United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT RE: DKT. NO. 70
HAYWOOD S. GILLIAM, JR. United States District Judge.
before the Court is Defendant John Muir Health’s motion
for summary judgment. Dkt. No. 70 (“Motion”). For
the reasons articulated below, the Motion is DENIED.
John Muir Health (“JMH”) employed Plaintiffs
Marlene Perez and Rosa Cerisano as nurses on its hospital
staff. Dkt. No. 87-5 (“Perez Decl.”) ¶ 2;
Dkt. No. 87 (“Cerisano Decl.”) ¶ 2. After
Plaintiffs provided information in a sexual harassment action
brought by Plaintiffs’ former co-worker, Ms. Charlotte
Reed, against a JMH supervisor, Mr. Charles Griffin (the
“Reed Action”), Plaintiffs resigned from JMH.
Perez Decl. ¶ 12; Cerisano Decl. ¶ 13.
April 21, 2015, Plaintiffs filed the current action against
Defendants JMH and John Muir Medical Center, alleging that
Defendants unlawfully retaliated against and constructively
terminated Plaintiffs for their participation in the Reed
Action. Dkt. No. 1 (“Compl.”). Plaintiffs allege
four claims against Defendants: (1) retaliation in violation
of Title VII; (2) retaliation in violation of
California’s Fair Employment and Housing Act
(“FEHA”); (3) constructive discharge in violation
of Title VII, FEHA, and common law; and (4) failure to
provide a workplace free of discrimination and retaliation.
Dkt. No. 60 (“FAC”). Cerisano also brings claims
for (5) disability discrimination in violation of the
Americans with Disabilities Act (“ADA”) and (6)
disability discrimination in violation of FEHA. Id.
Motion, JMH contends that the undisputed evidence establishes
that JMH did not subject Plaintiffs to intolerable working
conditions or adverse employment actions as a matter of law.
Mot. at 1. JMH further asserts that Plaintiffs cannot proffer
evidence that JMH took any alleged adverse employment actions
because of Plaintiffs’ participation in protected
activity or Cerisano’s disability. Id.
Accordingly, JMH moves for summary judgment as to all of
Plaintiffs’ claims or, in the alternative, requests
partial summary judgment. Id.
parties object to evidence submitted with the briefing on
JMH’s Motion. JMH objects to four categories of
evidence: (1) portions of Julie O’Brien’s
declaration; (2) excerpts from Camino Bell’s
deposition; (3) certain evidence related to the Reed Action;
and (4) Michael Robbins’s declaration. Dkt. No. 89
(“Reply”) at 3-4. On June 15, 2016, Plaintiffs
filed objections to “new evidence” submitted for
the first time with JMH’s Reply. Dkt. No. 90.
survive summary judgment, a party does not necessarily have
to produce evidence in a form that would be admissible at
trial, as long as the party satisfies the requirements of
Federal Rules of Civil Procedure 56.” Block v. City
of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001);
see also Chartis Specialty Ins. Co. v. Aqua Scis.
Engineers, Inc., No. 11-CV-03669-JST, 2013 WL 4647288,
at *3 (N.D. Cal. Aug. 29, 2013) (“The Court’s
focus at summary judgment is not on the form of the evidence
submitted, but on whether its content would be
admissible.”). Rule 56(c)(4) provides that “[a]n
affidavit or 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 affiant or
declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). Evidence is relevant if
“it has any tendency to make a fact more or less
probable than it would be without the evidence” and
“the fact is of consequence in determining the
action.” Fed.R.Evid. 401.
example, “hearsay evidence attached to an affidavit may
be considered at summary judgment if the out-of-court
declarant could present the evidence through direct,
admissible testimony at trial.” Chartis Specialty
Ins. Co., 2013 WL 4647288, at *3 (N.D. Cal. Aug. 29,
2013) (citing Fraser v. Goodale, 342 F.3d 1032, 1036
(9th Cir. 2003)). However, because “[a]uthentication is
a condition precedent to admissibility, ”
“unauthenticated documents cannot be considered in a
motion for summary judgment.” Orr v. Bank of Am.,
NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
Documents can be authenticated by any manner permitted by the
Federal Rules of Evidence, not just personal knowledge.
Id. at 774.
objects to paragraphs 8-13, 16-17, and 22-24 of the
O’Brien declaration and exhibits 1, 5, and 6 attached
thereto for lack of foundation, lack of personal knowledge,
speculation, hearsay, irrelevance, and lack of
authentication. Reply at 3. To the extent that the Court does
not rely upon the aforementioned evidence, the Court
OVERRULES JMH’s objections as moot.
the portions of Ms. O’Brien’s declaration that
the Court considers, the Court finds those portions to be
appropriately based on her own experiences and observations.
For example, Ms. O’Brien testifies “based on
[her] observations” and “[b]ased upon [her]
28-year employment at JMH and [her] experience as a
supervisor.” See Dkt. No. 86-1
(“O’Brien Decl.”) ¶¶ 12, 15.
Accordingly, the Court OVERRULES JMH’s objections for
lack of foundation and lack of personal knowledge.
Ms. O’Brien does not speculate but offers testimony
regarding her own reactions to and interpretations of
others’ actions. For example, she testifies about what
she saw, how actions “appeared to [her], ” and
what “[she] genuinely believed.” See Id
. ¶¶ 9-10, 12. The Court OVERRULES JMH’s
objections on the basis of speculation.
Court also holds that the O’Brien declaration meets the
low bar for relevancy under Federal Rule of Evidence 401 and
OVERRULES JMH’s relevance objection.
also objects to excerpts from the Bell deposition on grounds
of lack of foundation, lack of personal knowledge,
speculation, and hearsay. Reply at 3. Again, to the extent
that the Court does not rely upon the portions of the Bell
deposition to which JMH objects, the Court OVERRULES
JMH’s objections as moot.
Court holds that Mr. Bell testified from his personal
observations and experience. Furthermore, in the relevant
portions of his deposition, Mr. Bell limits his testimony to
his personal thoughts and reactions. As such, the Court
OVERRULES JMH’s objections for speculation, lack of
foundation, and lack of personal knowledge.
Court also finds JMH’s hearsay objections meritless
because “an out-of-court declarant could present the
evidence through direct, admissible testimony at
trial.” See Chartis Specialty Ins. Co., 2013
WL 4647288, at *3 (citing Fraser, 342 F.3d at 1036).
Accordingly, the Court OVERRULES JMH’s hearsay
Evidence from the Reed Action
objects to the portions of Plaintiffs’ opposition brief
and the evidence cited therein that reference Michelle
Lopes’s and Charles Griffin’s alleged sexual
relationship on the grounds of lack of foundation, lack of
personal knowledge, speculation, irrelevance, and hearsay.
Reply at 3-4.
initial matter, the Court finds that evidence that Ms. Lopes
and Mr. Griffin engaged in a sexual relationship is relevant
to Ms. Lopes’s potential motivation for her alleged
actions. Thus, the Court OVERRULES JMH’s relevance
remaining evidentiary objections are not sufficiently
specific to enable the Court to properly consider them. JMH
objects to entire pages, “so it is not possible for the
Court to fairly evaluate the objections.” Schaeffer
v. Gregory Vill. Partners, 2015 WL 2267813, at *5 (N.D.
Cal. May 14, 2015). The Court therefore OVERRULES JMH’s
vaguely asserted objections to evidence from the Reed Action
without prejudice to the assertion of proper objections, made
to specific statements, at the time of trial or in connection
with a future motion.
JMH objects to the entire Robbins declaration as irrelevant.
Reply at 4. The Court does not rely on the Robbins