Fetrow-Fix et al v. Harrah's Entertainment, Inc.

Filing 111

ORDER Granting 83 Motion for Summary Judgment; and Denying 104 Motion to Strike. Signed by Judge Roger L. Hunt on 11/16/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARI FETROW-FIX and THOMAS
SORANNO, individually and on behalf of all
others similarly situated,

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Plaintiffs,
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vs.
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HARRAH’S ENTERTAINMENT, INC., a
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Delaware Corporation; HARRAH’S
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OPERATING COMPANY, INC.; HARRAH’S )
LAUGHLIN, INC.; and DOES No. 1 through )
100, inclusive,
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Defendants.
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_______________________________________)

Case No.: 2:10-cv-00560-RLH-PAL
ORDER
(Motion for Summary Judgment–#83;
Motion to Strike–#104)

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Before the Court is Defendants Harrah’s Entertainment, Inc., Harrah’s Operating

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Company, Inc., and Harrah’s Laughlin, Inc.’s Motion for Summary Judgment (#83, filed June 6,

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2011) and Plaintiffs Chari Fetrow-Fix and Thomas Soranno’s Motion to Strike Exhibits GG, JJ,

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LL and MM to Defendants’ Reply in Support of Defendants’ Motion for Summary

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Judgment (#104, Aug. 18). The Court has also considered all the relevant oppositions and replies

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for these motions.

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BACKGROUND

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Plaintiffs are former employees of Defendants. Plaintiff Fetrow-Fix was a Game

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Supervisor and Plaintiff Soranno was a dealer at the Harrah’s Laughlin Hotel & Casino. In April

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2010, Plaintiffs filed this lawsuit as a collective action alleging Defendants violated §§ 206(a) and

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207(a) of the Fair Labor Standards Act (“FLSA”), by failing to pay Plaintiffs and others similarly

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situated minimum wages and/or overtime compensation. Plaintiffs also assert a claim under

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Nevada labor law. To date, approximately 16 opt-in plaintiffs have joined this case. Defendants

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have now filed a motion for summary judgment as to Fetrow-Fix’s FLSA claims. Plaintiffs then

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filed a motion to strike various exhibits filed by Defendants in support of their motion for

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summary judgment. For the reasons discussed below, the Court grants Defendants’ motion for

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summary judgment and denies Plaintiffs’ motion to strike.

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DISCUSSION
I.

Defendants’ Motion for Summary Judgment
A.

Legal Standard
The purpose of summary judgment is to avoid unnecessary trials when there is no

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dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d

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1468, 1471 (9th Cir.1994). Summary judgment is appropriate when “the pleadings, the discovery

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and disclosure materials on file, and any affidavits show there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

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An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder

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could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the

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suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

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Where reasonable minds could differ on the material facts at issue, however, summary judgment is

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not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). “The amount of

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evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to

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resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d

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897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288–89

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(1968)). In evaluating a summary judgment motion, a court views all facts and draws all

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inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach

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& Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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The moving party bears the burden of showing that there are no genuine issues of

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material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order to carry

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its burden of production, the moving party must either produce evidence negating an essential

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element of the nonmoving party’s claim or defense or show that the nonmoving party does not

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have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.”

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Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the

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moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion to

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“set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.

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The nonmoving party “may not rely on denials in the pleadings but must produce specific

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evidence, through affidavits or admissible discovery material, to show that the dispute exists,”

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Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply

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show that there is some metaphysical doubt as to the material facts.” Bank of America v. Orr, 285

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F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere existence of a scintilla of

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evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252.

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B.

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Analysis
The FLSA contains an exemption from its minimum wage and overtime

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requirements for employees employed in a bona fide executive, administrative, or professional

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capacity. 29 U.S.C. § 213(a)(1). Defendants argue that Fetrow-Fix was an executive and

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administrative employee. The Court addresses each argument below.

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1.

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The Court will first address whether Fetrow-Fix was an exempt executive employee

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Executive Employee

under the FLSA.

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a.

