United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE
Atlantis Casino Resort (“the Atlantis”), motions
this court for summary judgment. ECF No. 22. Plaintiff, Keith
Yamaguchi, opposed the motion (ECF No. 39), and defendant
replied (ECF No. 40). The court now grants defendant’s
motion for summary judgment. Because the court grants summary
judgment for defendant, their pending motions in limine (ECF
Nos. 23 & 24) are denied as moot.
initially began working at the Atlantis Steakhouse
(“the Steakhouse”) as a server in July 2000. ECF
No. 22-10 at 16. During this time, Ali Sarsangi was the
assistant maître d’ or manager of the Steakhouse
and Frank Perez was the manager and plaintiff’s
immediate supervisor. ECF No. 39-1 at 8; ECF No. 39-2 at
9-10. Also, during this time, plaintiff and Mr. Sarsangi
lived together for approximately seven months. ECF No. 39-1
at 8. Plaintiff was terminated from the Steakhouse by Mr.
Perez on April 28, 2001 for being a “no call no
show” to his assigned shift. ECF No. 22-10 at 16; ECF
No. 39-1 at 8-9. Mr. Sarsangi then helped plaintiff get a new
job at the Silver Legacy. ECF No. 39-1 at 10. Mr. Sarsangi
and plaintiff remained friendly during the approximately 10
years that plaintiff did not work for the Atlantis, and
plaintiff testified that Mr. Sarsangi did not call him
derogatory names during this time. Id. at 10-12.
2011, when plaintiff decided he wanted to go back to serving,
Mr. Sarsangi helped plaintiff get rehired at the Steakhouse,
where Mr. Sarsangi was now the room manager. Id. at
11; ECF No. 39-2 at 10; 14. Starting almost immediately when
plaintiff returned to work at the Atlantis, Mr. Sarsangi
began calling plaintiff “Chinaman, ” and
referring to his and Quetking “Alan”
Yongkanchung’s sections in the back of the restaurant
as “China.” ECF No. 39-1 at 12; ECF No. 39-7 at
7. Plaintiff told Mr. Sarsangi that he did not want to be
called “Chinaman;” however, Mr. Sarsangi
continued to use the name and did so in front of other team
members who also began using the name. ECF No. 39-1 at 12;
14. Plaintiff testified that after a busser began calling him
“Chinaman, ” he asked Mr. Sarsangi to “nip
that in the bud.” Id. at 14. Plaintiff
believed that after he complained, Mr. Sarsangi began giving
him less work. Id. Defendant disagrees, asserting
that plaintiff’s records show his hours increased
during his employment. See ECF No. 40 at 2.
2015, when Aspi Warden began as the Assistant Food and
Beverage Director, plaintiff complained to him that he was
“having problems with racial slurs.” Id.
Mr. Warden indicated to plaintiff that he would talk to Mr.
Sarsangi, but plaintiff never heard anything further.
Id. at 14; 16. Mr. Warden declared that he was never
told about such racial discrimination and had never witnessed
such acts by Mr. Sarsangi. ECF No. 22-2 at 5-6.
March 2016, plaintiff refused to tip out a bartender
according to the Steakhouse’s tipping policy because he
believed that she had already been tipped by the customer
directly. ECF No. 39-1 at 17. Plaintiff was verbally
counseled and given a one-day suspension. ECF No. 22-9.
Plaintiff testified that after his suspension he spoke with
Heather Kinnear from personnel to explain that he believed
the tip policy was against the law and to complain about this
suspension. ECF No. 39-1 at 18; 35. Plaintiff also testified
that prior to making the complaints regarding the tip issue,
he complained to Ms. Kinnear regarding the
“Chinaman” slur because he “wasn’t
getting anywhere” with Mr. Sarsangi or Mr. Warden.
Id. at 19-20. He testified that he filled out a form
and wrote down the situation and gave it to Ms. Kinnear.
Id. at 20. Ms. Kinnear declared that she had no
knowledge of such complaint and she found none in his
personnel file. ECF No. 22-2 at 3-4.
March 29, 2017, plaintiff was given two disciplinary
write-ups. ECF Nos. 22-4 & 22-5. The first was from March
25, 2017, where plaintiff was disciplined for failing to
attend a mandatory team meeting. ECF No. 22-5. The second was
from March 29, 2017, when without Mr. Sarsangi’s
approval, plaintiff switched tables with another server, for
which he was suspended for three days. ECF No. 22-4.
