Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 1 of 26

1
2 NOT FOR PUBLICATION
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
9 Aifang Shi, ) No. CV-07-1147-PHX-SRB
)
10 Plaintiff, ) ORDER
)
11 vs. )
)
12 )
Central Arizona College, Ruth E. Carlson,)
13 Jon M. Stevens, Michael Hughes, and)
Mary Marrinan-Menchaca, )
14 )
Defendants. )
15 )
)
16
17
The Court now considers Defendants’ Motion for Summary Judgment (Doc. 109) and
18
Plaintiff’s Motion for Summary Judgment (Doc. 111). The Court also considers Plaintiff’s
19
Motion in Limine, Motion to Strike Declarations and Exhibits Attached to Defendants’ Reply
20
and Defendants’ Motion for Summary Judgment (“Pl.’s Mot. in Limine ”) (Doc. 127), and
21
Defendants’ Motion to Strike Plaintiff’s Statement of Facts in Support of her Reply to her
22
Motion for Summary Judgment (Doc. 126).
23
I. BACKGROUND
24
Plaintiff Aifang Shi enrolled in Central Arizona College’s (“CAC”) nursing program
25
in August 2005. (Defs.’ Statement of Facts in Supp. of Defs.’ Mot. for Summ. J. (“DSOF”)
26
at 1.) On August 8, 2005, Plaintiff signed an Enrollment Agreement, in which she
27
acknowledged having read and studied the CAC Nursing Program Student Handbook.
28
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 2 of 26

1 (DSOF at 1; Ex. 2, CAC Enrollment Agreement; Ex. 3, CAC Nursing Program Handbook.)
2 The Handbook explains the policies governing student clinical experiences at healthcare
3 facilities, and identifies the circumstances under which a student may be dismissed from the
4 program. (DSOF at 2; Ex. 3, CAC Nursing Program Handbook.) The Handbook states that
5 a student will be dismissed if the student receives an F grade in a core NUR course, including
6 NUR 221, or if the nursing faculty “decides that [the student’s] continued enrollment in the
7 Nursing Program constitutes a risk to the safety and well being of health care clients.
8 Usually this dismissal occurs because of unsatisfactory performance in the clinical setting,
9 but other factors such as substance use or abuse or behavioral concerns are also considered.”
10 (DSOF at 2; Ex. 3, CAC Nursing Program Handbook at 26.)
11 The Handbook explains the standards for performance and evaluation in a clinical
12 setting and sets forth the circumstances under which a student may be dismissed from the
13 clinical experience, including if “the clinical instructor and lead course coordinator judges
14 [the student’s] performance to be unprofessional or unsafe for the type of clients served in
15 that clinical setting.” (DSOF at 3; Ex. 3, CAC Nursing Program Handbook at 30.) The
16 Handbook requires that all second year students be directly supervised and observed by the
17 clinical instructor when administering all IV flushes, medications, pushes, and monitoring
18 blood administration. (DSOF at 3; Ex. 3, CAC Nursing Program Handbook at 31.) The
19 Handbook also states that all students must be directly supervised and observed by the
20 clinical instructor when giving medications to pediatric patients. (DSOF at 3; Ex. 3, CAC
21 Nursing Program Handbook at 31.) The Handbook also explains the circumstances under
22 which a student will be referred to a clinical skills lab for remediation, when a student is
23 unable to perform a skill in the clinical setting at a satisfactory level. (DSOF at 3; Ex. 3,
24 CAC Nursing Program Handbook at 31.)
25 In fall 2006 Plaintiff enrolled in the required course NUR 221, which included written
26 and clinical components. The NUR 221 Syllabus stated that written work was expected to
27 be grammatically correct using principles of basic writing. (DSOF at 3; Ex. 4, CAC Fall
28 2006 Syllabus.) The clinical component of NUR 221 included clinical rotations in

-2-
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 3 of 26

1 psychiatric, pediatric, and obstetric/gynecological fields. (DSOF at 4; Ex. 6, Hughes Decl.

2 at 8.)
3 In fall 2006, Plaintiff met with Dean Ruth Carlson (“Carlson”) to discuss the first
4 exam she took in Professor Michael Hughes’ (“Hughes”) psychology class. (DSOF at 4; Ex.
5 1, Shi Dep. at 91-93; Ex. 5, Carlson Decl. at 1-2.) Plaintiff asked for additional time to
6 double-check her work on her exam because English was not her first language. (DSOF at
7 4-5; Ex. 5, Carlson Decl. at 1-2.) Plaintiff was referred to the Student Services’ Disability
8 Office, where counselors told her that speaking English as a second language is not
9 considered a disability and she did not qualify for an accommodation. (DSOF at 4; Ex. 1,
10 Shi Dep. at 91-93; Ex. 5, Carlson Decl. at 1-2.)
11 On November 9, 2006, Plaintiff was asked to perform a clinical requirement for NUR
12 221 by starting an IV line on a patient. (DSOF at 6; Ex. 6, Hughes Decl. at 2.) Hughes was
13 the instructor for the clinical experience and told Plaintiff to select a patient for the
14 procedure. (DSOF at 6; Ex. 6, Hughes Decl. at 2.) Hughes stated that Plaintiff was hesitant
15 and nervous, placed tourniquets on both arms, and repeatedly switched arms. (DSOF at 6;
16 Ex. 6, Hughes Decl. at 2.) Plaintiff appeared to have difficulty inserting the needle into the
17 vein, and was unsuccessful in inserting the IV. (DSOF at 6; Ex. 6, Hughes Decl. at 2.)
18 Hughes referred Plaintiff to complete a clinical remediation lab, which she did on November
19 21, 2006. (DSOF at 6; Ex. 1, Shi Dep. at 103-04; Ex. 6, Hughes Decl. at 2.) Hughes wrote
20 a Clinical Skills Lab Referral form and also a Nursing Program Variance Report, describing
21 the incident. (DSOF at 7; Ex. 8, Clinical Skills Lab Referral; Ex. 9, CAC Nursing Program
22 Variance Report, Nov. 9, 2006.) The nurse accompanying Plaintiff and Hughes, Judy Parker,
23 wrote a letter describing the incident. (Pl.’s Mot. for Summ. J., Ex. 4, Parker Letter, Nov.
24 28, 2006.) Ms. Parker stated that the patient “was a hard stick, [Plaintiff] looked for bevel
25 up and checked both arms for site. After putting cath in unable to get flash at that point I
26 stepped in to help and took over the cath, fished a little and got flash. Procedure completed.
27 [Plaintiff] was very professional and she knew to get help when she was unable to get into
28 vein.” (Pl.’s Mot. for Summ. J., Ex. 4, Parker Letter, Nov. 28, 2006.) Plaintiff also did not

