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Jacqueline Curry v. Kaiser Foundation Hospitals; Cna (California Nurses Association

February 26, 2013



This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). The Permanente Medical Group, Inc. ("TPMG") now moves for summary judgment. Dckt. No. 57. For the reasons stated herein, the undersigned recommends that the motion be granted.


Plaintiff's second amended complaint, which is the operative pleading in this action, alleges two claims against TPMG: (1) wrongful termination in violation of public policy, and (2) racial discrimination in violation of Title VII.*fn1 2d Am. Compl. ("SAC"), Dckt. No. 35.

TPMG now moves for summary judgment on both of those claims. Dckt. No. 57. Plaintiff opposes the motion. Dckt. No. 58.


A. Summary Judgment Standard

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).

Summary judgment avoids unnecessary trials in cases with no genuinely disputed material facts. See N. W. Motorcycle Ass'n v. U .S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, Rule 56 serves to screen the latter cases from those which actually require resolution of genuine disputes over material facts; e.g., issues that can only be determined through presentation of testimony at trial such as the credibility of conflicting testimony over facts that make a difference in the outcome. Celotex, 477 U.S. at 323.

If the moving party meets its initial responsibility, the opposing party must 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). To overcome summary judgment, the opposing party must demonstrate a factual dispute that is both material, i.e. it affects the outcome of the claim under the governing law, see Anderson, 477 U.S. at 248; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and 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 attempting to establish the existence of a factual dispute that is genuine, 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(e); Matsushita, 475 U.S. at 586 n. 11.

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and 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).

B. Plaintiff's Allegations Against TPMG

Plaintiff's second amended complaint alleges that she was terminated by TPMG for not passing a math test pursuant to a math policy. She alleges that she was treated differently in that regard because of her race. Id. ¶ 4. She claims that the policy discriminated against her on the basis that other similarly situated white employees were not subjected to the same treatment of testing that she was. 2d Am. Compl., Dckt. No. 35, ¶ 3. Plaintiff contends that white nurses who do the same work as plaintiff were offered remediation, as provided in the math policy contract, but that plaintiff, who is African American, was not offered such remediation. Id. Plaintiff also contends that she was segregated and treated differently on the day that she took the math test. Id. She contends that medical assistants were not subject to the math policy and therefore were treated differently than plaintiff for no genuine, legitimate reason. Id. ¶¶ 5-6. Plaintiff also alleges that the math policy requirement and practices "are a sham," are not a business necessity, and are used for discriminatory purposes. Id. ¶ 7.1. She alleges that testing was used for the purpose of budget cutting and decreasing minority positions. Id. Plaintiff contends that she was not given a warning that not passing a math test would be grounds for termination and therefore the TPMG did not follow its policies, practices, and procedures in their employment handbook and in the TPMG agreement with the union contract. Id. ¶ 7.3. She also contends that the math policy statement was given to her after she was terminated and that she had no knowledge of the policy during her employment with TPMG. Id.

C. Undisputed Facts

In 2002, plaintiff, who is an African American female, accepted a position as a registered nurse with TPMG. Dckt. No. 57-2, TPMG Stmt. of Undisp. Facts ("SUF") 1, 2.*fn2 In 2008, TPMG enacted the "Medication Math Testing for RNs and LVNs" policy (the "Math Policy"). SUF 3. The Math Policy required those employees who administer or verify medications to annually complete and pass a math test, with a score of at least 90 percent. Id. A person who fails to achieve a passing score after three attempts would be terminated. Id.

In the last week of November 2008, plaintiff was informed of the testing requirement of the Math Policy and she received a study packet from Marsha Thompson ("Thompson"). Id. ¶ 4. Plaintiff attempted the math test on December 8, 2008 but failed to achieve a passing score. Id. ¶¶ 5-6. After grading the exam, Thompson briefly reviewed the test with ...

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