Diederich v. Providence Health & Services et al, No. 2:2010cv01558 - Document 100 (W.D. Wash. 2012)

Court Description: ORDER GRANTING DFTS' SECOND MOTION FOR SUMMARY JUDGMENT; the court GRANTS defendants motion for summary judgment. Dkt. # 51. The Clerk is directed to terminate the first partial summary judgment motion and motion to supplement the opposition with respect to the first summary judgment motion as MOOT. Dkt. # 31, # 45. The Clerk is also directed to terminate the parties motions to supplement the record with respect to the second partial summary judgment motion as DENIED. Dkt. # 87, # 89. The Clerk is also directed to enter an amended scheduling order with a new trial date of December 3, 2012 on the remaining claim of breach of contract against Providence. by Judge Richard A Jones.(RS)

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1 HONORABLE RICHARD A. JONES 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 ROBERT J. DIEDERICH, 11 Plaintiff, 12 v. 13 14 PROVIDENCE HEALTH & SERVICES, et al. CASE NO. C10-1558 RAJ ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT 15 Defendants. 16 I. 17 18 INTRODUCTION This matter comes before the court on the “Second Motion for Partial Summary 19 Judgment” by defendants Providence Health & Services (“Providence”) (doing business 20 as St. Peter Hospital), Kevin Haughton, Maggie Miller, Lisa Johnson, Jennifer Playstead, 1 21 and Lowell Dightman. Dkt. # 51. Defendants move for summary judgment on the 22 remaining claims against them: Disability discrimination under the American Disabilities 23 Act (“ADA”) and the WLAD, hostile work environment under the ADA and the WLAD, 24 1 Providence and the individual defendants filed a first partial summary judgment motion seeking dismissal of plaintiff’s claims under the Washington Law Against Discrimination 26 (“WLAD”) on the basis that St. Peter Hospital is a non-profit religious organization that is exempt from the WLAD. Dkt. # 31. Given the court’s dismissal of the WLAD claims here, the 27 first summary judgment motion has been rendered MOOT. 25 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 1 1 retaliation under the ADA and the WLAD, age discrimination under the Age 2 Discrimination in Employment Act (“ADEA”) and the WLAD, and breach of contract 3 under state law.2 Plaintiff has only responded to defendants’ arguments regarding breach 4 of contract, disparate treatment disability discrimination under the WLAD, retaliation 5 under the WLAD and the ADA, and disability-based hostile work environment under the 6 ADA and the WLAD. The court construes plaintiff’s failure to address his other claims 7 as an admission that the motion has merit. Local Rules W.D. Wash. CR 7(b)(2). Since 8 plaintiff does not dispute that his other claims should be dismissed, the court GRANTS 9 defendants’ motion with respect to plaintiff’s claims for age discrimination under the 10 ADEA and the WLAD, disparate treatment disability discrimination under the ADA, and 11 failure to accommodate under the ADA and the WLAD. 12 Having considered the memoranda, exhibits, oral argument, and the record herein, 13 the court GRANTS defendants’ motion for summary judgment. 14 15 II. BACKGROUND In 2004, Dr. Diederich graduated from the University of Washington School of 16 Medicine. Dkt. # 64 (Diederich Decl.) ¶ 4. Dr. Diederich started his residency in family 17 medicine at Swedish Hospital under director Dr. Sam Cullison. Id. ¶ 5. Dr. Cullison 18 terminated Dr. Diederich, claiming he had bad performance. Id. Dr. Diederich sued 19 Swedish and Cullison claiming they discriminated against him based on disability due to 20 a temporary, severe depressive episode. Id. In 2006, Dr. Diederich obtained a resolution 21 of the lawsuit, and Dr. Cullison wrote him a recommendation that he used to apply to 22 Providence’s residency program. Id. Dr. Diederich began his residency at Providence in 23 July 2007. Id. ¶ 6. Beginning on January 11, 2008 and continuing through his 24 termination, Dr. Diederich received a number of memoranda citing patient care and 25 26 2 The only claims remaining against the individual defendants are the disparate treatment, 27 hostile work environment and retaliation claims under the WLAD. ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 2 1 professionalism issues. Dkt. # 64-1 (Exs. 10-15, 21, 23 to Diederich Decl.). Dr. 2 Diederich appealed his termination pursuant to the grievance procedure, and the appeals 3 panel upheld the termination. Dkt. # 53-1 (Ex. 30 to Haughton Decl.). 4 Dr. Diederich filed this lawsuit alleging, among other things, that Providence 5 discriminated against him on the basis of age and disability and retaliated against him for 6 engaging in protected activity. Dr. Diederich believes the patient care and 7 professionalism issues cited in the memoranda and termination letter were pretextual. 8 9 III. ANALYSIS Summary judgment is appropriate if there is no genuine dispute as to any material 10 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 11 56(a). The moving party bears the initial burden of demonstrating the absence of a 12 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 13 Where the moving party will have the burden of proof at trial, it must affirmatively 14 demonstrate that no reasonable trier of fact could find other than for the moving party. 15 Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). On an issue where the 16 nonmoving party will bear the burden of proof at trial, the moving party can prevail 17 merely by pointing out to the district court that there is an absence of evidence to support 18 the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the moving party meets 19 the initial burden, the opposing party must set forth specific facts showing that there is a 20 genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, 21 Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most 22 favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. 23 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000). 24 25 26 27 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 A. Motions to Supplement the Record On August 24, 2012, the parties filed motions to supplement the record pursuant to the court’s July 27, 2012 minute order (Dkt. # 85). Dkt. # 87,3 # 89. Plaintiff asks the court to consider comparator evidence to show that he was singled out for disparate treatment, and argues that the disparate treatment shows that defendants acted based on improper retaliatory motives. Dkt. # 89 at 2:22-3:3. The court has reviewed all of the supplemental evidence provided by plaintiff. The concept of “similarly situated” employees may be relevant to both the prima facie and pretext prongs of the McDonnel Douglas framework in a disparate treatment claim. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1158 (9th Cir. 2010). A showing that a defendant treated similarly situated employees outside of plaintiff’s protected class more favorably would be probative of pretext. Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (emphasis added).4 Here, plaintiff conceded during oral argument that he has not provided the court with any evidence that Residents A through J are outside of Dr. Diederich’s protected class, i.e. no disability or no complaints of discrimination. Accordingly, plaintiff has failed to demonstrate that the treatment received by Residents A through J would be probative of pretext because there is no 18 19 20 21 22 23 24 25 26 27 3 Defendants are incorrect that the court granted each party the opportunity to supplement the record. The court granted the parties the opportunity to file a motion to supplement the record. Dkt. # 85 at 1:24-25 (“The parties may file a motion to supplement the record . . . .”). Accordingly, the court construes the “supplemental brief” (Dkt. # 87) as a motion to supplement. 4 During oral argument, plaintiff relied heavily on the “mosaic” approach of the Seventh Circuit for the proposition that evidence that similarly situated employees were treated differently is relevant to demonstrate causation in retaliation claims. See Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012). The Ninth Circuit has not adopted the mosaic approach, and the court declines to do so here. Nevertheless, the court assumes without deciding that the Ninth Circuit would consider comparator evidence relevant to the causation element in the prima facie case and to pretext. This court believes that the Ninth Circuit would apply Vasquez with respect to the pretext prong of retaliation. Accordingly, the court believes that to the extent that comparator evidence would be probative of pretext in retaliation claims, plaintiff may demonstrate pretext by providing evidence that defendant treated similarly situated employees outside of plaintiff’s protected class more favorably. ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 4 1 evidence that they are outside of plaintiff’s protected class. Accordingly, the court 2 DENIES plaintiff’s motion to supplement the record. Dkt. # 89. 3 Defendants move to supplement the record with respect to two issues: (1) that 4 Providence lacked knowledge that Dr. Diederich previously sued Dr. Cullison and 5 Swedish, and (2) that defendants were not motivated by discriminatory animus with 6 respect to Dr. Diederich’s retaliation and disparate treatment claims. Dkt. # 87. Because 7 the court finds infra that plaintiff failed to demonstrate a prima facie case of retaliation or 8 to raise a genuine issue of material fact with respect pretext, the court need not address 9 the supplemental evidence offered by defendants. Accordingly, the court DENIES 10 defendants’ motion to supplement. Dkt. # 87. Evidentiary Analysis 11 B. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In resolving a motion for summary judgment, the court may only consider admissible evidence. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). At the summary judgment stage, a court focuses on the admissibility of the evidence’s content, not on the admissibility of the evidence’s form. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Defendants move to strike exhibits 3, 7, 8, 16, 19, 24, 25, 29, 31, 33, and 34 that are attached to plaintiff’s declaration for lack of authentication. Dkt. # 67 at 2. Defendants also move to strike various statements in plaintiff’s declaration as improper hearsay. Id. at 2-3. In his declaration, Dr. Diederich states: “All exhibits hereto are true and correct copies of the documents they purport to be and were either created by me, or sent or received by me at on or about the time indicated or were produced in this litigation.” Dkt. # 64 (Diederich Decl.) ¶ 2. Although this is not a proper authentication of each exhibit, the court believes each of these documents could be properly authenticated at 26 27 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 5 1 trial.5 Accordingly, the court focuses on the admissibility of the evidence’s content, and 2 overrules defendants’ objections to strike these exhibits. The court has read Dr. Diederich’s 46-page declaration in its entirety. Rather than 3 4 limit his declaration to statements of fact of which he has personal knowledge, the vast 5 majority of Dr. Diederich’s declaration consists of argument, analysis and interpretation 6 of other evidence, improper opinion testimony, speculation, hearsay, and legal 7 conclusions. Fed. R. Evid. 602, 701, 702, 801. The court does not appreciate plaintiff’s 8 attempt to turn his 30-page response (which the court hesitatingly approved) into a 70+ 9 page argument. Nor does the court appreciate counsel’s strained interpretations and 10 representations to the court that are predicated on plaintiff’s speculation and improper 11 opinion testimony. 12 In accordance with the Federal Rules of Evidence, the court has considered 13 statements of fact that appear to be within Dr. Diederich’s personal knowledge that are 14 not otherwise inadmissible. The court has also considered the exhibits attached to Dr. 15 Diederich’s declaration. The court has disregarded all other arguments, legal 16 conclusions, hearsay, speculation, and improper opinion testimony. The court notes that 17 statements of party opponents are not hearsay.6 Fed. R. Evid. 801(d)(2). 18 C. 19 Disparate Treatment Disability Discrimination (WLAD) In employment discrimination cases where plaintiff has not attempted to 20 demonstrate direct evidence of discriminatory intent, the McDonnell Douglas burden21 shifting analysis augments the familiar summary judgment standard. Aragon v. Republic 22 Silver State Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002) (citing McDonnell Douglas 23 Corp. v. Green, 411 U.S. 792 (1973)). Although the McDonnell Douglas analysis 24 25 5 During oral argument, defendants stipulated to the authenticity of these documents for 26 purposes of this motion. 6 See footnotes 7 and 8 infra for examples of inadmissible testimony the court has 27 disregarded. ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 6 1 evolved to address employment discrimination claims invoking federal law, Washington 2 courts apply substantially the same standard to claims invoking the WLAD. Kastanis v. 3 Educ. Emps. Credit Union, 122 Wn. 2d 483, 490, 859 P.2d 26 (1993). Under the 4 McDonnell Douglas framework, plaintiff must offer evidence supporting a prima facie 5 case of unlawful discrimination. Id. If he succeeds, the burden shifts to defendants to 6 produce evidence of a lawful motive for terminating plaintiff. Id. at 491. If defendants 7 succeed, plaintiff is obligated to produce evidence that defendants’ stated lawful motive 8 is pretext. Id. If there is sufficient evidence of pretext, the case must go to the jury. Id. 9 The WLAD prohibits employers from discharging or discriminating against any person in 10 the terms or conditions of employment because of, inter alia, “the presence of any 11 sensory, mental, or physical disability . . . .” RCW 49.60.180(2) & (3). 12 A prima facie case of disparate treatment disability discrimination has four 13 elements: (1) the employee is disabled, (2) the employee is doing satisfactory work, (3) 14 the employee suffered an adverse employment action, and (4) the employee was 15 discharged under circumstances that raise a reasonable inference of unlawful 16 discrimination. Callahan v. Walla Walla Housing Authority, 126 Wn. App. 812, 819-20, 17 110 P.3d 782 (2005). Under the WLAD, disability is defined as “the presence of a 18 sensory, mental, or physical impairment that: (i) Is medically cognizable or diagnosable; 19 or (ii) Exists as a record or history; or (iii) Is perceived to exist whether or not it exists in 20 fact.” RCW 49.60.040(7)(a). “A disability exists whether it is temporary or permanent, 21 common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to 22 work generally or work at a particular job or whether or not it limits any other activity 23 within the scope of this chapter.” RCW 49.60.040(7)(b). “Impairment” includes, but is 24 not limited to: (i) Any physiological disorder, or condition, cosmetic disfigurement, or 25 anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including 26 27 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 7 1 speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or 2 3 4 (ii) Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 5 RCW 49.60.040(7)(c). Defendants concede that for purposes of summary judgment, plaintiff’s herniated 6 7 disc and regarded-as depression, the two alleged disabilities identified by plaintiff in his 8 deposition, would qualify as a disability under the WLAD. Dkt. # 51 at 11 n.8. See Dkt. 9 # 52-1 at 29-30 (Ex. A to Gaviria Decl., Diederich Depo. at 236:20-237:9). However, 10 plaintiff, in his opposition, has now identified a third alleged disability: “an acute 11 gastrointestinal illness” that occurred on March 21, 2008 that extended to the following 12 day. Dkt. # 52-1 at 95 (Ex. I to Gaviria Decl.); Dkt. # 64 (Diederich Decl.) ¶ 80, 85 (“ill 13 with nausea due to a virus and on the point of throwing up”). Plaintiff states that he was 14 “ill with nausea due to a virus[,]” “on the point of throwing up[,]” and “highly 15 contagious.” Dkt. # 64 (Diederich Decl.) ¶ 80. Dr. Diederich also states that he was so 16 sick he had to lie down and then leave the hospital to go home. Id. at ¶¶ 80-81. Based on 17 this evidence and the circumstances presented here, the court finds that no reasonable 18 juror could find that a twenty-four to forty-eight hour gastrointestinal illness qualifies as 19 an impairment under the WLAD, or otherwise qualifies as a “disability.” Defendants 20 assume that plaintiff has made out a prima facie case with respect to the remaining 21 elements. Dkt. # 51 at 15. Defendants argue that they have presented sufficient evidence that, if believed by 22 23 a trier of fact, would support a finding that the employment action was not a result of 24 unlawful discrimination. Dkt. # 51 at 14. The court agrees. Plaintiff has a well25 documented history of practice and professionalism issues. See Dkt. # 53 (Haughton 26 Decl.) ¶¶ 4-10, 16-22, Exs. 6-9, 11-15, 18-20, 22-26. Accordingly, defendants have met 27 their burden, and the burden shifts to plaintiff to demonstrate pretext. ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 8 1 A plaintiff “can show pretext in two ways: either ‘directly by persuading the court 2 that a discriminatory reason more likely motivated the employer, or indirectly by 3 showing that the employer’s proffered explanation is unworthy of credence.’” Stegall v. 4 Citadel Broadcasting Co., 350 F.3d 1061, 1068 (9th Cir. 2003) (quoting Texas Dep’t of 5 Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). Where there is direct evidence of an 6 employer’s discriminatory intent, the Ninth Circuit has held that plaintiff need only show 7 little or minimal evidence of discrimination to show pretext. Kang v. U. Lim. Am., Inc., 8 296 F.3d 810, 819 (9th Cir. 2002). Where evidence of pretext is circumstantial, rather 9 than direct, the Ninth Circuit has held that plaintiff must produce “specific” and 10 “substantial” facts to create a triable issue of pretext. Earl v. Nielsen Media Research, 11 Inc., 658 F.3d 1108, 1113 (9th Cir. 2011). In Cornwell v. Electra Central Credit Union, 12 the Ninth Circuit addressed the differing amount of evidence required for direct versus 13 circumstantial evidence of discrimination. 439 F.3d 1018 (9th Cir. 2006) (Fisher, J., 14 Gould, J. Bea, J.). The Ninth Circuit explained its reasoning in a prior case in which it 15 stated that the Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 16 (2003) required that “circumstantial and direct evidence should be treated alike.” Id. at 17 1030. The Cornwell court relied on “the Supreme Court’s recognition in Costa that 18 circumstantial evidence may be ‘more certain, satisfying and persuasive than direct 19 evidence[.]’” Id. The Cornwell court concluded that in the context of summary 20 judgment, Title VII does not require a disparate treatment plaintiff relying on 21 circumstantial evidence to produce more, or better, evidence than a plaintiff who relies on 22 direct evidence. Id. The court recognized: “Although there may be some tension in our 23 post-Costa cases on this point-several of our cases decided after Costa repeat the Godwin 24 requirement that a plaintiff’s circumstantial evidence of pretext must be ‘specific’ and 25 ‘substantial’ – this panel may not overturn Ninth Circuit precedents in the absence of 26 ‘intervening higher authority’ that is ‘clearly irreconcilable’ with a prior circuit holding.” 