Steshenko v. McKay et al

Filing 654

ORDER DENYING IN PART AND GRANTING IN PART COLLEGE DEFENDANTS MOTION FOR SUMMARY JUDGMENT, GRANTING HOSPITAL DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT, GRANTING IN PART, MOTION FOR LEAVE TO AMEND, AND SCHEDULING TRIAL SETTING CONFERENCE. Trial Setting Conference set for 3/6/2014 10:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 2/4/14. (cl, COURT STAFF) (Filed on 2/4/2014)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION

11
For the Northern District of California

United States District Court

10

12

GREGORY NICHOLAS STESHENKO,
Plaintiff,

13
14

ORDER DENYING IN PART AND
GRANTING IN PART COLLEGE
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT, GRANTING
HOSPITAL DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT, GRANTING IN PART,
MOTION FOR LEAVE TO AMEND,
AND SCHEDULING TRIAL SETTING
CONFERENCE

v.

15
16

THOMAS MCKAY, et al.,

17

No. C 09-5543 RS

Defendants.

18
____________________________________/
19
20
21
22
23
24
25
26
27
28

I. INTRODUCTION
The parties are familiar with the history of this long-running litigation and the factual
background of the underlying disputes. The respective motions for summary judgment brought
by the College Defendants and the Hospital Defendants were previously heard and are now ripe
for decision. For reasons explained below, the former will be denied except as to one claim, and
the latter granted. Plaintiff Gregory Steshenko’s motion for leave to amend his complaint will
also be granted, solely as to the College, and solely as an alternative legal theory in support of his

1

claims for injunctive relief.1 Steshenko’s previously submitted motion for further sanctions will

2

be addressed in conjunction with the ruling on the College Defendants’ summary judgment

3

motion. Finally, a trial setting conference will be scheduled so that this matter may proceed to

4

trial at the earliest available date.

5
II. LEGAL STANDARD FOR SUMMARY JUDGMENT

6
7

Summary judgment is proper “if the pleadings and admissions on file, together with the

8

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

9

party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The purpose of summary
judgment “is to isolate and dispose of factually unsupported claims or defenses.” Celotex v.

11
For the Northern District of California

United States District Court

10

Catrett, 477 U.S. 317, 323–24 (1986). The moving party “always bears the initial responsibility

12

of informing the district court of the basis for its motion, and identifying those portions of the

13

pleadings and admissions on file, together with the affidavits, if any which it believes

14

demonstrate the absence of a genuine issue of material fact.” Id. at 323 (citations and internal

15

quotation marks omitted). If it meets this burden, the moving party is then entitled to judgment as

16

a matter of law when the non-moving party fails to make a sufficient showing on an essential

17

element of the case with respect to which he bears the burden of proof at trial. Id. at 322–23.
The non-moving party “must set forth specific facts showing that there is a genuine issue

18
19

for trial.” Fed.R.Civ.P. 56(e). The non-moving party cannot defeat the moving party’s properly

20

supported motion for summary judgment simply by alleging some factual dispute between the

21

parties. To preclude the entry of summary judgment, the non-moving party must bring forth

22

material facts, i.e., “facts that might affect the outcome of the suit under the governing law . . . .

23

Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty

24

Lobby, Inc., 477 U.S. 242, 247–48 (1986). The opposing party “must do more than simply show

25

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.

26

Zenith Radio, 475 U.S. 574, 588 (1986).

27
28

1

Pursuant to Civil Local Rule 7-1(b), that motion is suitable for disposition without oral
argument, and the hearing set for February 6, 2014 is vacated.

2

1

The court must draw all reasonable inferences in favor of the non-moving party, including

2

questions of credibility and of the weight to be accorded particular evidence. Masson

3

v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) (citing Anderson, 477 U.S. at

4

255); Matsushita, 475 U.S. at 588 (1986). It is the court’s responsibility “to determine whether

5

the ‘specific facts’ set forth by the nonmoving party, coupled with undisputed background or

6

contextual facts, are such that a rational or reasonable jury might return a verdict in its favor

7

based on that evidence.” T.W. Elec. Service v. Pacific Elec. Contractors,809 F.2d 626, 631 (9th

8

Cir. 1987). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that

9

is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. However, “[w]here the record taken as a whole could not lead

11
For the Northern District of California

United States District Court

10

a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ”

12

Matsushita, 475 U.S. at 587.

