Fleming v. IASIS Healthcare Corporation et al

Filing 63

ORDER granting Defendants' 56 Motion for Summary Judgment in full. The Clerk shall enter judgment in favor of Defendants and against Plaintiff and terminate this case. See document for complete details. Signed by Judge Neil V Wake on 12/21/2015. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,

IASIS Healthcare Corporation; St. Luke’s
Behavioral Hospital, LP; and IASIS
Healthcare, LLC,
Defendants.

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ORDER

v.

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No. CV-14-02333-PHX-NVW

John F. Fleming,

Before the Court is Defendants’ Motion for Summary Judgment (Doc. 56) and the
parties’ accompanying statements of facts and briefs. For the reasons that follow, the
Motion will be granted.

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I.

INTRODUCTION
St. Luke’s Behavioral Hospital, LP (“St. Luke’s”) is a hospital in Phoenix,

Arizona. It is owned and operated by IASIS Healthcare Corporation, the sole member of
IASIS Healthcare, LLC (collectively “IASIS”).
St. Luke’s hired John Fleming in 2000 and fired him in 2012. Fleming claims his
termination was illegally motivated by one or more of the following considerations: his
sex, religion, age, disability, and statutorily protected activity. He also claims that, even

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if his termination was lawful, his employment contract entitles him to compensation for
unused “paid time off” hours.

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St. Luke’s and IASIS (collectively “Defendants”) move for summary judgment on
all these claims. They contend Fleming was fired due to his poor performance and that
he is not contractually entitled to any additional compensation.

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II.

LEGAL STANDARD
A motion for summary judgment tests whether the opposing party has sufficient

evidence to merit a trial. Summary judgment should be granted if the evidence reveals no
genuine dispute about any material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A material fact is one that might affect the outcome of
the suit under the governing law, and a factual dispute is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The movant has the burden of showing the absence of genuine disputes of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, once the movant shows
an absence of evidence to support the nonmoving party’s case, the burden shifts to the party
resisting the motion. The party opposing summary judgment must then “set forth specific
facts showing that there is a genuine issue for trial” and may not rest upon the pleadings.
Anderson, 477 U.S. at 256. To carry this burden, the nonmoving party must do more than
simply show there is “some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In deciding a motion for summary judgment, the Court must view the evidence in the
light most favorable to the nonmoving party, must not weigh the evidence or assess its
credibility, and must draw all justifiable inferences in favor of the nonmoving party. Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 255.

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Where the record, taken as a whole, could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 587.

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III.

MATERIAL FACTS
The following facts are drawn from the undisputed portions of Defendants’

statement of facts (Doc. 57), Fleming’s statement of facts (Doc. 61), and parts of the
record identified in the parties’ briefs. All evidence is viewed in the light most favorable
to Fleming.
A.

Evidence Relating to Whether Fleming was Illegally Terminated

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Fleming claims he was fired because of his sex, religion, age, and disability, and in

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retaliation for engaging in statutorily protected activity.1 Defendants contend Fleming

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was fired due to poor performance. Evidence relating to these claims is described below.

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1.

Performance History

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In 2000, St. Luke’s hired Fleming as a Therapist. (Doc. 57 at ¶ 17.) In 2005,

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Fleming began working in St. Luke’s Intake and Assessment Department. (Id. at ¶ 18.)

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He received annual performance-based raises. (Doc. 61 at ¶ 153.) He was good with

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patients and good at responding to crises, and patients liked him. (Id. at ¶ 200.) But

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there were problems.

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In 2005, a supervisor reprimanded Fleming for (1) failing to follow proper

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procedures for contacting physicians on call, (2) improperly filling out a doctor rotation

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In recent briefing, Fleming also mentions a “hostile work environment” and a
failure to provide “accommodations.” (Doc. 60 at 9-10.) The Court views these passing
references as part of Fleming’s claim of illegal termination, not as separate claims.
Indeed, Fleming clarifies he “does not seek separate recovery based on the hostile
environment itself,” and he mentions the refusal to provide accommodations as
confirmation that “Defendants created a pretext to justify the termination.” (Id.) Further,
even if these were separate claims, they would fail. Fleming has not identified conduct
sufficiently severe or pervasive to constitute a hostile work environment. Manatt v. Bank
of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003). And he did not allege any failure to
accommodate in his complaint. (Doc. 1-1.)