27 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 9 1 Id. at 1030-31. This court need not decide this issue, because the court finds that plaintiff 2 has not provided even minimal evidence demonstrating pretext. 3 With respect to the herniated disc, Dr. Diederich seems to indicate that denial of a 4 time off request with respect to a “painful cervical radiculopathy” is evidence of pretext. 5 Dkt. # 61 at 10-11. However, the uncontroverted evidence demonstrates that it was his 6 request for vacation that was denied.7 In the email protesting the rejection of his vacation 7 request, plaintiff stated: I submitted a vacation request July 9th for time off in August during my 8 surgical rotation. * * * 9 My first priority in life is to my children, who are on summer vacation. I 10 live for the moments that I can be with them, which isn’t very frequent. I spent a week with them in June (R1 vacation time) visiting grandparents, 11 but did so in considerable pain from this cervical radiculopathy I’ve 12 endured the past 6 weeks. I’d like to be able to enjoy another week vacation with them before they return back to school. 13 Dkt. # 64-1 at 94 (Ex. 18 to Diederich Decl.). Although this email mentions his neck 14 pain, it is clear that the request for time off was for vacation, not medical leave. Id. The 15 court finds that no reasonable juror could find that this request for vacation was a request 16 for medical leave or accommodations for his neck pain. Indeed, when plaintiff requested 17 medical leave for surgery and recovery, defendants approved the request. Dkt. # 53 18 (Haughton Decl.) ¶ 28, Ex. 33. 19 20 21 22 7 In his declaration, plaintiff attempts to characterize the request for vacation by stating: 23 “I cited both ongoing pain from neck issues and desire to be with my children.” This characterization of the email is the type of inadmissible evidence the court has disregarded. The 24 court has the email documenting the request in which he mentions his neck pain in the context of 25 his last vacation with his children. Dkt. # 64-1 at 94 (Ex. 18 to Diederich Decl.). Plaintiff also states: “At this time I had severe pain and told my supervisors this.” However, plaintiff does not 26 attribute his request for vacation to his neck pain. Rather, he attributes his request for vacation to his desire “to be able to enjoy another week of vacation with [his children] before they return 27 back to school.” Id. ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 10 1 Plaintiff also argues that the appeals board decision is evidence of pretext. Dkt. # 2 61 at 16, 29. The termination letter provides: 3 4 5 6 7 8 9 10 Effective[] Friday, September 12, 2008, you are discharged from the Providence St. Peter Hospital Family Medicine Residency Program. This action is due to your ongoing behavior which interferes with your ability to provide safe patient care. Specifically: 1. Failure to follow up on a pediatric admission after being asked to do so at checkout. . . . 2. You did not notify the attending of an obstetrical laceration repair on a patient that had come in and delivered precipitously. . . . 3. During this same case, you were asked by the nurse to gown and glove for the laceration repair. You declined to do so, continuing to touch the repair field with clean but not sterile gloves. 11 Dkt. # 53-1 at 67 (Ex. 26 to Haughton Decl.) (emphasis added); #64-2 at 10 (Ex. 23 to 12 Diederich Decl.) (emphasis added). The final appeals report provides a summary of Dr. 13 Diederich’s performance and professional concerns leading to and including the 14 September 10, 2008 faculty meeting. Dkt. # 53-1 at 77-79 (Ex. 30 to Haughton Decl.). 15 Although the conclusions of fact did not address the three specific instances cited in the 16 termination letter specifically, it did state that there were “numerous incidents of sub17 standard medical practice, lack of personal accountability and integrity, and 18 unprofessionalism.” Id. at 81. Dr. Diederich argues that the specific reasons cited in the 19 termination letter were “withdrawn” in the appeal. Dkt. # 61 at 16. There is no evidence 20 that the three reasons listed were withdrawn in the appeal. To the contrary, the three 21 specific reasons are included in the case summary. Dkt. # 53-1 at 79 (Ex. 30 to Haughton 22 Decl.). The fact that the appeals panel provided additional justifications to uphold the 23 termination is not by itself evidence of pretext. The additional justifications provided are 24 not fundamentally different or incompatible with the termination letter, especially where 25 the termination letter refers to Dr. Diederich’s “ongoing behavior” that interfered with his 26 ability to provide safe patient care. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 27 918 (9th Cir. 1996) (no genuine issue of material fact as to whether reasons for layoff ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 11 1 were pretextual where reasons provided by employer for layoff were not incompatible, 2 and therefore not properly described as “shifting reasons.”). 3 With respect to the regarded-as depression, plaintiff points to “repeated comments 4 about depression” or “current perception of depression.” Dkt. # 61 at 29. Plaintiff admits 5 that he disclosed his prior depression in his application materials to the residency 6 program. Dkt. # 52-1 at 21 (Ex. A to Gaviria Decl., Diederich Depo. at 164:10-16). 7 Plaintiff also admits that the residency program would have knowledge of his prior 8 depression independent of anything related to his lawsuit against Swedish. Id. Indeed, 9 Dr. Cullison’s recommendation letter states: “Bob went on medical leave due to 10 depression. Prior to going on leave, he exhibited problems (such as trouble organizing 11 his thoughts, difficulty presenting patients and perceived resistance to feedback). We 12 understand that his physician has attributed these problems to his depression and that 13 both Bob and his physician believe that he will be successful in resuming his residency.” 14 Dkt. # 52-1 at 38 (Ex. B to Gaviria Decl.). Plaintiff claims he was asked whether or not 15 he was depressed “half a dozen times” from February 2008 through September 2008. 