[00:00:02] Speaker 05: The United States Court of Appeals for the Ninth Circuit is now in session. [00:00:07] Speaker 06: Good morning. [00:00:08] Speaker 06: Welcome to the Ninth Circuit. [00:00:10] Speaker 06: We have one case on the calendar today. [00:00:16] Speaker 06: Judge Talman and I would like to welcome our colleague Judge Lasnik from the Western District of Washington. [00:00:24] Speaker 06: We very much appreciate his joining us. [00:00:26] Speaker 06: We would find it so difficult to do our work in a timely way without people like Judge Lasnik. [00:00:37] Speaker 06: So we are set for 15 minutes aside. [00:00:41] Speaker 06: It is my understanding [00:00:43] Speaker 06: that counsel for the defendants are splitting their time 11 minutes and four minutes, is that correct? [00:00:51] Speaker 06: And so what we will do is put on the clock the 11 and put on the clock the four. [00:00:59] Speaker 06: And when your time, when the 11 or the four are up, I will remind you. [00:01:04] Speaker 06: So with that, we are ready to begin and with counsel for the appellant. [00:01:14] Speaker 03: Yes. [00:01:16] Speaker 03: May it please the court. [00:01:18] Speaker 03: This is Michael Balaban representing an appellate, Tanya Hill. [00:01:23] Speaker 03: And yes, the reason why this appeal is being brought is, especially in the District of Nevada, none of the cases are really allowed to go to a trial. [00:01:38] Speaker 03: And even though their website, on their website, there's a quote that says the cornerstone, it's by former Chief Justice William Rehnquist, the cornerstone of the American justice system is the trial courts in which witnesses testify, juries deliberate, and justice is done. [00:02:03] Speaker 03: And the long and short of it is in the District of Nevada cases never go to trial, especially in employment cases. [00:02:11] Speaker 03: In this case, there's clearly issues of fact for a jury to decide. [00:02:19] Speaker 03: On intentional infliction of emotional distress, the main issue is usually [00:02:27] Speaker 03: looks to a jury to decide the community standard on on whether something's extreme and outrageous the conduct. [00:02:39] Speaker 03: And here we have [00:02:41] Speaker 03: Mr. Sherman, who was a football player now he's a celebrity does Amazon commentating and he appears on other sports shows and he came in the casino and his conduct on two occasions was [00:03:04] Speaker 03: Um, outrageous. [00:03:06] Speaker 03: I mean, there is no two ways about it. [00:03:08] Speaker 03: The both the both defendants try to, uh, sanitize his conduct and say, well, it wasn't much it, you know, it it's it was just so we're we're reviewing a motion to dismiss, correct? [00:03:25] Speaker 06: Well, yeah, with respect regard with regard to that claim against Mr Sherman, we are dealing with a motion to dismiss, correct? [00:03:34] Speaker 06: And when you filed your opposition to the motion to dismiss, you stood by the allegations that were in the complaint, your characterizations of Mr. Sherman's conduct. [00:03:52] Speaker 06: And in response to the motion to dismiss, you did not attempt to add to those allegations or supplement them in any way. [00:04:01] Speaker 06: You completely stood on the allegations in the complaint, correct? [00:04:06] Speaker 06: Correct, and yes, correct. [00:04:08] Speaker 06: So the question for us is just, as a matter of law, do the allegations in the complaint withstand a motion to dismiss? [00:04:18] Speaker 03: Correct, with respect to Mr. Sherm. [00:04:21] Speaker 03: Yes. [00:04:23] Speaker 03: And I believe they do. [00:04:25] Speaker 03: The allegations in the complaint go through his conduct, how he was yelling at my client, yelling obscenities and whatnot. [00:04:36] Speaker 03: I mean, in discovery, it was brought out that more things were said, that he used the word bitch a couple of times in referring to my client and stuff. [00:04:48] Speaker 03: But yes, I feel that [00:04:50] Speaker 06: that how the complaint was pledged initially against Mr. Sherman satisfies the moat getting in terms of the what you learned in discovery, you did not seek to amend the complaint. [00:05:06] Speaker 06: to add allegations of what you learned in discovery with regard to Mr. Sherman's alleged conduct, right? [00:05:14] Speaker 06: You