Gooch et al v. Las Vegas Bistro, LLC

Filing 51

ORDER Denying Defendant's 43 Motion for Summary Judgment. Signed by Judge Andrew P. Gordon on 3/31/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRITNEY GOOCH, individually; and
THOMAS IMPASTATO, individually,
Plaintiffs,

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v.

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Case No. 2:14-cv-02189-APG-PAL
ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
(ECF No. 43)

LAS VEGAS BISTRO, LLC, dba LARRY
FLYNT’S HUSTLER CLUB, a Nevada
limited liability company; DOES I-X; and
ROE BUSINESS ENTITIES I-X, inclusive,

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Defendants.

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Plaintiffs Britney Gooch and Thomas Impastato bring federal and state race

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discrimination and retaliation claims arising from their employment at a strip club and bookstore.

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Gooch, a black former employee, alleges that she was suspended for discriminatory reasons, she

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complained, and she was eventually fired for discriminatory and retaliatory reasons. Impastato, a

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white former manager, alleges he was fired for refusing to follow directions to fire black

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employees. Defendant Las Vegas Bistro, LLC (Bistro) moves for summary judgment on the

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grounds that Gooch and Impastato have no direct evidence of discrimination and that any

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circumstantial evidence of discrimination is rebuffed by Bistro’s legitimate, race-neutral reasons

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for the adverse actions against the plaintiffs.

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Genuine issues of material fact exist that preclude me from granting summary judgment.

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Gooch and Impastato offer direct evidence that there was discriminatory animus in the

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organization and that both of them opposed it. Both also raise serious questions as to whether

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discrimination or retaliation was the cause for adverse employment actions taken against them. I

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therefore deny Bistro’s motion for summary judgment.

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I.

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BACKGROUND
A. Impastato’s employment at Bistro
Impastato was hired by Bistro in June 2011 as a “floor manager” and was promoted three

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months later to “bar manager.” ECF No. 48-7 at 3. Impastato had general managerial authority

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over Gooch and other employees, including responsibility for disciplinary “write-ups” and

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suspensions. ECF No. 48 at 5. The parties disagree whether Impastato had full authority to hire

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and fire employees. See, e.g., ECF Nos. 43 at 8; 48 at 8. Impastato explains that he got along

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well with his colleagues and received a positive informal performance review from an outside

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consultant on May 10, 2012. See ECF No. 48 at 9 (Impastato was “doing extremely well and

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working hard to get [his] ‘ducks in a row’”).
On March 20, 2012, Bistro hired a white employee named Joseph Gause as a “team

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leader and manager.” Id. at 3; ECF No. 48 at 4. Gause’s position in the hierarchy was below

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Impastato, but he had supervisory authority over floor staff like Gooch. Id. at 7. According to

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Impastato, “Gause made it well known that he wanted to hire an all white staff and effectively

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terminate all the African-American day staff,” at one point asking, “‘[c]an we douche the day

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shift?’” ECF No. 48-7 at 3. Two other employees complained about Gause making a racially

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charged comment to one of them. See ECF Nos. 48-5 at 2; 48-4 at 5 (“Joe, I guess, not knowing

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that I was half black, . . . asked me, ‘Let me know if you think this girl is too ghetto to work

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here.’ And I said, “What do you mean by ‘ghetto’?” And it's something about her hair weave, or

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the way she spoke, or her—he also mentioned something about her butt being really big.”). One

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of those employees complained that Gause generally treated white staff better. ECF No. 48-4 at

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2.

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B. Discriminatory environment at Bistro leads to confrontation, Impastato’s firing.
Impastato alleges that at a managers’ meeting on June 5, 2012, manager Lilian Pineda,

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Gause, and general manager Kelly Jones (Impastato’s superior) “instructed [Impastato] to

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terminate the African-American day staff because, according to Gause, they ‘did not want

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customers to come in and see a Black Cashier, a Black cocktail waitress, and a Black

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bartender.’” ECF No. 48-7 at 4. Impastato refused to fire any employees based on their race. Id.

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Pineda approached him after the meeting and instructed him to “take away the day staff’s . . .

