Shaninga v. St. Luke's Medical Center LP et al

Filing 79

ORDER granting 72 Motion for Summary Judgment. The Clerk of Court is directed to enter judgment accordingly. Signed by Judge G Murray Snow on 4/11/16.(KGM)

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1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Ndapewa Deborah Shaninga, 12 Plaintiff, No. CV-14-02475-PHX-GMS ORDER 13 v. 14 St. Luke’s Medical Center LP, et al., 15 Defendants. 16 Pending before the Court is Defendants’ St. Luke’s Medical Center LP, IASIS 17 Healthcare Holdings, Inc., and IASIS Healthcare Corporation’s Motion for Summary 18 Judgment (collectively “SLMC”) (Doc. 72). For the following reasons the Court grants 19 the motion. 20 BACKGROUND 21 Plaintiff Ndapewa Deborah Shaninga (“Shaninga”) is black and is from South 22 Africa. Plaintiff’s Statement of Facts (“PSOF”) ¶ 80. Shaninga holds a bachelor’s 23 degree in nursing as well as an MBA. PSOF ¶ 81. 24 On February 11, 2013, SLMC’s Director of Education Mona Smith (“Smith”) and 25 Administrator of Cardiovascular Services Stuart Scherger (“Scherger”) hired Shaninga as 26 an RN in the telemetry department. DSOF ¶ 8. Over the ten months Shaninga worked at 27 SLMC, she engaged in at least 237 hours of orientation and training. DSOF ¶ 24. 28 Shaninga contends, however, that other comparable non-black nurses received more 1 orientation and training over the same time-period. PSOF ¶ 24, Ex. 1 ¶¶ 21–25. Also, 2 during “Nurses Week,” while other non-black nurses received two pairs of scrubs, 3 Shaninga received only one. PSOF ¶ 86. 4 Throughout February 2013, Shaninga signed various forms and checklists 5 acknowledging her competency in certain critical nursing skills and behaviors. DSOF 6 ¶¶ 25–30. Shaninga and her preceptor Tammy Ericson also completed forms assessing 7 Shaninga’s competency in “Initial Patient Care,” rating her “competent” and able to 8 “perform independently” in 111 different skills and abilities. DSOF ¶ 31. Ericson also 9 independently completed an “Ongoing Competency Assessment & Evaluation” form in 10 which she rated Shaninga “superior” or “satisfactory” in all measured areas. DSOF ¶ 33; 11 Doc. 72, Ex. 1 at 299:21–300:15. 12 Not long after starting at SLMC, Shaninga testified that a non-black secretary in 13 the telemetry department named “Debbie” refused to call Shaninga by the name she 14 displayed on her SLMC badge: “Deborah.” PSOF ¶ 82, Ex. 1 ¶¶ 8–9. The secretary 15 asked for Shaninga’s “real name” and would get upset if Shaninga responded to someone 16 calling for “Debbie,” although people referred to Shaninga as “Debbie” regularly. PSOF 17 ¶ 82, Ex. 1 ¶¶ 10–11. On another occasion, a non-black surgeon at SLMC, after calling 18 for “Deborah” regarding a patient Shaninga worked on, walked away and “refused to 19 speak” to Shaninga after she answered his call and he responded “are YOU Deborah?” 20 PSOF ¶ 83, Ex. 1 ¶¶ 12–14. Shaninga believed her race motivated the conduct of both 21 persons in these incidents. Doc. 72, Ex. 1 at 329:18–337:10. 22 Clinical Nurse Manager Reshma Maharaj (“Maharaj”) supervised Shaninga while 23 she worked in SLMC’s telemetry department. DSOF ¶ 38. On April 12, 2013, Clinical 24 Coordinator Ampili Umayamma emailed Maharaj to report that Shaninga had been 25 involved in a heated disagreement with another SLMC employee in front of a patient. 26 DSOF ¶ 49. Shaninga concedes that Umayamma sent the email, but she denies its 27 description of the incident. PSOF ¶ 49. 28 On May 7, 2013, SLMC security officers Fenel Lafleur and Brian Rhodes reported -2- 1 to Smith that they witnessed Shaninga in a second altercation with another SLMC 2 employee—Karla Rivas (“Rivas”)—that involved another heated exchange in the 3 presence of a patient. DSOF ¶ 50. Shaninga admits that such an incident was reported, 4 however, she denies the details of the incident. PSOF ¶ 50. Shaninga claims that she 5 “interrupted a violation of hospital policy, and possibly state law, by stopping [Rivas 6 from administering] a four-point restraint on an African-American patient under her care 7 . . . .” PSOF ¶ 92. Shaninga reprimanded Rivas, who abandoned Shaninga with the 8 patient and complained to Smith. PSOF ¶¶ 93–94. 9 Also on May 7, 2013, Shaninga emailed a complaint to Maharaj that described at 10 least two “situations” regarding how other nurses and SLMC employees treated 11 Shaninga. Doc. 72, Ex. 1, Ex.121. The complaint consisted mostly of issues with how 12 other nurses and nursing assistants performed their duties; however, Shaninga also 13 referenced situations possibly involving her race, for example, once when an SLMC 14 employee informed her that a certain secretary had “problems with black people” or 15 another incident where Shaninga heard SLMC staff members mocking her English 16 language skills. PSOF ¶ 67, Ex. 1-1; Doc. 72, Ex. C ¶ 11. Maharaj informed Shaninga 17 on May 8, 2013 that she would look into each “situation” and would schedule a time for 18 the two of them to meet. PSOF ¶ 67, Ex. 1-1. Maharaj investigated Shaninga’s concerns 19 by “reviewing her assignments and interviewing the charge nurses” and she determined 20 that Shaninga’s work assignments were fair, which she relayed to Shaninga. Doc. 72, Ex. 21 C ¶ 12, Ex. 4. Shaninga disputes that Maharaj reasonably investigated the reported 22 incidents. PSOF ¶ 62. 23 On May 16, 2013, Maharaj and Scherger met with Shaninga to review her ninety- 24 day performance evaluation. Doc. 72, Ex. C ¶ 17. Maharaj rated Shaninga “above 25 average” in the categories of quality of work, quantity of work, ability to learn, and 26 initiative, while she rated Shaninga “satisfactory” in the categories of attitude and 27 attendance. Doc. 72, Ex. C ¶ 17, Ex. 8. Shaninga also received a verbal warning for 28 unprofessional behavior due to the chronicled incident with Rivas. DSOF ¶¶ 51–52. On -3- 1 May 19, 2013, Shaninga received, but refused to sign, the performance management 2 program (“PNP”) record of conference document related to the incident with Rivas.1 3 Doc. 72, Ex. C ¶ 18, Ex. 9. Instead, Shaninga emailed Maharaj and requested to be taken 4 “off the schedule for now because I have to clear my name.”2 Doc. 72, Ex. C ¶ 18, Ex. 9. 5 On May 20, 2013, Scherger emailed SLMC’s Director of Human Resources 6 Trinise Thompson (“Thompson”) and summarized the May 16 meeting with Shaninga. 7 Doc. 72, Ex. C ¶ 19, Ex. 10. In it, Scherger recounted Maharaj’s review of Shaninga’s 8 complaints included in her May 7 email. Doc. 72, Ex. C ¶ 19, Ex. 10. He also discussed 9 the incident with Rivas and Shaninga’s refusal to sign the PNP. Doc. 72, Ex. C ¶ 19, Ex. 10 10. Finally, he explained that at the meeting’s conclusion, all of the parties agreed that 11 Shaninga would return to work on May 20. Doc. 72, Ex. C ¶ 19, Ex. 10. 12 On May 30, 2013, Shaninga requested a low patient census (otherwise referred to 13 as “LCD” in SLMC’s documentation)3 for May 31 in an effort to take that day off. Doc. 14 72, Ex. D ¶ 24. SLMC denied her request; nonetheless, Shaninga did not show up for her 15 shift resulting in a “no call/no show” on her timesheet. Doc. 72, Ex. D ¶ 24. 