never filed Rule 15 motion. [00:05:18] Speaker 06: You never proffered a proposed amended complaint. [00:05:20] Speaker 06: Am I correct? [00:05:22] Speaker 03: Correct. [00:05:24] Speaker 03: And the reason I didn't is because I was going to appeal the ruling on the motion to dismiss. [00:05:33] Speaker 03: I mean, it wasn't appealable when it was made. [00:05:37] Speaker 03: And I intended, as I did, to appeal it if the entire case was dismissed. [00:05:46] Speaker 03: I think I mentioned in my reply brief how these motions to dismiss are set up now. [00:05:53] Speaker 03: and they are filed, it's not unusual in almost every case to get a motion to dismiss. [00:06:00] Speaker 03: So then, especially when there's multiple parties and claims like here, tactically, why wouldn't you file a motion to dismiss? [00:06:10] Speaker 03: And then it's hard for the plaintiff to proceed on the case. [00:06:15] Speaker 03: But I mean, plaintiff has proceeded and they, [00:06:19] Speaker 03: The plaintiff took all the depositions and the, you know, what's added discovery and stuff, I think even makes the case stronger against- Well, I'm not sure you're answering Judge Bennett's concern. [00:06:36] Speaker 04: I don't understand as a matter of tactics why you didn't move to amend your complaint to add those allegations in order to bolster the strengths of them. [00:06:47] Speaker 04: I mean, we're basically faced with a record that's frozen in time as a result of the fact that you never asked the district court for a leave to omit. [00:06:58] Speaker 03: And you're saying after all the discovery came out and the additional [00:07:04] Speaker 03: things in discovery came out. [00:07:07] Speaker 04: Yeah I mean rule 15 basically gives the district court wide discretion in order to amend the pleadings to conform to what discovery adds prior to the motions cutoff date and the cutoff of discovery. [00:07:23] Speaker 02: I guess, Mr. Balaban, what you're saying is it wouldn't have done any good because in the District of Nevada, they don't let us go to trial on employment cases. [00:07:33] Speaker 02: Why else would you have started with that condemnation of the entire district court? [00:07:37] Speaker 03: Yeah, and that's the case. [00:07:43] Speaker 03: that maybe it should have been done like the justices are saying, but the reason it wasn't was because I didn't feel that the judge was going to grant an amendment. [00:08:00] Speaker 03: I mean, he [00:08:01] Speaker 03: didn't want the case to go forward. [00:08:05] Speaker 03: But I think even where it is at this point, the court can overturn the judge's initial order dismissing the case just on the pleadings back when they were initially made. [00:08:22] Speaker 03: I think it was plausibly pled. [00:08:27] Speaker 03: There was specific facts. [00:08:29] Speaker 03: and I think that there's enough there to overturn that order and put Mr. Sherman back in the case. [00:08:41] Speaker 02: What about the context of where this occurred? [00:08:43] Speaker 02: Is there any difference between something like that being said in a casino situation versus in a different situation? [00:08:56] Speaker 03: Well, I mean, I think it's it's possibly worse in a casino situation because it is in public. [00:09:04] Speaker 03: And there is other cases that I've cited where conduct like this has happened in casinos. [00:09:10] Speaker 03: And the court has ruled that there's an issue of fact on not only intentional infliction of emotional distress, but hostile environment sexual harassment. [00:09:23] Speaker 03: And it wasn't public. [00:09:26] Speaker 03: It did. [00:09:27] Speaker 03: embarrassed Ms. [00:09:29] Speaker 03: Hale and then again with respect to hostile environment it made her job a lot harder having to deal with somebody like Sherman, Mr. Sherman and so I think in the casino context is the perfect type of context to bring a case like this. [00:09:50] Speaker 02: Let's say that it happened on the [00:09:52] Speaker 02: football field, and a woman referee had flagged Mr. Sherman for past interference, and he said exactly the same things to her. [00:10:00] Speaker 02: Would that be intentional affliction of emotional distress? [00:10:05] Speaker 03: Well, that's in the context of a game, so I don't know if it would be the same. [00:10:13] Speaker 