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Evans v. University Medical Center

United States District Court, D. Nevada

March 26, 2018

NORI EVANS, an individual, Plaintiff,



         I. SUMMARY

         Pending before the Court is Defendant University Medical Center of Southern Nevada's (“UMC” or “Defendant”) Motion for Summary Judgment (“Motion”) (ECF No. 54). Plaintiff Nori Evans filed a response (ECF No. 64[1]), and UMC filed a reply (ECF No. 74). The Court construes Defendant's Motion as a partial motion for summary judgment because it does not address Plaintiff's apparent claims of a hostile work environment under Title VII and NRS § 613.330.

         For the reasons discussed herein, the Motion is granted.


         This action relates to Plaintiff's employment with and employment termination by UMC. On March 30, 1998, Evans began working at UMC in Las Vegas, Nevada. (ECF No. 1 at ¶ 6.) On September 30, 2014, Evans was terminated from her position at UMC as a Respiratory Services Supervisor (“RS Supervisor”) in the Respiratory Services Department (“RS Department” or “the Department”) at UMC. (Id. at ¶ 25; ECF No. 54 at 7.)

         Before Plaintiff's employment termination, the Department was structured to include the following positions: (1) Director Alicia Jones; (2) RS Managers; (3) RS Supervisors, such as Plaintiff; (4) Respiratory Care Coordinators; (5) Advanced Respiratory Care Practitioners (“ARCP”); (6) full-time Respiratory Therapists; and (7) temporary or per diem Respiratory Therapists. (ECF No. 54 at 4-5.) The Department also included one administrative assistant, Leslie Hill. (Id. at 5.)

         During her employment, Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) on June 24, 2009. (ECF No. 1 at ¶ 15.) After receiving a Right to Sue letter in that action, she filed suit against UMC (“First UMC Lawsuit” or “First Lawsuit”) for race-based discrimination and retaliation under Title VII, and for violation of the Equal Pay Act. (Id.) The parties jointly dismissed that action with prejudice in February 2013.[2] Plaintiff alleges in this action that UMC continued to discriminate against her based on her race after the First UMC Lawsuit and that UMC retaliated against her for the First Lawsuit by failing to promote her around May 2014 and by ultimately terminating her from her position as a nightshift RS Supervisor in September 2014. At all relevant times, Alicia Jones was the Director of Respiratory Services in the Department at UMC.

         As to Plaintiff's failure to promote allegations, around May 2014, Daniel Dietchler was given the positon of Respiratory Manager. (ECF No. 1 at ¶ 17.) Plaintiff did not apply for the position, but she contends Dietchler was less qualified for the position, as she had twelve years of experience as an RS Supervisor by that time. (Id.) As to Plaintiff's wrongful termination contentions, there were two RS Supervisor positions eliminated, including Plaintiff's position, as part of a UMC-wide reduction in costs in September 2014. (Id. at ¶¶ 24, 30.) Claire Wiedmann and Tracy Sutter occupied the two dayshift RS Supervisor positions but had left these positions eight months and eighteen months earlier- Wiedmann in January 2014 and Sutter in March 2013. (See ECF No. 64-6 at 5.) The two dayshift RS Supervisor positions were never refilled. (ECF No. 64 at 19; ECF No. 66-3 at 9; see ECF No. 74 at 16 (“[t]hat two of the positions were not filled at the time of the [budget] cut does not change the fact that the department could and would have to operate without four supervisor positions”).) Along with Plaintiff, Mark Ambatali was terminated as a nightshift RS Supervisor in September 2014. (ECF No. 1 at ¶ 30.) Defendant admits that, to comply with the UMC-wide directive to cut costs, Director Jones recommended to UMC executive management certain equipment expense cuts, elimination of several per diem positions, and elimination of the entire supervisor level in the RS Department. (ECF No. 54 at 7.)