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sheet, (3) improperly assigning patients to beds, and (4) admitting a patient under the
wrong insurance. (Doc. 57 at ¶¶ 21, 24, 26.) According to the annual Performance
Evaluation, Fleming was “struggling” with some of the patient intake processes and was
“struggling” to complete patient assessments in a timely manner. (Id. at ¶ 29.) However,
the Evaluation also included positive comments and concluded that Fleming “meets
standards” overall. (Doc. 61 at ¶ 28.)
In 2006, a supervisor reprimanded Fleming for improper and untimely
submissions of work hours. (Doc. 57 at ¶ 33.) The supervisor also instructed him to
expedite the patient admissions process and to learn more about the “pre-certification”
process of obtaining an insurance company’s approval for treatment. (Id. at ¶¶ 35, 37.)
According to the annual Performance Evaluation, Fleming needed to “expedite” the
patient admissions process, be “more thorough,” and show “more consistency.” (Id. at
¶ 39.) However, the Evaluation also included positive comments and concluded that
Fleming “meets standards” overall. (Doc. 61 at ¶ 39.)
In 2007, supervisors reprimanded Fleming for (1) failing to complete patient
evaluations, (2) failing to follow the behavioral health certification process, (3) failing to
document a call from a patient in crisis, (4) excessive unplanned absences, (5)
inappropriate use of evaluation and treatment waivers, and (6) poor clinical judgment.
(Doc. 57 at ¶¶ 42, 45, 47, 51, 54.) Fleming did not deny that his actions put a patient at
risk. (Id. at ¶ 52.) A supervisor warned him that he should consider other employment
options if he continues to make poor patient evaluations. (Id. at ¶ 56.) According to the
annual Performance Evaluation, Fleming needed improvement in “organization,” “time,”
“documentation,” and number of “errors.” (Id. at ¶ 59.) However, the Evaluation also
included positive comments and concluded that Fleming “Meets the Standard” in most
areas. (Doc. 61 at ¶ 58.)
In 2008, a supervisor reprimanded Fleming for failing to pursue an appropriate
treatment plan, thereby putting a potentially suicidal patient at risk. (Doc. 57 at ¶ 61.)

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The supervisor warned him that if he puts one more patient at risk, “the possibility of
termination will be pursued.”

(Id.)

Weeks later, the supervisor also reprimanded

Fleming for (1) failing to complete a mandatory patient evaluation and (2) failing to
contact a physician before transferring a patient. (Id. at ¶¶ 64, 67.) The supervisor
warned him that any further disciplinary actions “could result in termination.” (Id. at
¶ 67.) Later that year, supervisors reprimanded Fleming for (1) disregarding instructions
about admitting a patient, (2) excessive non-business Internet use, and (3) reeking of
alcohol while at work. (Id. at ¶¶ 71, 75, 82.) According to the annual Performance
Evaluation, Fleming needed to “follow the designated process” and “expedite” patient
admissions. (Id. at ¶ 73.) However, the Evaluation also included positive comments and
concluded that Fleming “meets standards” overall. (Doc. 61 at ¶ 73.)
In 2009, supervisors reprimanded Fleming for (1) failing to complete a patient
evaluation, (2) taking a smoke break during a patient’s disposition, (3) excessive
tardiness, (4) failing to complete the required number of patient assessments per shift,
and (5) incorrectly filling out a “duty to warn” form.

(Doc. 57 at ¶¶ 83, 86, 89.)

According to the annual Performance Evaluation, Fleming needed improvement in
“expediting” the patient assessment process. (Id. at ¶ 91.) However, the Evaluation also
included positive comments and concluded that Fleming “Meets the Standard” or
“Exceeds the Standard” overall. (Doc. 61 at ¶ 91.)
In 2010, a supervisor reprimanded Fleming for his poor judgment and incomplete
work with respect to patient care. (Doc. 57 at ¶ 95.) The supervisor warned him: “This is
the final conference. Any further disciplinary action will result in termination.” (Id.)
Weeks later, the supervisor reprimanded Fleming for excessive unapproved absences.
(Id. at ¶ 98.) The supervisor warned him that another unexcused absence “will set in
motion the final steps in the disciplinary process leading to termination.” (Id.) Later that
year, the same supervisor reprimanded Fleming for (1) failing to follow up with
discharged patients and (2) writing the wrong doctor’s name on an admission document.

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(Id. at ¶¶ 100, 102, 103.) Then a new supervisor, Julie Miller, filled out Fleming’s annual
Performance Evaluation. (See id. at ¶ 105.) Miller noted that Fleming needed to do
“more” patient admissions and needed to do patient pre-certifications “quickly.” (Id.)
However, she also included positive comments and concluded that Fleming “Meets the
Standard” or “Exceeds the Standard” overall. (Doc. 61 at ¶ 105.)

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In 2011, Miller reprimanded Fleming for (1) telling a patient no hospital beds were
available instead of offering an assessment, (2) failing to perform pre-certifications and
instead leaving them for the next shift, (3) tardiness, (4) failing to follow up with
discharged patients, (5) saying that he called Miller for a consultation when in fact he did
not, (6) saying that he checked his email for an important message when in fact he did
not, and (7) failing to write down information given to a patient. (Doc. 57 at ¶¶ 107, 109,
111.)

In the annual Performance Evaluation, Miller noted that Fleming needed to

“maintain productivity” and “improve consistency.” (Id. at ¶ 112.) However, she also
included positive comments and concluded that Fleming “meets standards” overall.
(Doc. 61 at ¶ 112.)
The month leading up to Fleming’s termination was eventful. In a Performance
Evaluation dated September 4, 2012, Miller noted that Fleming’s “documentation has
been lacking information and he has had many incomplete forms” and that “he could
work on doing a faster assessment/admit process and be more consistent with his work.”
(Doc. 57 at ¶ 116.) She also included positive comments and concluded that Fleming
“meets standards” overall. (See Doc. 61 at ¶ 153.) On September 10, Miller gave
Fleming a final written warning for (1) sending improper documentation to family
members of two different patients, (2) seeing a patient for whom he failed to complete an
authorization form, and (3) failing to complete a patient assessment. (Doc. 57 at ¶ 121.)
On September 13, Miller reprimanded Fleming for failing to use a cover sheet when
faxing a patient’s protected health information, in violation of the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”). (Id. at ¶ 118.)

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The incident immediately preceding Fleming’s termination occurred on September
25, 2012.

Fleming assigned a 12-year-old patient to an overcapacity bed without

completing the necessary procedures. (Id. at ¶¶ 130-40.) Fleming left the task of
completing the overcapacity procedures for the next shift, telling his co-worker Alisa
Furch: “I’m not going to stay a moment longer, you can do it.” (Id. at ¶ 141.) Fleming
could not stay longer because he was experiencing tremendous back pain and had lost
feeling in his writing hand. (Doc. 61 at ¶ 138.) Fleming had already stayed at work
longer than scheduled, and he thought completing the overcapacity procedures would be
complicated and time consuming and would preclude the patient from receiving
treatment. (Id.) He had the authority to delegate the task to Furch. (Id. at ¶ 190.) When
Miller heard about this incident, however, she believed Fleming should have completed
the overcapacity procedures himself because the patient was Fleming’s responsibility.
(Doc. 57 at ¶¶ 142-45.)
The Human Resources Director, Amy Howell, recommended that Miller suspend
Fleming and investigate the incident.

(Id. at ¶¶ 120, 148.)

Accordingly, Miller

suspended Fleming. (Id. at ¶ 149.) Fleming had never been suspended before. (Doc. 61
at ¶ 153.) Miller then spoke with Furch and two other employees and reviewed patient
documentation to determine whether Fleming had followed proper procedure. (Doc. 57
at ¶ 150.) She did not speak with Fleming during her investigation. (Doc. 61 at ¶ 192.)
After the investigation, Miller and Howell concluded Fleming should be terminated.
(Doc. 57 at ¶¶ 151-52.) Fleming’s prior disciplinary history played a role in their
decision, according to later statements. (Id. at ¶ 153.) Howell then contacted the IASIS
Vice President of Human Resources to explain the situation, discuss Fleming’s
disciplinary history, and request authorization to terminate. (Id. at ¶ 154.) On October 1,
Fleming met with Miller, Howell, and another St. Luke’s employee named Jennifer
Govan. (Id. at ¶ 156; Doc. 57-1 at 78.) He was told he was being terminated for failing
to follow proper procedure while on a final warning. (Doc. 57 at ¶ 156.)

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2.

Sex Discrimination

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Fleming believes many of the complaints that led to his reprimands targeted him

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because he was male. (Doc. 61 at ¶ 173.) When Fleming requested time off, female

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employees with less seniority were given time off, but Fleming was not. (Id. at ¶ 175.)

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On one occasion, female employees with less seniority were allowed to attend an

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employee awards ceremony, but Fleming was not.

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requested a preferred workstation due to his back pain and his role as a lead therapist, his

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request was denied, and a female employee with less seniority used the workstation

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instead. (Id. at ¶ 197.)

(Id. at ¶ 176.)

