United States District Court, D. Idaho
ORDER ADOPTING REPORT AND RECOMMENDATION
EDWARD J. LODGE, District Judge.
Chief United States Magistrate Judge Candy W. Dale issued a Report and Recommendation in this matter. (Dkt. 78.) Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days in which to file written objections to the Report and Recommendation. Objections and responses to the objections were filed by the parties. The matter is now ripe for the Court's consideration.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge. Where the parties object to a report and recommendation, this Court shall make a de novo determination of those portions of the report which objection is made. Id . Where, however, no objections are filed the district court need not conduct a de novo review. In
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements of 28 U.S.C. § 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz, 501 U.S. at 939 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding."); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required for Article III purposes unless requested by the parties)....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to the extent that no objections are made, arguments to the contrary are waived. See Fed.R.Civ.P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the Report and Recommendation). "When no timely objection is filed, the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)). In this case, the objections were filed so the Court is required to conduct a de novo determination of the Report and Recommendation.
Plaintiff Raul Mendez filed a pro se Complaint on January 20, 2012 alleging he was discriminated in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 200e, et seq., based on his national origin and religion, he was subjected to a hostile work environment, his employment with St. Alphonsus Regional Medical Center, Inc. (St. Alphonsus) was terminated in retaliation for complaining about the discrimination and
St. Alphonsus violated and/or breached the covenant of good faith and fair dealing implicit in his employment contract. Mr. Mendez is Hispanic and Judge Dale properly set forth that a claim for discrimination because Plaintiff is Hispanic is actually a race claim under Title VII not a national origin claim. Plaintiff does not dispute this legal clarification by Judge Dale.
Plaintiff retained counsel and filed an Amended Complaint on May 25, 2012 (Dkt. 5). The Amended Complaint raises the same causes of action as set forth in the original Complaint but breaks the claims out into eight different causes of action. St Alphonsus filed a motion for summary judgment on all claims on January 15, 2014 (Dkt. 48). Mr. Mendez was given until July 31, 2014 to file his reply to the motion and oral argument on the motion was heard by Judge Dale on August 28, 2014.
Mr. Mendez began working for St. Alphonsus in 2007 as a radiology technician at a clinic in Nampa referred to as the Iowa Clinic. He started as a part-time employee but became a full-time employee on March 15, 2009. In exchange for the full-time position, Mr. Mendez agreed to perform non-radiology assignments under the supervision of the Lead Nurse, Rachel Croft, and Clinic Manager, Connie Miller.
Late November of 2009, Mr. Mendez started refusing to perform assigned duties, complained to co-workers about his supervisors and the work environment at the clinic. Mr. Mendez emailed some of his complaints to Judi Vejar on November 27, 2009 (Dkt. 72-1, pp. 36-37). Specific examples are included in the Report and Recommendation and are incorporated by reference. Mr. Mendez also alleges he informed Ms. Vejar in late 2009, that Ms. Miller made offensive comments about his Hispanic race and his religion. Other employees have corroborated that Ms. Miller made some inappropriate comments directed at Mr. Mendez. These comments could be interpreted to be about his Hispanic race and/or people who belong to the Church of Jesus Christ of Latter Day Saints (LDS or Mormon religion).
In February of 2010, Mr. Mendez's co-workers began complaining to Ms. Miller about Mr. Mendez's negative attitude and disrespect for management. One person who complained via email was Leonna McDowell whom Mr. Mendez assisted in the laboratory. She indicated Mr. Mendez's negative attitude had been going on for about a year. (Dkt. 48-7, p. 64.) On February 3, 2010, Mr. Mendez applied for a transfer within St. Alphonsus. (Dkt. 72-1, p. 39.) He did not receive the transfer.
Certain job performance issues continued and on or about May 7, 2010, Ms. Miller gave Mendez a verbal warning regarding his behavior that morning. This verbal warning was followed up with a written reprimand dated May 18, 2010 which was signed by Mr. Mendez, Ms. Miller and Ms. Croft. (Dkt. 72-4, pp. 3-4). Mr. Mendez denied the accusations in the reprimand about his attitude, negative or inappropriate communication, that his imaging was taking too long, leaving the lab for film and leaving a door propped open.