16 On May 31, 2013, Scherger emailed Thompson and asked the HR department “to 17 review [Shaninga’s] files for consideration of continued employment, due to the number 18 of [attendance and behavioral] issues presented in her first 4 months as an employee [i.e., 19 Shaninga’s probationary period].” Doc. 72, Ex. D ¶ 25, Ex. 6. The request stemmed 20 “solely” from Shaninga’s attendance and behavioral issues. 21 Thompson responded with three termination options. Doc. 72, Ex. F ¶ 30, Ex. 13. One 22 option raised the concern that Shaninga may file a retaliation claim since Shaninga had 23 already filed a grievance (raising work related issues but not yet discrimination) with Doc. 72, Ex. F ¶ 30. 24 1 25 26 Rivas also received a written warning for her unprofessional conduct, however, SLMC did not cite Rivas for her actions until June 23, 2013—a month after Shaninga received her reprimand. PSOF ¶ 54. 2 27 28 Eventually, on July 1, 2013, Shaninga submitted a three-page email providing her own account of the incident with Rivas. DSOF ¶ 53. 3 LCD occurs when the patient to staff ratio is low enough that some nurses or other employees are asked to stay home from work. PSOF, Ex. 1 ¶ 91. -4- 1 SLMC. Doc. 72, Ex. F ¶ 31. Scherber forwarded Thompson’s proposed options to 2 Smith, but SLMC took no action. Doc. 72, Ex. F ¶ 30, Ex. 13. 3 On June 26, 2013, Shaninga emailed Maharaj and raised the issue of race 4 discrimination at SLMC. Doc. 72, Ex. C ¶¶ 20–21, Ex. 11. Shaninga suggested that it 5 was because she was “the only black full time nurse on days” that her co-workers treated 6 her negatively. Doc. 72, Ex. C ¶ 20, Ex. 11. Shaninga also accused SLMC of turning a 7 blind eye to the improper actions of Shaninga’s co-workers since “[t]he perpetrator[s 8 were] not black.” Doc. 72, Ex. C ¶ 20, Ex. 11. Shaninga further alleged retaliation from 9 her May 7 complaint, arguing that while her shifts “haven’t been cancelled unfairly . . . 10 [her] assignment has been overloaded.” Doc. 72, Ex. C ¶ 20, Ex. 11. Maharaj forwarded 11 the email to the HR department who eventually forwarded the email to Thompson. Doc. 12 72, Ex. F ¶ 32. 13 Thompson, in response, personally began investigating Shaninga’s allegations of 14 discrimination including interviewing employees in the telemetry department. Doc. 72, 15 Ex. F ¶ 33. None of the nurses Thompson interviewed, as evidenced by Thompson’s 16 interview notes, raised any issues related to discrimination in the telemetry department. 17 Doc. 72, Ex. F ¶ 33, Ex. 15. In addition to her personal interviews, Thompson also 18 considered an in-depth summary drafted by Maharaj outlining the history of her 19 interactions with Shaninga since Shaninga began in the telemetry department. Doc. 72, 20 Ex. F ¶ 36, Ex. 16; Doc. 72, Ex. C ¶ 23, Ex. 13. At no point did Thompson or any other 21 individual from SLMC follow-up with Shaninga personally as part of its investigation of 22 her allegations of discrimination. PSOF ¶ 67, Ex. 1 ¶ 69. 23 Thompson reported back to Maharaj that her investigation uncovered no 24 corroborating evidence of Shaninga’s claims of discrimination. Doc. 72, Ex. C ¶ 24. 25 Maharaj then attempted to set up an in-person meeting with Shaninga to discuss her 26 allegations, but Shaninga declined and instead requested that SLMC’s response be in a 27 letter. 28 regarding the contents of the correspondence, Maharaj sent Shaninga a letter on July 16, Doc. 72, Ex. C ¶ 24, Ex. 14. After consulting with Thompson and Smith -5- 1 2013 explaining that after investigating her claims of discrimination, the HR department 2 “found no verification of discriminatory practices.” Doc. 72, Ex. C ¶ 26, Ex. 16. 3 After her May 7 and June 26 complaints, Shaninga alleges that she began to 4 encounter increased “push backs” and LCD cancellations to her schedule. PSOF ¶¶ 108– 5 109. Furthermore, although SLMC would push back her shifts, it concurrently utilized 6 “pool” and outside agency nurses—nurses normally only called in when SLMC failed to 7 find a full-time nurse to work a shift. PSOF ¶¶ 110–113. Shaninga claims SLMC’s 8 conduct was retaliatory. PSOF ¶ 113. 9 On July 29, 2013, Shaninga received a verbal warning due to five “occurrences,” 10 i.e., absences or “no call/no shows,” under SLMC’s attendance policy. DSOF ¶¶ 57–58; 11 Doc. 72, Ex. F, Ex. 22. That same day Shaninga also submitted an application for 12 transfer seeking a position in the Tempe SLMC’s intensive care unit (“ICU”). DSOF 13 ¶ 39. Smith approved her application and she started working in the ICU on August 4, 14 2013. DSOF ¶ 40; Doc. 72, Ex. E ¶ 35. Shaninga claims that Smith took a more direct 15 role in controlling her schedule and work environment after the transfer. PSOF ¶ 115. At 16 the ICU, Jesse Sharrock (“Sharrock”) became Shaninga’s new supervisor. Doc. 72, Ex. 1 17 at 347:15–20. 18 Around the time of her transfer, Shaninga requested orientation at the ICU. PSOF 19 ¶ 117. SLMC scheduled orientation from August 2–4, 2013, however, Smith cancelled 20 the first two orientation days and the ICU was closed on the third. 21 Shaninga attempted to re-schedule her orientation, but Shaninga states that Smith and 22 various ICU nurses and staff prevented her from doing so. 23 Eventually, on August 6, 2013, ICU staff told Shaninga that she could not work until she 24 received an updated TB skin health screening since her previous one had expired that 25 day. PSOF ¶ 122. Shaninga claims that SLMC failed to notify her of the impending 26 expiration of her TB skin health screening, and normal procedures ensure that nurses are 27 notified in order for them remain in compliance. PSOF ¶ 123. Shaninga received a TB 28 skin health screening and started back at work by August 13, 2013. PSOF ¶ 126. -6- PSOF ¶ 117. PSOF ¶¶ 118–121. 1 On September 27, 2013, Sharrock verbally counseled Shaninga on SLMC’s 2 attendance policy stemming from an incident in which Shaninga failed to show up for her 3 shift after first having her shift pushed back several hours. DSOF ¶ 59; Doc. 72, Ex. 1 at 4 350:15–355:16, Ex. 128. Shaninga concedes that she received the counseling, but she 5 contests the appropriateness of the counseling since, according to her, she missed her 6 shift because the ICU indicated that they would contact her by 9:00 p.m. to let her know 7 whether she needed to come in that night. PSOF ¶ 59; Doc. 72, Ex. 1 at 350:15–352:7. 8 When she did not hear from them by that time, she fell asleep and missed their calls later 9 in the evening. PSOF ¶ 59; Doc. 72, Ex. 1 at 350:15–352:7. Shaninga refused to sign the 10 related PNP document. Doc. 72, Ex. 1, Ex. 128. 11 On October 8, 2013, Shaninga received another written counseling from Sharrock, 12 this time related to Shaninga’s “7 call offs in a rolling 12 month period ending on 13 October 7, 2013 [that] indicate chronic absenteeism and violation of” SLMC’s attendance 14 policy.4 15 counseling, although she disagrees that such counseling was appropriate. PSOF ¶ 60. 