David G. Contreras v. George L Mee Memorial Hospital

Filing 50

ORDER GRANTING 27 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 7/11/2017. (blflc2S, COURT STAFF) (Filed on 7/11/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 DAVID G. CONTRERAS, Case No. 15-cv-03963-BLF Plaintiff, 8 ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT v. 9 10 GEORGE L. MEE MEMORIAL HOSPITAL, 11 [Re: ECF 27] United States District Court Northern District of California Defendant. 12 Plaintiff David Contreras worked as a licensed Radiologic Technologist (“X-ray tech”) for 13 14 Defendant George L. Mee Memorial Hospital (the “Hospital”) from April 20, 2000 until he was 15 terminated on August 1, 2014 at age 63. Plaintiff contends that his termination was a result of 16 unlawful age discrimination. Plaintiff also alleges that after his termination the Hospital defamed 17 him by knowingly giving false information to The American Registry of Radiologic Technologists 18 (“ARRT”). The Hospital disputes these claims and defends its decision to terminate Contreras as 19 a legitimate business decision. Now before the Court is Defendant’s motion for summary judgment on all claims. See 20 21 generally Mot., ECF 27. The Court has considered the briefing, the admissible evidence, and the 22 argument presented at the hearing on June 22, 2017. For the reasons discussed below, 23 Defendant’s motion is GRANTED. 24 I. The Hospital hired Contreras as a licensed X-ray tech in its Diagnostic Imaging 25 26 FACTS1 Department (“X-ray department”) on April 20, 2000. Ex. A to McCarthy Decl. (“Contreras 27 28 1 The facts set forth in this section are undisputed unless otherwise noted. 1 Dep.”) 16:8–14, 17:21–25, 23:21–23, 65:2–19, ECF 28; Ex. B-5 to McCarthy Decl. (“Job 2 Description”), ECF 28. Contreras, like other X-ray techs at the Hospital was hired on an at-will 3 basis, and could thus be terminated for any reason and without notice. Contreras Dep. 61:20–62:4, 4 63:6–64:23; Ex. A to Oliver Decl. (“Jenkins Dep.”) 189:11–190:2, ECF 29. 5 As an X-ray tech, Contreras was responsible for operating the X-ray equipment to make Xrays of designated portions of the body as ordered by the physician. Job Description 1. 7 Specifically, Contreras’ official job description listed the following essential functions of his 8 position: perform diagnostic techniques and examinations; meet patient physical and 9 psychological needs; provide radiation protection to self and patient; maintain adequate records; 10 perform routine inspection and maintenance of equipment; assist in keeping equipment and area 11 United States District Court Northern District of California 6 clean and secure; assist in various clerical duties; and participate in training and in-service 12 functions. Id. at 1–2. In this role, Contreras was expected to, among other things, learn new 13 procedures and accept new assignments within a reasonable timeframe; maintain an awareness of 14 changes in Hospital policies, procedures, and protocol; and comply with all policies and 15 procedures outlined in the adopted Policy and Procedures manual. Id. at 2. 16 Contreras worked at the Hospital without incident for several years and his supervisors 17 reported that he excelled in following procedures. Contreras Dep. 173:16–23. However, patients 18 began reporting that their property had been stolen after Contreras X-rayed them in August 2012. 19 See Ex. B-13 to Oliver Decl. (“August 2012 Quality Review Report”), ECF 29; Contreras Dep. 20 121:1–122:20; Jenkins Dep. 193:19–194:4. 21 On September 12, 2012, Contreras’ supervisor Kevin Jenkins completed a Quality Review 22 Report—essentially an incident report—detailing a patient’s complaint that she discovered she 23 was missing $200 from her purse after Contreras performed her ankle X-ray. August 2012 24 Quality Review Report; Contreras Dep. 105:2–5, 109:19–22, 120:5–19; Jenkins Dep. 164:12–25, 25 168:7–19, 192:3–195:17. The Hospital’s investigation concluded that Contreras was the only 26 person in the room when Contreras performed the X-ray, and in fact, the only X-ray technician on 27 duty at the time of the incident, and that Contreras contributed to the incident by failing to 28 properly secure the patient’s property. August 2012 Quality Review Report; Contreras Dep. 2 1 105:2-5, 109:19-22, 119:1–120:19; Jenkins Dep. 168:7-19, 194:9–195:13. In response to the 2 complaint and investigation, Jenkins instructed Contreras to be “more careful and diligent in 3 handling patients’ valuables.” Contreras Dep. 115:2–24. In the Quality Review Report, Jenkins 4 wrote that a similar incident had occurred previously, but provided no details.2 See August 2012 5 Quality Review Report 2. Two years later, on January 8, 2014, the Hospital received another complaint from