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Yamaguchi v. Atlantis Casino Resort

United States District Court, D. Nevada

September 27, 2019

KEITH YAMAGUCHI, Plaintiff,
v.
ATLANTIS CASINO RESORT, and DOES I-X, Defendants.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

         Defendant, 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.

         I. BACKGROUND

         Plaintiff 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.

         In 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.

         In 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.

         In 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.

         On 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         On May 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.

         Plaintiff 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, [1] (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).

         II. LEGAL STANDARD

         Motion for Summary Judgment Pursuant to Civil Procedure Rule 56

         Summary 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).

         The 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 ...


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