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Salary Basis

First, to qualify as an exempt executive employee, an employee must be

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“compensated on a salary basis,” 29 C.F.R. § 541.100(a)(1), which means that the employee must

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receive a predetermined amount of compensation for each week in which the employee performs

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any work, which amount may not be “subject to reduction because of variations in the quality or

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quantity of work performed.” Id. at § 541.602(a). However, “[d]eductions from pay may be made

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when an exempt employee is absent from work for one or more full days for personal reasons,

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other than sickness or disability.” Id. at § 541.602(b)(1). “An employer who makes improper

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deductions from salary shall lose the exemption if the facts demonstrate that the employer did not

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intend to pay employees on a salary basis.” Id. at § 541.603(a). An employer’s intent not to pay

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employees on a salary basis can be demonstrated by an actual practice of making improper

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deductions. Id.

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To determine whether an employer has an actual practice of making deductions, the

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Court considers the following factors: the number of improper deductions, particularly as

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compared to the number of employee infractions warranting discipline; the time period during

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which the employer made improper deductions; the number and geographic location of employees

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whose salary was improperly reduced; the number and geographic location of managers

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responsible for taking the improper deductions; and whether the employer has a clearly

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communicated policy permitting or prohibiting improper deductions. Id. “If the facts demonstrate

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that the employer has an actual practice of making improper deductions, the exemption is lost

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during the time period in which the improper deductions were made for employees in the same job

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classification working for the same managers responsible for the actual improper deduction.

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Employees in different job classifications or who work for different managers do not lose their

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status as exempt employees.” Id. at § 541.603(b).

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The Court will now address each of the factors listed above to determine whether
Fetrow-Fix was paid on a salary basis.

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i.

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Number of Improper Deductions

Under this first factor, the Court considers the number of improper deductions,

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particularly as compared to the number of employee infractions warranting discipline. First, the

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Court notes that Fetrow-Fix herself never actually suffered a reduction in pay. (#94, Opposition,

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14:8). Nevertheless, the Court may still consider evidence of improper deductions as to other

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Harrah’s employees to determine whether Defendants had an actual practice of making improper

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deductions. 29 C.F.R. § 541.603(b). If the evidence demonstrates that Defendants had an actual

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practice of making improper deductions as to other Harrah’s employees, the exemption is lost as to

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Fetrow-Fix as well if she worked the same job for the same managers as these other employees.

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Id.

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Plaintiffs claim that Deena Fetrow and Audra Patterson, former supervisors at

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Bally’s Atlantic City, and Ron Watson, a former supervisor at Harrah’s Laughlin, were subject to

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improper deductions from their pay. However, the evidence produced by Defendants demonstrates

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that Fetrow, Patterson, and Watson’s pay was properly reduced due to FMLA leave. (#98, Reply,

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Ex. II, KK, LL). And even assuming the deductions were improper, the Court finds that, in

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weighing this factor, Fetrow and Patterson’s alleged improper deductions are less persuasive than

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Watson’s because Fetrow and Patterson worked at a different location than Fetrow-Fix, and,

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therefore, most likely under different managers. 29 C.F.R. § 541.603(b).

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Plaintiffs also claim that Kathy Stumbaugh, a former supervisor at Harrah’s

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Laughlin, was subject to improper reductions of pay during March and April of 2009. However,

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as with Fetrow, Patterson, and Watson, Defendants provide evidence demonstrating that

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Stumbaugh was on FMLA leave during that period. (#98, Reply, Ex. GG). Plaintiffs also allege

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that Stumbaugh suffered a reduction in pay because her total pay for 2009 was $44,935.12 when it

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should have been $46,604.89. Defendants argue that Plaintiffs’ allegation fails to account for the

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fact that the last pay period of 2009 was paid to Stumbaugh in 2010. However, even accounting

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for that last pay period, Stumbaugh’s salary would only total $46,399.12, which is still less than

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what Plaintiffs claim it should have been. Nevertheless, the Court finds that this alleged reduction

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of pay carries little weight in this analysis because it could have been a result of any number of

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valid reductions under the FLSA, like, for example an absence from work for personal reasons or

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FMLA leave. Finally, Plaintiffs claim that Stumbaugh’s salary was improperly reduced on July

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15, 2010. However, according to the evidence provided by Defendants, Stumbaugh took a

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personal day off on that day, (#98, Reply, Ex. HH, JJ), and deductions are permissible for absences

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“from work for one or more full days for personal reasons.” 29 U.S.C. § 541.602(b)(1).