13
III. DISCUSSION

14
15

A. College Defendants

16

The central thrust of the College Defendants’ motion for summary judgment is their

17

contention that, in a decision made solely by defendant Anne Lucero, Steshenko was dismissed

18

from the nursing program as the result of alleged clinical performance failures and patient safety

19

issues, and not as the result of any discriminatory or retaliatory animus on the part of Lucero or

20

anyone else.

21

For his part, Steshenko has recounted various conversations he purportedly had with the

22

individual defendants, and comments they allegedly made, which included observations regarding

23

his age, gender, ethnicity, and an (incorrect) perception that he suffers from a disability. While

24

some of defendants’ evidentiary objections may have merit, Steshenko’s declarations as to what

25

he claims defendants said is not inadmissible hearsay, as the statements are not being offered for

26

the truth of the matters asserted, but to show discriminatory animus. Although defendants may be

27

able to persuade a trier of fact that the various statements were not made at all, or that Steshenko

28

3

1

has misinterpreted or distorted what was said, there is no basis to preclude his testimony as to

2

what he contends the individual defendants said to him.
Additionally, as set out in prior orders regarding the College Defendants’ failures to take

3
4

all appropriate steps to preserve evidence, Steshenko is entitled to the benefit of certain inferences

5

regarding what might have been shown in email documents that are no longer available. While

6

the precise contours of any jury instructions as to such inferences will be decided at trial, at this

7

juncture, the College Defendants’ deficient preservation of evidence serves as an additional

8

reason that their version of how and why Steshenko was terminated from the program cannot be

9

accepted as a matter of undisputed fact.2 Whether the decision was solely made by Lucero, and
only for the reasons she contends, presents questions for the trier of fact. Without the central

11
For the Northern District of California

United States District Court

10

premise that it can be shown as a matter of law that the dismissal decision was made by Lucero

12

for only legitimate reasons, the College Defendants’ motion fails as to most of the specific claims

13

for relief.

14

1. First Amendment

15

While the College Defendants may be correct that Steshenko had no First Amendment

16

right to criticize the curriculum, his alleged complaints about the treatment of students and patient

17

safety cannot be fairly characterized as merely a demand for modification of the curriculum. The

18

balance of the College Defendants’ attack on this claim rests on their assertions that Steshenko

19

was put on probation and later dismissed for purely legitimate reasons, that defendants McKay

20

and Nunn did not even participate in the decision, that the decision was not motivated by

21

Steshenko’s alleged exercise of speech rights, and that the individual defendants are entitled to

22

qualified immunity. All of these arguments are premised on accepting defendants’ explanations

23

and version of events, and accordingly are insufficient to demonstrate an absence of triable facts.

24
25
26
27
28

2

Steshenko filed a motion for further sanctions in November of 2013, contending “new
evidence” supports an inference of intentional wrongdoing. This was effectively a motion for
reconsideration, filed without prior permission as required by Civil Local Rule 7-9. While
Steshenko continues to locate inconsistencies in defendants’ filings and document productions
that call into doubt the adequacy of their preservation and search efforts, the care with which they
provided discovery responses and declarations, and, in some instances, their candor, his
arguments are largely cumulative. The motion for further sanctions will be denied at this
juncture, without prejudice to any remedy that may be imposed at trial, as previously discussed.

4

1
2

2. Due process

3

The College Defendants argue that Steshenko’s due process claim fails because dismissals

4

for academic reasons do not require notice and a hearing. Again, however, triable issues of fact

5

exist as to whether Steshenko was in fact dismissed for legitimate academic reasons. The College

6

Defendants further argue that even if the dismissal was disciplinary, Steshenko received post-

7

dismissal opportunities to challenge it, and he voluntarily elected not to follow the internal

8

grievance procedure. While that argument will be available to limit or potentially to foreclose

9

Steshenko’s recovery at trial, at the summary judgment stage it is insufficient to establish that he
was unharmed by any failure to provide him with any requisite process in the first instance.