When Fleming

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Fleming was also treated differently from two female employees who were

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involved in the September 25 incident preceding his termination. Furch, like Fleming,

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did not complete the overcapacity procedures. (Id. at ¶ 190.) And Kathy Bouise did not

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reserve a bed that would have prevented the need for overcapacity procedures in the first

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place. (Id. at ¶ 185.) Neither was disciplined. (Id. at ¶ 184.) In addition, other

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employees in “the unit” who failed to take appropriate action were not disciplined. (Id. at

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¶¶ 184, 186-87.)2

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No one ever told Fleming he was fired because of his gender. (Doc. 57 at ¶ 158.)

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He never heard Miller make any negative comments about his gender. (Id. at ¶ 164.) No

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other evidence relating to sex discrimination is identified in the parties’ statements of

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facts or briefs.

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3.

Religious Discrimination

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Fleming is Catholic.3 Fleming believes many of the complaints that led to his

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reprimands targeted him because he was more religious than other employees. (Doc. 61

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Fleming does not identify any individuals within “the unit,” nor does he specify
their age, sex, religion, or disability status.
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Although this fact is not specifically stated in the parties’ statements of facts or
briefs, Fleming alleges he is Catholic in his complaint (see Doc. 1-1 at ¶¶ 14, 32), and
Defendants do not dispute this in their answer (see Doc. 12 at ¶¶ 14, 32).

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at ¶ 173.) Miller once said she would not go to a Catholic church. (Doc. 57-1 at 94-95.)
Govan said the Catholic Church was a “sick religion” and talked about priests and
defiling young boys. (Id. at 96.)
Govan was not involved in the decision to fire Fleming. (Doc. 57 at ¶ 155.) No
other evidence relating to religious discrimination is identified in the parties’ statements
of facts or briefs.

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4.

Age Discrimination

Fleming is sixty years old. (Doc. 57 at ¶ 16.) He believes many of the complaints
that led to his reprimands targeted him because he was older than other employees. (Doc.
61 at ¶ 173.)
No one ever told him Fleming he was fired because of his age. (Doc. 57 at ¶ 159.)
He never heard Miller make any negative comments about his age. (Id. at ¶ 163.) No
other evidence relating to age discrimination is identified in the parties’ statements of
facts or briefs.

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5.

Disability Discrimination

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Fleming developed carpal tunnel syndrome and back problems. (Doc. 57-1 at 93.)

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Miller and another supervisor knew about Fleming’s back problems and reliance on pain

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medication. (Doc. 61 at ¶ 194.) Fleming requested a more convenient workstation due to

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his back pain. (Id. at ¶ 197.) He did not provide Miller with a doctor’s note stating his

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need for the workstation. (Doc. 57-1 at 103.) Miller denied his request. (Doc. 61 at

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¶¶ 196-97.) Fleming felt that his supervisors perceived his disabilities as inhibiting his

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performance, and he was not allowed to perform the same tasks as female employees.

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(Id. at ¶ 201.)

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No one ever told Fleming he was fired because of his medical conditions. (Doc.

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57 at ¶ 160.) He never heard Miller make any negative comments about his medical

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conditions. (Id. at ¶ 165.) No other evidence relating to disability discrimination is
identified in the parties’ statements of facts or briefs.4

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6.

Retaliation

Fleming claims he was fired in retaliation for complaining about co-workers’
behavior and for requesting leave under the Family and Medical Leave Act (“FMLA”).
Evidence relating to these claims is described below.

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a.

Complaint about co-workers’ behavior

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Approximately three years before he was fired, Fleming complained to Miller that

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co-workers were making inappropriate comments involving age, sex, and religion. (Doc.

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57-1 at 104-05.)

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No one ever told Fleming he was fired because he complained about co-workers.

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(Doc. 57 at ¶ 162.) No other evidence relating to this retaliation claim is identified in the

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parties’ statements of facts or briefs.
b.

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Request for FMLA leave

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On September 11, 2012, Fleming told Miller he intended to take FMLA leave to

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receive surgery on his hand and pain management for his spine. (Doc. 61 at ¶ 198.)

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Miller directed Fleming to the Human Resources Department, where he received FMLA

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paperwork. (Doc. 57 at ¶ 127.) He submitted this paperwork and received a letter from

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Human Resources on September 18 confirming receipt of his request. (Doc. 61 at ¶ 198.)

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He was then suspended on September 26 and fired on October 1. (Doc. 57 at ¶¶ 130,

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149, 156; Doc. 57-1 at 78.)