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hours so that the . . . employees would leave on their own.” Id. The day staff was all black at

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that time. Id. Impastato states that during a meeting on June 12, 2012, Pineda again asked why

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Impastato had not yet fired the black staff, and Impastato responded with his belief that it was

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illegal to fire staff solely based on their race. Id. Pineda again approached him after the meeting

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and “angrily directed [him] to terminate the African-American day staff or take the day staff off

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the schedule so that they would be economically forced to leave.” Id. at 5.

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The following day, Impastato was fired. Id. When he asked why, general manager Jones

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replied, “Next time you are told to do something, do it.” Id. Impastato contested his firing with a

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formal charge of retaliation with the EEOC on August 6, 2012, and was issued a right to sue

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letter on October 7, 2014. Id.

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C. Bistro conducts an internal investigation.
On June 22, 2012, Bistro’s attorney, Brad Shafer, investigated allegations of racial

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discrimination that had been made by multiple employees, which focused at least partially on

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Gause. ECF No. 48 at 5. Shafer, in a letter to the EEOC, claimed to have resolved any potential

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issues with discrimination by reminding Gause of the company’s discrimination policy, although

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he was not certain whether Gause actually made the statements that employees attributed to him.

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See ECF No. 48-3 at 4–6.

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D. Gooch’s employment at Bistro
Gooch was hired by Bistro in October 2011 as a cashier and an attendant of Bistro’s cash

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cage. ECF No. 48-10 at 3. Gooch’s time sheets show she worked a relatively consistent eight-

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hour work day, between three to five days per week. See ECF No. 43-2 at 26–30. As an hourly

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employee she could not work unless management put her on the schedule. See, e.g., ECF No. 48-

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10 at 6. Gooch worked relatively uneventfully from her October 2011 start date through May

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2012, receiving one minor disciplinary write-up in that period. ECF No. 43-2 at 18.

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Gooch alleges that, from the beginning of her employment, she and other black

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employees were subject to stricter discipline, fewer breaks, and racially discriminatory remarks.

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Id. She contends that she was required to arrive well before her shift started at 4:00 p.m., but

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was threatened with discipline if she clocked in before then, whereas white employees were not.

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Id. at 4. She states that she and other black staff were assigned to the day shift, where employees

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received fewer tips. She also claims black staff were denied lunch breaks but other employees

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were treated more leniently. Id. at 4–5. She adds that on at least one occasion, she was denied a

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gratuity to which she was entitled in favor of a white employee. Id. at 3–4.

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E. Gooch’s initial suspension and complaint to management
On May 16, 2012, Gooch received a phone call from her sister, who was visiting from

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out of town, reporting that an unfamiliar, naked man was attempting to break into Gooch’s

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residence while the sister was inside. ECF No. 48-10 at 5. Gooch immediately called the police.

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Id. Impastato, who was supervising her that day, instructed her to get off the phone. Id.1 Gooch

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refused and stayed on the phone until she felt the situation was stabilized. Id. Impastato

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responded by giving her a write-up. ECF No. 43-2 at 15. Gooch was also told that she was

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suspended for two days. ECF No. 48-10 at 6.2 When Gooch called two days later to inquire

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about her post-suspension schedule, she was told by assistant office manager Danielle Britt that

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she was not on the schedule. Id. That situation lasted for two weeks. Id. Gooch was finally

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placed back on the schedule when she threatened to elevate the issue to the owner of Bistro. Id.

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Gooch alleges that non-black employees who committed similar disciplinary infractions

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received little or no discipline. Id. For example, a white cocktail server was on the phone for an

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hour in the bathroom but not disciplined. Id.

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Impastato states in his affidavit: “Knowing that [Bistro] was looking for any reason to
terminate the African-American employees, I informed Gooch to get off the phone when I
witnessed her making a call . . . , even though she informed me that it was an emergency.” ECF
No. 48-7 at 3.

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Gooch does not say who communicated the suspension.

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Gooch contends that upon returning to work after her suspension, she was harassed with

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statements like, “You need more punishment,” and “They did not fire you yet?” Id. at 7. On

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June 12, 2012, Gooch emailed Pineda about what she perceived as a campaign of racial

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discrimination. Id. After this email, Gooch was approached by general manager Monica Martin,3

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who “informed [Gooch] she was aware of [Bistro’s] discriminatory practices . . . [and] that she

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had both witnessed the discrimination and heard that it was an ongoing issue and told [Gooch]

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that [she] was not the only employee [Bistro] was discriminating against.” Id. Martin attempted

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to have Gooch speak with Bistro’s lawyers, but Gooch told Martin that she had retained an

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attorney, to whom all communications on the matter should be directed. Id.

