The United States Court of Appeals for the Ninth Circuit will allow nine “Judy Doe” plaintiffs to refile their complaint alleging sexual harassment perpetrated by Steve Wynn, former chairman and CEO of defendant Wynn Resorts.
The plaintiffs are identified only as nine female employees of a resort operated by defendant Wynn Las Vegas. They had filed a complaint in the United States District Court for the District of Nevada against defendants Wynn Resorts Limited and Wynn Las Vegas LLC.
The District Court ruled the plaintiffs “failed to plead sufficient facts to support the claims” and dismissed the complaint without prejudice and without allowing leave to amend.
In a ruling released Tuesday regarding a hearing held October 4 in San Francisco, the Appeals Court affirmed in part the District Court’s decision to dismiss, reversed in part, and remanded to allow plaintiffs to amend their complaint.
In its ruling, the Appeals Court noted the district court “properly dismissed” the Judy Does’ claims for “failing to allege sufficient facts to state a claim.”
However, because the pleading deficiencies in the Judy Does’ complaint could be “cured,” the Appeals Court ruled the case should be remanded – or returned to the lower court – to give the District Court the opportunity to grant the plaintiffs leave to amend their complaint.
“The Judy Does should be permitted to file their amended complaint under fictitious names, at which point the District Court should reassess the motion to proceed under fictitious names,” the Appeals Court wrote in its ruling.
Few details on individual complaints
The Appeals Court noted the original complaint collectively alleged that the Judy Does “saw, surmised, heard about and suspected misconduct by Steve Wynn.” The complaint detailed some of the abuses the Judy Does witnessed or heard about, but it did not specify which plaintiffs, or even how many, witnessed the events or merely heard about them after the fact.
The Judy Does further alleged that each plaintiff “also suffered similar but individualized acts of sexual harassment and personal degradation by Steve Wynn,” but the Appeals Court said the complaint provides no further detail about these individualized acts.
In their appeal, the Judy Does contended public disclosure of these facts was not necessary because the defendant has copies of the charges the Judy Does brought before the Equal Employment Opportunity Commission (EEOC). The Judy Does maintain that in the EEOC charges, “Plaintiffs provided wrenching and detailed accounts of their interactions with Steve Wynn.”
The Appeals Court further noted that at no point were the EEOC charges submitted to the District Court or incorporated into the original complaint.
“Any specific examples of sexual harassment that can be found in the complaint do not involve the Judy Does personally or individually,” the Appeals Court found.
The Appeals Court ruling said the original complaint described one incident in which some Judy Does were present at a birthday party when Steve Wynn joked about sexually harassing an employee and initiated hugs and kisses with employees.
The Judy Does did not allege in the original complaint that they were among those who were touched, hugged or kissed by Steve Wynn, but rather that they witnessed it or heard about it after the fact, the Appeals Court said.
Similarly, the Appeals Court noted while the Judy Does “repeatedly point” to the Massachusetts Gaming Commission’s investigation into workplace misconduct at Wynn Resorts as evidence, the Judy Does never alleged that they were involved in these claims or the investigation.
The Judy Does argue that their use of collective pleading is “appropriate” given the commonalities between their experiences, but they ultimately seek “individual relief” stemming from “separate transactions[s] or occurrence[s].”
While the Judy Does never filed a formal motion for leave to amend, they repeatedly expressed a willingness to provide more information, so long as their privacy could be assured. While the Judy Does had no automatic right to file an amended complaint, the Appeals Court found the District Court “still should have granted leave to amend when dismissing claims that could be cured with additional facts.”
Wynn Resorts did not immediately respond to a request by Gaming America for comment on the Appeals Court’s decision.