Following the May 7, 2010 meeting with Ms. Miller, Mr. Mendez emailed a complaint to St. Alphonsus' Organizational Integrity Program (OIP) Local Integrity Officer. In the OIP complaint, Mr. Mendez alleged Ms. Miller had made offensive remarks about his personal hygiene and the LDS church. Upon receipt of the OIP Complaint, St. Alphonsus began an investigation into Mr. Mendez's allegations. The investigation was confidential and there is no evidence in the record that Ms. Miller or Ms. Croft had knowledge of the investigation as it was occurring. Mr. Mendez met with the investigator, Dennis Wedman, on or about May 18, 2010. (Dkt. 72-4, p.2.) Mr. Mendez testified in his deposition he did not otherwise discuss the investigation with other employees. As a result of the OIP investigation and interviews with Mr. Mendez and other employees, Ms. Miller resigned in lieu of discharge effective June 1, 2010. Brenda McCord became the interim Clinic Manager.
On May 25, 2010, Ms. Croft issued a formal written Disciplinary Action Record (Record) citing Mr. Mendez for insubordination and retaliation. (Dkt. 48-8, p. 5.) The Record sets forth allegations that Mr. Mendez disobeyed orders not to retaliate against Ms. McDowell who had complained about Mr. Mendez's actions on May 7th. Id. The Record instructs Mr. Mendez that he may contact St. Alphonsus' Chief Operating Officer (COO) Patti Brahe if he thinks he has been unfairly disciplined. Id. The Record also states any further violation will result in immediate termination. Id.
Ms. McCord and Mr. Croft completed an annual written employee evaluation with Mr. Mendez on June 17, 2010. The evaluation indicated Mr. Mendez resisted performing other assigned duties, needs to improve his communication and teamwork and directs Mr. Mendez to direct his concerns to his manager versus his co-workers. (Dkt. 48-8, p. 6-10.)
On June 23, 2010, Mr. Mendez emailed COO Brahe requesting the May 18th written reprimand and the May 25 Record and certain comments on the June 17, 2010 evaluation be cleared from his personnel file. (Dkt. 48-8, pp. 14-19.) Mr. Mendez complained in his email about the environment at the Iowa Clinic and acknowledged he refused to perform certain additional lab duties "because... there is a lack of teamwork and proper organization at his clinic." (Dkt. 48-8, p. 18.). Ms. Brahe met with Mr. Mendez about his concerns on July 20, 2010 and in a letter dated July 26, 2010 declined to change Mr. Mendez's personnel record. (Dkt. 48-8, p. 20.) Ms. Brahe offered suggestions about changes Mr. Mendez could make in his job performance to make the recent evaluation and discipline less of an issue in the future. Id.
Between July and early October of 2010, additional conduct and performance issues were noted by supervisors and management of the Iowa Clinic. Specific details are identified in the Report and Recommendation at pages 9-10 and are incorporated by reference. On October 15, 2010, the new Clinic Manager Shane Allen terminated Mr. Mendez: "because of his unsatisfactory work performance, including: (1) his continued negative comments about co-workers despite multiple written warnings; (2) his continued violation of other express instructions from management; (3) his refusal to perform assigned work and refusal to assist coworkers; and (4) general performance issues, including wasting time on email and taking too long to perform his work." (Allen Dec. ¶ 17, Dkt. 48-4, pp. 4-5.)
There is no dispute that Mr. Mendez knows how to perform x-rays, is good with patients, served as a translator for a number of patients, and helped with other assignments at the Iowa Clinic. (See letters about quality of x-rays from the Iowa Clinic and personal letters of reference Dkt. 72-1, pp. 14-23.) However, it is also undisputed from the record that management had concerns about his interactions with co-workers, his ability to follow the chain of command, his respect for supervisors and the amount of time it took him to complete x-rays. The time concern is a reoccurring issue as seen on his July 2008 evaluation "Rauls quality of x-ray was high, could improve speed." (Dkt. 72-1, p. 7.)
In his objections, Mr. Mendez notes that another employee, Beverly Tremayne, also complained about Ms. Miller's offensive comments and the Report and Recommendation makes no mention of Ms. Tremayne and that she was given similar poor evaluations after filing a complaint with OIP. In Mr Wedman's email to Mr. Mendez on June 1, 2010 he indicates he is getting back to Mr. Mendez regarding "the complaint you filed on behalf of Beverly Tremayne." (Dkt. 72-1, p.9.). Mr. Wedman states in his email the investigation is complete regarding concerns of "unlawful Harassment, Retaliation and Inappropriate comments made towards you and others." Id. Mr. Wedman indicates "the hospital has taken appropriate action to insure you or others do not experience similar concerns." Id. The Court accepts for purposes of the pending motion that Mr. Mendez as well as other employees were concerned about offensive Hispanic or religious comments. As to specific allegations of similar alleged retaliation in the form of poor evaluations or ...