Taylor v. Riverside Behavioral Health et al
Filing
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OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; granting 33 Motion to Dismiss Party; granting 38 Motion for Summary Judgment; denying 47 Motion for Summary Judgment (vah, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TASHIA TAYLOR,
Plaintiff,
vs.
RIVERSIDE BEHAVIORAL HEALTH,
MIKE KISTLER, and MARGARET KOCH,
Defendants.
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No. 10-CV-243-TCK-FHM
OPINION AND ORDER
Before the Court are Mike Kistler (“Kistler”) and Margaret Koch’s (“Koch”) Motion to
Dismiss the Amended Complaint (“Motion to Dismiss”) (Doc. 33); Riverside Behavioral Health
(“Riverside”), Kistler, and Koch’s Motion for Summary Judgment (Doc. 38);1 and Plaintiff’s Motion
for Summary Judgment (Doc. 47).2
I.
Factual Background3
1
Because the Court grants Kistler and Koch’s Motion to Dismiss, see infra Section III,
the Court will hereinafter refer to the motion for summary judgment as “Riverside’s Motion for
Summary Judgment.”
2
Plaintiff is pro se. The Court will therefore construe her pleadings liberally and hold
her to a “less stringent standard” than is applied to pleadings drafted by lawyers. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). Pursuant to such liberal construction rules, the Court
overlooks failure to cite to proper legal authority, confusion of various legal theories, poor
syntax and sentence construction, and unfamiliarity with pleading requirements. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
3
Although Plaintiff filed a response to Riverside’s Motion for Summary Judgment,
Plaintiff did not “specifically controver[t]” any of Riverside’s material facts. LCvR56.1 (“All
material facts set forth in the statement of the material facts of the movant shall be deemed
admitted for the purpose of summary judgment unless specifically controverted by the statement
of material facts of the opposing party.”). “Although great deference is often given to pro se
litigants, such litigants are nevertheless governed by the same procedural rule as other
litigants[.]” Graham v. Van Dycke, 564 F. Supp. 2d 1305, 1307 (D. Kan. 2008). Thus, the Court
Riverside operates an inpatient facility that provides behavioral health treatment to critically
ill children and adolescents and is part of a network of facilities in Northern Oklahoma known as
the Shadow Mountain Behavioral Health System (“SMBHS”). Defendant Kistler is Riverside’s
Chief Executive Officer, and Defendant Koch is employed by Riverside as a therapist. On July 11,
2007, Riverside hired Plaintiff as a Mental Health Technician (“MHT”). Between February 18,
2008 and March 5, 2009, Riverside received twenty-one (21) complaints of abuse and neglect
against Plaintiff. The allegations included complaints that Plaintiff: (1) hit and kicked a patient; (2)
choked a patient; (3) grabbed patients by the hair and slammed them to the ground; (4) refused to
assist an ill patient; (5) confiscated a patient’s personal items, including her Bible; and (6) slammed
doors on patients’ bodies. Overall, seven of the complaints were referred to the Oklahoma
Department of Human Services Office of Client Advocacy (“OCA”) and four were investigated by
that agency.
In one such investigation, concluded on November 4, 2008, OCA found that Plaintiff abused
a seventeen-year-old female patient. (See Ex. 1-22 to Mot. for Summ. J. (“November 4, 2008 OCA
Report”).) The investigation found that Plaintiff urged the patient to hit her head and fists on the
wall, called the patient names, and failed to intervene to stop the patient from harming herself. The
report also found that Plaintiff intentionally degraded and escalated the situation and that her actions
caused and permitted harm to the health, safety, and welfare of the patient. Based on these findings,
OCA concluded that Plaintiff’s actions met the definition of abuse under O.A.C. § 340:3-2. After
deems Riverside’s statement of facts admitted. See LCvR56.1; Graham, 564 F. Supp. 2d at 1307
(accepting defendants’ statement of facts as true when pro se plaintiff failed to “specifically
controver[t]” those facts, as required by the local rule governing summary judgment).
