Keimbaye v. Kaiser Permanente of Bellevue Medical Center et al, No. 2:2018cv01782 - Document 30 (W.D. Wash. 2020)
Court Description: ORDER granting Defendants' 23 Motion for Summary Judgment. Plaintiff's claims are DISMISSED with prejudice. Signed by U.S. District Judge John C Coughenour. (TH)
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Keimbaye v. Kaiser Permanente of Bellevue Medical Center et al Doc. 30 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 1 of 13 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 DOMINIQUE KEIMBAYE, 10 Plaintiff, 13 14 ORDER v. 11 12 CASE NO. C18-1782-JCC KAISER PERMANENTE OF BELLEVUE MEDICAL CENTER and KAISER FOUNDATION HEALTH PLAN OF WASHINGTON, Defendants. 15 16 17 This matter comes before the Court on Defendant Kaiser Foundation Health Plan of 18 Washington’s 1 motion for summary judgment (Dkt. No. 23). Having thoroughly considered the 19 parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby 20 GRANTS the motion for the reasons explained herein. 21 I. 22 BACKGROUND Plaintiff was employed as an Anesthesia Technician at Defendant’s Ambulatory Surgery 23 Center from January 1, 2017, to June 14, 2017. (See Dkt. Nos. 25 at 1–2, 25-10 at 2.) Plaintiff 24 worked in the surgery center’s operating room, where he assisted patients under general 25 1 26 Defendant states that “‘Kaiser Permanente of Bellevue Medical Center’ is not a legal entity.” (Dkt. No. 23 at 1 n.1.) ORDER C18-1782-JCC PAGE - 1 Dockets.Justia.com Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 2 of 13 1 anesthesia while surgery was performed, and in the pain clinic, where he worked with chronic 2 pain patients. (Dkt. No. 25 at 2.) As an Anesthesia Technician, Plaintiff’s job duties included 3 “assuring adequate inventory, cleaning and maintaining equipment, coordinating 4 repairs/maintenance of equipment, troubleshooting problems with anesthesia equipment, 5 assisting providers with difficult intubation, [and] communicating with patients and their 6 family.” (Id.; see Dkt. No. 25-1 at 2–7.) 7 During Plaintiff’s employment by Defendant, members of Defendant’s staff reported 8 several issues with Plaintiff’s performance of his job duties. On March 18, 2017, Dr. Daniela C. 9 Stafie and Dr. Susana Su discussed Plaintiff’s failure to properly set up a fiberoptic scope, which 10 resulted in Dr. Su having to abandon an airway rescue to troubleshoot the equipment herself. 11 (See Dkt. Nos. 25 at 2, 25-2 at 2–3.) Although the patient was unharmed, Plaintiff’s failure raised 12 substantial patient safety concerns and led Defendant to schedule a training for its operating 13 room employees, give Plaintiff additional training, and take Plaintiff “off the more complex 14 cases.” (Dkt. No. 25 at 2–3.) 15 On March 28, 2017, Erin Cooper, a Certified Registered Nurse Anesthetist (“CRNA”) 16 employed by Defendant, was working with Plaintiff when an issue arose with the 17 electrocardiogram (“EKG”) tracing for a patient. (See Dkt. Nos 25 at 3, 25-3 at 2–4.) The EKG 18 was failing to properly trace and “there was a specific issue with artifact and a secondary V lead 19 tracing popping up that was specific to” the EKG’s “module/box attached to the monitor.” (Dkt. 20 No. 25-3 at 3.) According to Cooper, Plaintiff repeatedly attempted the same troubleshooting 21 step to no avail. (See Dkt. Nos. 25 at 3, 25-3 at 3.) Cooper eventually asked Plaintiff to retrieve a 22 new module, and he did so. (See Dkt. No. 25-3 at 3.) Shortly thereafter, Jewel Hagan, another 23 CRNA employed by Defendant, encountered the same unique issue in an EKG in another 24 patient’s room; Cooper believed that Plaintiff had swapped the faulty EKG module for another 25 instead of taking the faulty module out of circulation. (Id.) When asked about the incident, 26 Plaintiff denied having changed out the faulty EKG module in the first place. (Id.) ORDER C18-1782-JCC PAGE - 2 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 3 of 13 1 On March 31, 2017, Hagan was assisting with a surgery when she noticed that the pulse 2 oximeter was malfunctioning. (Dkt. No. 25-4 at 2.) Hagan asked Plaintiff “to ‘bring me a whole 3 new pulse oximeter cable’” but Plaintiff brought “just the finger probe.” (Id.) After a new cable 4 