a 6 7 patient who reported $300 missing after Contreras had taken his X-ray. Contreras Dep. 137:21– 8 139:14; Jenkins Dep. 168:7–19, 196:25–170:4. In response to these four incidents, Jenkins and Larry Blanco, the Hospital’s senior X-ray 9 technician, developed a written policy, entitled “Diagnostic Imaging Security Protocol” 11 United States District Court Northern District of California 10 (“Protocol”), which was designed to protect patients’ personal property while in the X-ray room. 12 Ex. B-1 to Oliver Decl. (“Protocol”), ECF 29; Ex. B-49 to Oliver Decl. (“Jenkins Decl. ISO 13 Charge of Discrimination”) ¶ 4, ECF 29; Blanco Decl. ¶ 4, ECF 31. The Protocol listed the following six procedures for securing patients’ personal effects: 14 15 First, the X-ray tech was to ask the patient to place all of their personal items in carrier. Protocol. 16 Second, the X-tech was to place the carrier into a “security locker,” “[m]aking certain that the 17 patient never losses site [sic] of [their] personal items.” Id. Steps three and four required the tech 18 to lock the security locker and give the patient the key, retrieve the key at the end of the exam, and 19 give the patient the container full of his or her belongings. Id. The final step admonishes the X- 20 tech to use the security locker with every patient that has valuables with them. Id. The Hospital 21 also created a form that allowed the X-ray tech to obtain the patient’s signature when he or she 22 initially secured the patient’s valuables and also once the valuables were returned to the patient in 23 order to “protect the patient [and] the technologist.” Ex. B-65 to Oliver Decl. (“Patient Valuables 24 Policy”), ECF 29; Jenkins Dep. 108:23–109:5. Use of this form was at the X-ray tech’s 25 discretion. Jenkins Dep. 107:2–9. 26 2 27 28 During his deposition, Jenkins could not recall when the prior incidents had occurred, but speculated that it had occurred “at least more than twice.” Jenkins Dep. 193:19–194:8. Similarly, at his deposition, Contreras indicated that these incidents were not brought to his attention until he was terminated. 121:4–122:20. 3 1 The Protocol was shared with all members of the X-ray department—it was discussed at a 2 departmental meeting as well as individually with the X-ray techs and was posted in the exam 3 rooms. Id. 88:18–24; Contreras Dep. 143:9–13. Contreras and all of the X-ray techs were 4 required to acknowledge receipt of the Protocol in writing. Blanco Decl. ¶ 7; Patient Valuables 5 Policy (showing Contreras’ signature); Contreras Dep. 54:16–24; Jenkins Dep. 18–24. 6 Additionally, at some point, Blanco personally explained the Protocol and trained every X-ray 7 technician, including Contreras, on how to best secure patients’ property in compliance with the 8 Protocol. Blanco Decl. ¶ 8. 9 Thereafter, on January 23, 2014, Contreras met with Blanco and Jenkins to discuss the January 8, 2014 patient complaint and the newly instituted Protocol. Jenkins Dep. 225:4–8; 11 United States District Court Northern District of California 10 Contreras Dep. 139:7–14, 143:9–16; Blanco Decl. ¶ 6. Further, at this meeting, Contreras was 12 warned that failure to follow the Protocol moving forward would result in his termination. 13 Contreras Dep. 159:22–160:1; Jenkins Dep. 225:4–16; Blanco Decl. ¶ 6. In a follow up meeting 14 on February 5, 2015, Jenkins and Karen Wong, the Hospital’s Chief of Human Resources, gave 15 Contreras a final written warning in the form of a “Corrective Action Counseling” document. 16 Contreras Dep. 160:16–162:2; Jenkins Dep. 218:15–219:20, 225:17–226:17, 227:2–13; Ex. B-15 17 to Oliver Decl. (“Corrective Action Counseling Form”), ECF 29. That document instructed 18 Contreras to follow the Protocol and warned him that failure to do so would result in “discipline 19 up to termination.” Corrective Action Counseling Form; Contreras Dep. 164:13–16; Jenkins Dep. 20 225:9–12; Ex. B-15 to Oliver Decl., ECF 29. 21 On July 26, 2014, another patient, referred to as Mr. Z, filed a complaint with the Hospital. 22 Ex. B-70 to Oliver Decl. (“July 2014 Patient Complaint”), ECF 29. Mr. Z reported that he noticed 23 he was missing $600 after having been at the Hospital and accused “[t]he man who took [his] X- 24 rays” of stealing the money. Ex. B-70 to Oliver Decl. 13, ECF 29. During a conference call with 25 Mr. Z on July 30, 2014, Mr. Z stated that he carried his wallet inside of a bag in his pants, which 26 he took off and put against the wall before Contreras X-rayed him. Id.; Miller Decl. ¶ 4, ECF 30. 