16 Dkt. # 52-1 at 21 (Ex. A to Gaviria Decl., Diederich Depo. at 164:5-9.); Dkt. # 64 17 (Diederich Decl.) ¶ 111. Plaintiff claims that he was asked about his depression during 18 meetings in which Dr. Miller “sharply criticized [his] performance.” Dkt. # 64 19 (Diederich Decl.) ¶ 111. Plaintiff admits that he “was not depressed in 2007-2008 and 20 showed no signs of being depressed[.]” Id. ¶ 112; Dkt. # 52-1 at 22 (Ex. A to Gaviria 21 Decl., Diederich Depo. at 165:6-13). Dr. Miller has testified that during plaintiff’s 22 interview, plaintiff told her that he had not completed his first year at Swedish because he 23 was struggling with depression, and that the depression was behind him. Dkt. # 63-1 at 24 19 (Ex. 36 to Stockmeyer Decl., Miller Depo. at 33:7-34:1).8 25 8 In his declaration, plaintiff purports to attribute Dr. Miller’s questions about depression to his lawsuit against Swedish because that “was the only context she knew about [him] in which 27 [he] had been depressed.” Dkt. # 64 (Diederich Decl.) ¶ 112. The court notes that these types of 26 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 12 1 Given these facts, the court finds that plaintiff has failed to show pretext either 2 directly by persuading the court that a discriminatory reason more likely motivated the 3 employer, or indirectly by showing that the employer’s proffered explanation is unworthy 4 of credence. Stegall, 350 F.3d at 1068. 5 This finding is bolstered when the court applies the same-actor inference to 6 plaintiff’s regarded-as depression.9 “[W]here the same actor is responsible for both the 7 hiring and the firing of a discrimination plaintiff, and both actions occur within a short 8 period of time, a strong inference arises that there was no discriminatory motive.” 9 Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996); Hill v. BCTI 10 Income Fund-I, 144 Wn. 2d 172, 23 P.3d 440 (2001), overruled on other grounds by, 11 McClarty v. Totem Elec., 157 Wn. 2d 214, 137 P.3d 844 (2006). Plaintiff applied to the 12 residency program in late 2006, and began his residency on July 1, 2007. Dkt. # 64 13 (Diederich Decl.) ¶ 6; Dkt. # 53 (Haughton Decl.) ¶ 3. As Program Director, Dr. 14 Haughton was involved in his hiring in March 2007. Dkt. # 53 (Haughton Decl.) ¶ 3. Dr. 15 Haughton terminated plaintiff’s employment on September 12, 2008. Id. ¶ 22, Ex. 26. It 16 is undisputed that Dr. Haughton knew of plaintiff’s depression when he was hired. Dkt. # 17 52-1 at 21 (Ex. A to Gaviria Decl., Diederich Depo. at 164:10-16) & at 38 (Ex. B); #53 18 (Haughton Decl.) ¶ 3, Ex. 1. Under these circumstances, a strong inference arises that 19 there was no discriminatory motive.10 20 21 22 argumentative, speculative statements that are not based on personal knowledge and are 23 improper opinion testimony are the type of statements that the court has disregarded. 9 During oral argument, plaintiff conceded that the same actor inference applies, but 24 argued that plaintiff has overcome the strong inference that there was no discriminatory motive. 10 During oral argument, plaintiff argued that in December 2007, Drs. Haughton, 25 Johnson, and Miller knew of the prior lawsuit, and that knowledge of the prior lawsuit triggered 26 a new animus. However, the court has found infra that there is no evidence that any of these doctors had knowledge of the prior lawsuit before his termination in September 2008. 27 Accordingly, plaintiff has failed to overcome the strong inference of non-discrimination. ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 13 1 Accordingly, plaintiff has failed to demonstrate a genuine issue of material fact 2 with respect to pretext. 3 D. Retaliation (ADA & WLAD) 4 The ADA and the WLAD prohibit an employer from taking an adverse 5 employment action against an employee based on protected conduct. Brown v. City of 6 Tucson, 336 F.3d 1181, 1186-87 (9th Cir. 2003) (citing 42 U.S.C. § 12203); Hines v. 7 Todd Pac. Shipyards Corp., 127 Wn. App. 356, 374, 112 P.3d 522 (2005) (citing RCW 8 49.60.210). To establish a prima facie case of retaliation, plaintiff must demonstrate that 9 (1) she engaged in statutorily protected activity, (2) defendants took some adverse 10 employment action against her, and (3) there is a causal connection between the protected 11 activity and the discharge. Barnett v. U.S. Air, Inc. 228 F.3d 1105, 1121 (9th Cir. 2000) 12 (en banc) (adopting Title VII retaliation framework for ADA retaliation claims), vacated 13 on other grounds by 535 U.S. 391 (2002); Corville v. Cobarc Servs., Inc., 73 Wn. App. 14 433, 439, 869 P.2d 1103, 1105 (1994). If plaintiff establishes a prima facie case, the 15 evidentiary burden shifts to the employer to produce admissible evidence of a legitimate, 16 non-retaliatory reason for the discharge. Brooks v. City of San Mateo, 229 F.3d 917, 928 17 (9th Cir. 2000); Hollenback v. Shriners Hospitals for Children, 149 Wn. App. 810, 823, 18 206 P.3d 337 (2009). If the employer meets its burden, the presumption is removed and 19 the employee must then establish a genuine issue of material fact as to pretext. Id. 20 The “protected activity” must fall squarely within the protections of the ADA and 21 the WLAD. See 42 U.S.C. § 12203(a) (“No person shall discriminate against any 22 individual because such individual has opposed any act or practice made unlawful by this 23 chapter or because such individual made a charge, testified, assisted, or participated in 24 any manner in an investigation, proceeding, or hearing under this chapter.”) (emphasis 25 added); RCW 49.60.210(1) (“It is an unfair practice for any employer . . . to discharge, 26 expel, or otherwise discriminate against any person because he or she has opposed any 27 practices forbidden by this chapter, or because he or she has filed a charge, testified, or ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 14 1 assisted in any proceeding under this chapter.”) (emphasis added); see Little v. 2 Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002) (opposition protected 3 when based on reasonable belief that employer engaged in unlawful employment 4 practice); Estevez v. Faculty Club of Univ. of Wash., 129 Wn. App. 774, 798, 120 P.3d 5 579 (2005) (employee must show that she opposed conduct that was arguably a WLAD 6 violation). 7 In his briefing and during oral argument, plaintiff identified three instances of 8 protected activity to support his claims for retaliation: (1) request for time off and 9 complaints for denial of time off request, (2) complaints about needing time off while 10 sick; and (3) the prior suit for disability discrimination against Swedish. Dkt. # 61 at 24. 