03: So context does matter? [00:10:16] Speaker 03: It does, yeah, to some extent, yeah. [00:10:18] Speaker 02: Okay, thank you. [00:10:22] Speaker 03: And so going on with respect to cosmopolitan and the case against them for hostile work environment, it's clear here, even though they say [00:10:39] Speaker 03: something to the contrary that they did not do what they needed to do to address the situation. [00:10:47] Speaker 06: Didn't they, I mean I know your claim is they waited too long the first time, but didn't they trespass Mr. Sherman? [00:10:57] Speaker 03: Yeah, yes, they did trespass. [00:10:59] Speaker 03: I mean, that's actually a two-edged sword, because they're trying to say, oh, the conduct was nothing. [00:11:06] Speaker 03: You know, it was nothing, but they trespassed the guy. [00:11:09] Speaker 03: But with respect to dealing with Ms. [00:11:13] Speaker 03: Hale, she's an employee. [00:11:15] Speaker 03: They never even responded to her complaint on Mr. Sherman. [00:11:22] Speaker 03: And they just kind of swept it under the table. [00:11:25] Speaker 03: And I mean, even after the second incident, she went to the pop person and table games about it and there was nothing done. [00:11:35] Speaker 03: So they did in my opinion, basically nothing. [00:11:39] Speaker 03: with respect to the employment issue here, i.e., that they're supposed to ensure that their workplace has a environment that is free of sexual harassment, free of hostility, that violates Title VII, and they didn't do that here. [00:12:01] Speaker 04: Council, the district court seemed to think that it was significant. [00:12:05] Speaker 04: that she was basically given more opportunities to work the blackjack tables and so on which apparently she says she prefers to work in craps and I didn't see any evidence of [00:12:23] Speaker 04: any pay reductions or anything that we typically see in these cases where there's a claim of retaliation. [00:12:32] Speaker 04: Am I missing something in the record? [00:12:35] Speaker 03: Well, the retaliation claim is, you know, I would say the weakest claim, but with respect to retaliation, and I cited law on it, if it would make an employee less likely [00:12:50] Speaker 03: to come forward with stuff, then that is enough for retaliation. [00:12:58] Speaker 03: I mean, I agree that she didn't suffer any dock and pay or anything of that nature, but the fact that she was regularly [00:13:09] Speaker 03: a craps dealer, and then made to do blackjack, that was an inconvenience to her. [00:13:16] Speaker 04: She was the pick up table games employee, so she worked all kinds of table games, didn't she, on a regular basis, depending on where the electronic employee software assigned her? [00:13:29] Speaker 03: Her main game was craps, but I agree. [00:13:35] Speaker 06: Didn't she testify? [00:13:36] Speaker 06: Am I misremembering this, but my recollection is the same as Judge Thomas. [00:13:41] Speaker 06: Didn't she testify in her deposition that she preferred the blackjack tables so that that was, in her view, a good thing? [00:13:50] Speaker 03: I did see that, that she testified to that, but I [00:13:57] Speaker 03: My understanding overall, and even in the deposition, was that she liked crafts. [00:14:05] Speaker 03: I, you know, I agree that is somewhat inconsistent. [00:14:11] Speaker 03: Her saying that she did like blackjack, so. [00:14:17] Speaker 06: Council, did you want to reserve? [00:14:19] Speaker 03: Yeah, that's what I was going to say. [00:14:20] Speaker 03: I'd like to reserve my last two minutes to rebut anything that [00:14:29] Speaker 03: Okay. [00:14:33] Speaker 06: We're ready to hear from the app, please. [00:14:38] Speaker 00: Jason, is it okay if I go first? [00:14:40] Speaker 00: Okay. [00:14:42] Speaker 00: So, um, good morning, Your Honors. [00:14:44] Speaker 00: May it please the Court, Lisa McLean here on behalf of Nevada Property 1 doing business as the Cosmopolitan. [00:14:51] Speaker 00: Um, uh, we believe that the District Court's order on the motion to dismiss the IIED claim should be affirmed, and we believe that the [00:14:59] Speaker 00: and as set forth in our brief, we don't believe it's properly before the court at this juncture, as there is no order that denied Mr. Balaban or Appellant Hale the right to amend her