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Berry v. Desert Palace, Inc.

United States District Court, D. Nevada

February 21, 2018

WILLIAM J. BERRY, JR.; CYNTHIA FALLS; and SHANE KAUFMAN, Plaintiffs,
v.
DESERT PALACE, INC., d/b/a CAESARS PALACE; DOES I through X, and ROE BUSINESS ENTITIES I through X, inclusive, Defendants.

          KATHLEEN J. ENGLAND, JASON R. MAIER, DANIELLE J. BARRAZA Attorneys for Plaintiffs,

          SCOTT M. MAHONEY, Admitted pro hac vice

          ESTHER G. LANDER Attorneys for Defendant

          STIPULATION AND ORDER TO ALLOW DEFENDANT TO AMEND ANSWER TO ASSERT AFTER-ACQUIRED EVIDENCE AFFIRMATIVE DEFENSE

         Plaintiffs WILLIAM J. BERRY, JR., CYNTHIA FALLS, and SHANE KAUFMANN and Defendant DESERT PALACE, INC., d/b/a CAESARS PALACE (“Caesars”), by and through their respective counsel of record, stipulate and agree to allow Caesars to file a First Amended Answer To Assert After-Acquired Evidence Affirmative Defense.

         Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, a party who is not entitled to amend its pleading as a matter of right “may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice requires.” Here, Caesars timely filed its Answer to plaintiffs' Complaint on April 3, 2017 [ECF No. 11]. On January 30, 2018 through February 1, 2018, Caesars took the deposition of plaintiff William J. Berry, Jr. During Mr. Berry's deposition, Caesars learned new information that formed a factual basis for Caesars to amend its answer to add an affirmative defense based on the after-acquired evidence doctrine.

         Attached hereto as Exhibit 1 is a copy of Caesars' proposed First Amended Answer, which Caesars will file within seven (7) days of the Court's entry of this order.

         IT IS SO STIPULATED.

         EXHIBIT 1

         STIPULATION AND ORDER TO ALLOW DEFENDANT TO AMEND ANSWER

         EXHIBIT 1

         [PROPOSED] FIRST AMENDED ANSWER

         Defendant Desert Palace, Inc. d/b/a Caesars Palace answers Plaintiffs' Complaint as follows. Defendant denies any allegation in the Complaint that is not expressly admitted, qualified, or otherwise answered in the enumerated paragraphs below, each of which responds to the same numbered paragraphs in the Complaint.

         Jurisdiction and Venue

         1. Defendant admits that this is a civil action for damages brought by the Plaintiffs on the bases alleged in paragraph 1. Defendant denies that it engaged in discrimination against Plaintiffs and denies that they are entitled to any relief.

         2. Defendant admits that Plaintiffs are asserting statutory claims based on the statutes set forth in paragraph 2. Defendant denies that it violated any of these statutes, and denies that Plaintiffs are entitled to recover any damages.

         3. Defendant admits that federal question jurisdiction is proper, but denies that Plaintiffs have satisfied all necessary administrative prerequisites prior to filing suit as to each of their claims.

         4. Defendant admits that Desert Palace, Inc. is doing business as Caesars Palace, and that defendant owns and operates a world famous hotel, casino, and gaming operation called Caesars Palace at the address listed. Defendant denies the remaining allegations in paragraph 4.

         5. Defendant admits the allegations in paragraph 5.

         6. Defendant admits the allegations in paragraph 6.

         Parties

         7. Defendant admits that plaintiff William J. Berry, Jr. is an African-American male and was born on the date indicated. Defendant lacks information sufficient to form a belief as to the truth of the remaining allegations in paragraph 7.

         8. Defendant admits that Plaintiff, Cynthia Falls, is a white female and that she was born on the date indicated. Defendant lacks information sufficient to form a belief as to the truth of the remaining allegations in paragraph 8.

         9. Defendant admits that Plaintiff, Shane Kaufmann, is an African-American male and was born on the date indicated. Defendant lacks information sufficient to form a belief as to the truth of the remaining allegations in paragraph 9.

         10. Defendant admits that Desert Palace, Inc. is a Nevada corporation that owns and operates Caesars Palace Las Vegas Hotel and Casino, which is a world famous hotel and casino located at 3570 Las Vegas Boulevard, South, in Las Vegas, Nevada. Defendant also admits that the property is commonly referred to as Caesars Palace. Defendant denies the remaining allegations in paragraph 10.

