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Kim v. Humboldt County Hospital District

United States District Court, D. Nevada

March 25, 2015

SOON O. KIM, an individual, Plaintiff,

ORDER (Defs.' Motion for Summary Judgment - dkt. no. 36)

MIRANDA M. DU, District Judge.


Before the Court is a Motion for Summary Judgment ("Motion") filed by Defendants Humboldt County Hospital District, dba Humboldt General Hospital ("HGH"); and Moe Hanzlik, Mary Orr, Mel Hummel, Jim French, and Jim Parrish (collectively, "Individual Defendants") (dkt. no. 36). The Court has reviewed Plaintiff Soon O. Kim's opposition (dkt. no. 42) and Defendants' reply (dkt. no. 45). For the reasons discussed below, the Motion is denied in part.


Plaintiff asserts that HGH, her former employer, violated her First Amendment rights in terminating her employment in April 2012. The following facts are undisputed. ( See dkt. no. 36 at 3; dkt. no. 42 at 1.)

Plaintiff began working for HGH as a general surgeon in November 2003. (Dkt. no. 36 at 3.) In September 2010, Plaintiff entered into an Agreement for Physician Employment ("Agreement" or "Employment Agreement") to renew her employment with HGH for a three-year term. (Dkt. no. 36-2, Exh. 1.) Under the Agreement, Plaintiff would provide general surgery services to HGH between January 1, 2011, and December 31, 2013. ( Id., Exh. 1, at 2.) Either Plaintiff or HGH could terminate the Agreement without cause with written notice of 180 days. ( Id., Exh. 1, at 12.) The Agreement states that HGH's Administrator, Defendant Parrish, would supervise "all non-clinical aspects" of Plaintiff's employment. ( Id. Exh. 1, at 7-8; see id, Exh. 2, at 22.)

When Plaintiff signed the Agreement, she was also a member of HGH's Board of Trustees ("Board"). ( See id., Exh. 2, at 33-34.) Plaintiff had been elected to the Board in November 2008, and began her four-year term in January 2009. ( Id., Exh. 2, at 34.) She filed for reelection on March 16, 2012; elections were to occur in November 2012. ( Id., Exh. 2, at 27-28.) Plaintiff, however, left the hospital in August 2012, a few months after the Board voted to terminate her Agreement. ( Id., Exh. 2, at 18). Plaintiff also served as HGH's chief of staff from October 2011 until she left the hospital. ( Id., Exh. 2, at 18.)

In January 2012, the Board amended its corporate compliance policy to address potential conflicts of interest created when HGH employees serve on its Board. (Dkt. no. 3 ¶¶ 3, 7; see dkt. no. 36-4, Exh. 7, at 11.) The amended policy included a Political Participation provision that states: "a Hospital employee shall not engage in any employment, activity or enterprise, including service on the Hospital Board, which is inconsistent, incompatible or in conflict with their duties as an employee." (Dkt. no. 36-4, Exh. 7, at 11.) The policy further provides that if an employee's Board membership creates a conflict of interest, the employee may resign from his or her position "prior to taking and executing the oath of office and beginning the term of office, " or take paid or unpaid leave. ( Id., Exh. 7, at 11.) Plaintiff abstained from voting on this provision during the Board's January 2012 meeting. (Dkt. no. 36 at 6; see dkt. no. 36-2, Exh. 2, at 20.) Two months later, in March 2012, Plaintiff filed her candidacy for reelection to the Board. (Dkt. no. 36-2, Exh. 2, at 27-28.)

In April 2012, the Board unanimously voted to terminate Plaintiff's Employment Agreement.[1] (Dkt. no. 36-4, Exh. 8, at 22.) Defendants Hanzlik, Orr, Hummel, and French participated in the vote; Plaintiff abstained. ( Id., Exh. 8, at 22.) The vote occurred after a presentation by Parrish, HGH's Administrator, and a Board discussion on the drawbacks of having a single surgeon at HGH, the need for additional surgeons at the hospital, and the potential benefits of hiring a surgical service for HGH. ( Id., Exh. 8, at 22.) Parrish had been researching surgical services for approximately one year before the presentation. (Dkt. no. 36-2, Exh. 2, at 26.) A vote on the surgical service occurred in May 2012. ( Id., Exh. 2, at 26.)

