Blackburn et al v. State of Washington Department of Social and Health Services et al
Filing
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ORDER granting 94 Defendants' Motion for Summary Judgment; denying 109 Plaintiffs' collective Motion for Partial Summary Judgment; denying 113 Plaingiff Dau's Motion for Partial Summary Judgment. Signed by Judge Ronald B. Leighton.(DN)
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HONORABLE RONALD B. LEIGHTON
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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PATRICIA BLACKBURN, DAVID
CARPENTER, JACOB DAU, DENNIS
FANT, BONIFACIO FORNILLOS,
AKANELE IMO, JOSE LOPEZ, RALPH
PETERSON, MATTHEW STALEY,
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Plaintiff,
v.
CASE NO. C11-5385 RBL
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (DKT. 94)
AND DENYING PLAINTIFFS’
MOTIONS FOR PARTIAL
SUMMARY JUDGMENT (DKT. 109
& DKT. 113)
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STATE OF WASHINGTON
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, WESTERN
STATE HOSPITAL, DALE
THOMPSON, MARY LOUISE JONES,
LILA ROOKS, KELLY SAATCHI,
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Defendant.
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This matter comes before the Court upon Defendants’ Motion for Summary Judgment
(Dkt. # 94), Plaintiffs’ collective Motion for Partial Summary Judgment (Dkt. # 109), and
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Plaintiff Jacob Dau’s separate Motion for Partial Summary Judgment (Dkt. # 113). Western
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State Hospital (“WSH”) is a State-run psychiatric hospital in Lakewood, Washington. WSH
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provides inpatient treatment for individuals who suffer from serious long-term mental illness.
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The Plaintiffs are a group of nurses and Psychiatric Security Attendants (“PSA”) who have
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ORDER
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worked at WSH. The group of Plaintiffs includes Caucasians, African-Americans, and members
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of other racial groups. This dispute arises out of administrative decisions related to the care of
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M.P., a WSH patient who threatened to kill Marley Mann, an African-American PSA. Neither
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M.P. nor Mann is a party to this litigation. Plaintiffs allege that Defendants adopted a
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discriminatory staffing directive that restricted darker-skinned PSAs from working with M.P.
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and consequently required the white PSAs to work with M.P. more frequently. Plaintiffs have
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alleged violations of Title VII, the 14th Amendment, and a number of statutes. They seek a
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permanent injunction and monetary damages. For the reasons state below, Defendants’ motion
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is GRANTED and Plaintiffs’ motions are DENIED.
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I.
BACKGROUND
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M.P. is one of WSH’s most dangerous patients. He has been a patient at WSH since
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2004 and is housed in ward F-8. Ward F-8 exclusively houses male patients who have been
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found not guilty by reason of insanity. Since becoming a patient at WSH, M.P. has assaulted
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approximately 70 different people. At one point, he was kept either in restraints or in seclusion,
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nearly continuously, for over a year.
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On September 24, 2009, Jacob Dau, a black PSA from Sudan, had been “pulled” from his
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normal assignment in a different ward to help with M.P. While Dau and other PSAs were
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helping M.P. take a shower, another PSA, Leon Kimmerling, told M.P. that “they eat white
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people in Africa,” and then chomped his teeth together. WSH promptly investigated the incident
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and concluded that Kimmerling had made inappropriate racial comments to a co-worker in the
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presence of a patient. As punishment, WSH issued Kimmerling a written reprimand. He was
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not reinstated in his normal position in ward F-8 until after a different investigation into his
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conduct on a separate matter concluded in October of 2010. Dau has not had any issues while
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working with M.P. and has not been forced work with Kimmerling since the incident.
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A second, unrelated series of events forms the basis for the majority of Plaintiffs’ claims.
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In late March of 2011, M.P. stopped taking his prescribed anti-psychotic medications. He
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became delusional and started to fixate on Marley Mann, one of the two PSAs regularly assigned
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to monitor him during the swing-shift. On the evening of March 24, 2011, M.P. accused Mann
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of poisoning his coffee and then threw his coffee at Mann. Later that night, M.P. again accused
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Mann of tampering with his coffee. While complaining to a nurse, M.P. directed a number of
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racial threats at Mann, who is black, including threats to kill him. After asking M.P. if another
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staff member would be safe monitoring him, the nurse reassigned a non-black PSA to monitor
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M.P. in Mann’s place.
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One of the day-shift staff members reported M.P.’s violent fixation with Mann to Dr.
