Mendez v. St Alphonsus Regional Medical Center, Inc.

Filing 83

ORDER ADOPTING REPORT AND RECOMMENDATIONS the Report and Recommendation (Dkt. 78 ) shall be INCORPORATED by reference and ADOPTED. Defendant's Motion for Summary Judgment (Dkt. 48 ) is GRANTED and all of Plaintiff's claims are DISMISSED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RAUL MENDEZ,
Case No. 1:12-CV-00026-EJL-CWD
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
ST. ALPHONSUS REGIONAL
MEDICAL CENTER, INC.,
Defendant.

Chief United States Magistrate Judge Candy W. Dale issued a Report and
Recommendation in this matter. (Dkt. 78.) Pursuant to 28 U.S.C. § 636(b)(1), the parties
had fourteen days in which to file written objections to the Report and Recommendation.
Objections and responses to the objections were filed by the parties. The matter is now
ripe for the Court’s consideration.

DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge. Where
the parties object to a report and recommendation, this Court shall make a de novo
determination of those portions of the report which objection is made. Id. Where,
however, no objections are filed the district court need not conduct a de novo review. In

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted
the requirements of 28 U.S.C. § 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
is filed, the Court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.
Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)). In this case, the objections were filed so the Court is required to conduct a de
novo determination of the Report and Recommendation.

ORDER ADOPTING REPORT AND RECOMMENDATION - 2

FACTUAL BACKGROUND
Plaintiff Raul Mendez filed a pro se Complaint on January 20, 2012 alleging he
was discriminated in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 200e, et seq., based on his national origin and religion, he was subjected to a hostile
work environment, his employment with St. Alphonsus Regional Medical Center, Inc.
(St. Alphonsus) was terminated in retaliation for complaining about the discrimination
and
St. Alphonsus violated and/or breached the covenant of good faith and fair dealing
implicit in his employment contract. Mr. Mendez is Hispanic and Judge Dale properly set
forth that a claim for discrimination because Plaintiff is Hispanic is actually a race claim
under Title VII not a national origin claim. Plaintiff does not dispute this legal
clarification by Judge Dale.
Plaintiff retained counsel and filed an Amended Complaint on May 25, 2012 (Dkt.
5). The Amended Complaint raises the same causes of action as set forth in the original
Complaint but breaks the claims out into eight different causes of action. St Alphonsus
filed a motion for summary judgment on all claims on January 15, 2014 (Dkt. 48). Mr.
Mendez was given until July 31, 2014 to file his reply to the motion and oral argument on
the motion was heard by Judge Dale on August 28, 2014.
Mr. Mendez began working for St. Alphonsus in 2007 as a radiology technician at
a clinic in Nampa referred to as the Iowa Clinic. He started as a part-time employee but

ORDER ADOPTING REPORT AND RECOMMENDATION - 3

became a full-time employee on March 15, 2009. In exchange for the full-time position,
Mr. Mendez agreed to perform non-radiology assignments under the supervision of the
Lead Nurse, Rachel Croft, and Clinic Manager, Connie Miller.
Late November of 2009, Mr. Mendez started refusing to perform assigned duties,
complained to co-workers about his supervisors and the work environment at the clinic.
Mr. Mendez emailed some of his complaints to Judi Vejar on November 27, 2009 (Dkt.
72-1, pp. 36-37). Specific examples are included in the Report and Recommendation and
are incorporated by reference. Mr. Mendez also alleges he informed Ms. Vejar in late
2009, that Ms. Miller made offensive comments about his Hispanic race and his religion.
Other employees have corroborated that Ms. Miller made some inappropriate comments
directed at Mr. Mendez. These comments could be interpreted to be about his Hispanic
race and/or people who belong to the Church of Jesus Christ of Latter Day Saints (LDS or
Mormon religion).
In February of 2010, Mr. Mendez’s co-workers began complaining to Ms. Miller
about Mr. Mendez’s negative attitude and disrespect for management. One person who
complained via email was Leonna McDowell whom Mr. Mendez assisted in the
laboratory. She indicated Mr. Mendez’s negative attitude had been going on for about a
year. (Dkt. 48-7, p. 64.) On February 3, 2010, Mr. Mendez applied for a transfer within
St. Alphonsus. (Dkt. 72-1, p. 39.) He did not receive the transfer.