27 When Mr. Z returned to his home, he realized that his $600 was missing and complained to the 28 Hospital. Ex. B-70 to Oliver Decl. 13. After receiving Mr. Z’s complaint, Denise Miller, the 4 1 Hospital’s Risk Manager, conducted an investigation into the matter and concluded that Contreras 2 had failed to follow the Protocol while taking Mr. Z’s X-ray. Miller Decl. ¶ 1, 3–4; see also Ex. A 3 to Miller Decl. (“2014 Investigation Report), ECF 30. Although Contreras denied taking Mr. Z’s 4 money, he confirmed that he did not follow the Protocol. 2014 Investigative Report 8–9 5 (“Contreras Letter”); Contreras Dep. 191:7–15, 198:2–9. Subsequently, on August 1, 2014, the Hospital terminated Contreras’ employment for 6 7 failure to follow the Protocol. Contreras Dep. 40:6–15, 42:17–23, 44:5–10; Jenkins Dep. 89:25– 8 90:4; Ex. A to Hritz Decl. (“Personnel Action Report”), ECF 32. On April 16, 2015, the Hospital received a letter from The American Registry of 9 Radiologic Technologists (“AART”) indicating that it was investigating a possible violation of the 11 United States District Court Northern District of California 10 AART Standards of Ethics and/or Rules and Regulations by Contreras. Ex. B-24 to McCarthy 12 Decl. (“April 2015 AART Letter”), ECF 28. The letter indicated that AART had received an 13 allegation that Contreras was stealing from patients while employed at the Hospital. Id. When the 14 Hospital did not respond, ARRT sent a second letter requesting the same information. Ex. B-25 to 15 McCarthy Decl. (“May 2015 AART Letter”). The Hospital ultimately responded that it would not 16 share Contreras’ information without his signed release. Ex. B-26 to McCarthy Decl. 17 II. EVIDENTIARY OBJECTIONS Plaintiff’s Objections 18 A. 19 Contreras objects to evidence provided by Mr. Jenkins, wherein Jenkins states that the 20 Hospital replaced Contreras on February 23, 2015, with a 49-year old X-ray technician with more 21 than 14 years of experience in the field at the same pay rate as Contreras at the time of his 22 termination. Opp’n 13; Mot. 9; Jenkins Dep. 177:5–12; Ex. B-49 to Oliver Decl. (“Jenkins Decl. 23 to EEOC”) ¶ 14, ECF 29. Contreras objects to this evidence as hearsay. Opp’n 13. The Court 24 SUSTAINS this objection and will not consider this evidence. 25 Contreras also objects to note 5 on page 9 of the Hospital’s motion, which states that the 26 Diagnostic Imaging Department has not received any allegations of theft since Contreras was 27 terminated. Opp’n 13; Mot. 9 n.5; Miller Decl. ¶ 8; Jenkins Dep. 240:9–20. Plaintiff objects to 28 this evidence as lacking foundation. Opp’n 13. As the Hospital’s Risk Manager, Ms. Miller is 5 1 likely to have knowledge of any reported thefts. See Miller Decl. ¶ 1. Moreover, as the Hospital’s 2 Diagnostic Imaging Department Manager, Mr. Jenkins is also likely to have knowledge of any 3 reported thefts involving the department. Jenkins Decl. to EEOC ¶ 1. For these reasons, the Court 4 finds that this evidence is properly supported and thus OVERRULES the objection. Defendant’s Objections 5 B. 6 The Hospital objects to the three declarations of Contreras’ wife and two daughters that 7 were filed in support of Plaintiff’s opposition. Reply 2–4, ECF 45; see ECF 39 (declarations of 8 Teresa, Amy, and Sarah Contreras). The Hospital objects on the ground that the declarants lack 9 personal knowledge and the declarations contain inadmissible hearsay and opinion. Reply 2. Because the Court agrees with the Hospital, it will SUSTAIN the objections. The Court will not 11 United States District Court Northern District of California 10 consider the declarations. 12 III. 13 LEGAL STANDARD “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 15 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P. 16 56(a)). Material facts are those that may affect the outcome of the case. Anderson v. Liberty 17 Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists if there is sufficient 18 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. at 248–49. 19 The party moving for summary judgment bears the initial burden of informing the court of 20 the basis for the motion, and identifying portions of the pleadings, depositions, answers to 21 interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material 22 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party 23 must either produce evidence negating an essential element of the nonmoving party’s claim or 24 defense or show that the nonmoving party does not have enough evidence of an essential element 25 to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz 26 Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 27 28 If the moving party meets its initial burden, the burden shifts to the nonmoving party to produce evidence supporting its claims or defenses. Id. at 1103. If the nonmoving party does not 6 1 produce evidence to show a genuine issue of material fact, the moving party is entitled to 2 summary judgment. Celotex, 477 U.S. at 323. “The court must view the evidence in the light 3 most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s favor.” 