Plaintiff also testified that when Mr. Sarsangi gave
plaintiff these writeups, he told plaintiff that if he got
any more infractions, he would be terminated. ECF No. 39-1 at
23. After receiving these writeups, plaintiff “felt
pressure like, okay, management is trying to get me out of
the door, to quit. . . . They are trying to get me out the
door because I made complaints.” Id. at 16.
The record shows that plaintiff did not provide any comments
on either of these write-ups. ECF Nos. 22-4 & 22-5.
April 5, 2017, plaintiff believed he was having a heart
attack and went to the hospital. ECF Nos. 22-6 & 39-1 at
20, 23. While it turned out to be stress related heart pain,
plaintiff remained on medical leave until May 2, 2017. ECF
No. 39-1 at 23; 38. Plaintiff testified that he believed his
stress was because he had received two “bogus writeups,
” and he felt like they were “trying to push me
out the door.” Id. at 20. According to the
emergency room doctor’s notes, plaintiff indicated to
the doctor that his stress was due to concern regarding his
wife’s health. ECF No. 22-6. Plaintiff returned to work
on May 2, 2017, and has since not had any more heart related
stress pains or incidents. ECF No. 39-1 at 20.
testified that when he came back from this leave of absence
on May 2, Mr. Sarsangi said, “Look, Chinaman is back,
” during pre-shift in front of the crew. Id.
at 20. After working a full shift that evening, plaintiff
attempted to clock out at 10:30 p.m. but the time clock read
“invalid ID.” Id. at 38. When he arrived
at work the following day, May 3, and attempted to clock in,
the time reader indicated “invalid card.”
Id. at 38. Plaintiff testified that he attempted to
reach Mr. Sarsangi, but he was in a meeting. Id. at
38-39. He also attempted to call “Ms. Erin” from
personnel who also did not respond. Id. He then
asked co-worker Christina Subillage to inform Mr. Sarsangi
what was going on. ECF No. 39-9 at 21. She confirmed that she
relayed a message, but she couldn’t remember whether
she told him plaintiff would be late or had to go somewhere.
Id. Plaintiff, believing that he was terminated
based on the failure of the card reader, and after he could
not reach any superiors, left the property and did not work
his assigned shift. ECF No. 39-1 at 21. Plaintiff was then
marked as a no call no show. ECF No. 22-10 at 17.
heard back from personnel the next day; plaintiff testified
that they told him he was not terminated, and that he could
return to work. ECF No. 39-1 at 21. On May 4, when plaintiff
came in to work his assigned shift, he was informed by Mr.
Sarsangi that he was being terminated for being a no call no
show the previous day. Id. at 26.
5, 2017, plaintiff filled out a form with human resources
alleging racial discrimination and workplace harassment. ECF
22-7 at 2. On May 6, plaintiff sent two emails to himself
which he then printed and gave to personnel on May 9, in
which he complained of racial discrimination, hostile work
environment, and retaliation. ECF No. 22-8. Plaintiff was
officially terminated on May 12, 2017. ECF No. 39-14. During
this meeting, plaintiff became aware his personnel file
contained none of the previous complaints he believed he had
made. ECF No. 39-1 at 20. Plaintiff was unemployed for
approximately 2 months before he began working for the
Eldorado, where he is currently employed as a server at La
Strada. Id. at 4.
filed his charge with the Nevada Equal Rights Commission on
May 23, 2017. ECF No. 39-12. He was issued a Notice of Right
to Sue from the United States Equal Employment Opportunity
Commission on January 25, 2018. ECF No. 39-13. Plaintiff then
filed his Complaint in this court on April 24, 2018,
(ECF No. 1), to which defendant answered on May 4, 2018, (ECF
No. 6). Discovery closed in this matter on December 31, 2018.
ECF No. 20. Defendant then filed the pending motion for
summary judgment (ECF No. 22), to which plaintiff responded
(ECF No. 39), and defendant replied (ECF No. 40).
for Summary Judgment Pursuant to Civil Procedure Rule
judgment is appropriate only when the pleadings, depositions,
answers to interrogatories, affidavits or declarations,
stipulations, admissions, and other materials in the record
show that “there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). In assessing a motion for
summary judgment, the evidence, together with all inferences
that can reasonably be drawn therefrom, must be read in the
light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); County of Tuolumne v. Sonora
Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).
moving party bears the initial burden of informing the court
of the basis for its motion, along with evidence showing the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those
issues for which it bears the burden of proof, the moving
party must make a showing that is “sufficient for the
court to hold that no reasonable trier of fact could find
other than for the moving party.” Calderone v.
United States, 799 F.2d 254, 259 ...