ORDER ADOPTING REPORT AND RECOMMENDATION - 4

Certain job performance issues continued and on or about May 7, 2010, Ms. Miller
gave Mendez a verbal warning regarding his behavior that morning.1 This verbal warning
was followed up with a written reprimand dated May 18, 2010 which was signed by Mr.
Mendez, Ms. Miller and Ms. Croft. (Dkt. 72-4, pp. 3-4). Mr. Mendez denied the
accusations in the reprimand about his attitude, negative or inappropriate communication,
that his imaging was taking too long, leaving the lab for film and leaving a door propped
open.
Following the May 7, 2010 meeting with Ms. Miller, Mr. Mendez emailed a
complaint to St. Alphonsus’ Organizational Integrity Program (OIP) Local Integrity
Officer. In the OIP complaint, Mr. Mendez alleged Ms. Miller had made offensive
remarks about his personal hygiene and the LDS church. Upon receipt of the OIP
Complaint, St. Alphonsus began an investigation into Mr. Mendez’s allegations. The
investigation was confidential and there is no evidence in the record that Ms. Miller or
Ms. Croft had knowledge of the investigation as it was occurring. Mr. Mendez met with
the investigator, Dennis Wedman, on or about May 18, 2010. (Dkt. 72-4, p.2.) Mr.
Mendez testified in his deposition he did not otherwise discuss the investigation with

1

Mr. Mendez acknowledged the May 7th meeting in his deposition, but in his unsigned affidavit in response
to the motion for summary judgment he appears to claim the May 7th meeting did not take place. Mr. Mendez did
not object to the May 7th meeting reference in the May 18, 2010 exhibit which he signed and attached to his
affidavit. (Dkt. 72-4, pp. 3-4.) Regardless, the Court finds whether or not the May 7th meeting occurred on that exact
date is not determinative of whether or not the pending motion for summary judgment should be granted.

ORDER ADOPTING REPORT AND RECOMMENDATION - 5

other employees.2 As a result of the OIP investigation and interviews with Mr. Mendez
and other employees, Ms. Miller resigned in lieu of discharge effective June 1, 2010.
Brenda McCord became the interim Clinic Manager.
On May 25, 2010, Ms. Croft issued a formal written Disciplinary Action Record
(Record) citing Mr. Mendez for insubordination and retaliation. (Dkt. 48-8, p. 5.) The
Record sets forth allegations that Mr. Mendez disobeyed orders not to retaliate against
Ms. McDowell who had complained about Mr. Mendez’s actions on May 7th. Id. The
Record instructs Mr. Mendez that he may contact St. Alphonsus’ Chief Operating Officer
(COO) Patti Brahe if he thinks he has been unfairly disciplined. Id. The Record also
states any further violation will result in immediate termination. Id.
Ms. McCord and Mr. Croft completed an annual written employee evaluation with
Mr. Mendez on June 17, 2010. The evaluation indicated Mr. Mendez resisted performing
other assigned duties, needs to improve his communication and teamwork and directs Mr.
Mendez to direct his concerns to his manager versus his co-workers. (Dkt. 48-8, p. 6-10.)
On June 23, 2010, Mr. Mendez emailed COO Brahe requesting the May 18th
written reprimand and the May 25 Record and certain comments on the June 17, 2010
evaluation be cleared from his personnel file. (Dkt. 48-8, pp. 14-19.) Mr. Mendez
complained in his email about the environment at the Iowa Clinic and acknowledged he

2

There are no facts in the record suggesting the Ms. Miller’s review of the written reprimand with Mr.
Mendez on May 18, 2010 regarding events on May 7, 2010 was due to the fact he was set to meet with Mr. Wedman
on that same day at lunch. Stated another way, Plaintiff has not presented any evidence Ms. Miller was aware of Mr.
Mendez’s scheduled meeting regarding his OIP complaint with Mr. Wedman on May 18, 2010.

ORDER ADOPTING REPORT AND RECOMMENDATION - 6

refused to perform certain additional lab duties “because . . . there is a lack of teamwork
and proper organization at his clinic.” (Dkt. 48-8, p. 18.). Ms. Brahe met with Mr.
Mendez about his concerns on July 20, 2010 and in a letter dated July 26, 2010 declined
to change Mr. Mendez’s personnel record. (Dkt. 48-8, p. 20.) Ms. Brahe offered
suggestions about changes Mr. Mendez could make in his job performance to make the
recent evaluation and discipline less of an issue in the future. Id.
Between July and early October of 2010, additional conduct and performance
issues were noted by supervisors and management of the Iowa Clinic. Specific details are
identified in the Report and Recommendation at pages 9-10 and are incorporated by
reference. On October 15, 2010, the new Clinic Manager Shane Allen terminated Mr.
Mendez: "because of his unsatisfactory work performance, including: (1) his continued
negative comments about co-workers despite multiple written warnings; (2) his continued
violation of other express instructions from management; (3) his refusal to perform
assigned work and refusal to assist coworkers; and (4) general performance issues,
including wasting time on email and taking too long to perform his work." (Allen Dec.
¶ 17, Dkt. 48-4, pp. 4-5.)
There is no dispute that Mr. Mendez knows how to perform x-rays, is good with
patients, served as a translator for a number of patients, and helped with other
assignments at the Iowa Clinic. (See letters about quality of x-rays from the Iowa Clinic
and personal letters of reference Dkt. 72-1, pp. 14-23.) However, it is also undisputed