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Mary Louise Jones, the Clinical Operations Director at WSH. Dr. Jones in turn discussed the
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matter with RN3 nurses Lila Rooks and Kelly Saatchi. RN3 nurses are in charge of making staff
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assignments. Dr. Jones asked Rooks and Saatchi to make sure that the staff members were safe.
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Although M.P. had only threatened Mann, Rooks and Saatchi mistakenly thought that M.P. had
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threatened all black staff members. Accordingly, they decided to restrict all black or dark20
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skinned PSAs from working with M.P. until his delusions subsided.
Plaintiffs contend that WSH issued a race-based staffing directive on Tuesday, March 29,
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2011. Defendants claim that the directive was not issued until Friday, April 2, 2011. It is
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undisputed, however, that on Friday, April 2, someone wrote “NO BLACKS TO F8” on the
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white board in the RN3 office. The next day, an RN3 instructed Polly Blackburn (an RN2
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charge nurse for ward F-5) to send three PSAs to different wards, including one to F-8. In
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accordance with the staffing directive, the RN3 told Blackburn that the PSA sent to F-8 had to be
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white. Blackburn objected and refused to comply with the order.
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On Tuesday, April 5, 2011, Blackburn filed an Administrative Report of Incidents
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(“AROI”). In the AROI, Blackburn complained that the staffing-directive was discriminatory
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and illegal. The next day, Blackburn met with Saatchi and another RN3 to discuss the AROI.
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Blackburn claims that Saatchi angrily told her “you should not have put this on an AROI, you
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should not have done this,” “there is not going to be any investigation, there is nothing here but
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opinion, not fact,” and “do you really want this in your file? This is going to look really bad in
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your file.” Blackburn claims that the other RN3 also told her that she should have waited before
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filing a complaint. Saatchi and the other RN3 dispute that they were verbally aggressive towards
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Blackburn. They claim that they just told Blackburn that an AROI was not the appropriate
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method for filing this type of complaint.
On May 19, 2011, the Department of Justice issued all of the Plaintiffs right to sue letters.
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Plaintiffs filed their Complaint with this Court that same day. Plaintiffs allege that Defendants
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violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, the 14th Amendment, the 1st
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Amendment, 42 U.S.C. § 1981, 42 U.S.C. § 1985(3), and 42 U.S.C. § 1986. Plaintiffs’
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Complaint also alleged violations of the Washington Law Against Discrimination, but they have
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voluntarily dismissed those claims without prejudice. This Court denied Plaintiffs’ motion for a
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preliminary injunction on August 12, 2011. Defendants filed their motion for summary
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judgment on July 25, 2013. On July 29, 2013, Plaintiffs collectively filed a cross-motion for
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partial summary judgment and Dau filed a separate motion for partial summary judgment on his
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hostile work environment claim.
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II.
DISCUSSION
Summary judgment is appropriate when, viewing the facts in the light most favorable to
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the nonmoving party, there is no genuine issue of material fact which would preclude summary
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judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to
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summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to
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interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for
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trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986).
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“The mere existence of a scintilla of evidence in support of the non-moving party's position is
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not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995).
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Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the
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consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, “summary judgment should
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be granted where the nonmoving party fails to offer evidence from which a reasonable [fact
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finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 1220.
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A.
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Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against
Title VII Discrimination Claims
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any individual based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). To
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prevail on a Title VII claim, the plaintiff must first establish a prima facie case of discrimination.
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Vasquez v. Co. of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2004). If the plaintiff is able to
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establish a prima facie case, then the burden shifts to the defendant to articulate a legitimate,
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non-discriminatory reason for its allegedly discriminatory conduct. Id. If the defendant is able
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to do so, then the burden shifts back to the plaintiff to show that the defendant’s reason is mere
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pretext for discrimination. Id. At all times, the plaintiff bears the ultimate burden of proving that
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the defendant intentionally discriminated against him or her. Texas Dept. of Community Affairs
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v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089 (1981).
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A plaintiff may establish a prima facie case through direct or circumstantial evidence of
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discriminatory intent, or through the framework established in McDonnell Douglas Corp. v.
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Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). “Direct evidence is evidence which, if believed,
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proves the fact [of discriminatory animus] without inference or presumption.” Aragon v.
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Republic Silver St. Disposal, Inc., 292 F.3d 654, 662 (9th Cir. 2002) (citing Godwin v. Hunt
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Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.) (internal quotations omitted) (alterations in
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original)).
