Austin v. Horizon Human Services Incorporated

Filing 59

ORDER GRANTING defendants' motion for summary judgment (doc. 42 ). The clerk shall enter final judgment. Signed by Senior Judge Frederick J Martone on 3/19/2014.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary Austin,
Plaintiff,

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vs.

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Horizon Human Services. Inc.,
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Defendant.
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No. CV-12-02233-PHX-FJM
ORDER

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The court has before it defendant Horizon Human Services, Inc.’s motion for
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summary judgment (doc. 42), plaintiff’s response (doc. 48), and Horizon’s reply (doc. 49).
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Plaintiff filed this action against his former employer Horizon Human Services, asserting
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discrimination and retaliation under the Americans with Disabilities Act (ADA), and
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violation of the Employee Retirement Income Security Act (ERISA).
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I. Background
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Horizon is a non-profit behavioral health agency licensed by the State of Arizona to
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provide outpatient and residential mental health services. Horizon hired plaintiff on
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December 13, 2010, as a Behavioral Health Technician in its Payson, Arizona office. When
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he was hired, plaintiff received and signed Horizon’s Employee Conduct Policy, which
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prohibited employees from engaging in social, business, or personal relationships with
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participants of Horizon’s services.
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Shortly after plaintiff was promoted to Case Manager on April 30, 2011, performance

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issues surfaced. On May 9, 2011, plaintiff received a Letter of Concern for his failure to

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timely complete clinical paperwork. On February 6, 2012, he received another Letter of

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Concern, this time for his failure to comply with Horizon’s requirements regarding

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paperwork corrections. On February 9, 2012, plaintiff was placed on a formal Plan of

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Correction when it was discovered that he had taken steps to adopt a foster child who was

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a Horizon client. Plaintiff had spoken with the child, the child’s foster parents, and Child

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Protective Services about adopting the child, all without informing his supervisor of his

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plans. As a result, Horizon was forced to terminate plaintiff’s professional relationship with

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the child and the child’s foster family.

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As a condition of the formal Plan of Correction, plaintiff was placed on disciplinary

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probation and was required to receive individual supervision focused on employee conduct,

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dual relationships, and professional boundaries. Plaintiff was told that failure to complete

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the Plan of Correction would result in termination of his employment.

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On March 23, 2012, while plaintiff was still on probation and under the Plan of

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Correction, plaintiff’s son became ill and was hospitalized for four months. As a result of

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his son’s illness, plaintiff requested and was granted intermittent leave. Horizon altered

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plaintiff’s work schedule so that he only worked three days a week. Plaintiff’s son’s hospital

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bills exceeded $200,000 a month.

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In May 2012, plaintiff asked to be taken off probation. However, Horizon’s CEO,

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Norman Mudd, extended plaintiff’s probation until July 9, 2012, explaining that because

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plaintiff was working three days a week during much of the probation period, Horizon

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wanted more time to evaluate him. On June 14, 2012, plaintiff’s coworker was promoted to

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the position of Program Coordinator.

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In June 2012, Horizon discovered that plaintiff had misrepresented that he was

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authorized to oversee a client’s court-ordered community service. Plaintiff knowingly

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created false documents representing to the client’s probation officer that the client had

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performed community service work on specific days. As a result, plaintiff was terminated
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effective June 25, 2012. Plaintiff filed a charge of discrimination with the EEOC on July 17,

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2012, alleging that he was fired because of the cost of his son’s illness on Horizon’s health

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plan.

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After plaintiff was terminated, the local newspapers in Payson began running articles

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about plaintiff and his termination. On July 11, 2012, the Payson Roundup published an

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article stating that plaintiff “was fired for allegedly seeking to adopt a foster child he had

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counseled,” and that plaintiff suspected that the cost of his son’s healthcare on Horizon’s

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healthcare plan played a role in his termination. DSOF ¶ 27. The Payson Roundup

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published a second article on July 31, 2012, stating that plaintiff “believes he was fired

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because [his son’s] medical crisis put an incredible strain on the company’s medical

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insurance, which will certainly increase its insurance premiums.” DSOF ¶ 28. Plaintiff also

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began posting comments on his Facebook page accusing Horizon of terminating him because

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of his son’s medical bills.

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On August 21, 2012, Horizon filed a defamation lawsuit against plaintiff in the

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Superior Court of Arizona in Gila County. On October 18, 2012, plaintiff filed this action

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against Horizon.