ORDER ADOPTING REPORT AND RECOMMENDATION - 7

from the record that management had concerns about his interactions with co-workers, his
ability to follow the chain of command, his respect for supervisors and the amount of time
it took him to complete x-rays. The time concern is a reoccurring issue as seen on his
July 2008 evaluation “Rauls quality of x-ray was high, could improve speed.” (Dkt. 72-1,
p. 7. )
In his objections, Mr. Mendez notes that another employee, Beverly Tremayne,
also complained about Ms. Miller’s offensive comments and the Report and
Recommendation makes no mention of Ms. Tremayne and that she was given similar
poor evaluations after filing a complaint with OIP. In Mr Wedman’s email to Mr.
Mendez on June 1, 2010 he indicates he is getting back to Mr. Mendez regarding “the
complaint you filed on behalf of Beverly Tremayne.” (Dkt. 72-1, p.9.). Mr. Wedman
states in his email the investigation is complete regarding concerns of “unlawful
Harassment, Retaliation and Inappropriate comments made towards you and others.” Id.
Mr. Wedman indicates “the hospital has taken appropriate action to insure you or others
do not experience similar concerns.” Id. The Court accepts for purposes of the pending
motion that Mr. Mendez as well as other employees were concerned about offensive
Hispanic or religious comments. As to specific allegations of similar alleged retaliation
in the form of poor evaluations or written discipline records, the Court notes Plaintiff has

ORDER ADOPTING REPORT AND RECOMMENDATION - 8

not provided such documents in his exhibits contained Dkt. 723 and there is no affidavit
from Ms. Tremayne in the record for the Court to consider for purposes of the motion for
summary judgment.4
Mr. Mendez also includes a letter from Charlene Hymas (who was the switchboard
operator at the Iowa Clinic) to Mr. Mendez’s law firm in February of 2012 that indicates
she observed Ms. Miller making fun of Mr. Mendez’s eating habits on numerous
occasions and Ms. Croft had Mr. Mendez doing lots of different assignments in the lab.
(Dkt. 72-1, pp.34-35.). Ms Hymas does not say the comments about Mr. Mendez’s eating
habits were because he was Hispanic. Ms. Hymas shares her belief Ms. Croft was
holding Ms. Hymas (not Mr. Mendez) back from getting other jobs at St. Alphonsus and
that she believed Ms. Croft treated her poorly because of her prejudice towards the LDS
religion. Id. Ms. Hymas does not give a specific example of offensive comments being
made about her religion by Ms. Croft, only that this is why she believed Ms. Croft treated
her poorly.

3

Mr. Mendez claims Judge Dale did not consider Exhibit 4 of Dkt. 72. The Court has reviewed Dkt. 72 in
detail. It appears the handwritten coversheet stating “Exhibit 4 8 Pages” is missing from Dkt. 72. The documents
which make up Exhibit 4 (as evidenced by Exhibit 4 attached to Plaintiff’s Objections, Dkt. 79-1, pp. 11-19) were
the same documents attached as part of Dkt. 72, pp. 32-39. This Court has reviewed and considered such documents
and referenced the same where the Court finds such documents are relevant. The Court finds any alleged prejudice
from Judge Dale not considering Dkt. 72 are denied.
4

While Mr. Mendez has an opinion Ms. Tremayne was “forced” to settle her litigation with St. Alphonsus,
Ms. Tremayne is not a party to this action and the Court cannot speculate regarding her claims and the basis for such
claims. Mr. Mendez also mentions in his objections that he and Ms. Tremayne had a Joint Prosecution Agreement
with the original attorney representing their interests. Such an agreement may be relevant to any claim Mr. Mendez
may pursue against his former attorneys, but St. Alphonsus was not a party to such an agreement and the agreement
has no bearing on whether or not the legal requirements for Mr. Mendez’s claims have been satisfied by Mr.
Mendez.

ORDER ADOPTING REPORT AND RECOMMENDATION - 9

OBJECTIONS
Mr. Mendez objects in its entirety to the Report and Recommendation issued by
Judge Dale. The Court will address the objections to the extent the Court finds the
objections are relevant to the legal issues presented in the motion for summary judgment.
1. Judge Dale’s Alleged Partiality
Mr. Mendez goes to great length to argue Judge Dale has not acted impartially in
this case. The Court acknowledges Mr. Mendez’s frustrations with the legal system, but
he has failed to set forth facts that support a finding Judge Dale had a duty to recuse
herself or ruled in a manner demonstrating partiality. First, Mr. Mendez complains that
Judge Dale’s former law firm represented St. Alphonsus, therefore she is not impartial.
Judge Dale was appointed as a federal Magistrate Judge on March 31, 2008. Prior to her
appointment to the federal bench, her law firm did represent St. Alphonsus. The fact that
St. Alphonsus may have been a client prior to Judge Dale being appointed to the bench
does not require her to recuse herself from a case involving St. Alphonsus on an unrelated
matter that was filed almost four years after Judge Dale left the law firm. See State of
Idaho v. Zamora, 933 P.2d 106, 107-08 (Idaho 1997) (a judge is only disqualified from
presiding over the same case in which he [or she] previously represented a party, not a
subsequent unrelated one). One could legitimately argue that a newly appointed judge
should not handle any matters he or she had knowledge of prior to being appointed to the
bench or for a client he or she represented in private practice for a reasonable amount of

