NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
TONYA HALE, No. 22-16274
Plaintiff-Appellant, D.C. No. 2:19-cv-00780-JCM-VCF v.
NV PROPERTY 1, LLC, DBA The MEMORANDUM* Cosmopolitan of Las Vegas; RICHARD SHERMAN; COSMOPOLITAN OF LAS VEGAS,
Defendants-Appellees.
Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding
Argued and Submitted February 23, 2024 San Francisco, California
Before: TALLMAN and BENNETT, Circuit Judges, and LASNIK,** District Judge. Partial Dissent by Judge BENNETT.
Plaintiff-Appellant Tonya Hale (“Hale”)—a Table Games Supervisor at The
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Cosmopolitan of Las Vegas hotel and casino (“the Cosmopolitan”)—brought this
action against her employer and a casino guest, former professional football player
Richard Sherman (“Sherman”), related to two verbal altercations between Hale and
Sherman and the Cosmopolitan’s actions addressing them. Hale appeals the partial
dismissal of her claims for intentional infliction of emotional distress (“IIED”)
against the Cosmopolitan and Sherman, and the partial entry of summary judgment
on her Title VII claims against the Cosmopolitan for hostile work environment and
retaliation. As the parties are familiar with the facts, we do not recount them here.
We affirm.
1. Hale argues that the district court erred in dismissing her claim for IIED
against Sherman. Under Nevada law, to survive a motion to dismiss, Hale was
required to allege facts that plausibly showed (1) extreme and outrageous conduct
by the defendant; (2) intent to cause emotional distress or reckless disregard as to
that probability; (3) severe emotional distress; and (4) actual and proximate
causation of the emotional distress. See Star v. Rabello, 625 P.2d 90, 91–92 (Nev.
1981); Jespersen v. Harrah’s Operating Co., 280 F. Supp. 1189, 1194 (D. Nev.
2002).
Hale based her claim on two separate interactions between Hale and
Sherman—the first which lasted “at least 15 to 25 minutes” and the other lasting
approximately three to four minutes. Hale alleged that after she told Sherman that
2 he could not exceed the betting limits at his table, Sherman “harassed and repeatedly
verbally assaulted Hale, by among other things, yelling and screaming at her,
berating her, using profanity towards her and others, making gender discriminatory
comments to her and threatening her job.” Specifically, Hale alleged Sherman
“scream[ed] at [Hale] ‘mother f**ker, f**k I’ll have your job, you don’t tell me what
to do,’” and made other such comments as, if “she couldn’t take this then they should
get someone who could,” and that she was “wasting [his] time.” Sherman was
“trespassed” from the casino on the first occasion by on-duty managers and ordered
to leave the premises by casino security.
Though Sherman’s conduct as alleged is certainly insulting and perhaps even
threatening, “extreme and outrageous conduct is that which is outside all possible
bounds of decency and is regarded as utterly intolerable in a civilized community.”
Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998). IIED requires a
showing of conduct that “no reasonable person could be expected to endure[].” Alam
v. Reno Hilton Corp., 819 F. Supp. 905, 911 (D. Nev. 1993). Interacting with a rude
and aggressive individual in a limited capacity is something that persons are
necessarily expected to be hardened to. See Maduike, 953 P.2d at 26.
Respectfully, our dissenting colleague cites to Branda v. Sanford, 637 P.2d
1223 (Nev. 1981), as support for the contrary conclusion that Hale alleged sufficient
facts to survive a motion to dismiss with respect to her IIED claim against Sherman.
3 The district court distinguished Branda by pointing out that the plaintiff was required
to meet Nevada’s notice pleading standard, unlike here, where Hale was required to
meet the federal pleading standard—which demands “plausibility”—to survive a
motion to dismiss. Furthermore, we note that in Branda, the plaintiff was a 15-year-
old hotel busgirl, and the defendant was a hotel guest that “verbally accosted her
with sexual innuendoes and became verbally abusive when she ignored his remarks,”
including saying “that she was a ‘f—k—g bitch,’ ‘f—k—g c—t,’ ‘no lady,’” and
“[t]his is the one I want. This is her.” Branda, 637 P.2d at 1224. Unlike in Branda,
Sherman did not make sexual advances or comments to Hale. See Shufelt v. Just
Brakes Corporation, 2017 WL 379429 (D. Nev. Jan. 25, 2017) (holding that
experiencing unwanted sexual advances and comments can be considered extreme
and outrageous). As such, we agree with the district court as to the impact of Branda
on the immediate case.
