MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT AND TO STRIKE
Plaintiff Beth A. Rhodes brought this action against Sutter Health, Sutter Gould Medical Foundation ("SGMF"), and The Gould Medical Group, Inc. ("GMG") alleging unlawful retaliation, constructive discharge, gender harassment, gender discrimination, failure to prevent discrimination, violation of California Business and Professions Code section 2056, defamation, and intentional infliction of emotional distress ("IIED").
Presently before the court is SGMF's motion for summary judgment on plaintiff's eleventh cause of action for IIED pursuant to Federal Rule of Civil Procedure 56. Also before the court is SGMF's renewed motion to strike pursuant to Rule 56(c)(4). For the complete factual background of this action, see the court's February 1, 2013, Order. (Docket No. 112.) The court recounts here only those facts relevant to plaintiff's remaining claim for IIED.
After plaintiff, a radiologist employed by GMG and working alongside SGMF staff, received a letter from the chairman of her department stating that she had acted unprofessionally in a meeting and that any further unprofessional behavior would be grounds for termination, several incidents involving plaintiff and SGMF staff transpired.*fn1 First, a nurse eavesdropped on plaintiff and a patient. (Purtill Decl. Ex. C ("Edge Dep.") at 298:3-15 (Docket Nos. 85-3-86-1); Ex. 53 to Edge Dep. at Sealed 28-30 (Docket No. 82).) Second, nurse Kathy Davis allegedly purposefully harmed a patient by failing to hold pressure at a breast biopsy site for fifteen minutes. (Rhodes Decl. ¶¶ 2-3 (Docket No. 84).) Davis also allegedly changed the pain scale score that the same patient had reported from "zero" to "one." (Id. ¶ 2.)
Third, technician Carolyn Plante allegedly intentionally performed a "Crown-Rump Length Measurement" incorrectly. (Id. ¶ 6.) Plaintiff alleges that Plante and Davis did these things so that plaintiff would have an inappropriate outburst in response and be fired. (Id. ¶¶ 2, 6.) As a result of these incidents, plaintiff felt anger, outrage, anxiety, and humiliation. (Id. ¶¶ 2, 7.) She internalized those feelings and alleges that they were a substantial factor in causing her to go on medical disability on or about December 16, 2010. (Id. ¶¶ 4, 8.)
Roberta Edge is the SGMF Director of Imaging. (Edge Dep. 21:15-16.) She supervises both Davis and Plante and was made aware of the two incidents involving those employees and plaintiff. (Id. at 239:1-17, 326:9-327:25.)
On February 1, 2013, the court granted summary judgment in SGMF's favor as to plaintiff's claims for gender harassment in violation of the California Fair Employment and Housing Act ("FEHA"), sex discrimination in violation of FEHA, retaliation in violation of FEHA, failure to prevent discrimination in violation of FEHA, and constructive discharge in violation of public policy. (Feb. 1 Order at 25 (Docket No. 112).) It declined to rule on SGMF's motion as to plaintiff's eleventh claim for IIED until SGMF had the opportunity to depose Carol Frazier and file an amended reply, if it chose to do so. (Id. at 25-26.) SGMF has now deposed Frazier and filed its amended reply, (Docket No. 118), along with a renewed motion to strike Frazier's declaration, (Docket No. 120). The court now considers SGMF's motion for summary judgment as to plaintiff's eleventh claim and its renewed motion to strike.
SGMF renews its motion to strike the declaration of Carol Frazier, (Docket No. 120), submitted by plaintiff in support of her opposition to SGMF's motion for summary judgment. SGMF argues that Frazier's deposition testimony revealed that she does not have personal knowledge of, and is not competent to testify about, most of the statements in her declaration. Rule 56(c)(4) provides that a "declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the . . . declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Federal Rule of Evidence 602 provides that "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."
Neither rule gives reason to strike Frazier's declaration. Frazier states in her declaration that she observed Davis applying pressure to patient S.G.'s biopsy site. (Frazier Decl. at ¶¶ 5-8.) Thus, she has personal knowledge of and is competent to testify as to the incident. See Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) ("[P]ersonal knowledge and competence to testify are reasonably inferred from [the declarants'] positions and the nature of their participation in the matters to which they swore."). Any evidence of a failing memory marked by her recent deposition goes to the weight to be accorded her testimony at trial and is not grounds for striking the declaration. See Fresenius Med. Care Holdings, Inc. v. Baxter Int'l, Inc., Civ. No. 03-1431 SBA, 2006 WL 1330000, at *6 n.6 (N.D. Cal. May 15, 2006) ("'Variations in a witness' testimony and any failure of memory through the course of discovery create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all . . . [such] [i]ssues . . . are questions of fact which require resolution by the trier of fact.'" (quoting Tippens v. Celotex Corp, 805 F.2d 949, 953-54 (11th Cir. 1986))). Accordingly, SGMF's motion must be denied.
III. Motion for Summary Judgment Summary judgment is proper "if the movant 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). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial.
Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury ...