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Brown v. Permanente

United States District Court, E.D. California

July 26, 2016

KAISER PERMANENTE, REBECCA PELLECHI, individually, as a Supervisor with KAISER PERMANENTE, Defendants.



         This matter came before the court on March 16, 2016, for hearing of defendants’ motion for summary judgment. Plaintiff Michelle Yolette Brown appeared at the hearing on her own behalf. Attorney Maureen Bogue appeared on behalf of the defendants.

         Upon consideration of the arguments on file and at the hearing, and for the reasons set forth below, the undersigned will recommend that defendants’ motion for summary judgment be granted.


         Plaintiff commenced this action on April 30, 2014, by filing a complaint and paying the required filing fee. (Dkt. No. 1.) Plaintiff filed an amended complaint on October 27, 2014. (Dkt. No. 12.) Therein, plaintiff, who is African American, alleges that the defendants discriminated, harassed, and retaliated against her based on her race in violation of Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”). (Dkt. No. 12 at 1, 3.[1]) Defendants filed an answer on January 26, 2015. (Dkt. No. 22.)

         On January 23, 2016, defendants filed the pending motion for summary judgment, setting the matter for hearing before the undersigned on February 10, 2016. (Dkt. No. 44.) After plaintiff failed to file a timely opposition or statement of non-opposition, on February 1, 2016, the undersigned continued the hearing of defendants’ motion to March 16, 2016. (Dkt. No. 46.) Plaintiff filed a purported opposition on March 2, 2016, however that filing failed to address defendants’ statement of undisputed facts. (Dkt. No. 47.) Defendants filed a reply on March 9, 2016. (Dkt. No. 48.)

         At the March 16, 2016 hearing of defendants’ motion for summary judgment, the undersigned advised plaintiff of the deficiencies found in her purported opposition, and granted plaintiff an additional two weeks to file an opposition to defendants’ motion for summary judgment that included a response to defendants’ statements of undisputed fact. (Dkt. No. 50.) On March 31, 2016, plaintiff filed a response to defendants’ statement of undisputed facts. (Dkt. No. 54.) Defendants filed a reply on April 11, 2016. (Dkt. No. 56.)


         Summary judgment is appropriate when the moving party “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).

         Under summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, “the moving party need only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.). See also Fed.R.Civ.P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to 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). In attempting to establish the existence of this factual dispute, 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(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 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 the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations omitted).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all reasonable inferences supported by the evidence in favor of the non-moving party.” Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). 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).

         In assessing a motion for summary judgment brought in the context of an employment discrimination action such as this one, it is important to recognize that “California has adopted the three-stage burden-shifting test established by the United States Supreme Court [in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)] for trying claims of discrimination . . . .” Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354 (2000).

Under the three-part McDonnell Douglas test, the plaintiff bears the initial burden of establishing a prima facie case of employment discrimination. Once the plaintiff has done so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. If the employer articulates a legitimate reason, the plaintiff must raise a triable issue that the employer’s proffered reason is pretext for unlawful discrimination. The ultimate burden of persuasion remains with the plaintiff.

Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011) (citation omitted).

         However, when the defendant employer has moved for summary judgment “the burden is reversed . . . because the defendant who seeks summary judgment bears the initial burden.” Lawler v. Mountblanc North America, LLC, 704 F.3d 1235, 1242 (9th Cir. 2013) (quoting Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011)). “Thus, to prevail on summary judgment, the employer is required to show either that (1) plaintiff could not establish one of the elements of the . . . claim or (2) there was a legitimate, nondiscriminatory reason for [the adverse employment action].” Id. In proffering a legitimate, nondiscriminatory reason, the employer’s burden “is one of production, not persuasion, thereby involving no credibility assessment.” Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1147 (9th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). If the employer meets its initial burden on summary judgment, the employee must then demonstrate either “that the defendant’s showing was in fact insufficient or . . . that there was a triable issue of fact material to the defendant’s showing.” Lawler, 704 F.3d at 1242 (quoting Lucent Techs., Inc., 642 F.3d at 746 (quotation omitted) (omission in original).


         Defendants’ statement of undisputed facts is supported by citations to declarations, excerpts from plaintiff’s depositions, and exhibits. Defendants’ statement of undisputed facts establishes the following.

         Plaintiff was hired as a Nutrition Partner for defendant Kaiser Foundation Hospitals’ (“Kaiser”) South Sacramento Medical Center on December 14, 2009, and has been continuously employed by defendant Kaiser since. In January of 2012, plaintiff was granted a short hour position as a Nutrition Partner so that she was guaranteed to work 15 hours per week. In December of 2012, plaintiff was promoted to a 20-hour position and became a permanent employee with benefits. (Defs.’ SUDF (Dkt. No. 44-6) 1, 3-6.[2])

         Plaintiff has never received a warning or any discipline since she commenced working for Kaiser. Moreover, she has not lost any wages as a result of any of the acts alleged in her complaint and made more money each year from 2009 through 2013. Throughout her entire employment with Kaiser, plaintiff has been a member of the SEIU UHW-215 Union (“Union) and aspects of her employment are governed by the Collective Bargaining Agreement between the Union and Kaiser. (Defs.’ SUDF (Dkt. No. 44-6) 7-10.)

         On February 7, 2012, plaintiff’s supervisor, defendant Rebecca Pellechi, (“Pellechi”), informed Human Resources Consultant Cornelius Stewart (“Stewart”) that she was concerned that plaintiff might be under the influence of alcohol or drugs during working hours. Stewart instructed defendant Pellechi to ask another manager to observe plaintiff in order to confirm or dispel her concern. Defendant Pellechi asked Environmental Services Manager Jeremiah Garcia (“Garcia”) to observe plaintiff for signs that she might be under the influence of drugs and/or alcohol. After conducting his observation, Garcia informed defendant Pellechi that he suspected plaintiff might be under the influence of alcohol or drugs and that he did not believe it was safe for plaintiff to continue working. (Defs.’ SUDF (Dkt. No. 44-6) 16-19.)

         Defendant Pellechi instructed plaintiff to accompany her and Garcia to Human Resources where they met with Stewart. A union representative, Kenneth Green, was also present during this meeting. During the meeting, defendant Pellechi asked plaintiff to submit to drug and alcohol testing, plaintiff agreed, and voluntarily signed an authorization for Kaiser to have the tests performed. Defendant Pellechi advised plaintiff that she would be placed on paid administrative leave pending the outcome of the tests. Plaintiff was paid for the remainder of her shift on February 7, 2012, and for the days she was off work (February 8-10, 2012). Plaintiff returned to work on February 11, 2012. ...

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