2
OCA’s report, Kistler met with Plaintiff and informed her that additional incidents of misconduct
would result in termination of her employment. Seven additional complaints of abuse and neglect
were made against Plaintiff following the November 4, 2008 OCA Report.
On April 23, 2009, Duane Harris (“Harris”), Director of Human Resources for SMBHS, Dr.
David Goodgame (“Dr. Goodgame”), Riverside’s Clinical Director, and Jordan Cooke (“Cooke”),
Riverside’s Director of Human Resources, met with Plaintiff to discuss her interactions with patients
(“April 23, 2009 meeting”). As a result of this meeting, Dr. Goodgame was to provide education
and mentoring to Plaintiff, Plaintiff was placed on a ninety-day probationary period, and Plaintiff
received a performance improvement plan.
On May 2, 2009, Riverside received reports that a patient had a knife in the facility and that
Plaintiff knew about the knife but did not report it to Riverside administration. Riverside conducted
a search and found a pen that met the description of the alleged knife. On May 4, 2009, Cooke and
Dr. Goodgame asked Plaintiff to be interviewed as a witness regarding the incident. Plaintiff stated
that she would not be interviewed unless she was permitted to record the interview or have a witness
present. Cooke informed Plaintiff that neither option would be permitted because of patient
confidentiality concerns. Plaintiff then refused to participate in the investigation and was suspended.
On May 6, 2009, Plaintiff was terminated. Riverside claims Plaintiff’s termination was due to
continuing performance issues during her probationary period, including untherapeutic interactions
with patients, failure to report an incident to administration regarding a safety concern, and
insubordination during the subsequent investigation.
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II.
Plaintiff’s Amended Complaint
Plaintiff’s Amended Complaint makes three claims against Defendants pursuant to Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title VII”). First, Plaintiff asserts a claim for
“discrimination in employment practices,” alleging that Koch did not treat her “equally as the men
in the unit,” talked “negatively about black people,” and “instigated numerous frivolous patient
complaints against [her].” (Id. 1-2.) Plaintiff also provides information about two co-workers, April
Burgin (“Burgin”), a white female, and Chris Fields (“Fields”), a black male. Specifically, Plaintiff
states that “[Burgin] was written up for admitting to purposefully spitting on a male patient,” and
that she observed Fields “violating numerous company policies,” including not clocking in or out,
leaving early, smelling like liquor and marijuana, smoking on the playground, and drinking on the
job. (Id. 2.) Plaintiff claims that Fields “was never fired for his numerous violations.” (Id.) Finally,
Plaintiff claims that she was “accused of and investigated eight times of physically harming patients
and removed from [her] assigned unit for months at a time only for the investigations to conclude
that no abuse was found.” (Id.)
Second, Plaintiff asserts a claim for “racism in the workplace,” alleging the following in
support of this claim: (1) David, a nurse hired by Riverside, “received complaints from black
employees for making racist remarks when referring to African Americans by ‘you people’ and
instigating arguments with black staff members in front of patients,” (id.); (2) Plaintiff was informed
by some of the patients’ guardians that “[Koch] talk[ed] negatively about black people,” (id.); and
(3) On January 20, 2009, Plaintiff complained to Dr. Goodgame that, while watching President
Obama’s inauguration, Koch (a) stated that “[j]ust because we have a black president doesn’t mean
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we have to celebrate it by eating fried chicken and collard greens” and (b) commented on “how bad
the country will be with a black man running it,” (id. 3).
Finally, Plaintiff’s third cause of action alleges a claim for “retaliatory discharge from
employment.” (Id.) Therein, she states that she: (1) filed a claim with the EEOC for race
discrimination, sex discrimination, and retaliation; (2) filed a claim with the Department of Labor
(“DOL”) regarding the deduction of time for lunch breaks; (3) filed an internal claim with Riverside
regarding the falsification of documentation; and (4) reported Koch to Kistler and a HIPPA
compliance officer for reading patients’ charts to them during their therapy sessions. It appears from
Plaintiff’s Amended Complaint that she claims she was terminated in retaliation for making the
above-listed complaints.4
III.
