Rivas v. Caesars Enterprise Services, LLC

1 CHRISTIAN GABROY, ESQ. GABROY LAW OFFICES 2 THE DISTRICT AT GREEN VALLEY RANCH 170 S. GREEN VALLEY PARKWAY, SUITE 280 3 HENDERSON, NV 89102 TELEPHONE: (702) 259-7777 4 FACSIMILE: (702) 259-7704 5 ALAN J. REINACH, ESQ., PRO HAC VICE CHURCH STATE COUNCIL 6 2686 TOWNSGATE RD WESTLAKE VILLAGE, CA 91361 7 TELEPHONE: (805) 413-7396 FACSIMILE: (805) 497-3828 [8] ATTORNEYS FOR PLAINTIFF DANIELA RIVAS [9] 10 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA [11] DANIELA RIVAS, Case No.: 2:19-CV-01637-KJD-DJA [12] Plaintiff, 13 v. JOINT PRETRIAL ORDER 14 CAESARS ENTERPRISE SERVICES, LLC, and DESERT PALACE, LLC [15] Defendants. [17] After pretrial proceedings in this case, [18] IT IS SO ORDERED: 19 I. STATEMENT OF THE NATURE OF THE ACTION [20] AND THE PARTIES’ CONTENTIONS [21] Plaintiff alleges two causes of action against Defendant Desert Palace, LLC [22] (“Defendant” or “Caesars Palace”)1: [23] 1. Failure to accommodate her religious observance of Sabbath, in violation of [24] Title VII of the Civil Rights Act of 1964 and [25] 2. Religious Discrimination (disparate treatment) in Violation of Title VII of [26] 27 1 Plaintiff originally brought this lawsuit against Caesars Enterprise Services, LLC (“CES”), and later amended her complaint to name Desert Palace, LLC as an additional defendant. See ECF No. 45. Concluding that CES cannot be 28 liable for employment discrimination because it was not Plaintiff’s employer, the Court held that the claims against CES 1 the Civil Rights Act of 1964. 2 (a) Plaintiff’s Contentions: 3 In its ruling on summary judgment, this Court already granted Plaintiff partial 4 summary judgment with respect to her prima facie case that Caesars Palace failed to provide 5 her a religious accommodation, i.e., Ms. Rivas has established she has 1) a sincerely held 6 religious belief in observing the Sabbath as a day of rest and worship that conflicted with an 7 employment duty; 2) she informed her employer of the belief and conflict; and 3) she was 8 terminated for accumulating too many refusals due to her religious observance of Sabbath. 9 Accordingly, Plaintiff contends that the facts supporting her prima facie case are not in 10 contention. [ECF 65, at 8:6-20.]. Nothing in this JPTO should contradict such findings by 11 this Court. 12 The Court also made a fact finding that “accommodation could be made without 13 impact on the seniority system…” and, therefore, that the seniority system does not prevent 14 an accommodation. [ECF 65, at 10:7-8.] 15 The remaining issue to be submitted to the jury is whether providing Ms. Rivas a 16 religious accommodation “would pose an undue hardship on its schedulers and other Steady 17 Extras”. [ECF 65, at 10:9-10.] Plaintiff contends that Defendant bears the burden to prove 18 undue hardship as an affirmative defense by introducing non-speculative evidence of actual 19 hardships. Plaintiff contends it is impossible for Defendant to sustain its burden to prove 20 undue hardship in light of the availability of temporary Guest Room Attendants who were 21 used to fill in where needed, as well as the minimal effort it would take to just call another 22 person. It bears repeating that in light of the Court’s finding that the seniority system does 23 not prevent an accommodation, Defendant cannot contend that any accommodation would 24 be an undue hardship because it would violate its collective bargaining agreement 25 Also at summary judgment, the Court ruled that Ms. Rivas established the first three 26 elements of her claim of religious discrimination: 1) that she is a member of a protected 27 class; 2) that she was qualified for the position; and 3) that there was an adverse action. 28 Plaintiff contends the evidence supports her claim that Defendant’s policies and practices 1 operated in a discriminatory manner and that Defendant’s actions give rise to an inference of discrimination. Ms. Rivas also contends that Caesars Palace cannot produce evidence of 2 a legitimate non-discriminatory reason, because the only reason Caesars Palace has for terminating Ms. Rivas is because of her religious observance of the Sabbath. [4] 5 Ms. Rivas seeks all available relief under our law including but not limited to: lost 6 wages, emotional distress damages, punitive damages, injunctive relief, declaratory relief, 7 costs and attorneys’ fees. 8 Further, nothing in this JPTO is to contradict any of the findings in this Court’s Order 9 regarding summary judgment. 