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F. Retaliatory campaign culminates in Gooch’s employment ending.
Gooch asserts that, thereafter, Bistro management subjected her to a retaliatory campaign

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that consisted of verbally abusing her, issuing her pretextual write-ups, and intentionally

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interfering with her job. Id. at 7–8. Gooch received at least seven write-ups between July 5,

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2012 and August 12, 2012, most of which she refused to sign, instead writing down explanations

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for why each write-up was unwarranted. ECF No. 43-2 at 7–15.
On September 12, 2012, Gooch was working as a cashier near the back door of the club.

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ECF No. 43-2 at 35. Three men tried to enter by the back door, which was unauthorized. Id.

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The parties dispute whether Gooch received adequate security assistance to handle the situation.

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See ECF Nos. 43-8 at 4; 43-2 at 42–43. An hour later, the men harassed a Bistro employee in

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the parking lot, and Gooch ran outside to intervene. She stated the situation made her fearful as

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“the area of the club has been robbed twice . . . .” Id.
Gooch states that this incident, combined with the preceding campaign of harassment, led

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her to experience stress-based medical problems. ECF No. 48-10 at 8. She took medical leave

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Martin is described in the complaint as the only employee at Bistro who “had the authority to
hire, terminate, or discipline.” ECF No. 1 at 7. Her title, “General Manager,” is the same as that
held by Jones.

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immediately after the September 12 incident and applied for worker’s compensation, but never

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received any payment. Id. at 8–9.
The parties dispute what caused Gooch not to resume working after that. Gooch avers

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that “[a]fter a few weeks on medical leave, I was medically cleared to return to work,” but

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“[Bistro] repeatedly refused to place me back on the schedule. As a result . . . , I assumed I had

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been fired. As such, I applied for unemployment benefits. However, I was denied because

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[Bistro] maintained that I was still an employee.” Id. at 9. Bistro, in its January 14, 2013

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communication with the Nevada Department of Employment, wrote, “Since Ms. Gooch did not

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return to work . . . the company considers her to have quit her employment. At no time did

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management ever fire Ms. Gooch.” ECF No. 43-2 at 35. Gooch was denied unemployment

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benefits on the basis that she “voluntarily quit.” Id. at 36.

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G. Gooch files charge of discrimination with EEOC.
Gooch filed a charge of discrimination with the EEOC and NERC on December 3, 2012.

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The charge states,

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On or about 10/01/2011, I was hired by the Respondent as a Cashier.
My present position is a Cashier.

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During the course of my employment, I have been subject to
disparate treatment. I was suspended by Tom Impastato (Manager)
for weeks for a minor infraction (talking on the phone while at
work). Tom was informed by upper management to terminate
African American employees. . . .

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I believe that I was discriminated against due to my race, African
American, and retaliated against, in violation of Title VII . . . .

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ECF No. 43-8 at 11–12. Gooch’s charge does not complain that she was wrongfully fired.

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Gooch was issued a right to sue letter on October 1, 2014. ECF No. 43-10 at 9.

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II.

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ANALYSIS
Summary judgment shall be granted when “there is no genuine dispute as to any material

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

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moving party “has the initial burden of showing the absence of a genuine issue of material fact.”

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Pioneer Chlor Alkali Co., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 863 F. Supp. 1237,

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1239 (D. Nev. 1994) (citations omitted). “A material issue of fact is one that affects the outcome

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of the litigation and requires a trial to resolve the differing version of events.” Id. (citations

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omitted). Once the moving party satisfies its initial burden, the burden shifts to the non-moving

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party to set forth specific facts showing that there is a genuine issue for trial. Id. (citations

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omitted). The non-moving party “may not rely on denials in the pleadings but must produce

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

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exists.” Bhan v. NME Hosp., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

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A. Discrimination against Gooch
For Gooch to sustain her claim for discrimination based upon race, she must offer either

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direct or indirect evidence of discrimination. Direct evidence is “evidence of conduct or

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statements by persons involved in the decision-making process that may be viewed as directly

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reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that

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that attitude was more likely than not a motivating factor in the employer’s decision.” Enlow v.