-3-
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 4 of 26

1 follow Hughes’ instructions regarding practice writing notes for patients’ charts. (DSOF at
2 7; Ex. 6, Hughes Decl. at 2.) Plaintiff disagreed with her referral to skills remediation, and
3 informed CAC Clinical Coordinator Vivian Denson (“Denson”) that she did not feel she
4 needed additional practice. (DSOF at 7; Ex. 18, Denson Decl. at 2.)
5 On November 16, 2006 Plaintiff and other students went to Phoenix Children’s
6 Hospital with Professor Jon Stevens (“Stevens”) for a pediatric clinical rotation. (DSOF at
7 8; Ex. 5, Carlson Decl. at 3-4; Ex. 7, Stevens Decl. at 2.) Before the rotation, Carlson and
8 Stevens discussed the policies and procedures explained in the CAC Handbook and reminded
9 students that they were not allowed to perform any procedures if Stevens was not present.
10 (DSOF at 8; Ex. 5, Carlson Decl. at 3-4; Ex. 7, Stevens Decl. at 2.) The students
11 acknowledged that they understood what Carlson said by raising their hands. (DSOF at 8;
12 Ex. 5, Carlson Decl. at 3-4; Ex. 7, Stevens Decl. at 2.) Students were instructed to choose
13 a patient with whom they wanted to work the day before the rotation, and Plaintiff selected
14 an adolescent male patient with cystic fibrosis on November 15, 2006. (DSOF at 8-9; Ex.
15 7, Stevens Decl. at 2.) During her rotation Plaintiff asked a nurse if she could care for an
16 infant instead and did not inform Stevens of the change. (DSOF at 8-9; Ex. 7, Stevens Decl.
17 at 2.)
18 At approximately 4:00 p.m. on November 16, 2006 Stevens instructed the students to
19 leave the floor and go to a conference room for a “post-conference” debriefing. (DSOF at
20 9; Ex. 7, Stevens Decl. at 2.) Plaintiff arrived at the post-conference ten to fifteen minutes
21 later than the rest of the class. (DSOF at 9; Ex. 7, Stevens Decl. at 2.) Stevens and the other
22 students present have stated that when Plaintiff was asked why she was late, she said she
23 stopped to flush a patient’s IV. (DSOF at 9; Ex. 7, Stevens Decl. at 2; Ex. 11, Blachly Decl.)
24 These witnesses have also stated that when Stevens reminded her that she was not allowed
25 to perform any procedures without him present, she apologized for not following the
26 instruction not to perform a procedure without her instructor present. (DSOF at 9; Ex. 7,
27 Stevens Decl. at 2; Ex. 11, Blachly Decl.) Stevens prepared a Nursing Program Variance
28 Report describing this incident and indicating that Plaintiff was dismissed from the clinical

-4-
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 5 of 26

1 site and the program due to unsafe practice, placing a patient in harm’s way, and breaking
2 CAC policies. (DSOF at 9; Ex. 10, CAC Nursing Program Variance Report, Nov. 16, 2006.)
3 On November 21, after Plaintiff completed the IV clinical lab, Denson brought her
4 to Carlson to discuss her performance issues. (DSOF at 10; Ex. 18, Denson Decl. at 2.)
5 During that meeting, Carlson stressed the importance of clear written communication in the
6 healthcare profession and discussed the grammatical errors in Plaintiff’s written work, the
7 proper way to address faculty (by title and last name rather than first name), and Plaintiff’s
8 use of incorrect medical terminology. (DSOF at 10; Ex. 5, Carlson Decl. at 5; Ex. 18,
9 Denson Decl. at 2.) During the meeting, Plaintiff complained that Stevens and Hughes were
10 not good teachers and that no one understood her because she is Chinese and has difficulty
11 because English is her second language. (DSOF at 10; Ex. 5, Carlson Decl. at 6; Ex. 18,
12 Denson Decl. at 2.) Plaintiff alleges that Carlson yelled at her “This is my country. You
13 came to my country. You must follow my way. If you don’t like it here, you have the choice
14 to leave!” and “You should have stayed in California. Why did you come here?” (Second
15 Am. Compl. at 4.) Carlson and Denson have both stated that Carlson did not make any
16 comments about Plaintiff’s national origin during this meeting. (DSOF, Ex. 5, Carlson Decl.
17 at 6; Ex. 18, Denson Decl. at 2-3.) Denson has stated that in response to Plaintiff’s
18 comments about English, Carlson reminded her that in the nursing program all students must
19 be able to perform and communicate at a certain level. (DSOF, Ex. 18, Denson Decl. at 2-3.)
20 In response to Plaintiff’s comments about her instructors’ teaching skills, Carlson scheduled
21 a meeting on November 27 to discuss Plaintiff’s performance with the instructors present.
22 (DSOF at 10; Ex. 5, Carlson Decl. at 7.)
23 After the meeting on November 21, Plaintiff approached Dean Mary Marrinan-
24 Menchaca (“Marrinan-Menchaca”) and claimed that she had difficulty communicating with
25 Carlson, Stevens, and Hughes because English is not her first language, but did not mention
26 the comments allegedly made by Carlson about her national origin. (DSOF at 10; Ex. 14,
27 Marrinan-Menchaca Decl. at 1-2.) Marrinan-Menchaca said that she would discuss
28 Plaintiff’s concerns with her instructors and arrange for ESL tutoring, but Plaintiff said that

-5-
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 6 of 26

1 she did not want tutoring and did not participate in the tutoring that Marrinan-Menchaca
2 arranged. (DSOF at 10-11; Ex. 14, Marrinan-Menchaca Decl. at 2.) On November 28, 2006
3 Plaintiff sent an email to John Irvine, attaching a letter dated November 22, 2006 claiming
4 that Carlson made comments about her national origin during the meeting on November 21.
5 (DSOF at 11; Ex. 16, Shi email, Nov. 28, 2006.)
6 On November 27, 2006 Plaintiff met with Carlson, Marrinan-Menchaca, Stevens, and
7 Hughes. During the meeting, Hughes discussed the November 9 IV procedure, and stated
8 that Plaintiff appeared nervous and hesitant, which could traumatize the patient. (DSOF at
9 12; Ex. 5, Carlson Decl. at 7; Ex. 6, Hughes Decl. at 3.) Plaintiff stated that Hughes and
10 Stevens were not qualified to critique her. (DSOF at 12; Ex. 5, Carlson Decl. at 7.) Carlson
11 responded by telling Plaintiff that she did not appear open to feedback and that when she was
12 criticized she would criticize the faculty. (DSOF at 12; Ex. 5, Carlson Decl. at 7.) Stevens
13 also discussed the incident on November 16 when Plaintiff told him that she was late to the
14 post-conference because she had performed an IV flush. (DSOF at 12-13; Ex. 5, Carlson
15 Decl. at 7-8.) Carlson, Stevens, Hughes, and Marrinan-Menchaca have stated that Marrinan-
16 Menchaca asked Plaintiff if she flushed the patient’s IV without faculty supervision, and
17 Plaintiff responded that she had. (DSOF at 13; Ex. 5, Carlson Decl. at 7-8; Ex. 6, Hughes
18 Decl. at 3; Ex. 7, Stevens Decl. at 4; Ex. 14, Marrinan-Menchaca Decl. at 3.) Carlson told
19 Plaintiff that by performing an IV flush without an instructor present, she had violated CAC
20 and PCH policies and could not return to the hospital to complete her pediatric rotation.
21 (DSOF at 13; Ex. 5, Carlson Decl. at 8; Ex 14, Marrinan-Menchaca Decl. at 3.) Carlson
22 explained that as a result, she could not complete the required course NUR 221 and was
23 dismissed from the nursing program. (DSOF at 13; Ex. 5, Carlson Decl. at 8; Ex. 14,
24 Marrinan-Menchaca Decl. at 3.) Plaintiff became angry, said that Hughes could not teach
25 and Stevens was stupid, threatened to sue Carlson, and left the meeting. (DSOF at 13; Ex.
26 5, Carlson Decl. at 8.)
27 After the meeting, Plaintiff’s husband called Carlson and stated “if anything happens
28 to my wife, you will pay,” which she reported to the CAC campus police. (DSOF at 14; Ex.

