United States District Court, D. Arizona
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE.
September 9, 2013, Plaintiff Tanisha Tatum began working as a
Charge Nurse for the DaVita Palm Brook Dialysis Center in Sun
City, Arizona. On August 27, 2014, Tatum reported to direct
supervisor Sarah Holman that her co-worker had been violating
DaVita's medicine administration policy and had made
racially derogatory remarks. The following month, on
September 11, 2014, Tatum reported an incident to Holman
involving a nurse practitioner that had yelled. After
speaking with other personnel, Tatum requested an opportunity
to provide an email “summation” of her concerns
about her job. On September 30, 2014, Tatum emailed a
nine-page written complaint to personnel and members of
management. Various attempts were made to meet with Tatum to
discuss her letter without success. On October 9, 2014, Tatum
filed a charge with the Equal Employment Opportunity
Commission and resigned from her position.
filed the instant lawsuit on January 26, 2016 against
Defendants DaVita Healthcare Partners, Inc. and Sun City
Dialysis Center, LLC (collectively “DaVita”),
bringing discrimination and retaliation claims under Title
VII of the Civil Rights Act. (Doc. 1.) DaVita has moved for
summary judgment. (Doc. 51.) Having viewed the evidence in
the light most favorable to Tatum, the Court finds that there
is no genuine issue as to any material fact and DeVita is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am.,
815 F.2d 1285, 1288-89 (9th Cir. 1987); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
fails to raise a triable dispute as to her claim of disparate
treatment. On summary judgment, Tatum does not address the
claim or otherwise responds to DaVita's arguments. Having
abandoned it, Tatum has failed to show there is a genuine
issue for trial, and “Rule 56(c) mandates the entry of
summary judgment.” Celotex, 477 U.S. at 322.
See Estate of Shapiro v. U.S., 634 F.3d 1055, 1060
(9th Cir. 2011); Shakur v. Schriro, 514 F.3d 878,
892 (9th Cir. 2008) (“We have previously held that a
plaintiff has ‘abandoned ... claims by not raising them
in opposition to [the defendant's] motion for summary
judgment.'”) (quoting Jenkins v. Cnty. of
Riverside, 398 F.3d 1093, 1095 n. 4 (9th Cir. 2005)).
has not demonstrated a prima facie case of a
hostile-work environment. To establish a prima facie case for
a hostile-work environment claim under Title VII, Tatum must
show (1) that she was subjected to verbal or physical conduct
because of her race; (2) that the conduct was unwelcome; (3)
that the conduct was sufficiently severe or pervasive to
alter the terms and conditions of her employment and create
an abusive work environment; and (4) some factual basis
exists to impute liability for the harassment to her
employer. Surrell v. Cal. Water Serv. Co., 518 F.3d
1097, 1108 (9th Cir. 2008); McGinest v. GTE Serv.
Corp., 360 F.3d 1103, 1112, 1119 (9th Cir. 2004)
(“a court must first assess whether a hostile work
environment existed, and then determine whether the response
was adequate as a whole”); Nichols v. Azteca
Restaurant Enterprises, Inc., 256 F.3d 864, 875 (9th
Cir. 2001). The Court considers whether the working
environment was both subjectively and objectively perceived
as abusive, considering “all the circumstances,
including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work
performance.” Vasquez v. County of Los
Angeles, 349 F.3d 634, 642 (9th Cir. 2003).
Tatum fails to provide sufficient evidence that she was
subjected to harassing conduct that was sufficiently severe
or pervasive to give rise to a triable dispute. Tatum's
September 2014 letter summarized her August 27, 2014
encounter with her co-worker as follows:
The most recent report I made to my FA was in August 2014.