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II. ADA Discrimination

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Plaintiff alleges “association discrimination” under the Americans With Disabilities

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Act. He contends that Horizon discriminated against him because of his association with his

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son who has a disabling condition. The ADA prohibits employers from “excluding or

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otherwise denying equal jobs or benefits to a qualified individual because of the known

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disability of an individual with whom the qualified individual is known to have a relationship

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or association.” 42 U.S.C. § 12112(b)(4). Title VII governs the analytical framework of the

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ADA. Raytheon Co. v. Hernandez, 540 U.S. 44, 49, 124 S. Ct. 513, 517 (2003); Budnick v.

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Town of Carefree, 518 F.3d 1109, 1113-14 (9th Cir. 2008). Therefore, in order to establish

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a prima facie claim of association discrimination under the ADA, plaintiff must show: (1) he

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was qualified to perform the job; (2) his employer knew he had a relative or associate with

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a disability; (3) he was subjected to an adverse employment action; and (4) there is a causal
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connection between the adverse employment action and the employee’s association with a

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disabled person. See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1085 (10th Cir.

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1997); E.R.K. ex rel. R.K. v. Hawaii Dept. of Educ., 728 F.3d 982, 992 (9th Cir. 2013).

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Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to

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the defendant to provide a legitimate, nondiscriminatory reason for the adverse employment

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action. Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). The burden then

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shifts back to the plaintiff to “demonstrate a triable issue of fact as to whether such reasons

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are pretextual.” Id. Plaintiff must offer specific and substantial evidence of pretext in order

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to survive summary judgment. Noyes v. Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007).

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An employer is only required to offer its honest reasons for its actions, even if the reasons

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are “foolish, trivial or even baseless.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,

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1063 (9th Cir. 2002).

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Plaintiff claims that he suffered three adverse employment actions—his probation was

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extended, he was not given a promotion, and his employment was terminated. To establish

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his prima facie case, plaintiff shows that he was qualified to perform his job, Horizon knew

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that his son was hospitalized, and he was subjected to adverse employment actions. Plaintiff

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has not established, however, any causal connection between the adverse employment actions

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and his association with his disabled son. He speculates that Horizon acted in order to

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minimize the financial burden on its health insurance program, but he offers no evidence to

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support the claim. Plaintiff cannot establish a prima facie case of discrimination based on

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speculation. Even if we assume that plaintiff has satisfied the relatively minimal burden of

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establishing a prima facie case, we would nevertheless conclude that he has not presented

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“specific and substantial” evidence showing that Horizon’s reasons for its actions were

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pretext for discrimination.

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When plaintiff began receiving Letters of Concern and was first placed on the formal

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Plan of Correction and probation, his son was not ill. Thus, plaintiff acknowledges that these

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disciplinary actions were not the result of any illegal motive by Horizon. DSOF ¶ 14.

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Horizon asserts that plaintiff’s probation was extended for an additional two months because
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he was only working part-time throughout most of the original probation period. He was

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passed over for promotion because he was on probation and therefore not eligible for a

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promotion, and because he had not applied for the position. And he was terminated from

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employment because he created false community service records for a client. These are all

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legitimate, nondiscriminatory reasons for Horizon’s actions. Therefore, plaintiff bears the

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burden to show, with specific and substantial facts, that Horizon’s reasons are merely pretext

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for discrimination.

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To show pretext, plaintiff argues that his probation was extended to keep him from

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accessing his benefits and to make it easier to fire him. PCSOF ¶ 20. But this reason is

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unrelated to his association with his disabled son and accordingly defeats his ADA

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association claim. He also speculates that Horizon terminated him in order to reduce the

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impact of his son’s medical bills on Horizon’s insurance premium. He contends that Horizon

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has a long history of firing employees who get sick and use the company health plan. But

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one of the individuals he alleges was forced to quit because of her disability was never

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released to work by her doctor, and another employee was not enrolled in the company’s

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health plan. DSOF ¶ 42. Plaintiff’s speculation about the reasons for Horizon’s actions is

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insufficient to defeat summary judgment.

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With respect to the failure to promote claim, plaintiff argues that the individual who

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was promoted, Raymond Dion, was less qualified for the promotion. However, defendants

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show that plaintiff was on a corrective action plan at the time of the promotion, and therefore

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he was ineligible for promotion. Moreover, while plaintiff had applied for the position when

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it was previously open, he did not submit an application for the current opening. His

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argument that his original application “still stood,” Response at 2, is unsupported.