11
For the Northern District of California

United States District Court

10

12

3. Conspiracy, Discrimination, and Unruh Civil Rights

13

The College Defendants again premise their arguments on the assertions that defendant

14

Lucero alone made the decision to terminate Steshenko, and that there was no wrongful motive in

15

any event. Because triable issues of fact on those points exist, the College Defendant’s attempt to

16

dispose of these claims for relief on summary judgment fails.

17
18

4. Intentional Infliction of Emotional Distress

19

Whether the College Defendants engaged in wrongful conduct towards Steshenko

20

presents triable issues of fact, as discussed. Whether there is any evidence of outrageous conduct

21

sufficient to support an intentional infliction of emotional distress claim presents a far closer

22

question. Nevertheless, on the present record and under all the circumstances, it would be

23

premature to conclude that the claim fails as a matter of law.

24
25

5. Defamation

26

The College Defendant’s challenge to the viability of Steshenko’s defamation claim does

27

not rest on accepting their version of events, or implicate the issues surrounding the preservation

28

of evidence to any material degree. Rather, as the Hospital Defendants point out, Steshenko is

5

program administrators information reported by Hospital staff. Statements made directly to

3

Steshenko do not support a defamation claim. To the extent Lucero included reports she had

4

received from the Hospital in her evaluation and documentation, and that material was shared

5

within the College administration, the privilege of California Civil Code §47(c) applies, absent a

6

showing of malice. Nothing in the record would support a conclusion by a reasonable trier of fact

7

that there was any publication of defamatory matter about Steshenko that fell outside the

8

privilege, even assuming any of the negative opinions, characterizations, and assessments could

9

otherwise have risen to the level of actionable defamation in the first instance. Accordingly,

10

summary judgment in the College Defendants’ favor will enter on the defamation claim. The

11
For the Northern District of California

attempting to characterize as defamatory Lucero’s alleged republication to him or to other nursing

2

United States District Court

1

motion will in all other respects be denied.

12
13

B. Hospital Defendants

14

The Hospital and the three individual defendants associated with it have each filed

15

separate, but largely overlapping motions for summary judgment. The Hospital Defendants stand

16

in a very different position than do the College Defendants, in part because they are not subject to

17

inferences arising from a failure to comply with evidence preservation obligations. Additionally,

18

while Steshenko disputes various aspects of the criticisms and complaints made about him by the

19

individual Hospital Defendants, there is no genuine dispute as to what was said or done, or as to

20

the basic facts underlying his claims.

21
22

1. First Amendment

23

The Hospital Defendants correctly point out that the First Amendment Claims against

24

them were previously dismissed, without leave to amend. Their continued presence in the

25

operative complaint is of no legal consequence.

26

2. FLSA and California Labor Code

27

The Fair Labor Standards Act of 1938 (“FLSA”) (29 USC §§201-219) and the California

28

Labor Code apply only if an employment relationship exists. Steshenko’s FLSA and California

6

1

Labor Code claims survived dismissal at the pleading stage because the existence of an

2

employment relationship is evaluated under all the factual circumstances. The Hospital

3

Defendants have now submitted evidence establishing that the clinical program it operates is a

4

bona fide internship program, displacing no regular nursing or other support staff. Steshenko

5

complains, in essence, that he and other students were required to do too much work, such as

6

cleaning toilets, that lacked a valid academic purpose. His complaints and dissatisfaction

7

regarding the degree to which nursing students may have been saddled with more menial tasks do

8

not rise to the level creating a triable issue of fact as to whether this was a bona fide training

9

program.
3. Defamation

11
For the Northern District of California

United States District Court

10

As noted, there are no material disputes regarding the substance of the Hospital

12

Defendants’ statements about Steshenko on which his defamation claims are based. Steshenko

13

merely argues that the characterization of his behavior was unwarranted, or that in one instance

14

he was not at fault for loss of certain data. None of the allegedly defamatory statements on which

15

Steshenko relies, however, rises to the level of demonstrably false statements of fact. Steshenko

16

may disagree with the opinions the Hospital Defendants formed of him, and feel that he was

17

being judged or criticized unfairly. Steshenko merely takes issue with those opinions and argues

18

that he in fact behaved reasonably at all times given all the circumstances. Steshenko has failed to

19

point to any evidence demonstrating the existence of a triable issue of fact that the reports made

20

regarding him contained actionable misstatements.

