United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Pima Medical
Institute's (“Defendant” or
“Pima”) Motion for Summary Judgment of
Plaintiff's claims. Dkt. # 22. Plaintiff Patrick Njoroge
opposes the Motion. Dkt. # 25. For the reasons stated below,
Defendant's Motion is GRANTED in part
and DENIED in part.
Defendant's Motion to Strike Plaintiff's
preliminary matter, Defendant argues that Plaintiff alleges
facts in his Response that do not meet the requirements of
Federal Rule of Civil Procedure 56(c). Several of the factual
assertions in Plaintiff's Response are only supported by
Plaintiff's own declaration. Dkt. # 23. Rule 56(c)
requires that factual positions in a motion for summary
judgment be supported by citations to part of the record,
including affidavits or declarations. These affidavits or
declarations must be “made on personal knowledge, set
out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the
matters stated.” Fed.R.Civ.P. 56(c).
to Defendant's assertion, several of the facts alleged in
Plaintiff's declaration appear to be based on his
personal knowledge and alleged experiences, not on
information from others. Defendant also argues that
Plaintiff's declaration cannot be the basis to create a
material issue of fact because several of the alleged facts
conflict with Plaintiff's deposition testimony, were not
testified to in his deposition, and conflict with Dr.
Corsilles-Sy's declaration. By asking the Court to
determine the truth of Plaintiff's declaration through
comparison to his deposition testimony and Dr.
Corsilles-Sy's declaration, Defendant is asking the Court
to make a credibility determination. “In resolving
summary judgment motions, a court must not weigh the
evidence, make credibility determinations, or draw inferences
from the facts adverse to the non-moving party.”
His & Her Corp. v. Shake-N-Go Fashion, Inc., 572
Fed.Appx. 517, 518 (9th Cir. 2014); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986) (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge, whether he is ruling on a motion for summary judgment
or for a directed verdict.”); see also Entrepreneur
Media, Inc. v. Smith, 279 F.3d 1135, 1149 (9th Cir.
2002). As Plaintiff's credibility is more appropriately
considered at trial, the Court declines to make that
also argues that Plaintiff's declaration must be struck
because it is based on inadmissible hearsay. Plaintiff relies
on several statements he alleges were made by Pima
instructors and other personnel. Defendant argues that
Plaintiff must lay a foundation in order to rely on
statements made by Pima personnel as statements of a party
opponent. However, “[t]o survive summary judgment, a
party does not necessarily have to produce evidence in a form
that would be admissible at trial, as long as the party
satisfies the requirements of Federal Rules of Civil
Procedure 56.” Block v. City of Los Angeles,
253 F.3d 410, 418-19 (9th Cir. 2001). The Court makes no
judgment on whether Plaintiff will be able to lay a
foundation for these statements at trial, but will consider
statements that meet the requirements of Rule 56 for the
purposes of this Motion. To the extent that Plaintiff's
declaration is based on inadmissible hearsay, it will not be
considered for the purposes of this Motion.
Defendant requests that the Court strike any speculative and
conclusory allegations not supported by the record. To the
extent that Plaintiff's declaration makes any speculative
or conclusory allegations, it will not be considered here.
Plaintiff's Academic History
Patrick Njoroge, is black and originally from Kenya. Dkt. # 1
¶ 3.1. He is a resident of King County, Washington.
Id. at ¶ 2.1. Pima is a medical career college
that is incorporated in Arizona but conducts business in King
County, Washington. Dkt. # 23 Ex. A. In Fall of 2012,
Plaintiff enrolled in the Occupational Therapy Assistant
(“OTA”) program at Pima. Dkt. # 25. At this time,
Plaintiff completed an Enrollment Agreement. Dkt. # 23 Ex. C.
