Lavery-Petrash v. Sierra Nev. Mem'l Hosp.

NORA LAVERY-PETRASH, Plaintiff, v. SIERRA NEVADA MEMORIAL HOSPITAL, et al., Defendants.

No. 2:11-cv-1520 GEB DAD PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

June 11, 2015

FINDINGS AND RECOMMENDATIONS

This matter came before the court on March 20, 2015, for hearing of defendant Dignity Health's (formerly known as Catholic Healthcare West and erroneously sued as Sierra Nevada Memorial Hospital) motion for summary judgment. Plaintiff Nora Lavery-Petrash appeared at the hearing on her own behalf. Attorney David Burkett appeared on behalf of the defendant.

Upon consideration of the arguments on file and at the hearing, and for the reasons set forth below, the undersigned will recommend that defendant's motion for summary judgment be granted.

BACKGROUND

Plaintiff, then proceeding through counsel, commenced this action on March 2, 2011, by filing a complaint in the Nevada County Superior Court. (Dkt. No. 1-2 at 1.)¹ Plaintiff's original complaint alleged four cause of action, including one for violation of Title VII of the Civil Rights Act of 1964. On June 6, 2011, defendants Dignity Health, James Heard, David Witthaus, Arthur Dewson and Annalise O'Connor removed the action to this court. (Dkt. No. 1 at 1-2.)

On June 10, 2011, defendants filed a motion to dismiss. (Dkt. No. 8.) The assigned District Judge granted defendants' motion on December 12, 2011, dismissed plaintiff's original complaint and granted plaintiff leave to file an amended complaint. (Dkt. No. 23.) Plaintiff filed her amended complaint on December 25, 2011. (Dkt. No. 24.)

On January 12, 2012, defendants filed a motion to dismiss the amended complaint. (Dkt. No. 27.) On March 26, 2012, the assigned District Judge granted in part and denied in part defendants' motion to dismiss and granted plaintiff leave to file a second amended complaint. (Dkt. No. 37.) Plaintiff filed her second amended complaint on April 5, 2012. (Dkt. No. 39.)

On April 23, 2012, defendants filed a motion to dismiss plaintiff's second amended complaint. (Dkt. No. 40.) The assigned District Judge granted defendants' motion to dismiss the second amended complaint on September 5, 2012, and granted plaintiff leave to file a third amended complaint. (Dkt. No. 50.) Plaintiff filed her third amended complaint on September 16, 2012. (Dkt. No. 52.)

On October 3, 2012, defendants filed a motion to dismiss plaintiff's third amended complaint. (Dkt. No. 54.) On May 28, 2013, the assigned District Judge dismissed the third amend complaint's causes of action alleging age-based employment discrimination, hostile work environment harassment, retaliation and negligence, but granted plaintiff leave to file a fourth amended complaint.² (Dkt. No. 58.) That same day the assigned District Judge issued an orderfinding that plaintiff was no longer represented by counsel eligible to practice in this court, deeming plaintiff to be proceeding in this action in propria persona and referring the matter to the undersigned Magistrate Judge pursuant to Local Rule 302(c)(21.) (Dkt. No. 59.)

On June 12, 2013, plaintiff, now proceeding pro se, filed a fourth amended complaint. (Dkt. No. 64.) Therein, plaintiff alleges generally that while employed by defendant Dignity Health she experienced discrimination, harassment and retaliation, in part because of her sex and age. On July 1, 2013, defendants again filed a motion to dismiss.³ (Dkt. No. 67.) On January 29, 2014, the undersigned issued findings and recommendations, recommending that the individual defendants be dismissed from this action and that the motion to dismiss be granted as to the fourth amended complaint's hostile work environment and negligence claims, but denied as to plaintiff's claims of age-based discrimination and retaliation. (Dkt. No. 73.) Those findings and recommendations were adopted in full by the assigned District Judge on March 17, 2014. (Dkt. No. 75.)

Defendant Dignity Health, ("defendant"), filed an answer on April 7, 2014. (Dkt. No. 76.) On February 13, 2015, defendant filed the pending motion for summary judgment. (Dkt. No. 85.) Plaintiff filed her opposition on March 4, 2015. (Dkt. No. 88.) Defendant filed a reply on March 13, 2015. (Dkt. No. 90.)

LEGAL STANDARDS

Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record,including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.). See also FED. R. CIV. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment . . . is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See FED. R. CIV. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (citations omitted).

"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

In assessing a motion for summary judgment brought in the context of an employment discrimination action such as this one, it is important to recognize that "California has adopted the three-stage burden-shifting test established by the United States Supreme Court [in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)] for trying claims of discrimination . . . ." Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354 (2000).

Under the three-part McDonnell Douglas test, the plaintiff bears the initial burden of establishing a prima facie case of employment discrimination. Once the plaintiff has done so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. If the employer articulates a legitimate reason, the plaintiff must raise a triable issue that the employer's proffered reason is pretext for unlawful discrimination. The ultimate burden of persuasion remains with the plaintiff.

Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011) (citation omitted).

However, when the defendant employer has moved for summary judgment "the burden is reversed . . . because the defendant who seeks summary judgment bears the initial burden." Lawler v. Mountblanc North...