-6-
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 7 of 26

1 5, Carlson Decl. at 9.) On November 27, 2006 Plaintiff sent an email to the Arizona State
2 Board of Nursing in which she complained about her interaction with Carlson. (DSOF at 14;
3 Ex. 20, Randolph email, Nov. 28, 2006.) On November 29, 2006 Plaintiff approached
4 Marrinan-Menchaca and discussed emails sent between Marrinan-Menchaca and Carlson
5 about Plaintiff. (DSOF at 14; Ex. 14, Marrinan-Menchaca Decl. at 4.) Marrinan-Menchaca
6 reported the possibility of unauthorized access to CAC’s email system. (DSOF at 14; Ex.
7 14, Marrinan-Menchaca Decl. at 4; Ex. 24, CAC Incident/Offense Report, Nov. 29, 2006.)
8 Officer Reynolds investigated the report, advised Plaintiff’s husband to contact Dean John
9 Irvine rather than Carlson in the future, and warned Plaintiff not to go into the nursing
10 building on the CAC campus. (DSOF at 14-15; Ex. 19, CAC Incident/Offense Report, Nov.
11 28, 2006.)
12 On November 30, 2006 Plaintiff met with Jim Kimsey, CAC Associate Vice President
13 of Human Resources. (DSOF at 15; Ex. 19, CAC Incident/Offense Report, Nov. 28, 2006.)
14 Kimsey asked if Plaintiff wanted to use CAC’s grievance process to address her allegations
15 that Hughes was unprofessional and unqualified to teach, but Plaintiff declined and stated
16 that she was represented by counsel and had met with the Pinal County Attorney and the
17 Equal Employment Opportunity Commission (“EEOC”) on November 29. (DSOF at 15; Ex.
18 1, Shi Dep. at 134-35; Ex. 25, Kimsey Decl.)
19 On December 5, 2006 Plaintiff sent an email to the Board of Nursing claiming that
20 the nursing department at CAC engaged in cheating on tests and that one of the other
21 students was allowed to remain in the program despite a positive drug screen. (DSOF at 15;
22 Ex. 27, Shi email, Dec. 6, 2006.) On December 6, 2006 Pamela Randolph of the Board of
23 Nursing informed Carlson that an anonymous source had made allegations regarding testing
24 and a positive drug screen. (DSOF at 15; Ex. 5, Carlson Decl. at 9; Ex. 28, Randolph email,
25 Dec. 6, 2006.) On February 6, 2007 Ms. Randolph informed Carlson that the investigation
26 was complete and she had determined that CAC did not engage in any violation of the Nurse
27 Practice Act, but cautioned that instructors should not provide a pre-test review before an
28 exam is administered. (DSOF at 17; Ex. 34, Randolph email, Feb. 6, 2007.)

-7-
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 8 of 26

1 On December 8, 2006 Plaintiff filed a complaint against CAC with the U.S.
2 Department of Education. (DSOF at 16; Ex. 29, Close Letter, April 24, 2007.) Carlson sent
3 Plaintiff a letter dated December 11, 2006 explaining the reasons for her dismissal from the
4 nursing program for violating academic policies, including engaging in unsafe clinical
5 practice and unsatisfactory clinical journal performance. (DSOF at 16; Ex. 31, Carlson
6 Letter, Dec. 11, 2006.)
7 On December 31, 2006 Plaintiff’s Certified Nursing Assistant (“CNA”) license
8 expired with the Board of Nursing. Plaintiff did not apply for renewal or make an inquiry
9 with the Board of Nursing regarding whether a letter from CAC or Carlson was required to
10 renew her license. (DSOF at 16; Ex. 1, Shi Dep. at 53; Ex. 30, Board of Nursing
11 License/Certificate Information, Jan. 24, 2008.) On January 24, 2007 the Board of Nursing
12 informed Plaintiff that an investigation had been opened regarding her CNA certificate, based
13 on information the Board of Nursing obtained during an investigation of a separate complaint
14 against CAC. (DSOF at 17; Ex. 22, Nelson Letter, Jan. 24, 2007; Ex. 30, Board of Nursing
15 License/Certificate Information, Jan. 24, 2008.)
16 On January 26, 2007 Plaintiff filed a Charge of Discrimination with the Arizona Civil
17 Rights Division (“ACRD”) alleging national origin discrimination. (DSOF at 17; Ex. 33,
18 Charge of Discrimination.) On May 2, 2007 Plaintiff filed a Charge of Discrimination with
19 the EEOC claiming discrimination based on national origin and retaliation. (DSOF at 18; Ex.
20 35, Charge of Discrimination.) The EEOC issued its notice of dismissal of Plaintiff’s charge
21 and notice of rights on June 26, 2007. (DSOF at 18; Ex. 36, Dismissal and Notice of Rights.)
22 The ACRD issued its notice of dismissal of Plaintiff’s charge, indicating that the information
23 obtained during its investigation was insufficient to show a violation of the statutes. (DSOF
24 at 18; Ex. 21, Office of the Attorney General Civil Rights Division Dismissal, Oct. 26, 2007.)
25 Plaintiff filed suit on June 12, 2007. Plaintiff’s Second Amended Complaint, filed on
26 February 4, 2008, alleges claims for discrimination and retaliation on the basis of national
27 origin in violation of Title VI of the Civil Rights Act of 1964, and violations of 42 U.S.C. §§
28 1981, 1983, and 1985. The Second Amended Complaint also refers to other federal statutes,

-8-
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 9 of 26

1 including 18 U.S.C. §§ 241 and 242, 20 U.S.C. § 1232g, and 34 C.F.R. §§ 100.3 and 100.7.
2 Plaintiff also alleges claims for intentional infliction of emotional distress and defamation.1
3 II. LEGAL STANDARDS AND ANALYSIS
4 A. Plaintiff’s Motion in Limine, Motion to Strike Declarations and Exhibits
5 Attached to Defendants’ Reply and Defendants’ Motion for Summary
6 Judgment
7 Local Rule 7.2(m) provides that unless made at trial, a motion to strike “may be filed
8 only if it is authorized by statute or rule . . . or if it seeks to strike any part of a filing or
9 submission on the ground that it is prohibited (or not authorized) by a statute, rule, or court
10 order.” Fed. R. Civ. P. Local R. 7.2(m)(1). This rule also provides that:
11 An objection to the admission of evidence offered in support of or in
opposition to a motion must be presented in the objecting party’s
12 responsive or reply memorandum (or, if the underlying motion is a
motion for summary judgment, in the party’s response to another
13 party’s separate statement of material facts) and not in a separate
motion to strike or other separate filing.
14
Fed. R. Civ. P. Local R. 7.2(m)(2). Defendants note that Plaintiff has failed to comply with
15
Local Rule 7.2(m). As discussed further below in section II.B, Plaintiff is not exempt from
16
complying with the Federal Rules of Civil Procedure merely because she is proceeding pro
17
se. Am. Ass’n of Naturopathic Physicians v. Hayhurso, 227 F.3d 1104, 1108 (9th Cir. 2000).
18
Nonetheless, even if the Court considers the arguments made in Plaintiff’s Motion in Limine
19
and Motion to Strike, the Motion must be denied.
20
Plaintiff moves to strike exhibits and declarations attached to Defendants’ Motion for
21
Summary Judgment and Reply. Plaintiff disputes the declarants’ credibility and the accuracy
22
of the information contained in the exhibits. This is not a basis on which the Court could
23
strike the evidence. The credibility of witnesses and the veracity of evidence presented by
24
the opposing party are matters for the fact finder to consider, and it is not the role of the
25
26
1
27 The Second Amended Complaint also alleges a claim for “intentional interference
with school/student relationship.” (Second Am. Compl. at 1.) Arizona courts do not
28 recognize such a tort, and Plaintiff may not recover on this basis.