Motion to Dismiss
Defendants Kistler and Koch move to dismiss Plaintiff’s claims against them pursuant to
Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), arguing that Title VII does not subject
them to liability in their individual capacities.
A.
Rule 12(b)(6) Standard
In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the
plaintiff has stated a claim upon which relief may be granted. The inquiry is “whether the complaint
contains ‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk,
LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544)). In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “‘nudge [ ]
4
Plaintiff does not explicitly allege such in her Amended Complaint, but the title of her
claim – namely, “retaliatory discharge” – suggests that this is the basis of her claim.
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[his] claims across the line from conceivable to plausible.’” Schneider, 493 F.3d at 1177 (quoting
Twombly, 550 U.S. at 570). Thus, “the mere metaphysical possibility that some plaintiff could prove
some set of facts in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Schneider, 493 F.3d at 1177.
B.
Individual Liability Under Title VII
In this case, it appears Plaintiff has filed her Amended Complaint against Defendants Kistler
and Koch in their individual capacities. However, “[u]nder long-standing [Tenth Circuit] precedent,
supervisors and other employees may not be held personally liable under Title VII.” Williams v.
W.D. Sports, N.M., Inc., 497 F.3d 1079, 1083 n.1 (10th Cir. 2007) (citing Haynes v. Williams, 88
F.3d 898, 899 (10th Cir. 1996) (“The relief granted under Title VII is against the employer, not
individual employees whose actions would constitute a violation of the Act.”)). Further, even if
Kistler and Koch were named as supervisory employees acting in their official capacities, this would
amount to a suit against Riverside, who is already a party to this case. See Williams, 497 F.3d at
1083 n.1 (explaining that “[s]upervisory employees acting in their official capacities may be named
as defendants in a Title VII action as a means to sue the employer under agency theory”); Lewis v.
Four B Corp., No 04-3471, 211 Fed. Appx. 663, 665 n.1 (10th Cir. Aug. 11, 2005) (“[S]upervisors
may be named in their official capacity and/or as alter egos of the employer, but just as means to sue
the employer[,] . . . and this procedural mechanism is superfluous where, as here, the employer is
already subject to suit directly in its own name.”)). For these reasons, the Motion to Dismiss (Doc.
33) is granted.
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IV.
Riverside’s Motion for Summary Judgment
Riverside has moved for summary judgment on all of Plaintiff’s claims. Although Plaintiff
filed a response to Riverside’s Motion for Summary Judgment, her response contains little
substance. Specifically, Plaintiff’s response solely consists of the following:
Plaintiff opposes [Riverside’s] Motion for Summary Judgment because, based on the
legal arguments raised by [Riverside], there is [sic] genuine issues of material fact.
In addition, [Riverside has] cited propositions of law for which they do not stand and
[has] raised arguments that are otherwise legally flawed.
(Pl.’s Mot. for Summ. J. and Pl.’s Memo. in Opp’n to Defs.’ Mot. for Summ. J. 2.)
A.
Summary Judgment Standard
Summary judgment is proper only if “there is no genuine issue as to any material fact, and
the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving
party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite
Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). The Court resolves all factual disputes and
draws all reasonable inferences in favor of the non-moving party. Id. However, the party seeking
to overcome a motion for summary judgment may not “rest on mere allegations” in its complaint
but must “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P.
56(e). The party seeking to overcome a motion for summary judgment must also make a showing
sufficient to establish the existence of those elements essential to that party’s case. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323-33 (1986).
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B.