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Therefore, with respect to this first factor—the number of actual improper

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deductions—the evidence before the Court demonstrates that Defendants have not made any

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improper deductions of pay. Fetrow-Fix herself admits that she never suffered a reduction of pay.

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(#94, Opposition, 14:8). Accordingly, the Court finds that this factor weighs in favor of finding

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that Fetrow-Fix was paid on a salary basis.

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ii.

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Time Period of Improper Deductions; Number and
Location of Employees and Managers

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Next, the Court considers the time period during which the employer made

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improper deductions, the number and geographic location of employees whose salary was

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improperly reduced, and the number and geographic location of managers responsible for making

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the improper deductions. However, because the evidence demonstrates Defendants have not made

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any improper deductions, there is no evidence to consider for these factors and, as such, they

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weigh in favor of finding that Fetrow-Fix was paid on a salary basis.

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iii.

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Clearly Communicated Policy Permitting Improper
Deductions

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Finally, the Court considers whether the employer has a clearly communicated

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policy permitting or prohibiting improper deductions. Fetrow-Fix testified that her salary would

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be reduced if she took an “early out”1 when her PTO bank was exhausted. In support of this

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testimony, she points to the Harrah’s Laughlin Employee Handbook, which states: “PTO can be

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taken in 1-hour increments by employees and in 4 or 8-hour increments by salaried employees.

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Salaried employees are not allowed to be paid in increments less than 4 hours as doing so would

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jeopardize their exempt status under the [FLSA].” Yet, Fetrow-Fix does not explain how this

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policy “explicitly” allows for partial-day deductions from salary. To the contrary, the policy seems

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to allow for partial-day deductions from the PTO bank, not the salary, and such deductions do not

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compromise an employee’s exempt status. (#83, Motion for Summary Judgment, Ex. X, Dep. of

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Labor Opinion Letter, FLSA2005-7).

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In her deposition testimony, Fetrow-Fix also claimed that she once “had to give

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another supervisor the form to sign stating that he understood his pay was being docked for no

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work without PTO.” (#94, Opposition, Ex. 1, Fetrow-Fix Dep., 115:8-13). However, this

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testimony is far too vague to establish the existence of a clearly communicated policy. First, it is

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unclear from Fetrow-Fix’s testimony whether the unnamed supervisor’s salary was being reduced

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for a whole day, or for a partial day. But even if the supervisor’s salary was being reduced for a

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partial day, it is unclear from Fetrow-Fix’s testimony that the reduction was improper. For

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example, it may have been reduced for a partial day absence under the FMLA and such a reduction

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would be completely proper. 29 C.F.R. § 541.602(b)(7). Fetrow-Fix is asking the Court to

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assume a lot in order to find a clearly communicated policy from her deposition testimony, and the

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Court is unwilling to oblige.

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An “early out” occurs when an employee is permitted to leave work early because business is slow.

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Various other witnesses deposed in this matter testify that Defendants’ policy

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allowed for improper deductions of their pay. (See #94, Opposition, Ex. 1, 4–9). For example,

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Sandra Bryant, a former employee of Defendants, testified that her salary would be reduced if she

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had to leave work early due to illness and her PTO bank was exhausted. (Id., Ex. 4, Bryant Dep.,

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100:17-24, 101:1-6). Deena Fetrow, a former supervisor at Bally’s Atlantic City, testified that

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whenever an employee worked less than 40 hours in a week, and the employee’s PTO bank was

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exhausted, the employee’s pay would be reduced to reflect the absence. (Id. Ex. 5, Fetrow Dep.,

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32-33). Nicolette Harvard, also a former employee, testified that she “thinks” an employee’s

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salary would be reduced if they arrived to work late and the employee’s PTO bank was exhausted.