         Plaintiff brings seven claims for relief in her complaint:[3]

(1) discrimination based on race in violation of Title VII, 42 U.S.C. § 2000e-2, by (a) eliminating all minority RS Supervisors while similarly situated Caucasian employees who were less qualified were neither eliminated nor terminated and (b) subjecting Plaintiff to a racially hostile working environment when Defendant supervised Plaintiff and other African American employees under more stringent standards and when a certain individual would make race-based comments regarding Plaintiff or “the Black issue”;[4]
(2) unlawful retaliation under Title VII, 42 U.S.C. § 2000e-3, by failing to promote Plaintiff and giving the Respiratory Manager position to a Caucasian candidate less qualified than Plaintiff because Plaintiff complained of impermissible racial workplace discrimination;
(3) unlawful retaliation under Title VII, 42 U.S.C. § 2000e-3, by terminating Plaintiff for complaining of impermissible racial workplace discrimination, by eliminating her position, and by terminating all minority supervisory staff in the Department;
(4) violation of Plaintiff's rights to make and enforce a contract for employment under 42 U.S.C. § 1981 when UMC (a) failed to promote Plaintiff to a managerial position, which was given to a lesser qualified candidate not of Plaintiff's protected class, and (b) terminated Plaintiff in retaliation for the First UMC Lawsuit and for Plaintiff's complaints of impermissible discrimination based on race in the workplace;
(5) discrimination based on race in violation of NRS § 613.330 by eliminating all minority RS Supervisors and by subjecting Plaintiff to a racially hostile working environment;[5]
(6) unlawful retaliation because of race in violation of NRS § 613.330 by failing to promote Plaintiff; and
(7) unlawful retaliation because of race in violation of NRS § 613.330 by terminating Plaintiff.[6]

(ECF No. 1 at 8-12.)


         “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) (internal citation omitted). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (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. See id. at 250-51. “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 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., Ltd v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (internal citation omitted). 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) (internal citations 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, and a “trial court can only consider admissible evidence in ruling on a motion for summary judgment, ” Orr, 285 F.3d at 773. A court can consider evidence when ruling on a motion for summary judgment that is presented in an inadmissible form so long as the underlying facts may be presented in an admissible form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003).


         A. Authentication

         “Authentication is a condition precedent to admissibility, ” and unauthenticated documents cannot be considered by a court when ruling on a motion for summary judgment. Orr, 285 F.3d at 773. “[D]ocuments authenticated through personal knowledge must be attached to an affidavit that meets the requirements of [Rule] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.” Id. at 773-74. However, a foundation for authenticity may be established by any manner permitted under Fed.R.Evid. 901(b) and 902. See id. at 774. Here, all of the exhibits attached to Defendant's Motion and certain of Plaintiff's exhibits are not properly authenticated. However, because Plaintiff has authenticated certain documents, specifically deposition testimony, that Defendant provides unauthenticated portions of, this is sufficient to satisfy authentication of the documents for both parties. See id. at 776. The Court therefore will not consider those documents that neither party has authenticated as specified below.[7]

         B. Extracts of Deposition Testimony

         Both parties produced deposition testimony of various witnesses. “A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent.” Orr, 285 F.3d at 774 (citing Fed.R.Evid. 901(b), Fed R. Civ. P. 56(e) & 30(f)(1)). Moreover, it is “insufficient for a party to submit, without more, an affidavit from her counsel identifying the names of the deponent, the reporter, and the action and stating that the deposition is a true and correct copy.” Id. (internal quotation marks omitted).

         For each extract of deposition testimony provided by Plaintiff, she produced a page identifying the name of the deponent and action, as well as the reporter's certification. Defendant, however, failed to provide the reporter's certification for any of the extracts of deposition testimony that it attached to its motion. But because Defendant submitted portions of deposition testimony that have been authenticated by Plaintiff, the Court finds that only selected portions of Defendant's submitted extracts are unauthenticated and therefore inadmissible. Specifically:

• Exhibit A, pages 146-49 of Plaintiffs deposition testimony taken on March 2, 2017 (ECF No. 54-1 at 7);
• Exhibit A, pages 199-202, 271-74, and 279-82 of Plaintiffs deposition testimony taken on March 15, 2017 (ECF No. 54-1 at 9, 14-15);
• Exhibit B, pages 41-44, 53-56, 89-92, 125-28, and 145-48 of Alicia Jones' deposition testimony taken on March 20, 2017 (ECF No. 54-2 at 5, 7-8, 10-11);
• Exhibit D, pages 21-24 of Tracy Sutter's deposition testimony taken on March 31, 2017 (ECF No. 54-4 at 3); and
• Exhibit H, pages 22-25 of Patricia Bain's deposition testimony taken on April 20, 2017 (ECF No. 54-8 at 3).

         The Court will therefore not consider the portions of Defendant's exhibits (i.e., deposition testimony) that have not been ...

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