ORDER ADOPTING REPORT AND RECOMMENDATION - 10

time after taking the bench. Judge Dale is not a newly appointed judge. She has served
on the federal bench for over six years. She did not represent St. Alphonsus in the matter
in controversy and could not have had knowledge of the matter in controversy since the
alleged unlawful conduct by St. Alphonsus occurred after Judge Dale became a judge in
2008. This Court can find no authority that prohibits a judge from presiding over a case
unrelated to prior representation of the party but involving a former law firm’s client four
years5 after taking the bench. See e.g., Chitimacha Tribe of La. V. Harry L. Laws Co.,
690 F.2d 1157, 1166 (5th Cir. 1982).
Second, in this case not all of the parties consented to Judge Dale presiding over
the matter, and pursuant to District of Idaho case assignment procedures, the matter was
reassigned to a District Judge. Based on its heavy civil and criminal caseload, this Court
has a standard practice of referring civil cases to magistrate judges for orders on nondispositive matters and report and recommendations on dispositive matters. The case was
referred by this Court back to Judge Dale in the normal course of referrals. The
undersigned, not Judge Dale, is now the presiding judge in this matter.
Third, Mr. Mendez has presented no facts that support recusal under the applicable
statutes every federal judge must consider to determine if that judge can hear a case.
In an abundance of caution, the Court has specifically reviewed the requirements of 28

5

The Complaint was filed in 2012 and at that time Judge Dale had been on the bench almost four years. Mr.
Mendez’s objections regarding Judge Dale’s alleged partiality were filed on September 29, 2014 when Judge Dale
has completed nearly 6 and a half years on the federal bench.

ORDER ADOPTING REPORT AND RECOMMENDATION - 11

U.S.C. § 144 and finds no factual support for the appearance of or actual bias or prejudice
by Judge Dale to require disqualification. The Court also reviewed the requirements of
28 U.S.C. § 455 and finds there are no applicable statutory requirements that Judge Dale
recuse or disqualify herself from this case.
Fourth, Mr. Mendez never filed a motion seeking Judge Dale to recuse herself.
Curiously, the complaint about Judge Dale’s alleged partiality is only raised after she has
issued a Report and Recommendation that recommends granting the Defendant’s motion
for summary judgment. “[J]udicial rulings alone almost never constitute a valid basis for
a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).
Fifth, Mr. Mendez argues Judge Dale has prejudiced him by allowing his counsel
to withdraw. The facts do not support this accusation. In reviewing the file in this matter,
including Mr. Mendez’s complaint to the Idaho State Bar regarding his attorney Mr.
Haws, he indicates he had discussed his case with numerous attorneys. It appears from
Dkt. 24 that Mimura Law Offices represented Mr. Mendez on this matter and Mr. John
Bujak was also involved in reviewing the case to some extent. In federal court, Mr. Haws
represented Mr. Mendez in this matter and after his withdrawal, the Court aided Mr.
Mendez in finding a lawyer by suggesting he contact the District of Idaho’s ADR/Pro
Bono Coordinator. The Coordinator was able to connect Mr. Mendez with Mr. Johnson
who appeared on his behalf until filing his motion to withdraw. These facts suggest the
issue is not the Court’s granting of counsels’ motion to withdraw, but with Plaintiff’s

ORDER ADOPTING REPORT AND RECOMMENDATION - 12

ability to cooperate with his counsel to move his litigation forward.
In the first motion to withdraw (Dkt. 17-1), Mr. Haws states:
In recent months, communications with Mr. Mendez have become
strained and difficult. Despite repeated attempts to confer with Mr. Mendez
concerning the prosecution of this matter, Mr. Mendez has become
uncommunicative and has refused to return telephone calls or to meet to
discuss important issues related to this case. Mr. Mendez has repeatedly
conditioned his cooperation in prosecuting this matter upon our fulfillment
of unreasonable and impossible demands.
Mr. Mendez has refused to cooperate in the discovery process. Mr.
Mendez is obligated to respond to Defendant's written discovery request by
December 21, 2012. Although this Firm requested Mr. Mendez provide
certain documentation by December 14, 2012, and provided him several
weeks to accomplish the task, as of the date of this filing Mr. Mendez has
not provided all the requested documentation. Rather, he has firmly
communicated his refusal to cooperate in this endeavor. Mr. Mendez's
refusal to cooperate in the discovery process impedes this Firm's ability to
fulfill its ethical obligations to the Court. Mr. Mendez has substantially
failed to fulfill his obligations to this Firm by refusing to cooperate in the
discovery process and to adequately and appropriately communicating with
counsel.
Mr. Mendez has failed to heed this Firm's warning and
admonishment regarding certain conduct, which could substantially impair
and hinder his case.
This firm has discussed the issues above with Mr. Mendez and the
parties agree that a continuing attorney-client relationship is untenable.

