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Stewart v. SBE Entertainment Group, LLC

United States District Court, D. Nevada

March 7, 2017

Kelly Stewart, et al., Plaintiffs
v.
SBE Entertainment Group, LLC, d/b/a/ Hyde LV LLC, et al., Defendants

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, ENTERING JUDGMENT FOR DEFENDANTS AND AGAINST PLAINTIFFS, AND CLOSING CASE [ECF NO. 39]

          Jennifer A. Dorsey United States District Judge.

         Former cocktail servers Kelly Stewart and Danielle Harrington challenge their 2015 termination from Hyde Bellagio, alleging that Hyde's zero-tolerance alcohol policy was enforced selectively against them. Defendants move for summary judgment, arguing that plaintiffs' claims either lack evidentiary support or fail as a matter of law. I agree, so I grant defendants' motion for summary judgment, enter judgment for defendants and against plaintiffs, and close this case.[1]

         Background

         Defendants SBE Restaurant Group, LLC and Spoonful Management LV, LLC operate Hyde Bellagio, a nightclub located inside the Bellagio Hotel and Casino in Las Vegas.[2] Kelly Stewart worked as a cocktail server at Hyde from its opening in December 2011 until January 2015, [3] and Harrington worked there from December 2012 until May 2015.[4]

         A. Hyde's alcohol policy

         When Hyde opened in 2011, its alcohol policy prohibited employees from drinking alcohol while on duty unless given permission from a manager and from being intoxicated or under the influence of drugs.[5] In November 2012, Hyde implemented its current zero-tolerance policy, which prohibits all drinking or being under the influence of drugs or alcohol while on duty, and requires employees who are suspected of being under the influence of drugs or alcohol to submit to an off-site drug or breath-alcohol test. An employee who violates the policy (by testing positive for drugs or having a blood-alcohol level of .02 or higher) is subject to “disciplinary action up to and including termination, ” and refusal to submit to testing results in “immediate termination.”[6] The policy does not require a representative from the Culinary Union or Bartenders Union to be present for testing, [7]and union representative DiCillo confirmed in his declaration that the Union does not send a representative with an employee for testing.[8] Plaintiffs both signed a written acknowledgment of Hyde's zero-tolerance policy.[9]

         B. Hyde's collective-bargaining agreement

         Hyde operates under a collective-bargaining agreement (CBA) between Bellagio and the Local Joint Executive Board of Las Vegas on behalf of the Culinary Workers Union Local 226 and Bartenders Union Local 165 (“Union”).[10] The CBA also includes a zero-tolerance drug-and-alcohol policy that requires an employee who is suspected of being under the influence to submit to off-site testing “or suffer the penalty of discharge.”[11] The CBA does not require that a union representative be present for testing.[12] The CBA states that employees may be discharged only for “just cause” and provides a grievance and arbitration procedure through which employees may challenge their discharge with Union representation.[13]

         C. Plaintiffs are fired from Hyde.

         1. Stewart was fired after she drank alcohol during her shift and refused testing; the Union declined to pursue her grievance.

         On January 20, 2015, management observed Stewart take a shot at one of the tables she was servicing and ordered her to the back office where she admitted that she had consumed a shot and a half glass of champagne with customers.[14] Management then asked Stewart to submit to an alcohol and drug test; she stated that she would not do so without a union representative present, and she was sent home.[15] She was terminated three days later.[16]

         Three days after that, the Union notified Hyde management that Stewart was grieving her termination and requested a “meeting of a Board of Adjustment”[17] (BOA)-a meeting at which the employee, the Union, and employer meet for the purpose of resolving the grievances before arbitration and the parties make full disclosures of all the facts and evidence then known to them about the charge.[18] Two weeks after the meeting was held, [19] the Union withdrew Stewart's grievance because it “did not have sufficient merit to proceed to arbitration” and closed the case.[20]

         2. Harrington was fired after she appeared intoxicated at work and refused testing; the Union declined to pursue her grievance.