complaint. [00:15:14] Speaker 00: Even if you look at them for all of the procedural reasons that the judges mentioned during questioning of Mr. Balaban, [00:15:23] Speaker 00: We support that as well. [00:15:25] Speaker 00: He had the right as a matter, of course, to amend the complaint. [00:15:28] Speaker 00: He could do so. [00:15:31] Speaker 06: But I mean, that made doom his claim that the judge didn't properly give him the right to amend. [00:15:38] Speaker 06: But counsel have the right to stand on their original pleadings and appeal that. [00:15:43] Speaker 06: Even if they're given the right to amend, they have the right to say, I have nothing to add. [00:15:47] Speaker 06: There's nothing I can add. [00:15:48] Speaker 06: I think you were wrong. [00:15:49] Speaker 06: I'm going to wait until the end and appeal, right? [00:15:52] Speaker 00: Sure. [00:15:53] Speaker 00: And if we look at the complaint as pled, it still doesn't have a plausible claim for relief as pled. [00:16:02] Speaker 00: He has an IIED claim, and he has no sufficient facts that would show any intentional or reckless conduct on the part of the cosmopolitan to cause him harm. [00:16:15] Speaker 00: And in fact, in his brief, he [00:16:19] Speaker 00: He avoids the intentional element that he has to prove as to the cosmopolitan and instead argues and blurs the line and tries to argue the standard for negligence that's applied in all of the cases that he cites to are cases involving harassment. [00:16:37] Speaker 00: There's not plausible claims setting forth any extreme [00:16:42] Speaker 00: or outrageous conduct on the part of the cosmopolitan. [00:16:45] Speaker 00: The big piece is that there's not any intentional conduct that he's pled in that complaint on behalf of the cosmopolitan that would give rise to a plausible claim for relief as to IIED. [00:16:59] Speaker 06: So you would agree, wouldn't you, that at some point on a continuum, an employer allowing [00:17:09] Speaker 06: someone who is harassing one of their employees to keep doing it, that that can at some point get to the jury on intentional actions, wouldn't you? [00:17:22] Speaker 06: When they have the power to bar the putative harasser and at some point they choose not to do it, that can equal intent under the law at some point, right? [00:17:34] Speaker 00: Perhaps, but that's not what occurred here, and that's not what was pled in the complaint as to the intentional act of the cosmopolitan. [00:17:44] Speaker 00: So in this case, as Mr. Balaban said, hey, you should be looking at what came out in discovery. [00:17:51] Speaker 00: What came out in discovery is that, as Your Honor mentioned previously, very aptly, is that the cosmopolitan did, in fact, respond to the situation. [00:18:01] Speaker 00: And when the conduct couldn't be brought in line with their standards, they asked Mr. Sherman to leave for the evening. [00:18:07] Speaker 00: and security did investigate the matter asking him to leave. [00:18:13] Speaker 00: So there really isn't any extreme or outrageous outside the bounds of all decency, atrocious, utterly intolerable behavior that's been pled against the cosmopolitan in this instance. [00:18:31] Speaker 00: As it relates to the retaliation claim, I agree that that is the weakest claim, and again, that should be affirmed by this court. [00:18:39] Speaker 00: He can't demonstrate that she suffered any adverse employment action. [00:18:43] Speaker 00: She is still employed to this day. [00:18:44] Speaker 00: She had no loss in benefits as an ink, because she actually testified she enjoys [00:18:51] Speaker 00: The position that she works in the games that she's been assigned more there's actually an increase in her pay. [00:18:58] Speaker 00: There's no adverse employment action that she can cite to and in terms of the number of game assignments, she never was. [00:19:06] Speaker 00: supervisor assigned to one specific game, but we included in our brief the number of games, and his argument just doesn't, it doesn't match what is before the court in terms of the evidence, how many times she was assigned, and it's irrelevant because she prefers the game that she's currently assigned the majority of the time, Blackjack. [00:19:29] Speaker 00: And then likewise, the retaliation claim should be affirmed because she can't