We agree with the district court that “Hale [did] not sufficiently allege that
Sherman engaged in extreme or outrageous conduct” because “Sherman’s conduct
is akin to insults, indignities, or threats, not conduct which is outside all possible
bounds of decency or utterly intolerable in a civilized community.” See Maduike,
953 P.2d at 26. We affirm the district court’s dismissal of Hale’s claim against
Sherman for IIED.
2. Hale argues that the district court erred in dismissing her claim for IIED
4 against the Cosmopolitan, where Hale alleged that “Defendant Sherman’s actions
and Cosmopolitan’s actions by failing to do anything about Sherman’s actions . . .
constitutes extreme and outrageous conduct which was intended to cause severe
emotional distress to Plaintiff.” As to intent, Hale alleged that “Plaintiff feels that if
it was a male employee [managers] would have come to that employee’s defense.”
We also agree with the district court that “Hale provide[d] no factual or legal
support for her claim that a supervisor’s inaction is considered extreme or outrageous
conduct,” and that “[e]ven if the court were to determine that [Hale’s supervisor]’s
failure to intervene is outrageous conduct, Hale [did] not sufficiently allege that [the
supervisor] intentionally or recklessly caused Hale’s emotional distress.”
On appeal and for the first time in this litigation, Hale argues that “[a]s to
Cosmopolitan, we should apply a negligence theory of liability to the harassing
conduct of Sherman as in [sic] relates to Hale’s cause of action against them for
intentional infliction of emotional distress.” Such an argument presents what is
effectively a new theory of liability for negligent infliction of emotional distress that
is deemed waived. See In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir.
2000). We affirm the district court’s dismissal of Hale’s claim against the
Cosmopolitan for IIED.
3. Hale argues that the district court erred in entering summary judgment on
her Title VII claim against the Cosmopolitan for hostile work environment. To state
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
TONYA HALE, No. 22-16274
Plaintiff-Appellant, D.C. No. 2:19-cv-00780-JCM-VCF v.
NV PROPERTY 1, LLC, DBA The MEMORANDUM* Cosmopolitan of Las Vegas; RICHARD SHERMAN; COSMOPOLITAN OF LAS VEGAS,
Defendants-Appellees.
Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding
Argued and Submitted February 23, 2024 San Francisco, California
Before: TALLMAN and BENNETT, Circuit Judges, and LASNIK,** District Judge. Partial Dissent by Judge BENNETT.
Plaintiff-Appellant Tonya Hale (“Hale”)—a Table Games Supervisor at The
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Cosmopolitan of Las Vegas hotel and casino (“the Cosmopolitan”)—brought this
action against her employer and a casino guest, former professional football player
Richard Sherman (“Sherman”), related to two verbal altercations between Hale and
Sherman and the Cosmopolitan’s actions addressing them. Hale appeals the partial
dismissal of her claims for intentional infliction of emotional distress (“IIED”)
against the Cosmopolitan and Sherman, and the partial entry of summary judgment
on her Title VII claims against the Cosmopolitan for hostile work environment and
retaliation. As the parties are familiar with the facts, we do not recount them here.
We affirm.
1. Hale argues that the district court erred in dismissing her claim for IIED
against Sherman. Under Nevada law, to survive a motion to dismiss, Hale was
required to allege facts that plausibly showed (1) extreme and outrageous conduct
by the defendant; (2) intent to cause emotional distress or reckless disregard as to
that probability; (3) severe emotional distress; and (4) actual and proximate
causation of the emotional distress. See Star v. Rabello, 625 P.2d 90, 91–92 (Nev.
1981); Jespersen v. Harrah’s Operating Co., 280 F. Supp. 1189, 1194 (D. Nev.
2002).
Hale based her claim on two separate interactions between Hale and
Sherman—the first which lasted “at least 15 to 25 minutes” and the other lasting
approximately three to four minutes. Hale alleged that after she told Sherman that
2 he could not exceed the betting limits at his table, Sherman “harassed and repeatedly
verbally assaulted Hale, by among other things, yelling and screaming at her,
berating her, using profanity towards her and others, making gender discriminatory
comments to her and threatening her job.” Specifically, Hale alleged Sherman
“scream[ed] at [Hale] ‘mother f**ker, f**k I’ll have your job, you don’t tell me what
to do,’” and made other such comments as, if “she couldn’t take this then they should
get someone who could,” and that she was “wasting [his] time.” Sherman was
“trespassed” from the casino on the first occasion by on-duty managers and ordered
to leave the premises by casino security.