16 Shaninga again refused to sign the related PNP document. Doc. 72, Ex. 1, Ex. 129. DSOF ¶ 60; Doc. 72, Ex. 1, Ex. 129. Shaninga admits to receiving the 17 On October 29, 2013, Sharrock reported to Smith and the Director of Quality and 18 Risk Management Rejeanna Hunter (“Hunter”) that Shaninga had improperly 19 administered a total parenteral nutrition (“TPN”) bag to a patient whom the treating 20 physician had ordered to be taken off the therapy and then defaced the label of the bag to 21 cover up the error. DSOF ¶ 70. The original intended recipient of the TPN bag, as a 22 result, went without his therapy. Doc. 72, Ex. E ¶ 38. As described to Sharrock from 23 Nolan Jenkins (“Jenkins”), a nurse in the ICU, during the morning shift change, Shaninga 24 informed Jenkins that the patient’s treating physician had discontinued the TPN bag, but 25 because a new TPN bag had already been prepared, she hung it anyway so it would not 26 go to waste. Doc. 72, Ex. B ¶ 8. Jenkins discovered that in fact the newly prepared bag 27 28 4 Call offs are equivalent to unscheduled absences defined as an absence not requested and approved 24 hours in advance. Doc. 72, Ex. 1, Ex. 129. -7- 1 was intended for a different patient entirely, and someone, presumably Shaninga, altered 2 the bag’s label in an attempt to obscure the different name. Doc. 72, Ex. B ¶ 9. Hunter 3 testified to personally observing the defaced label herself. Doc. 72, Ex. B ¶ 10. The 4 treating physician’s notes, moreover, reflected his or her order to discontinue the TPN 5 bag on October 28, 2013. Doc. 72, Ex. B ¶ 11, Ex. 1. And an electronic record entered 6 by Shaninga on the morning of October 29, 2013 indicated that she hung a TPN bag. 7 Doc. 72, Ex. B ¶ 12, Ex. 2. 8 Shaninga denies that the incident ever occurred. PSOF ¶ 70. Nonetheless, in 9 accordance with SLMC procedure, Hunter initiated an investigation into the medication 10 error. Doc. 72, Ex. B ¶ 20. Eventually, after previous attempts to meet with Shaninga 11 failed, Hunter, Smith, Sharrock, and Chief Nursing Officer Michael Polite (“Polite”) met 12 with Shaninga regarding the error on November 1, 2013. Doc. 72, Ex. B ¶ 15. Hunter’s 13 report of the meeting reflects that Shaninga admitted to hanging the TPN bag for a patient 14 despite knowing that the treating physician had discontinued the therapy and it was 15 intended for a different patient. Doc. 72, Ex. B ¶¶ 16, 20, Ex. 3. In the meeting, 16 Shaninga initially dismissed the mistake stating “well nobody died, right?” and then 17 excused her behavior on religious grounds stating that her beliefs did “not allow [her] to 18 participate in withdrawal of care.”5 Doc. 72, Ex. B ¶ 20, Ex. 3. Shaninga also expressed 19 that she often found errors in the work of other ICU staff yet she did not report them, and 20 that she believed SLMC was targeting her personally.6 Doc. 72, Ex. B ¶ 20, Ex. 3. 21 After the interview concluded, Hunter, Smith, Sharrock, and Polite determined 22 that Shaninga should be terminated. Doc. 72, Ex. B ¶ 20, Ex. 3. Smith terminated 23 Shaninga’s employment effective November 4, 2013 for “practice outside the scope of 24 nursing, willingly, knowingly.” Doc. 72, Ex. E ¶ 56, Ex. 13. Hunter also filed a 25 26 27 5 The patient at issue was in the process of being moved from the ICU to hospice care. PSOF, Ex. 1 ¶ 137. 6 28 Shaninga asserts that Erick Fischer, the non-black charge nurse who instructed Shaninga on the administration of the TPN bag at the heart of the October 29, 2013 incident, received no reprimand from SLMC. PSOF ¶¶ 145, 154. -8- 1 complaint against Shaninga to the Arizona Board of Nursing due to the alleged TPN 2 error. Doc. 72, Ex. B ¶ 22. IASIS Vice President of Human Resources Lloyd Price 3 approved the decision to end Shaninga’s employment and to report her to the Board of 4 Nursing after being informed of the TPN error. Doc. 72, Ex. F ¶ 40, Ex. 20. No member 5 of SLMC ever directly stated that race, a prior complaint, or retaliation motivated 6 SLMC’s decision to terminate Shaninga. DSOF ¶¶ 76–79. 7 Soon after her termination, Shaninga filed a grievance with the Arizona Board of 8 Nursing dated November 3, 2013. Doc. 72, Ex. F ¶ 41, Ex. 21. The grievance explained 9 Shaninga’s side of the story related to the TPN error and also generally described the 10 hostility, harassment, and discrimination she allegedly experienced while at SLMC. Doc. 11 72, Ex. F ¶ 41, Ex. 21. Through the grievance, however, Shaninga also admitted to 12 “hang[ing] the only bag in the refrigerator,” but explained that while “mistakes happen” 13 SLMC reprimanded her more harshly than other nurses who have also committed errors. 14 Doc. 72, Ex. F ¶ 41, Ex. 21. DISCUSSION 15 16 I. Legal Standard 17 Summary judgment is appropriate if the evidence, viewed in the light most 18 favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to 19 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 20 P. 56(a). Substantive law determines which facts are material and “[o]nly disputes over 21 facts that might affect the outcome of the suit under the governing law will properly 22 preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 23 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury 24 could return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 25 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the 26 nonmoving party must show that the genuine factual issues “‘can be resolved only by a 27 finder of fact because they may reasonably be resolved in favor of either party.’” Cal. 28 Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th -9- 1 Cir. 1987) (quoting Anderson, 477 U.S. at 250). 2 Although “[t]he evidence of [the non-moving party] is to be believed, and all 3 justifiable inferences are to be drawn in [its] favor,” the non-moving party “must do more 4 than simply show that there is some metaphysical doubt as to the material facts.” 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The 6 nonmoving party cannot avoid summary judgment by relying solely on conclusory 7 allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 8 “A party asserting that a fact cannot be or is genuinely disputed must support the 9 assertion by: (A) citing to particular parts of materials in the record . . . or other materials; 10 or (B) showing that the materials cited do not establish the absence or presence of a 11 genuine dispute, or that an adverse party cannot produce admissible evidence to support 12 the fact.” Fed. R. Civ. P. 56(c). “A trial court can only consider admissible evidence in 13 ruling on a motion for summary judgment,” and evidence must be authenticated before it 14 can be considered. Orr v. Bank of Am., 285 F.3d 764, 773–74 (9th Cir. 2002). 15 II. Analysis 16 Shaninga raises racial discrimination, retaliation, and hostile work environment 17 claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the 18 Arizona Civil Rights Act (“ACRA”), § 14-1461 et seq., and 42 U.S.C. § 1981. The Ninth 19 Circuit recognizes that the ACRA is “generally identical to Title VII, and therefore 20 federal Title VII case law is persuasive in the interpretation of the [ACRA].” Bodett v. 21 CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004) (internal quotation marks, citation, and 22 modifications omitted). Likewise, “[a]nalysis of an employment discrimination claim 23 under § 1981 follows the same legal principles as those applicable in a Title VII disparate 24 treatment case.” Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir. 25 2004). Consequently, the Court’s analysis will follow the framework applicable to Title 26 VII but will apply equally to Shaninga’s ACRA and § 1981 claims. 27 /// 28 /// - 10 - 1 A. Disparate Treatment 2 “Disparate treatment claims must proceed along the lines of the praxis laid out by 3 the Supreme Court” in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its 4 progeny. Bodett, 366 F.3d at 743. A discrimination plaintiff must first establish a prima 5 facie case of disparate treatment. If the plaintiff successfully makes such a showing, the 6 burden then shifts to the defendant to produce some evidence demonstrating a legitimate, 7 nondiscriminatory reason for the plaintiff’s termination. McDonnell Douglas, 411 U.S. 8 at 802. Upon the defendant meeting this burden of production, any presumption that the 9 defendant discriminated against the plaintiff “drops from the case,” and the burden shifts 10 back to the plaintiff who must then show that the defendant’s alleged reason for 11 termination was merely a pretext for discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 12 U.S. 502, 507–08 (1993). 13 The plaintiff “may prove pretext either directly by persuading the court that a 14 discriminatory reason more likely motivated the [defendant] or indirectly by showing that 15 the [defendant’s] proffered explanation is unworthy of credence.” Raad v. Fairbanks N. 16 Star Borough Sch. Dist., 323 F.3d 1185, 1196 (9th Cir. 2003) (quoting Texas Dep’t of 17 Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). “The evidence proffered can be 18 circumstantial or direct.” Bodett, 366 F.3d at 743 (citation omitted). “When the plaintiff 19 offers direct evidence of discriminatory motive, a triable issue as to the actual motivation 20 of the employer is created even if the evidence is not substantial. . . . Direct evidence is 21 evidence, which, if believed, proves the fact of discriminatory animus without inference 22 or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). 23 “[W]here direct evidence is unavailable, however, the plaintiff may come forward with 24 circumstantial evidence . . . to show that the employer’s proffered motives were not the 25 actual motives because they are inconsistent or otherwise not believable. Such evidence . 26 . . must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to 27 whether the employer intended to discriminate on the basis of [a prohibited ground].” Id. 28 at 1222. At all times, although the burden shifts between the parties, the ultimate burden - 11 - 1 of persuasion remains with the plaintiff. St. Mary’s Honor Ctr., 509 U.S. at 511. 1. 2 Prima facie case 3 In the context of a disparate treatment claim based on circumstantial evidence of 4 racial discrimination, McDonnell Douglas sets out a framework that, if met, establishes a 5 prima facie showing of unlawful discrimination. 6 belongs to a protected class, (2) she was performing according to her employer’s 7 legitimate expectations, (3) she suffered an adverse employment action, and (4) other 8 employees with qualifications similar to her own were treated more favorably.” Vasquez 9 v. Cnty. of L.A., 349 F.3d 634, 640 n.5 (9th Cir. 2003) (citing McDonnell Douglas, 411 10 U.S. at 802)). “The requisite degree of proof necessary to establish a prima facie case for 11 Title VII . . . on summary judgment is minimal and does not even need to rise to the level 12 of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th 13 Cir. 1994) (citation omitted). SLMC challenges Shaninga’s ability to meet elements (2), 14 (3), and (4). 15 a. Plaintiff must show that “(1) she Shaninga’s performance at SLMC and the ICU 16 Courts recognize that extensive disciplinary records suffice to show that an 17 employee cannot meet her burden on the second prong of the prime facie framework. 18 See, e.g., Orr v. Univ. Med. Ctr., 51 F. App’x 277, at *1 (9th Cir. 2002) (concluding that 19 an employee’s “lengthy disciplinary record is more than adequate evidence to show that 20 she was not” performing her job satisfactorily); Nganje v. CVS RX Servs., Inc., 2015 WL 21 4173269, at *9 (D. Ariz. July 10, 2015) (holding that due to numerous occasions of 22 verbal and written counseling, complaints from customers and co-workers, and receiving 23 a “needs improvement” evaluation, “no reasonable jury could conclude that [the 24 employee] was performing her job satisfactorily . . . .”). Here, SLMC points to the verbal 25 and written disciplinary actions Shaninga sustained during her 10-month employment 26 with SLMC. Specifically, Shaninga received at least five verbal or written disciplinary 27 warnings or actions by the time SLMC terminated her employment in November 2013, 28 although the majority of the actions focused on Shaninga’s attendance issues and not - 12 - 1 problems with her skills as a nurse. 2 In fact, during her ninety-day review on May 16, 2013, Maharaj and Scherger 3 rated Shaninga “above average” in categories related to her substantive performance as a 4 nurse in the telemetry department, and “satisfactory” in categories of attendance and 5 attitude. 6 necessarily extend beyond May 2013, there are no complaints from supervisors, 7 colleagues, or patients (besides the October 29, 2013 TPN error) in the evidentiary record 8 to suggest otherwise. And while there is evidence that Shaninga’s attendance issues 9 continued beyond May 2013 that evidence does not prevent Shaninga from establishing 10 11 While her rating of “above average” substantive performance does not this prong of her prima face case. b. Adverse employment action 12 SLMC contends that its decision to terminate Shaninga’s employment on 13 November 4, 2013 constitutes the only adverse employment action relevant to her Title 14 VII disparate treatment claim. 15 response brief; accordingly, the point is conceded. 16 c. Shaninga raises no argument to the contrary in her Similarly situated employees 17 The Ninth Circuit recognizes that courts “generally analyze an employer’s reasons 18 for why employees are not similarly situated at the pretext stage of McDonnell Douglas, 19 not the prima facie stage.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1159 (9th Cir. 20 2010). And although the analysis is relevant to both the prima facie and pretext part of 21 the analysis, the two inquiries must remain distinct and separate. Id. at 1158 (citation 22 omitted). This is so because the two stages require different burdens of proof where the 23 burden at the prima facie stage is much less than at the pretext stage. Id. (citation 24 omitted). Nevertheless, Shaninga alleges, for example, that SLMC did not reprimand the 25 non-black charge nurse who was also involved in the October 29, 2013 TPN incident, 26 while SLMC terminated Shaninga. 27 method established in McDonnell Douglas was ‘never intended to be rigid, mechanized, 28 or ritualistic,” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983), Consequently, because “[t]he prima facie case - 13 - 1 but has rather been described as “not onerous,” Hawn, 615 F.3d at 1158 (citation 2 omitted), Shaninga’s showing meets her burden and establishes a prima facie case of race 3 based disparate treatment. 