was eventually obtained, Hagan asked Plaintiff if he had taken the faulty cable out of circulation, 5 to which Plaintiff replied, “No, I tried it on myself and it worked.” (Id.) Hagan explained to 6 Plaintiff that the faulty cable had to be taken out of circulation to ensure patient safety and to 7 avoid spending time on future troubleshooting. (Id.) 8 On April 4, 2017, Plaintiff sent Defendant an email stating that he intended to resign his 9 position and that Defendant should begin looking for a replacement. (Dkt. Nos. 25 at 3, 25-5 at 10 3–4.) When Defendant offered to provide Plaintiff with an improved orientation to cure his 11 performance issues, Plaintiff stated that he did not feel appreciated or respected while employed 12 by Defendant. (See Dkt. No. 25-5 at 3) (“For Dr. Stafie to go as far as to tell the girls that she 13 does not like me or does not want me in her room and would tell Dr. [Hugh] Allen to fire me 14 because I’m too slow, it’s not appreciative and supportive to me.”). When Dan Perrow, 15 Defendant’s Senior Director in Care Delivery, heard of Plaintiff’s email, he stated that he 16 “want[ed] to do all we can to support [Plaintiff] and help him have a successful career with” 17 Defendant. (Id. at 2.) 18 On April 11, 2018, Sheila Waddle, Plaintiff’s supervisor, Perrow, and Dr. Allen 19 discussed Plaintiff’s performance issues. (See Dkt. No. 25-6 at 2–4.) Dr. Allen stated that 20 Plaintiff lacked the level of communication skills necessary for his position, and Waddle noted 21 that Dr. Stafie felt “that [Plaintiff] could be a safety risk due to his poor performance.” (Id. at 2– 22 3.) Nonetheless, the parties agreed that Plaintiff would be given additional time to improve his 23 performance. (See id.; Dkt. No. 25 at 4.) 24 On April 18, 2017, Hagan reported additional problem with Plaintiff’s job performance. 25 (See Dkt. No. 25-7 at 2.) Hagan’s concerns including Plaintiff’s failure to restock important 26 drugs, failure to properly assist with placement of an oral endotracheal tube, failure to replace a ORDER C18-1782-JCC PAGE - 3 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 4 of 13 1 used blade between cases, failure to adequately prioritize his work tasks, and premature disposal 2 of drugs before the patient was out of the operating room or cleared by the anesthesia provider. 3 (See id.; Dkt. No. 25 at 4.) 4 Given Plaintiff’s intent to resign and his poor job performance, Defendant issued a job 5 posting for Plaintiff’s position. (See Dkt. No. 25 at 4.) On April 25, 2017, Plaintiff emailed 6 Waddle to reiterate his intent to resign and to notify her that he had been getting offers with 7 better pay and benefits. (Dkt. No. 25-11 at 2.) Because Defendant’s pain clinic was short-staffed 8 at the time, Waddle responded that Defendant hoped that Plaintiff could work for an additional 9 30 days while Defendant searched for his replacement. (Id.; Dkt. No. 25 at 4.) Ultimately, 10 Plaintiff agreed to continue to work in the pain clinic through June 2017 pending his resignation. 11 (Dkt. Nos. 25 at 4, 25-8 at 2.) 12 On May 25, 2017, Hagan reported further issues with Plaintiff’s job performance, 13 including his failures to “appreciate the importance of induction and securing the airway as being 14 the top priority when he was assisting” Hagan and to properly prioritize other tasks while 15 assisting. (Dkt. No. 25-9 at 4.) Following Hagan’s report, Dr. Stafie, Dr. Allen, and Waddle 16 discussed appropriate next steps. Dr. Stafie noted that “since [Plaintiff] started working, the 17 anesthesia providers had multiple concerns to the point that if he were part of a sentinel event,” a 18 situation where Plaintiff’s mistakes contributed to the loss of a patient, it “would be difficult to 19 explain.” (Dkt. Nos. 25 at 4, 25-9 at 3.) Dr. Stafie, Dr. Allen, and Waddle agreed that while 20 Plaintiff had been told earlier that he would be working for an additional 30 days, it would be 21 best for patient safety if Plaintiff was let go earlier. (See Dkt. No. 25-9 at 1–4.) 22 On June 1, 2017, Plaintiff signed a resignation letter which stated that his last date of 23 working for Defendant would be June 2, 2017, and that his effective resignation date would be 24 June 14, 2017. (Dkt. No. 25-10 at 2.) Prior to June 1, 2017, Plaintiff consistently stated that he 25 planned to resign. (See Dkt. Nos. 25 at 5, 25-11 at 2–4.) 