10 (b) Defendant’s Contentions: 11 Plaintiff’s cause of action for failure to accommodate religion fails because any 12 accommodation would result in an undue hardship on Caesars Palace given the language of 13 the applicable collective bargaining agreement, which among other things, specifically 14 requires Caesars Palace to offer shifts to Plaintiff and the other Steady Extra Guest Room 15 Attendants in order of seniority. 16 Plaintiff’s cause of action for religious discrimination under a traditional disparate 17 treatment theory fails because similarly situated individuals outside her protected class were 18 not treated more favorably than Plaintiff. That is, Caesars Palace applies the 25% refusal 19 standard to Steady Extra employees regardless of their religion. Moreover, the other 20 circumstances surrounding Plaintiff’s termination do not give rise to an inference of 21 discrimination. The ability to work any day, any shift was an essential function of the 22 position at issue. Plaintiff could not satisfy that essential function, which led Caesars Palace 23 to take the underlying employment action. Plaintiff’s failure to fulfill an essential function 24 of her position is a legitimate, nondiscriminatory reason for the termination. [28] 1 II. STATEMENT OF JURISDICTION [2] This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 , 1337, and 1343 (Federal [3] Question) as the two (2) causes of action arise under Title VII of the Civil Rights Act of [4] 1964, as amended, 42 U.S.C. § 2000e et. seq. [5] III. [6] THE FOLLOWING FACTS ARE ADMITTED 7 BY THE PARTIES AND REQUIRE NO PROOF: 8 1. At Caesars Palace, hotel rooms are serviced by employees known as Guest 9 Room Attendants (“GRAs”). 10 2. Caesars Palace employs many GRAs on a regular, full-time basis. It also 11 employs a secondary group of GRAs that are hired on a “Steady Extra” basis. There is a 12 third group of GRAs that are temporary (“Temporary GRA”). [13] 3. Steady Extra employees are not assigned a regular work schedule, but rather, [14] are assigned shifts on as as-needed basis. [15] 4. A Steady Extra is “a temporary or part-time employee . . . who is carried on [16] the Employer’s regular payroll and who may be called by the Employer to perform work in [17] addition to, or as vacation or temporary absence replacement for regular employees.” [18] 19 5. If a Steady Extra does not answer the phone when called, or refuses to work 20 an offered shift, then the next Steady Extra in the rotation is contacted until the shift is filled. 21 6. Steady Extras are permitted to refuse up to 25% of the shifts offered to them 22 in a 60-day period. 23 7. Daniela Rivas is a member of the Seventh-day Adventist Church2. [24] 8. Seventh-day Adventists observe the Sabbath as a day of rest and worship from [25] sundown Friday to sundown Saturday. [27] 2 Plaintiff contends that in this Court’s Order, ECF #65, this Court ruled and found that “Rivas has established 28 that she has a sincerely held religious belief.” Defendants object to such quoted language in this Section and Plaintiff 1 9. On September 29, 2017, Plaintiff began working for Caesars Palace as a 2 Temporary GRA. [3] 10. After attending training Monday through Friday, Plaintiff worked as a [4] Temporary GRA for several months until offered the opportunity to become a Steady Extra [5] employee. [6] 11. Plaintiff began work as a “Steady Extra” GRA on February 5, 2018. [7] 12. Rivas submitted a letter from her pastor dated March 16, 2018, indicating that [8] she is a Seventh-day Adventist and is unable to perform work duties during Sabbath hours. [9] 10 13. On June 13, 2018, Caesars Palace issued Plaintiff a termination notice, which 11 she did not sign and such termination notice states “refuse to sign D.R.” [12] 14. In September 2018, Rivas filed a Charge of Discrimination with the U.S. Equal [13] Employment Opportunity Commission (“EEOC”). [14] 15. Rivas received a right-to-sue letter from the EEOC on August 19, 2019. [15] IV. 16 THE FOLLOWING FACTS, THOUGH NOT ADMITTED, WILL NOT BE CONTESTED AT TRIAL BY EVIDENCE TO THE CONTRARY: [17] 18 None at this time. V. 19 THE FOLLOWING ARE THE ISSUES OF FACT TO BE TRIED AND 20 DETERMINED AT TRIAL: 1. Whether Caesars Palace applies the 25% threshold to all Steady Extra [21] employees regardless of their status. [22] 2. Whether Plaintiff was lawfully terminated. [23] 3. Whether Defendant’s actions and/or omissions result in an inference of [24] discrimination: [25] 3a. Whether, as Rivas contends, she informed Marzola at the time of her [26] hiring that she does not work on Sabbath. [27] 3b. Whether Marzola hired Rivas knowing she would not work on Sabbath, [28] 1 only to require her to work on Friday evenings and Saturdays thereafter. 