Plaintiff’s Disparate Treatment Claim5
Relevant to this case, Title VII makes it unlawful for an employer to “discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race [or] sex.” 42 U.S.C. § 2000e-2(a). Plaintiff seeks to prove
disparate treatment by circumstantial evidence, which requires the Court to employ the tripartite
burden-shifting analysis established in McDonnell Douglas Corporation v. Green, 411 U.S. 792,
802 (1973). See Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1114 (10th Cir. 2007). “Under
McDonnell Douglas, the plaintiff first bears the burden of proving a prima facie case of
discrimination.” Id. “In order to establish a prima facie case of disparate treatment, Plaintiff must
show (1) she is a member of a [protected class], (2) she suffered an adverse employment action, and
(3) similarly situated employees were treated differently.” Robinson v. Cavalry Portfolio Servs.,
LLC, 365 Fed. Appx. 104, 114 (10th Cir. 2010); see Orr v. City of Albuquerque, 417 F.3d 1144,
1149 (10th Cir. 2005). “If the plaintiff successfully proves a prima facie case, the employer must
articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Robinson,
365 Fed. Appx. at 114. “Once the employer identifies a legitimate reason for its action, the burden
shifts back to the employee to prove that the proffered legitimate reason was a pretext for
discrimination.” Id. at 1114-15.
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The Court construes Plaintiff’s “discrimination in employment practices” and “racism
in the workplace” claims as jointly constituting a disparate treatment claim under Title VII.
Although the allegations included within Plaintiff’s “racism in the workplace” claim could be
construed as asserting a hostile work environment claim, Plaintiff testified that she is not
asserting such a claim in this lawsuit. (See Pl.’s Dep., Ex. 1 to Defs.’ Mot. for Summ. J., at 5-9
(stating she “did not file [a hostile work environment claim] with this lawsuit”).)
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Plaintiff’s Amended Complaint alleges that she suffered disparate treatment because Koch
did not treat her “equally as the men,” “instigated numerous frivolous patient complaints against
[her],” and because she was disciplined more harshly than certain co-workers – namely, Burgin and
Fields.6 (Am. Compl. 1-2.) Further, during her deposition, Plaintiff testified that Koch did not keep
her updated on events taking place in the unit due to Plaintiff’s sex. The Court will analyze these
alleged instances of disparate treatment under the applicable McDonnell Douglas burden-shifting
analysis.
1.
Prima Facie Case - Adverse Employment Action
“The Tenth Circuit liberally defines the phrase ‘adverse employment action.’” Jones v.
Okla. City Pub. Sch., 617 F.3d 1273, 1279 (10th Cir. 2010). “Such actions are not simply limited
to monetary losses in the form of wages or benefits.” Id. “Instead, [the Tenth Circuit] take[s] a
‘case-by-case approach,’ examining the unique factors relevant to the situation at hand.” Id. This
prong is satisfied by a “significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Id. A “mere inconvenience or an alteration of job responsibilities”
is not sufficient to constitute an adverse employment action. Id.
The Court finds that certain of Plaintiff’s allegations do not rise to the level of adverse
employment actions and are therefore unable to form the basis of a disparate treatment claim.
Specifically, Plaintiff’s general allegation that she was not treated equally as the men of her unit
6
Plaintiff’s Amended Complaint does not specifically make this allegation with regard
to Burgin and Fields. However, construing Plaintiff’s Amended Complaint liberally, as this
Court must, see Haines, 404 U.S. at 520-21, it appears that Plaintiff’s allegations regarding
Burgin and Fields are meant to demonstrate that Plaintiff was treated more harshly than other coworkers.
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does not constitute an adverse employment action and cannot support a claim for disparate
treatment. Further, Plaintiff’s claim that Koch did not update her on events taking place in the unit
does not constitute an adverse employment action. Plaintiff testified that Koch was “more of a coworker than a supervisor,” (Pl.’s Dep., Ex. 1 to Mot. for Summ. J., at 138:1-3), and has failed to
produce any evidence demonstrating that Koch’s lack of communication resulted in a significant
change in Plaintiff’s employment status. See MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266,
1279 (10th Cir. 2005) (holding that “silent treatment” is “mere passive treatment [that] does not
constitute an adverse employment action”) (citing Flannery v. Trans World Airlines, Inc., 160 F.3d
425, 428 (8th Cir. 1998) (shunning is not an adverse employment action where the plaintiff did not
allege that the ostracism resulted in reduced salary, benefits, seniority, or responsibilities)).