-9-
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 10 of 26

1 Court to strike evidence on that basis at this stage of the litigation. Plaintiff also argues that
2 Rule 56(e) does not allow the admission of declarations containing statements that are
3 hearsay or that are made by declarants lacking personal knowledge. (Doc. 127, Pl.’s Mot.
4 in Limine at 3.)
5 Specifically, Plaintiff moves to strike Defendants’ Exhibits 9, 10, 12, and 26 because
6 they do not contain her signature. Plaintiff has not shown that this evidence is prohibited or
7 not authorized by a statute, rule, or court order, and the fact that Plaintiff did not sign the
8 evidence is not grounds to strike it. In addition, Plaintiff argues that Defendants’ Exhibits
9 5, 6, 7, 14, 18, and 25 fail to satisfy the requirements of Rule 56(e) because they contradict
10 other evidence, contain hearsay, and are not based on personal knowledge. (Pl.’s Mot. in
11 Limine at 4.) There is no reason to conclude that these Exhibits contain hearsay, that the
12 declarants lack personal knowledge of the matters discussed, or that the evidence is otherwise
13 inadmissible. Federal Rule of Evidence 801(d)(2) provides that a party’s own statement,
14 offered against that party, is not hearsay. Plaintiff’s statements, including those she made
15 regarding the IV flush incident in the “post-conference” on November 16 and at the
16 November 27 meeting, as related by the declarants, are party admissions and are non-hearsay
17 under the Federal Rules of Evidence. Plaintiff has not shown that there are grounds to strike
18 the evidence.
19 Plaintiff also argues that defense counsel “distorts the contents of the deposition of
20 plaintiff.” (Pl.’s Mot. in Limine at 8.) The Court does not find any distortion between the
21 Defendants’ Statement of Facts in Support of Defendants’ Motion for Summary Judgment
22 and the Exhibits supporting the Statement of Facts, including Exhibit 1, which contains
23 excerpts of Plaintiff’s deposition. The fact that Defendants submitted excerpts of the
24 deposition, rather than the entire transcript, does not constitute distortion of the evidence.
25 Furthermore, had Plaintiff wished to submit other excerpts from the deposition, she could
26 have done so by attaching them as exhibits to her Statement of Facts in Support of Plaintiff’s
27 Response in Opposition to Defendants’ Motion for Summary Judgment. The Court denies
28

- 10 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 11 of 26

1 Plaintiff’s Motion in Limine, Motion to Strike Declarations and Exhibits Attached to

2 Defendants’ Reply and Defendants’ Motion for Summary Judgment (Doc. 127).
3 B. Defendants’ Motion to Strike Plaintiff’s Statement of Facts in Support of her
4 Reply to her Motion for Summary Judgment
5 Federal Rule of Civil Procedure Local Rule 56.1 provides:
6 Any party filing a motion for summary judgment shall file a
statement, separate from the motion and memorandum of law, setting
7 forth each material fact on which the party relies in support of the
motion. Each material fact shall be set forth in a separately numbered
8 paragraph and shall refer to a specific admissible portion of the
record where the fact finds support (for example, affidavit,
9 deposition, discovery response, etc.). A failure to submit a separate
statement of facts in this form may constitute grounds for the denial
10 of the motion.
11 Fed. R. Civ. P. Local R. 56.1(a). Plaintiff failed to file a statement of facts with the Motion
12 for Summary Judgment that she filed by the dispositive motion deadline on August 11, 2008.
13 Plaintiff also failed to file a statement of facts with the Notice of Errata in Plaintiff’s Motion
14 for Summary Judgment and corrected Motion filed on August 18, 2008. Plaintiff’s statement
15 of facts attached to her Reply in support of her Motion for Summary Judgment is untimely,
16 and Plaintiff is not entitled to special treatment merely because she has chosen to represent
17 herself in this action.
18 “‘[P]ro se litigants are not excused from following court rules.’” Am. Ass’n of
19 Naturopathic Physicians, 227 F.3d at 1108 (quoting Briones v. Riviera Hotel & Casino, 116
20 F.3d 379, 382 (9th Cir. 1997)). The Ninth Circuit has rejected arguments seeking to extend
21 to civil litigants the requirement that the court give notice of Rule 56’s evidentiary standards
22 to pro se prisoners. Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986). The court
23 explained:
24 pro se litigants in the ordinary civil case should not be treated more
favorably than parties with attorneys of record. Trial courts generally
25 do not intervene to save litigants from their choice of counsel, even
when the lawyer loses the case because he fails to file opposing
26 papers. A litigant who chooses himself as legal representative should
be treated no differently. In both cases, the remedy to the party
27 injured by his representative’s error is to move to reconsider or to set
aside; it is not for the trial court to inject itself into the adversary
28 process on behalf of one class of litigant.

- 11 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 12 of 26

1 Id. (omitting internal citations). The Jacobsen court discussed the differences between
2 ordinary civil litigants and pro se prisoners, and quoted with approval the following language
3 from the Tenth Circuit Court of Appeals:
4 “The hazards which beset a layman when he seeks to represent
himself are obvious. He who proceeds pro se with full knowledge and
5 understanding of the risks does so with no greater rights than a
litigant represented by a lawyer, and the trial court is under no
6 obligation to become an ‘advocate’ for or to assist and guide the pro
se layman through the trial thicket.”
7
Id. at 1365 n.5 (quoting United States v. Pinkey, 548 F.2d 305, 311 (10th Cir. 1977)). In
8
declining to extend the requirement applicable to pro se prisoners to ordinary civil litigants,
9
the court noted that doing so would favor unrepresented litigants over badly represented
10
ones, and would “require the trial court to help one side to a lawsuit rather than another
11
solely because of the status of their legal representation. Doing so necessarily implicates the
12
court’s impartiality and discriminates against opposing parties who do have counsel.” Id. at
13
1365 n.7.
14
Furthermore, Plaintiff’s Statement of Facts in Support of her Reply was filed after
15
Defendants responded to Plaintiff’s Motion for Summary Judgment (Doc. 111) and Amended
16
Motion for Summary Judgment (Doc. 118). Defendants did not have an opportunity to
17
respond to Plaintiff’s Statement of Facts in Support of her Reply, and it would unfairly
18
disadvantage Defendants to consider this untimely filing. For these reasons, the Court grants
19
Defendants’ Motion to Strike Plaintiff’s Statement of Facts in Support of her Reply to her
20
Motion for Summary Judgment (Doc. 126).
21
C. Motions for Summary Judgment
22
The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules
23
of Civil Procedure. Under Rule 56, summary judgment is properly granted when: (1) no
24
genuine issues of material fact remain; and (2) after viewing the evidence most favorably to
25
the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R.
26
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of
27
N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). A fact is “material” when, under the
28

- 12 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 13 of 26

1 governing substantive law, it could affect the outcome of the case. Anderson v. Liberty
2 Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” of material fact arises if “the
3 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
4 In considering a motion for summary judgment, the court must regard as true the
5 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material.
6 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party
7 may not merely rest on its pleadings; it must produce some significant probative evidence
8 tending to contradict the moving party’s allegations, thereby creating a material question
9 of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative
10 evidence in order to defeat a properly supported motion for summary judgment); First Nat’l
11 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).
12 1. Plaintiff’s Motion for Summary Judgment
13 As discussed above, Plaintiff failed to file a statement of facts with her Motion for
14 Summary Judgment by the dispositive motion deadline on August 11, 2008, as required by
15 Local Rule 56.1. Plaintiff also failed to file a statement of facts with the Amended Motion
16 for Summary Judgment filed on August 18, 2008, before Defendants responded. Pursuant
17 to Local Rule 56.1, the Court may deny Plaintiff’s Motion for Summary Judgment on this
18 basis. Because Plaintiff failed to timely set forth the facts and evidence on which she relies,
19 the Court cannot conclude that she is entitled to summary judgment. The Court therefore
20 denies Plaintiff’s Motion for Summary Judgment (Doc. 111), Amended Motion for Summary
21 Judgment (Doc. 118), and Amended/Corrected Motion for Summary Judgment (Doc. 134).
22 The Court now considers whether Defendants are entitled to summary judgment on
23 Plaintiff’s claims.
24 2. Title VI of the Civil Rights Act
25 The individual Defendants argue that they are not proper defendants in Plaintiff’s Title
26 VI claims. Title VI of the Civil Rights Act provides that “[n]o person in the United States
27 shall, on the ground of race, color, or national origin, be excluded from participation in, be
28 denied the benefits of, or be subjected to discrimination under any program or activity

