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Njoroge v. Vocational Training Institutes, Inc.

United States District Court, W.D. Washington, Seattle

October 19, 2017




         This 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.

         I. BACKGROUND

         A. Defendant's Motion to Strike Plaintiff's Declaration

         As a 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).

         Contrary 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 determination here.

         Defendant 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.

         Finally, 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.

         B. Plaintiff's Academic History

         Plaintiff, 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.

         According 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 re-enrollment. Id.

         At some 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. Id.

         During 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.

         On June 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.

         In 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 statement. Id.

         On 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.

         On 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.

         On 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.

         On June 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.


         Summary 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.

         However, 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 ...

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