2. 4 Pretext 5 Although Shaninga establishes a prima facie case of discrimination, summary 6 judgment on her Title VII disparate treatment claim is appropriate since she fails to carry 7 her ultimate burden of persuasion and overcome SLMC’s legitimate non-discriminatory 8 reason for terminating her employment: the October 29, 2013 TPN error.7 Shaninga, 9 relying on circumstantial proof, must present “specific” and “substantial” evidence 10 demonstrating that SLMC’s proffered reason for her termination was pretext masking 11 discriminatory intent or was otherwise not believable for some different reason. See 12 Vasquez, 349 F.3d at 642. a. 13 Similarly situated employees 14 “A showing that the [employer] treated [a] similarly situated employee[] outside 15 [of the plaintiff employee’s] protected class more favorably would be probative of 16 pretext.” Id. at 641. While the comparator employee’s role must not be identical, it must 17 be similar “in all material respects.” Hawn, 615 F.3d at 1157 (citation omitted). Courts 18 interpret this to mean that “individuals are similarly situated when they have similar jobs 19 and display similar conduct.” Vasquez, 349 F.3d at 641. “[W]hether two employees are 20 similarly situated is ordinarily a question of fact.” Beck v. United Food & Commercial 21 Workers Union Local 99, 506 F.3d 874, 885 n.5 (9th Cir. 2007). 22 Shaninga cites various scenarios where she contends SLMC treated similarly 23 situated SLMC employees more favorably than she. Some of these incidents relate to 24 access to training while others raise supposed disparate disciplinary treatment. Since 25 7 26 27 28 Shaninga states that SLMC “falsely accused” her of the TPN error. Doc. 76 at 2. SLMC, however, put forth evidence that it learned of the TPN incident, corroborated the error with supporting documentation, interviewed Shaninga, and then determined that the TPN incident occurred and Shaninga should be terminated. Shaninga does not argue that SLMC’s belief cannot serve as the basis to terminate her employment. Instead, Shaninga argues that regardless of the validity of the TPN incident, SLMC simply used it as pretext to cover its true racially motivated reasons for ending her employment. - 14 - 1 SLMC’s decision to terminate Shaninga for her actions on October 29, 2013 constitutes 2 the only adverse employment action applicable here, that incident and its circumstantial 3 facts form the basis for the comparison. As such, the only relevant comparators are those 4 SLMC employees who allegedly received more favorable disciplinary treatment than 5 Shaninga. Accordingly, she raises three possible comparators: Erick Fischer, Karla 6 Rivas, and Lilian. None of these individuals are similarly situated to Shaninga. 7 Fischer, who is white, worked as a charge nurse in the ICU on October 29, 2013, 8 the day of the TPN bag incident. Shaninga argues that Fischer started the TPN bag that 9 he and Shaninga allowed to finish after the physician ordered it discontinued; yet SLMC 10 only disciplined Shaninga. SLMC, however, fired Shaninga because she began a second 11 TPN bag on the patient—separate from the bag Fischer started—despite knowing that the 12 patient’s physician had withdrawn the therapy and then she defaced the bag’s label in an 13 attempt to cover up her actions. In addition, by giving the TPN bag to the wrong patient, 14 the original patient to whom the physician originally prescribed the TPN bag went 15 without it. The egregiousness of Shaninga’s error is not sufficiently comparable to 16 Fischer’s actions. Vasquez, 349 F.3d at 641 (holding that alleged comparator was not 17 similarly situated because he “did not engage in problematic conduct of comparable 18 seriousness to that of [the employee].”). Fischer is not a relevant comparator. 19 Rivas, who is Filipina, is a certified nursing assistant while Shaninga is a 20 registered nurse. The Ninth Circuit recognizes that “[e]mployees in supervisor positions 21 are generally deemed not to be similarly situation to lower level employees” due to the 22 differences in responsibilities between the positions. See id. Moreover, both Shaninga 23 and Rivas received the same disciplinary action except that Shaninga received it first; 24 therefore, even assuming Rivas is a valid comparator, there is no disparate treatment 25 established. 26 Shaninga also alleges that “[a]t least one other non-African-American St. Luke’s 27 nurse named Lilian actually gave the wrong medication to a patient with low blood 28 pressure and she was not terminated even though the patient died.” PSOF ¶ 157, Ex. 1 - 15 - 1 ¶ 170. Shaninga, however, provides no corroborating evidence of the incident (let alone 2 the last name of the nurse); thus, while Lilian may be a comparator, the Court cannot 3 make that determination on this record. Shaninga, moreover, fails to raise a genuine 4 dispute of material fact on the issue since she solely relies on her own conclusive 5 testimony that such an incident occurred. See Kennedy v. Applause, Inc., 90 F.3d 1477, 6 1481 (9th Cir. 1996) (The Ninth Circuit has refused to find a “genuine issue” where the 7 only evidence presented is “uncorroborated and self-serving” testimony). b. 8 Other evidence of disparate treatment 9 Shaninga raises other instances where she argues SLMC favored non-black nurses 10 with regard to training. She also highlights an incident where she perceived racial 11 animosity with respect to her name. Even considering that evidence collectively, its fails 12 to meet Shaninga’s burden of demonstrating “specific” and “substantial” proof that 13 SLMC’s adverse employment action was truly motivated by Shaninga’s race and not by 14 her poor attendance record and ultimately her unsatisfactory work performance. 15 Shaninga presents incompetent evidence as to the alleged disparity in training. 16 Shaninga’s evidence that other non-black nurses received more training than she did is 17 not corroborated by any exhibits or declaration testimony besides Shaninga’s own. See 18 Kennedy, 90 F.3d at 1481; PSOF ¶ 24, Ex. 1 ¶¶ 21–25. And while Shaninga can testify to 19 things to which she holds personal knowledge, her declaration fails to establish 20 foundation for such conclusions. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 21 1028 (9th Cir. 2001) (affirming the district court’s decision finding no genuine dispute of 22 material fact when the plaintiff’s deposition testimony attempting to raise such an issue 23 failed to show personal knowledge). Shaninga does not contest that, in fact, she received 24 at least 237 hours of training from SLMC, and she presents no evidence beyond her own 25 testimony that over 200 hours of training is an overall lower number than that of her 26 colleagues. 