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However, the Court finds that this testimony is insufficient to establish that Defendants had a

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clearly communicated policy permitting improper deductions, especially in light of Defendants’

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evidence to the contrary. (83, Motion for Summary Judgment, Ex. W, Candy Basso Dep., 47:12-

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25, 48:1-9; Ex. C, Handbook, §3.7). Therefore, this factor also weighs in Defendants’ favor,

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though less strongly than other factors.

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iv.

Conclusion

The Court finds that the foregoing factors weigh in favor of finding that Defendants

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did not have an actual practice of making improper deductions. Accordingly, the Court finds that

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Fetrow-Fix was paid on a salary basis, and as such, the first requirement under the executive

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employee exemption is satisfied.

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b.

Primary Duty

Under the second requirement, the Defendants must show that Fetrow-Fix was an

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employee “whose primary duty is management of the enterprise in which the employee is

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employed out of a customarily recognized department or subdivision thereof.” 29 C.F.R. §

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541.100(a)(2). “The term ‘primary duty’ means the principal, main, major, or most important duty

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that the employee performs.” The Court considers the following factors when determining the

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primary duties of an employee: the relative importance of the exempt duties as compared with

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other types of duties; the amount of time spent performing exempt work; the employee’s relative

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freedom from direct supervision; and the relationship between the employee’s salary and the

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wages paid to other employees for the kind of nonexempt work performed by the employee. Id. at

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§ 541.700(a).

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The term “management” is also further defined as including duties such as

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monitoring or implementing legal compliance measures, directing the work of employees,

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appraising their productivity and efficiency for promotion purposes, handling their complaints and

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grievances, disciplining them, as well as various other duties. Id. at § 541.102. “The phrase ‘a

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customarily recognized department or subdivision’ is intended to distinguish between a mere

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collection of employees assigned from time to time to a specific job or series of jobs and a unit

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with permanent status and function.” Id. at § 541.103.

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Fetrow-Fix is a Game Supervisor with Harrah’s. Defendants provide evidence of

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various responsibilities that Fetrow-Fix carried out, including, conducting semi-annual and annual

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performance evaluations, preparing monthly reviews for dealers, leading one-on-one sessions with

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dealers, and preparing work history notations for dealers. (See e.g., id. at Ex. BB, 2009 Mid-Year

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Review and Performance Evaluations; Ex. B, Fetrow-Fix Dep., 52:25, 53:1-15). Additionally,

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Fetrow-Fix admits that her other main responsibility was to protect the integrity of the game, i.e.,

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to make sure dealers and guests do not cheat, correct mistakes made during games, and ensure

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proper usage and safety of equipment. (#94, Opposition, Ex. 1, 93:8-20). The Court finds that all

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of the foregoing duties are managerial in nature. They involve the training, supervision, and

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evaluation of employees, as well as protecting Harrah’s equipment and business relations. It is

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true that some of these duties, such as performing evaluations and reviews for dealers, only took

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Fetrow-Fix a short amount of time to actually complete. However, in order to be in a position to

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write out the evaluations and reviews, Fetrow-Fix needed to observe and monitor dealers on a day-

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to-day basis to recognize their strengths and weaknesses.

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In addition, Defendants provide evidence of other duties Game Supervisor’s have,

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including, monitoring game activities for adherence to company policies and various regulatory

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agencies’ regulations, (#83, Motion for Summary Judgment, Ex. F, Game Supervisor Guidelines,

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4), settling disputes on games, (id.), making sure guests are satisfied, (id.), coaching and

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counseling dealers when they make mistakes, (id. at Ex. E, French Decl. ¶ 10; Ex. I, McHugh

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Dep., 38:7-25, 40:9-13; Ex. L, Richards Decl., ¶ 8), issuing work history entries, which include

