Shannon Saevik v. Swedish Medical Center ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANNON ANDERSON SAEVIK, No. 22-35023
Plaintiff-Appellant, D.C. No. 2:19-cv-01992-JCC
v.
MEMORANDUM*
SWEDISH MEDICAL CENTER;
REBECCA J. DAY, Clinic Operations
Manager,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted December 5, 2022
Seattle, Washington
Before: McKEOWN, MILLER, and H.A. THOMAS, Circuit Judges.
Shannon Saevik appeals from the district court’s order granting summary
judgment for Appellees Swedish Medical Center and Rebecca Day in this action
asserting federal and state claims of employment discrimination, retaliation, and
related torts. We have jurisdiction under 28 U.S.C. § 1291. “We review de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the district court’s grant of summary judgment.” Christian v. Umpqua Bank, 984
F.3d 801, 808 (9th Cir. 2020). We affirm.
1. We affirm the district court’s grant of summary judgment to Appellees on
Saevik’s claim of failure to accommodate under the Washington Law Against
Discrimination (WLAD), Wash. Rev. Code §§ 49.60.010–525. To prevail, Saevik
must show that she “cooperate[d] with the employer’s efforts by explaining her
disability and qualifications.” Goodman v. Boeing Co., 899 P.2d 1265, 1269
(Wash.), as amended (Sept. 26, 1995). Swedish policy required employees to
submit medical documentation to Sedgwick, Swedish’s third-party leave
administrator, when making an accommodation request, and Saevik was told both
by her supervisor and by human resources (HR) that she needed to go through
Sedgwick to extend her work-from-home accommodation. Because Saevik never
submitted the requested documentation to Sedgwick, she cannot prevail on her
failure-to-accommodate claim. Cf. Snapp v. United Transp. Union, 889 F.3d 1088,
1103 (9th Cir. 2018) (holding that failure to follow an employer’s instructions for
submitting an accommodation request is evidence of failure to engage in the
interactive process required by the Americans with Disabilities Act).
2. We affirm the district court’s summary judgment for Appellees on
Saevik’s claim of a hostile work environment under the WLAD. In support of her
claim, Saevik alleges that Day made derogatory comments to her in 2017 (before
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Day became Saevik’s supervisor), and that Day improperly accessed Saevik’s
medical records in violation of the Health Insurance Portability and Accountability
Act (HIPAA). But the evidence suggests that Swedish took adequate remedial
action to address any derogatory comments that Saevik brought to its attention, and
Day’s alleged HIPAA violations would not have constituted harassment
“sufficiently pervasive so as to alter the conditions of employment and create an
abusive working environment.” Robel v. Roundup Corp., 59 P.3d 611, 617 (Wash.
2002) (quoting Glasgow v. Georgia-Pacific Corp., 693 P.2d 708, 712 (Wash.
1985)). Nor would any other conduct alleged in this case, such as Day’s
unplugging Saevik’s computer, meet that standard.
3. We affirm the district court’s summary judgment for Appellees on
Saevik’s claims of disparate treatment under the WLAD, retaliation under the
WLAD, common-law whistleblower retaliation, and wrongful discharge. We
assume that Saevik has established a prima facie case for these claims. But
Swedish presented a legitimate, non-discriminatory, and non-retaliatory reason for
Saevik’s termination—namely, timecard fraud. To prevail on her claims, therefore,
Saevik would have to establish either that the asserted reason for her termination
was pretextual or that “discrimination, retaliation, or violation of public policy also
was a substantial motivating factor for the termination.” Mackey v. Home Depot
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USA, Inc., 459 P.3d 371, 387 (Wash. Ct. App. 2020); see also id. at 381–82, 384–
85.
Saevik has not presented evidence that would create a genuine dispute of
fact on the issue of pretext. She alleges that Day made disparaging comments
about her, but those alleged comments, while troubling, were made two years
before the termination decision, so they are of minimal probative value. She also
cites an email that appears to have been drafted for Day’s signature on August 7,
2019. In that email, Saevik is criticized for her “grievances” and is described as a
“drain on resources.” But there is no evidence that Day ever sent the email. At
most, the record shows that someone drafted the email on Day’s behalf and that
she considered sending it. But by itself, an unsent draft is not enough to allow a
jury to conclude that Day bore any animus toward Saevik. Nor is there any
indication that Day sought out the evidence of timecard fraud with the goal of
getting Saevik fired; to the contrary, Day stated that she was reviewing a different
employee’s timekeeping records when she came across the video footage that
implicated Saevik.
In addition, Day was not the ultimate decision maker. The termination
decision was made by three people in the HR department, and there is no
indication that any of the decision makers bore any animus toward Saevik. For
Saevik to prevail, she would have to show that Day somehow influenced the
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ultimate termination decision to a sufficient degree to have been a substantial
factor in that decision. See Mackey, 459 P.3d at 386. The evidence in the record
does not satisfy that standard.
4. We affirm the district court’s summary judgment for Appellees on
Saevik’s Family and Medical Leave Act (FMLA) claim. First, Saevik alleges that
Day unplugged her computer while she was working remotely and that this
constituted FMLA interference. But Saevik does not support this claim with any
legal analysis, and she admits that her computer was quickly reconnected. Second,
Saevik offers only conclusory, uncorroborated statements as evidence that she was
denied leave to which she was entitled under the FMLA. These statements,
standing alone, are insufficient to create a genuine issue of material fact. See Nigro
v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015); Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).
5. Saevik also challenges several of the district court’s discovery rulings. “A
district court’s discovery order is reviewed for abuse of discretion,” Shaw v. Bank
of Am. Corp., 946 F.3d 533, 537 (9th Cir. 2019), and a “decision to deny discovery
will not be disturbed except upon the clearest showing that denial of discovery
results in actual and substantial prejudice to the complaining litigant,” Dichter-
Mad Fam. Partners v. United States, 709 F.3d 749, 751 (9th Cir. 2013) (quoting
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)).
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First, Saevik has not shown that the exclusion of the collective bargaining
agreement (CBA) from the deposition of Swedish’s Rule 30(b)(6) representative
prejudiced her. She has not identified any language in the CBA that would have
authorized the unreported break that led to her termination.
Second, the district court did not abuse its discretion in denying Saevik’s
request for a discovery magistrate and attorney’s fees. The district court explained
that there was no need to appoint a discovery magistrate, as the court itself could
handle any discovery disputes that might arise. As to fees, Swedish opposed
Saevik’s motion to compel the deposition of a Swedish representative on the
ground that Saevik had already exhausted her ten depositions and would need
leave from the district court to compel another deposition. The district court ruled
that Saevik had not reached her deposition limit because Saevik’s Rule 30(b)(6)
depositions should be counted as a single deposition for purposes of the ten-
deposition limit in Federal Rule of Civil Procedure 30(a)(2)(A)(i). The court
explained, however, that because of the lack of controlling authority on the issue,
“Defendants’ failure to provide Plaintiffs with access to [the witness] was
substantially justified,” and Saevik therefore was not entitled to attorney’s fees. See
Fed. R. Civ. P. 37(a)(5)(A)(ii). Neither decision was an abuse of discretion.
Third, Saevik challenges the June 4, 2021 and November 2, 2021 orders in a
cursory fashion. “We will not manufacture arguments for an appellant, and a bare
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assertion does not preserve a claim . . . .” Greenwood v. FAA, 28 F.3d 971, 977
(9th Cir. 1994).
AFFIRMED.
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