27 Finally, the remarks Shaninga received about her name are also insufficient to 28 establish discrimination. See Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th - 16 - 1 Cir. 1990). The remarks came from a secretary and a surgeon in the telemetry 2 department, neither of whom Shaninga alleges took part in or influenced SLMC’s final 3 decision to terminate her employment. See id. (citing Smith v. Firestone Tire & Rubber 4 Co., 875 F.2d 1325, 1330 (7th Cir. 1989) (noting that stray “remarks, . . . when unrelated 5 to the decisional process, are insufficient to demonstrate that the employer relied on 6 illegitimate criteria, even when such statements are made by the decision maker in 7 issue.”)). The stray remarks alleged here, therefore, do not show pretext. 8 Ultimately, the factual record provides neither “specific” nor “substantial’ 9 evidence of pretext; therefore, the Court grants SLMC’s motion for summary judgment 10 on Shaninga’s Title VII disparate treatment claim. 11 B. 12 To establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) 13 she engaged in protected activity; (2) the employer subjected her to adverse employment 14 action as a result of the protected activity; and (3) there was a causal link between the 15 protected activity and the employer’s action. Bergene v. Salt River Project Agric. Imp. & 16 Power Dist., 272 F.3d 1136, 1141–42 (9th Cir.2001). 17 Retaliation 1. Protected activity 18 Protected activity, at its core, occurs when an employee “protest[s] or otherwise 19 oppose[s] unlawful employment discrimination directed against employees protected by 20 Title VII.” Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994). The protest or opposition 21 can take different forms such as filing a complaint with the EEOC or simply making an 22 informal complaint to a supervisor; even complaints made for the protection of 23 employees in a protected class for which the protestor does not identify will suffice. See 24 Ray v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000) (citations omitted). 25 Nonetheless, an employee’s activity is protected if her conduct “refers to some practice 26 by the employer that is allegedly unlawful” under Title VII. 27 Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983). Shaninga alleges that she 28 engaged in protected activity via her May 7, 13, and 15, 2013 emails, her June 26, 2013 - 17 - E.E.O.C. v. Crown 1 email, and through other off-hand verbal complaints she made to Maharaj at times before 2 June 26. SLMC concedes that Shaninga’s June 26, 2013 email constitutes protected 3 activity, but argues that the other occurrences do not meet the standard of protected 4 activity since “they do not mention alleged race discrimination or harassment.” Doc. 72 5 at 13. 6 Shaninga’s May 7, 2013 email alleges racially derogatory comments and thus 7 raises the specter of racial discrimination and falls within protected activity. In the email, 8 Shaninga states that she was told that a particular secretary “has problems with black 9 people” after she requested that the secretary summon the on-call doctor and he rebuffed 10 her request. Doc. 72, Ex. 1, Ex. 121. Maharaj, upon receiving Shaninga’s email, could 11 have reasonably concluded that Shaninga’s complaint stemmed from her belief that her 12 race bothered some SLMC employees. This is especially true since Shaninga mentions 13 the racially-charged comment in the first paragraph of the email. See cf. Bright v. Mercer 14 Advisors Inc., 2011 WL 1539677, at *3 (D. Ariz. Apr. 20, 2011) (holding that it would be 15 unreasonable to expect an employer to infer a complaint of racial discrimination from an 16 employee’s “complaints about short, rude or otherwise disrespectful emails directed at 17 [the employee’s] department, which [were] not based on unlawful unemployment 18 practices proscribed by Title VII . . . .”). Accordingly, a genuine dispute of fact exists as 19 to whether Shaninga’s act of sending the May 7, 2013 email can be categorized as 20 protected activity within the reach of her Title VII retaliation claim. 21 Because none of the other May emails either allude to or mention race 22 discrimination (nor any other unlawful discrimination), they are not protected; moreover, 23 Shaninga’s alleged off-hand comments to Maharaj also fail since Shaninga only vaguely 24 remembers their existence, otherwise they are undocumented and Maharaj directly rebuts 25 their occurrence via sworn declaration testimony. Accordingly, Shaninga’s May 7 and 26 June 26 emails constitute the only protected activity. 27 28 2. Adverse employment action “Title VII’s substantive provision and its antiretaliation provision are not - 18 - 1 coterminous. The scope of the antiretaliation provision extends beyond workplace- 2 related or employment-related retaliatory acts and harm.” Burlington N. & Santa Fe Ry. 3 Co. v. White, 548 U.S. 53, 67 (2006). Although broader in scope, to be actionable, “the 4 challenged action [must be] materially adverse, which in this context means it well might 5 . . . dissuade[] a reasonable worker from making or supporting a charge of 6 discrimination.” Id. at 68 (internal quotation marks and citations omitted). Material 7 adversity serves to “separate significant from trivial harms,” since Title VII “does not set 8 forth a general civility code for the American workplace.” Id. (internal quotation marks 9 and citation omitted). Trivial harms include “petty slights, minor annoyances, and simple 10 lack of good manners,” actions that will normally not deter an employee from 11 complaining to the EEOC, the courts, or its employer about acts of discrimination. Id. 12 (citation omitted). Nonetheless, the Supreme Court employed broad language so as to 13 not foreclose what may be a trivial harm in one circumstance from being a significant 14 harm in another. Id. “Context matters.” Id. 15 SLMC agrees that Smith’s November 4, 2013 decision to terminate Shaninga 16 equates to an adverse employment action within the standard espoused in White; 17 however, SLMC contends that the litany of other alleged bad acts do not. As a practical 18 matter the adverse action must occur after Shaninga engaged in protected activity, thus 19 after May 7. 20 Shaninga argues that after her May 7, 2013 email, she experienced an uptick in 21 scheduling push-backs and shift cancellations at the hands of Smith. Doc. 76 at 5–6; see 22 PSOF ¶ 109, Ex. 1 ¶¶ 75, 84–85, 123–124. The question is not whether Smith’s alleged 23 efforts to alter Shaninga’s schedule or cancel her shifts materially affected Shaninga’s 24 conditions of employment; rather, the Court must determine whether “a reasonable 25 person in the plaintiff's position, considering all the circumstances” would be dissuaded 26 from exercising her right to access Title VII’s “remedial mechanisms[,]” because of these 27 actions. Id. at 68, 71 (internal quotation marks and citations omitted). Thus, although 28 Shaninga in fact emailed Maharaj on June 26, 2013 seeking redress for perceived - 19 - 1 discrimination after SLMC allegedly engaged in adverse employment actions, the 2 Supreme Court requires an objective “reasonable employee” standard ignoring “a 3 plaintiff’s unusual subjective feelings.” Id. at 68–69. Through that lens, Shaninga raises 4 a genuine dispute of material fact over whether her post-May 7, 2013 shift push-backs 5 and cancellations constitute an adverse employment action. 