26 On October 1, 2017, Plaintiff filed an Equal Employment Opportunity Commission ORDER C18-1782-JCC PAGE - 4 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 5 of 13 1 (“EEOC”) complaint. (See Dkt. No. 27 at 14.) Plaintiff alleged that Dr. Stafie subjected him to 2 disparate treatment because “she criticized my performance and spoke poorly of me to 3 coworkers,” that Plaintiff believed he had been discriminated against based on his race, color, 4 and national origin, and that he complained to Waddle in April 2017. (See Dkt. No. 27 at 14.) On 5 September 18, 2018, following an evidentiary review, the EEOC found that it “was unable to 6 establish a violation of its statutes as [Plaintiff] had alleged in [his] charge” and dismissed 7 Plaintiff’s EEOC complaint. (See Dkt. No. 1-1 at 1–2.) 8 9 On December 11, 2018, Plaintiff, proceeding pro se, filed his complaint in this action. (See Dkt. No. 1.) Plaintiff’s complaint alleges that Defendant discriminated against him based on 10 his race, color, and national origin, retaliated against him, and subjected him to a hostile work 11 environment. (See id. at 15–17.) Plaintiff further asserts that Defendant was negligent in its 12 supervision, hiring, and training of employees and both intentionally and negligently inflicted 13 emotional distress upon Plaintiff. (Id. at 17–18.) Defendant moves for summary judgment. (Dkt. 14 No. 23.) 15 II. DISCUSSION 16 A. Conceded Claims 17 Defendant moves for summary judgment on all of Plaintiff’s claims. (See generally Dkt. 18 No. 23.) In his response, Plaintiff, now represented, “concedes the claims of negligent infliction 19 of emotional distress; negligent supervision/hiring/failure to properly train; and intentional 20 infliction of emotional distress.” (Dkt. No. 26 at 1.) Accordingly, Defendant’s motion for 21 summary judgment is GRANTED as to these claims. 22 B. Legal Standard 23 “The court shall grant summary judgment if the movant shows that there is no genuine 24 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 25 Civ. P. 56(a). Material facts are those that may affect the outcome of the case, and a dispute 26 about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a ORDER C18-1782-JCC PAGE - 5 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 6 of 13 1 verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). 2 In deciding whether there is a genuine dispute of material fact, the court must view the facts and 3 justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. 4 Id. at 255. The court is therefore prohibited from weighing the evidence or resolving disputed 5 issues in the moving party’s favor. Tolan v. Cotton, 572 U.S. 650, 657 (2014). 6 “The moving party bears the initial burden of establishing the absence of a genuine issue 7 of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If a moving party fails to 8 carry its initial burden of production, the nonmoving party has no obligation to produce anything, 9 even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire 10 & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). But once the moving 11 party properly supports its motion, the nonmoving party “must come forward with ‘specific facts 12 showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio 13 Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). Ultimately, summary judgment 14 is appropriate against a party who “fails to make a showing sufficient to establish the existence 15 of an element essential to that party’s case, and on which that party will bear the burden of proof 16 at trial.” Celotex, 477 U.S. at 322. 17 Washington courts have stated that summary judgment “should rarely be granted in 18 employment discrimination cases,” Sangster v. Albertson’s, Inc., 991 P.2d 674, 677 (Wash. Ct. 19 App. 2000), and the Ninth Circuit has stated that “very little evidence” is needed “to survive 20 summary judgment in a discrimination case, because the ultimate question is one that can only be 21 resolved through a searching inquiry—one that is most appropriately conducted by the 22 factfinder, upon a full record,” Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir. 1985), as 23 amended, 784 F.2d 1407 (9th Cir. 1986) (internal quotations omitted). But a plaintiff must offer 24 more than “uncorroborated and self-serving” testimony to create “‘a sufficient disagreement to 25 require submission to a jury.’” Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996) 26 (quoting Anderson, 477 U.S. at 251–52). ORDER C18-1782-JCC PAGE - 6 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 7 of 13 1 C. Disparate Treatment 2 Title VII and the WLAD make it unlawful for an employer to discriminate on the basis of 3 several protected classes, including race, national origin, and color. 42 U.S.C. § 2000e–2(a)(1); 4 Wash. Rev. Code § 49.60.180. A plaintiff may establish a prima facie case of discrimination 5 either through “a presumption arising from the factors such as those set forth in McDonnell 6 Douglas, or by more direct evidence of discriminatory intent.” Godwin v. Hunt Wesson, Inc., 150 7 F.3d 1217, 1220 (9th Cir. 1998), as amended (Aug. 11, 1998); see Blackburn v. State, 375 P.3d 8 1076, 1080 (Wash. 2016) (noting that “Washington courts often look to federal case law on Title 9 VII when interpreting the WLAD”). 10 “Direct evidence is evidence which, if believed, proves the fact [of discriminatory 11 animus] without inference or presumption.” Godwin, 150 F.3d at 1221 (quoting Davis v. 12 Chevron, U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir.1994)). If a plaintiff lacks direct evidence, 13 courts look to the McDonnell Douglas burden-shifting framework to analyze both Title VII and 14 WLAD discrimination claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 15 (1973) (Title VII claim); Hines v. Todd Pac. Shipyards Corp., 112 P.3d 522, 529 (Wash. Ct. 16 App. 2005) (WLAD claim). To establish a prima facie case under Title VII, a plaintiff must 17 show that (1) he is a member of a protected class, (2) he performed his job satisfactorily, (3) he 18 suffered an adverse employment action, and (4) the defendant treated him differently from a 19 similarly-situated employee who does not belong to the same protected class. See Cornwell v. 20 Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). And under the WLAD, the 21 plaintiff must show that: (1) he belongs to a protected class; (2) he was treated less favorably in 22 the terms or conditions of his employment (3) than a similarly situated, non-protected employee, 23 and (4) the plaintiff and the non-protected comparator were doing substantially the same work. 24 See Washington v. Boeing Co., 19 P.3d 1041, 1048 (Wash. Ct. App. 2000). 25 If the plaintiff establishes his prima facie case, the burden shifts to the defendant to 26 articulate a legitimate, nondiscriminatory reason for its action. See McDonnell Douglas, 411 U.S. ORDER C18-1782-JCC PAGE - 7 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 8 of 13 1 at 802–04; Hines, 112 P.3d at 529. If the defendant does so, the plaintiff must then prove, by a 2 preponderance of the evidence, that the reason asserted by the defendant is a mere pretext. See 3 McDonnell Douglas, 411 U.S. at 802–04; Hines, 112 P.3d at 529. 4 Here, Plaintiff asserts that he has direct evidence of unlawful discrimination, citing his 5 deposition testimony and his EEOC complaint. (Dkt. No. 26 at 3–4.) In his deposition, Plaintiff 6 stated that his coworker Vira Feltsan told him in April or May 2017 that Dr. Stafie had asked 7 Plaintiff’s coworkers, “Which part of Africa is he from?” (Dkt. No. 27 at 9–10; see Dkt. No. 1 at 8 6.) When pressed about why he did not mention the incident prior to filing his EEOC complaint 9 in October 2017, Plaintiff stated that he verbally told Waddle in her office around April or May 10 11 2017. (Dkt. No. 27 at 10.) Plaintiff also stated that Dr. Stafie “favored two anesthesia techs over me . . . because she 12 can easily communicate with those two techs in her own language, so I’m kind of like . . . 13 discriminated . . . she favored them over me.” (Id. at 12.) 