- 13 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 14 of 26

1 receiving Federal financial assistance.” 42 U.S.C. § 2000d. Courts agree that Title VI does
2 not impose liability on individuals who are not the recipients of federal funds. Shotz v. City
3 of Plantation, Fla., 344 F.3d 1161, 1171 (11th Cir. 2003); Buchanan v. City of Bolivar,
4 Tenn., 99 F.3d 1352, 1356 (6th Cir. 1996); Currie v. Maricopa County Cmty. Coll. Dist.,
5 2008 WL 2512841 (D. Ariz. June 20, 2008) (citing Gebser v. Lago Vista Indep. Sch. Dist.,
6 524 U.S. 274, 286 (1998); Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640-42
7 (1999)); Folkes v. N.Y. Coll. of Osteopathic Med., 214 F. Supp. 2d 273, 292 (E.D.N.Y.
8 2002). Therefore, Plaintiff cannot bring claims under Title VI against the individual
9 Defendants Carlson, Hughes, Stevens, and Marrinan-Menchaca. The Court will now
10 consider Plaintiff’s claims against CAC under Title VI for discrimination and retaliation.
11 a. Discrimination
12 Defendant CAC argues that it did not discriminate against Plaintiff under Title VI.
13 The Court will apply Title VII standards when determining whether a plaintiff has presented
14 a prima facie case of disparate treatment discrimination in a Title VI action. Evans v. Super.
15 Health Servs., Inc., 958 F.2d 376, 1992 WL 51325 at *5 (9th Cir. March 18, 1992); Mountain
16 Forestry, Inc. v. Or. Dep’t of Forestry, 2008 WL 2388667 at *8 (D. Or. June 10, 2008). To
17 show a prima facie case of discrimination Plaintiff must show that (1) she belonged to a
18 protected class; (2) she was qualified for the pursuit of her education; (3) she was subjected
19 to an adverse action in the pursuit of her education; and (4) similarly situated students not in
20 her protected class received more favorable treatment. Moran v. Selig, 447 F.3d 748, 753
21 (9th Cir. 2006).
22 The United States Supreme Court set forth the basic allocation of burdens and order
23 of presentation of proof in a Title VII disparate treatment case in McDonnell Douglas Corp.
24 v. Green, 411 U.S. 792 (1973). First, the plaintiff has the burden of proving a prima facie
25 case of discrimination by the preponderance of the evidence. Id. at 802. Second, if the
26 plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to
27 articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. The
28 plaintiff must then be afforded a fair opportunity to show that the defendant’s stated reason

- 14 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 15 of 26

1 for plaintiff’s rejection was in fact pretext. Id. at 804. In a Title VII case, although the
2 defendant has the burden of production to articulate some legitimate, nondiscriminatory
3 reason for the adverse action, the “ultimate burden of persuading the trier of fact that the
4 defendant intentionally discriminated against the plaintiff remains at all times with the
5 plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Discrimination
6 claims brought under Title VI are analyzed using the Title VII burden-shifting analytical
7 framework. Larry P. by Lucille P. v. Riles, 793 F.2d 969, 981-82 (9th Cir. 1984).2 The
8 United States Supreme Court has also made clear that compensatory relief is only available
9 to a Title VI plaintiff if discriminatory intent is shown. Id. at 981 (citing Guardians Ass’n
10 v. Civil Serv. Comm’n of City of N.Y., 463 U.S. 582 (1983)). For the reasons discussed
11 below, the Court concludes that Plaintiff has failed to demonstrate a prima facie case of
12 discrimination. Alternatively, the Court concludes that CAC has demonstrated a legitimate
13 nondiscriminatory reason for dismissing Plaintiff from the nursing program and that the
14 asserted reason was not pretext.
15 CAC does not dispute that Plaintiff is a member of a protected class. (Defs.’ Mot. for
16 Summ. J. at 6.) CAC also concedes that Plaintiff’s dismissal from the nursing program is an
17 adverse action (although they contend that other alleged conduct by CAC faculty does not
18 constitute an adverse action). (Defs.’ Mot. for Summ. J. at 8.) CAC argues that Plaintiff was
19 not qualified to continue in the nursing program and that Plaintiff has not identified any
20 appropriate comparators who were similarly situated yet treated differently.
21 CAC argues that Plaintiff has not shown that she was qualified to continue in the
22 nursing program because she failed to satisfy the written and clinical requirements of NUR
23 221. CAC points to Plaintiff’s journal entries, which contain numerous misspellings,
24
25 2
The Ninth Circuit Court of Appeals has also indicated that the burden of proof does
26 not always remain with the plaintiff in a Title VI case based on disparate impact. Larry P.
27 by Lucille P. v. Riles, 793 F.2d 969, 982 n.10 (9th Cir. 1984). Because Plaintiff’s claim is
based on disparate treatment, the Court will apply the McDonnell Douglas burden-shifting
28 framework applicable in Title VII claims based on disparate treatment.

- 15 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 16 of 26

1 grammatical errors, and incorrect medical terminology. (DSOF at 9; Ex. 13, Shi Journal
2 Entries.) Plaintiff does not dispute that her journal entries do contain numerous misspellings,
3 grammatical errors, and incorrect medical terminology. Plaintiff argues that her journal
4 entries were not “validated” because she did not sign next to the “unsatisfactory” scores she
5 received on the journal entries in the Clinical Evaluation Tool (“CET”). (Pl.’s Resp. at 7;
6 DSOF, Ex. 26, Fall 2006 NUR 221 CET.) The CAC Handbook states that “‘unsatisfactory’
7 scores are validated by counseling records and anecdotal notes which are dated and signed
8 by the student and clinical instructor.” (DSOF, Ex. 3, CAC Nursing Program Handbook at
9 22.) Whether or not Plaintiff signed the CET reflecting unsatisfactory evaluations by her
10 instructors is irrelevant to whether or not she completed the journal entry assignments in a
11 satisfactory manner. CAC faculty may conclude that Plaintiff has performed her written
12 assignments in an “unsatisfactory” manner without Plaintiff’s approval. The undisputed
13 evidence shows that Plaintiff failed to satisfy her written assignments. (DSOF, Ex. 13, Shi
14 Journal Entries; Ex. 26, Fall 2006 NUR 221 CET.)
15 CAC also points to Plaintiff’s difficulty with clinical skills, such as inserting an IV.
16 Plaintiff does not dispute that she was referred for a remediation lab due to her difficulty
17 successfully inserting an IV on November 9, 2006. (DSOF, Ex. 6, Hughes Decl. at 2.) The
18 variance report completed by her instructor notes that she appeared unprepared, as shown by
19 her inability to select a patient who had accessible veins, the fact that she did not know which
20 size needle to use, and the fact that she asked the instructor which way the needle should be
21 placed. (DSOF, Ex. 9, CAC Nursing Program Variance Report, Nov. 9, 2006.) Plaintiff
22 insists that she correctly placed the bevel when attempting to insert the IV, but does not
23 dispute that she was unsuccessful in inserting the IV, and was referred to the remediation lab.
24 (Pl.’s Resp. at 3.)
25 Plaintiff argues that the variance reports documenting the incidents on November 9
26 and 16, 2006 may not be considered as evidence because they are “backdated,” since the
27 report is dated the day of the incident, but the notes in the report refer to events that happened
28 after the incident. (Pl.’s Resp. at 3.) The variance reports are dated the day the incident