The Enrollment Agreement stated Pima's tuition refund
policy. Id. Under this policy, Pima retains 100% of
enrollment period charges if Plaintiff withdraws or is
terminated from the program during “greater than 50%
through or through the remainder of the enrollment
period.” Dkt. # 23 Exs. C, J.
to the policies and procedures of the OTA program, failure of
three or more courses may result in termination from the
program. Dkt. # 23 Ex. F. If a student fails an OTA
designated course, the student may retake the course one
time. Id. Failure of that course a second time
results in termination from the OTA program. Id. If
a student is terminated from the OTA program, that student
can apply to re-enroll in the program. Id. After
re-enrollment, failure of an OTA designated course will
result in termination from the OTA program. Id. At
that time, the student may not be eligible for another
point after Plaintiff began classes at Pima, he submitted an
essay about his heritage titled, “Kikuyu
Culture”. Dkt. # 26. Plaintiff alleges that after he
submitted his essay, instructors at Pima began treating him
differently. Id. During Plaintiff's first term,
he failed three OTA designated courses and was withdrawn from
the program. Dkt. # 23 Ex. H; Dkt. # 23 Ex. E. Plaintiff
testified in his deposition that he failed these courses due
to illness. Dkt. # 23 Ex. E. Plaintiff made no claims of
discrimination at that time. In May 2013, Plaintiff was
permitted to re-enroll in the OTA program to retake the three
courses he initially failed. Dkt. # 23 Ex. I. At the time of
re-enrollment, Plaintiff executed another Enrollment
Agreement. Dkt. # 23 Ex. J. During this second enrollment,
Plaintiff passed the courses he failed during his first term.
the third term of Plaintiff's second enrollment at Pima,
Plaintiff failed another course. Id.; Dkt. # 25.
Plaintiff testified that he failed the class because he was
“emotionally disturbed” because his mother was
sick. Dkt. # 23 Ex. E. On May 23, 2014, Plaintiff met with
the OTA program director, Dr. Cecille Corsilles-Sy. During
that meeting, Dr. Corsilles-Sy informed Plaintiff that he was
terminated from the OTA program because he failed four
courses. Id. On May 27, 2014, Plaintiff appealed his
termination from the OTA program. Id. In his appeal
letter, Plaintiff stated his belief that, according to Pima
policies, he should be given the opportunity to retake his
failed fourth course. Plaintiff's letter also included a
quote from the affirmative action policy in the Pima Medical
Institute Catalogue, but did not contain any specific
allegations of discrimination. Dkt # 23 Ex. K.
12, 2014, Plaintiff met with a panel regarding his appeal.
During the hearing, Plaintiff was asked whether he felt
discriminated against. Plaintiff stated that he felt
discriminated against because Dr. Corsilles-Sy terminated him
without giving him another opportunity to continue with the
program. Dkt. # 23 Ex. E. Plaintiff stated in his deposition
that he believed he had “three chances for the whole
program, ” or, of the total number of semesters for the
OTA program, Plaintiff had three opportunities to pass all of
his courses. Id. After this hearing, Plaintiff was
allowed to repeat the course that he failed. Dkt. # 23 Ex. L.
Plaintiff retook his failed course in June 2014, and began
his Fall 2014 term in September 2014. Dkt. # 23 Ex. H.
Defendant's notes from the hearing, there is a
handwritten note that states, “[n]eed a statement from
Student on what or how he found discrimination in the OTA or
PD decision to terminate.” Id. The notes are
signed by Kristi Shimada, Associate Director at Pima, and Dr.
Corsilles-Sy. Id. After the panel hearing, Ms.
Shimada prepared a written statement regarding
Plaintiff's discrimination claims. Dkt. # 22. The
statement reads, in part: “I spoke to Patrick regarding
his reference. He does not feel that the OTA program has
discriminated against him according to the Affirmative Action
statement. He wanted to reiterate that Pima Medical Institute
policy complied with the Affirmative Action Act.” Dkt.
