he was the target of discrimination because he is Asian and of Chinese and Korean origin.

On January 18, 2012, John Zaremba, the Cosmopolitan's Vice President of Gaming Operations, terminated Fung's employment. In relevant part, the reasons cited were (i) failure to maintain the integrity of table games; (ii) lack of knowledge of chips on his tables; (iii) failure to remain attentive of his area; (iv) hostility toward instructions from superiors; and (v) the refusal to acknowledge any responsibility for his actions.

In May 2012, Fung filed a charge of discrimination with the Nevada Equal Rights Commission ("NERC").[2] In October 2012, NERC issued a report finding no evidence of discrimination on the basis of race or national origin.[3]

In November 2012, Fung filed suit under Title VII of the Civil Rights Act of 1964, as amended in 1991, 42 U.S.C. § 2000e et seq., and the Nevada state corollary, NRS § 613.330 et seq. The crux of his claims is that the other persons involved in the theft - the roulette dealer, another pit supervisor in an adjacent pit area, and Fung's supervisors, none of whom is Asian - were not disciplined as Fung was, and that there were several prior, similar incidents of theft at the Cosmopolitan for which similarly situated, non-Asian supervisors were neither suspended nor fired. Presently before the Court is the Cosmopolitan's motion for summary judgment.[4]

II. ANALYSIS

A. Legal Standard - Summary Judgment, Fed.R.Civ.P. 56

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[5] Material facts are those that may affect the outcome of the case.[6] A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party.[7] "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor."[8] A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims."[9]

In determining summary judgment, courts apply a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case."[10] In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial.[11] If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists.[13] To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."[14] In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data.[15] Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial.[16]

At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial.[17] The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor."[18] But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted.[19]

B. Legal Standard - Title VII, Disparate Treatment[20]

Title VII prohibits discrimination against an employee or an applicant for employment on the basis of race, color, religion, sex, or national origin.[21] To prevail on a Title VII discrimination claim for disparate treatment, a plaintiff must establish a prima facie case by presenting evidence that "gives rise to an inference of unlawful discrimination."[22] A plaintiff can establish a prima facie case through direct ...


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