         During her shift on May 1, 2015, Harrington was questioned by two managers about her alcohol consumption after three other servers noticed that she appeared to be intoxicated.[21] The managers noted that Harrington was having difficulty walking straight and that her eyes appeared dilated and bloodshot, and she admitted that she had taken “a couple of shots” before work.[22]Management told Harrington that she needed to submit to testing, and she twice refused.[23] Like Stewart, Harrington was sent home for the evening and terminated shortly thereafter.[24]

         The Union informed Hyde that Harrington was grieving her termination and requested a meeting of a Board of Adjustment.[25] The Union determined that Harrington's grievance did not have sufficient merit to proceed to arbitration, so it withdrew the grievance and closed the case.[26]

         D. The lawsuit

         Plaintiffs filed suit on August 14, 2015, alleging that they were discriminated against based on sex and subjected to a hostile work environment because they were treated less favorably than other female cocktail servers who were exempted from the drug-and-alcohol-policy and enjoyed special privileges because they engaged in consensual sexual relationships with managers and customers.[27] Plaintiffs allege that when they complained about this unfair treatment, defendants retaliated against them by falsely accusing them of consuming alcohol and then using their refusals to submit to a breath-alcohol test as a pretext to fire them.[28] Stewart claims that defendants defamed her by “giving negative references to her prospective employers, including information about” this lawsuit.[29]

         Plaintiffs assert claims for “unlawful employment practice, ” sex discrimination, and retaliation (under Title VII) and Nevada state-law claims for unlawful termination and defamation (Stewart only). Defendants move for summary judgment, arguing that plaintiffs' claims fail because they were terminated for legitimate, non-discriminatory and non-retaliatory reasons, and that plaintiffs lack evidence to show that they were discriminated against based on sex or subjected to any conduct that could possibly constitute a hostile work environment, or that they engaged in any protected activity on which to base their retaliation claim.[30]

         Discussion

         A. Summary-judgment standards

         Summary judgment is appropriate when the pleadings and admissible evidence “show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”[31] When considering summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party.[32] If reasonable minds could differ on the material facts, summary judgment is inappropriate because its purpose is to avoid unnecessary trials when the facts are undisputed and the case must proceed to the trier of fact.[33]

         If the moving party satisfies FRCP 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to “set forth specific facts showing that there is a genuine issue as to the material facts”; it “must produce specific evidence, through affidavits or admissible discovery material, to show that” there is a sufficient evidentiary basis on which a reasonable fact finder could find in its favor.[34] The court may only consider facts that could be presented in an admissible form at trial in deciding a motion for summary judgment.[35]

         B. Sex discrimination (claims one, two, and four)

         1. Intentional discrimination or disparate treatment

         Courts apply the McDonell Douglas burden-shifting framework to Title VII discrimination claims. Under this framework, plaintiffs have the initial burden to establish a prima facie case of discrimination[36] by showing: (1) they belong to a protected class; (2) they were qualified for the position; (3) they were subject to an adverse employment action; and (4) similarly situated individuals outside their protected class were treated more favorably, or that a discriminatory reason motivated the employer.[37]

         The burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action.[38] If the employer does so, the plaintiffs must show that the articulated reason is pretextual “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.”[39] The plaintiffs' “evidence must be both specific and substantial to overcome the legitimate reasons put forth by” his employer.[40]

         Plaintiffs fail to make a prima facie showing of sex discrimination. Plaintiffs are members of a protected class-women-but they do not contend that they were discriminated against because they are women or that they were treated less favorably than similarly situated individuals outside their protected class. Plaintiffs contend only that they were treated less favorably than similarly situated female cocktail servers, and this does not suffice under traditional Title VII principles. Unfortunately for plaintiffs, servers who were not engaged in relationships with managers are not a protected class.

         Even if plaintiffs could make a prima facie showing of sex discrimination, they fail to offer specific and substantial evidence to rebut defendant's explanation for their termination: they refused to submit to a breath-alcohol test as required by the employee handbook and the CBA-both of which call for immediate termination. Plaintiffs have abandoned their allegations in the complaint that their terminations were pretextual because management falsely accused them of consuming alcohol, and each admitted during her deposition that she did in fact drink alcohol on the clock in violation of the policy on the night in question.[41] Instead, to show pretext, plaintiffs now argue that there was uncertainty about Hyde's drinking policy, and they identify four female servers whom they claim were allowed to drink on the job while others like themselves were not.[42] Even if these contentions were supported by the record, [43] neither gives rise to an inference that plaintiffs were targeted for alcohol testing because they were women or shows that Hyde's explanation is unworthy of credence.