4 City of Pomona, 750 F.3d at 1049. However, “the ‘mere existence of a scintilla of evidence in 5 support of the plaintiff’s position’” is insufficient to defeat a motion for summary judgment. Id. 6 (quoting Anderson, 477 U.S. 242, 252 (1986)). “‘Where the record taken as a whole could not 7 lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’” Id. 8 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 9 IV. 10 United States District Court Northern District of California 11 DISCUSSION A. Age Discrimination Claims Contreras claims that the Hospital terminated his employment in violation of the ADEA 12 and FEHA. To establish a violation of either statute, Contreras must prove that the Hospital 13 terminated his employment “because of” his age, meaning that Plaintiff’s age was the “but for” 14 cause of the Hospital’s adverse employment action against him. Gross v. FBL Fin. Servs., Inc., 15 557 U.S. 167, 176 (2009); Cal. Gov’t Code § 12940(a). 16 17 i. McDonnell Douglas Standard The ADEA protects employees over the age of 40 by making it “unlawful for an employer 18 to discriminate ‘because of [an] individual’s age.’” Shelley v. Geren, 666 F.3d 599, 606–07 (9th 19 Cir. 2012) (citing 29 U.S.C. § 633a(1)). On summary judgment, age discrimination claims under 20 the ADEA and FEHA are governed by the McDonnell Douglas burden-shifting evidentiary 21 framework. Id. at 607–08; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); 22 Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 354 (2000) (holding that, because of similarity between 23 state and federal employment discrimination laws, California has adopted the McDonnell Douglas 24 approach to claims of discrimination under FEHA). Under this framework, the plaintiff bears the 25 initial burden to “establish a prima facie case of age discrimination.” Shelley, 666 F.3d at 608 26 (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1280–81 (9th Cir. 2000)). A prima facie 27 showing requires the plaintiff to establish that he was (1) at least forty years old, (2) performing 28 his job satisfactorily, (3) suffered an adverse employment action, and (4) was replaced by 7 1 substantially younger employees with equal or inferior qualifications. Diaz v. Eagle Produce Ltd. 2 P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citation omitted); Coleman, 232 F.3d at 1281. 3 “While the plaintiff’s prima facie burden is ‘not onerous,’ he must at least show ‘actions 4 taken by the employer from which one can infer, if such actions remain unexplained, that it is 5 more likely than not that such actions were based on a [prohibited] discriminatory criterion.’” 6 Guz, 24 Cal. 4th at 355 (alteration in original) (internal citations and quotation marks omitted). 7 “At summary judgment, the ‘requisite degree of proof necessary to establish a prima facie case . . . 8 is minimal and does not even need to rise to the level of a preponderance of the evidence.’” Lyons 9 v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) (citing and quoting Wallis v. J.R. Simplot Co., 26 10 United States District Court Northern District of California 11 F.3d 885, 889 (9th Cir. 1994)). If the plaintiff establishes a prima facie case, the burden of production, but not persuasion, 12 shifts to the employer to articulate one or more legitimate, nondiscriminatory reasons for the 13 challenged actions. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). If this 14 burden is met, the plaintiff “must then raise a triable issue of material fact as to whether the 15 defendant’s proffered reasons for [the employee’s] termination[ ] are mere pretext for unlawful 16 discrimination.” Id. 17 To establish pretext, the employee must offer “specific, substantial evidence of [it].” 18 Wallis, 26 F.3d at 890 (quoting Steckl v. Motorola, 703 F.2d 392, 393 (9th Cir. 1983)) (internal 19 quotation marks omitted). Evidence of pretext must be considered cumulatively. Chuang v. Univ. 20 of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1129 (9th Cir. 2000). “The plaintiff may show pretext 21 either (1) by showing that unlawful discrimination more likely motivated the employer, or (2) by 22 showing that the employer’s proffered explanation is unworthy of credence because it is 23 inconsistent or otherwise unbelievable.” Dominguez-Curry v. Nev. Transp. Dept. 424 F.3d 1027, 24 1037 (9th Cir. 2005) (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220–22 (9th Cir. 25 1998). An employer’s nondiscriminatory reason is not rebutted where “the employee simply 26 show[s] the employer’s decision was wrong, mistaken, or unwise.” Horn v. Cushman & 27 Wakefield W., Inc., 72 Cal. App. 4th 798, 807 (1999). 