Uche-Uwakwe v. Shinseki

• Decision Date: 18 September 2013
• Docket Number: Case No. EDCV 12–01562 VAP (OPx).
• Citation: 972 F.Supp.2d 1159
• Parties: Maureen UCHE–UWAKWE, Plaintiff, v. Eric K. SHINSEKI, Secretary of Veterans Affairs; Brian Kawahara, an Individual, Defendants.
• Court: U.S. District Court — Central District of California

972 F.Supp.2d 1159

Maureen UCHE–UWAKWE, Plaintiff,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs; Brian Kawahara, an Individual, Defendants.

Case No. EDCV 12–01562 VAP (OPx).

United States District Court, C.D. California.

Sept. 18, 2013.

Joseph D. Curd, Alexis Galindo, Curd Galindo & Smith LLP, Long Beach, CA, for Plaintiff.

Indira J. Cameron–Banks, AUSA–Office of U.S. Attorney, Los Angeles, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SHINSEKI'S MOTION FOR SUMMARY JUDGEMENT

VIRGINIA A. PHILLIPS, District Judge.

Defendant Eric K. Shinseki's Motion for Summary Judgment came before the Court for hearing on September 16, 2013. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearing, the Court GRANTS IN PART AND DENIES IN PART the Motion.

I. BACKGROUND

On September 12, 2012, Plaintiff Maureen Uche–Uwakwe (“Plaintiff”) filed a Complaint against Defendants Eric K. Shinseki, in his official capacity as the Secretary of Veterans Affairs (“VA”), and Brian Kawahara, alleging the following claims: (1) retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–16 et seq. (“Title VII”), against Defendant Shinseki; (2) race and ancestry discrimination in violation of 42 U.S.C. § 1981, against all Defendants; and (3) “harassment/hostile work environment,” in violation of 42 U.S.C. § 1981, against all Defendants. ( See Compl., Doc. No. 1.) The Complaint alleged, inter alia, that Plaintiff was subjected to harassment at the Loma Linda Veterans Affairs Medical Center (“LLVAMC”), where Plaintiff was the only African–American pharmacist, causing her to make numerous complaints both informally and formally, including filing Equal Employment Opportunity (“EEO”) complaints and a federal lawsuit that named her co-workers, supervisors, and the Chief of Pharmacy Services, Brian Kawahara. ( See Compl. 9191 8–34.)

On December 5, 2012, Plaintiff filed a First Amended Complaint (“FAC”), naming the same Defendants in the case caption but directing the claims against only Defendant Shinseki, for retaliation in violation of Title VII, and for harassment/hostile work environment in violation of Title VII. ( See FAC, Doc. No. 18.) Plaintiff then filed a “Joint Stipulation to Amend Amended Complaint” on January 3, 2013, and filed a Second Amended Complaint (“SAC”) on January 8, 2013. ( See Doc. Nos. 19, 20.)

In the SAC, Plaintiff alleged claims for retaliation in violation of Title VII against Defendant Shinseki, and “harassment/hostile work environment” in violation of Title VII against Defendant Shinseki; despite naming Kawahara as a Defendant, Plaintiff did not allege any claims against him in the SAC. ( See SAC.)

On January 14, 2013, Plaintiff filed a Notice of Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1) as to Defendant Kawahara. ( See Doc. No. 21.) Defendant Shinseki filed an Answer to the SAC on January 24, 2013. ( See Doc. No. 23.)

On August 19, 2013, Defendant Shinseki (hereinafter “Defendant”) filed a Notice of Motion and Motion for Summary Judgment (“Motion”), along with the Declaration of Cory Werdebaugh (“Werdebaugh Decl.”) and attached Exhibits 1 through 6, the Declaration of Indira Cameron–Banks (“Cameron–Banks Decl.”) and attached Exhibits 7 through 11, and a Statement of Uncontroverted Facts and Law (“DSUF”).¹ ( See Doc. NO. 49.) On August 22, 2013, Defendant filed a Notice of Errata, attaching a corrected version of Exhibit 8 to the Cameron–Banks Declaration.² ( See Doc. No. 50.)