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written commendations or mistakes made by dealers, (id.), preparing disciplinary write-ups of

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dealers under their supervision, or providing input with respect to the discipline of dealers, (id. at

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Ex. E, French Decl. ¶ 10; Ex. L, Richards Decl., ¶ 8), conducting semi-annual and annual

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performance evaluations for dealers they supervise, (id. at Ex. B, Fetrow-Fix Dep., 52:25, 53:1-15;

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French Decl., ¶ 9; Richards Decl., ¶ 5). Although there is no evidence that Fetrow-Fix actually

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performed any of these duties, the Court can reasonably conclude that she would have if the

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opportunity arose. That is so because Defendants’ evidence consists of testimony from other

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Game Supervisors and from Fetrow-Fix’s superiors—persons who would be intimately familiar

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with Game Supervisor duties—as well as provisions directly from the Game Supervisor

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Guidelines, all recognizing these as a Game Supervisor duties. Therefore, the Court finds that

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Fetrow-Fix’s primary duty was management of Harrah’s or at least a unit of Harrah’s.

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Accordingly, Defendants have satisfied the second requirement for the executive exemption.

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c.

Directs Work of Other Employees

The parties do not dispute that the third requirement is satisfied, that is, that

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Fetrow-Fix customarily and regularly directed the work of two or more other employees.

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Therefore the Court will now address the fourth and final requirement.

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d.

Authority to Hire or Fire

Under the fourth requirement, Defendants must show that Fetrow-Fix had

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“authority to hire or fire other employees or whose suggestions and recommendations as to the

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hiring, firing, advancement, promotion or any other change of status of other employees are given

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particular weight.” 29 C.F.R. § 541.100(a)(4). “To determine whether an employee’s suggestions

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and recommendations are given ‘particular weight,’ factors to be considered include, but are not

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limited to, whether it is part of the employee’s job duties to make such suggestions and

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recommendations; the frequency with which such suggestions and recommendations are made or

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requested; and the frequency with which the employee’s suggestions and recommendations are

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relied upon.” Id. at § 541.105.

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Defendants’ evidence demonstrates that Game Supervisors make recommendations

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regarding a dealer’s hiring (#83, Motion for Summary Judgment, Ex. M, Metz Decl., ¶ 4; Ex. V,

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Collins Dep., 76:3-16) and firing (id. at Ex. K, Sapp Decl., ¶ 5; Ex. M, Metz Decl., ¶ 4) as part of

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their duties, and that these recommendations are relied upon (id.). Furthermore, with respect to

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evaluating and reviewing dealers, which Fetrow-Fix admits were her duties, Defendants evidence

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demonstrates that these evaluations are relied upon to determine whether to promote or terminate a

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dealer. (Id. at Ex. E, French Decl., ¶¶ 10, 11; Ex. K, Sapp Decl., ¶ 5; Ex. L, Richards Decl., ¶ 8;

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Ex. M, Metz Decl., ¶ 4). In addition, these evaluations occurred on a regular basis, not

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sporadically. Therefore, the Court finds Fetrow-Fix had the authority to make recommendations

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as to the hiring, firing, and promotion of dealers.

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Consequently, the Court finds that Defendants have provided sufficient evidence to

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demonstrate that Fetrow-Fix was an executive employee. No reasonable jury could find otherwise.

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As an executive employee, the FLSA’s minimum wage and overtime requirements do not apply to

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Fetrow-Fix and her claims fail.

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2.

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The Court will now address whether Fetrow-Fix was an exempt administrative

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Administrative Employee

employee under the FLSA.
a.

Salary Basis

The Court has previously determined that Fetrow-Fix was paid on a salary basis.
Therefore, the Court finds that this requirement is satisfied.
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b.

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Primary Duty

Next, Defendants must show that Fetrow-Fix’s “primary duty is the performance of

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office or non-manual work directly related to the management or general business operations of

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the employer or the employer’s customers.” 29 C.F.R. § 541.200(a)(2). “To meet this

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requirement, an employee must perform work directly related to assisting with the running or

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servicing of the business, as distinguished, for example, from working on a manufacturing

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production line or selling a product in a retail or service establishment.” Id. at § 541.201(a).