Mr. Mendez complains his attorneys would not do what he wanted, but representation is a
two-way street. An attorney cannot do things a client thinks are a good idea which are
not allowed under the applicable rules, statutes, or code of conduct. An attorney must
rely on help from his or her client to understand the facts and evaluate those facts in light
of the applicable law. A client must rely on his or her attorney to explain the legal

ORDER ADOPTING REPORT AND RECOMMENDATION - 13

standards that apply and the strengths and weaknesses of the client’s case. The Court is
allowed to rely on the representations of Mr. Mendez’s attorneys, as officers of the Court,
regarding the breakdown in communication and failure to cooperate as establishing good
cause to grant the motions to withdraw. Mr. Haws represented Mr. Mendez agreed a
continuing attorney-client relationship was “untenable.” This cannot be the fault of Judge
Dale as in such circumstances a court must grant the motion to withdraw as it cannot
force an attorney to continue to represent a client based on the reasons provided in
counsel’s affidavit.
The second motion to withdraw (Dkt. 54), raises the same type of concerns. Judge
Dale again relied on the affidavit of counsel to find good cause existed to allow the
attorney to withdraw. In reviewing the entire record as well as the two motions to
withdraw filed in this case, this Court agrees good cause was shown which would have
allowed any judge to have granted those motions.
A judge is sworn to uphold the law and treat all litigants fairly. Judge Dale has
correctly set forth the law for each claim and applied the facts to the law. Judge Dale’s
Report and Recommendation is subject to review by this Court. After reviewing the
record in total, the Court finds Mr. Mendez’s complaints regarding the alleged “partiality”
of Judge Dale are unfounded and such objections are denied.

ORDER ADOPTING REPORT AND RECOMMENDATION - 14

2. More Time for Discovery
Mr. Mendez complains he was not given more time to conduct discovery. Pro se
litigants are held to same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d
565, 567 (9th Cir. 1987). Mr. Mendez failed to file a Fed. R. Civ. P. 56(d) motion related
to the summary judgment motion. He “assumes” St. Alphonsus would not have agreed to
further discovery, so he did not request an extension of the discovery deadline. Failing to
timely file a motion for relief is not a proper basis to allow a Court to grant an untimely
request for more discovery.
Additionally, a Fed. R. Civ. P. 56(d) motion for further discovery prior to a court
ruling on a motion for summary judgment requires the moving party to point to “specific”
evidence and explain how such evidence would preclude summary judgment. Emplrs.
Teamsters Local Nos. 175 & 505 v. Clorox Co., 353 F.3d 1125, 1129-30 (9th Cir. 2004).
Mr. Mendez only argues in general terms he needs to complete more discovery not what
“specific” discovery from identifiable witnesses he seeks, what such testimony or
documents would prove and how it would be relevant to the pending motion. When a
party files a lawsuit, that party has a duty to prosecute its claims and a failure to diligently
seek and collect relevant discovery materials since 2010 until July 2014 does not support
or establish good cause for even more time to complete unknown discovery.
Further, after Judge Dale granted the second motion to withdraw in February 12,
2014 (Dkt. 56), Mr. Mendez had an additional five and a half months to file a response to

ORDER ADOPTING REPORT AND RECOMMENDATION - 15

the motion for summary judgment as well as find a new attorney. Judge Dale appears to
have been very lenient in granting Plaintiff more than adequate time to gather his
documents, get affidavits, move to depose witnesses, and file a response that complies
with the rules. Mr. Mendez had the right under the procedural rules and statutes to object
to Judge Dale’s Order not to grant a further extension beyond July 31, 2014. See Fed. R.
Civ. P. 72(a). Mr. Mendez never filed an objection with this Court. For these reasons, the
Court denies Mr. Mendez’s objections that he did not have adequate time to conduct
discovery or respond to the motion for summary judgment.

3. Substantive Law Challenges
Judge Dale accurately set forth the law applicable to the review of a motion for
summary judgment and the substantive claims of Plaintiff. Plaintiff has made no
objections to the legal standards articulated by Judge Dale in the Report and
Recommendation. The Court acknowledges Plaintiff made this Court’s job difficult in
reviewing the motion for summary judgment by filing an unsworn affidavit and not filing
a memorandum of law or a statement of undisputed facts. Regardless, this Court has gone
back through the record and has viewed the facts in a light most favorable to Plaintiff.
Plaintiff is reminded that undisputed facts presented by the moving party that are not
favorable to Plaintiff’s claims cannot be ignored by the Court. Plaintiff had a duty to
rebut facts presented by St. Alphonsus with evidence, not mere speculation. Fed. R. Civ.

