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September 22, 2004.

MARLA WALLIN, Plaintiff,

The opinion of the court was delivered by: JOHN NORDBERG, Senior District Judge


Plaintiff Marla Wallin worked as a pharmacy technician for Kindred Hospital*fn1 for almost eight years until she was fired on January 18, 1999 by the Hospital's CEO because she allegedly talked candidly and openly with coworkers about an affair that she had been having with a doctor working at the Hospital. Wallin believes that this reason was pretextual and that the real reason was sex discrimination given that the Hospital did not also fire the male doctor. Plaintiff also believes that she was the victim of religious, national origin, racial, and retaliatory discrimination engaged in by her immediate supervisor, an Asian male, who allegedly treated her more harshly than coworkers on several occasions and who allegedly tainted her reputation in the Hospital, which in turn supposedly induced the CEO to fire her. For the reasons set forth, we grant the Hospital's motion for summary judgment on all counts.


  Marla Wallin was hired as a pharmacy technician in April 1991. Her job involved filling patient medication orders, compounding IV solutions, delivering medications to patients' rooms, and overseeing purchasing of drugs and supplies from the Hospital's warehouse. Until December 1996, she had a professional and satisfactory working relationship with four different supervisors. Things began to change in December 1996, when she began reporting to Ted Tse, who is an Asian male. It is undisputed that Tse and Wallin did not get along well during the time they worked together. There is a dispute, however, as to the reason for the conflict and whether it ultimately had any influence on the Hospital's later decision to fire her.

  Although she did not believe so at the time of the events in question, Wallin now believes that Tse was discriminating against her. She also believes that his discriminatory bias tainted her reputation in the Hospital. Set forth below are the various incidents and comments that allegedly evidence Tse's discriminatory bias and conduct.

  Tse Makes Two Comments

  Wallin claims that Tse made two comments suggesting that he was trying to discriminate against her based on her sex. She described them in her deposition:

  [W]hen he first met me he was like, you know, oh, pretty woman, very pretty woman, and you know, that was okay. But later on he had made a comment [] either during my performance evaluation or at a time when he brought me in to just discuss a situation with him, that his expectation of me was to be like his little sister. And I said I don't want to be your little sister, I'm your employee, you know, what do you mean by your little sister. I mean I felt that it was a little downgrading of me, you know. (Dep. 127.) Although Wallin did not appreciate the comments, she did not view them as sexual harassment at the time they were made. It was only later after she was fired that she concluded the comments were sexual harassment when someone (presumably her lawyer) "said, you know what, that's sexual harassment if someone tells you things like that." (Dep. 172.)

  Tse Gives Wallin Three ECRs

  On three occasions, Tse met with Wallin and gave her an Employee Conference Record ("ECR"), which is a document used to memorialize a counseling session held by a supervisor relating to concerns about an employee's job performance. Prior to this time, Wallin had never been given an ECR.

  First, in January 1997, Tse gave Wallin an ECR for failing to file complete reports of medication inventory. Wallin thought this was unfair and explained to Tse at the time that her report was incomplete because she did not have a key to the narcotics vault. At the time, Wallin did not believe that Tse's criticism was motivated by any discriminatory animus but instead thought he was confused as to "how we actually had done inventory." (Dep. 41-42.)

  Second, also in January 1997, Tse gave Wallin an ECR for clocking in before her shift started. She was again upset. Although she did not believe that the ECR contained any factual misstatements or that Tse was harassing her, she thought it was unfair that she was written up when a Hispanic male co-worker (Tony Zarzoza) allegedly had done the same thing and was not disciplined to Wallin's knowledge. She complained that "Tony was getting special privileges that I wasn't." (Dep. 53.)

  Third, in August 1997, Wallin received a third ECR from Tse after he learned that Wallin modified a work schedule of a co-worker (the same male Hispanic identified above with whom plaintiff had a good working relationship) to keep him from getting overtime while she was on vacation. She changed his schedule because she thought it was unfair that he could get overtime while she was on vacation when she had been unable to get overtime while he was on vacation.

  The 1997 and 1998 Performance Evaluations

  On two occasions, Tse gave Wallin performance evaluations that contained two negative marks, which she thought were undeserved.

  In April 1997, Tse met with Wallin to discuss her performance evaluation for that year. Although Tse gave Wallin a favorable evaluation and an annual salary increase, she was unhappy because he also gave her (for the first time in her career at the Hospital) two "below standard" marks. Neither mark affected Wallin's overall favorable performance rating. One mark related to her ability to review purchasing contracts and the other related to her ability to get along with co-workers. Wallin complained to Tse, telling him that she had never received any training in reviewing purchasing contracts. Tse agreed with her on this point and revised the mark to "not applicable."

  Wallin asked Tse why he thought she did not work effectively with her co-workers. Tse explained that Wallin's co-worker, Alice Lai (who is of Asian descent), told him that she, along with other co-workers, found it difficult to work with her. Wallin admitted that she had communication problems with Lai in the past, but was surprised to hear that Lai would say something like that to Tse.

  Towards the end of this April 1997 meeting, Tse gave Wallin three or four biblical scriptures to read. Tse claims that he thought the scriptures would be helpful to Wallin because she had told him in the past that she found religion to be comforting. Wallin disputes that she ever told Tse this and says that she was very offended by Tse's actions.*fn2 A few days later, she ...

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