21
22

4. Other Claims

23

Apart from his own conclusory speculation, Steshenko offers nothing in support of his

24

claim that the Hospital Defendants engaged in a conspiracy with the College Defendants to

25

orchestrate his dismissal from the program. His claims asserting negligence and intentional

26

infliction of emotional distress derive from his underlying contentions that the conduct of the

27

Hospital Defendants was wrongful, and he has pointed to no evidence that would create a triable

28

7

1

issue of fact as to the independent viability of those claims. Accordingly the Hospital

2

Defendants are entitled to summary judgment in their favor.

3
4

C. Leave to amend

5

Steshenko seeks leave to file a fifth amended complaint, which would add a claim for

6

relief sounding in contract against both the Hospital and the College Defendants.3

7

Notwithstanding the liberal standard for allowing amendments, the motion must be denied as to

8

the proposed claim against the Hospital. A motion for leave to amend “is not a vehicle to

9

circumvent summary judgment,” Schlacter-Jones v. Gen. Tel, of Cal., 936 F.2d
435, 443 (9th Cir. 1991). While trial may not yet be scheduled, discovery is long closed and this

11
For the Northern District of California

United States District Court

10

matter is in the final stages of a long litigation process. Reopening the pleadings as to the

12

Hospital now would be unduly prejudicial. Furthermore, Steshenko’s vague allegations of some

13

form of “implied” contract between him and the Hospital are legally insufficient to support a

14

cognizable claim in any event.

15

Steshenko’s proposed contractual claim against the College is somewhat better defined, as

16

it is premised on the College’s written policies and student handbooks. The prejudice in allowing

17

such a claim at this late date is also minimized because it essentially is no more than a new label

18

on theories Steshenko has been pursuing from the outset. The College has known that Steshenko

19

contends he was expelled in violation of those policies, and has been able to conduct discovery

20

accordingly.

21

The College, of course, has Eleventh Amendment immunity against any claim for

22

damages in federal court. Thus, allowing the amendment merely provides Steshenko the

23

opportunity to argue that the College was contractually obligated to comply with its written

24
25
26
27
28

3

The proposed pleading does not attempt to assert a contract claim against the individual
Hospital Defendants, but does appear to attempt to hold the individual College Defendants liable
in contract. The differing treatment of the two groups of individuals may have been
unintentional. There would be, however, no basis to hold either set of individuals liable for
breach of any contract between Steshenko and the institutions, and no grounds for claiming any
contract existed between Steshenko and any of the individuals. Accordingly, regardless of who
Steshenko may have intended to include, leave to amend to pursue a contract claim against any
individual defendant is denied.

8

1

policies (and that it did not do so) as an additional basis for seeking injunctive relief. The College

2

will be free, of course, to argue that its policies did not give rise to an enforceable contract, and/or

3

that it did not violate those policies in any event and/or that injunctive relief would not be

4

appropriate as a contractual remedy. Accordingly, the motion for leave to amend will be granted,

5

solely as to the College, and solely as a claim for injunctive relief. As the amendment adds no

6

new factual averments, the College’s existing answer will be deemed sufficient to deny all

7

liability, and no amended answer will be required or expected. Although the College may have a

8

right under the rules to move to dismiss, it should not bring such a motion unless it has a basis for

9

doing so that is not adequately addressed by the limitations on the effect of the amendment
discussed in this order.

11
For the Northern District of California

United States District Court

10

IV. CONCLUSION

12
13

As set forth above, the Hospital Defendant’s motion for summary judgment is granted,

14

and a separate judgment in their favor will be entered. The College Defendants’ motion is

15

granted as to the defamation claim, and otherwise denied. Steshenko’s motion for leave to amend

16

is granted, limited to a contractual claim against the College, as a potential basis for injunctive

17

relief. A trial setting conference will be held on March 6, 2014 at 10:00 a.m.

18
19
20
21

IT IS SO ORDERED.

22
23
24

Dated: 2/4/14
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

25
26
27
28

9