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With regard to the termination claim, plaintiff asserts that, although he admittedly

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fabricated the dates on the community service forms, the client nevertheless actually

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performed the community service work.

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deliberately false report with regard to a client’s community service forms. Plaintiff

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acknowledged that he “did not want to waste hours looking through hundreds of notes to find

But it is undisputed that plaintiff made a

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exact dates.” DSOF ¶ 25. His own belief that his actions were justified does not create a

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triable issue of pretext.

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Plaintiff has failed to raise a genuine issue of fact demonstrating that Horizon’s

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reasons for the extended probation, the refusal to promote, or the termination were a mere

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pretext for discrimination.

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discriminatory reasons, plaintiff’s ADA discrimination claims cannot survive summary

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judgment.

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Absent any evidence that Horizon’s decision was for

III. ADA Retaliation

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Plaintiff also argues that Horizon retaliated against him because he filed an ADA

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discrimination claim with the EEOC after he was terminated. He contends that as a result

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of the EEOC discrimination charge, Horizon filed a defamation lawsuit against him and

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ordered an investigation into a cell phone video of an altercation between plaintiff, his wife,

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and their child, which was viewed by Horizon employees. Horizon eventually reported the

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actions of plaintiff and his wife to Child Protective Services. Plaintiff had not worked for

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Horizon for over six weeks when Horizon took these alleged retaliatory actions. Amended

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Compl. ¶ 77.

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To establish a prima facie claim for ADA retaliation, plaintiff must show that (1) he

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engaged in protected activity, (2) he was subjected to an adverse employment action, and (3)

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there was a causal link between the protected activity and the employer’s actions. Brown v.

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City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003). The Supreme Court has recently held

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that Title VII retaliation claims “must be proved according to traditional principles of but-for

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causation.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). “This

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requires proof that the unlawful retaliation would not have occurred in the absence of the

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alleged wrongful action or actions of the employer.” Id. Although the Ninth Circuit has not

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had an occasion to apply Nassar to ADA retaliation claims, the court has consistently applied

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the Title VII framework to ADA retaliation claims. Accordingly, ADA retaliation claims are

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properly subject to a but-for causation standard. See Barnett v. U.S. Air, Inc., 228 F.3d 1105,

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1121 (9th Cir. 2000) (adopting the Title VII framework for ADA retaliation claims), vacated
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on other grounds sub nom. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Plaintiff must

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show that the filing of his EEOC complaint was the but-for cause of Horizon’s decision to

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send him a demand letter, sue him for defamation, and investigate and report him to Child

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Protective Services.

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Plaintiff has not demonstrated that Horizon would not have filed the defamation action

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but for plaintiff’s filing of the EEOC charge. Instead, the undisputed evidence shows that

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after his termination plaintiff had begun a campaign to disparage Horizon on Facebook and

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through the local newspaper, accusing Horizon of terminating him because of his son’s

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illness. Horizon also shows that as a behavioral health organization, it has a policy of

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reporting any potential child abuse that it discovers. Plaintiff’s own speculation that Horizon

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filed the lawsuit or reported suspected child abuse because of the EEOC charge is neither

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specific nor substantial, and in no way undermines the reason proffered by Horizon for its

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actions. Defendants’ motion for summary judgment on the ADA retaliation claim is granted.

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IV. ERISA

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Plaintiff’s ERISA claim is premised on the same facts underlying his ADA claims.

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He speculates that Horizon terminated him because of the high costs associated with his

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son’s medical care.

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ERISA prohibits employers from discharging employees for exercising their rights

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under an employee benefits plan or from interfering with the attainment of a right that they

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may become entitled to under the plan. 29 U.S.C. § 1140. In order to prevail on a § 1140

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claim, a claimant must show that his employment was terminated because of a specific intent

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to interfere with ERISA rights. Dytrt v. Mountain States Tel. & Tel. Co., 921 F.2d 889, 896

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(9th Cir. 1990). “[N]o action lies where the alleged loss of rights is a mere consequence, as

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opposed to a motivating factor behind the termination.” Id.

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Here, the undisputed evidence shows that plaintiff was terminated after he falsified

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paperwork. Other than plaintiff’s own speculation, there is no evidence that plaintiff was

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terminated because of his son’s medical care. Summary judgment is granted in favor of

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defendants on plaintiff’s ERISA claim.
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V. Conclusion
IT IS ORDERED GRANTING defendants’ motion for summary judgment (doc. 42).
The clerk shall enter final judgment.
DATED this 19th day of March, 2014.

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