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P. 56(c). A party that fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact allows the Court to consider the fact undisputed
for purposes of the motion. Fed. R. Civ. P. 56(e).
While the Court finds Plaintiff has raised no objections regarding the legal
standards that apply to his claims, in order to add context to this Order the Court will
restate some of the legal standards as set out in the Report and Recommendation. To
begin with, summary judgment is appropriate if there are no genuine disputes as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). The Court incorporates by reference the detailed explanation of the standard of
review for summary judgment motions. Report and Recommendation at 12-13.

A. Disparate Treatment on the Basis of Race or Religion
To prove discrimination on the basis of race or religion, Mendez must introduce
evidence from which a reasonable jury could conclude, in light of common experience,
that it was more likely than not that St. Alphonsus’ adverse action was motivated by
consideration of his race or religion. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973) (explaining plaintiff's burden under Title VII is to demonstrate that
defendant's proffered explanation for an adverse action is more likely than not a pretext
for discrimination); U.S. Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 715 (1983)
("The factual inquiry in a Title VII case is whether the defendant intentionally

ORDER ADOPTING REPORT AND RECOMMENDATION - 17

discriminated against the plaintiff.") (quotations omitted). When evaluating
discrimination claims at the summary judgment stage, the courts employ the familiar
burden-shifting analysis developed in McDonnell Douglas. See Pottenger v. Potlatch
Corp., 329 F.3d 740, 745 (9th Cir. 2003).
Under McDonnell Douglas, an employee alleging disparate treatment must first
establish a prima facie case of discrimination. 411 U.S. at 802. If Mr. Mendez establishes
a prima facie case, "the burden of production, but not persuasion, then shifts to the
employer to articulate some legitimate, nondiscriminatory reason for the challenged
actions." Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123-24 (9th Cir.
2000). If the employer meets this burden, the burden of production shifts back to the
employee to show the employer's reason is pretextual "either directly by persuading the
court that a discriminatory reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of credence." Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Throughout the burden-shifting
process, the employee has the burden of persuading the trier of fact that the employer
intentionally discriminated against the plaintiff. Douglas v. Anderson, 656 F.2d 528, 531
(9th Cir. 1981) (citing Burdine, 450 U.S. at 256). In other words, "[t]o survive summary
judgment on his disparate treatment claim, [Mr. Mendez] must establish that his job
performance was satisfactory and provide evidence, either direct or circumstantial, to

ORDER ADOPTING REPORT AND RECOMMENDATION - 18

support a reasonable inference that his termination [or discipline] was discriminatory."
Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).
To establish a prima facie case of disparate treatment, Mr. Mendez must show that
"(1) he is a member of a protected class; (2) he was qualified for his position; (3) he
experienced an adverse employment action; and (4) similarly situated individuals outside
his protected class were treated more favorably, or other circumstances surrounding the
adverse employment action give rise to an inference of discrimination." Id.
Judge Dale found Plaintiff met the threshold for establishing a prima facie case
and this Court agrees Plaintiff has met this initial burden. What Plaintiff failed to do was
respond to the legitimate explanations for his termination that are unrelated to his alleged
discrimination based on race and religion.
After finding the prima facie case, the burden shifted to St. Alphonsus to produce
evidence of a legitimate, nondiscriminatory reason for the adverse employment action.
Rose v. Wells Fargo & Co., 902 F.2d. 1417, 1420 (9th Cir. 1990). Performance-related
concerns are sufficient to rebut the presumption of discriminatory intent, Pottenger, 329
F.3d at 746, as is evidence that an employee disobeyed a direct order from a supervisor.
Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). St. Alphonsus set
forth several legitimate, nondiscriminatory reasons for disciplining and negatively
evaluating Mr. Mendez. Mr. Mendez may disagree regarding some of the examples of
non-compliance with management’s instructions, but he did not present evidence to

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establish the reasons for his termination as set forth in Mr. Allen’s Declaration were
pretextual. Mr. Mendez does not dispute that he made negative comments to coworkers ,
refused to perform duties in the laboratory, failed to follow the chain of command and
direct orders from his supervisors.
In order to survive summary judgment, Mr. Mendez had the legal duty to raise a
genuine issue of material fact concerning whether St. Alphonsus’ articulated reasons for
its adverse employment actions were pretextual to discrimination. Diaz v. Eagle Produce
Ltd. Partnership, 521 F.3d 1201, 1212 (9th Cir. 2008). Mr. Mendez could demonstrate
pretext by producing either direct or circumstantial evidence that St. Alphonsus’ adverse
employment actions were "due in part or in whole to discriminatory intent." McGinest v.
GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004). Mr. Mendez failed to present such
evidence. Instead, he restated his evidence used to support his prima facie case. This is
insufficient as a matter of law to carry his burden at this third stage of analysis. Wallis v.
J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). Having failed to carry his burden,
St. Alphonsus is entitled to summary judgment on this claim. Plaintiffs objections are
denied.