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Plaintiffs argue that WSH’s decision to restrict black employees from working with M.P.
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constitutes direct evidence of discriminatory intent because the directive explicitly called for
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race-based staffing assignments. On its face, the staffing directive distinguished between WSH’s
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black employees and its other employees. It is not clear from the terms of the directive alone,
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however, whether WSH issued the directive with the intent to treat its black employees less
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favorably than other employees or if it was issued for more innocuous reasons. Plaintiffs
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therefore have not offered any direct evidence that Defendants acted with discriminatory intent.
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Because Plaintiffs have not offered direct evidence of discriminatory intent, they must establish
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their case through the McDonnell Douglas framework or through other circumstantial evidence.
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To establish a prima facie case under the McDonnell Douglas framework, Plaintiffs must
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show that (1) they belong to a protected class; (2) they were qualified for their positions; (3) they
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were subject to an adverse employment action; and (4) similarly situated individuals outside the
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protected class were treated more favorably. Chuang v. U. of Cal. Davis, Bd. of Trustees, 225
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F.3d 1115, 1121 (9th Cir. 2000). Plaintiffs are unable to establish a prima facie case under this
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framework because they cannot show that they suffered an adverse employment action. An
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adverse employment action is a significant change in employment status, such as discharge,
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demotion, or undesirable reassignment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765,
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118 S. Ct. 2257, 2270 (1998). The only change in employment status that Plaintiffs claim to
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have suffered is not being assigned to work with M.P. Not having to work with a violent, racist
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patient is not an adverse employment action. In short, Plaintiffs cannot prove that they were
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treated less favorably than other employees under the staffing directive.
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Even if the Court assumes that Plaintiffs have established a prima facie case of
discrimination through circumstantial evidence, Defendants have articulated a legitimate, non-
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discriminatory reason for the staffing directive. Defendants maintain that they issued the race12
based staffing directive due to safety concerns. Specifically, given M.P.’s violent disposition
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and recently-made racist comments, Defendants claim that they believed M.P. posed a serious
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risk to all black PSAs. When considering a defendant’s non-discriminatory reason for its actions
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it is not important whether the employer’s justification is objectively false. Villiarimo v. Aloha
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Is. Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). What is important is whether the employer
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“honestly believed its reason for its actions.” Id. It therefore does not matter that M.P.’s racist
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and threatening comments were directed at a specific employee and not at all black employees.
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What is important is that the WSH managers who made the decision to restrict black staff
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members from working with M.P. did so because they believed that ignoring the perceived
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threats would unnecessarily place the staff in danger.
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Because Defendants have articulated a non-discriminatory reason for their actions,
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Plaintiffs must show that Defendants’ justification is pretextual. “[A] plaintiff can prove pretext
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in two ways: (1) indirectly, by showing that the employer's proffered explanation is ‘unworthy of
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credence’ because it is internally inconsistent or otherwise not believable, or (2) directly, by
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showing that unlawful discrimination more likely motivated the employer.” Chuang, 225 F.3d at
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1127 (citing Godwin, 150 F.3d at 1220–22).
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As discussed above, Plaintiffs have not offered any direct evidence to suggest that WSH
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intended to discriminate against any of its employees. To show pretext by circumstantial
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evidence, Plaintiffs must point to specific and substantial evidence that calls WSH’s motives into
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question. Vasquez, 349 F.3d at 642. Plaintiffs have contended that WSH instituted the race-
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based staffing directive not out of legitimate safety concerns, but rather to appease M.P. To
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support their contention, Plaintiffs point to the March 24, 2011 incident when an RN3 asked
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M.P. if he would like a different PSA to be assigned to him and then accommodated his request.
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This evidence is not inconsistent with WSH’s tendered non-discriminatory reason, however. The
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nurse who reassigned the staff testified that she did so because she was concerned for Mann’s
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safety. Further, Plaintiffs’ evidence in no way suggests that Defendants actions had any
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discriminatory intent. In sum, Plaintiffs are unable to show that they were treated less favorably
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than other individuals because of their race and that WSH intended to discriminate them in any
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way. Plaintiffs’ Title VII discrimination claims fail as a matter of law.
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B.
Equal Protection Claims
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A plaintiff asserting a § 1983 claim alleging a violation of equal protection must prove
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that the defendant acted in a discriminatory manner and that the discrimination was intentional.
