FILED
NOT FOR PUBLICATION
NOV 10 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUKE ROMERO, M.D., No. 14-17280
Plaintiff-Appellant, D.C. No. 3:11-cv-04812-WHO
v.
MEMORANDUM*
COUNTY OF SANTA CLARA, DBA
Santa Clara Valley Medical Center; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick III, District Judge, Presiding
Argued and Submitted October 19, 2016
San Francisco, California
Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.
Dr. Luke Romero appeals the district court’s order granting summary
judgment in favor of Santa Clara Valley Medical Center (SCVMC) on his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
disability discrimination, retaliation, and wrongful termination claims.1 Romero
also appeals the entry of judgment in the defendants’ favor following a jury trial on
the claims not dismissed at summary judgment. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
The district court properly granted summary judgment on Romero’s
interactive-process claim because Romero bears responsibility for the breakdown
in the interactive process. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089
(9th Cir. 2002). Romero not only repeatedly asserted that he was not seeking
reasonable accommodations other than additional medical leave, but also
characterized the County’s attempts to initiate the reasonable accommodations
process as harassment. Additional medical leave of unspecified duration — the
sole accommodation that Romero sought and was willing to accept — was not
reasonable because Romero had already been given three extensions to the initial
period of leave granted, Dr. Collyer viewed his potential return to SCVMC as
“counter-therapeutic,” and Dr. Verrinder testified that she was merely “hopeful”
that Romero could return to work even with a fourth extension. See Dark v. Curry
County, 451 F.3d 1078, 1090 (9th Cir. 2006) (noting that “recovery time of
1
The same analysis applies to Romero’s federal claims and California
state-law claims. See Humphrey v. Mem’l Hosp. Ass’n, 239 F.3d 1128, 1133 n.6
(9th Cir. 2001).
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unspecified duration may not be a reasonable accommodation” especially when the
employee “cannot state when and under what conditions he could return to work”).
Because Romero could not return to work at SCVMC with a reasonable
accommodation, he “cannot show that he was qualified at the time of his
discharge.” Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015); see
42 U.S.C. § 12111(8). And because Romero cannot establish that he was a
qualified individual, he also cannot establish a prima facie case for either disability
discrimination, see Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 271 (9th Cir.
1996), or failure to accommodate, see Samper v. Providence St. Vincent Med. Ctr.,
675 F.3d 1233, 1237 (9th Cir. 2012). The district court did not err in granting
summary judgment on those claims.
The district court properly granted summary judgment on Romero’s
wrongful-termination claim and retaliation claims to the extent they were based on
his termination. Romero cannot establish a causal connection between any
protected activity of which SCVMC was aware, see Raad v. Fairbanks N. Star
Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003), and the resulting adverse
employment action, his termination. See Pardi v. Kaiser Found. Hosps., 389 F.3d
840, 849 (9th Cir. 2004); Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.
2000).
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The temporal proximity between Romero’s complaint to the Accreditation
Council for Graduate Medical Education and his termination does not establish
causation because the complaint was made anonymously and SCVMC was not
informed of the complaint until after Dr. Bridget Philip set the conditions of
Romero’s termination in the September 18 letter. Romero’s January 2012 and
September 2012 complaints to the California Department of Fair Employment and
Housing are also insufficient to establish causation because Romero offers no
evidence that SCVMC was aware of these complaints.
Nor could Romero establish causation by demonstrating an ongoing pattern
of retaliation. See Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 894–96 (9th Cir.
2004). The jury’s verdict for SCVMC necessarily implies that it found that the
peer reviews were not retaliatory, a finding that is entitled to preclusive effect. See
Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. Supply Inc., 106 F.3d
894, 901 (9th Cir. 1997). Neither Dr. Friedrich Moritz’s May 9, 2011, email
raising the possibility of closer monitoring nor the in-progress HIPAA and peer-
review confidentiality investigations were “sufficiently final to constitute an
adverse employment action.” Brooks, 229 F.3d at 930.
The district court did not abuse its discretion in granting SCVMC’s motion
in limine to exclude Dr. Jana Dolnikova, Richard Hughes, and Dr. Carla Shnier’s
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testimony about their personal experiences with retaliation and discrimination.
The district court identified the correct legal standard, see Fed. R. Evid. 403, and
its application of Rule 403 was not illogical, implausible, or without support in
inferences that may be drawn from the facts in the record. See United States v.
Torres, 794 F.3d 1053, 1059 (9th Cir. 2015) (citing United States v. Hinkson, 585
F.3d 1247, 1261–62 (9th Cir. 2009) (en banc)). Because the evidence at issue did
not show SCVMC’s hostility toward “a group defined by clearly established
parameters such as gender or race,” the district court could reasonably conclude
that the testimony would be of limited probative value. Beachy v. Boise Cascade
Corp., 191 F.3d 1010, 1014 (9th Cir. 1999) (citations omitted).
AFFIRMED.
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