Tracey Lall v. Corner Investment Company

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 28, 2025
• Docket: 23-15489
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TRACEY LALL, No. 23-15489 23-16210 Plaintiff-Appellant, D.C. No. v. 2:20-cv-01287-CDS-NJK

CORNER INVESTMENT COMPANY, DBA The Cromwell Hotel and Casino; MEMORANDUM* CAESARS ENTERTAINMENT, INC.; UNITE HERE BARTENDERS UNION, LOCAL 165; CAESARS GROWTH CROMWELL,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Cristina D. Silva, District Judge, Presiding

Argued and Submitted February 7, 2025 Phoenix, Arizona

Before: HAWKINS, CLIFTON, and BADE, Circuit Judges.

Plaintiff Tracey Lall, a former bartender at the Cromwell Hotel (Cromwell)

in Las Vegas, appeals the district court’s grant of summary judgment to Cromwell

on her claims for disability discrimination and retaliation under the Americans with

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Disabilities Act (ADA) and Nevada state law, and its grant of summary judgment

to both Cromwell and UNITE HERE Bartenders Local 165 (Local 165) on her

claims alleging violations of Section 301 of the Labor Management Relations Act

(LMRA). Lall’s attorney, Michael Mcavoyamaya, also appeals the district court’s

award of sanctions under Section 1927 of Chapter 28 of the U.S. Code and the

district court’s inherent powers for his conduct litigating Lall’s case.1

We review a district court’s grant of summary judgment de novo. Hittle v.

City of Stockton, 101 F.4th 1000, 1011 (9th Cir. 2024). We view the facts “in the

light most favorable to the nonmoving party.” Id. We affirm.

1. We affirm the district court’s grant of summary judgment to Cromwell on

Lall’s employment discrimination claims under the ADA and Nevada state law.

The district court properly applied the framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). None of Lall’s asserted factual bases for

pretext establish a genuine issue of material fact.

First, Lall’s argument based on the temporal proximity between her alleged

October 2019 request for accommodation and her January 2020 termination fails

because the proximity is three months, and the record evidence indicates that Lall

1 In both cases, we grant Lall’s motion to file an oversized reply brief. 23- 15489 Dkt. 54; 23-16210 Dkt. 46. Also, in both cases, we deny Lall’s motion for judicial notice of a state bar complaint that was filed by the district court against Mcavoyamaya because it is not necessary to resolving the issues in these appeals. 23-15489 Dkt. 58; 23-16210 Dkt. 50. 2 likely did not take the necessary steps to receive accommodations. Second, there is

inadequate evidence that Cromwell put Lall on “forced” leave because of her

seizures and, as a result, she cannot raise a genuine issue of material fact as to

whether that asserted forced leave is evidence of pretext. Third, Cromwell asking

Lall to take a drug test in August 2019 does not raise a genuine issue indicating

pretext because her managers indicated genuine concern for her and customers’

safety and because Cromwell did not terminate her for declining to take the test.

Indeed, the failure to act against Lall for refusing to take the August 2019

drug test bolsters Cromwell’s contention that it did not terminate Lall based on a

pretext that sought to hide discrimination based on her disability. If Cromwell had

been searching for a reason to terminate Lall, it could have advised her that she

was subject to termination if she refused. Thereafter, any further refusal to take the

test could have provided that reason. She worked in a public-facing position

surrounded by glass and bottles of alcohol. Seizures when she was working,

whether caused by drugs or her illness, could have endangered herself, other

employees, and customers. There were valid grounds for the concern that led to the

direction that she be tested. That she was not terminated for refusal to be tested

weighed against the claim that Cromwell had a discriminatory motive that it sought

to obscure with a pretextual justification.

Lall’s next contention was that Cromwell’s purported disparate treatment of

3 similarly situated employees was evidence of pretext. An employer’s disparate

treatment of “similarly situated” employees based on a protected trait can be

“probative of pretext.” Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th

Cir. 2003). “[I]ndividuals are similarly situated when they have similar jobs and

display similar conduct” and have similar disciplinary records, id. & n.15, resulting

in them being “similar in all material respects.” Moran v. Selig, 447 F.3d 748, 755

(9th Cir. 2006) (internal quotation marks omitted).