28 ii. Prima Facie Claim for Discrimination 8 1 The Hospital seeks summary judgment on the basis that Plaintiff’s claims for age 2 discrimination under both the ADEA and FEHA fail because he cannot establish a prima facie 3 case for age discrimination. Mot. 13–15. The parties do not dispute that Contreras is a member of 4 a protected class or that he was subject to an adverse employment action. Accordingly, the issues 5 in dispute regarding Plaintiff’s prima facie case are whether Contreras performed his job in a 6 satisfactory manner and whether he was replaced by a substantially younger employee with equal 7 or inferior qualifications. See Mot. 13–15. 8 9 To establish satisfactory job performance, Plaintiff must produce “substantial evidence of satisfactory job performance sufficient to create a jury question on this issue.” Douglas v. Anderson, 656 F.2d 528, 533 n.5 (9th Cir. 1981). At the prima facie stage, the plaintiff need not 11 United States District Court Northern District of California 10 “eliminate the possibility that he was laid off for inadequate job performance,” because such a 12 requirement would “conflate the minimal inference needed to establish a prima facie case with the 13 specific, substantial showing” required at the pretext stage of the McDonnell Douglas analysis. 14 Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir. 2002). However, even 15 though courts do not require a “flawless personnel file at all times during employment,” Bahri v. 16 Home Depot USA, Inc., 242 F.Supp.2d 922, 931 (D. Or. 2002), a plaintiff who continues to violate 17 company policy despite a clear warning cannot demonstrate satisfactory performance. Diaz, 521 18 F.3d at 1205–06. 19 The Hospital argues that because it has presented undisputed evidence that Contreras 20 violated company policy and failed to improve his performance despite a warning, there is no 21 genuine dispute of fact that Contreras was not performing satisfactorily. Mot. 13. However, 22 Plaintiff correctly points out that in its Answer, the Hospital did not contest Contreras’ allegation 23 that he received “excellent reviews.” Opp’n 6; Ans. ¶ 18, ECF 13; Compl. ¶ 18, ECF 1. And, the 24 Hospital also admitted that Contreras’ April 24, 2014, Annual Employee Performance Appraisal 25 rated him as “outstanding” in the category “Adheres to Standard Hospital Policies and 26 Procedures.” Ans. ¶ 20. Thus, Defendant has failed to demonstrate that Contreras cannot carry 27 his ultimate burden at trial to prove that he was performing satisfactorily. Bd. of Tr. of the Ken 28 Lusby Clerks & Lumber Handlers Pension Fund v. Piedmont Lumber & Mill Co., 132 F. Supp. 3d 9 1 1175, 1181 (N.D. Cal. 2015) (deeming that defendant had made a judicial admission in deciding a 2 motion for summary judgment where “Oliver’s Answer to the SAC admitted the allegation”); see 3 also American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (“Judicial 4 admissions are formal admissions in the pleadings which have the effect of withdrawing a fact 5 from issue and dispensing wholly with the need for proof of the fact.”). 6 As to the final prong of a prima facie case—whether Contreras was replaced by a 7 substantially younger employee with equal or inferior qualifications—the Hospital has not 8 provided any admissible evidence regarding Contreras’ replacement. Accordingly, the Hospital 9 has not met its burden as the moving party, and therefore, the Court DENIES summary judgment 10 United States District Court Northern District of California 11 on the ground that Contreras cannot establish a prima facie case of age discrimination. iii. The Hospital’s Proffered Legitimate Reason for Terminating Plaintiff 12 Relying on the numerous warnings that Contreras received regarding following Hospital 13 protocol prior to his termination, the Hospital argues that it had a legitimate, nondiscriminatory 14 reason for terminating Plaintiff’s employment. Mot. 14. It is undisputed that Contreras was told 15 that failure to comply with the Protocol would result in termination. Contreras Dep. 159:22– 16 160:1; Jenkins Dep. 225:4–16; Blanco Decl. ¶ 6. It is also undisputed that, on February 5, 2015, 17 Jenkins and Karen Wong, the Hospital’s Chief of Human Resources, gave Contreras a final 18 written warning in the form of a “Corrective Action Counseling” document. Contreras Dep. 19 160:16–162:2; Jenkins Dep. 218:15–219:20, 225:17–226:17, 227:2–13; Corrective Action 20 Counseling Form. That document instructed Contreras to follow the Protocol and warned him that 21 failure to do so would result in “discipline up to termination.” Corrective Action Counseling 22 Form; Contreras Dep. 164:13–16; Jenkins Dep. 225:9–12; Ex. B-15 to Oliver Decl. Despite these 23 warnings and admonitions, Mr. Contreras subsequently confirmed that he did not follow the 24 Protocol. Contreras Letter 8–9; Contreras Dep. 191:7–15, 198:2–9. 