- 16 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 17 of 26

1 occurred and the notes on subsequent action taken to prevent further incidents of that nature
2 reflect future dates. (DSOF, Ex. 9, CAC Nursing Program Variance Report, Nov. 9, 2006;
3 Ex. 10, CAC Nursing Program Variance Report, Nov. 16, 2006.) However, this only
4 indicates that the variance report notes include subsequent developments in Plaintiff’s
5 performance that are related to the initial incident. The date on the report does not undermine
6 the fact that the variance report is admissible evidence showing that Plaintiff failed to
7 complete her clinical performance in a satisfactory manner.
8 Putting aside, for the moment, the dispute over whether Plaintiff violated CAC and
9 PCH policies by performing an IV flush without an instructor present, there is undisputed
10 evidence that Plaintiff failed to satisfy her written assignments as required for completion of
11 NUR 221 and had difficulty performing clinical skills. Plaintiff has failed to produce
12 evidence sufficient to show that she was qualified to continue her studies in the nursing
13 program.
14 Plaintiff also must show that similarly situated students not in her protected class
15 received more favorable treatment. To be similarly situated, other students must be subject
16 to the same standards and have engaged in the same conduct. See Vasquez v. City of L.A.,
17 349 F.3d 634, 641 (9th Cir. 2003) (citing Hollins v. Atl. Co., Inc., 188 F.3d 652, 659 (6th Cir.
18 1999)). Although it is true that no other student was dismissed from the nursing program,
19 Plaintiff has not shown that the other students were similarly situated. She repeats the
20 argument that “[n]one, except Plaintiff, was treated this way” with respect to many aspects
21 of her interaction with CAC faculty. (Pl.’s Resp. at 8-9.) However, she has not offered any
22 evidence showing that other students’ performance and conduct was similar to Plaintiff’s.
23 Therefore, she has not shown that they were similarly situated.
24 Plaintiff’s allegations of another student’s drug use are not supported by any evidence
25 in the record, and Defendants have shown that the student’s drug test was negative. (DSOF,
26 Ex. 32, Forensic Drug Testing, Dec. 11, 2006.) Plaintiff also argues that other students were
27 more favorably treated because they received reimbursement for mileage, received a CNA
28 renewal letter from Carlson, or were allowed to attend a day shift at a clinical rotation in a

- 17 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 18 of 26

1 Mesa hospital. (Pl.’s Resp. at 9.) However, Plaintiff has not shown that she ever applied for
2 a renewal of her CNA license with the Board of Nursing, or even inquired as to whether the
3 letter was required. (DSOF at 16; Ex. 1, Shi Dep. at 53.) Plaintiff also admitted that she
4 never applied for financial aid, which was required to be eligible for mileage reimbursement.
5 (DSOF at 15-16; Ex. 1, Shi Dep. at 167; Ex. 5, Carlson Decl. at 3.) With respect to the day
6 shift assignment, Plaintiff was not the only student in her class assigned a night shift, and
7 students were randomly assigned to various shifts. (DSOF, Ex. 1, Shi Dep. at 47-52; Ex. 6,
8 Hughes Decl. at 3.) These arguments are insufficient to show that similarly situated students
9 were treated more favorably.
10 Plaintiff has not produced evidence showing that any other students received
11 unsatisfactory evaluations of their written assignments, were referred for skills remediation,
12 and were accused of violations of CAC policy, but were still permitted to remain in the
13 nursing program. Those students who were qualified to continue their studies, performed
14 satisfactory work, and conformed to CAC clinical and academic policies are not similarly
15 situated in comparison to Plaintiff, because Defendants have produced undisputed evidence
16 showing that Plaintiff’s performance was unsatisfactory in a number of ways. Plaintiff has
17 not produced evidence showing that similarly situated students not in her protected class
18 received more favorable treatment. Therefore, she has failed to establish a prima facie case
19 of discrimination under Title VI.
20 Furthermore, even if Plaintiff had satisfied her burden to prove a prima facie case of
21 discrimination, CAC has produced evidence showing that there was a legitimate non-
22 discriminatory reason for dismissing Plaintiff from the nursing program, and Plaintiff has not
23 shown that these reasons are pretext. “A plaintiff can show pretext directly, by showing that
24 discrimination more likely motivated the employer, or indirectly, by showing that the
25 employer's explanation is unworthy of credence.” Vasquez, 349 F.3d at 641. CAC’s asserted
26 reason for dismissing Plaintiff from the nursing program is that she admitted to violating
27 CAC and PCH policies by performing an IV flush without an instructor present.
28

- 18 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 19 of 26

1 Defendants argue that even if there is some factual dispute as to whether Plaintiff
2 flushed the IV, there is no dispute that CAC faculty believed that she did, based on her
3 statements. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (“In
4 judging whether Aloha’s proffered justifications were ‘false,’ it is not important whether they
5 were objectively false (e.g., whether Villiarimo actually lied). Rather, courts ‘only require
6 that an employer honestly believed its reason for its actions, even if its reason is ‘foolish or
7 trivial or even baseless.’”) (quoting Johnson v. Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir.
8 2001) (internal quotation marks omitted)). Defendants have provided evidence showing that
9 Plaintiff admitted to flushing the infant’s IV twice, immediately afterwards in the post-
10 conference on November 16 and when questioned by Marrinan-Menchaca on November 27.
11 The faculty instructor, Stevens, and other students present at the November 16 post-
12 conference have stated that Plaintiff said that she flushed a patient’s IV and apologized for
13 doing so without an instructor present. (DSOF at 9; Ex. 7, Stevens Decl. at 3; Ex. 11,
14 Blachly Decl.) The faculty members present at the November 27 meeting have also stated
15 that Plaintiff admitted that she flushed a patient IV without faculty supervision. (DSOF at
16 13; Ex. 5, Carlson Decl. at 8; Ex. 6, Hughes Decl. at 3; Ex. 7, Stevens Decl. at 4; Ex. 14,
17 Marrinan-Menchaca Decl. at 3.)
18 Plaintiff disputes the fact that she performed an IV flush without an instructor present,
19 and also disputes the fact that she admitted to doing so at the post-conference and at the
20 November 27 meeting. Shila Jose’s letter dated November 28 states that Plaintiff “was with
21 me on 11/16/06 in the floor and she was observing the procedures, nursing case etc. and I am
22 assuring you that I didn’t allow her to do any procedures. She just observed and followed
23 me what I was doing. She was with me until 4:30 pm on that day and she went for
24 conference.” (Pl.’s Mot. for Summ. J., Ex. 9, Jose Letter, Nov. 28, 2006.) This letter states
25 that Plaintiff did not perform any procedures in Ms. Jose’s presence, but does not show what
26 Plaintiff did while outside her presence, nor does it discuss what Plaintiff said in the post-
27 conference.
28