Beginning in 2004, before the Employment Agreement was terminated, Plaintiff and other physicians at HGH brought complaints to HGH's Administrator and Board. ( Id., Exh. 2, at 35, 37.) Plaintiff testified that the complaints were designed to help improve the hospital's internal operations. ( Id., Exh. 2, at 36-37.) A Medical Staff Issues spreadsheet was generated[2] in 2007 to record and monitor the status of these complaints. ( Id., Exh. 2, at 35.) In the three months before her Employment Agreement was terminated, Plaintiff's complaints identified nursing training and personnel needs, patient education needs, slowness in lab results, and issues with the operating room. (Dkt. no. 36-3, Exh. 3, at 13-14.) The spreadsheet was occasionally presented to the Board, although it is not clear whether or when the Board reviewed the document. (Dkt. no. 36-2, Exh. 2 at 37.)

Plaintiff initiated this action against HGH, its Administrator, and several of its Board members in August 2012, alleging that the termination of her Employment Agreement violated her First Amendment rights.[3] (Dkt. no. 1.) Plaintiff sues the Administrator and the Board members in their individual capacities. (Dkt. no. 3 ¶ 3.) Defendants move for summary judgment, arguing that Plaintiff's claims must fail as a matter of law because Plaintiff cannot show that Defendants deprived her of her rights under the First Amendment, because Plaintiff cannot establish municipal liability for HGH or individual liability for Individual Defendants, and because Individual Defendants are entitled to qualified immunity. (Dkt. no. 36 at 2-3.)


The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Nw. Motorcycle Ass'n, 18 F.3d at 1472. "The amount of evidence necessary to raise a genuine issue of material fact is enough to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, " Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (citation and internal quotation marks omitted). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.


Plaintiff alleges that the termination of her Employment Agreement violated her First Amendment rights because it was motivated by two forms of retaliation: first, Defendants retaliated against Plaintiff's decision to seek reelection to the Board; and second, Defendants retaliated against complaints Plaintiff had made about HGH's operations. (Dkt. no. 3 ¶¶ 9-11.) With regard to Plaintiff's first claim, the parties dispute whether Defendants' Political Participation provision is unconstitutional both facially and as applied to Plaintiff's decision to seek reelection, and whether Plaintiff's Employment Agreement was terminated in retaliation for that decision. ( See dkt. no. 3 ¶¶ 7-9, 11-12; dkt. no. 36 at 9-13; dkt. no. 42 at 3-4, 6; dkt. no. 45 at 9-13.) The Court finds that supplemental briefing and a hearing on these issues are necessary. The Court therefore reserves judgment on Plaintiff's claim that Defendants violated her First Amendment rights by restricting her ability to seek reelection.

This Order focuses on Plaintiff's second claim - whether Plaintiff's complaints about HGH motivated Defendants to terminate her Employment Agreement in violation of her First Amendment rights. Defendants contend that Plaintiff's second claim must fail because she cannot demonstrate a deprivation of her First Amendment rights pursuant to a five-factor test that applies to First Amendment retaliation claims.[4] (Dkt. no. 36 at 13); see Eng v. Cooley, 552 F.3d 1062, 1070-72 (9th Cir. 2009) (describing the five factors). Rather, Defendants assert, the Employment Contract was terminated due to a business decision, not because of Plaintiff's speech on matters of public concern.[5] (Dkt. no. 36 at 13-19.) The Court finds that a genuine issue of material fact exists as to whether the termination of Plaintiff's Employment Agreement violated her First Amendment right to speak on matters of public concern.

Plaintiff brings her claims under 42 U.S.C. § 1983, which provides for the private enforcement of substantive rights conferred by the Constitution and federal statutes. Graham v. Connor, 490 U.S. 386, 393-94 (1989). Section 1983 establishes liability for any person who, acting under the color of law, deprives a citizen of a right, privilege or immunity protected by the Constitution or federal law. 42 U.S.C. § 1983. Plaintiff asserts that HGH and Individual Defendants deprived her of substantive rights conferred by the First Amendment. As a municipal entity, however, HGH "may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force behind a violation of constitutional rights." Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). The Court will address liability for Individual Defendants and for HGH separately.

A. Individual Defendants

Defendants contend that Plaintiff's § 1983 claim against Individual Defendants must fail for three reasons: first, Plaintiff cannot demonstrate that the Employment Agreement's termination deprived her of her First Amendment right to speak on a matter of public concern; second, Individual Defendants did not engage in any activity that caused the alleged violation of Plaintiff's First Amendment rights; and third, Individual Defendants are entitled to ...

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