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Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 2004) (internal citations omitted).

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Impastato avers that Pineda, Gause, and Jones instructed him in meetings on June 5 and

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June 12, 2012 to fire the black staff. ECF No. 48-7 at 4. When he refused, he was fired on June

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13. Impastato and other witnesses describe Gause as expressing this sentiment, as well as

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slightly less blatant racism, throughout his tenure at Bistro, which started in March 2012. See

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ECF Nos. 48-7 at 3; 48-5 at 2; 48-4 at 5. Impastato asserts that both Pineda and Jones were at

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least complicit in this racism, each individually chastising him for failing to fire or drive out

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black employees. ECF No. 48-7 at 4–5. This evidence would permit a reasonable fact-finder to

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conclude that discriminatory animus was more likely than not a factor in Gooch’s two-week-long

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suspension, subsequent rash of write-ups, and Bistro’s failure to put her back on the schedule

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after going on medical leave in September 2012.

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Bistro responds that Shafer’s conversation with Gause on June 22, 2012 “put to rest” the
discrimination problem and therefore limits the window of evidence of direct discrimination.

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ECF No. 43 at 10. While this is possible, there remains a genuine issue of material fact as to

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whether it truly was “put to rest” or Bistro continued to be a racially discriminatory environment.

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The unusual number of write-ups issued to Gooch in the months of July and August are

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sufficient evidence to raise this question.

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Bistro also states that it never fired Gooch, so there can be no claim for either

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discriminatory or retaliatory termination. But the evidence could be interpreted to show that

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Gooch was constructively fired. Gooch’s employment at Bistro relied on being continuously

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assigned to the schedule. She states that Bistro refused her attempts to be placed back on the

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schedule several weeks after she began medical leave. ECF No. 48-10 at 9. The evidence does

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not conclusively disprove this. The denial of Gooch’s unemployment claim, which Bistro cites

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as external evidence that Gooch voluntarily quit, most likely occurred in large part because

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Bistro asserted that she voluntarily quit. See ECF No. 43-2 at 34–36.

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Bistro lastly argues that, even if Gooch was constructively fired, she cannot maintain a

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claim on that basis because she did not exhaust her administrative remedies with EEOC or

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NERC. See ECF No. 43 at 17 (citing B.K.B. v. Maui Police Dep’t., 276 F.3d 1091, 1099 (9th Cir.

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2002)). Federal courts only have jurisdiction over claims actually investigated by EEOC “or

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which can reasonably be expected to grow out of the charge of discrimination.” B.K.B., 276 F.3d

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at 1099. “[T]he court should consider plaintiff’s civil claims to be reasonably related to

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allegations in the charge to the extent that those claims are consistent with the plaintiff's original

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theory of the case.” Id.

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This is a close question, as Gooch’s EEOC charge of discrimination, filed on December

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3, 2012, lists the dates of discrimination as May 16 to July 5, 2012, and does not assert that she

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was wrongfully fired. ECF No. 43-8 at 11–12. The alleged firing was arguably “reasonably

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related” to her discrimination charges, in that Gooch portrays the firing as the culmination of a

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race-based campaign of discrimination. On the other hand, Bistro is probably correct to say that,

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based on the wording in the charge, the EEOC could not be reasonably be expected to investigate

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a September–October firing. Gooch’s defense that this serious discrepancy is a “minute detail,”

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or that it was a transcription error caused by NERC staff completing the charge form, is

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unpersuasive. ECF No. 48 at 20. I nevertheless hold that Gooch did not fail to exhaust her

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administrative remedies because the state of her employment relationship with Bistro in the

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months following her medical leave is a matter of factual dispute. The first definitive evidence

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that Gooch considered herself to have been constructively fired is her application for

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unemployment insurance, which she filed in January 2013. It is arguable, then, that her claim for

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wrongful termination had not fully ripened by December 3, 2012, when she filed her charge of

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discrimination with the EEOC.