11 With respect to the first, plaintiff argues that he was denied time off for his neck 12 condition. Dkt. # 61. However, the court has already found that no reasonable juror 13 could find that this request for vacation was a request for medical leave or 14 accommodations for his neck pain. For the reasons already explained above, the court 15 further finds that no reasonable jury could find that his request for vacation could be 16 construed as “protected activity” within the meaning of the ADA and the WLAD. The 17 same is true for plaintiff’s complaints about defendant’s denial of his vacation request. 18 With respect to the second basis, plaintiff argues that “he opposed orders to work 19 while sick and heaving” and that he made “various complaints to Miller and Haughton 20 about needing time off when sick.” Dkt. # 61 at 24. See Dkt. # 64 (Diederich Decl.) ¶¶ 21 80-82, 92. The court has already found that no reasonable jury could find that a twenty22 four to forty-eight hour gastrointestinal illness could qualify as a disability under the 23 circumstances presented to the court. The court further finds that no reasonable jury 24 could find that defendants’ response to plaintiff’s oppositional activity in March 2008 25 could even arguably be unlawful or a violation of the WLAD. Even if the court found 26 27 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 15 1 that these complaints were protected activity, plaintiff has failed to demonstrate a causal 2 link between these complaints and his discharge.11 3 With respect to the third basis, plaintiff has not presented any admissible evidence 4 that defendants were actually aware of his prior suit against Swedish. See Cohen v. Fred 5 Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (“Essential to a causal link is evidence that 6 the employer was aware that the plaintiff had engaged in protected activity.”). Rather, 7 plaintiff proffers speculation, argument, and improper opinion testimony to attempt to 8 establish a causal connection between his prior, unrelated lawsuit against Swedish and his 9 termination, including the following: (1) Haughton’s December 2007 comment “I 10 learned all about you” and “I spoke with Sam Cullison” (Dkt. # 61 [Opp’n] at 7 (citing 11 Dkt. # 64 [Diederich Decl.] ¶¶ 59-62)); (2) prior to July 2007, Haughton, Miller, Johnson 12 and Dightman had known Cullison professionally (id. (citing Haughton Depo. at 25:5-8, 13 Johnson Depo. at 9:19-10:7, Miller Depo. at 30:23-25, Dightman Depo. at 46:1-11)); (3) 14 “Haughton and Cullison ran in the same ‘pack.’” (id. (citing Haughton Depo. at 20:1515 24)); (4) Haughton saw Cullison for years at quarterly directors meetings from the UW 16 network (id. at 8 (citing Haughton Depo. at 20:5-11)); and (5) Haughton saw Cullison at 17 the December 2007 UWSOM Network meeting (id. (citing Haugton Depo. at 49:9-1812)). 18 Haughton testified that Sam Cullison was a director at the quarterly director 19 meetings, that they both attended the Society of Teachers of Family Medicine meetings, 20 and that he never saw Dr. Cullison outside of a professional contact. Dkt. # 52-1 at 42 21 (Ex. C to Gaviria Decl., Haughton Depo. at 20:9-24, 21:5-9). Haughton also testified that 22 he did not talk to Dr. Cullison about Dr. Diederich, and that he had no knowledge that Dr. 23 Diederich had sued Cullison or his prior program before Dr. Diederich was terminated. 24 25 11 The court assumes, without deciding, that plaintiff’s prior complaint of discrimination 26 against Swedish may form the basis of his retaliation complaint against defendants. 12 The court notes that neither party has provided the court with this page of Haughton’s 27 deposition testimony. ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 16 1 Id. at 20:12-14; 24:10-25:11. Dr. Johnson testified that she did not learn that Dr. 2 Diederich had sued Dr. Cullison and Swedish until after this lawsuit started. Dkt. # 52-1 3 at 55 (Ex. D to Gaviria Decl., Johnson Depo. at 19:4-12). Dr. Dightman testified that he 4 had never discussed Dr. Diederich with Dr. Cullison, and that he did not remember ever 5 learning that Dr. Diederich sued his prior residency program. Dkt. # 52-1 at 78 (Ex. G to 6 Gaviria Decl., Dightman Depo. at 46:14-21). Dr. Miller testified that during 2007 and 7 2008, she was not aware that Dr. Diederich had sued another family medicine residency 8 program, and that she only learned about it after he had been terminated. Dkt. # 52-1 at 9 83 (Ex. H to Gaviria Decl., Miller Depo. at 30:3-11). These facts are not in dispute. 10 Accordingly, plaintiff cannot demonstrate a causal link between his prior lawsuit against 11 Swedish and his termination. 12 13 E. 14 15 16 17 18 19 20 21 22 Plaintiff has failed to demonstrate a prima facie case of retaliation. Hostile Work Environment (ADA & WLAD) For purposes of this motion, the court assumes, without deciding, that federal and state law recognize a cause of action for disability discrimination based on a hostile work environment.13 See Robel v. Roundup Corp., 148 Wn. 2d 35, 45 (2002) (“Just as the federal cases extended the Title VII hostile work environment claim (and its standards of proof) to the ADA, we may extend the reasoning in Glasgow to disability claims[.]”). To establish a prima facie case of hostile work environment, Dr. Diederich must show that (1) he was disabled, (2) the harassment was unwelcome, (3) it was because of his disability, (4) it affected the terms and conditions of his employment, and (5) it is imputable to defendants.14 Id. The third element requires that the disability of the 23 13 The Ninth Circuit has not determined whether a plaintiff may maintain a hostile work 24 environment claim under the ADA. Brown, 336 F.3d at 1190 (declining to decide the issue). 14 Unlike a disparate treatment claim, which requires an adverse employment action, a 25 hostile work environment claim focuses on the cumulative effect of a series of actions, where the 26 individual actions are not adverse employment actions. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002); Porter v. Cal. Dep’t of Corr., 383 F.3d 1018, 1027-28 (9th 27 Cir. 2004), amended by 419 F.3d 885 (9th Cir. 2005). ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 17 1 plaintiff be a motivating factor for the unlawful discrimination. Id. at 46. The fourth 2 element requires that the harassment was severe or pervasive enough to create an 3 objectively hostile or abusive work environment. Harris v. Forklift Sys., Inc. 510 U.S. 4 17, 21 (1993); Robel, 148 Wn. 2d at 46. 