Kraja v. Bellagio, LLC et al

Filing 132

ORDER Granting 101 Motion for Summary Judgment. Signed by Judge Andrew P. Gordon on 4/27/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANDI KRAJA,

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Case No. 2:15-cv-01983-APG-NJK
Plaintiff,

v.
BELLAGIO, LLC, a Nevada Corporation;
VINCENT ROTOLO, an individual; ROE
Business Organizations I-X; and DOE
INDIVIDUALS I-X, Inclusive,

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
(ECF NO. 101)

Defendants.

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Plaintiff Andi Kraja alleges that he was harassed and passed up for a food server job at the

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Bellagio Hotel and Casino because he is Albanian. He brought various claims against the

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Bellagio and his supervisor. I previously granted summary judgment on Kraja’s Title VII claims.

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Now I address his remaining claims of intentional infliction of emotional distress (“IIED”) and

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intentional interference with a prospective business relationship.

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I dismissed Kraja’s IIED and interference claims once before because they were not

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adequately supported;1 discovery and an amended complaint have not changed that. The IIED

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claim requires Kraja to show that the defendants acted “beyond the bounds of human decency.”

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But Kraja points only to an incident where a sign labeled “Fat Andy” (presumably a reference to

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him) was left in the restaurant where he worked. As a matter of law, this incident falls short of an

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IIED claim.

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The intentional interference claim requires Kraja to show that the defendants intentionally

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interfered with his prospective business relationship. On this point, Kraja alleges that a different

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hotel denied him a job because of something Kraja’s boss at the Bellagio had said. No reasonable

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ECF No. 64.

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jury could rely on this lone piece of evidence to find that the defendants intentionally interfered

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with Kraja’s ability to get a different job.
Because no triable issue of fact remains for the jury, I grant summary judgment on these

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claims in the defendants’ favor.
I.

BACKGROUND
In 2011, Kraja began serving food at Bellagio Hotel and Casino’s Circo restaurant.2 He

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alleges that over the following several years he was repeatedly bullied and harassed by his

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supervisor, Vincent Rotolo. I discussed those allegations at length in my prior orders3 so I will

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not repeat them here. Only two incidents matter for purposes of Kraja’s remaining IIED and

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intentional interference claims: (1) in 2013, Kraja was denied a job at another hotel because of

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something Rotolo allegedly said, and (2) in 2014, defendants refused to take down a sign labeled

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“Fat Andy” that someone had put up in Circo’s serving area.

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A. Kraja is rejected for a job at another hotel.

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In early 2013, while still at the Bellagio, Kraja applied to work at Caesars Palace Hotel

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and Casino.4 After interviewing, Kraja received a vague email from Caesars rejecting him and

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suggesting that his manager at the Bellagio might have something to do with it: “[a]fter speaking

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to your manager Vincent [Rotolo] we won’t be able to continue with your application.”5 Kraja

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admits that he has no evidence of what Rotolo might have said to Caesars: “Q: Do you know

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what [Caesars] heard from [your manager]? Plaintiff: I have no idea. Q: You have no idea. Do

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you know anything else about this sentence that he says, ‘We won’t be able to continue with

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your application?’ Plaintiff: I have no idea.”6 Kraja’s manager testified that he never told

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ECF No. 82.

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ECF Nos. 64, 125. Kraja originally based his IIED claim on additional events, but I
rejected those theories in my prior order. ECF No. 64.

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ECF No. 82-3.

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Id.

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ECF No. 101-2 at 9.

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Caesars anything negative about Kraja.7 There is no other evidence suggesting that anyone at

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Bellagio ever spoke to Caesars or did anything else to interfere with Kraja’s job prospects there.

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B. The defendants fail to take down a sign labeled “Fat Andy” in the Circo.

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About a year later, Kraja alleges that someone put up a sign in the Circo’s serving area

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with the words “Fat Andy” written on it.8 Kraja testified that he asked his supervisors to take the

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sign down multiple times, but they failed to do so.9 Kraja adds that he was embarrassed by the

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sign, and that his coworkers teased him about it.10

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II.

ANALYSIS
A. Summary Judgment
Summary judgment is appropriate when the pleadings, discovery responses, and other

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offered evidence show “there is no genuine issue as to any material fact and that the movant is

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entitled to judgment as a matter of law.”11 When considering summary judgment, I view all facts

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and draw all inferences in the light most favorable to the non-moving party.12

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If the moving party demonstrates the absence of any genuine issue of material fact, the

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burden shifts to the non-moving party to “set forth specific facts showing that there is a genuine

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issue for trial.”13 The non-moving party “must do more than simply show that there is some

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metaphysical doubt as to the material facts.”14 He “must produce specific evidence, through

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ECF No. 101-3 at 4-5.

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Id. at 40-45.

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ECF No. 105-2 at 3-4.

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Id.

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Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citing Fed. R. Civ. P. 56(c)).

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Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celotex, 477 U.S. at 323.

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Bank of Am. v. Orr, 285 F.3d 764, 783 (9th Cir. 2002) (internal citation omitted).

