FILED
NOT FOR PUBLICATION MAR 28 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GINA DANNENBRING, No. 14-15443
Plaintiff - Appellant, D.C. No. 2:12-cv-0007-JCM
v. MEMORANDUM*
WYNN LAS VEGAS, LLC,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted March 15, 2016**
San Francisco, California
Before: BYBEE and N.R. SMITH, Circuit Judges, and HELLERSTEIN,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
Gina Dannenbring appeals the district court's grant of summary judgment in
favor of the Wynn Las Vegas on her claims of pregnancy discrimination under
Title VII, retaliation under Title VII, and failure to pay overtime in violation of the
Fair Labor Standards Act. We have jurisdiction pursuant to 28 U.S.C. § 1291.
Reviewing the district court's grant of summary judgment de novo, we affirm.
Webster v. Pub. Sch. Employees of Washington, Inc., 247 F.3d 910, 913 (9th Cir.
2001).
1. Dannenbring has failed to show that the Wynn's articulated explanation for
her termination was a pretext for pregnancy discrimination. “Where the evidence
of pretext is circumstantial, rather than direct, the plaintiff must present ‘specific’
and ‘substantial’ facts showing that there is a genuine issue for trial.” Noyes v.
Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007) (quoting Godwin v. Hunt
Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998)). The Wynn explains that
Dannenbring's termination resulted from an incident in which Dannenbring stored
confidential client information on her personal computer and thereby allowed her
ex-boyfriend to access it, in violation of the Wynn’s confidentiality and
non-disclosure policies. Dannenbring's argument that this incident was an unfair
reason for her termination, in light of the wrongful nature of her ex-boyfriend's
conduct, does not create a factual question about the truth of the Wynn’s reason for
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terminating Dannenbring. And Dannenbring's allegation that the Wynn
imperfectly enforced those policies was not proved, and was properly rejected by
the district court.
2. Dannenbring cannot establish a prima facie case on her retaliation claim
because she cannot show any causal link between protected activity – her
discrimination charge against the Wynn filed with the Nevada Equal Rights
Commission (NERC) on April 10, 2011 – and any adverse employment decision.
See Hashimoto v. Dalton, 118 F.3d 671, 679 (9th Cir. 1997). Dannenbring's
termination, effective on October 11, 2010, came before her discrimination charge
was even made. Dannenbring instead argues that the Wynn's opposition to her
unemployment benefits and its settlement offer were “adverse employment
actions.” Even assuming that an employer's opposition to unemployment benefits
could constitute an adverse employment action, the Wynn's opposition was
initiated in November of 2010 and preceded Dannenbring's discrimination charge.
Its opposition could not have been retaliatory. And Dannenbring offers no
persuasive explanation of how an offer of settlement itself could be an adverse
employment action.
3. Finally, the district court correctly found that Dannenbring's activities as a
slot marketing executive host excluded her from overtime benefits under the Fair
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Labor Standards Act (“FLSA”). The FLSA exempts from its coverage “any
employee employed in a bona fide . . . administrative . . . capacity,” 29 U.S.C.
§ 213(a)(1), where an employer proves that its employee satisfies three criteria: 1)
the employee receives a salary above the regulated limit, 2) the employee's primary
duty is “[t]he performance of office or non-manual work directly related to the
management or general business operations of the employer or the employer's
customers,” and 3) the employee's “primary duty includes the exercise of
discretion and independent judgment with respect to matters of significance.” 29
C.F.R. § 541.200; see also Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1125 (9th
Cir. 2002). Dannenbring's salary was above the regulated limit, and undisputed
facts about Dannenbring's actual job duties demonstrated that she satisfied the
latter two criteria.
Dannenbring promoted the Wynn's gambling business with customers by
cultivating relationships with individual gamblers. This was a marketing activity
and thus a general business operation, pursuant to a regulation that identifies
“marketing” as one of a number of functions that relate to general business
operations. 29 C.F.R. § 541.201(b). Dannenbring also exercised discretion and
independent judgment in her marketing activities. 29 C.F.R. § 541.202.
Dannenbring's client relationships were largely self-managed and she was held
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accountable based on the results of her marketing efforts. She was able to extend
complimentary benefits (“comps”), issue lines of credit up to $25,000, as well as
authorize other employees to issue comps to other customers. The Wynn did
impose guidelines on these tasks, but “the term ‘discretion and independent
judgment’ does not require that the decisions made by an employee have a finality
that goes with unlimited authority and a complete absence of review.” 29 C.F.R. §
541.202(c); see In re Farmers Ins. Exch., Claims Representatives' Overtime Pay
Litig., 481 F.3d 1119, 1130 (9th Cir. 2007).
AFFIRMED
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