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In a declaration submitted after the instant motion, Fleming claims he heard that
Miller made “negative comments about [his] disability.” (Doc. 61 at ¶ 195.) This claim
flatly contradicts Fleming’s earlier deposition testimony: “Q: You are not aware that
[Miller] made comments to you or anybody else regarding your medical condition and
disability? A: Correct.” (Doc. 57-1 at 138.) Therefore the Court does not consider this
claim. See Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998-99 (9th Cir. 2009).

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No one ever told Fleming he was fired because he requested FMLA leave. (Doc.
57 at ¶ 161.) No other evidence relating to this retaliation claim is identified in the
parties’ statements of facts or briefs.

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B.

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Evidence Relating to Whether Fleming is Contractually Entitled to
Additional Compensation

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Fleming also claims that, even if his termination was lawful, his employment

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contract entitles him to compensation for unused “paid time off” hours. Fleming relies

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on a clause in the IASIS Employee Handbook. On page 26, the Handbook states:

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Unused PTO [paid time off] accrual may be cashed out at full
value . . . at the time of termination or retirement provided the
employee has been employed at least ninety (90) days.

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(Doc. 61 at ¶ 199.) Fleming received a copy of the Handbook in 2007. (Doc. 57 at ¶ 13.)

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Defendants contend a different clause in the Handbook precludes Fleming’s claim
because he was fired. On page 25, the Handbook states:

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[A]ny employee who . . . is involuntarily terminated for any
reason other than a reduction-in-force or layoff due to lack of
work . . . will not be paid for any unused PTO [paid time off]
upon termination of employment . . . .

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(Id. at ¶ 12.) Fleming was involuntarily terminated for a reason other than a reduction-inforce or layoff due to lack of work. (Id. at ¶ 169.)

IV.

ANALYSIS
Fleming claims his termination constituted unlawful discrimination, retaliation,

and breach of contract. Each claim is considered in turn.
A.

Discrimination

Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), prohibits an
employer from discriminating against an individual because of the individual’s “sex” or
“religion,” among other factors. 42 U.S.C. § 2000e-2(a)(1). The Age Discrimination in
Employment Act of 1967, as amended (“ADEA”), prohibits an employer from

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discriminating against an individual because of the individual’s “age.”

29 U.S.C.

§ 623(a)(1). The Americans with Disabilities Act (“ADA”) prohibits an employer from
discriminating against a qualified individual “on the basis of disability.” 42 U.S.C.
§ 12112(a). Fleming claims his termination violated all three statutory prohibitions. He
offers no direct evidence of discriminatory intent; rather, he relies on circumstantial
evidence.
Fleming’s discrimination claims all proceed under the McDonnell Douglas threestep burden-shifting framework: (1) Fleming must first establish a prima facie case of
discrimination; (2) if he does, Defendants must then articulate a legitimate
nondiscriminatory reason for its conduct; and (3) if they do, Fleming must then
demonstrate that the articulated reason is a pretext for discrimination. Wallis v. J.R.
Simplot Co., 26 F.3d 885, 888-89 (9th Cir. 1994) (applying framework to Title VII and
ADEA claims); see also Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th
Cir. 2001) (applying framework to ADA claim).
1.

Prima facie case

To state a prima facie case of Title VII discrimination, Fleming must show that (1)
he belongs to a protected class, (2) he was performing his job satisfactorily, (3) he
suffered an adverse employment action, and (4) he was treated less favorably than other
employees with similar qualifications. Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 640
n.5 (9th Cir. 2003). Similarly, to state a prima facie case of ADEA discrimination,
Fleming must show that (1) he belongs to a protected class, (2) he was performing his job
satisfactorily, (3) he suffered an adverse employment action, and (4) he was replaced by
substantially younger employees with similar qualifications. Coleman v. Quaker Oats
Co., 232 F.3d 1271, 1281 (9th Cir. 2000). Finally, to state a prima facie case of ADA
discrimination, Fleming must show that (1) he is a disabled person within the meaning of
the ADA, (2) he was able to perform the essential functions of the job, with or without
reasonable accommodation, and (3) he suffered an adverse employment action because of

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his disability. Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003). In each case the
requisite degree of proof is “minimal,” and Fleming “need only offer evidence which
gives rise to an inference of unlawful discrimination.” Wallis, 26 F.3d at 889 (in context
of Title VII and ADEA claims); see also Kinney v. Emmis Operation Co., 291 F. App’x
789, 790 (9th Cir. 2007) (applying same standard to ADA claim).
It is doubtful whether Fleming has established a prima facie case of any
discrimination.