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affidavits or admissible discovery material, to show” a sufficient evidentiary basis on which a

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jury could find in his favor.15

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A. Kraja’s intentional interference claim
To state a claim for intentional interference with prospective economic advantage, a

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plaintiff must prove: “(1) a prospective contractual relationship between the plaintiff and a third

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party, (2) the defendant knew of the prospective relationship, (3) intent to harm the plaintiff by

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preventing the relationship, (4) the absence of privilege or justification by the defendant, and (5)

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actual harm to the plaintiff as a result of the defendant’s conduct.”16

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Kraja provides some evidence that he had a prospective relationship with Caesars, that

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Rotolo knew of that relationship when Caesars called him for a reference, and that Rotolo harmed

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this relationship given that Caesars told Kraja he wasn’t getting the job because of something

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Rotolo said. But there is little evidence from which a jury could conclude that Kraja said

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anything unprivileged and unjustified to Caesars or that Rotolo intended to prevent Kraja from

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getting the Caesars job. Kraja has no evidence about what Rotolo actually said when Caesars

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contacted him. Indeed, the only direct evidence is testimony from Rotolo, who says he never

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spoke with Caesars, and a Caesars representative, who says no one remembers talking to Rotolo.

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Kraja’s argues that because Rotolo had been rude to him in the past, and because an email

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indicates that Caesars had spoken to Rotolo, a jury could conclude that Rotolo said something

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unjustified to Caesars and intended to prevent Kraja from getting the job. But this is too big of a

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leap for any reasonable jury to take. Indeed, I previously dismissed this claim on the same

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grounds, and Kraja offers no new evidence to change my mind.17 No reasonable jury could find

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Bhan v. NME Hosps. Inc., 929 F.2d 1404, 1409 (9th Cir. 1991); Anderson, 477 U.S. at

248–49.
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In re Amerco Derivative Litig., 252 P.3d 681, 702 (Nev. 2011) (quoting Wichinsky v.
Mosa, 847 P.2d 727, 729–30 (Nev. 1993)).
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ECF No. 64 at 14 (“Kraja alleges that Rotolo tortuously interfered with his application
to work at Caesars because Kraja’s application was rejected with a note that read, ‘After speaking
with your Manager Vincent (Rotolo) we won’t be able to continue your application.’ . . . Kraja . .
. concedes that he ‘has been unable to discover exactly what’ Rotolo told Caesars. . . . Because
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that Rotolo made unjustified remarks intended to prevent Kraja from getting a job based solely on

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the fact that Rotolo had been rude to Kraja in the past. Rotolo is just as likely to have told

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Caesars a justified statement (such as that Kraja had a write-up for an incident with his coworker)

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than an unjustified one. Kraja would be asking a jury to find that Rotolo lied or made some other

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unjustified statement simply because Rotolo was rude to him. That is not enough evidence for a

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reasonable jury to do anything more than speculate.18 I must therefore grant summary judgment

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on this claim.

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B. Kraja’s IIED claim
An IIED claim requires: “(1) extreme and outrageous conduct with either the intention of,

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or reckless disregard for, causing emotional distress, (2) the plaintiff’s having suffered severe or

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extreme emotional distress, and (3) actual or proximate causation.”19 Defendants confine their

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challenge to the first prong of this test: whether the defendants’ failure to take down the “Fat

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Andy” sign is “extreme and outrageous.”20

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“[E]xtreme and outrageous conduct is that which is outside all possible bounds of decency

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and is regarded as utterly intolerable in a civilized community.”21 “Liability . . . will not extend

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to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’”22

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Screaming vulgar insults at employees is generally not enough;23 even threats and demeaning

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curses are often not enough.24

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Kraja’s complaint does not plausibly allege that Rotolo intended to harm Kraja or was unjustified
in not recommending Kraja for the position, I dismiss this claim.”).
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Also, if Rotolo disliked Kraja as much as Kraja contends, one might expect that Rotolo
would prefer that Kraja be hired by another hotel.
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Dillard Dep’t Stores, Inc. v. Beckwith, 989 P.2d 882, 886 (Nev. 1999).

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Kraja concedes that the other facts he alleged to support his IIED claim are insufficient.

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Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998) (per curiam); see also Star
v. Rabelto, 625 P.2d 90, 91-92 (Nev. 1981).
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Candelore v. Clark Cty. Sanitation Dist., 975 F.2d 588, 591 (9th Cir.1992) (citations

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omitted).

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See, e.g., Schneider v. TRW, Inc., 938 F.2d 986, 992 (9th Cir. 1991).

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See, e.g., King v. Burns, 588 F. Supp. 1152, 1154-57 (D. Colo. 1984).

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I must view the evidence in Kraja’s favor, and I thus credit his testimony that the

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defendants were told about the sign and failed to remove it for several months. The thrust of

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Kraja’s argument is that either the sign itself was extreme and outrageous, or the defendants’

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failure to take it down for several months was.25 But while leaving the sign up was offensive and

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distasteful, no reasonable juror could find it “extreme and outrageous.” Kraja fails to point to any

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analogous cases where courts have found similar (or even remotely similar) conduct to be

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“extreme and outrageous.” All of the cases Kraja relies upon addressed far worse conduct.26 I

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thus grant summary judgment in favor of the defendants on this claim.

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III.

CONCLUSION
IT IS THEREFORE ORDERED that the defendants’ motion for summary judgment

(ECF No. 101) is GRANTED.
DATED this 27th day of April, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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The defendants contend that if the sign is not extreme and outrageous, their failure to
take it down cannot be either. I disagree. There is a meaningful difference between someone
failing for a day to take down an offensive sign, and someone failing for months—after repeated
complaints—to take down the same sign. That said, even this failure is not enough to state a
claim for IIED in Nevada.
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See, e.g., Burke v. State Dept. of Children & Families, 2010 WL 797286 (Conn. Super.
Ct. Feb. 2, 2010) (denying motion to dismiss IIED claim where the defendant shoved the plaintiff,
insulted her mother who had recently suffered a massive stroke, filed false charges against her,
and then kicked her).

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