United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court are two Motions for Summary Judgment, one
filed by Defendant Culinary Workers Union, Local 226 (the
“Union”) (ECF No. 22), and the other filed by
Defendant Victoria Partners d/b/a Monte Carlo Resort and
Casino (“Monte Carlo”) (ECF No. 29). Plaintiff
Lisa Nigrelli (“Plaintiff”) filed Responses to
both motions. (ECF Nos. 32, 34). Both the Union and Monte
Carlo (collectively, “Defendants”) filed Replies.
(ECF Nos. 40, 50).
pending before the Court are two Motions to Strike (ECF Nos.
41, 42) filed by the Union, to which Plaintiff filed
Responses (ECF Nos. 55, 56), and the Union filed Replies (ECF
Nos. 57, 58).
case arises out of a schedule change made for Plaintiff, who
has been employed as a cocktail server at Monte Carlo Resort
and Casino since 1996. (Am. Compl. ¶ 10, ECF No. 4). The
Union represents Plaintiff and the other cocktail servers at
Monte Carlo, and the Union's Collective Bargaining
Agreement (“CBA”) with Monte Carlo governs
Plaintiff's employment. (Pl. Dep. 25:24-26:5, Ex. 2 to
Union MSJ, ECF No. 23-2); (Dyer Aff. ¶ 5, ECF No. 24).
Approximately fifty cocktail servers work in Plaintiff's
department, which is the black jack gaming area. (Am. Compl.
¶¶ 12-13). According to Plaintiff, “Based on
seniority Plaintiff was designated as cocktail server number
#16. Due to resignations Plaintiff is now #4.”
(Id. ¶ 14). Plaintiff's original schedule,
set by seniority, was “Friday, 7:00 p.m. to 3:00 a.m.;
Saturday, 5:00 p.m. to 1:00 a.m.; Sunday, 5:00 p.m. to 1:00
a.m.; Monday and Tuesday, 5:00p.m. to 1:00 a.m.; and off on
Wednesday and Thursday.” (Id. ¶ 15); (Pl.
Dep. 62:7-63:21). In January 2015, Beverage Manager Phillip
Dow (“Dow”) proposed a new schedule, which
included a change in Plaintiff's schedule on Monday and
Tuesday to 7:00 p.m. to 3:00 a.m. (Am. Compl. ¶ 16-17);
(Pl. Dep. 61:11-62:6). Over the next few months, there were
several meetings regarding the schedule changes. Department
Head Johanna Dalton (“Dalton”) was a Union
representative present at most of these meetings. (Am. Compl.
final meeting regarding the schedule took place on April 8,
2015. (Id. ¶ 37). Other Union representatives
were present, but not Dalton. Plaintiff was present, along
with Director of Beverage Nick Kabetso
(“Kabetso”) and Human Resources Representative
Casey Dake (“Dake”) on behalf of Monte Carlo.
(Id. ¶¶ 38-40). At this meeting,
Plaintiff's hours were permanently changed to include
Monday and Tuesday to 7:00 p.m. to 3:00 a.m., effective April
13, 2015, allegedly against her repeated requests and with no
opposition by the Union representatives. (Id.
¶¶ 41-46); (see also Pl. Am. Decl. ¶
April 15, 2015, Plaintiff filed a grievance with the Union
regarding her hours and “the failure to abide by the
seniority protocols as called for under Article 20 of the
collective bargaining agreement.” (Id. ¶
58); (Initial Grievance, Ex. 2 to Pl. Resp. to Union MSJ, ECF
No. 32-2). Grievance Specialist Ester Dyer
(“Dyer”) was assigned to Plaintiff's
grievance. (See Dyer Aff. ¶ 14). On April 30,
2015, Plaintiff participated in an Internal Resolution
Process with Kabetso and Shop Steward Pam Parra
(“Parra”), pursuant to the CBA, which did not
yield a resolution. (Am. Compl. ¶¶ 61-62); (Pl.