25 Instead of disputing the aforementioned facts, Contreras disparages the Hospital’s protocol 26 as “a foolish, Rube Goldberg contraption.” Opp’n 8. The Court finds this critique irrelevant. 27 Guz, 24 Cal. 4th at 358 (“[I]f nondiscriminatory, [an employer’s] true reasons need not necessarily 28 have been wise or correct.” (citations omitted)). Indeed, other courts have found that terminating 10 1 an employee’s employment because of a repeated failure to follow company protocols is a 2 legitimate, nondiscriminatory reason for terminating employment. See, e.g., Graves v. Johnson 3 Control World Servs., Inc., No. C-05-1772, 2006 WL 618796, at *4 (N.D. Cal. Mar. 13, 2006) 4 (“Defendant has proffered evidence showing that the reasons for taking disciplinary action were 5 not discriminatory, but rather were motivated by Defendant’s concern over Plaintiff’s professional 6 performance, specifically his persistent tardiness, perceived abuse of vacation and sick leave, and 7 a failure to follow applicable safety procedures.”); Scott v. Sears, Roebuck & Co., 395 F. Supp. 2d 8 961, 979 (D. Or. 2005) (finding employer articulated legitimate, nondiscriminatory reason for 9 terminating employee, namely that employee failed to complete all elements of a brake job requested and paid for by customer and employee admitted to not performing services he knew he 11 United States District Court Northern District of California 10 was expected to perform on at least one of the recalled brake jobs.). What’s more, the Hospital 12 has presented undisputed evidence demonstrating that Contreras explicitly disobeyed two 13 directives regarding compliance with the Protocol. Thus, the Court finds that the Hospital has 14 established a legitimate reason for terminating Contreras. 15 16 iv. No Showing of Pretext Because the Hospital has met its burden of persuasion with respect to a legitimate reason 17 for firing Mr. Contreras, Contreras must now provide some evidence to support his claim that the 18 stated reasons were merely a pretext for discrimination. A plaintiff can show pretext “directly by 19 persuading the court that a discriminatory reason more likely motivated the employer.” Texas 20 Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Chuang, 225 F.3d at 1127. 21 a. Direct Evidence 22 Direct evidence “is evidence which, if believed, proves the fact of discriminatory animus 23 without inference or presumption,” and it “typically consists of clearly sexist, racist, or similarly 24 discriminatory statements or actions by the employer.” Coghlan v. Am. Seafoods Co., 413 F.3d 25 1090, 1094–95 (9th Cir. 2005). Very little direct evidence is required to raise a genuine issue of 26 material fact. Id. at 1095. 27 Here, Contreras has presented evidence regarding several comments made related to his 28 11 1 age by Mr. Jenkins.3 Opp’n 10–11. Contreras testified that Jenkins and Blanco made comments 2 about his age forty to fifty times over the course of six months. Contreras Dep. 92:1–6. However, 3 all of the evidence Contreras provides relates only to comments made by Mr. Jenkins directly to 4 Mr. Contreras or through Mr. Blanco. In his deposition, Contreras identifies the following 5 statements “If it wasn’t this, it would have been something else.” Contreras Dep. 43:3–6 (August 2014). “You’re an old man, don’t you want to sit on your porch drinking beer? You don’t want to do this. How long do you think you can do this.” Contreras Dep. 43:21–44:1 (early 2014).  7   6 In response to Contreras reporting that Jay Chao, another X-ray tech, had falsified documentation, Jenkins responded (through Blanco): “[H]e’s young. He will learn.” Contreras Dep. 78:9 (unknown date). Jenkins repeated this sentiment after another incident involving Chao. Id. at 80:16. 8 9 10 United States District Court Northern District of California 11 Both Jenkins and Blanco deny that they ever made these alleged statements. Jenkins Dep. 12 13 116:1–4, 158:10–18, 174:2–22, 177:24–180:10; Ex. C to Oliver Decl. (“Blanco Dep.”) 78:17– 14 79:1, 94:5–17, ECF 29. The Hospital argues that even if Jenkins and/or Blanco did make any of 15 the alleged statements, they are stray comments that are insufficient to show pretext. Reply 8. The Court agrees with the Hospital. To demonstrate pretext, the only evidence before the 16 17 Court are the alleged remarks. The Ninth Circuit has held that similar kinds of statements were 18 merely “stray” remarks and, thus, were insufficient to create a genuine issue of fact regarding age 19 discrimination. See Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438–39 (9th Cir. 1990) 20 (holding that hiring supervisor’s statement that he hired a younger employee over plaintiff because 21 he was “bright, intelligent, knowledgeable young man” was a stray remark insufficient to create an 22 inference of age discrimination); see also Coleman, 232 F.3d at 1271, 1284–85 (summarizing 23 remarks that did not support an inference of discrimination, such as “we don’t necessarily like 24 grey hair,” “old timers,” “old-boy network,” and “overqualified”; holding that employer’s 25 statement that plaintiff was not “young and promotable” did not give rise to suspicions of age 26 27 28 3 Plaintiff also argues that Jay Chao, another X-ray tech, also made comments about his age. Opp’n 11. The evidence does not support this assertion, however. See Contreras Dep. 77:10– 78:19. 