- 19 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 20 of 26

1 Plaintiff has not offered any witness statements or other evidence contradicting
2 Defendants’ evidence that she admitted to performing the IV flush without an instructor
3 present. Numerous witnesses have stated that Plaintiff did admit to performing the IV flush
4 at the post-conference and at the November 27 meeting. Because so many witnesses,
5 including both other students and CAC faculty, contradict Plaintiff’s assertion that she did
6 not admit to flushing an IV without an instructor present, no reasonable fact finder could
7 conclude that Plaintiff did not say that she flushed an IV without an instructor present. Even
8 if there is a dispute over whether Plaintiff in fact performed an IV flush without an instructor
9 present, there can be no dispute, based on the evidence, that she stated that she did so both
10 in the post-conference and at the November 27 meeting. Moreover, Plaintiff has
11 acknowledged that she does not have any proof that CAC faculty and administrators did not
12 believe that she had violated the CAC policies when the decision was made to dismiss her
13 from the nursing program. (DSOF at 17; Ex. 1, Shi Dep. at 76.) CAC has provided a
14 legitimate non-discriminatory reason for dismissing Plaintiff from the nursing program, and
15 Plaintiff has failed to show that this reason was pretextual.
16 b. Retaliation
17 To show retaliation, Plaintiff must show that (1) she engaged in a protected activity;
18 (2) CAC subjected her to an adverse action; and (3) a causal link exists between the protected
19 activity and the adverse action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). “In
20 addition, the plaintiff must make some showing sufficient for a reasonable trier of fact to
21 infer that the defendant was aware that the plaintiff had engaged in protected activity.” Raad
22 v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (citing Cohen
23 v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982)). CAC does not dispute that Plaintiff
24 engaged in a protected activity by filing a complaint with the Board of Nursing on December
25 5, 2006 alleging that Stevens and Hughes allowed students to cheat on exams and allowed
26 a student who tested positive on a drug screen to continue in the program. (Defs.’ Mot. for
27 Summ. J. at 10; Ex. 27, Shi email, Dec. 6, 2006.) CAC also does not dispute that Plaintiff
28 was subjected to an adverse action when she was dismissed from the nursing program on

- 20 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 21 of 26

1 November 27, 2006. However, they argue that Plaintiff has not shown that a causal link
2 exists between the protected activity and the adverse action, because Plaintiff was informed
3 of her dismissal at the meeting on November 27, 2006, and she did not complain to the Board
4 of Nursing until later on December 5.
5 Plaintiff argues that the date of dismissal was December 16, 2006, when she received
6 a letter dated December 11, 2006 explaining the reasons for her dismissal, rather than the
7 date of the meeting on November 27. However, Plaintiff admits that she was told on
8 November 27 that she would be dismissed from the nursing program based on her
9 unsatisfactory clinical and written work and her violations of CAC handbook policies.
10 (DSOF, Ex. 1, Shi Dep. at 118-19.) Undisputed evidence shows that the adverse action was
11 taken before Plaintiff complained to the Board of Nursing. In addition, the Board of Nursing
12 did not inform CAC that Plaintiff was the source of the complaint when Plaintiff’s
13 allegations were investigated. (DSOF at 15-16; Ex. 28, Randolph email, Dec. 6, 2006.)
14 Plaintiff has failed to show a causal link between her protected activity and her dismissal
15 from the nursing program, because CAC administrators decided to dismiss her from the
16 program, and informed her of that decision, before she complained to the Board of Nursing.
17 Therefore, she has failed to show a prima facie case of retaliation under Title VI.
18 3. Violations of 42 U.S.C. §§ 1981, 1983, and 1985
19 A plaintiff “may establish a prima facie case of intentional discrimination in
20 employment under section 1981 upon proof of facts which would establish a prima facie case
21 of disparate treatment under Title VII, pursuant to the four McDonnell Douglas elements or
22 otherwise.” Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 539
23 (9th Cir. 1982); see also Evans, 958 F.2d 376, 1992 WL 51325 at *4 (“The standards for a
24 prima facie cause under § 1981 are the same as those under Title VII or Title VI.”) (citing
25 Gay, 694 F.2d at 538-39)). A prima facie case of racial discrimination brought under § 1981
26 or § 1983 requires proof of intentional discrimination. Gay, 694 F.2d at 537. For the reasons
27 discussed above, Plaintiff has failed to establish a prima facie case under Title VI, and the
28 same analysis precludes her claim under § 1981.

- 21 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 22 of 26

1 Plaintiff’s claims brought under § 1983 and § 1985 are based on the same allegations
2 that underlie her claims under Title VI and § 1981. (Pl.’s Resp. at 13.) 42 U.S.C. § 1983 is
3 not a source of substantive rights, but merely provides a method for vindicating federal rights
4 elsewhere conferred. Graham v. Connor, 490 U.S. 386, 393-94 (1989). Because Plaintiff
5 has failed to prove intentional discrimination, she has failed to show a prima facie case of
6 racial discrimination under § 1983, and has not proven any other deprivation of constitutional
7 or federal rights. The “absence of a section 1983 deprivation of rights precludes a section
8 1985 conspiracy claim predicated on the same allegations.” Thornton v. City of St. Helens,
9 425 F.3d 1158, 1168 (9th Cir. 2005). For the same reasons that Plaintiff has failed to
10 establish a prima facie case under Title VI, her claims based on the same allegations brought
11 under 42 U.S.C. §§ 1981, 1983, and 1985 also fail.
12 4. 18 U.S.C. §§ 241 and 242
13 18 U.S.C. §§ 241 and 242 provide for the criminal punishment of individuals for
14 conspiracy against rights and deprivation of rights under color of law. These provisions
15 convey no substantive rights, and provide no basis for a civil lawsuit. United States v.
16 Kozminski, 487 U.S. 931, 941 (1988); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
17 1980). Plaintiff’s Response does not address this issue and Defendants are entitled to
18 summary judgment on this claim.
19 5. Family Educational and Privacy Rights Act
20 Plaintiff argues that 20 U.S.C. § 1232g gives her the right to inspect and review her
21 education records and to request that CAC correct inaccurate or misleading information. 20
22 U.S.C. § 1232g(a)(2) requires that funds shall not be made available under applicable
23 programs unless parents of students in attendance are provided an opportunity for a hearing
24 to challenge the content of the student’s education records and to provide an opportunity to
25 correct or delete inaccurate, misleading, or otherwise inappropriate data contained in the
26 records. Defendants argue that Plaintiff has failed to show a violation of this provision
27 because she testified that she never made a specific request to inspect or review her CAC
28 education records. (Defs.’ Mot. for Summ. J. at 14; DSOF at 19; Ex. 1, Shi Dep. at 163-64,

- 22 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 23 of 26

1 167.) Plaintiff testified that “I never went and asked for these records,” and her deposition
2 testimony makes clear that she was never denied access to her education records. (DSOF,
3 Ex. 1, Shi Dep. at 163-64, 167.)
4 Plaintiff argues that she did not seek access to her records after her dismissal from the
5 nursing program because she was barred from contacting the nursing department at CAC.
6 (Pl.’s Resp. at 14.) The police report Plaintiff cites in support of this argument only indicates
7 that she was warned against physically entering the campus. (DSOF, Ex. 19, CAC
8 Incident/Offense Report, Nov. 28, 2006 at 4.) There is no evidence that Plaintiff was
9 prevented from requesting her records in writing. Plaintiff has failed to produce any
10 evidence showing that she was denied the opportunity to review and correct her records, and
11 Defendants are entitled to summary judgment on this claim.
12 6. 34 C.F.R. §§ 100.3 and 100.7
13 Defendants argue that Plaintiff cannot show a violation of these provisions because
14 she testified that she did not apply for benefits or financial aid through CAC. (Defs.’ Mot.
15 for Summ. J. at 14; DSOF at 5-6; Ex. 1, Shi Dep. at 167.) In response, Plaintiff concedes that
16 she “never claimed Defendants’ violation” of 34 C.F.R. §§ 100.3 and 100.7. (Pl.’s Resp. at
17 16.) The Court grants summary judgment in Defendants’ favor on this claim.
18 7. Intentional Infliction of Emotional Distress
19 Under Arizona law, the tort of intentional infliction of emotional distress (“IIED”)
20 requires three elements: 1) the defendant’s conduct must be extreme and outrageous; 2) the
21 defendant must either intend to cause emotional distress or recklessly disregard the near
22 certainty that such distress will result from his conduct; and 3) severe emotional distress must
23 indeed occur as a result of the defendant’s conduct. Ford v. Revlon, Inc., 734 P.2d 580, 585
24 (Ariz. 1987). The trial court must determine whether the acts complained of are sufficiently
25 extreme and outrageous to state a claim for relief. Mintz v. Bell Atl. Sys. Leasing Int’l, 905
26 P.2d 559, 563 (Ariz. Ct. App. 1995). A plaintiff must show that the defendant’s acts were
27 “‘so outrageous in character and so extreme in degree, as to go beyond all possible bounds
28

