Luke Romero v. County of Santa Clara

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NOT FOR PUBLICATION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).
2
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).

3
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

4
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.