Though Sherman’s conduct as alleged is certainly insulting and perhaps even
threatening, “extreme and outrageous conduct is that which is outside all possible
bounds of decency and is regarded as utterly intolerable in a civilized community.”
Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998). IIED requires a
showing of conduct that “no reasonable person could be expected to endure[].” Alam
v. Reno Hilton Corp., 819 F. Supp. 905, 911 (D. Nev. 1993). Interacting with a rude
and aggressive individual in a limited capacity is something that persons are
necessarily expected to be hardened to. See Maduike, 953 P.2d at 26.
Respectfully, our dissenting colleague cites to Branda v. Sanford, 637 P.2d
1223 (Nev. 1981), as support for the contrary conclusion that Hale alleged sufficient
facts to survive a motion to dismiss with respect to her IIED claim against Sherman.
3 The district court distinguished Branda by pointing out that the plaintiff was required
to meet Nevada’s notice pleading standard, unlike here, where Hale was required to
meet the federal pleading standard—which demands “plausibility”—to survive a
motion to dismiss. Furthermore, we note that in Branda, the plaintiff was a 15-year-
old hotel busgirl, and the defendant was a hotel guest that “verbally accosted her
with sexual innuendoes and became verbally abusive when she ignored his remarks,”
including saying “that she was a ‘f—k—g bitch,’ ‘f—k—g c—t,’ ‘no lady,’” and
“[t]his is the one I want. This is her.” Branda, 637 P.2d at 1224. Unlike in Branda,
Sherman did not make sexual advances or comments to Hale. See Shufelt v. Just
Brakes Corporation, 2017 WL 379429 (D. Nev. Jan. 25, 2017) (holding that
experiencing unwanted sexual advances and comments can be considered extreme
and outrageous). As such, we agree with the district court as to the impact of Branda
on the immediate case.
We agree with the district court that “Hale [did] not sufficiently allege that
Sherman engaged in extreme or outrageous conduct” because “Sherman’s conduct
is akin to insults, indignities, or threats, not conduct which is outside all possible
bounds of decency or utterly intolerable in a civilized community.” See Maduike,
953 P.2d at 26. We affirm the district court’s dismissal of Hale’s claim against
Sherman for IIED.
2. Hale argues that the district court erred in dismissing her claim for IIED
4 against the Cosmopolitan, where Hale alleged that “Defendant Sherman’s actions
and Cosmopolitan’s actions by failing to do anything about Sherman’s actions . . .
constitutes extreme and outrageous conduct which was intended to cause severe
emotional distress to Plaintiff.” As to intent, Hale alleged that “Plaintiff feels that if
it was a male employee [managers] would have come to that employee’s defense.”
We also agree with the district court that “Hale provide[d] no factual or legal
support for her claim that a supervisor’s inaction is considered extreme or outrageous
conduct,” and that “[e]ven if the court were to determine that [Hale’s supervisor]’s
failure to intervene is outrageous conduct, Hale [did] not sufficiently allege that [the
supervisor] intentionally or recklessly caused Hale’s emotional distress.”
On appeal and for the first time in this litigation, Hale argues that “[a]s to
Cosmopolitan, we should apply a negligence theory of liability to the harassing
conduct of Sherman as in [sic] relates to Hale’s cause of action against them for
intentional infliction of emotional distress.” Such an argument presents what is
effectively a new theory of liability for negligent infliction of emotional distress that
is deemed waived. See In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir.
2000). We affirm the district court’s dismissal of Hale’s claim against the
Cosmopolitan for IIED.
3. Hale argues that the district court erred in entering summary judgment on
her Title VII claim against the Cosmopolitan for hostile work environment. To state
5 a prima facie case for hostile work environment due to sexual harassment, an
employee must allege (1) they were subjected to unwelcome sexual advances,
conduct, or comments; (2) the harassment was based on sex; and (3) the harassment
was so severe and pervasive as to alter the conditions of the victim’s employment
and create an abusive working environment. Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 67 (1986).
Hale alleged that she “was harassed because of her sex/gender (female) . . .
which created a ‘Hostile Environment’ in the workplace for [her],” because the
Cosmopolitan “allow[ed] Defendant Sherman to harass [her] because of her gender
without doing anything about it.” Even if Sherman’s statements constituted
harassment based on sex, such conduct was not “severe or pervasive enough to create
an abusive working environment.” Id. at 67. In determining whether an
environment is sufficiently hostile or abusive to violate Title VII, we look “at all the
circumstances, including the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.”
Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002) (quoting
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001)).
Here, one casino guest’s use of profanity directed towards an employee on
two isolated occasions does not create a workplace that is “permeated with
6 ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an abusive
working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(quoting Meritor Sav. Bank, FSB, 477 U.S. at 65–66). “‘[M]ere utterance of an …
epithet which engenders offensive feelings in a employee,’ does not sufficiently
affect the conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21
(internal citations omitted).
The district court properly granted summary judgment to the Cosmopolitan
on Hale’s Title VII claim for hostile work environment.
4. Hale argues that the district court erred in finding there was no issue of
material fact as to her Title VII claim alleging that she “was retaliated against, for
reporting Sherman’s conduct to Cosmopolitan, filing a charge with NERC and
retaining an attorney.” To establish a prima facie retaliation claim, an employee
must show that (1) the employee engaged in a protected activity; (2) the employer
took an adverse employment action against the employee; and (3) a causal link
existed between the protected activity and the adverse employment action. Nilsson
v. City of Mesa, 503 F.3d 947, 953–54 (9th Cir. 2007); see Univ. of Texas Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
Hale failed to show that she suffered any adverse employment action. Hale is
still currently employed by the Cosmopolitan, receiving a higher salary than before,
7 and working table games she prefers. As for her allegations that she suffered adverse
employment action related to her Family and Medical Leave (“FML”), Hale was
never denied use of her previously approved FML, and further was allowed to take
personal leave for the full amount of time off requested to take care of an ailing
family member. Furthermore, with regards to the March 2019 request that Hale
recertify her FML leave, no Cosmopolitan employee questioned her about FML, but
rather, the Cosmopolitan’s third-party administrator for absence and leave
management, Sun Life, sent Hale correspondence requesting the recertification.
Importantly, Hale admitted that she had no reason to believe that Sun Life knew
anything about the January and February incidents. As such, to the extent that
requiring recertification of her FML a few months before it would have expired can
be construed as adverse employment action, Hale failed to show how this action has
the necessary causal link to her engagement in the protected activity.
The district court properly granted summary judgment to the Cosmopolitan
on Hale’s Title VII claim for retaliation.
5. Hale argues that the district court erred as a matter of law in failing to grant
Hale leave to amend. When justice requires, a district court should “freely give
leave” to amend a complaint. Fed. R. Civ. P. 15(a)(2). But leave to amend “is not
to be granted automatically.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th
Cir. 1990).
8 The district court order did not explicitly deny leave to amend. Hale did not
take any affirmative steps toward amending her complaint or seeking leave to
amend. Hale did not amend her complaint as a matter of course, Fed. R. Civ. P.
15(a)(1)(B), Hale did not file a motion seeking leave to amend, and Hale did not
seek leave to amend with a proposed amended complaint as required by Local Rule
15-1. The district court did not err as a matter of law in failing to grant Hale leave
to amend when she never requested it.
AFFIRMED.
9 Hale v. NV Property 1, LLC, No. 22-16274 FILED MAR 18 2024 BENNETT, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Because I believe Hale alleged sufficient facts to survive a motion to dismiss
with respect to her claim against Richard Sherman for intentional infliction of
emotional distress (IIED), I would reverse the district court’s dismissal of this claim.
Thus, I respectfully dissent, in part.1
In reviewing a motion to dismiss, “we accept all material allegations in the
complaint as true and construe them in the light most favorable” to the non-moving
party. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 580 (9th Cir. 1983).
Dismissal is only proper “if the complaint fails to plead enough facts to state a claim
to relief that is plausible on its face.” Kroessler v. CVS Health Corp., 977 F.3d 803,
807 (9th Cir. 2020) (internal quotation marks and citation omitted). Under Nevada
law, Hale must allege facts sufficient to show “(1) extreme and outrageous conduct
[by Sherman] with either the intention of, or reckless disregard for, causing
emotional distress; (2) [Hale] suffered severe or extreme emotional distress and (3)
actual or proximate causation.” Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386
(Nev. 1998) (quoting Star v. Rabello, 625 P.2d 90, 91–92 (Nev. 1981)).