demonstrate that any of the alleged adverse employment actions were causally connected to her protected activity. [00:19:43] Speaker 00: The things she recites are the game assignments, which again, she claims she likes what she's been assigned better. [00:19:51] Speaker 00: Then also this FMLA scenario, which there's no FMLA violation asserted just to claim that the cosmopolitans exercise of communication dialogue that's expected under the regulations and specifically allowed under FMLA regulations, [00:20:09] Speaker 00: that that somehow gives rise to a retaliation claim. [00:20:15] Speaker 00: No reasonable juror could find that, like in this instance, when an employee comes to a manager and says, hey, I need time off because my mom just had an aneurysm, and the employer responds with, okay, you can fill out an FMLA certification form, that that somehow is retaliatory. [00:20:31] Speaker 00: That's actually what's expected of an employer to do in that situation. [00:20:35] Speaker 00: She says, well, I didn't want FMLA. [00:20:37] Speaker 00: Well, the record reflects that she wasn't forced to take FMLA. [00:20:41] Speaker 00: She was given a personal leave of absence, wasn't required to take FMLA because she didn't want to, and still was allowed the time off. [00:20:48] Speaker 00: So again, no adverse action there. [00:20:51] Speaker 00: And then importantly, he can't show that the ask for recertification is an adverse action either. [00:20:58] Speaker 00: That's something that's permitted under the regs. [00:21:00] Speaker 00: She admits that she was regularly taking Fridays off. [00:21:05] Speaker 00: The record shows at least six, if not more Fridays. [00:21:08] Speaker 00: And the regulations specifically allow for recertification when there's a pattern of absences that isn't anticipated in the certification. [00:21:20] Speaker 00: There's no evidence and in fact, Ms. [00:21:24] Speaker 00: Hale testified that no cosmopolitan employee ever questioned her about her FMLA use. [00:21:29] Speaker 00: The certification was sent out by a third party administrator. [00:21:33] Speaker 00: Ms. [00:21:33] Speaker 00: Hale acknowledged her pattern of Friday absences, and we have the declaration of the administrator from Sun Life that said they had no knowledge or information relating to the Sherman incident or any complaints relating to the workplace. [00:21:55] Speaker 05: So you were to say whether it's what your chances are of getting here like today or tomorrow when you think they are less than 50. [00:22:03] Speaker 05: I'm sorry, I don't know who's speaking. [00:22:04] Speaker 06: I don't know what's happening. [00:22:07] Speaker 06: Hang on a second. [00:22:08] Speaker 06: Let's see. [00:22:09] Speaker 06: Why don't we stop the clock a minute there. [00:22:12] Speaker 00: Thank you. [00:22:18] Speaker 06: Okay, I think whatever that was is stopped. [00:22:24] Speaker 06: Why don't you go ahead and if you need a little bit of extra time because of the interruption, we will give that to you and we will not take that away from your co-counsel. [00:22:32] Speaker 00: Thank you, Your Honor. [00:22:33] Speaker 00: And finally, in terms of the hostile work environment claim, we believe that that decision also, that claim was dismissed on summary judgment. [00:22:42] Speaker 00: We believe that the court should affirm that decision. [00:22:45] Speaker 00: Hale's hostile work environment claim is subject to dismissal because the conduct about which she complains was not because of sex. [00:22:53] Speaker 00: The actions were not sufficiently severe or pervasive to alter the terms and conditions of her employment. [00:22:59] Speaker 00: and they did not create an abusive work environment. [00:23:03] Speaker 00: that there was sufficiently severe, pervasive conduct that altered the conditions of her employment and created a hostile work environment. [00:23:14] Speaker 00: Title VII isn't meant to be a general civility code. [00:23:18] Speaker 00: And whether the conduct, the work environment is hostile or abusive, we look at, as the court mentioned earlier, the totality of the circumstances. [00:23:27] Speaker 00: This is a casino. [00:23:29] Speaker 00: And you asked about games. [00:23:31] Speaker 00: Mr. Sherman was playing a game. [00:23:32] Speaker 00: He was playing a game. [00:23:32] Speaker 