         2. Sexual harassment

         Plaintiffs may also establish a discrimination claim under Title VII and Nevada state law based on sexual harassment.[44] There are two theories under which plaintiffs may prove actionable harassment. Under a quid pro quo theory, plaintiffs must show that a direct supervisor “explicitly or implicitly conditioned a job, benefit, or the absence of a job detriment, upon [their] acceptance of sexual conduct.”[45] Under a hostile-work-environment theory, plaintiffs must show that they were (1) subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of their employment and create an abusive working environment.[46]

         Plaintiffs contend that they were subjected to sexual harassment because they were treated less favorably than servers who dated managers and customers.[47] The majority of courts that have been confronted with this issue have held that isolated incidents of preferential treatment based on consensual romantic relationships do not amount to sex discrimination under Title VII.[48] Though the Ninth Circuit has not yet reached the issue, [49] I find these courts' reasoning persuasive, and I conclude that favoritism based on a consensual romantic relationship between a supervisor and an employee, without more, cannot support a sex-discrimination claim under Title VII.[50] Plaintiffs may prevail on a sexual-harassment claim based on a sexual-favoritism theory only if they can show that the favoritism was so ubiquitous that it amounted to implied quid pro quo harassment or that it was sufficiently severe or pervasive to alter the conditions of plaintiffs' employment.[51]

         a. Quid pro quo theory

         Plaintiffs fail to create a triable issue of quid pro quo harassment. They do not allege that they were subject to any sexual advances by management, and there is no evidence that defendants made any unwelcome sexual advances toward any of the servers or encouraged them to engage in sexual relationships with customers.[52] Nor is there any evidence that plaintiffs' jobs, [53] any job benefit, [54] or the absence of a job detriment were expressly or implicitly conditioned on plaintiffs' acceptance of sexual conduct with a manager or customer. For example, plaintiffs do not allege or offer evidence to show that they were denied shifts for which their seniority qualified them while less senior servers who engaged in sexual relationships with managers were awarded them.[55] I also do not find that the alleged sexual favoritism in this case was widespread[56] enough to support an implied quid pro quo claim, particularly because of the speculative and conclusory nature of plaintiffs' allegations and because they fail to identify a tangible employment benefit that was conferred as a result of the favoritism.

         b. Hostile-work-environment theory

         Plaintiffs argue that management's favoritism toward servers who dated managers and clients resulted in a hostile and abusive work environment because these servers were allowed to ignore and be rude to other servers; not help other servers; dance with, kiss, and sit on customers' laps; and drink at work; and they enjoyed better shifts and parking privileges and were not punished for rule violations.[57] Most of the testimony that plaintiffs cite to support these assertions is both conclusory and speculative. Regardless, even accepted as true and construed in the light most favorable to plaintiffs, these allegations do not establish a sexually hostile work environment.

         Title VII is not a “general civility code.”[58] To establish a violation, the environment must be both objectively and subjectively abusive.[59] Plaintiffs do not allege or offer evidence to show that they were subjected to unwelcome verbal or physical sexual advances by management or their coworkers, or that their co-workers were subjected to unwelcome advances by management and that they knew about it. And the record does not suggest that any sexual favoritism based on the consensual relationships between certain cocktail servers and managers was sufficiently severe or pervasive to alter the conditions of plaintiffs' employment and create a hostile, sexually charged work environment.

         Additionally, there is no indication that plaintiffs themselves even considered their work environment to be abusive until after they were terminated. Hyde had a zero-tolerance policy for harassment, which both plaintiffs signed and acknowledged.[60] But plaintiffs never made any internal complaints about sexual harassment or sex-based discrimination. Because I find that no reasonable jury could conclude that plaintiffs were subject to an objectively and subjectively abusive work environment, plaintiffs' hostile-work-environment theory of harassment fails. Defendants are thus entitled to summary judgment on plaintiffs' discrimination claim under Title VII and Nevada's state-law analog[61] because ...


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