His termination occurred shortly after he violated company policy

multiple times while on final warning. See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d
1201, 1208 (9th Cir. 2008) (affirming lack of ADEA prima facie case where employee
“over an extended period openly violated [company policy] and continued to do so even
after receiving a warning”). And his disciplinary history appears to be unparalleled
among his co-workers. See Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003)
(affirming lack of Title VII prima facie case where plaintiff was the only employee
subject to a “Last Chance Agreement” and had unmatched “record of misconduct”).
Nevertheless, given the low threshold required at this first step of the McDonnell
Douglas framework, the Court assumes without deciding that Fleming has established a
prima facie case. See Coleman, 232 F.3d at 1282 (taking this approach).
2.

Legitimate nondiscriminatory reason

The burden now shifts to Defendants to articulate a legitimate nondiscriminatory
reason for firing Fleming. Defendants have articulated two such reasons: (1) Fleming
violated company policy on September 25, 2012, after receiving a final warning, and (2)
Fleming had also violated company policy many times before then. Defendants have met
their burden of production.
3.

Pretext

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The burden now shifts back to Fleming to demonstrate that these articulated

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reasons are merely a pretext for discrimination. The evidentiary threshold is higher at

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this step than at the prima facie case, as Fleming must produce “specific, substantial

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evidence” of pretext. Wallis, 26 F.3d at 890 (in context of Title VII and ADEA claims);
see also Snead, 237 F.3d at 1094 (finding evidence insufficient to show pretext even
though it was sufficient for ADA prima facie case). In an attempt to refute Defendants’
articulated reasons for firing him, Fleming offers evidence of two types.
First, Fleming offers evidence that his job performance was satisfactory overall.
He relies on the annual Performance Evaluations, which generally placed him in the
“meets expectations” category.

But this categorization, in light of the dozens of

reprimands Fleming earned over the years, seems little more than a conclusion that the
evaluator was not ready to recommend termination yet. Fleming attempts to characterize
his reprimands as evidence of discrimination, but that characterization is untenable
because he does not dispute most of the underlying facts leading up to the reprimands.
And even if the “meets expectations” label is meaningful, it is not evidence of
satisfactory performance in the most relevant timeframe. The last Evaluation was made
on September 4, 2012. That Evaluation could not have anticipated that on September 10
Fleming would receive a final written warning for improper and incomplete
documentation, that on September 13 he would fax confidential patient information in
violation of HIPAA, or that on September 25 he would fail to complete a mandatory
procedural task and would leave it for the next shift. These incidents alone constitute a
legitimate nondiscriminatory reason for termination which is not impugned by Fleming’s
performance-related evidence.
Second, Fleming offers evidence downplaying the significance of his violations of
company policy. In his affidavit, he declares that his actions on September 25 were
justified under the circumstances, that other employees were also partially responsible for
the September 25 incident, and that his prior infractions were too minor, infrequent, and
remote in time to call for termination. But this evidence misses the mark. “The focus of
a pretext inquiry is whether the employer’s stated reason was honest, not whether it was
accurate, wise, or well-considered.” Green v. Maricopa Cty. Cmty. Coll. Sch. Dist., 265

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F. Supp. 2d 1110, 1128 (D. Ariz. 2003) (citation omitted). Fleming’s evidence goes
primarily to the wisdom of Defendants’ termination decision, not its sincerity. This
evidence does not indicate dishonesty, and it is dwarfed by the well-documented and
largely undisputed evidence of Fleming’s lengthy disciplinary history.
In sum, Fleming has not produced specific, substantial evidence of pretext. The
record, taken as a whole, could not lead a rational trier of fact to find for Fleming with
respect to his discrimination claims.
B.

Retaliation

Fleming also claims he was terminated in retaliation for complaining about coworkers’ inappropriate behavior and for requesting FMLA leave.
1.

Complaint about co-workers’ behavior

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Title VII, the ADEA, and the ADA all prohibit an employer from retaliating

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against an employee for engaging in protected activity. See 42 U.S.C. § 2000e-3(a) (Title

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VII); 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 12203(a) (ADA). Fleming claims he was

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fired in retaliation for engaging in the protected activity of complaining about co-

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workers’ inappropriate comments involving age, sex, and religion.