Lall has not met her burden to establish that Cromwell’s treatment of

similarly situated employees raises a genuine issue of material fact as to whether

her termination was pretextual. Lall did not establish that the employees who

purportedly received better treatment than her were “similar in all material

respects,” especially with respect to their disciplinary records but also with respect

to other relevant factors such as length of service or comparative customer

satisfaction. In addition, as noted above, that Cromwell did not pursue Lall’s

refusal to take the drug test discounts the claim that Cromwell sought a pretextual

reason to terminate her employment.

2. We affirm the district court’s decision not to toll Lall’s Nevada law claims

for 122 days. The Nevada Governor tolled all Nevada state law claims from April

2020 to August 2020, and the Nevada Supreme Court upheld that tolling. Dignity

Health v. Eighth Jud. Dist. Ct., 550 P.3d 341, 343 (Nev. 2024). But the district

4 court did not err by declining to toll Lall’s state claims because Lall raised the

argument for the first time in a reply brief. Zamani v. Carnes, 491 F.3d 990, 997

(9th Cir. 2007).

Generally, we will “not consider issues not properly raised before the district

court,” Greisen v. Hanken, 925 F.3d 1097, 1115 (9th Cir. 2019) (citation omitted),

unless “necessary to prevent manifest injustice,” Alexopulos by Alexopulos v. Riles,

784 F.2d 1408, 1411 (9th Cir. 1986) (citation omitted). “Manifest injustice” will

not result here because Lall has not provided a reason for failing to raise the tolling

argument earlier, neither Cromwell nor Local 165 “engaged in . . . conduct or

misrepresentation which prevented” Lall from timely raising the issue, see

Alexopulos, 784 F.2d at 1411, and it has not been established that such an

extension would have changed the outcome in any event.

3. We affirm the district court’s grant of summary judgment to Cromwell

and Local 165 (Lall’s union), on the hybrid LMRA claim. A cause of action under

Section 301 of the LMRA, 29 U.S.C. § 185, requires showing that the employer

violated the applicable collective bargaining agreement, and that the union violated

“its duty of fair representation [to the employee] in its handling of the employee’s

grievance.” Vaca v. Sipes, 386 U.S. 171, 183-86 (1967). Both the employer and the

union must have violated their respective duties for a Section 301 claim.

For a hybrid Section 301 claim, a plaintiff must have first “attempted” to

5 exhaust the contractual grievance procedures laid out in their bargaining

agreement. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 653 (1965); Vaca,

386 U.S. at 184. Lall did not exhaust her required grievance procedures. Instead,

Lall unequivocally declined to do so, telling Local 165 Business Representative

Mike Contorelli that she would not proceed with mediation or arbitration because

her counsel advised her not to attend grievance meetings without him. Contorelli

repeatedly followed up, asking Lall, “Just to be clear, do you want to proceed with

the arbitration scheduled later this year?” Lall replied, “No thank you.”

Lall has not shown that she is entitled to an exception to the exhaustion

requirement. A plaintiff may be excepted from the exhaustion requirement “when

the union representing the employees in the grievance/arbitration procedure acts in

such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its

duty of fair representation.” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151,

164 (1983). Lall has not pointed to evidence that would establish such a breach. A

union must only conduct “some minimal investigation,” with the required rigor of

an investigation “var[ying] with the circumstances of each case.” Stevens v. Moore

Bus. Forms, Inc., 18 F.3d 1443, 1448 (9th Cir. 1994) (internal quotation marks and

citation omitted). Throughout 2020, Local 165 made repeated attempts to gather

information, research Lall’s termination and situation, and advance Lall’s

grievance.