2 Plaintiff elaborated, saying that 14 “[e]ven though they are doing, like, things that are annoying that are not—she should yell at 15 them or she should . . . own it and be professional, treating us equally. I was not treating—I was 16 not treated fairly as the other two techs.” (Id.) 17 Plaintiff has not offered evidence corroborating his deposition testimony and his 18 allegations in his EEOC complaint, such as contemporaneous documentary evidence of Dr. 19 Stafie’s alleged question about his country of origin or evidence of her alleged preferential 20 treatment of Plaintiff’s coworkers. (See Dkt. Nos. 26 at 2, 4; 27 at 5–14.) 3 Standing alone, 21 22 23 24 25 26 2 In his complaint, Plaintiff stated that Dr. Stafie is from Romanian and speaks Romanian and Moldavian. (See Dkt. No. 1 at 4–5.) Plaintiff alleges that Dr. Stafie “admires and treats the two white female Techs better especially Ms. Machela Palanchuk who speaks the same language as Dr. Daniela Stafie because Ms. Machela Palanchuk is Moldavian and Romanian.” (Id. at 6.) 3 In his April 5, 2017 email to Waddle, Plaintiff stated that Feltsan informed him that Dr. Stafie told other staff “that she does not like [Plaintiff] or does not want [Plaintiff] in her room and would tell Dr. Allen to fire me because I’m too slow . . .” (Dkt. No. 25-5 at 3.) Plaintiff’s email does not mention any discussion of Plaintiff’s race or county of origin. ORDER C18-1782-JCC PAGE - 8 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 9 of 13 1 Plaintiff’s self-serving and uncorroborated testimony and allegations are insufficient to create a 2 genuine dispute of fact that requires submission to a jury. See Kennedy, 90 F.3d at 1481. 3 Moreover, Plaintiff’s reliance on Feltsan’s alleged statement regarding Dr. Stafie’s question 4 about Plaintiff’s country of origin is misplaced: such a statement is clearly hearsay that cannot 5 overcome a motion for summary judgment. See Urbina v. Gilfilen, 411 F.2d 546, 547–48 (9th 6 Cir. 1969); Walker v. Boeing Corp., 218 F. Supp. 2d 1177, 1191–92 & 1192 n.9 (C.D. Cal. 2002) 7 (collecting cases). Thus, Plaintiff has not offered direct evidence of discrimination under Title 8 VII or the WLAD. See Godwin, 150 F.3d at 1221; Blackburn, 375 P.3d at 1080. 9 Plaintiff has not argued that he is able to establish discrimination under Title VII or the 10 WLAD using the McDonnell Douglas burden-shifting framework. (See Dkt. No. 26 at 4.) Nor 11 could he. Defendant has submitted substantial evidence of Plaintiff’s poor performance of his job 12 duties, including his failure to effectively troubleshoot faulty equipment, his failure to take faulty 13 equipment out of circulation, and his failure to effectively assist with procedures. (See generally 14 Dkt. Nos. 25, 25-1—25-4, 25-6—25-7, 25-9.) Plaintiff has not offered evidence showing that he 15 was in fact ably performing his job duties. (See Dkt. Nos. 26 at 4, 27 at 5–15.) 4 Therefore, 16 Plaintiff cannot establish the job performance element of a prima facie case of discrimination 17 under McDonnell Douglas or establish that Defendant’s legitimate, non-discriminatory reason 18 for accepting his resignation was pretextual. Cornwell, 439 F.3d at 1028; Hines, 112 P.3d at 529. 19 In sum, Plaintiff has not offered direct evidence of discrimination or established a claim 20 for unlawful discrimination by satisfying the burden-shifting framework set forth in McDonell 21 Douglas. See Godwin, 150 F.3d at 1220; Blackburn, 375 P.3d at 1080. Therefore, Defendant’s 22 motion for summary judgment is GRANTED as to Plaintiff’s disparate treatment claims arising 23 under Title VII and the WLAD. 24 25 26 4 During his deposition, Plaintiff stated that Cooper and Hagan had made “false allegations” against him regarding his poor job performance at the behest of Dr. Stafie. (See Dkt. No. 24-1 at 13.) When pressed, Plaintiff stated that he did not have any evidence that Dr. Stafie had asked Cooper and Hagan to make false allegations against him. (Id. at 13–15.) ORDER C18-1782-JCC PAGE - 9 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 10 of 13 1 D. 2 Title VII and the WLAD prohibit an employer from retaliating against a person who 3 engages in protected activities. See 42 U.S.C. § 2000e-5; Wash. Rev. Code § 49.60.210. To 4 prevail on a retaliation claim under both Title VII and the WLAD, a plaintiff must show that he 5 was engaged in a protected activity, that he suffered an adverse employment action, and that 6 there is a causal connection between the protected activity and the adverse employment action. 