Gina Dannenbring v. Wynn Las Vegas, LLC

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NOT FOR PUBLICATION MAR 28 2016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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