2 3c. Whether Marzola delayed submitting to Human Resources the letter 3 from Rivas’ pastor, supporting her request for religious accommodation. 4 4. The negative impacts that would have been imposed on Caesars Palace, if any, 5 if Plaintiff’s requested accommodation was granted. 6 5. The amount of damages, wages, and benefits, if any, that Plaintiff suffered 7 since her termination from Caesars Palace, taking into account her mitigation efforts. 8 6. Whether Plaintiff suffered emotional distress as a result of Caesars Palace acts 9 and/or omissions. [10] 7. Whether Plaintiff has a sincerely held3 religious belief. [11] VI. [12] THE FOLLOWING ARE THE ISSUES OF LAW TO BE TRIED AND 13 DETERMINED UPON TRIAL: 14 In its summary judgment ruling, the Court granted Plaintiff partial summary [15] judgment on her prima facie case of failure to accommodate, and further found that she was [16] entitled to partial summary judgment on the first three elements of her prima facie case of [17] 18 disparate treatment. Thus, only the following legal issues remain contested: 19 1. Whether Defendant has met its burden to prove by lawful evidence that it [20] would have suffered undue hardship on its schedulers and other Steady Extras as a result of [21] granting Rivas a religious accommodation. [22] 23 2. Whether Rivas has proved the fourth element of her prima facie case of 24 disparate treatment – that similarly situated individuals outside Plaintiff’s protected class [26] 27 3 As stated in n.2, Plaintiff contends that in this Court’s Order, ECF #65, this Court ruled and found that “Rivas has established that she has a sincerely held religious belief.” Defendants object to such quoted language in this Section 28 and Plaintiff thus must include this “established” fact later in this JPTO subject to any potential motion practice for 1 were treated more favorably than Plaintiff or other circumstances surrounding the adverse [2] employment action give rise to an inference of discrimination. [3] 2a. If so, whether Defendant has a legitimate non-discriminatory reason for [4] 5 terminating Rivas, or whether such reason was merely pretext for discrimination. [6] 3. Whether Plaintiff is entitled to damages, attorneys fees, and/or costs as [7] allowed by law. [8] VII. [9] STATEMENTS OF ANY OTHER ISSUES OF 10 FACT OR LAW DEEMED TO BE MATERIAL 11 (a) Plaintiff contends the following are also material facts: 12 The following facts were already found by this Court in its Order on the parties’ 13 motions for summary judgment. Based on the Court’s findings, it is Plaintiff’s contention 14 that those facts are not at issue in this case including but not limited to: Plaintiff holds a sincere religious belief. When Rivas became a Steady Extra, she [15] was offered shifts in the rotation provided by the CBA. [ECF 65, at 2:13.] Some of those [16] offerings were for shifts on the Sabbath. [Id.] Rivas told her supervisors that she could not [17] work on Saturdays and procured a note from her pastor indicating as much. [Id., at 2:14.] [18] On June 1, 2018, Rivas was suspended pending investigation. [Id. at 2:27.] Defendant [19] employed over 100 Steady Extras. After calling the Steady Extras, Caesars Palace would [20] call the Temporary GRAs if needed. [28] 1 (b) Defendant contends the following are also material facts: 2 Steady Extra employees are a function of and governed by the collective bargaining 3 agreement (“CBA”) in effect between Caesars Palace and the union which represents 4 Caesars Palace GRAs (the Culinary Union). The CBA states, at Section 10.07, “Except as 5 provided in Section 20.03, and provided they are otherwise qualified to perform 6 satisfactorily the work to be done, Steady Extra Board employees shall be offered a choice 7 of all steady extra work in the order of their seniority amongst themselves before extra 8 employees are hired.” Under the CBA, when a scheduling gap arises necessitating the help 9 of a Steady Extra employee, Caesars Palace is required to contact Steady Extras in the order 10 of seniority, so that the Steady Extras with the most seniority get called first. Also under the 11 CBA, Steady Extra employee may be terminated without recourse if the employee fails, 12 refuses, or is unavailable to work more than twenty-five percent (25%) of the shifts made 13 available to him/her in any sixty (60) day period (the “25% Threshold”). 