5 The court has already found that no reasonable jury could find that plaintiff’s 6 gastrointestinal illness could qualify as a disability under the circumstances presented 7 here. The court has also found that no reasonable juror could find that this request for 8 vacation was a request for medical leave or accommodations for his neck pain. 9 Accordingly, conduct related to his gastrointestinal illness or complaints regarding the 10 denial of a vacation request necessarily cannot form the basis of a hostile work 11 environment claim based on disability. The remaining conduct plaintiff complains of 12 includes “constant comments about depression,” “comments about ‘learned all about 13 you’,” and “the 2008 reference to ‘failure’ at his prior program when in fact he left 14 Swedish due to depression[.]” Dkt. # 61 at 31. Plaintiff admits that he was asked “half a 15 dozen times” whether he was depressed over a seven month period. Dkt. # 52-1 at 21 16 (Ex. A to Gaviria Decl., Diederich Depo. at 164:5-9.); Dkt. # 64 (Diederich Decl.) ¶ 111. 17 Additionally, there is no admissible evidence linking the “learned all about you” 18 comment to the Swedish lawsuit. Plaintiff’s speculation and improper lay opinion is not 19 evidence. Even if the court considered the half a dozen comments about depression, the 20 “learned all about you” comment, and the reference to “failure” at his prior program, the 21 court would conclude that no reasonable juror could find such conduct was so severe and 22 pervasive as to create an objectively hostile work environment. 23 Accordingly, plaintiff has failed to establish a prima facie case for hostile work 24 environment. 25 26 27 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 18 1 F. The only question addressed to the court with respect to the plaintiff’s breach of 2 3 4 contract claim is whether, as a matter of law, “Dr. Diederich can ask for damages beyond his R2 contract.” Dkt. # 67 (Reply) at 13. A party to a contract has a contractual right only to that which it bargained for – its 5 6 7 8 9 10 11 12 13 14 15 16 reasonable expectation. Ford v. Trendwest Resorts, Inc., 146 Wn. 2d 146, 156 (2002). Contract law is concerned with the goal of placing the plaintiff where he or she would be if the defendant had performed as promised. Alejandre v. Bull, 159 Wn. 2d 674, 682 (2007). Where economic losses occur, recovery is confined to contract to ensure that the allocation of risk and the determination of potential future liability is based on what the parties bargained for in the contract. Id. at 682-83. Damages recoverable for breach of contract are those that may fairly and reasonably be considered either arising naturally from a breach of contract, or may reasonably have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of the contract. Gaglidari v. Denny’s Rests, Inc., 117 Wn. 2d 426, 446 (1991) (citing Hadley v. Baxendale, 9 Ex. 341, 354, 156 Eng.Rep. 145, 151 (1854)). The Washington Supreme Court has drawn a distinction between the ability to 17 18 19 20 21 22 23 24 25 26 Breach of Contract recover future earnings for at-will versus for-cause employment. Ford, 146 Wn. 2d at 156-57. The Ford court held that “lost earnings cannot measure damages for the breach of an employment at-will contract because the parties to such a contract do not bargain for future earnings. By its very nature, at-will employment precludes an expectation of future earnings.” Id. at 157. The court reasoned that since “Ford did not bargain for future earnings, he cannot claim they measure the harm he sustained by [the] breach. To hold that Ford reasonably expected future earnings under his employment at-will contract would create a new exception to the at-will employment doctrine not supported in law.” Id. 27 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 19 1 Dr. Diederich characterizes his residency contract for medical education and 2 completion certificate as “for cause” based on the non-renewal policy. Dkt. # 61 at 22. 3 However, Dr. Diederich’s contract for residency does not seem to fall squarely within at4 will employment or for-cause employment cases. See e.g., Roberts v. Atlantic Richfield 5 Co., 88 Wn. 2d 887, 894 (1977); Bakotich v. Swanson, 91 Wn. App. 311, 314-318 6 (1998). Dr. Diederich concedes that in addition to the salary listed in the contract, he 7 expected to receive education, experience, and a certification of completion at the end of 8 the three years. Dkt. # 64 (Diederich Decl.) ¶ 19; #64-1 at 36 (Ex. 5 to Diederich Decl.) 9 (“To consider the compensation stated above and the experience and instruction received 10 as sole compensation . . . .”). 11 During oral argument, defendants argued that a contract for medical residency is a 12 hybrid relationship containing both academic and employment features. Courts that have 13 analyzed whether a medical resident contract should be interpreted as an academic or 14 employment contract generally rely on the context of the circumstances and issue 15 presented. For instance, in the tax context, a resident agreement is considered an 16 employment contract. Mayo Found. For Med. Educ. & Research v. United States, 131 S. 17 Ct. 704, 715 (2011). However, when courts address dismissal or disciplinary matters 18 with respect to due process rights of residents or breach of contract, courts conclude that 19 the dismissal or disciplinary decisions are academic decisions. See Davis v. Mann, 882 20 F.2d 967, 974 (5th Cir. 1989) (“It is well-known that the primary purpose of a residency 21 program is not employment or a stipend, but the academic training and the academic 22 certification for successful completion of the program. . . . The same factors that justified 23 minimal procedural protections in the Horowitz medical school context apply with equal 24 force to the paid residency situation.”); Gul v.Ctr. for Family Med., 2009 S.D. 12, P23, 25 762 N.W.2d 629 (S.D. 2009) (“We agree that medical residents are students and not 26 employees. . . . As a student, Dr. Gul is not entitled to the same due process protection as 27 an employee.”); Gupta v. New Britain Gen. Hosp., 687 A.2d 111, 117-18 (Conn. 1996) ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 20 1 (“hospital’s decision to dismiss the plaintiff for poor clinical performance constituted an 2 academic, rather than an employment decision”); Ross v. Univ. of Minn., 439 N.W.2d 28, 3 33 (Minn. Ct. App. 1989) (“a resident is a student for the purpose of reviewing the 4 decision to dismiss for academic reasons”). 5 Regardless, to determine whether Dr. Diederich may seek damages beyond his 6 second year contract, the court must determine whether loss of future earnings was 7 reasonably within the contemplation of the parties at the time the contract was made as a 8 probable result of a breach of the contract. 