United States District Court, D. Nevada
DEBRA L. ROBELLO, Plaintiff,
v.
MANDALAY CORP. dba MANDALAY BAY RESORT & CASINO, a Nevada Corporation; JESSE ESTRADA, an individual; BARTENDERS UNION LOCAL 165, Defendant.
ORDER GRANTING INPART AND DENYING IN PART
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 39,
41, 42, 44)
ANDREW
P. GORDON, UNITED STATES DISTRICT JUDGE
Plaintiff
Debra Robello is a bartender at the Mandalay Bay Resort &
Casino. She alleges that one evening while pouring drinks at
a banquet, her coworker Jesse Estrada groped her breasts. She
sues Mandalay Bay under Title VII for creating a hostile work
environment, the Bartenders Union Local 165 (the
“Union”) for helping Estrada keep his job, and
Estrada for groping her (including claims for assault,
battery, and intentional infliction of emotional distress).
Each of the defendants moves for summary judgment.
Mandalay
Bay is entitled to summary judgment because it took
reasonable steps to protect Robello from harassment, and that
is all that Title VII requires. “When an employee
accuses a fellow employee of sexual harassment, the employer
must reconcile competing rights: the accuser's right to a
harassment-free workplace and the accused's right not to
be disciplined without fair procedures and sufficient proof
of wrongdoing.”[1] Mandalay Bay investigated Robello's
allegations and ensured she was no longer harassed.
Similarly, the Union acted in good faith in handling the
situation, so the claim against it must fail too.
But
there are triable issues as to two of Robello's claims
against Estrada. Although there is no evidence to support an
assault here (Robello admits she never apprehended that she
was about to be touched by Estrada), there is evidence from
which a reasonable jury could find Estrada liable for battery
and intentional infliction of emotional distress (IIED). If a
jury believes Robello's version of the events, Estrada
groped her breasts, laughed about it, and then lied about the
incident to Robello's coworkers. He then continued to
work in the same building as Robello for years. This is
enough to support claims for battery and IIED.
I.
BACKGROUND
A.
Robello's allegations about her harassment
Robello
began working at Mandalay Bay in 1999.[2] For the next
thirteen years, she regularly worked with Estrada, who is
also a bartender.[3] The two never had any sort of incident
before the alleged assault. Indeed, Robello testified that
Estrada was a “cordial” and “polite”
coworker.[4]
Robello
alleges that Estrada sexually assaulted her in September of
2013.[5] She was preparing for a banquet and
realized that she had too many bottles of wine at her
bar.[6]
So she took six of the bottles into her arms and headed to a
storage room.[7] On the way, Estrada walked over to her,
ostensibly to help with her load.[8] He said “let me help
you with that.”[9] But instead of grabbing the wine, Robello
says that Estrada groped her breast.[10] When she shoved him away,
Estrada started laughing.[11] Estrada denies any of this
happened; he does not even recall talking to Robello that
evening.
A
security camera captured Estrada's interaction with
Robello. It shows Robello carrying an armload of bottles, and
Estrada approaching her and reaching towards her as if to
help.[12] The poor video quality makes it
difficult to see whether Estrada merely grabbed the wine or
reached farther and groped Robello.[13] Either way, the
interaction lasted a brief moment, and Estrada came away from
the interchange holding several bottles of
wine.[14] The pair then walked, side by side,
towards a doorway.[15] There were no witnesses.
B.
Mandalay Bay and the Union's response, and
Robello's treatment since
Robello reported the alleged incident to her supervisor, and
Mandalay Bay immediately suspended Estrada while it
investigated. Mandalay Bay fired Estrada, but the Union
challenged this decision.[16] After more investigation and a
hearing, Mandalay Bay decided that the evidence was
inconclusive and gave Estrada his job back.[17]
In the
two and a half years since, Estrada and Robello have
continued to work for Mandalay Bay, but no longer together.
Mandalay Bay has never assigned Estrada to work in the same
bar as Robello, nor even an adjacent bar.[18] Robello
admits that she has never been sexually harassed since the
single alleged wine bottle incident.[19] Indeed, the only
interaction she has had with Estrada since then was when he
held an elevator door open for her.[20]
Robello
alleges that although there was no more sexual harassment,
Mandalay Bay and the Union retaliated against her for
reporting Estrada's alleged assault. She points out that
a month after her report, she received a write-up for arguing
with a co-worker[21] (although, notably, this co-worker was
also written up for the incident).[22] Robello also points to an
incident where a supervisor told her that she could not wear
a shirt with a Raiders logo because it violated a Mandalay
Bay policy.[23] Finally, Robello suggests that she was
being retaliated against when another bartender unilaterally
decided to take her shift one day (although there is no
evidence that this bartender even knew Robello had lodged a
harassment complaint).[24]
II.
