United States District Court, D. Nevada
BRITNEY GOOCH, individually; and THOMAS IMPASTATO, individually, Plaintiffs,
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)
P. GORDON, UNITED STATES DISTRICT JUDGE
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.
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.
Impastato's employment at Bistro
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
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.
Discriminatory environment at Bistro leads to confrontation,
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.
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.
Bistro conducts an internal investigation.
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.
Gooch's employment at Bistro
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.
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.
Gooch's initial suspension and complaint to
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. 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. When Gooch called two days later to
inquire about her post-suspension schedule, she was told by
assistant office manager Danielle Britt ...