00: playing a game here in Las Vegas on a casino floor on a weekend evening. [00:23:37] Speaker 00: These comments, while we don't approve of anyone cursing or using profanity at our employees, this is a conduct that occurred in an elementary school or in a Sunday school class. [00:23:49] Speaker 06: I'm sorry, Council. [00:23:50] Speaker 06: I have a lot of trouble agreeing with your proposition there that [00:23:56] Speaker 06: The fact to me that it is a casino cannot be any kind of an excuse for someone doing something which is alleged in the complaint, screaming at the plaintiff, mother effer, mother effer, I'll have your job. [00:24:13] Speaker 06: So the fact that it's in a casino as opposed to some other place, I don't understand how that kind of conduct toward an employee [00:24:24] Speaker 06: would somehow not be as bad as if it were in some other places. [00:24:30] Speaker 06: As alleged, it strikes me as pretty odious. [00:24:33] Speaker 00: Well, the cosmopolitan doesn't acquiesce, doesn't condone, doesn't ratify that behavior, but the totality of the circumstances and whether or not that rises to the level of being severe or pervasive or abusive, [00:24:48] Speaker 00: is what's important. [00:24:50] Speaker 00: The frequency of the conduct is a factor that's considered as well. [00:24:55] Speaker 00: There were two isolated circumstances. [00:24:58] Speaker 00: The second incident lasted three minutes. [00:25:02] Speaker 00: There's no physical threatening that occurs in this situation. [00:25:07] Speaker 00: And then whether it unreasonably interferes with the employee's work performance is also a relevant factor. [00:25:13] Speaker 00: Hale testified that she just ignored, especially as it relates to the second instance, which is what they argue on the reply brief, that they're not claiming that we should be held directly or vicariously responsible for Sherman's conduct, but really about not stopping the second incident. [00:25:33] Speaker 00: That second incident was three or four minutes, and Ms. [00:25:37] Speaker 00: Hale testified that there was no profanity, no cursing, no physicality, and that she was able to just ignore it and keep going about her work. [00:25:50] Speaker 00: So simple teasing, offhand comments, and isolated incidents are not actionable conduct. [00:25:57] Speaker 00: And the cases that are cited by the appellant in the brief are clearly distinguishable, where he focuses really on creating a hostile work environment by failing to investigate. [00:26:12] Speaker 00: Elearth sets it forth really clearly that an employer can't be held reliable unless it reacts negligently to the harassment complaint. [00:26:22] Speaker 00: And in this case, the cosmopolitan did take appropriate corrective actions, and Hale has not experienced any further problematic encounters with Sherman. [00:26:32] Speaker 00: So we ask that the court reaffirm the decision. [00:26:34] Speaker 00: As for the decisions cited, we think that they are clearly [00:26:38] Speaker 00: differentiated the Freed versus Wynn case is one that Hale's counsel argued before this court not long ago. [00:26:46] Speaker 00: And in that case, they said that sometimes an employer's response to a complaint independently can create a hostile work environment, but that was a much different situation. [00:26:57] Speaker 00: Freed had three occasions, two with inappropriate comments. [00:27:00] Speaker 00: The third one was very physical where the customer made multiple graphic obscene. [00:27:05] Speaker 06: You have a closing point. [00:27:06] Speaker 00: Yeah, multiple obscene comments. [00:27:09] Speaker 00: And in that case, the employer told him he had to go back, sit at the feet of that person that was allegedly harassing him, and actually engage in physical conduct. [00:27:19] Speaker 00: That happens in every one of the cases that he cited. [00:27:22] Speaker 00: That is not what occurred here. [00:27:23] Speaker 00: The cosmopolitan did not condone inappropriate conduct or behavior. [00:27:27] Speaker 00: the workplace Mr. Sherman when he couldn't conform his behavior was asked to leave and Ms. [00:27:32] Speaker 00: Hale did not experience any other problematic behavior from him which interfered with her ability to perform her job or created an abusive working