6 4. We affirm the district court’s award of sanctions to Cromwell for

Mcavoyamaya’s conduct during the summary judgment proceedings and to Local

165 for his conduct pursuing the Section 301 claim.

The award to Cromwell was based in part on counsel’s failure to notify the

district court and Cromwell that Lall was dropping her FMLA claim until the

summary judgment hearing, requiring both the court and Cromwell to prepare for

an argument that had been abandoned. The district court fairly called this failure

“egregious.” See Bd. of License Comm’rs of Town of Tiverton v. Pastore, 469 U.S.

238, 240 (1985) (noting counsel’s “continuing duty to inform the Court of any

development which may conceivably affect the outcome of the litigation” (internal

quotation marks and citation omitted)). That failure is not excused by merely

declining to oppose summary judgment because that does not withdraw the claim

and let others know that they do not need to prepare for it. Cf. Heinemann v.

Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) (“[U]nder the Federal Rules, a

motion for summary judgment may not be granted based on a failure to file an

opposition to the motion . . . .”).

We also affirm sanctions based on counsel making numerous misleading and

incorrect statements to the district court. As just one example, Mcavoyamaya said

that Cromwell “forced” Lall “to go home” after a tremor on November 5, 2018.

But Lall was not “forced” to go home at all; instead, the record evidence indicates

7 that Lall chose to go home. Other examples abound. The “cumulative effect of

[Mcavoyamaya’s] litigation conduct,” was bad faith. See Lahiri v. Universal Music

& Video Distrib., 606 F.3d 1216, 1222 (9th Cir. 2010).

The district court did err in holding that raising a new argument in a reply

brief was grounds for sanctions under Section 1927 and its inherent powers. The

district court acted within its discretion by declining to consider Lall’s new,

COVID-19 tolling argument raised in a reply brief, see Zamani, 491 F.3d at 997,

but that argument was not inherently frivolous and does not appear to have been

made recklessly or in bad faith, see Fink v. Gomez, 239 F.3d 989, 993-994 (9th Cir.

2001) (discussing requirements for sanctions under Section 1927 and the court’s

inherent powers).

We nevertheless affirm the district court’s sanctions award because the other

two bases for sanctions were what “multiplied” proceedings. Raising the tolling

argument for the first time in a reply brief likely resulted in minimal additional cost

to Cromwell because Cromwell did not have a chance to respond to the argument

and the district court declined to consider it. In contrast, Mcavoyamaya’s failure to

withdraw Lall’s FMLA claim and his repeated misrepresentations added to the

court’s and Cromwell’s efforts.

We also affirm the award of fees and costs to Local 165 based on the district

court’s conclusion that Mcavoyamaya acted recklessly and in bad faith by

8 continuing to pursue Lall’s hybrid LMRA claim against Local 165 after March 26,

2021. Local 165 sent Mcavoyamaya a letter informing him that Lall asked union

representative Contorelli not to pursue her grievance. Lall did not qualify for an

exemption from the LMRA’s exhaustion requirement based on her desire to have

her attorney present, because an employee does not have the right to their own

attorney in this bargaining agreement’s grievance process. Castelli v. Douglas

Aircraft Co., 752 F.2d 1480, 1483 (9th Cir. 1985). Mcavoyamaya continued to

litigate the claim after receiving that letter on March 26, 2021, which the district

court correctly concluded “pushed [Mcavoyamaya’s] conduct over the line from

reckless to bad faith.”

5. The district court did not violate Mcavoyamaya’s due process rights

because he was not entitled to an evidentiary hearing. See Lasar v. Ford Motor

Co., 399 F.3d 1101, 1112 (9th Cir. 2005).

6. The district court retained jurisdiction over the motions for fees and costs

because a district court “retain[s] the power to award attorneys’ fees after the

notice of appeal from the decision on the merits ha[s] been filed.” Masalosalo by

Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir. 1983).

For these reasons, we affirm the district court’s grant of summary judgment

to Cromwell and Local 165 and affirm the district court’s award of sanctions.

AFFIRMED.