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March 28, 2003


The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge


Defendant Washington Township Health Care District moves for summary judgment on plaintiff Nina Salter's employment discrimination claims, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, and California's Fair Employment and Housing Act (FEHA), Cal Govt Code § 12940 et seq. See Doc #58. Salter opposes this motion. See Doc #66. For the reasons set forth below, the court GRANTS defendant's motion for summary judgment on all claims (Doc #58).


The following factual background comes from the parties' submissions and is undisputed unless otherwise noted. Salter began working as a unit clerk for Washington Township Hospital in August 1998. Salter Depo (Doc #62, Exh A) at 117:16-19. During the relevant time period, Salter worked as head clerk. Id. Her duties included answering the telephone, keeping the patient log up to date, assisting the physicians and other clerical duties. Id. Salter alleges that throughout her employment, she was subjected to a hostile work environment. At her deposition, Salter described "an incident" in the emergency room (ER) when an emergency medical technician (EMT) stated that Salter's work area "stank" and "came into work holding his nose when he passed my desk." Salter Depo (Doc #62, Exh A), at 276:4-7. Salter also stated that, on one occasion, a doctor said to her that he "couldn't understand how the New Guinea people were as dark as" she was. Id. at 290:2-4. Salter has also put forward an incident in which another doctor allegedly made horse-like "neighing" sounds to a group of Caucasian nurses immediately after telling Salter that he liked her hair extensions. Id. at 299:3-8. Moreover, Salter contends that, on one occasion, when she brought her daughter to the ER for treatment, they were forced to wait 25 minutes before her daughter was registered, but that Caucasian employees' family members were always "taken right back." Id. at 297:8-298:4.

On August 13, 1999, Salter injured her neck at work while lifting a box of charts to compile an end-of-the-month report that had been requested by a supervisor. Id. at 240:13-20. Salter subsequently filed a worker's compensation claim and was off work for approximately two and a half months. Id. at 241:8-13.

After Salter's return to work, another unit clerk, Ann Hunter, brought a lawsuit against Washington Hospital in January, 2000, Case No C-00-0071-VRW, which was also assigned to the undersigned. See Salter Depo (Doc #62, Exh A), at 54:15-56:20. At some point between January and April 2000, Salter was asked to testify on behalf of the hospital in the Hunter lawsuit. Id. at 55:11-20. Salter ultimately declined the hospital's invitation and alleges that shortly thereafter, as a result of her refusal, defendant retaliated against her by (1) transferring the only other African-American unit clerk to another area, thereby isolating Salter; (2) refusing to provide shift assistance or other relief so she could take her breaks; (3) requiring Salter to work in areas away from the clerk desk and (4) assigning additional work responsibilities including the compilation of a monthly statistical report, a task which required Salter to lift boxes of charts to complete the report even though defendant knew she had injured herself performing that same activity in August 1999. Id. at 74:23-82:24.

On April 17, 2000, Salter filed an EEOC claim against defendant. Def Mem (Doc #58) at 7. Eleven days later, Salter re-injured herself while lifting charts out of a box to prepare the end-of-the-month report and filed another worker's compensation claim. Id. Salter has not returned to work at Washington Hospital since April 28, 2000. Id. at 7-8.


In reviewing a summary judgment motion, the court must determine whether there are genuine disputed issues of material fact, resolving any doubt in favor of the party opposing the motion. The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986). If the nonmoving party would bear the burden of proof at trial, the moving party may meet its burden by pointing out — not by a conclusory statement but by demonstration — the absence of evidence to support the nonmoving party's case. Id. at 325-26. When a motion for summary judgment is made and supported, the nonmoving party may not rest upon the mere allegations or denials of the nonmoving party's pleading, but the nonmoving party's response must set forth specific facts showing that there is a genuine issue for trial. FRCP 56(e). Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).


As a preliminary matter, the court considers each party's evidentiary objections. See Pl Obj (Doc #70); Def Obj (Doc #75). Salter objects to several pieces of evidence as "false and misleading", but whether a declaration, from the opposing party's view, misstates facts pertains to the weight and credibility to be afforded and is not a proper basis to exclude it from evidence. In the context of the instant motion, Salter has been afforded the opportunity to submit her own evidence to the contrary. Salter also makes several objections to based on the "best evidence rule," but that rule is applicable only to the contents of a writing. See FRE 1001-08. The portions of the declaration Salter finds objectionable, however, do not purport to describe the contents of a written document. Thus, these objections are OVERRULED as well.

Salter objects to the entirety of the declaration of Tommye Farley because it fails to disclose that she supervised Salter. But Farley states, in the very first paragraph of her declarations that she "was the manager of the Emergency Department of Washington Hospital" during the time in question and, "in that capacity, [she] supervised the unit clerks * * *." Farley Decl (Doc #60), ¶ 1. Furthermore, Farley states that "[b]y virtue of [her] employment at Washington Hospital, [her] position * * *, and [her] personal involvement in the facts and circumstances of this case," she could testify concerning the contents of her declaration * * * based on her personal knowledge thereof. Id. Hence, Farley has laid a sufficient foundation for her declaration; Salter's objection thereto is OVERRULED.

In addition, Salter objects to portions of defendant's memorandum of points and authorities. Legal memoranda, however, do not constitute evidence; hence, they are not the proper subjects of evidentiary objections. See FRCP 56; Civil LR 7-5. These objections are OVERRULED.

Salter contends that the court may not consider the excerpts of the deposition transcripts attached to the declaration of one of defendant's attorneys, Jonathan Martin, because he was not present at the deposition in question. "A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent." Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir 2002). The deposition excerpts in question identifies both the names of deponent and the instant case, and includes the reporter's certification. See Martin Decl (Doc #62), Exh A. Salter's objection is accordingly OVERRULED.

Salter also objects to attachments to the Martin declaration purporting to be exhibits used during Salter's deposition. See id, Exh B. These attachments include a letter purportedly written by Salter and documents from Salter's EEOC claim. The accompanying declaration, however, merely asserts conclusorily that these attachments were exhibits used during Salter's deposition, for which declarant was not present. It does not supply any other basis for foundation or authentication. Because these attachments have not been properly authenticated, the court SUSTAINS this objection and does not consider these attachments. See Orr, 285 F.3d at 777-78.

Defendant also makes numerous objections to Salter's evidentiary submissions. See Def Obj (Doc #75). The court, however, DENIES them as moot because even if the court admits the evidence in question, summary judgment in favor of defendant is nevertheless warranted.

Having addressed the parties' evidentiary objections, the court considers the merits ...

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