United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge.
before the Court is the Motion for Summary Judgment, (ECF No.
143), filed by Defendant Bank of America, N.A.
(“Defendant”). Plaintiff Alexis Gurshin
(“Plaintiff”) filed a Response, (ECF No. 178),
and Defendant filed a Reply, (ECF No. 194). Also before the
Court is Plaintiff's Motion for Summary Judgment, (ECF
No. 158). Defendant filed a Response, (ECF No. 164),
and Plaintiff filed a Reply, (ECF No. 186). For the reasons
set forth herein, the Court GRANTS
Defendant's Motion and DENIES
case centers upon hostile work environment and retaliation
claims by Plaintiff against her former employer.
(See Compl, Ex. 1 to Pet. Removal, ECF No. 1-1).
Plaintiff started working for Defendant as a bank teller in
2006. (Id. ¶¶ 15, 20). In October 2009,
Plaintiff transferred to Defendant's Plaza Banking Center
in downtown Las Vegas, NV. (Id. ¶ 16). In
February 2010, Plaintiff began reporting to Mr. Jarrett Wu
(“Mr. Wu”), who was the Banking Center Manager.
(Id.). In November 2010, Mr. Wu promoted Plaintiff
to the position of Sales & Service Specialist.
(Id. ¶ 20).
thereafter, Plaintiff claims that Mr. Wu started engaging in
inappropriate conduct towards Plaintiff. (Id. ¶
19). Specifically, Plaintiff asserts that Mr. Wu rubbed her
shoulders “[m]aybe 10, 15 times” over a six-month
period, commented approximately 20 times about going to
topless bars, and on one occasion, made a comment that she
should work in the lobby area to “get more guys to open
up credit cards.” (See Gurshin Depo.
127:8-143:6, Ex. B to Def.'s MSJ, ECF No. 143-3).
Plaintiff claims the shoulder rubbing would last
“[a]nywhere from 30 seconds to maybe a minute, ”
and was often accompanied by Mr. Wu telling Plaintiff that
she was doing a good job with respect to her work. (See
Id. 138:2-7; 145:10-3). Additionally, Plaintiff asserts
that Mr. Wu's comments regarding topless bars typically
happened on Mondays, as Mr. Wu would describe to Plaintiff
what he had done over the weekend. (See Id.
131:22-132:3; 132:25-133:7). During these conversations,
Plaintiff states that Mr. Wu would talk about how the bars
were “strange” or “cool” or mention
that he saw “boobs.” (See id.).
Plaintiff admits that she never told Mr. Wu to stop, but
states that she feared him “retaliating” or
“being angry” because he was her manager.
(See Id. 136:1-2). Further, Plaintiff concedes that
she did not tell anyone about Mr. Wu's conduct at the
time it was happening. (See Id. 144:8-19).
February 1, 2012, Mr. Wu issued Plaintiff a written warning
for being tardy multiple times in the preceding two months.
(Warning, Ex. C to Def.'s MSJ, ECF No. 143-4). The
warning was issued pursuant to the Bank's attendance
policy, which required a warning if an employee was tardy
more than five times in a 12-month period. (Duffield Decl.
¶ 7, Ex. F to Def.'s MSJ, ECF No. 143-7). Plaintiff
does not dispute her tardiness. (See Gurshin Depo.
559:16-560:8, Ex. B to Def.'s MSJ).
February 6, 2012, Plaintiff took a leave of absence after
being hospitalized for an attempted suicide. (See
Id. 54:16-21) (Absence Letter, Ex. N to Def.'s MSJ,
ECF No. 143-15). Plaintiff returned to work on February 21,
2012. (See Compl ¶ 29, Ex. 1 to Pet. Removal).
Upon her return, Plaintiff spoke with the assistant manager,
Devan Thorns (“Thorns”), and mentioned to Thorns
that Mr. Wu had been “inappropriate” in the past
but did not go into any greater detail. (See Gurshin
Depo. 187:22-189:2, Ex. B to Def.'s MSJ). That same day,
Plaintiff left work and commenced a second leave of absence.
(Leave Notice, Ex. O to Def.'s MSJ, ECF No. 143-16).
April 11, 2012, while on leave, Plaintiff called
Defendant's “Advice and Counsel Department, ”
which was Defendant's human resource hotline for
reporting harassment. (See Gurshin Depo.
161:18-163:7, Ex. B to Def.'s MSJ); (Harassment Policy,
Ex. K to Def.'s MSJ, ECF No. 143-12). On the call,
Plaintiff reported Mr. Wu's various instances of alleged
harassment. (Id. 362:23-372:17). Two days later,
Sheri Madrid (“Madrid”)-the investigator assigned
to Plaintiff's case-initiated contact with Plaintiff.
(Madrid Decl. ¶ 6, Ex. S to Def.'s MSJ, ECF No.
143-20). Shortly thereafter, Madrid conducted interviews of
Plaintiff, Mr. Wu, and a number of other employees.
(Id. ¶ 9). Ultimately, based on Madrid's
investigation results, supervisor Greg Duffield
(“Duffield”) states that he issued a
“strong verbal warning” to Mr. Wu and warned him
that further inappropriate conduct could result in
termination. (Duffield Decl. ¶ 9, Ex. F to Def.'s
MSJ). Further, Duffield states that he required Mr. Wu to
complete a web-based workplace behavior training course.
3, 2012, Madrid advised Plaintiff that Defendant had taken
corrective action against Mr. Wu, and that she would not be
subjected to retaliation or other inappropriate conduct upon
returning to work. (See Gurshin Depo. 290:8-18, Ex.
B to Def.'s MSJ); (Madrid Decl. ¶ 12, Ex. S to
Def.'s MSJ). On July 11, 2012, Defendant terminated Mr.
Wu's employment for performance reasons. (Duffield Decl.
¶ 11, Ex. F to Def.'s MSJ). On July 26, 2012, having
not heard from Plaintiff since the expiration of her leave of
absence a few days prior, Duffield sent Plaintiff a letter
stating that failure to return to work by August 5, 2012, or
else provide a reason for continued absence, would constitute
her resignation. (Duffield Decl. ¶ 12, Ex. F to
Def.'s MSJ). Thereafter, Plaintiff extended her leave
several additional times. (Letters, Ex. Q to Def.'s MSJ,
ECF No. 143-18). On October 5, 2012, Plaintiff sent a
resignation email to Duffield, stating “[t]here has
been little progress for me to feel safe to return to
work” and that she found different employment.
(Resignation, Ex. I to Def.'s MSJ, ECF No. 143-10).
October 28, 2014, Plaintiff filed a complaint in state court,
alleging claims for hostile work environment and retaliation
against Defendant. (See Compl, Ex. 1 to Pet.
Removal). On February 24, 2015, Defendant removed the action
to this Court. (Pet. Removal, ECF No. 1). Both parties now
seek summary judgment on all issues raised in this case. (ECF
Nos. 143, 158).
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. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted). 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.
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 ...