7 Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 965 (9th Cir. 2004); Lodis v. Corbis 8 Holdings, Inc., 292 P.3d 779, 786 (Wash. Ct. App. 2013). 9 Retaliation Title VII and the WLAD require the same showings under the first two elements. See 10 Ellorin v. Applied Finishing, Inc., Case No. 12-1932-JRL, Dkt. No. 51 at 31 (W.D. Wash. 2014). 11 Making an informal complaint to a supervisor about racial discrimination may satisfy the first 12 element. See Knight v. Brown, Case No. C10-0753-JLR, Dkt. No. 85 at 40–41 (W.D. Wash. 13 2011). To satisfy the adverse action prong “a plaintiff must show that a reasonable employee 14 would have found the challenged action materially adverse, which . . . means it might have 15 dissuaded a reasonable worker from making or supporting a charge of discrimination.” 16 Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations 17 omitted). To establish causation under Title VII, a plaintiff must show that his protected activity 18 was a “but-for” cause of the adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 19 133 S. Ct. 2517, 2521 (2013). Under the WLAD, a plaintiff must merely show that the protected 20 activity was a “substantial factor” in the employer’s decision to take the adverse employment 21 action. Allison v. Housing Auth. of City of Seattle, 821 P.2d 34, 42–43 (1991). 22 Causation may be established with “circumstantial evidence, such as the employer’s 23 knowledge that [the plaintiff] engaged in protected activities and the proximity in time between 24 the protected action and the allegedly retaliatory employment action.” Yartzoff v. Thomas, 809 25 F.2d 1371, 1376 (9th Cir. 1987). “But timing alone will not show causation in all cases; rather, in 26 order to support an inference of retaliatory motive, the termination must have occurred fairly ORDER C18-1782-JCC PAGE - 10 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 11 of 13 1 soon after the employee’s protected expression.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 2 1054, 1065 (9th Cir. 2002) (internal quotations omitted). 3 If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the 4 defendant to offer legitimate, non-retaliatory reasons for the adverse employment action. See 5 Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464–65 (9th Cir. 1994); Short v. Battle 6 Ground Sch. Dist., 279 P.3d 902, 911 (Wash. Ct. App. 2012). If the defendant does so, the 7 burden shifts to the plaintiff to show that the proffered reasons are pretextual. Steiner, 25 F.3d at 8 1465; Short, 279 P.3d at 912. 9 Here, in response to Defendant’s motion for summary judgment Plaintiff asserts that he 10 engaged in protected activity when he informed Waddle of the discriminatory treatment, that he 11 was forced to resign, and that the fact he was released two months after his report “establishes a 12 clear causal inference.” (Dkt. No. 26 at 5.) Plaintiff thus asserts that he “has established a prima 13 facie case for retaliation and defendants’ motion for summary judgment should be denied.” (Id.) 14 The Court is skeptical of Plaintiff’s assertion that he has established a prima facie case of 15 retaliation under either Title VII or the WLAD. As discussed above, Plaintiff’s claim of 16 discrimination rests on his uncorroborated and self-serving testimony and EEOC allegations 17 concerning an isolated question about his country of origin and Dr. Stafie’s purported preference 18 for working with employees who spoke her native language. See supra Section II.C. Plaintiff 19 relies solely on temporal proximity and Defendant’s purported knowledge of his report, which 20 are not necessarily sufficient to satisfy the causation element under either Title VII or the 21 WLAD. See Drottz v. Park Electrochemical Corp., 2013 WL 6157858, slip op. at 14–16 (D. 22 Ariz. 2013); Allison, 821 P.2d at 42–43. And Plaintiff’s claim that he was forced to resign is 23 belied by the allegations in his complaint and evidence in the record. (See Dkt. Nos. 1 at 14–15; 24 25 at 3, 5; 25-5 at 3–4; 25-11 at 2–4; 27 at 15.) 