B.

Hostile Work Environment

Mr. Mendez next claims St. Alphonsus subjected him to racially or religiously
based harassment that created a hostile work environment based on the comments of Ms.

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Miller. To prevail on his hostile work environment claim, Mr. Mendez must show: "(1)
that he was subjected to verbal or physical conduct of a racial or [religious] nature; (2)
that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or
pervasive to alter the conditions of the plaintiff's employment and create an abusive work
environment." Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003). In
particular, Mr. Mendez must prove that the environment at the Iowa Clinic was "both
objectively and subjectively offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be so." Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998).
There is no dispute that Mr. Mendez established and other employees corroborated
that Ms. Miller made unwelcome and subjectively offensive comments about Mr.
Mendez. But the Court must determine if the conduct was so “severe or pervasive” that a
fact-finder could reasonably conclude Mendez was subjected to an abusive work
environment.
In Harris v Forklift Systems, Inc., 510 U.S. 17, 23 (1993) the Supreme Court held:
[W]hether an environment is “hostile” or “abusive” can be
determined only by looking at all the circumstances. These may include the
frequency of the discriminatory conduct; its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.
The effect on the employee’s psychological well-being is, of course,
relevant to determining whether the plaintiff actually found the environment
abusive. But while psychological harm, like any other relevant factor, may
be taken into account, no single factor is required.

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Simple teasing, offhand comments and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of
employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). “‘[M]ere
utterance of an ethnic or racial epithet which engenders offensive feelings in an
employee’ would not sufficiently alter terms and conditions of employment to violation
Title VII.” Id. at 787 (citing Rogers v. EEOC, 454 F2d 234, 238 (5th Cir. 1971)). These
standards for judging hostility are sufficiently demanding to ensure Title VII does not
become a “general civility code.” Oncale v. Sundowner Offshore Services, Inc. 523 U.S.
75, 80 (1998).
After Mr. Mendez filed his OIP Complaint, it was immediately investigated and
the investigation resulted in the resignation of Ms. Miller as Clinic Manager. Mr.
Mendez fails to show that between June 1, 2010 and his termination any further offensive
comments were made by supervisors or co-workers. Absent such evidence, the Court
finds as a matter of law, the limited examples and isolated incidents of offensive conduct
presented by Plaintiff in this case do not rise to the level of a hostile work environment in
that Plaintiff has failed to establish the conduct was so severe or pervasive as to alter the
conditions of his employment and create an abusive working environment. The hostile
work environment claim must be dismissed.

C.

Retaliation

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Mr. Mendez's last Title VII claim is that St. Alphonsus retaliated against him for
reporting Ms. Miller's discriminatory remarks to human resources and through the OIP.
Mr. Mendez claims after filing his OIP complaint on May 7, 2010, he was given the May
18, 2010 written reprimand, a Disciplinary Action Record on May 25, 2010, a negative
performance evaluation June 17, 2010 and ultimately terminated in October 2010. Mr.
Mendez infers the negative reviews and evaluations were forms of retaliation by St.
Alphonsus for his initial reporting of alleged unlawful conduct and this retaliation led to
his termination in October of 2010.
“To prevail on a Title VII retaliation claim, plaintiff must establish that she
engaged in activity protected by Title VII, that she was subjected to an adverse
employment action, and that there was a causal link between the protected activity and
the adverse employment action.” EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 586 (9th
Cir. 2000). In University of Texas Southwestern Med. Ctr. v. Nassar, __ U.S. __, 133
S.Ct. 2517, 2534 (2013), the Supreme Court recently clarified the causal link requirement
holding “a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his
or her protected activity was a but-for cause of the alleged adverse action by the
employer.” This ruling by the Supreme Court raised the bar for plaintiffs in the Ninth
Circuit where the standard had previously been a plaintiff merely had to establish the
protected activity was a “motivating factor” for the adverse action by the employer.
Siring v. Oregon State Board of Higher Education, 977 F. Supp. 2d 1058, 1061 (D.

