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Nigrelli v. Partners

United States District Court, D. Nevada

March 30, 2017



          Gloria M. Navarro, Chief Judge

         Pending 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).

         Also 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).[1]

         I. BACKGROUND

         This 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. ¶ 24).

         The 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. ¶ 46).

         On 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).

         The 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).

         In his 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 (id. 81:2-8).

         In the 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. ¶ 43).

         On 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 No. 29).


         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.” 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 (1986).

         In 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).

         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. 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 . at 249-50.

         III. ...

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