25 26 Nonetheless, the Court need not decide those issues. As discussed above, Defendant has submitted substantial evidence of Plaintiff’s poor performance of his job duties, which were ORDER C18-1782-JCC PAGE - 11 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 12 of 13 1 repeatedly noted by his coworkers and supervisors and raised significant patient safety concerns. 2 (See generally Dkt. Nos. 25, 25-1—25-4, 25-6—25-7, 25-9.) Plaintiff has not addressed his 3 burden of establishing that Defendant’s legitimate, non-retaliatory reason for accepting 4 Plaintiff’s resignation was pretextual or offered evidence showing the same. (See Dkt. Nos. 26 at 5 4, 24-1 at 13–15, 27 at 5–15.) Therefore, even if Plaintiff has established a prima facie case of 6 retaliation under Title VII and the WLAD, he has not carried his burden of showing that 7 Defendant’s legitimate, non-retaliatory reason for accepting his resignation was pretextual. See 8 Steiner, 25 F.3d at 1465; Short, 279 P.3d at 912. Accordingly, Defendant’s motion for summary 9 judgment is GRANTED as to Plaintiff’s claims of unlawful retaliation under Title VII and the 10 WLAD. 11 E. Hostile Work Environment 12 Hostile work environment claims arising under Title VII and the WLAD are analyzed 13 under the same framework following Washington’s adoption of the test set forth by the Supreme 14 Court in National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002). See 15 Antonius v. King County, 103 P.3d 729, 737 (Wash. 2004). Thus, to prevail on a hostile work 16 environment claim premised on race under Title VII or the WLAD, the plaintiff must show: “(1) 17 that he was subjected to verbal or physical conduct of a racial . . . nature; (2) that the conduct 18 was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the 19 conditions of the plaintiff's employment and create an abusive work environment.” Vasquez v. 20 City of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), as amended (Jan. 2, 2004). The court 21 examines “all the circumstances, including the frequency of the discriminatory conduct; its 22 severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and 23 whether it unreasonably interferes with an employee’s work performance.” Id. (quoting Clark 24 Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001)). The “environment must both 25 subjectively and objectively be perceived as abusive.” Id. (quoting Brooks v. City of San Mateo, 26 229 F.3d 917, 923 (9th Cir. 2000)). “Simple teasing, offhand comments, and isolated incidents ORDER C18-1782-JCC PAGE - 12 Case 2:18-cv-01782-JCC Document 30 Filed 05/26/20 Page 13 of 13 1 (unless extremely serious) will not amount to discriminatory changes in the terms and conditions 2 of employment.” Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (internal 3 alterations and quotations omitted). Ninth Circuit caselaw establishes a high burden to finding a 4 hostile work environment. See id. at 798–99 (collecting cases). 5 Although Plaintiff does not explicitly concede his hostile work environment claim, his 6 response to Defendant’s motion for summary judgment is silent as to this claim. (See generally 7 Dkt. No. 26.) And the record shows that Defendant is entitled to summary judgment in its favor 8 on this ground. As discussed above, Plaintiff has only asserted two instances of racial 9 discrimination: Dr. Stafie’s alleged question about his country of origin and Dr. Stafie’s 10 purported favoring of employees who spoke her native languages. See supra Section II.C. 11 Plaintiff has not offered evidence showing that either instance of alleged discrimination was 12 sufficiently severe or pervasive to alter the conditions of his employment and create an abusive 13 work environment, especially given the high bar set by Ninth Circuit case law. See Vasquez, 349 14 F.3d at 642; Manatt, 339 F.3d at 798–99. Therefore, Defendant’s motion for summary judgment 15 is GRANTED as to Plaintiff’s hostile work environment claim. 16 III. 17 18 19 CONCLUSION For the foregoing reasons, Defendant’s motion for summary judgment (Dkt. No. 23) is GRANTED and Plaintiff’s claims are DISMISSED with prejudice. DATED this 26th day of May 2020. 22 A 23 John C. Coughenour UNITED STATES DISTRICT JUDGE 20 21 24 25 26 ORDER C18-1782-JCC PAGE - 13
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