environment. [00:27:44] Speaker 06: All right thank you counsel we'll hear from your colleague. [00:27:51] Speaker 01: Good morning, may it please the court. [00:27:52] Speaker 01: Jason Hicks on behalf of Richard Sherman. [00:27:55] Speaker 01: I have only four minutes, so I'd like to use my time wisely. [00:27:59] Speaker 01: So let me start by asking, does the panel have particular questions or concerns I can address right off the gate? [00:28:06] Speaker 06: Well, I'll ask you a question, counsel. [00:28:09] Speaker 06: The complaint alleges, for example, in paragraph 18, that your client started screaming. [00:28:17] Speaker 06: mother effer, mother effer, I'll have your job. [00:28:21] Speaker 06: And the district court found that wasn't enough to set out an IIED claim. [00:28:30] Speaker 06: What if instead of alleging that it was said twice, the complaint had alleged that it was screamed 20 times? [00:28:39] Speaker 06: Would that be enough? [00:28:41] Speaker 01: Not from my perspective, no, Your Honor. [00:28:44] Speaker 06: So screaming those words, no matter how many times and for no matter how long they go on, doesn't get you past the pleading stage for IIED in Nevada? [00:28:57] Speaker 01: No, I think the length of time can matter. [00:28:59] Speaker 01: It's one of the many factors when you look at the context of the interaction. [00:29:04] Speaker 01: So yes, if he said it 20 times over 20 occasions, for example, then perhaps. [00:29:09] Speaker 01: But it's a bit of a sliding scale. [00:29:11] Speaker 06: But at the motion to dismiss stage, are there magic numbers? [00:29:15] Speaker 06: So 10 is, as a matter of law, not enough, but 20 is. [00:29:22] Speaker 06: Three minutes as a matter of law isn't enough, but 10 minutes is. [00:29:26] Speaker 06: Why wouldn't these be better handled at summary judgment rather than at the motion to dismiss stage, where the words themselves and screaming at some point, as it seems like you've said, would cross the line? [00:29:41] Speaker 01: To answer your first question, Your Honor, there is not a magic number that would make our job too easy. [00:29:46] Speaker 01: An IIED claim is one of those amorphous claims that doesn't have a neat element checklist that we can go through, but it is the kind of thing that you know when you see it. [00:30:00] Speaker 01: So unfortunately, [00:30:04] Speaker 01: The case law doesn't say that once is enough or twice is enough or 10 times is enough. [00:30:08] Speaker 01: It depends on the circumstances and the circumstances that are played in the complaint was it was said one time on one occasion on one day. [00:30:16] Speaker 01: And while there's no clear threshold for what constitutes an IED claim. [00:30:22] Speaker 01: Courts of Nevada have at least given us some guidance or objective thresholds we can compare this case to. [00:30:29] Speaker 01: I don't want to rehash all the cases in our brief, but I will point the court to the case of Lopez versus UPS, which is cited on page 10. [00:30:37] Speaker 01: And in that case, we had allegations of racial epithets, which we don't have here, threatened physical violence, which we don't have here, and instances that occurred over the course of several years, which we don't have here. [00:30:50] Speaker 01: And the court in that case found that the allegations did not rise to the level of an IIED claim and were instead the types of indignities and threats that folks unfortunately have to be accustomed to in our society. [00:31:04] Speaker 01: So if we know that the allegations in Lopez are not enough, then I think it's safe to say that the allegations in this particular case are far from sufficient. [00:31:21] Speaker 01: Are there any other questions I can answer? [00:31:30] Speaker 01: All right. [00:31:30] Speaker 01: Hearing none, I will real quick while I have a couple of seconds. [00:31:34] Speaker 01: Judge Lesnik, you brought up a point earlier and you asked a question rather, does context matter? [00:31:39] Speaker 01: And I think the answer is absolutely yes, it does. [00:31:43] Speaker 01: An IIED claim is amorphous in that the standard is what is beyond all possible bounds of decency, what is utterly intolerable or atrocious in a civilized society. [00:31:53] Speaker 01: So it's a societal norm standard. [00:31:55] Speaker 01: And I think