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Examples of work “directly related to management or business operations” include accounting,

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budgeting, quality control, safety and health, marketing, personnel management, among other

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things. Id. at § 541.201(b).

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The Court finds that Fetrow-Fix’s primary duty was the performance of office work

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directly related to the management and business operations of Harrah’s. Fetrow-Fix monitored

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table games to detect cheating by dealers and guests, (#94, Opposition, Ex. 1, 93:8-20), settled

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disputes between dealers and guests (#98, Reply, Ex. DD, Fetrow-Fix Dep., 97:19-98:4),

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monitored table games for adherence to company policies and various regulatory agencies’

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regulations, (#83, Motion for Summary Judgment, Ex. F, Game Supervisor Guidelines, 4; #98,

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Reply, Ex. EE, Fetrow-Fix Dep., 67:20-68:8), evaluated and coached dealers, (#83, Motion for

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Summary Judgment, Ex. B, Fetrow-Fix Dep., 52:25, 53:1-15; French Decl., ¶ 9; Richards Decl., ¶

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5), ensured compliance with gaming regulations, and performed various other duties outlined in

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Defendants’ motion and reply. These duties are administrative in nature. Fetrow-Fix’s duties

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make her an integral part of ensuring that the business is run properly with respect to table games.

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She is directly involved with personnel management and ensuring compliance with company

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policy. Her duties are more akin to running the business than the manual labor contemplated as

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being non-exempt. Accordingly, the Court finds that the second requirement of the administrative

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exemption has been satisfied.

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c.

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Discretion and Independent Judgment

Finally, Defendants must show that Fetrow-Fix’s “primary duty includes the

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exercise of discretion and independent judgment with respect to matters of significance.” Id. at §

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541.200(a)(3). Discretion and independent judgment “involves the comparison and the evaluation

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of possible courses of conduct, and acting or making a decision after the various possibilities have

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been considered.” Id. at § 541.202(a). Factors to consider for this requirement include, but are not

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limited to, whether the employee has authority to interpret or implement management policies or

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operating practices, whether the employee represents the company in handling complaints, whether

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the employee carries out major assignments in conducting business operations, and whether the

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employee performs work that affects business operations to a substantial degree. Id. at §

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541.202(b).

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As discussed above, Fetrow-Fix’s primary duties include monitoring, supervising,

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coaching, and training dealers, resolving disputes between dealers and customers, making

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suggestions or recommendations for the hiring, firing, and promotion of dealers, and general

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customer service, among other things. In general, her duties involved the supervision and

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monitoring of gaming operations for table games. Thus, much of Fetrow-Fix’s responsibility

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involved the implementation of Harrah’s policies and operating practices, as well as evaluating

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different circumstances and deciding if action needed to be taken. This is the essence of exercising

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discretion and independent judgment. The mere fact that her decisions were sometimes subject to

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later review by her superiors does not change the fact that she had to exercise discretion to make

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the decision in the first place. 29 C.F.R. § 541.202(c).

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Accordingly, all of the requirements for both the executive and administrative

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exemptions have been satisfied. The Court therefore finds that Fetrow-Fix was an exempt

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employee under the FLSA. As such, her FLSA claims fail and the Court grants Defendants’

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motion for summary judgment.

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II.

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Plaintiffs’ Motion to Strike Exhibits GG, JJ, LL, and MM to Defendants’ Reply in
Support of Defendants’ Motion for Summary Judgment

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On June 15, 2011, the Honorable Peggy A. Leen issued an order requiring

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Defendants to “supplement their initial disclosures to provide all payroll records including payroll

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adjustment forms, payroll request forms, time and attendance records, and leave records for each

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of the opt-in Plaintiffs.” (#87, Order, 6:21-23). Plaintiffs now ask the Court to strike four of the

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exhibits Defendants attached to their reply in support of their motion for summary judgment.