14 On September 20, 2017, Plaintiff completed a Job Fair Application in which she 15 answered “yes” to the following question: “Are you available to work any day / all shifts?” 16 In February 2018, Plaintiff was classified by Caesars Palace as a Steady Extra GRA, 17 meaning she joined the list of Steady Extra employees that was created pursuant to and 18 governed by the CBA. Between September 2017 and March 2018, Plaintiff declined several 19 work shifts that were offered to her and which would have occurred on the Sabbath. Between 20 September 2017 and March 2018, Plaintiff passed on other work shifts that did not fall on 21 the Sabbath. Between September 2017 and March 2018, Plaintiff worked three (3) work 22 shifts as a Steady Extra which fell on the Sabbath. 23 At Caesars Palace, Friday evenings through Sunday mornings tend to be the busiest 24 time for the casino-hotel. Guest Room Attendants consider Friday evening and Saturday 25 shifts to be the least desirable shifts to work. 26 Plaintiff’s supervisor, Neide Marzola, sent the letter dated March 16, 2018, from 27 Plaintiff’s pastor to Human Resources for processing. On April 25, 2018, Plaintiff met with 28 Caesars Palace “Absence Integrity Advisor” Nidia Fulcher. Ms. Fulcher was investigating 1 Plaintiff’s request that she be excused from working shifts that occurred on the Sabbath. 2 Ms. Fulcher explained to Plaintiff that she was only permitted to refuse 25% of her shifts, 3 and that she was getting close to that limit. Caesars Palace made the determination that it 4 was unable to grant Plaintiff the requested accommodation. 5 Plaintiff’s refusals of shifts caused her to exceed the 25% Threshold. On June 1, 6 2018, Ms. Marzola issued Plaintiff a suspension pending investigation due to Plaintiff 7 having exceeded the 25% Threshold. On June 4, 2018, Plaintiff met for a second time 8 with Ms. Fulcher. On June 13, 2018, Caesars Palace issued Plaintiff a termination notice. 9 The stated basis of Plaintiff’s termination was that Plaintiff had exceeded the 25% 10 Thresho(cl)d. Plaintiff contends the following are also issues for trial: 11 1. Whether Plaintiff is entitled to punitive damages. 12 2. Whether Plaintiff is entitled to declaratory relief in the form of a declaration 13 that Plaintiff Rivas was terminated for unlawful discriminatory reasons. 14 3. Whether Plaintiff is entitled to injunctive relief ordering Defendant to reinstate 15 Plaintiff Daniela Rivas to her former position, with all the accrued benefits to which she 16 would have become entitled. 17 4. Whether Plaintiff is entitled to injunctive relief to court ordered training for 18 Defendant on prevention of discrimination and for prohibition on engaging in future 19 discrimination. 20 5. Whether Plaintiff is a “prevailing party” entitled to costs and attorneys’ fees. 21 VIII. LIST OF EXHIBITS TO BE OFFERED INTO EVIDENCE [22] (a) The following Exhibits are stipulated into evidence in this case and may [23] be so marked by the Clerk: [24] 25 Exh Joint Exhibit Status No. Description [26] EEO Policy 27 1. Stipulated (CP_0005-6) [1] Exh Joint Exhibit Status 2 No. Description [3] Pastor Carballo Letter, March 16, 2018 2. Stipulated [4] (CP_0015) [5] Rivas, Daniela Termination 6 3. Stipulated (CP_0026) [7] Performance Documentation 8 4. Stipulated (CP_0028) [9] 10 Accommodation Case Action Log 5. Stipulated (CP_0051) [11] 12 Rivas, Daniela Out of Work Dates, 6. March 5 to May 6, 2018. Stipulated [13] (CP_0054-55) [14] Employee Basic Data [15] 7. Stipulated (CP_0062) [16] 17 Job Description 8. Stipulated 18 (CP_0101-102) 19 Daniela Rivas Interview 9. Stipulated 20 (CP_0057) [21] Email from N. Marzola, dated April 23, 10. Stipulated 22 2018 (CP_0058–CP_0059) 23 May 15-16, 2018 email between Neide 24 11. Marzola and Nidia Fulcher Stipulated (CP_0350-351) [25] 26 Religious accommodation denial. May 12. 22, 2018 Stipulated [27] (CP_0281) [1] Exh Joint Exhibit Status 2 No. Description [3] SPI Case Action Log 6/1/2018 13. Stipulated 4 (CP_0072) 5 Nidia Fulcher Due Process Notes, June 6 14. 