9 The contract itself for Dr. Diederich’s second year residency only contemplated 10 appointment of a one-year term, beginning July 1, 2008 and ending June 30, 2009. Dkt. 11 # 64-1 at 33 (Ex. 5 to Diederich Decl.). The agreed upon salary “per contract period 12 during all such times that the resident is actively engaged in the program” was 13 $46,904.00. Id. The contract lists a policy of non-reappointment regarding non-renewal 14 of residents’ appointments, which requires advance notice and the availability of 15 grievance procedures. Id. at 34. One of the general duties and expectations of residents 16 to be considered for reappointment is the ability to perform job expectations as specified 17 in the Resident Job Description. Id. at 38. “Reappointment and promotion, upon faculty 18 recommendation, will be based on regularly received feedback about all aspects of 19 resident’s performance.” Id. The ACGME guidelines, which plaintiff contends has been 20 incorporated into the contract, provide for conditions for reappointment: Non-renewal of appointment or non-promotion: In instances where a 21 resident’s agreement will not be renewed, or when a resident will not be promoted to the next level of training, the Sponsoring Institution must 22 ensure that its programs provide the resident(s) with a written notice of 23 intent no later than four months prior to the end of the resident’s current agreement. If the primary reason(s) for the non-renewal or non-promotion 24 occurs within the four months prior to the end of the agreement, the 25 Sponsoring Institution must ensure that its programs provide the resident(s) with as much written notice of the intent not to renew or not to promote as 26 circumstances will reasonably allow, prior to the end of the agreement. 27 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Residents must be allowed to implement the institution’s grievance procedures if they receive a written notice either of intent not to renew their agreement(s) or of intent to renew their agreement(s) but not to promote them to next level of training. Dkt. # 64-1 at 54 (Ex. 7 [ACGME Standards] to Diederich Decl.). Dr. Diederich claims that during his interview with Dr. Haughton prior to joining the program, Dr. Haughton described the residency program as a graduate medical education program “that had a great track record of turning out residents who went on to become successful family medicine doctors in the area served by UW School of Medicine.” Dkt. # 64 (Diederich Decl.) ¶ 15. Dr. Haughton also “noted that the education at Providence led to its ‘graduates’ passing boards at a high rate and he said that Providence would provide a great education.” Id. Dr. Diederich claims that, while he was at Providence, Dr. Haughton often told him the goal of the program was to both produce family medicine practitioners and keep them in the area served by Providence. Id. ¶ 17. During his deposition, Dr. Haughton testified that success for the program is “cranking out successful family physicians.” Dkt. # 63-1 at 12 (Ex. 35 to Stockmeyer Decl. [Haughton Depo. at 216:19-21]). Dr. Haughton also testified that he assumed that a resident’s “intended career development is they would graduate from the program; and so if they were dismissed, that would not be consistent with their plan, with their intended career course.” Id. at 3 (73:3-10). Dr. Haughton also agreed that the expectation of the program is to take people who will finish the program and have good careers as doctors, and that if a resident is dismissed, the dismissal would “make it impossible” for the resident to fulfill the program and have a good career as a doctor. Id. (73:11-20). Dr. Diederich also refers the court to the affiliation agreement between University of Washington and Providence that indicates that they would work collaboratively toward “assuring that the pipeline of students and residents entering family medicine result in adequate numbers of family physicians practicing. Dkt. # 64-1 at 12-13 (Ex. 3 to Diederich Decl. [Affiliation Agreement ¶ 1.7]). Providence’s policies and the ACGME ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 22 1 standards also provide detailed due process and grievance procedures for residents. Dkt. 2 # 63-1 at 26-63 (Exs. 4-7 to Diederich Decl.). 3 Even if the court takes all of the above facts into consideration, Dr. Diederich 4 cannot escape the fact that he had an express contract that limited his term to one year, 5 subject to reappointment.15 Under these circumstances, the court concludes that loss of 6 future earnings was not reasonably within the contemplation of the parties at the time the 7 contract was made as a probable result of a breach of the contract. Accordingly, Dr. 8 Diederich’s damages are limited to his contract. 9 10 IV. CONCLUSION For all the foregoing reasons, the court GRANTS defendant’s motion for summary 11 judgment. Dkt. # 51. The Clerk is directed to terminate the first partial summary 12 judgment motion and motion to supplement the opposition with respect to the first 13 summary judgment motion as MOOT. Dkt. # 31, # 45. The Clerk is also directed to 14 terminate the parties’ motions to supplement the record with respect to the second partial 15 summary judgment motion as DENIED. Dkt. # 87, # 89. The Clerk is also directed to 16 enter an amended scheduling order with a new trial date of December 3, 2012 on the 17 remaining claim of breach of contract against Providence. 18 19 20 21 22 23 24 25 26 27 15 The Washington authority cited by Dr. Diederich is readily distinguishable and inapposite because Dr. Diederich is not, and does not have, a business. See Larsen v. Walton Plywood Co., 65 Wash. 2d 1 (1964) (lost profits of new business sought in stockholders’ derivative action for breach of contract); Alpine Indus., Inc. v. Gohl, 30 Wn. App. 750 (1981) (lost profits of business sought in breach of construction contract case for construction delay). Nor is the court persuaded by the out-of-state authority where students had a four-year contract for a degree. See Sharick v. Se. Univ. of the Health Sciences, Inc., 780 So. 2d 136 (Fla. App. 2006) (medical student); Morehouse College Inc. v. McGaha, 627 S.E. 2d 39 (Ga. 2006) (undergraduate student). Here, Dr. Diederich had a one-year term contract, subject to reappointment. ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 23 1 Dated this 26th day of September, 2012. 2 3 4 5 A The Honorable Richard A. Jones United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT- 24

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