Dep. 192:13-196:21). Although Dyer originally indicated that
“she thought she could resolve” Plaintiff's
issue, Plaintiff was shortly thereafter informed that the
grievance was not resolved and it would have to go to the
Board of Adjustment. (Am. Compl. ¶¶ 63-64); (Dyer
Aff. ¶ 15).
Board of Adjustment meeting occurred on May 21, 2015, and
included Plaintiff, Dyer, Kabetso, and Dake. (Am. Compl.
¶¶ 65-66); (Dyer Aff. ¶ 16). According to
Plaintiff, Kabetso “admitted that he covered all names
up and did not do the schedule according to seniority.”
(Pl. Am. Decl. ¶ 36). Upon inquiry by Dyer, Kabetso
indicated that it was possible he could change
Plaintiff's schedule back to her original hours.
(Id. ¶¶ 37-38); (Dyer Aff. ¶ 17). The
meeting concluded with Dyer and Kabetso saying that they
would get back to Plaintiff. (Pl. Am. Compl. ¶ 38).
deposition, Kabetso explained that throughout the original
discussions regarding the schedule changes, he considered
Plaintiff's hour request; however, he stated, “[W]e
weren't going to make that change because . . . we wanted
to keep it consistent. Pit 3 [Plaintiff's Monday-Tuesday
location] always starts at 7:00 p.m., so we were going to
keep her two Pit 3 days to match Pit 3 the other five days of
the week at 7:00 p.m.” (Kabetso Dep. 53:2-14). He
further explained that as an “olive branch” to
the Union, he “consider[ed] seniority” in the
changes “when possible.” (Id. 81:2-3).
Additionally, he clarified that the “relief shift
follows the main five-day-a-week schedule.”
(Id. 73:2). He indicated that seniority did not
affect that consistency practice (id. 73:3-4);
nevertheless, he had “looked at seniority [when they]
chang[ed] the five-day-a-week person” in Pits 1 and 3
two months following the Board of Adjustment meeting,
Plaintiff repeatedly contacted Dyer to follow up. (Pl. Am.
Decl. ¶¶ 39-42). On July 13, 2015, Dyer called
Plaintiff back to inform her that “she was still
waiting to hear from the hotel.” (Id. ¶
September 24, 2015, Plaintiff filed her case in this Court
(see Compl., ECF No. 1), and amended it as a matter
of right on October 5, 2015 (see Am. Compl.).
Plaintiff's Amended Complaint asserts the following three
causes of action: (1) breach of contract against all parties;
(2) breach of duty of fair representation against the Union;
and (3) declaratory relief against all parties for
reinstatement of her prior schedule. (Am. Compl. ¶¶
88-103). On October 30, 2015, the Union filed its Answer
(Union Answer to Compl., ECF No. 11), and on November 6,
2015, Monte Carlo filed its Answer (Monte Carlo Answer to
Compl., ECF No. 14). Then, on June 10, 2016, the Union filed
its Motion for Summary Judgment (ECF No. 22), and on June 20,
2016, Monte Carlo filed its Motion for Summary Judgment (ECF
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.” Fed.R.Civ.P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). 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. See Id .
“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.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A
principal purpose of summary judgment is “to isolate
and dispose of factually unsupported claims.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
determining summary judgment, a court applies 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.” C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)
(citations omitted). Then, “the moving party has the
initial burden of establishing the absence of a genuine issue
of fact on each issue material to its case.”
Id. 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. See Celotex
Corp., 477 U.S. at 323- 24. If the moving party fails to
meet its initial burden, summary judgment must be denied and
the court need not consider the nonmoving party's
evidence. See Adickes v. S.H. Kress & Co., 398
U.S. 144, 159-60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). 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.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
1987). In other words, the nonmoving party cannot avoid
summary judgment by relying solely on conclusory allegations
that are unsupported by factual data. See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). 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.
See Celotex Corp., 477 U.S. at 324. 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. See Anderson, 477 U.S. at
249. The evidence of the nonmovant is “to be believed,
and all justifiable inferences are to be drawn in his
favor.” Id. at 255. But if the evidence of the
nonmoving party is merely colorable or is not significantly
probative, summary judgment may be granted. See Id .