6 Shaninga also alludes to what she describes as “overloads” in her assignments as a 7 form of retaliation. Shaninga’s fails, however, to support her argument with 8 corroborating evidence. Without any proof that Smith, or some other SLMC employee, 9 acted to overburden Shaninga’s schedule with work outside the ordinary scope and/or 10 burden of that of a comparable nurse, Shaninga fails to raise a dispute of fact on the issue. 11 Shaninga finally argues that SLMC’s delayed reprimand of Rivas constitutes an 12 adverse employment action. Under the White standard, however, the delayed 13 admonishment of a third-party does not threaten a reasonable employee’s likelihood to 14 seek Title VII redress since the conduct does not threaten the employee’s employment 15 status. That is to say Rivas’ belated reprimand does not affect Shaninga’s likelihood of 16 continued employment and income at SLMC; as such, it would be unreasonable for that 17 incident to dissuade Shaninga from reporting issues of discrimination. 18 Accordingly, Shaninga suffered two adverse employment actions: her November 19 4, 2013 termination, and her collective post-May 7, 2013 schedule changes and shift 20 cancellations. 21 3. Causation 22 “Title VII retaliation claims must be proved according to traditional principles of 23 but-for causation, not the lessened causation test stated in § 2000e–2(m). This requires 24 proof that the unlawful retaliation would not have occurred in the absence of the alleged 25 wrongful action or actions of the employer.” Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 26 S. Ct. 2517, 2533 (2013). The “but-for causation” requirement has created a pre- and 27 post-Nassar standard. 28 “Under the pre-Nassar ‘motivating factor’ test, evidence of knowledge and - 20 - 1 proximity in time, together, could have been sufficient for the Court to find a disputed 2 issue of fact on causation.” Drottz v. Park Electrochemical Corp., 2013 WL 6157858, at 3 *15 (D. Ariz. Nov. 25, 2013) (citation omitted); see Ray, 217 F.3d at 1244 (a causal link 4 may be inferred from proximity in time). Post-Nassar, however, “while knowledge and 5 proximity in time certainly remain relevant when inferring but-for causation,” they 6 cannot form the sole basis on which an employee may satisfy his or her prima facie 7 burden. Drottz, 2013 WL 6157858, at *15. As the Nassar Court warned, plaintiffs are 8 filing retaliation claims with “ever-increasing frequency.” Nassar, 133 S. Ct. at 2531. 9 Accordingly, the stronger “but-for causation” standard serves to close the door on 10 employees seeking to file even more frivolous retaliation claims by disallowing an 11 employee, who perceives his or her own impending termination, to “shield against [those] 12 imminent consequences” by pursuing some form of protected activity. Id. at 2531–32; 13 Drottz, 2013 WL 6157858, at *15; see also Brooks v. City of San Mateo, 229 F.3d 917, 14 917 (9th Cir. 2000) (recognizing a concern that “employers will be paralyzed into 15 inaction once an employee has lodged a complaint under Title VII, making such a 16 complaint tantamount to a ‘get out of jail free’ card for employees engaged in job 17 misconduct”). 18 Shaninga relies only on evidence of knowledge and temporal proximity to prove 19 causation. Doc. 76 at 5–6. Indeed, the record supports, crediting discrepancies in 20 Shaninga’s favor, Bodett, 366 F.3d at 740, that Thompson, Smith, and Maharaj knew of 21 Shaninga’s May 7 and June 26, 2013 emails. And the schedule changes, shift 22 cancellations, and termination decision—all of which Shaninga argues Smith orchestrated 23 in retaliation to her complaints—occurred a few days to a few months after her May 7 24 and June 26 emails. Nevertheless, without other evidence demonstrating that SLMC’s 25 actions, and particularly Smith’s actions, would not have occurred in the absence of 26 Shaninga’s May 7 or June 26 emails, her allegations fit squarely within Nassar’s 27 proscription. See Nassar, 133 S. Ct. at 2533. In the end, it takes more than allegations of 28 knowledge and temporal proximity to demonstrate but-for causation in a Title VII - 21 - 1 2 retaliation claim. Accordingly, Shaninga does not establish a genuine dispute of material fact on 3 but-for causation under the Nassar standard. Thus, the Court grants SLMC’s motion for 4 summary judgment on the cause of action. 5 C. Hostile Work Environment 6 To establish a prima facie hostile work environment claim under Title VII, 7 Shaninga “must raise a triable issue of fact as to whether (1) she was ‘subjected to verbal 8 or physical conduct’ because of her race, (2) ‘the conduct was unwelcome,’ and (3) ‘the 9 conduct was sufficiently severe or pervasive to alter the conditions of [Shaninga’s] 10 employment and create an abusive work environment.’” Manatt v. Bank of Am., NA, 339 11 F.3d 792, 798 (9th Cir. 2003) (citation omitted). Shaninga must “show that the work 12 environment was both subjectively and objectively hostile.” McGinest v. GTE Serv. 13 Corp., 360 F.3d 1103, 1113 (9th Cir. 2004) (citation omitted). 14 As to objective hostility, courts keep in mind that Title VII, again, is not a “general 15 civility code,” therefore, “simple teasing, offhand comments, and isolated incidents 16 (unless extremely serious) will not amount to discriminatory changes in the terms and 17 conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) 18 (internal quotation marks and citations omitted). 19 “psychological injury” is unnecessary as well. McGinest v. GTE Serv. Corp., 360 F.3d 20 1103, 1113 (9th Cir. 2004) (internal quotation marks and citations omitted). Rather, “[i]t 21 is enough if such hostile conduct pollutes the victim’s workplace, making it more 22 difficult for her to do her job, to take pride in her work, and to desire to stay on in her 23 position.” 24 conduct; its severity; whether it is physically threatening or humiliating, or a mere 25 offensive utterance; and whether it unreasonably interferes with an employee’s work 26 performance.” Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864, 872 (9th Cir. 27 2001) (citation omitted). Finally, objective hostility is determined “from the perspective 28 of a reasonable person belonging to the racial . . . group of the plaintiff.” McGinest, 360 Id. On the other hand, diagnosable Other factors courts consider are the “frequency of discriminatory - 22 - 1 F.3d at 1115 (footnote omitted). 2 In attempting to prove the existence of a hostile work environment, Shaninga 3 relies on much of the same evidence used to form the basis of her disparate treatment 4 claim. In her response brief, Shaninga highlights the “disproportionate discipline levied 5 at a member of a protective class [i.e., Shaninga], when compared to those not in the 6 protected class . . . that she was erratically scheduled . . . and questionably disciplined . . . 7 . She was removed from the schedule . . . for an expired medical test . . . . Her 8 disciplinary issues were also ‘stacked’ in an effort to make them seem more compelling. . 9 . . [and finally] the complete failure of HR to contact [Shaninga] in any way after 10 receiving her complaint of racial discrimination and harassment.” 