- 23 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 24 of 26

1 of decency, and to be regarded as atrocious and utterly intolerable in a civilized

2 community.’” Id. (quoting Restatement (Second) of Torts § 46 cmt. d).
3 Defendants argue that Plaintiff has failed to produce evidence that satisfies the high
4 standard of “extreme and outrageous” conduct necessary to support her IIED claim. In
5 response, Plaintiff points to alleged comments by Carlson at the meeting on November 21,
6 her dismissal during the meeting on November 27, and the allegations that her husband
7 hacked into the CAC email system contained in the CAC Position Statement dated December
8 3, 2008. (Pl.’s Resp. at 15.) Defendants also argue that Plaintiff has not sought medical
9 treatment for her alleged symptoms of severe emotional distress. Plaintiff responds that she
10 has not sought treatment “[b]ecause of her culture and tradition.” (Pl.’s Resp. at 15.)
11 Although the comments Plaintiff alleges that Carlson made are offensive, none of
12 Defendants’ alleged statements or actions rise to the level of “extreme and outrageous”
13 conduct under Arizona law, and Defendants are entitled to summary judgment on this claim.
14 8. Defamation
15 “‘One who publishes a false and defamatory communication concerning a private
16 person . . . is subject to liability, if, but only if, he (a) knows that the statement is false and
17 it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in
18 failing to ascertain them.’” Dube v. Likins, 167 P.3d 93, 104 (Ariz. Ct. App. 2007) (quoting
19 Rowland v. Union Hills Country Club, 757 P.2d 105, 110 (Ariz. Ct. App. 1988) (quoting
20 Restatement (Second) of Torts § 580(B) (1977))). Plaintiff’s Response points to two
21 allegations that form the basis for her defamation claim. The first is the allegation in the
22 Second Amended Complaint that “Menchaca made up an unfounded email hacking incident
23 to attack plaintiff and her family. She reported that plaintiff told her [Marrinan-Menchaca]
24 that her family [plaintiff] had ability to get into CAC email system. Her malicious
25 fabrication contradicted expert’s testimony.” (Second Am. Compl. at 6; see also Pl.’s Resp.
26 at 15.) The second allegation is that Defendants reported to the Board of Nursing that
27 Plaintiff had reportedly threatened faculty and that there were allegations of her
28 unprofessional and inappropriate conduct, which caused the Board to investigate Plaintiff’s

- 24 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 25 of 26

1 CNA certificate. (Pl.’s Resp. at 15-16.) The Court will first address the email hacking
2 incident.
3 The CAC campus police report explains the allegations regarding email hacking:
4 On Wednesday, 11-29-2006, at approximately 1255 hours, I was told
of the allegations of illegal access to the college email by Zhongmin
5 Liu, the husband of Aifang Shi . . . [Carlson] told me that she had no
first hand knowledge of either his access or anyone saying Liu had
6 accessed her email account. Carlson said that the information had
come to her from [Marrinan-Menchaca]. . . . According to
7 Menchaca, she believed that Shi “guessed” that there were e-mails
that were shared with other college faculty and that she felt that Shi
8 was “fishing”; trying to find out if Carlson and Menchaca had sent
each other copies of the e-mails from Shi. Menchaca told me that Shi
9 had said her husband was an expert in the use of computers and Shi
“implied” she knew what was shared between Menchaca and Carlson.
10 Menchaca said that Shi did not specifically say that the e-mail
accounts had been accessed by her husband. According to
11 Menchaca, she had not noticed anything that would indicate her e-
mail account had been accessed or tampered with by Liu [Plaintiff’s
12 husband].
13 (DSOF, Ex. 24, CAC Incident/Offense Report, Nov. 29, 2006 at 3-4.) Plaintiff has not
14 produced any evidence showing that she did not say the things Marrinan-Menchaca reported
15 that she said in the CAC campus police report. The comments made by Marrinan-Menchaca
16 to CAC campus police cannot form the basis for a defamation claim, because Plaintiff has
17 not produced any evidence showing that Marrinan-Menchaca’s statements were untrue.
18 Marrinan-Menchaca’s speculation that Plaintiff was “fishing” for information about
19 Marrinan-Menchaca and Carlson’s communication about Plaintiff cannot form the basis for
20 a defamation claim because it is Marrinan-Menchaca’s opinion about Plaintiff’s motivation
21 and state of mind. Yetman v. English, 811 P.2d 323, 332-33 (Ariz. 1991) (“mere opinion”
22 is not actionable defamation).
23 With respect to the report to the Board of Nursing, Plaintiff admits that she threatened
24 to sue Carlson and called the CAC faculty “liars.” (Pl.’s Reply to Defs.’ Opp’n to Pl.’s Mot.
25 for Summ. J. at 8.) Therefore, Defendants’ reporting that the threats were made to the CAC
26 campus police and the Board of Nursing cannot form the basis for a defamation claim,
27 because it is true that the threats were made. It is also true that allegations of Plaintiff’s
28 unprofessional conduct were made by the CAC faculty. While Plaintiff disputes that she

- 25 -
 Case 2:07-cv-01147-SRB Document 142 Filed 12/03/08 Page 26 of 26

1 acted improperly with respect to certain specific incidents, she does not dispute that the
2 allegations were made, and it was not a false statement for Defendants to report the fact that
3 the allegations were made to the Board of Nursing. Plaintiff also alleges that her neighbors
4 and other CAC nursing students knew of her dismissal, but Plaintiff has not shown that
5 Defendants told them of the dismissal, and it is also true that Plaintiff was dismissed from
6 the nursing program. Because the statements made by Defendants were true, Defendants are
7 entitled to summary judgment on Plaintiff’s defamation claim.
8 IT IS ORDERED denying Plaintiff’s Motion in Limine, Motion to Strike
9 Declarations and Exhibits Attached to Defendants’ Reply and Defendants’ Motion for
10 Summary Judgment (Doc. 127).
11 IT IS FURTHER ORDERED granting Defendants’ Motion to Strike Plaintiff’s
12 Statement of Facts in Support of her Reply to her Motion for Summary Judgment (Doc. 126)
13 and striking Plaintiff’s Statement of Facts in Support of her Reply to her Motion for
14 Summary Judgment (Doc. 123).
15 IT IS FURTHER ORDERED denying Plaintiff’s Motion for Summary Judgment
16 (Doc. 111), Amended Motion for Summary Judgment (Doc. 118), and Amended/Corrected
17 Motion for Summary Judgment (Doc. 134).
18 IT IS FURTHER ORDERED granting Defendants’ Motion for Summary Judgment
19 (Doc. 109). The Clerk of the Court is directed to enter judgment in favor of Defendants.
20
21 DATED this 3rd day of December, 2008.
22
23
24
25
26
27
28

- 26 -