Construing Plaintiff’s Amended Complaint liberally, Plaintiff’s remaining allegations –
regarding the preparation of allegedly “frivolous” complaints and the resulting investigations and
disciplinary actions taken against her – rise to the level of adverse employment actions. The record
reflects that the complaints of abuse and neglect, subsequent investigations, and disciplinary actions
all resulted in Plaintiff’s termination, which clearly constitutes a “significant change in [Plaintiff’s]
employment status.” Jones, 617 F.3d at 1279.
2.
Prima Facie Case - Similarly Situated Employees
Riverside moves for summary judgment on Plaintiff’s disparate treatment claim, arguing that
she has failed to demonstrate the third element of her claim, which requires disparate treatment
among similarly situated employees. The Court agrees. Although Plaintiff’s Amended Complaint
includes allegations regarding Burgin and Fields, Plaintiff has not shown any evidence that either
of these employees had the “same supervisor and [were] subject to the same standards governing
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performance evaluation and discipline [or were] disciplined for conduct of comparable seriousness.”
Durant v. MillerCoors, LLC, No. 10-1246, 2011 WL 892783, at *3 (10th Cir. March 16, 2011)
(citing McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006)); see also Timmerman v. U.S.
Bank, N.A., 483 F.3d 1106, 1120 (10th Cir. 2007) (“Similarly situated employees are those who deal
with the same supervisor and are subject to the same standards governing performance evaluation
and discipline.”). In fact, the record reflects that the allegations of misconduct against Burgin and
Fields were not of the same type or character as those raised against Plaintiff, as neither Burgin or
Fields were accused of patient abuse and neglect. Although the Court notes Plaintiff’s pro se status,
it is “not the proper function of the district court to assume the role of advocate for a pro se litigant,”
Hall, 935 F.2d at 1110, and Plaintiff’s pro se status does not excuse her obligation to comply with
the requirements of the substantive law, see McNeil v. United States, 508 U.S. 106, 113 (1993);
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). Therefore, because Plaintiff has failed
to set forth any specific facts showing that similarly situated employees were treated differently from
her, summary judgment is appropriate as to her disparate treatment claim.
C.
Retaliatory Discharge Claim
Title VII forbids an employer from retaliating against an individual because the individual
“has opposed any practice made an unlawful employment practice” by Title VII or because the
individual “has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing” pursuant to Title VII. 42 U.S.C. § 2000e-3(a). To make out a prima facie
case, a plaintiff must establish that (1) she engaged in protected opposition to discrimination; (2) she
suffered an adverse action that a reasonable employee would have found material; and (3) a causal
nexus exists between her opposition and the employer’s adverse action. Montes v. Vail Clinic, Inc.,
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497 F.3d 1160, 1176 (10th Cir. 2007). Plaintiff claims she was terminated in retaliation for (1) filing
a claim with the EEOC, (2) filing a claim with the DOL, (3) filing an internal claim at Riverside, and
(4) reporting Koch to Kistler and a HIPPA compliance officer. Riverside maintains that Plaintiff’s
retaliatory discharge claim is subject to summary judgment because she did not engage in protected
activity prior to her discharge and there is no causal connection between any alleged protected
activity and her termination.
1.