4, 2018 Stipulated (CP_0082-84) [7] 8 HR Interview with N. Marzola, dated 15. Stipulated June 11, 2018 (CP_0077) [9] 10 June 12, 2018 email from Sabrina Beckman to Neide Marzola, regarding 11 16. termination Stipulated 12 (CP_0354) [13] Rivas, Daniela Refusals, March 25 to 14 17. May 27, 2018 Stipulated (CP_0086-87) [16] (b) As to the following exhibits, the party against whom the same will be 17 offered objects to their admission on the grounds stated: (1) Plaintiff’s Exhibits with Defendant’s Objections: [19] Exh Plaintiff’s Exhibit Defendant’s Objections 20 No. Description 21 Candidate Disposition Summary Relevance, hearsay, lacks 18. 22 (CP_0097) authentication, lacks foundation [23] Email chain between Admira Muhic, 24 Neide Marzola and Nidia Fulcher April Relevance, hearsay, lacks 19. 23-May 5, 2018. authentication, lacks foundation [25] (CP_0224-228) [1] Exh Plaintiff’s Exhibit Defendant’s Objections 2 No. Description [3] Candidate Disposition Summary/Hire 4 20. Slip Relevance, hearsay, lacks authentication, lacks foundation 5 (CP_0248) 6 Email chain between Kaitlin Riggio, 7 21. S Na ib dr iain Fa u B lce hc ek rm Ja un n, e N 7e -9id , e 2 0M 1a 8r zola, & R aue tl he ev na tn icc ae t, i h onea , r ls aa cy k, s l fa oc uk ns dation [8] (CP_0249-250) [9] Email chain between Neide Marzola 10 22. and Nidia Fulcher April 19-23, 2018. Relevance, hearsay, lacks authentication, lacks foundation 11 (CP_0290-292) [12] Email chain between Neide Marzola 13 23. and Nidia Fulcher May 4-5, 2018. Relevance, hearsay, lacks authentication, lacks foundation 14 (CP_0299-301) 15 Email chain between Neide Marzola 16 24. and Nidia Fulcher April 23, 2018. R aue tl he ev na tn icc ae t, i h onea , r ls aa cy k, s l fa oc uk ns dation (CP_0302-305) [17] 18 Email chain between Neide Marzola 25. and Nidia Fulcher May 13, 2018. Relevance, hearsay, lacks 19 authentication, lacks foundation (CP_0306) [20] Email from Nidia Fulcher to Sabrina 21 26. Beckman re Daniela Rivas Relevance, hearsay, lacks authentication, lacks foundation [22] (CP_0318) [23] June 6, 2018 email between Neide 24 27. Marzola and Nidia Fulcher Relevance, hearsay, lacks authentication, lacks foundation 25 (CP_0352-353) [26] June 1, 2018 email from Marzola 27 28. Neide to Housekeeping scheduler Relevance, hearsay, lacks authentication, lacks foundation (CP_0360) [1] Exh Plaintiff’s Exhibit Defendant’s Objections 2 No. Description [3] Rivas Application 4 Lack of foundation, hearsay, lacks 29. (CP_0522-26) authentication, lacks foundation [6] Neide Marzola Training Report Relevance, hearsay, lacks 7 30. (CP_0527-28) authentication, lack of foundation [8] Aug 15, 2018 Pastor Dan Letter Hearsay, relevance, lacks 9 31. (CSC-00007) authentication, lacks foundation [10] Rivas 2018 W-2 from Caesars 11 32. Enterprise Service Hearsay, relevance, lacks 12 authentication, lacks foundation (CSC_0012) [13] Rivas 2018 W-2 from My2Boys, LLC Hearsay, relevance, lacks 14 33. (CSC-0013) authentication, lacks foundation [15] Rivas 2018 W-2 from Top Shelf 16 34. Building Maintenance Hearsay, relevance, lacks authentication, lacks foundation [17] (CSC-00014) [18] Hearsay, relevance, lacks 19 2019-Trial – Documentation of Rivas authentication, lacks foundation, failure 35. Earnings to produce during discovery or with [20] initial disclosures [21] (2) Defendant’s Exhibits with Plaintiff’s Objections: [22] 23 Exh Defendant’s Exhibit Plaintiff’s Objections No. Description [24] 36. 25 NERC/EEOC Charge of Discrimination Relevance, Hearsay, Lack of 26 Authentication; Lacks Foundation (CP_0071) [27] 37. 28 Notice of Right to Sue Relevance, Hearsay, Lack of [1] Exh Defendant’s Exhibit Plaintiff’s Objections 2 No. Description 3 (CP_0095) Authentication; Lacks Foundation; Unfair Prejudice [4] 38. 5 Offer Letter, January 30, 2018 Relevance, Hearsay, Lack of 6 (CP_0099) Authentication; Lacks Foundation 39. 