1 I join the remainder of the majority’s disposition. 1 Hale, a supervisor, following casino policy, prevented Sherman from betting
over the table limit by giving money to his “entourage” to bet for him. Sherman told
Hale if “she couldn’t handle this then they should get someone who could.” Sherman
was “yelling and screaming at [Hale], berating her, using profanity towards her and
others, making gender discriminatory comments to her and threatening her job.”
This alleged abuse lasted 15 to 25 minutes, after which Sherman left the casino.
Then several “customers c[a]me up to [Hale] after the incident and comment[ed] that
they were sorry she had to go through what she did and how improper Sherman’s
conduct was towards her.”2
Less than a month later, Sherman returned to the casino and allegedly again
began harassing and berating Hale. This time, when Hale again denied Sherman’s
attempt to circumvent casino policy to bet over the table limit, Sherman started
“screaming at [Hale] ‘mother f**cker, f**k I’ll have your job, you don’t tell me what
to do.” Hale reexplained the casino’s policy at which point Sherman “replied that
Hale was wasting his time, asking her why is she doing this and then screaming out
loud ‘Tonya is wasting my time.’” Like the first incident, several people “came up
to Plaintiff after the incidents” expressing their dismay at how this happened to her.
2 Adding to the alleged distress, no one from the casino staff did anything to stop Sherman, and so, as alleged, the Sherman tirade proceeded for 15-25 minutes. “In addition[,] during the same incident Sherman verbally abused another female employee, [a] Pit Manager . . .” 2 Hale alleges these incidents caused her severe emotional distress. As claimed
in her complaint:
Sherman’s and Cosmopolitan’s actions did in fact cause severe emotional distress to Plaintiff, including but not limited to, crying attacks, embarrassment, feeling violated, having nightmares about the incident, being unable to sleep, indignity, humiliation, nervousness, tension, anxiety, recurring nightmares and depression . . . .
As the majority recognizes, Sherman’s conduct “is certainly insulting and
perhaps even threatening.” But contrary to the majority, because of the
egregiousness of the lengthy alleged encounters, I would conclude that this conduct
does rise to the level such that “no reasonable person could be expected to endure
it.” Alam v. Reno Holton Corp., 819 F. Supp. 905, 911 (D. Nev. 1993). Sherman is
a recognizable public figure who, while in public and in front of many individuals,
both customers and coworkers, allegedly twice berated Hale, with one alleged tirade
proceeding unabated for 15 to 25 minutes. This is a long time, and none of the cases
cited by the majority feature an alleged unabated incident of this length.
In a substantially similar case, the Supreme Court of Nevada held that an IIED
claim based on a celebrity’s public outburst against a hotel employee should survive
dismissal when the complaint claimed the celebrity “screamed at [the employee]
causing a number of hotel patrons and employees to watch and listen to the
altercation” and called the employee a “f--k--g bitch” and “f--k--g c--t.” Branda v.
Sanford, 637 P.2d 1223, 1224, 1227 (Nev. 1981). The court concluded that 3 allegation sufficiently alleged “[e]xtreme and outrageous conduct,” such that “[a]
cause of action for intentional infliction of emotional distress was pled.” Id. at 1227
(quotation marks omitted). Hale’s complaint alleges an almost identical, and in fact
in some ways more extreme, scenario: Sherman, a celebrity, hurled profanities at
Hale two separate times (for 15 to 25 minutes on one occasion—a far longer alleged
diatribe than the sufficiently-outrageous conduct in Branda) in front of many casino
patrons and employees.3 See also Steiner v. Showboat Operating Co., 25 F.3d 1459,
1466 (9th Cir. 1994) (“[W]here there is public humiliation it is much more likely
that the [IIED] tort action will lie.”). We need only look to the alleged immediate
aftermath of Sherman’s outbursts to see whether society would expect a reasonable
person to endure Sherman’s insults. On both occasions, members of the public
and/or Hale’s coworkers came up to her and made comments about how
inappropriate Sherman’s remarks were, thus further underlining the egregiousness
of his conduct.
Because I believe Sherman’s alleged prolonged, expletive-ladened, public fit
of temper was sufficiently “extreme and outrageous” as recognized by the witnesses
3 The majority accurately points to factual differences between Branda and Hale’s complaint which might well cause a jury to reject Hale’s claim. But these factual differences do not warrant rejecting Hale’s complaint on its face. 4 who saw the events as they unfolded, I would reverse the district court’s IIED
dismissal and allow Hale’s claim against Sherman to proceed.