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These retaliation claims proceed under the familiar McDonnell Douglas burden-

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shifting framework: (1) Fleming must first establish a prima facie case; (2) Defendants

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must then articulate a legitimate nondiscriminatory reason for its conduct; and (3)

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Fleming must then demonstrate pretext. Pardi v. Kaiser Found. Hosp., 389 F.3d 840,

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849 (9th Cir. 2004) (ADA retaliation claim); Hashimoto v. Dalton, 118 F.3d 671, 680

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(9th Cir. 1997) (Title VII retaliation claim); see also Merrick v. Farmers Ins., 892 F.2d

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1434, 1441 (9th Cir. 1990) (applying Title VII discrimination case law to ADEA

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retaliation case). To establish a prima facie case, Fleming must show that (1) he engaged

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in a protected activity, (2) he suffered an adverse employment decision, and (3) there was

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a causal link between the two. Pardi, 389 F.3d at 849; Hashimoto, 118 F.3d at 679; see

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also O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996)
(ADEA retaliation claim).
Fleming has not shown a causal link between his complaint about co-workers and
his termination. Fleming’s only evidence of causation is that his termination occurred
after his complaint.

The problem is the three years in between.

While temporal

proximity between protected activity and adverse employment action may suggest a
causal link in some cases, adverse action taken three years afterward “suggests, by itself,
no causality at all.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001).
2.

Request for FMLA leave

The FMLA gives employees the right to take leave for certain reasons. 29 U.S.C.
§ 2612(a). The FMLA also prohibits employers from interfering with the exercise or
attempted exercise of this right. 29 U.S.C. § 2615(a)(1). As a result, “employers cannot
use the taking of FMLA leave as a negative factor in employment actions.” Bachelder v.
Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001) (alteration and emphasis
omitted) (quoting 29 C.F.R. § 825.220(c)). Fleming claims Defendants used his request
for FMLA leave as a negative factor in deciding to fire him.
This claim does not proceed under the McDonnell Douglas burden-shifting
framework. Xin Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003). Instead, the
claim will survive summary judgment if there is a triable issue of material fact as to
whether Fleming’s FMLA leave request was impermissibly considered as a factor in his
termination. Id. Here, there is no such triable issue.
Fleming’s theory is that, because he was fired two weeks after requesting leave,
the “timing of the request and the termination alone create an issue of triable fact here.”
(Doc. 60 at 13.) In support of this theory, he selectively cites portions of opinions by the
First, Sixth, and Ninth Circuits. None of these opinions actually supports his theory, and
in fact the first two contradict it.

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Fleming quotes a First Circuit opinion for the proposition that “close temporal
proximity between two events may give rise to an inference of causal connection.” (Doc.
60 at 13 (quoting Hodgens v. General Dynamics Corp., 144 F.3d 151, 168 (1st Cir.
1998)).) He refers to this quoted statement as a “holding.” (Id.) Far from it. The
Hodgens court affirmed summary judgment against the plaintiff employee. 144 F.3d at
173. And the facts there were, if anything, more plaintiff-friendly. Not only had the
employee been fired “shortly after” taking FMLA leave, but he also had a “good work
history” for three of the five preceding years and his supervisor had recently complained
about his “excessive absences.” Id. at 170. By contrast, Fleming had a checkered work
history for all seven years preceding his termination, and his supervisor helped him
request FMLA leave by directing him to Human Resources for the appropriate
paperwork. If summary judgment was justified in Hodgens, it is justified here.
Fleming also relies on a Sixth Circuit opinion for the proposition that “close
temporal proximity between FMLA leave and termination may be sufficient to meet the
low threshold of proof necessary to establish a prima facie case of retaliatory discharge.”
(Doc. 60 at 13 (citing Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283 (6th Cir.
2012)).) It is true that the Seeger court held temporal proximity sufficient for a prima
facie case of retaliation. 681 F.3d at 284. But that holding is irrelevant. The prima facie
case is part of the McDonnell Douglas framework, which the Ninth Circuit does not
apply to FMLA retaliation claims.

Liu, 347 F.3d at 1136.