12 1 discrimination); Nesbit v. Pepisco, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (holding that 2 employer’s statement that “[w]e don’t necessarily like grey hair” did not support inference of 3 discriminatory motive). Moreover, most of the alleged statements were made at least six months 4 prior to his termination, and are thus too attenuated to be considered direct evidence particularly 5 where there is no allegation that the remarks were connected to Contreras’ termination.4 See 6 Nesbit, 994 F.2d at 705; Smith v. Firestone Tire & Rubber Co., 875 F.2d 1325, 1330 (7th Cir. 7 1989) (noting that stray “remarks, . . . when unrelated to the decisional process, are insufficient to 8 demonstrate that the employer relied on illegitimate criteria, even when such statements are made 9 by the decisionmaker in issue”) (cited with approval in Merrick, 892 F.2d at 1438). Contreras also testified that another X-ray technician made the following comment to him 10 United States District Court Northern District of California 11 at some point during his employment at the Hospital: “You know, you’re getting older. How long 12 do you want to do this?” Contreras Dep. 76:23–24. This alleged statement is also insufficient to 13 create an inference of age discrimination because there is no evidence showing that this X-ray tech 14 was involved in the decision to terminate Mr. Contreras’ employment. See Mondero v. Stald 15 River Project, 400 F.3d 1207, 1213 (9th Cir.2005) (stray remarks not acted upon or communicated 16 to the decision maker are insufficient to establish discriminatory animus); Horn, 72 Cal. App. 4th 17 at 809 (finding that a “‘stray’ ageist remark . . . is entitled to virtually no weight in considering 18 whether the firing was pretextual or whether the decisionmaker harbored discriminatory animus” 19 where person who made the alleged remark did not make the decision to terminate plaintiff). Accordingly, the alleged statements are insufficient to create a genuine issue of fact 20 21 regarding pretext. 22 b. Indirect Evidence A plaintiff can also show pretext “indirectly by showing that the employer’s proffered 23 24 explanation is unworthy of credence.’” Burdine, 450 U.S. at 256; see Chuang, 225 F.3d at 1127. 25 Indirect, circumstantial evidence must be “specific and substantial.” Vasquez v. Cty. of Los 26 Angeles, 349 F.3d 634, 642 (9th Cir. 2004); Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 27 4 28 The comment made at the time Contreras was terminated does not appear to relate to Contreras’ age. 13 1 1066–67 (9th Cir. 2003); see Njenga v. San Mateo Cty. Superintendent of Sch., No. C–08–04019, 2 2010 WL 1261493, at *20 (N.D. Cal. Mar. 30, 2010)). “A ‘plaintiff cannot create a genuine issue 3 of pretext to survive a motion for summary judgment by relying solely on unsupported 4 speculations and allegations of discriminatory intent.’” Jackson v. Geithner, No. CV F 11–0055, 5 2011 WL 2181394, at *12 (E.D. Cal. June 3, 2011) (quoting Crawford v. MCI Worldcom 6 Commc’ns, Inc., 167 F.Supp.2d 1128, 115 (S.D. Cal. 2001)). 7 Specific positive assessment of a plaintiff’s performance by his or her co-workers or other 8 managers may be “specific and substantial” circumstantial evidence that the employer’s negative 9 assessment was pretextual.” EEOC v. Boeing Co., 577 F.3d 1044, 1051 (9th Cir. 2009). Here, Contreras contends, and the Hospital does not contest, that his performance reviews were 11 United States District Court Northern District of California 10 “excellent” or “outstanding.” Ans. ¶¶ 18, 20; Compl. ¶¶ 18, 20. However, there is no dispute that 12 the Hospital received several patient complaints of stolen property connected to Mr. Contreras 13 between 2012 and his termination in August 2014. August 2012 Quality Review Report; 14 Contreras Dep. 121:1–122:20; Jenkins Dep. 193:19–194:3. Moreover, Contreras does not dispute 15 that he violated the Hospital’s policy despite receiving warnings that failure to follow the policy 16 would result in termination. Contreras Letter 8–9; Contreras Dep. 191:7–15; 198:2–9. 