Prima Facie Case - Protected Opposition to Discrimination
In order to demonstrate that she engaged in protected opposition to discrimination, Plaintiff
must oppose an employment practice made unlawful by Title VII. See Peterson v. Utah Dep’t of
Corr., 301 F.3d 1182, 1188 (10th Cir. 2002). Therefore, “an employee’s complaints regarding
unfair treatment, no matter how unconscionable, cannot be ‘protected opposition to discrimination’
unless the basis for the alleged unfair treatment is some form of unlawful discrimination in violation
of Title VII.” Faragalla v. Douglas Cnty. Sch. Dist. RE 1, Nos. 09-1393, 10-1433, 2011 WL 94540,
at *5 (10th Cir. Jan. 12, 2011) (citing Peterson, 301 F.3d at 1188). In this case, Plaintiff cannot
demonstrate that she engaged in protected opposition to discrimination when she filed a claim with
the DOL, made an internal claim with Riverside regarding the falsification of documents, and
reported Koch to Kistler and a HIPPA officer, because these claims did not make any reference to
Plaintiff’s gender, race, or allege any sort of discrimination. As such, these claims did not involve
employment practices made unlawful under Title VII. See Faragalla, 2011 WL 94540, at *6
(finding certain complaints did not constitute protected opposition to discrimination when such
complaints did not “ma[ke] any reference to [plaintiff’s] race, religion, or national origin, or alleg[e]
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discrimination or harassment on any unlawful basis”). Therefore, the only alleged protected
opposition to discrimination is found in Plaintiff’s EEOC filing.
2.
Prima Facie Case - Causal Nexus
“[A] causal connection is established where the plaintiff presents evidence of circumstances
that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse
action.” Williams, 497 F.3d at 1091 (internal quotations omitted). Further, “[a]n employer’s action
against an employee cannot be because of that employee’s protected opposition unless the employer
knows the employee has engaged in protected opposition.” Peterson, 301 F.3d at 1188 (citing, inter
alia, Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (“[P]laintiff must show that the individual
who took adverse action against him knew of the employee’s protected activity.”)). In this case, the
record reflects that Plaintiff’s EEOC Charge was filed May 27, 2009, (see EEOC Charge, Ex. 1-48
to Mot. for Summ J.), twenty-one days after she was terminated. Further, Cooke testified that
Riverside did not know that Plaintiff had contacted the EEOC until June 9, 2009, when it received
a notice from the EEOC. Therefore, given that (1) Plaintiff filed her EEOC Charge after she was
terminated and (2) Riverside had no knowledge of any contact between Plaintiff and the EEOC until
after she was terminated, the Court finds that Plaintiff is unable to demonstrate a causal connection
between the filing of her EEOC Charge and her termination. Plaintiff’s retaliatory discharge claim
is thus subject to summary judgment.
V.
Plaintiff’s Motion for Summary Judgment
Plaintiff has moved for summary judgment in her favor “with regards to the Declaratory
Judgment and Injunctive Relief portions” of Plaintiff’s complaint.” (Pl.’s Mot. for Summ. J. and
Pl.’s Memo. in Opp’n to Mot. for Summ. J. 1.) The Court denies this motion. First, the Court is
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unclear as to the nature of the “declaratory judgment and injunctive relief portions” of Plaintiff’s
Amended Complaint, as a review of the Amended Complaint does not reveal any requests for
equitable relief. Second, Plaintiff provides little substance in support of her motion, solely
contending that she is “entitled to judgment as a matter of law” because “[n]o genuine issue as to
any material fact that is relevant to Plaintiff’s motion exists.” (Id.) Finally, as outlined above, the
Court finds that Plaintiff is unable to demonstrate prima facie cases of disparate treatment and
retaliation under Title VII.
VI.
Conclusion
For the reasons outlined herein, the Court GRANTS Defendant Kistler and Koch’s Motion
to Dismiss (Doc. 33) and Riverside’s Motion for Summary Judgment (Doc. 38). Plaintiff’s Motion
for Summary Judgment (Doc. 47) is DENIED. Separate Judgments in favor of Defendants will be
entered.
SO ORDERED this 20th day of April, 2011.
___________________________________
TERENCE C. KERN
UNITED STATES DISTRICT JUDGE
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