         11. Defendant admits the allegations in paragraph 11.

         12. Defendant lacks information sufficient to form a belief as to the truth of the allegations in paragraph 12.

         13. Defendant lacks information sufficient to form a belief as to the truth of the allegations in paragraph 13.

         14. Defendant admits that Plaintiffs are asserting all of their claims against all defendants and have alleged fictitious defendants as a place holder, but denies the existence of any other business entities that would be proper defendants in this case.

         15. Defendant denies the allegations in paragraph 15.

         16. Defendant denies the allegations in paragraph 16.

         17. Defendant lacks information sufficient to form a belief as to the truth of the allegations in paragraph 17.

         Exhaustion of Administrative Remedies

         18. Defendant denies the allegations in paragraph 18.

         19. Defendant admits the existence of work sharing agreements between the NERC and the EEOC, and that filing with one constitutes filing with the other for certain purposes. Defendant denies the remaining allegations in paragraph 19.

         20. Defendant admits that Berry signed a formal charge of discrimination dated October 5, 2006 alleging race discrimination by Caesars Palace. Defendant also admits that Desert Palace, Inc. d/b/a Caesars Palace was Berry's employer, and that Caesars Place is located at 3570 Las Vegas Boulevard, South, in Las Vegas, Nevada. Defendant lacks information sufficient to form a belief as to the truth of the remaining allegations in paragraph 20.

         21. Defendant admits that on April 30, 2008 the NERC issued a “Determination” that probable cause existed to support the charge of racial discrimination filed by Berry against his employer, Caesars Place and that the matter was transferred to the EEOC. Defendant also admits that Berry was terminated and that he filed an amended charge of discrimination alleging race discrimination and retaliation, which is dated May 6, 2009. Defendant lacks information sufficient to form a belief as to the truth of when the NERC transferred the matter to the EEOC; whether Berry was terminated in two and one half months from then; whether the EEOC prepared his amended charge; and whether Berry made numerous demands before EEOC did so. Defendant denies the remaining allegations in paragraph 21.

         22. Defendant lacks information sufficient to form a belief as to the truth of the allegations in paragraph 22.

         23. Defendant admits that on May 22, 2015, the EEOC issued a “Determination” finding reasonable cause to believe that discrimination occurred, and that the Determination is attached as Exhibit 1. Defendant denies the remaining allegations in paragraph 23.

         24. Defendant admits that the EEOC's conciliation efforts failed to resolve Berry's claim. Defendant lacks information sufficient to form a belief as to the truth of when Berry received a “Notice of Rights, ” but admits that the letter is dated September 29, 2016. Defendant denies the remaining allegations in paragraph 24.

         25. Defendant admits that Berry was unable to bring his Title VII claim until he received a “Notice of Rights” from the EEOC. Defendant denies the remaining allegations in paragraph 25.

         26. Defendant admits that Falls signed a formal “charge of discrimination” that is dated October 26, 2010. Defendant lacks information sufficient to form a belief as to the truth of the remaining allegations in paragraph 26.

         27. Defendant lacks information sufficient to form a belief as to the truth of the allegations in paragraph 27 28. Defendant admits that on May 22, 2015, the EEOC issued a “Determination” finding reasonable cause to believe that discrimination occurred, and that the Determination is attached as Exhibit 2. Defendant denies the remaining allegations in paragraph 28.

         29. Defendant admits that the “Notice of Rights” letter is dated September 29, 2016. Defendant lacks information sufficient to form a belief as to the truth of the remaining allegations in paragraph 29.

         30. Defendant admits that plaintiff Falls was unable to bring her Title VII claim until she received a “Notice of Rights” from the EEOC. Defendant denies the remaining allegations in paragraph 30.

         31. Defendant admits that Kaufmann signed formal “charges of discrimination” dated October 19, 2010 and January 7, 2014. Defendant lacks information sufficient to form a belief as to the truth of the remaining allegations in paragraph 31.

         32. Defendant admits that on May 22, 2015, the EEOC issued a “Determination” finding reasonable cause to believe that discrimination occurred, and that the Determination is attached as Exhibit ...


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