7 Relevance, Hearsay, Lack of Authentication; Lacks Foundation; [8] Confusing, Cumulative, Plaintiff, via 9 Collective Bargaining Agreement Meet and Confer, will act in good faith (CP_0103-0212) to reach resolution on potential 10 stipulated portions of the CBA and via Motion in Limine, if necessary, for the [11] admission of portions of the CBA. [12] Job Fair Application 13 40. Relevance, Hearsay (CP 0014) [14] Time Works records Relevance, Hearsay, Lack of 15 41. (CP_0018–CP_0024) Authentication; Lacks Foundation [16] 17 42. Termination documentation Relevance, Hearsay, Lack of (CP_0025) Authentication; Lacks Foundation [18] 19 June 12, 2018 email from Neide 43. Marzola to Sabrina Beckman Relevance, Hearsay, Lack of 20 Authentication; Lacks Foundation (CP_0076) [21] Relevance, Hearsay, Lack of [22] Authentication; Lacks Foundation; 23 44. LC Term Info Failure to Produce During Discovery or (CP_0529-CP_0533) with Initial Disclosures; Speculative; 24 Improper Character Evidence; FRE 611(a); unfair prejudice and confusing. [1] Exh Defendant’s Exhibit Plaintiff’s Objections 2 No. Description [3] Relevance, Hearsay, Lack of 4 Authentication; Lacks Foundation; JM Term Info Failure to Produce During Discovery or 5 45. (CP_0534–CP_0538) with Initial Disclosures; Speculative; 6 Improper Character Evidence; FRE 611(a); unfair prejudice and confusing. [7] (c) Electronic Evidence: [8] The parties intend to present electronic evidence for purposes of jury deliberations. [9] They understand that they will receive instructions and guidance regarding what to submit [10] before trial commences. [11] In addition, if needed for impeachment, the video recording of the deposition of [12] Plaintiff will be offered. [13] (d) Depositions: [14] (1) Plaintiff will offer the following depositions: [15] Plaintiff reserves the right to use the deposition of Sabrina Beckman and/or Nidia [16] Fulcher as permitted under Fed. Rule Civ. Pro. 32 but does not anticipate offering testimony [17] via their depositions into evidence unless the individuals do not appear for trial. If such [18] individuals do not appear for trial, Plaintiff anticipates using such deposition testimony and [19] will designate such testimony at that time. Further, Plaintiff reserves the right to utilize any [20] such deposition transcript if such individual does not appear for trial per Fed. Rule Civ. Pro. [21] 32 and FRE 804. Plaintiff intends on calling Fulcher and Beckman to testify in person if [22] possible. [23] Reserving objection, pending ruling on issue, Plaintiff offers the following deposition [24] excerpts at this time but reserves objection to modify/revise deposition testimony and [25] exhibits at trial and reserves right to incorporate all such deposition excerpts as identified by [26] Defendant: [27] Deposition of Nidia Fulcher, at 9:13 – 17, 10:9 – 11:19, 11:23 –25, 12: 3 – 13:5, [28] 1 13:24 – 14:16, 14:17 – 15:1, 16:9 – 23, 17:3 – 21, 17:22 – 20:18, 21:16 – 23:4, 23:6 – 22, 2 23:23 – 25:8, 25:9-22 – 26:17, 25:19, 27:12 – 28:3, 28:4 – 13, 28:1 – 29:13, 29:14 – 32:5, 3 32:6 – 33:9, 34:3 – 40:17, 41:13 – 42:1, 41:12 – 20, 43:2 – 10, 44:17 – 20, 45:18 -22, 46:12 4 – 20, 46:21 – 47:8, 48:18 – 49:3, 49:7 – 19, 49:24 – 51:17, 51:23 – 52:6, 52:7 – 16, 54:6 – 5 56:23, 57:1 – 58:11, 58:12 – 59:4, 59:5 – 60:6, 60:7 -25, 61:1 – 7, 61:8 – 62:15, 62:16 – 6 63:13, 64:2 – 22, 64:23 –67:20, 67:24 – 69:4, 69:5 – 70:4, 70:9 – 71:4, 71:5 – 72:4, 3 – 73: 7 7 – 76:9, 76:13 – 77:12, 78:3 – 6, 78:22–79:3, 80:10 – 81:22, 82:21 – 83:22, 83:23 – 84:3, 8 84:5 –22, 85:3-13, 85:20 – 87:20, 87:22 – 88:14, 88:15 –90:22, 93:19 – 95:13, 95:18 – 97:10, 9 97:11 – 99:19, 100:24 – 103: 17, 102:18 – 103:5, 104:6 – 9, 104:13 –16. 10 Deposition of Sabrina Beckman, at 7:3 – 12, 7:18 – 22, 8:18 – 9-13, 9:18 – 12:4, 11 12:15 – 24, 13:12 – 24, 18:13 – 18, 19:22 – 20 :4, 20:5 – 23, 20:24 – 21:4, 21:6 – 8, 21:9 – 12 25, 22:4 –25:3, 25:20 – 26:8, 26:9 – 28:11, 28:12 – 29:11, 29:12 – 30:7, 30:10 – 23 – 32: 13 22, 32:23 – 33:10, 33:14 –34:25, 35:24 – 36:23, 37:6 – 38:6, 38:24 – 39:14, 39:15 – 18, 14 39:19 – 40:7, 42:25 – 43:18, 43:19 –44 :1, 44:2 – 45:8, 46:22 – 48:7, 49:8 – 50:13, 51:14 – 15 52:21, 53:7 – 55:1, 55:13 – 15, 56:7 – 59:5, 61:11 – 62:6, 62:8 – 64:11, 64:12 – 20, 64:24 – 16 65:8, 65:9 – 67: 6, 65:7 – 65:16, 65:17 – 66:12, 68:17 – 25, 70:8 –71:1, 74:11 – 76:16, 77: 17 21 – 78:1, 78:13 – 79:1, 79:6 – 22, 80:5 –81:13, 81:19 – 21, 82:5 – 14, 86:3 – 10, 89:14, 18 91:2 –11, 93:23 – 94:11, 96:2 – 97:5, 97:14 – 22. 19 (2) Defendant will offer the following depositions: 20 Deposition of Sabrina Beckman, at 5:13–14; 6:21–25; 7:3–12; 7:18–8:13; 8:18–22; 21 12:5–13:19; 16:6–24; 17:16–22; 19:22–20:20; 22:1–5; 22:12–15; 23:22–25:3; 25:20–26:8; 22 27:25–28:2; 29:5–30:1; 30:10–20; 32:11–20; 32:23–13; 35:17–18; 36:17–23; 38:24–39:5; 23 39:11–25; 41:6–42:21; 49:8–50:13; 51:4–9; 52:16–21; 53:7–21; 54:14–17; 59:7–15; 63:11– 24 19; 64:9–11; 64:21–65:8; 67:7–68:4; 68:17–25; 70:21–71:1; 74:17–75:22; 76:3–77:15; 25 77:21–78:1; 78:22–79:8; 79:10–14; 80:5–20; 83:14–85:1; 86:21–87:3; 87:5–13; 89:1–5; 26 94:2–11; 94:17–95:11; 95:24–96:1; 96:11–97:19; and Exhibits 1–11 thereto. 