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Plaintiffs argue that Defendants should have provided those exhibits earlier pursuant to Judge

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Leen’s order but failed to do so. In the alternative, Plaintiffs ask the Court to consider the

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additional arguments made in their motion to strike when analyzing the motion for summary

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judgment.

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“If a party fails to provide information or identify a witness as required by Rule

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26(a) or (e),2 the party is not allowed to use that information or witness to supply evidence on a

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motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.

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R. Civ. P. 37(c)(1). “Among the factors that may properly guide a district court in determining

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whether violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to

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the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice;

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(3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely

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disclosing the evidence.” Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx. 705, 713 (9th Cir.

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2010).

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Having considered the foregoing factors, the Court finds that Defendants failure to

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supplement pursuant to Judge Leen’s order was harmless. The exhibits in question support

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Defendants argument that Harrah’s does not have a policy of making improper deductions from

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the pay of exempt employees. Specifically, as discussed above, the exhibits demonstrate that the

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Rule 26(e) requires a party who has already made a disclosure to supplement that disclosure if ordered
to do so by the court, Fed. R. Civ. P. 26(e)(1)(B), as is the case here.

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deductions made to Kathy Stumbaugh and Audra Patterson’s pay was because they were on FMLA

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leave. (#98, Reply, Ex. GG, LL). However, the Court is not convinced that Plaintiffs were

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surprised by the exhibits. Exhibit GG consists of three pages. The Defendants have previously

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disclosed two of those pages to Plaintiffs. (#107, Defendants’ Opposition, Ex. A, Defendants’

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Eighth Supplement, 2:15-16). And because the third page deals with the same subject matter as

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the other two, it is hard to believe that the Plaintiffs were surprised by it when they saw it in

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Defendants’ reply to Defendants’ motion for summary judgment.

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Exhibit LL consists of two documents, both of which are responses to Audra

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Patterson’s request for FMLA leave, and both of which Patterson partially filled out and signed.

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While Patterson may have forgotten about these exact documents, or the exact dates on which she

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took FMLA leave, it is hard to believe that she forgot about the fact that she took FMLA leave,

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especially considering the fact it was for the purpose of caring extensively for her husband after an

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apparent surgery. Thus, the Court is not convinced that Plaintiffs were surprised by that

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information. In addition, with respect to the second and third factors above, the Court finds that,

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as just discussed, there is little to no prejudice that Plaintiffs need to cure, and there is certainly not

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a likelihood that the trial will be disrupted. Also, there is no evidence before the Court that

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demonstrates that Defendants acted in bad faith.

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Furthermore, the additional arguments Plaintiffs ask the Court to consider when

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analyzing the motion for summary judgment do not address Stumbaugh and Patterson at all, nor do

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they cite to the exhibits at issue. Instead, Plaintiffs arguments relate solely to opt-in plaintiff

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Ronald Watson (discussed above), and how his pay deductions for FMLA leave were improper

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under the FMLA. Plaintiffs do not even cite the exhibits they ask the Court to strike in their

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additional arguments. Therefore, Plaintiffs’ additional arguments demonstrate that this motion to

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strike was more than likely merely an attempt by Plaintiffs to make additional arguments in

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support of their opposition to Defendants motion for summary judgment.

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Finally, exhibits JJ and MM are merely the declarations of Candice Basso and

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Heather Kinnear, respectively, in which they authenticate exhibits GG and LL. Given that the

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Court is denying Plaintiffs request to strike exhibits GG and LL, the Court sees no reason to strike

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exhibits JJ and MM. Accordingly, for the foregoing reasons, the Court denies Plaintiffs’ motion to

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strike. And the Court will consider exhibits GG, JJ, LL, and MM, in its analysis of Defendants

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motion for summary judgment.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (#83)

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is GRANTED.

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IT IS FURTHER ORDERED that Plaintiffs’ Motion to Strike (#104) is DENIED.

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Dated: November 16, 2011

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____________________________________
ROGER L. HUNT
United States District Judge

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