11 Shaninga’s May 7, 2013 email raises the only alleged incident of racially based verbal 12 harassment: when an individual told Shaninga that a certain secretary “has problems 13 with black people.” Her May 7 email also notes that “[o]ne time [she] could hear two 14 staff members ridiculing” her for her English language skills. Additionally, Shaninga 15 references an incident where a secretary refused to call Shaninga “Debbie,” the name on 16 her badge, since the secretary’s name was also “Debbie.” Finally, her June 26, 2013 17 raises racial discrimination in general terms, but does not espouse any specific incidence 18 of racially motivated disparaging conduct. 19 Doc. 76 at 9. Shaninga’s testimony and complaints to SLMC establish subjective hostility. See 20 McGinest, 360 F.3d at 1113. In fact, Shaninga espoused on multiple occasions a 21 sentiment reflective of a hostile work environment. In early May, Shaninga requested 22 time off since she felt uncomfortable around her co-workers, whom she stated were 23 “making it impossible to perform the essential duties of the job.” Doc. 72, Ex. C ¶ 14, 24 Ex. 5. And soon after she requested additional time off to “clear her name.” Doc. 72, Ex. 25 C ¶ 18, Ex. 9; Doc. 72, Ex. C ¶ 19, Ex. 10. She reinforced these feelings in her May 7 26 and June 26, 2013 emails. Nevertheless, even though Shaninga subjectively perceived 27 and experienced an abusive work environment, the facts fail to support an objective 28 finding of hostility. - 23 - 1 “Repeated derogatory or humiliating statements . . . can constitute a hostile work 2 environment[.]” Ray, 217 F.3d at 1245. Moreover, “[r]acially motivated comments or 3 actions may appear innocent or only mildly offensive to one who is not a member of the 4 targeted group, but in reality be intolerably abusive or threatening when understood from 5 the perspective of a plaintiff who is a member of the targeted group.” McGinest, 360 6 F.3d at 1116. Nonetheless, “[n]ot every insult or harassing comment will constitute a 7 hostile work environment.” Ray, 217 F.3d at 1245. Here, Shaninga cites to three 8 allegedly racially charged incidents that she experienced while at SLMC: the comment 9 about the secretary’s attitude towards black people, the comment about Shaninga’s 10 English skills, and the colloquy over Shaninga’s name. None of these incidents, alone or 11 collectively, establish the existence of a hostile work environment. Without evidence of 12 greater frequency, severity, or animus, the comments, while clearly “offensive 13 utterance[s,]” do not rise to the level of “physically threatening or humiliating” conduct 14 that objectively “pollutes” the workplace. Nichols, 256 F.3d at 872; Steiner v. Showboat 15 Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994); but see McGinest, 360 F.3d at 1115– 16 1118 (holding that an employee’s hostile work environment claim survives summary 17 judgment when he “presented evidence that over the past ten to fifteen years several 18 racial incidents occurred each year, ranging in severity from being called racially 19 derogatory names to experiencing a potentially life-threatening accident.”). Instead they 20 qualify as “offhand comments[] and isolated incidents,” Faragher, 524 U.S. at 788, in 21 other words, stray remarks, and “[s]tray remarks are insufficient to establish 22 discrimination.” Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) 23 (internal quotation marks omitted); see also Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 24 (9th Cir. 1993) (discriminatory remark “uttered in an ambivalent manner” and “not tied 25 directly” to employment decision was at best “weak circumstantial evidence of 26 discriminatory animus” and insufficient to defeat summary judgment). 27 Additionally, Shaninga fails to connect the other conduct she argues creates a 28 hostile work environment to racial animus, and further fails to show that it is severe or - 24 - 1 pervasive enough to create an abusive working environment. At worst, Shaninga alleges 2 that SLMC subjected her to disparate disciplinary treatment compared to a non-black 3 CRA involved in the same misconduct; however, the treatment alleged occurred only 4 once and the other individual eventually received a written warning like Shaninga. 5 Shaninga also focuses on SLMC’s failure to interview her with regard to her June 26, 6 2013 letter, characterizing that decision as “the most hostile event of all . . . .” Doc. 76 at 7 9. Notwithstanding whether or not SLMC should have interviewed Shaninga in the 8 course of its investigation into her race discrimination claims,8 Shaninga does not present 9 evidence raising a dispute of fact as to how SLMC’s failure to do so infected her work 10 environment with interfering hostility. To be sure, Shaninga proclaims in her briefing 11 that SLMC’s failure to interview her indeed altered her working conditions, yet that only 12 satisfies the subjective part of the test; evidence of that alleged alteration is needed to 13 meet the objective standard, and she provides none.9 Finally, other issues like her erratic 14 schedule, cancelled shifts, and inability to attend some trainings, while inconvenient and 15 frustrating, do not amount to conduct that is objectively hostile. See Brooks, 229 F.3d at 16 927 (9th Cir. 2000) (“[N]ot all workplace conduct that may be described as harassment 17 affects a term, condition, or privilege of employment within the meaning of Title VII.”). 18 Shaninga argues that this is a close case, and as such “it is more appropriate to 19 leave the assessment to the fact-finder than for the court to decide the case on summary 20 judgment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1096 (9th Cir. 2008). This is not a 21 close case. The Court considers Shaninga’s hostile work environment claim “in light of 22 all the circumstances . . . .” Nichols, 256 F.3d at 872 (citation omitted). And although 23 Shaninga subjectively perceived SLMC’s treatment of her as racially motivated and 24 hostile, the evidence of racial animus and “severe or pervasive” harassment is simply 25 8 26 27 Shaninga presents no SLMC policy or guideline imposing on it the duty to seek more information from an employee who raises a complaint of unlawful discrimination beyond the employee’s original grievance. 9 28 In fact, Maharaj testified that she tried to meet with Shaninga to discuss SLMC’s investigation into her complaint of discrimination and its findings but Shaninga declined and instead insisted that the results be put into a letter. Doc. 72, Ex. C ¶ 24, Ex. 14. - 25 - 1 missing from the record. Accordingly, the Court grants summary judgment to SLMC on 2 Shaninga’s claim of a hostile work environment based on racial harassment. 3 4 5 6 7 8 CONCLUSION For the foregoing reasons, the Court grants SLMC’s motion for summary judgment on Shaninga’s Title VII, ACRA, and § 1981 claims. IT IS HEREBY ORDERED that SLMC’s motion for summary judgment (Doc. 72) is GRANTED. The Clerk of Court is directed to enter judgment accordingly. Dated this 11th day of April, 2016. 9 10 11 Honorable G. Murray Snow United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 26 -

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