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Oregon 2013). The McDonnell Douglas burden-shifting framework also applies to
Mendez's retaliation claim. Yartzoff v.Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987).
"An employee engages in protected activity when [he] opposes an employment
practice that either violates Title VII or that the employee reasonably believes violates the
law." Id. Here, Mr. Mendez engaged in protected activity by reporting concerns about
Ms. Miller's alleged discriminatory conduct in late 2009 and to the OIP on May 7, 2010.
But Mr. Mendez’s claim fails because he cannot establish that “but for” his complaints
about Ms. Miller, he would not have been terminated five months later. First, it is
undisputed the alleged discriminatory conduct ceased by the time Ms. Miller resigned on
June 1, 2010. Second, there is no evidence that any of the decision makers on Mr.
Mendez’s termination in October 2010 (as well as the decision makers on the May 25,
2010 and June 17, 2010 reprimands) had any knowledge of his reports of discriminatory
conduct in 2009 and 2010. Instead, the undisputed evidence establishes no supervisor nor
the Clinic Managers after Ms. Miller were aware of or had knowledge of Mr. Mendez’s
protected activity of reporting alleged discriminatory conduct in 2009 and 2010.
The Court acknowledges if the legal standard for causation for a retaliation claim
was a “motivating factor” instead of a “but for” analysis, Plaintiff’s retaliation claim
might survive summary judgment, but this Court must apply the law as clarified by the
Supreme Court. Therefore, this Court finds based on the record before it and viewing the
facts in a light most favorable to Plaintiff, no reasonable juror could find without relying

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on pure speculation that his protected activity was the “but for” cause of Mr. Mendez’s
termination. Plaintiff’s objections are denied and summary judgment must be granted on
this claim.

D. Implied Covenant of Good Faith and Fair Dealing
Plaintiff objects to the dismissal of this claim on the grounds his retaliation claims
does not survive. Plaintiff also states “he does not understand much of what this [cause
of action] means or why the first set of Lawyer (sic) included this claim.” (Dkt. 79, p.
20.)
Plaintiff does not dispute he was an “at-will” employee who could be terminated at
any time. A breach of the covenant of good faith and fair dealing requires conduct by an
employer that “violates, nullifies or significantly impairs any benefit of the employment
contract.” Metcalf v. Intermountain Gas Co., 778 P.2d 744 (Idaho 1989). This Court has
determined the claim for retaliation fails as a matter of law and there is no other evidence
showing conduct by the employer “violates, nullifies or significantly impairs” any benefit
of Mr. Mendez’s employment agreement with St. Alphonsus. Therefore, an employer has
a right to terminate an at-will employee without having to show good cause for the
termination. Id. St. Alphonsus did not breach the covenant of good faith and fair dealing

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by terminating an at-will employee. Because Plaintiff has not rebutted the fact he is an
at-will employee, the claim must be dismissed. Plaintiff’s objections are denied.

CONCLUSION
The Court understands that employment law is a difficult and complex area of the
law and even more so for a pro se litigant not schooled in the law. However, the shifting
burden analysis framework is not new to employment law and the facts that the Court
accepted as true to allow the Plaintiff to survive the initial hurdles of his claims, do not
satisfy his legal burden of production of evidence/facts to rebut Defendant’s legitimate
business reasons for terminating Mr. Mendez’s employment. No Court would find the
alleged comments by Ms. Miller acceptable. The Court can infer St. Alphonsus did not
find the comments acceptable under their policies since after completing the OIP
investigation, Ms. Miller resigned in lieu of discharge. Our employment laws are
designed to give the employer the first opportunity to stop discriminatory conduct in the
workplace once it is brought to the employer’s attention.
As to the disparate treatment claim, Plaintiff failed to carry his burden to establish
genuine issues of fact to support a finding that the business reasons for his termination
were pretextual. Rather the employer provided undisputed evidence that while Plaintiff
was a good x-ray technician there were other issues regarding his attitude, his ability to

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follow the directions of supervisors and assisting with other lab assignments which
impacted his overall job performance.
As to the hostile work environment, Plaintiff had the burden to show the alleged
discriminatory conduct was so severe and pervasive to alter his conditions of
employment. The Court assumed the discriminatory comments occurred, but that such
comments alone were insufficient to satisfy the severe and pervasive requirement of his
claim as Plaintiff did not establish his conditions of employment were altered by the
alleged discrimination.
While the Plaintiff feels strongly his report to the OIP led to disciplinary action
and ultimately his termination, this belief is not supported by the undisputed facts in the
record. Mr. Mendez’s belief alone cannot satisfy the “but for” causation test for a
retaliation claim when legitimate job performances reasons have been presented to
support the employer’s decision to terminate Mr. Mendez.
Plaintiff was an at-will employee and St. Alphonsus was within its legal rights to
terminate his employment. No genuine issues of material fact exists that prevent as a
matter of law summary judgment from being granted in favor of St. Alphonsus.
Plaintiffs’ objections are respectfully denied.

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ORDER
IT IS ORDERED that the Report and Recommendation (Dkt. 78) shall be
INCORPORATED by reference and ADOPTED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment
(Dkt. 48) is GRANTED and all of Plaintiff’s claims are DISMISSED.
DATED: November 13, 2014

Honorable Edward J. Lodge
U. S. District Judge

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