27 Deposition of Nidia Fulcher, at 5:20–21; 10:9–11:19; 14:17–15:13; 15:16–16:3; 28 16:9–20; 19:4–7; 19:10–21; 20:2–4; 20:9–21:4; 21:16–23:8; 23:13–26:1; 26:7–17; 28:1–15; 1 28:19–25; 29:8–10; 32:6–24; 41:13–42:1; 42:22–43:6; 43:23–44:3; 44:11–23; 46:12–47:8; 2 49:7–19; 49:24–50:03; 50:19–21; 51:18–22; 53:8–19; 55:21–56:4; 57:2–5; 58:9–11; 59:6– 3 7; 59:15–20; 60:12–25; 61:22–62:25; 64:23–65:5; 66:12–18; 67:24–69:4; 69:11–20; 69:23– 4 70:4; 70:9–15; 70:17–71:23; 72:7; 73:7–16; 75:12–25; 76:15–16; 77:1–3; 77:8–12; 77:17– 5 23; 78:25–79:3; 80:10–11; 80:16–22; 81:6–22; 82:10–83:1; 85:3–13; 89:23–90:3; 93:19– 6 94:5; 94:24–95:2; 95:18–96:9; 96:19–22; 101:3–11; and Exhibits 1–6 thereto. 7 (e) Objections to Depositions: 8 (1) Plaintiff has the following objections: 9 Plaintiff reserves the right to object to any and all portions of the depositions of 10 Sabrina Beckman and/or Nidia Fulcher if Defendant offers such portions of the depositions 11 but does not anticipate that the depositions will be offered into evidence by Defendant since 12 they are expected to appear for trial. If such individuals do not appear for trial, Plaintiff 13 reserves all objections to Defendant’s offering deposition testimony. Defendant has 14 represented in this matter that they are counsel for Fulcher and Beckman.4 Thus, the use of 15 their testimony by Defendant is in violation of FRCP 32 and FRE 804(b). Plaintiff further 16 objects to Defendant’s request to include exhibits attached to Fulcher and Beckman’s 17 depositions that Defendant has not identified as an exhibit at trial. Defendant’s effort to 18 include additional exhibits in this section is improper. To the extent such exhibit has been 19 identified as a trial exhibit, Plaintiff incorporates by reference her objections stated above. 20 Reserving objections, Plaintiff intends to call Beckman and Fulcher to testify per FRCP and 21 the FRE via in person or via deposition per rule if necessary. 22 (2) Defendant has the following objections: 23 Defendant objects to the wholesale admission of the entire transcripts of the 24 depositions of Sabrina Beckman and Nidia Fulcher, if those witnesses do not appear for trial. 25 Defendants reserves the right to object to any and all portions of the depositions of Sabrina 26 Beckman and/or Nidia Fulcher if Defendant offers such portions of the depositions but does 27 not anticipate that the depositions will be offered into evidence by Defendant since they are [28] 1 expected to appear for trial. If such individuals do not appear for trial, Defendant reserves 2 all objections to Plaintiff’s offering deposition testimony. [3] IX. 4 THE FOLLOWING WITNESSES MAY BE CALLED BY THE PARTIES AT TRIAL: 5 (a) Plaintiff’s witnesses: 6 Daniela Rivas Plaintiff 7 c/o Gabroy Law Offices Christian Gabroy, Esq. 8 The District at Green Valley Ranch 170 South Green Valley Parkway, #280 9 Henderson, Nevada 89012 10 Jose Zapata c/o Gabroy Law Offices 11 Christian Gabroy, Esq. The District at Green Valley Ranch 12 170 South Green Valley Parkway, #280 Henderson, Nevada 89012 [13] Carlos Quinones 14 c/o Gabroy Law Offices Christian Gabroy, Esq. 15 The District at Green Valley Ranch 170 South Green Valley Parkway, #280 16 Henderson, Nevada 89012 17 Dan Hilasaca Pastor 18 c/o Gabroy Law Offices Christian Gabroy, Esq. 19 The District at Green Valley Ranch 170 South Green Valley Parkway, #280 20 Henderson, Nevada 89012 21 Benjamin Carballo Pastor 22 c/o Gabroy Law Offices Christian Gabroy, Esq. 23 The District at Green Valley Ranch 170 South Green Valley Parkway, #280 24 Henderson, Nevada 89012 25 Neide Marzola Housekeeping Manager 26 Phone Number Unknown Address Unknown [27] Sabrina (Beckman) Grant [28] 1 Phone Number Unknown Address Unknown [2] Nidia Fulcher 3 Human Resources Consultant at Amazon Phone Number Unknown 4 Address Unknown 5 Terrance M. Clauretie, Ph.D c/o Gabroy Law Offices 6 Christian Gabroy, Esq. The District at Green Valley Ranch 7 170 South Green Valley Parkway, #280 Henderson, Nevada 89012 [8] 9 (b) Defendant’s witnesses: 10 Daniela Rivas Plaintiff 11 c/o Gabroy Law Offices Christian Gabroy, Esq. 12 The District at Green Valley Ranch 170 South