# 22; Dkt. # 24 Ex. M. On June 18, 2014, Plaintiff signed the
September 29, 2014, Plaintiff received an email from Karen
St. Charles, one of his instructors, informing him that Fall
2014 term classes had begun and that she noted that he was
not in class. Dkt. # 26 Ex. B. Plaintiff alleges that he
spoke to Ms. St. Charles the next day and explained that he
missed his first class because he did not receive any
information about his class schedule. Plaintiff also alleges
that Ms. St. Charles indicated that Plaintiff's name was
not in the system and assured him that his absence the day
before would not be “counted against him”. Dkt. #
26 ¶ 19. During Plaintiff's Fall 2014 term, he
alleges that he spoke to instructors in three of his courses
about his grades, which were posted on Pima's internal
online system: Ms. Keith, Ms. Loi, and Ms. Keeny. Dkt. # 26.
Plaintiff believed that these grades were incorrectly noted.
On all three occasions, Plaintiff alleges that the
instructors somehow attributed his incorrect grades to Dr.
Corsilles-Sy, either because she would not change a grade, or
because she was the person who entered the grade into the
system. Dkt. # 26.
December 15, 2014, Plaintiff alleges that he spoke to Campus
Director, Bob Panerio, and explained that his grades were
incorrectly posted, that after bringing these errors to the
attention of his instructors they began giving his
assignments below-average grades, and that Ms. Keeny told him
that he lacked critical thinking because English was his
second language. Dkt. # 26. Plaintiff further alleges that
Mr. Panerio then told Plaintiff that he wanted to investigate
these claims. Id. The following month, Plaintiff
followed-up with Mr. Panerio. Mr. Panerio allegedly told
Plaintiff, “It looks you have a problem with Dr.
Corsilles-Sy Cecilles.” Id. After this
conversation Mr. Panerio did not speak to Plaintiff about
this matter again. Id.
February 9, 2015, Plaintiff received an email from Dr.
Corsilles-Sy, stating that he was terminated from the OTA
program because he received failing grades in two more
courses during his Fall 2014 term. Dkt. # 23 Ex. N. After
receiving this information, Plaintiff met with Ms. Shimada,
Dr. Corsilles-Sy, and the instructors of those two courses.
Dkt. # 23 Ex. E. At this meeting, one of Plaintiff's
instructors, Ms. Keith, realized that she had made a grading
error on one of Plaintiff's papers. After Ms. Keith
regraded Plaintiff's paper, he received a passing grade
in that course. Id. After Plaintiff's grades
were adjusted, he still had a failing grade in one of his
courses, Pediatrics, and his termination from the OTA program
was upheld. Id.
22, 2016, Plaintiff filed a Complaint against Defendant for
race discrimination, retaliation, violation of the Equal
Protection Clause of the Fourteenth Amendment, and other
state law claims. Dkt. # 1.
judgment is appropriate if 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). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the moving
party will have the burden of proof at trial, it must
affirmatively demonstrate that no reasonable trier of fact
could find other than for the moving party. Calderone v.
United States, 799 F.2d 254, 259 (6th Cir. 1986). On an
issue where the nonmoving party will bear the burden of proof
at trial, the moving party can prevail merely by pointing out
to the district court that there is an absence of evidence to
support the non-moving party's case. Celotex
Corp., 477 U.S. at 325. If the moving party meets the
initial burden, the opposing party must set forth specific
facts showing that there is a genuine issue of fact for trial
in order to defeat the motion. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). The court must view the
evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in that party's favor.
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
150-51 (2000). Credibility determinations and the weighing of
the evidence are jury functions, not those of a judge.
Anderson, 477 U.S. at 255.
the court need not, and will not, “scour the record in
search of a genuine issue of triable fact.” Keenan
v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see
also, White v. McDonnel-Douglas Corp., 904 F.2d 456, 458
(8th Cir. 1990) (the court need not “speculate on which
portion of the record the nonmoving party relies, nor is it
obliged to wade through and search the entire record for some
specific facts that might support the nonmoving party's
claim”). The opposing party must present significant
and probative evidence to support its claim or defense.
Intel Corp. v. Hartford Accident & Indem. Co.,
952 F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated
allegations and “self-serving testimony” will not