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The nine women all still work at the Wynn Salon or Encore Salon as manicurists or makeup artists. They sued Wynn Resorts Ltd. and Wynn Las Vegas LLC in September 2019 in the wake of high-profile probes by Nevada and Massachusetts gaming authorities that spurred Steve Wynn’s resignation as CEO. The two companies are their joint employer, they said.
Steve Wynn used their workplaces as a “hunting ground” for his sexual harassment, causing them and other salon workers to live in fear, and they each experienced “individualized acts of sexual harassment and personal degradation” by him, they said in pre-argument briefing.
They should be allowed to pursue sexual harassment and other claims over Steve Wynn’s actions and the companies’ toleration and ratification of it, the women will tell the U.S. Court of Appeals for the Ninth Circuit during oral arguments Monday.
The women, who are identified only as Judy Does 1-9, will also tell the San Francisco-based federal appeals court they should be allowed to pursue their claims anonymously.
The U.S. District Court for the District of Nevada wrongly dismissed the suit in July 2020, according to the women.
And the district court didn’t let them amend their suit to cure any deficiencies despite finding the deficiencies might be curable, they said. That goes against the preference for deciding cases on the merits and the lower court’s decision to dismiss the suit without prejudice, they said.
Their suit should be revived because the lower court improperly found their sexual harassment claims were “collectively pleaded,” the women said.
But the suit sufficiently described the sex discrimination they experienced “in a manner that ensured protection of their individual identities,” they said.
More detail wasn’t required because the companies already had the “detailed” charges they filed with the Equal Employment Opportunity Commission, which included their names and “specified how each individual Judy Doe endured Steve Wynn’s sexual advances,” the women said.
Their suit included more details than the complaint the Ninth Circuit found lacking in Bautista v. Los Angeles County, making the lower court’s reliance on that case misplaced, they said.
“Bautista involved plaintiffs who were members of different types of protected classes, while this case involves plaintiffs who are all part of the same protected class,” the women said. The plaintiffs there also didn’t have a similar reason for wanting to shield their identity from public disclosure, they said.
The women’s attempt to distinguish Bautista misses the mark because the failure to plead “separate claims for each protected class” wasn’t at issue in that case, Wynn Resorts and Wynn Las Vegas said in their pre-argument brief.
The holding in Bautista was instead founded on the suit’s seeking individual relief for each plaintiff without including “the who, what, where, when and how” needed to show the discrimination each plaintiff allegedly experienced, the companies said.
The Wynn women’s fear of publicly revealing their identities isn’t an excuse for failing to comply with federal pleading rules, the companies said.
The women also didn’t cite any legal authority for the proposition that pleading rules “are suspended” when plaintiffs have filed EEOC charges, the companies said.
The lower court was likewise correct that the women’s retaliation, intentional infliction of emotional distress, invasion of privacy, and negligent hiring, training, supervision, and retention claims similarly lacked sufficient detail or specificity, the companies said.
Leave to amend the suit wouldn’t have been proper because the women never requested it, the companies said.
Their contention that such a request was unnecessary relies on an outdated reading of the federal rules and would flout the District of Nevada’s local rules, the companies said.
The lower court wrongly denied their motion to proceed anonymously, which the companies mostly didn’t oppose, the women said.
The circuit allows parties to sue using pseudonyms when the nondisclosure of their identity is required to shield them from personal embarrassment, ridicule, injury, or harassment, they said.
Steve Wynn “is incredibly wealthy and powerful” and has a “highly litigious nature,” giving them ample reason to fear retribution and further harassment, they said.
But the women’s stated fear of being sued for defamation by Steve Wynn doesn’t fit any of the criteria the circuit uses to determine whether anonymous suits should be allowed, the companies said.
Also, as the perpetrator of the alleged harassment, he presumably is already aware of the women’s identities, the companies said.
The women also failed to offer any evidence their fear of being sued by him describes “a sufficiently severe economic harm,” the companies said.
The reasonableness of their fear is further undermined by the fact that allegations in a court complaint generally are “absolutely privileged” and can’t support a defamation suit, the companies said.
Maier Gutierrez & Associates and Gilbert & England Law Firm represent the women. Jackson Lewis PC represents the companies.
The case is Doe v. Wynn Resorts Ltd., 9th Cir., No. 20-16551, oral argument 10/4/21.