On August 26, 2013, Plaintiff filed Opposition to the Motion (“Opposition” or “Opp'n”), along with a Separate Statement of Undisputed Facts in Support of Plaintiff's Opposition (“PSUF”), the Declaration of Maureen Uche–Uwakwe (“Uche–Uwakwe Decl.”) and attached Exhibits A through S, the Declaration of Joseph D. Curd (“Curd Decl.”) and attached Exhibits T through AA, Objections to Evidence in Support of Opposition (“Pl. Evid. Obj.”), and Notice of Lodging of Authorities in Support of Opposition.³ ( See Doc. No. 51.) Plaintiff also filed a Notice of Errata, correcting the hearing time for the Motion reflected on the cover page of her Opposition papers.

On August 31, 2013, Defendant untimely ⁴ filed a Reply in support of his Motion, the Declaration of Cory Werdebaugh in support of the Reply (“Supp. Werdebaugh Decl.”) and attached Exhibit 13, the Declaration of Indira Cameron–Banks (“Supp. Cameron–Banks Decl.”) and attached Exhibits 14 and 15, and Evidentiary Objections to the Uche–Uwakwe Declaration.⁵

On September 3, 2013, Defendant filed a Notice of Lodging the Table of Contents and Table of Authorities, apparently inadvertentlyomitted from the Reply filing, as well as a Notice of Lodging Proposed Order, apparently also inadvertently not filed with the moving papers. ( See Doc. Nos. 57, 58.)

II. LEGAL STANDARD

A court shall grant a motion for summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998) (citing Anderson, 477 U.S. at 256–57, 106 S.Ct. 2505);Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Where the moving party has the burden at trial, “that party must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331, 106 S.Ct. 2548. The burden then shifts to the non-moving party “and requires that party ... to produce evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial.” Id.;Anderson, 477 U.S. at 256, 106 S.Ct. 2505;Fed.R.Civ.P. 56(a).

Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id. The burden then shifts to the non-moving party to show that there is a genuine dispute of material fact that must be resolved at trial. Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 324, 106 S.Ct. 2548;Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548;Anderson, 477 U.S. at 252, 106 S.Ct. 2505.See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144.

A genuine issue of material fact will exist “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir.1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir.1987).

III. EVIDENTIARY RULINGS

Before setting forth the uncontroverted facts in this action, the Court examines the admissibility of the evidence offered by both sides in support of, and opposition to, the Motion.

“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002). “Authentication is a ‘condition precedent to admissibility,’ and this condition is satisfied by ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.’ ” Id. (citation omitted).

A. Plaintiff's Objections

Plaintiff objects to portions of the Declaration of Cory Werdebaugh filed in support of the Motion, as well as to several DSUFs.

1. Objections to Werdebaugh Declaration

Plaintiff objects to a sentence in paragraph 7 of the Werdebaugh Declaration, i.e., “I remember the Chief of HR ... related to workers' compensation liability” on the basis of hearsay, that it lacks foundation, and that it calls for a legal conclusion. ( See Pl. Obj. at 2.) The Court sustains Plaintiff's hearsay objection and finds the assertion inadmissible, as it is not offered against a party opponent who made the statement. SeeFed.R.Evid. 801(d)(2).

Plaintiff objects to a sentence in paragraph 8 of the Werdebaugh Declaration, i.e., “I believe that it was an appropriate ... chronically understaffed at that time” on the basis that it lacks foundation, and is irrelevant. ( See Pl. Obj. at 2.) The Court sustains Plaintiff's lacks foundation objection and finds the assertion inadmissible, as the declarant has not established any personal knowledge of the staffing needs of the outpatient pharmacy and she has not provided her personal knowledge that she was familiar with the circumstances under which Plaintiff had previously been reassigned or how she know those issues were “no longer applicable.” SeeFed.R.Evid. 602.

Plaintiff objects to another sentence in paragraph 8 of the Werdebaugh Declaration, i.e., “I also recall that ... performance as an outpatient pharmacist” on the...