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Bistro has not carried its burden of showing no genuine issue of material fact as to

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whether the discriminatory animus displayed in the June manager meetings was a but-for cause

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of Gooch’s suspension, her unusual rash of write-ups, or her constructive termination. I

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therefore deny Bistro’s motions for summary judgment on Gooch’s discrimination claim.

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B. Retaliation against Gooch and Impastato
A Title VII retaliation claim requires the plaintiff to show he engaged in a protected

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activity and his employer took an adverse employment action against him because of that

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activity. Protected activity includes employee opposition to employment discrimination. 42

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U.S.C. § 2000e-3(a); Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525

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(2013). For retaliation claims, the employee must show that that adverse action would not have

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occurred “but-for” the protected activity. Nassar, 133 S.Ct. at 2534.

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“A plaintiff may prove that retaliation was a but-for cause of an adverse employment

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action by showing the employer’s explanation for the adverse actions was pretextual, such as by

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demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s

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proffered legitimate, nonretaliatory reasons for its action.” Cummings v. Valley Health Sys., LLC,

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No. 13-cv-00479-APG-GWF, 2016 WL 590455, at *4 (D. Nev. Feb. 11, 2016) (internal citation

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omitted). “Additionally, causation may be inferred from proximity in time between the protected

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action and the allegedly retaliatory employment decision.” Id. (citation omitted).

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Bistro does not contest that both Gooch and Impastato complained about employment

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discrimination at Bistro. Impastato was clearly fired, which is an adverse employment action,

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and there remains a genuine fact question whether Gooch was fired. The only remaining issue is

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whether Bistro would have fired Gooch and Impastato but for their opposition to the alleged

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discrimination.

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As to Impastato, there is clearly a genuine factual issue on that question. He was fired

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the day after the second of two meetings where he was instructed to fire or push out black staff

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but refused to. He was also told, in response to asking why he was fired, “Next time you are told

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to do something, do it.” ECF No. 48-7 at 5. Even if Impastato had other deficiencies and his

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refusal to condone discriminatory practices was the last straw, it would nevertheless be a but-for

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cause. Bistro’s argument that Impastato’s incompetence had reached a crisis point is undermined

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by a May email from outside consultant Bob Johnson, who worked extensively with Impastato,

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stating that Impastato was “doing extremely well.” ECF No. 48 at 9.

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As to Gooch, her report to Martin of discriminatory conduct, as well as her insistence that

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communication on the issue go through her lawyer, was followed by an uncharacteristically

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dense series of write-ups, culminating three months later with her alleged constructive

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termination. The timing raises an inference that creates at least a genuine issue of fact as to

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whether this sequence of events was coincidental or an illegal retaliation.

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Because the evidence raises a genuine dispute as to whether both Gooch and Impastato

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were retaliated against for protected activity, I deny Bistro’s motion for summary judgment on

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Gooch’s and Impastato’s retaliation claims.

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C. Unlawful deprivation of employment—Gooch
A claim for unlawful discrimination under Nevada Revised Statutes § 613.330 is

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“assessed under the applicable federal anti-discrimination law.” Coburn v. PN II, Inc., 372 F.

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App’x 796, 798 (9th Cir. 2010) (citing Apeceche v. White Pine Cty., 615 P.2d 975, 977–78

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(Nev.1980)). Because the analysis of the state cause of action mirrors the Title VII analysis, I

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deny Bistro’s motion for summary judgment on Gooch’s Nevada unlawful discrimination claim.

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D. Tortious discharge—Impastato

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Federal Rule of Civil Procedure 56(a) requires a party moving for summary judgment to

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“identify[] each claim or defense . . . on which summary judgment is sought.” Courts need not

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consider issues or arguments raised for the first time in a reply brief. See, e.g., Munoz v.

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InGenesis STGI Partners, LLC, 182 F. Supp. 3d 1097, 1112 (S.D. Cal. 2016). Because Bistro

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did not address the tortious discharge claim in its motion for summary judgment, I deny the

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motion as to Impastato’s tortious discharge claim.

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III.

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CONCLUSION
IT IS THEREFORE ORDERED that Bistro’s motion for summary judgment (ECF No.

43) is DENIED.
DATED this 31st day of March, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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