context certainly matters when you consider claims under IIED. [00:32:00] Speaker 01: For example, what society may determine to be mean or indignant but not utterly atrocious in a casino setting with an adult is different than what society may deem to be utterly atrocious in, for example, a preschool with a bunch of three-year-olds. [00:32:18] Speaker 01: So context does matter, and in this case, [00:32:24] Speaker 01: You know, I've spent a lot of time on the strip. [00:32:25] Speaker 01: I grew up here. [00:32:27] Speaker 01: And bad words accompany bad beats. [00:32:30] Speaker 01: Profanity is prolific somewhat on the casino floor. [00:32:33] Speaker 01: And that context does matter. [00:32:35] Speaker 01: We're not here on Sunday church. [00:32:37] Speaker 01: We're here on a Friday night in the middle of the night in Sin City. [00:32:41] Speaker 01: So in that respect, I do think that context does matter. [00:32:44] Speaker 01: And in this case, putting it into context, the allegations as put in the original complaint did not meet that threshold. [00:32:53] Speaker 06: Thank you, counsel. [00:32:54] Speaker 06: Mr. Balvin, you have two minutes. [00:32:57] Speaker 03: Yes. [00:32:59] Speaker 03: With respect to dealing first with the intentional infliction of emotional distress, come on. [00:33:07] Speaker 03: I mean, in the complaint, it's pled that he said, you mother effer, I'll have your job. [00:33:16] Speaker 03: That's not extreme and outrageous. [00:33:19] Speaker 03: And Council for Sherman said that, well, context matters. [00:33:27] Speaker 03: And it's played in the complaint. [00:33:28] Speaker 03: There was a number of patrons from the casino that came to Ms. [00:33:33] Speaker 03: Hale and said, I can't believe he said that. [00:33:37] Speaker 03: you know, and employees came up to her. [00:33:42] Speaker 03: I mean, it's a community standard. [00:33:44] Speaker 03: This is outrageous conduct. [00:33:47] Speaker 04: So what do we do with the testimony? [00:33:49] Speaker 04: I don't know if it was the floor manager or the pit boss, but the testimony that profanity and sort of these kinds of outbursts are a common occurrence in operating a casino. [00:34:04] Speaker 04: It's not usual for players to get frustrated when they lose and get mad. [00:34:08] Speaker 03: I mean, it might be a common occurrence at the Cosmopolitan. [00:34:14] Speaker 03: I mean, I think that's ground zero for this type of conduct, but it shouldn't be. [00:34:20] Speaker 03: I mean, employees shouldn't be subject to this type of conduct just to do their job. [00:34:27] Speaker 03: And I cited that [00:34:30] Speaker 03: regulation on it now because it's become such a problem and you know I just think that for them to just kind of sweep all this under the table and say it's business as usual is ridiculous. [00:34:47] Speaker 03: With respect to some of Cosmopolitan's arguments, just real quickly, rebutting those, I mean, I agree on the intentional infliction of emotional distress against them. [00:35:02] Speaker 03: It might be weak. [00:35:04] Speaker 03: The stronger argument against them is the hostile environment created, and there is [00:35:10] Speaker 03: case law that I've cited. [00:35:12] Speaker 03: There was a casino case the Ninth Circuit cited on what a casino was required to do when a patron harasses an employee. [00:35:25] Speaker 03: I mean, it was not done here, and their response- You're over your time. [00:35:30] Speaker 06: Why don't you make a final point? [00:35:32] Speaker 03: Okay, and so I would just submit that this case, [00:35:38] Speaker 03: Plaintiffs should have the right to a jury trial. [00:35:41] Speaker 03: It's guaranteed by the Seventh Amendment. [00:35:44] Speaker 03: Here you have conduct that is factual based. [00:35:49] Speaker 03: There is a material issue of fact here as to whether the conduct meets the standard of intentional infliction of emotional distress or hostile environment. [00:36:01] Speaker 03: So on that basis, the plaintiff or appellant would submit. [00:36:07] Speaker 06: Thank you. [00:36:08] Speaker 06: We thank Council for their arguments and the case argued is submitted. [00:36:13] Speaker 06: With that, we are adjourned. [00:36:16] Speaker 05: Thank you. [00:36:20] Speaker 05: This court for this session stands adjourned.