ANALYSIS
A.
Summary Judgment Standard
Summary
judgment is appropriate when the pleadings, discovery
responses, and other offered 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.”[25] When
considering summary judgment, I view all facts and draw all
inferences in the light most favorable to the non-moving
party.[26]
If the
moving party demonstrates the absence of any genuine issue of
material fact, the burden shifts to the non-moving party to
“set forth specific facts showing that there is a
genuine issue for trial.”[27] The non-moving party
“must do more than simply show that there is some
metaphysical doubt as to the material
facts.”[28] She “must produce specific
evidence, through affidavits or admissible discovery
material, to show” a sufficient evidentiary basis on
which a reasonable fact finder could find in her
favor.[29]
B.
Robello's claims against Mandalay Bay fail.
Robello
contends that Mandalay Bay is liable under Title VII for
creating a hostile work environment and because it retaliated
against her for reporting Estrada's harassment.
Mandalay
Bay cannot be liable for a hostile work environment because
it took “prompt corrective action that [wa]s reasonably
calculated to end the harassment”-and that is all that
Title VII requires of employers.[30] An “employer
insulate[s] itself from Title VII liability” if it
responds to complaints of sexual harassment
“reasonably.”[31] Although what is reasonable
will vary with the facts of each case, courts look to whether
the employer thoroughly investigated the complaint, the
severity of the allegations, what steps the employer took to
prevent future harassment, and whether any future harassment
actually took place.[32]
Generally,
an employer will not be liable if it investigates a
harassment complaint and determines there is insufficient
evidence to support it. After all, “it makes no sense
to tell employers that they act at their legal peril if they
fail to impose discipline even if they do not find what they
consider to be sufficient evidence of
harassment.”[33] “Employees are no better served by
a wrongful determination that harassment occurred than by a
wrongful determination that no harassment
occurred.”[34]
Employers
will also not be liable if, instead of firing a harasser,
they take other steps reasonably calculated to stop the
harassment. For example, the Ninth Circuit held that an
employer acted reasonably when a plaintiff alleged that her
coworker “squeezed her breasts, ” because it
moved the accused coworker to a different shift and the
harassment ended.[35] Similarly, in another case, an employer
acted reasonably by moving an accused harasser so that he saw
the plaintiff only about once per month and the plaintiff
reported no further harassment.[36]
Mandalay
Bay reasonably determined that Robello's harassment
complaint was not adequately supported. The casino quickly
responded to Robello's report by suspending and then
initially firing him. It conducted a further investigation
and ultimately determined that there was not enough evidence
to support termination. Estrada had no history of harassment;
indeed, Robello admits she worked closely with him for
thirteen years without incident. The only direct evidence
(aside from Robello and Estrada's own testimony) is a
grainy video that is equally consistent with Estrada's
version of events. Because Mandalay Bay reasonably concluded
there was not enough evidence of harassment, this is reason
enough to grant it summary judgment.[37]
But
even if Mandalay Bay should have credited Robello's
allegations, it took reasonable steps to prevent her from
being harassed in the future, which is all that Title VII
requires. The casino ensured that Estrada did not work
closely with Robello in the future-the two were not permitted
to work in the same bar, nor even at two adjacent bars. And
Robello admits the harassment ended. No reasonable jury could
find that Mandalay Bar created a hostile work environment by
unreasonably responding to Robello's complaints.
Nor is
there any evidence to support a retaliation claim against the
casino. Robello must prove: “(1) [her] involvement in a
protected activity, (2) an adverse employment action and (3)
a causal link between the two.”[38] Robello's
claim fails on both the second and third prongs. As a
preliminary matter, Robello offers no real authority or
analysis to oppose the defendants' arguments on this
point-that is reason enough to grant judgment against
Robello.[39] But in any event, the things that
Robello alleges Mandalay Bay did to her-allowing her
co-workers to harass her, giving her a write-up, telling her
she could not wear sports logos while working-are not the
sort of “non-trivial employment” actions that
constitute an adverse action for purposes of Title
VII.[40] Moreover, there is no evidence
establishing a causal link between these actions and
Robello's harassment complaint.[41]
Mandalay
Bay is therefore entitled to summary judgment on both the
hostile work environment and retaliation claims.
C.
Robello's claims against the Union fail.
Robello
asserts two claims against the Union under Title VII, 42
U.S.C. § 2000e-2: (1) the Union retaliated against her
for reporting Estrada's harassment, and (2) the Union
caused Mandalay Bay to discriminate against her by pursuing
Estrada's grievance in bad faith.[42] These claims
fail for the same reasons they fail against Mandalay Bay:
there is no evidence that the Union took an adverse
employment action against Robello, and there is no ...