Green Valley Parkway, #280 13 Henderson, Nevada 89012 14 Neide Marzola Housekeeping Manager 15 Phone Number Unknown Address Unknown [16] Sabrina (Beckman) Grant 17 Director of Human Resources at WynnBET Phone Number Unknown 18 Address Unknown 19 Nidia Fulcher Human Resources Consultant at Amazon 20 Phone Number Unknown Address Unknown [21] Servando Lara 22 c/o Shannon S. Pierce, Esq. Fennemore Craig, P.C. 23 7800 Rancharrah Parkway Reno, NV 89511 24 Phone: (775) 788-2200 Email: spierce@fennemorelaw.com [25] Kevin B. Kirkendall, MBA, CPA, CFE 26 c/o Shannon S. Pierce, Esq. Fennemore Craig, P.C. 27 7800 Rancharrah Parkway Reno, NV 89511 28 Phone: (775) 788-2200 1 Email: spierce@fennemorelaw.com 2 Any and all witnesses needed for impeachment or rebuttal testimony as trial proceeds.5 [3] 4 The parties incorporate all custodians of records as witnesses as well. X. [5] PROPOSED TRIAL DATES 6 The attorneys have met and jointly offer these three trial dates: 9/26/2022; 10/3/2022, 7 10/11/2022. 8 It is expressly understood by the undersigned that the Court will set the trial of this 9 matter on one of the agreed-upon dates if possible; if not, the trial will be set at the 10 convenience of the Court’s calendar. XI. [11] ANTICIPATED LENGTH OF TRIAL [12] It is estimated that the trial herein will take a total of three (3) days. [13] 14 XII. MOTIONS IN LIMINE [15] The parties anticipate filing motions in limine but have not yet finalized their respective [16] motions. Motions in limine will be filed pursuant to Local Rule 16-3(b). The parties agree to meet [17] and confer before the filing of motions in limine in an effort to reduce the number of motions to be [18] resolved by the Court. If the parties are able to reach agreement in lieu of filing motions in limine, [19] the parties will file a stipulation reflecting their agreement. Such stipulation shall be filed on or [20] before the deadline to file motions in limine. [24] 25 5 If Plaintiff does not concede that Friday and Saturday nights were regarded as the worst GRA shifts, Defendant reserves the right to call the following GRAs who will testify to this point: Letisha Gillet, Snjezana Smith, 26 Sugey Lopez, and Nadializbeth Gonzalez. Plaintiff objects to these previously undisclosed witnesses as improper. “Rebuttal testimony” is not proper for Defendant to establish its claims and defenses but is limited to that which is 27 precisely directed to rebutting new matter or new theories presented in a party’s case-in-chief. Yang v. ActioNet, Inc., 2015 WL 13376522 , at *8 (C.D. Cal., 2015) (citing Step–Saver Data Sys., Inc. v. Wyse Tech., 752 F.Supp. 181 , 193 28 (E.D. Pa. 1990) aff'd in relevant part and rev'd in part on other grounds, 939 F.2d 91 (3d Cir. 1991)); Upshur v. 1 APPROVED AS TO FORM AND CONTENT: [2] DATED: February 11, 2022 [3] GABROY LAW OFFICES [4] 5 By: /s/ Christian Gabroy d Christian Gabroy, Esq. 6 GABROY LAW OFFICES The District at Green Valley Ranch 7 170 South Green Valley Parkway, Suite 280 Henderson, NV 89012 [8] Alan J. Reinach, Esq. 9 CHURCH STATE COUNCIL 2686 Townsgate Rd. 10 Westlake Village, CA 91361 11 Attorneys for Plaintiff [12] DATED: February 11, 2022 [13] FENNEMORE CRAIG, P.C. [14] 15 By: /s/ Kelly Peters d Shannon S. Pierce, Esq. [16] Kelly Peters, Esq. 17 7800 Rancharrah Parkway Reno, NV 89511 [18] Attorneys for Defendant [21] 22 XII. ACTION BY THE COURT [23] (a) This case is set for jury trial on the f-i-x-e--d-/stacked calendar on:1/23/2023 at 24 9:00 a.m. 25 (b) Calendar call shall be held on: 1/17/2023 at 9:00 a.m. 26 (c) Jury trials: 27 (1) An original and two (2) copies of all instructions requested by either party shall be submitted to the Clerk for filing on or before: [28] 1 (2) An original and two (2) copies of all suggested questions of the parties 2 to be asked of the jury panel by the Court on voir dire shall be submitted to the Clerk for 3 filing on of before: 4 (3) Motions in Limine shall be filed on or before: 5 The foregoing pretrial order has been approved by the parties to this action as 6 evidenced by the signatures of their counsel hereon, and the order is hereby entered and will 7 govern the trial of this case. This order shall not be amended except by order of the Court 8 pursuant to agreement of the parties or to prevent manifest injustice. [9] 10 DATED: __3_/_2_3/_2_0_2_2________ [12] __________________________________ 13 UNITED STATES DISTRICT JUDGE