17 Accordingly, even if the Court fully credits the evidence regarding Mr. Contreras’ performance, 18 the only reasonable inference that can be drawn from the evidence submitted is that based on Mr. 19 Contreras’ own admission that he failed to follow Hospital policy, the Hospital found Contreras’ 20 performance and conduct unsatisfactory and that his failure to comply with specific directives 21 warranted termination. 22 Pretext can also be established through comparator evidence. McDonnell Douglas, 411 23 U.S. at 804. For example, if an employer claims that it fired plaintiff for violating workplace 24 rules, a plaintiff may prove pretext by submitting evidence that either (1) he did not violated the 25 rule or (2) if he did, other employees who engaged in similar acts were not similarly treated. See 26 Vasquez, 349 F.3d at 641. 27 28 Contreras argues that several Emergency Room employees did not follow the ER’s procedures for securing patients’ valuables but were not terminated. Opp’n 9–10; Ex. B-19 to 14 1 McCarthy Decl., ECF 28. This evidence does not create a disputed issue of fact because it does 2 not show that the Hospital treated similarly situated employees outside of Contreras’ protected 3 class more favorably than him. Vasquez, 349 F.3d at 641. Individuals are similarly situated only 4 when they have similar jobs and display similar conduct. Id. Here, Contreras is plainly not 5 similarly situated to ER employees because they do not have similar jobs and are not regulated by 6 the same protocols. Childers Decl. ¶ 3, ECF 35. Moreover, there is no evidence regarding any 7 prior complaints against the ER employees, nor is there any indication that those employees were 8 told they would be terminated if they did not comply with the policy. Finally, as the Hospital’s 9 Chief Executive Officer testified, each department manager has the authority to create, implement, and enforce department-specific policies, protocols, and procedures distinct to that department. 11 United States District Court Northern District of California 10 Childers Decl. ¶ 3; see also Miller Decl. ¶ 2. Thus, any practices outside of the X-ray department 12 are irrelevant to Mr. Contreras’ situation. For the foregoing reasons, the Court GRANTS the Hospital’s motion for summary 13 14 judgment on Contreras’ claims for discrimination under the ADEA and FEHA. 15 B. 16 Plaintiff also alleges that after his termination, the Hospital defamed him by knowingly Claim for Defamation 17 giving false information to ARRT. To state a prima facie case of defamation under California law, 18 a plaintiff must show (1) the intentional publication of (2) a statement of fact (3) that is false (4) 19 unprivileged and (5) has a natural tendency to injure or which causes special damage. Smith v. 20 Maldonado, 72 Cal. App. 4th 637, 645 (1999). “Publication need not be to the ‘public’ at large; 21 communication to a single individual is sufficient.” Id. (citations omitted). The Hospital seeks summary judgment on Contreras’ defamation claim because Plaintiff 22 23 has provided no evidence that any authorized employee or agent of the Hospital made any 24 defamatory statements to ARRT or anyone else. Mot. 19. In the alternative, the Hospital claims 25 that even if an authorized employee or agent of the Hospital had made the alleged defamatory 26 statements, the statements would be absolutely privileged under Cal. Civil Code § 47(b)(3). Mot. 27 19. 28 In response, Plaintiff concedes “that nobody from the [Hospital] directly contacted the 15 1 ARRT to tell them [that he] was terminated for stealing.” Opp’n 14. Additionally, Contreras does 2 not dispute the Hospital’s contention that the alleged statements would be privileged under 3 California law. See generally id. Nevertheless, Contreras continues to claim that he should be 4 allowed to pursue his defamation case based on his attorney’s speculation that “someone 5 connected with Mee Memorial told someone outside of Mee Memorial that the plaintiff had been 6 terminated for stealing, and [ ] that it was not a one-off.” Id. at 15. Based on his own concession, the Court finds ample grounds to GRANT the Hospital’s 7 8 motion for summary judgment on Contreras’ defamation claim. Celotex, 477 U.S. at 322 (“[T]he 9 plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the 11 United States District Court Northern District of California 10 existence of an element essential to that party’s case, and on which that party will bear the burden 12 of proof at trial.”). 13 14 15 V. ORDER For the foregoing reasons, the Court GRANTS Defendant’s motion for summary judgment as to all remaining claims. 16 17 18 19 Dated: July 11, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 20 21 22 23 24 25 26 27 28 16

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