The report was regarding a nurse giving incorrect doses of
Epogen. To start, we were out of stock of 2000 unit vials of
Epogen. Instead of the nurse rescheduling all the doses that
used 2000 unit vials she used single dose as multi dosing
vials; then improperly documented the correct doses were
given. When I stated to the nurse to allow me to reschedule
the meds she said, ” If I make you uncomfortable by
what I'm doing, don't look; don't give the meds
I'll give them”. When I returned from assessing my
patients she had drawn the entire shift of meds (including my
patients) incorrectly. I said to her, “Please stop let
me reschedule everyone, let's do the right thing to
decrease any unneeded dilemmas”. She said, “You
refused to give the meds so stop worrying about it, I'll
take all the blame.” The nurse then began singing the
USA for Africa song “We are the world, we are the
children...” as I attempted to speak with her, asking
her what does that mean, she continued singing. I continued
to implore her that knowingly incorrectly dosing medications
could be considered by Medicare and private insurances as
fraud because you are providing incorrect doses using
single-use vials as multi-dose vials. I again approached her
at a patient's chairside, speaking softly to her to talk
with me as she continued humming the song. When my shift was
completed I attempted to give her report. I told her I had
rescheduled some of the meds that she had not yet given that
remained on the counter and I would continue to reschedule
the meds but she continued to ignore me and gave the
remaining meds. While finally giving report she walked away
while I was speaking to her at the patient's chairside.
In speaking to her patient, which was an African American
male he told her about his upcoming trip to California. She
spoke to him about rain. The nurse told him, “If its
gets too wet, just hang from a tree to keep dry”. I
notified Sarah Holman FA regarding this full issue.
(Pl.'s Sept. 2014 Ltr., Doc. 56-1 at 14-15.) Accepting at
true that her co-worker's recantation of the “We
are the World” and her comment to the African American
patient was racially offensive, Tatum presents no allegations
to suggest that, standing alone, her co-worker's remarks
were physically threatening or otherwise so extreme as to
sufficiently affect the conditions of employment and
implicate Title VII. See Faragher v. City of Boca
Raton, 524 U.S. 775, 778 (1998); Dominguez-Curry v.
Nev. Transp. Dep't, 424 F.3d 1027, 1034 (9th Cir.
2005) (isolated incidents cannot form the basis for a hostile
work environment claim); Vasquez v. County of Los
Angeles, 349 F.3d 634, 643-644 (9th Cir. 2003) (finding
no hostile work environment where a supervisor made direct,
offensive statements to a plaintiff on two occasions six
months apart); Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (simply causing an employee offense based
on an isolated comment is not sufficient to create actionable
harassment under Title VII).Because Tatum fails to provide
sufficient evidence from which a reasonable juror could
conclude that she was subjected to harassment that was
sufficiently severe or pervasive as to alter the conditions
of her employment and create a hostile work environment,
DaVita is entitled to summary judgment on this claim.
same reason, Tatum fails to show there is a genuine issue for
trial as to her constructive discharge claim. See Brooks
v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000)
(“Where a plaintiff fails to demonstrate the severe or
pervasive harassment necessary to support a hostile work
environment claim, it will be impossible for her to meet the
higher standard of constructive discharge: conditions so
intolerable that a reasonable person would leave the
job.”); Poland v. Chertoff, 494 F.3d 1174,
1184 (9th Cir.2007); Penn. State Police v. Suders,
542 U.S. 129, 147 (2004) (holding that constructive discharge
occurs when working conditions are so intolerable that a
reasonable person would have felt compelled to resign).
Tatum has not demonstrated a prima facie case of
unlawful retaliation. In order to establish a prima facie
case of retaliation, “the employee must show that he
engaged in a protected activity, he was subsequently
subjected to an adverse employment action, and that a causal
link exists between the two.” Dawson v. Entek
Int'l, 630 F.3d 928, 936 (9th Cir. 2011); see
also Ray v. Henderson, 217 F.3d 1234, 1244-45 (9th Cir.
2000) (“harassment, if sufficiently severe, may
constitute ‘adverse employment action' for purposes
of a retaliation claim”) (citation omitted). On summary
judgment, Tatum claims that when she reported her
co-worker's harassment, and then complained of
DaVita's failure to respond, it retaliated against her by
subjecting her to a hostile work environment, constructively
discharging her. Tatum, however, presents no arguments or
points to evidence showing that she was subject to severe or
pervasive harassment after she submitted her complaints to
management. Tatum's failure to establish any causal link
between her protected activity and subsequent resignation is
fatal to her claim for relief. See Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013) (“[A]
plaintiff making a retaliation claim… must establish
that his or her protected activity was a but-for cause of the
alleged adverse action by the employer.”).
has failed to show there is sufficient evidence of
discrimination or retaliation to create a genuine dispute for
trial and DaVita is entitled to judgment as a matter of law.
Accordingly, IT IS ORDERED that
Defendant's Motion for Summary Judgment (Doc. 51) is
IS FURTHER ORDERED that the Clerk of Court shall
terminate this case and enter judgment accordingly.