Perez v. John Muir Health

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE: DKT. NO. 70

          HAYWOOD S. GILLIAM, JR. United States District Judge.

         Pending 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.

         I. BACKGROUND

         Defendant 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.

         On 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.

         II. DISCUSSION

         In its 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.

         A. Evidentiary Objections

         Both 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.

         “To 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.

         For 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.

         i. O’Brien Declaration

         JMH 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.^[1]

         As to 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.

         Furthermore, 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.

         The 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.

         ii. Bell Deposition

         JMH 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.

         The 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.

         The 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 objections.

         iii. Evidence from the Reed Action

         JMH 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.

         As an 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 objections.

         JMH’s 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.

         iv. Robbins Declaration

         Finally, JMH objects to the entire Robbins declaration as irrelevant. Reply at 4. The Court does not rely on the Robbins ...