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Ellis v. Kaiser Permanente

United States District Court, S.D. California

March 28, 2018

KAISER PERMANENTE, et al., Defendants.


          HONORABLE LARRY ALAN BURNS United States District Judge

         After ten years of employment, Southern California Permanente Medical Group (“Kaiser”) placed Sha'lena Ellis on a Last Chance Agreement after a series of disciplinary actions for attendance issues and lab-labeling problems. Two weeks later, Kaiser determined Ellis made another labeling mistake, and fired her. Ellis argues Kaiser discriminated against her because she's black. Kaiser says it fired her because of her poor job performance.

         Ellis sued Kaiser and her three supervisors: Patricia Dodgen-Bower, Robert Banko, and Tricia Lews. She alleged claims for discrimination based on her race, pregnancy status, and disability. Last year, the Court denied Ellis's motion for summary judgment and dismissed half her claims. Kaiser now moves for summary judgment on the remaining claims. Since there's a triable issue of fact whether Kaiser discriminated against Ellis, the Court partially denies Kaiser's motion for summary judgment. Fed.R.Civ.P. 56.

         A. Individual Liability

         Kaiser is correct that the Ninth Circuit has barred personal liability for claims under Title VII and the ADA. Miller v. Maxwell's Int'l Inc., 991 F.2d 583 (9th Cir. 1993) (Title VII); Walsh v. Nevada Dep't of Human Res., 471 F.3d 1033 (9th Cir. 2006) (ADA). The Court grants summary judgment to the individual defendants, in their individual capacities, for those remaining causes of action.

         But the Court reaffirms its finding that Ellis sued her supervisors in their official capacity as agents of Kaiser. [Dkt. 69.] Miller acknowledged that Title VII incorporates a “respondeat superior principle” that makes employers liable for acts of agent employees. Miller, 991 F.2d at 587-88. Miller doesn't bar Ellis from articulating claims against her supervisors here because she's really suing Kaiser. Ortez v. Washington Cty., State of Or., 88 F.3d 804, 808 (9th Cir. 1996) (reversing because employee stated Title VII claim against supervisors in their official capacity).

         B. Ellis's Claims

         1. Race Discrimination (Title VII and 42 U.S.C. § 1981-Claims 4, 5, 8)

         To establish a prima facie case for racial discrimination, Ellis first needs to show she's: (1) in a protected class; (2) qualified for her job; (3) suffered an adverse employment action; and (4) Kaiser treated similarly situated, non-black employees more favorably. If Ellis offers evidence on these four elements, then Kaiser needs to provide nondiscriminatory reasons for the adverse action. Ellis then needs to show Kaiser's reasons are pretext. Aragon v. Republic, 292 F.3d 654, 658-59 (9th Cir. 2002); Manatt v. Bank of Am., NA, 339 F.3d 792, 797 (9th Cir. 2003) (§ 1981 claim tracks Title VII analysis).

         Ellis supplied the minimal evidence to make out a prima face claim for racial discrimination based on disparate treatment: (1) she's in a protected class because she's black; (2) Bower's performance evaluation suggests Ellis was qualified; (3) her firing constituted an adverse action; and (4) she submitted evidence that white nurse B.H. had similar employment problems, but wasn't fired. [Dkt. 74-2 at 7-12 and 82-85.][1]

         Kaiser responded with a nondiscriminatory reason for firing her: poor job performance. Specifically, Kaiser found Ellis made a labeling mistake two weeks after signing a Last Chance Agreement that provided: “any further performance infractions that occur from this day forward will lead to your termination.” Kaiser also submitted evidence that shows over the last five years, black employees supervised by Bower and Banko received the least amount of discipline over all. [Dkt. 72-5 and 72-6 at 135-38, 154-69.]

         Ellis, therefore, had to produce “specific and substantial evidence” that Kaiser's “reasons are really a pretext for racial discrimination.” Aragon, 292 F.3d at 661 (9th Cir. 2002). To show pretext, Ellis can point to the same “evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000). Her best argument is that white nurse B.H. had similar problems but was treated differently than she was. Specifically, Kaiser issued B.H. a Level 4 Corrective Action after repeated attendance problems. When B.H. logged another attendance violation, Kaiser reissued her a Level 4 for attendance. A day later, when B.H. mislabeled a specimen, Kaiser issued B.H. a Level 1 for performance. But when Ellis allegedly made a mislabeling mistake after her Level 4, she was fired. Ellis argues that a jury could infer that race was the reason for the different treatment. [Dkt. 72-6 at 163-64 and 74-2 at 84.]

         Kaiser didn't offer a compelling response. First, they say Ellis's argument is irrelevant because B.H.'s discipline was related to attendance issues, whereas Ellis's termination wasn't. That's contradicted by the second sentence of Kaiser's opening brief: Ellis was “terminated after years of chronic tardiness and a spate of errors.” [Dkt. 72-1 at 7.] And although Ellis's Level 4 was ostensibly for performance issues, it repeatedly mentions Ellis's attendance issues. Second, Kaiser says Ellis is speculating about B.H. and hasn't offered any evidence that B.H.'s attendance issues were comparable to Ellis's. That's wrong too. Ellis's brief laid out 14 disciplinary actions taken against B.H. And Kaiser's own evidence confirms the point: B.H. received at least seven attendance infractions, from verbal warnings through Levels 1, 2, 3, and 4. [Dkt. 72-6 at 164.]

         Ellis points to other problems. For example, she says Kaiser marked her late for work when she arrived before 8:30 am, yet Kaiser acknowledges she has an 8:30 am start time. If true, this would undermine part of Kaiser's stated reason for firing her-the “chronic tardiness.” Kaiser didn't respond to this point. Ellis also disputes that she failed to label the specimen that got her fired. She argues that it's more likely Bower removed the label to ensure Ellis lost her job. Specifically, she testified that Bower was in the room that held the lab specimens the day of the mislabeling. Ellis maintains that Bower wouldn't normally be ...

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