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Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 472 (9th Cir. 1991). As discussed above,
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there are no facts that could lead a reasonable fact finder to conclude that Defendants issued the
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challenged staffing directive with the requisite discriminatory intent. Plaintiffs’ equal protection
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claims fail as a matter of law.
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C.
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A plaintiff asserting a claim under 42 U.S.C. § 1985 or 42 U.S.C. § 1986 must prove that
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Conspiracy Claims
there was “discriminatory animus” behind the alleged conspirators’ actions. Griffin v.
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Breckenridge, 403 U.S. 88, 91, S. Ct. 1790 (1971). Like Plaintiffs’ Title VII claims, their §§
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1985 and 1986 conspiracy claims fail as a matter of law because there is no evidence that the
Defendants acted with discriminatory intent.
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D.
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To establish a prima facie case of retaliation, plaintiffs must show that (1) they were
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Retaliation Claims
engaged in a protected activity; (2) they suffered a materially adverse action; and (3) that there is
a causal link between the two. Villiarimo, 281 F. 3d at 1064. In this context, a materially
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adverse action is any action that “well might have dissuaded a reasonable worker from making or
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supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
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68, 126 S. Ct. 2405, 2415 (2006).
Blackburn argues that Saatchi retaliated against her for filing an AROI by yelling at her
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and threatening her. Citing Dahlia v. Rodriguez, 2013 WL 4437594, (9th Cir. 2013), Blackburn
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contends that minor threats can constitute a materially adverse action, even if they are not
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actually followed through with. In Dahlia, the district court dismissed the plaintiff’s 42 U.S.C. §
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1983 First Amendment retaliation claim under Fed. R. Civ. P. 12(b)(6) for, among other things,
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failing to allege a materially adverse action. The 9th Circuit reversed and held that being placed
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on administrative leave and even minor acts of retaliation, including threats, can infringe upon an
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employee’s First Amendment rights. The plaintiff, who was a police detective, reported his
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fellow officers for their misconduct during a robbery investigation. He alleged that one of the
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officers that he reported called him into his office, closed the door and blinds, took out his gun,
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looked at it, and then placed it in his desk drawer. The officer then told the plaintiff, “Fuck with
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me and I will put a case on you, and put you in jail. I put all kinds of people in jail, especially
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anyone who fucks with me!”
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Even when the evidence is viewed in the light most favorable to Blackburn, the
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retaliation that she complains of does not compare to the retaliation in Dahlia. Unlike being told
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by a police officer who just displayed his gun that he would “put a case on you” and “put you in
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jail,” being told that “this is going to look really bad in your file” is not likely to dissuade a
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reasonable employee from reporting perceived discrimination. Blackburn has cited no authority
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suggesting otherwise.
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E.
Dau’s Hostile Work Environment Claim
To prevail on a Title VII hostile work environment claim, a plaintiff must show: (1) that
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he was subjected to verbal or physical conduct of a racial or sexual nature; (2) that the conduct
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was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the
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plaintiff’s employment conditions and create an abusive environment. Vasquez, 349 F.3d at 642.
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The work environment must be both subjectively and objectively hostile. McGinest v. GTE Serv.
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Corp., 360 F.3d 1103, 113 (9th Cir. 2004). Factors to consider when evaluating whether the
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work environment was objectively hostile include the “frequency of the discriminatory conduct;
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its severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
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and whether it unreasonably interferes with an employee's work performance.” Nichols v. Azteca
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Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001).
As a matter of law, Kimmerling’s conduct was not severe or pervasive enough to
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constitute a hostile work environment. The conduct that Dau claims created the hostile work
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environment was a single, isolated event. Dau was not physically threatened and was not
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subsequently forced to work anywhere near Kimmerling. Moreover, WSH promptly
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investigated the matter and punished Kimmerling for his conduct. Kimmerling’s remarks may
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have been offensive, possibly humiliating, and certainly distasteful, but Dau was not subjected to
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an objectively hostile work environment.
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III.
CONCLUSION
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Plaintiffs have failed to establish that they were treated less favorably than other
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employees because of a protected trait and that Defendants acted with any discriminatory intent.
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In other words, Plaintiffs have failed to establish that they were discriminated against. Plaintiffs
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have also failed to establish that they were retaliated against for reporting the perceived
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discrimination or for filing this lawsuit. Therefore, Plaintiffs’ motions for partial summary
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judgment are DENIED and Defendants’ motion for summary judgment is GRANTED.
Dated this 25th day of September, 2013.
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A
RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE
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