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Gooch v. Las Vegas Bistro, LLC

United States District Court, D. Nevada

March 31, 2017

BRITNEY GOOCH, individually; and THOMAS IMPASTATO, individually, Plaintiffs,
v.
LAS VEGAS BISTRO, LLC, dba LARRY FLYNT'S HUSTLER CLUB, a Nevada limited liability company; DOES I-X; and ROE BUSINESS ENTITIES I-X, inclusive, Defendants.

          ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 43)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Plaintiffs Britney Gooch and Thomas Impastato bring federal and state race discrimination and retaliation claims arising from their employment at a strip club and bookstore. Gooch, a black former employee, alleges that she was suspended for discriminatory reasons, she complained, and she was eventually fired for discriminatory and retaliatory reasons. Impastato, a white former manager, alleges he was fired for refusing to follow directions to fire black employees. Defendant Las Vegas Bistro, LLC (Bistro) moves for summary judgment on the grounds that Gooch and Impastato have no direct evidence of discrimination and that any circumstantial evidence of discrimination is rebuffed by Bistro's legitimate, race-neutral reasons for the adverse actions against the plaintiffs.

         Genuine issues of material fact exist that preclude me from granting summary judgment. Gooch and Impastato offer direct evidence that there was discriminatory animus in the organization and that both of them opposed it. Both also raise serious questions as to whether discrimination or retaliation was the cause for adverse employment actions taken against them. I therefore deny Bistro's motion for summary judgment.

         I. BACKGROUND

         A. Impastato's employment at Bistro

         Impastato was hired by Bistro in June 2011 as a “floor manager” and was promoted three months later to “bar manager.” ECF No. 48-7 at 3. Impastato had general managerial authority over Gooch and other employees, including responsibility for disciplinary “write-ups” and suspensions. ECF No. 48 at 5. The parties disagree whether Impastato had full authority to hire and fire employees. See, e.g., ECF Nos. 43 at 8; 48 at 8. Impastato explains that he got along well with his colleagues and received a positive informal performance review from an outside consultant on May 10, 2012. See ECF No. 48 at 9 (Impastato was “doing extremely well and working hard to get [his] ‘ducks in a row'”).

         On March 20, 2012, Bistro hired a white employee named Joseph Gause as a “team leader and manager.” Id. at 3; ECF No. 48 at 4. Gause's position in the hierarchy was below Impastato, but he had supervisory authority over floor staff like Gooch. Id. at 7. According to Impastato, “Gause made it well known that he wanted to hire an all white staff and effectively terminate all the African-American day staff, ” at one point asking, “‘[c]an we douche the day shift?'” ECF No. 48-7 at 3. Two other employees complained about Gause making a racially charged comment to one of them. See ECF Nos. 48-5 at 2; 48-4 at 5 (“Joe, I guess, not knowing that I was half black, . . . asked me, ‘Let me know if you think this girl is too ghetto to work here.' And I said, “What do you mean by ‘ghetto'?” And it's something about her hair weave, or the way she spoke, or her-he also mentioned something about her butt being really big.”). One of those employees complained that Gause generally treated white staff better. ECF No. 48-4 at 2.

         B. Discriminatory environment at Bistro leads to confrontation, Impastato's firing.

         Impastato alleges that at a managers' meeting on June 5, 2012, manager Lilian Pineda, Gause, and general manager Kelly Jones (Impastato's superior) “instructed [Impastato] to terminate the African-American day staff because, according to Gause, they ‘did not want customers to come in and see a Black Cashier, a Black cocktail waitress, and a Black bartender.'” ECF No. 48-7 at 4. Impastato refused to fire any employees based on their race. Id. Pineda approached him after the meeting and instructed him to “take away the day staff's . . . hours so that the . . . employees would leave on their own.” Id. The day staff was all black at that time. Id. Impastato states that during a meeting on June 12, 2012, Pineda again asked why Impastato had not yet fired the black staff, and Impastato responded with his belief that it was illegal to fire staff solely based on their race. Id. Pineda again approached him after the meeting and “angrily directed [him] to terminate the African-American day staff or take the day staff off the schedule so that they would be economically forced to leave.” Id. at 5.

         The following day, Impastato was fired. Id. When he asked why, general manager Jones replied, “Next time you are told to do something, do it.” Id. Impastato contested his firing with a formal charge of retaliation with the EEOC on August 6, 2012, and was issued a right to sue letter on October 7, 2014. Id.

         C. Bistro conducts an internal investigation.

         On June 22, 2012, Bistro's attorney, Brad Shafer, investigated allegations of racial discrimination that had been made by multiple employees, which focused at least partially on Gause. ECF No. 48 at 5. Shafer, in a letter to the EEOC, claimed to have resolved any potential issues with discrimination by reminding Gause of the company's discrimination policy, although he was not certain whether Gause actually made the statements that employees attributed to him. See ECF No. 48-3 at 4-6.

         D. Gooch's employment at Bistro

         Gooch was hired by Bistro in October 2011 as a cashier and an attendant of Bistro's cash cage. ECF No. 48-10 at 3. Gooch's time sheets show she worked a relatively consistent eight-hour work day, between three to five days per week. See ECF No. 43-2 at 26-30. As an hourly employee she could not work unless management put her on the schedule. See, e.g., ECF No. 48-10 at 6. Gooch worked relatively uneventfully from her October 2011 start date through May 2012, receiving one minor disciplinary write-up in that period. ECF No. 43-2 at 18.

         Gooch alleges that, from the beginning of her employment, she and other black employees were subject to stricter discipline, fewer breaks, and racially discriminatory remarks. Id. She contends that she was required to arrive well before her shift started at 4:00 p.m., but was threatened with discipline if she clocked in before then, whereas white employees were not. Id. at 4. She states that she and other black staff were assigned to the day shift, where employees received fewer tips. She also claims black staff were denied lunch breaks but other employees were treated more leniently. Id. at 4-5. She adds that on at least one occasion, she was denied a gratuity to which she was entitled in favor of a white employee. Id. at 3-4.

         E. Gooch's initial suspension and complaint to management

         On May 16, 2012, Gooch received a phone call from her sister, who was visiting from out of town, reporting that an unfamiliar, naked man was attempting to break into Gooch's residence while the sister was inside. ECF No. 48-10 at 5. Gooch immediately called the police. Id. Impastato, who was supervising her that day, instructed her to get off the phone. Id.[1] Gooch refused and stayed on the phone until she felt the situation was stabilized. Id. Impastato responded by giving her a write-up. ECF No. 43-2 at 15. Gooch was also told that she was suspended for two days. ECF No. 48-10 at 6.[2] When Gooch called two days later to inquire about her post-suspension schedule, she was told by assistant office manager Danielle Britt ...


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