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Gurshin v. Bank of America, N.A.

United States District Court, D. Nevada

March 30, 2018

BANK OF AMERICA, N.A., Defendant.


          Gloria M. Navarro, Chief Judge United States District Judge.

         Pending 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).[1] 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 Plaintiff's Motion.

         I. BACKGROUND

         This 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).

         Shortly 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).

         On 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).

         On 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).

         On 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. (Id.).

         On May 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).

         On 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).


         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. 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).

         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 ...

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