And even under this

framework, Fleming would flunk the third step of demonstrating pretext. As the Seeger
court recognized, Sixth Circuit precedent is clear that “temporal proximity cannot be the
sole basis for finding pretext.” 681 F.3d at 285 (quoting Donald v. Sybra, Inc., 667 F.3d
757, 763 (6th Cir. 2012)). The Seeger court, like the Hodgens court, affirmed summary
judgment against the plaintiff employee, despite his prima facie case. Id. at 287.
Finally, Fleming relies most heavily on a Ninth Circuit opinion, which he quotes
for the proposition that the temporal proximity between his leave request and termination

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“provides supporting evidence of a connection between the two events.” (Doc. 60 at 13
(quoting Liu, 347 F.3d at 1137).) The key word there is “supporting.” Although the Liu
court reversed summary judgment against a plaintiff who had been terminated after
taking leave, 347 F.3d at 1137, the timing of the termination played only a “supporting”
role in the court’s opinion. The court first noted that the decision to fire the plaintiff was
based largely on her supervisor’s “subjective evaluation,” which gave the plaintiff low
scores in “vague” categories such as “being upbeat.” Id. at 1136-37. The court also
noted a suspiciously steep drop in overall score from the plaintiff’s former evaluation. Id.
In addition, the court found that the supervisor’s behavior toward the plaintiff—namely,
his “repeated denials of her leave and comments about his increased work-load”—
suggested a negative attitude toward her taking leave. Id. Only after discussing all this
evidence did the court state “the proximity in time between the leave and her termination
also provides supporting evidence of a connection between the two events.”

Id.

Therefore, the only thing Liu established about the timing of termination is that it can
support a retaliation claim for which there is already other evidence. It did not hold that
timing alone creates a triable issue of fact. Indeed, such a rule would place employers in
a dilemma as to any unsatisfactory employee who requests leave: either keep him or face
trial. The FMLA does not impose this Hobson’s choice.
Having rejected Fleming’s “timing is enough” theory, the Court returns to the
broader question: is there a triable issue as to whether Defendants considered Fleming’s
leave request in deciding to fire him? The answer is no. The record is replete with
instances of Fleming’s violations of company policy. As a result of these violations,
Miller placed Fleming on final warning. When Miller learned Fleming wanted to request
leave, she responded positively by helping him make the request. Only after Fleming
violated policy multiple times while on final warning was he fired.
Fleming protests that his prior violations did not result in termination, and that
therefore his recent violations could not have been the reason he was fired.

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argument is roughly as convincing as a batter’s comparison of his third strike to the first
two. Defendants “must be permitted to draw the line somewhere.” Leong v. Potter, 347
F.3d 1117, 1124 (9th Cir. 2003). Here, Defendants endured dozens of infractions before
finally drawing the line. An employer’s past leniency, in the form of warnings and
second chances, does not oblige the employer to suffer further transgressions. The
record, taken as a whole, could not lead a rational trier of fact to find for Fleming with
respect to his retaliation claims.
C.

Breach of Contract

Fleming also claims that, even if his termination was lawful, his employment
contract entitles him to compensation for unused “paid time off” hours. He relies on the
following clause in his Employee Handbook:

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Unused PTO [paid time off] accrual may be cashed out at full
value . . . at the time of termination or retirement provided the
employee has been employed at least ninety (90) days.

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Defendants contend Fleming is not entitled to this additional compensation, because he

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was fired. They point to a different clause in the same Handbook:

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[A]ny employee who . . . is involuntarily terminated for any
reason other than a reduction-in-force or layoff due to lack of
work . . . will not be paid for any unused PTO [paid time off]
upon termination of employment . . . .

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Fleming argues these clauses conflict and therefore create an ambiguity that should be

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resolved in his favor. Defendants argue there is no ambiguity: the former clause states a

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general rule that employees will be compensated for unused “paid time off” hours, and

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the latter clause identifies an exception for fired employees.

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“Whether contract language is ambiguous is a question of law.” Carpenters

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Pension Trust Fund for N. Cal. v. Underground Const. Co., 31 F.3d 776, 778 (9th Cir.

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1994). Under Arizona law, a contract is ambiguous “only if the language can reasonably

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be construed in more than one sense and the construction cannot be determined within the

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four corners of the instrument.” J.D. Land Co. v. Killian, 158 Ariz. 210, 212, 762 P.2d
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124, 126 (Ct. App. 1988). Here, the disparity between these two clauses does not create
an ambiguity. “Where there is an inconsistency between two provisions in a contract,
[courts] construe the more specific provision to qualify the more general provision.”
Norman v. Recreation Ctrs. of Sun City, Inc., 156 Ariz. 425, 428, 752 P.2d 515, 517 (Ct.
App. 1988). The competing clauses in the Handbook can be harmonized as follows:
Employees generally are compensated for unused “paid time off” hours, but not if they
are fired. There is no ambiguity. Because Fleming was fired, he is not entitled to
additional compensation.

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IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment
(Doc. 56) is granted in full.
IT IS FURTHER ORDERED that the Clerk shall enter judgment in favor of
Defendants and against Plaintiff. The Clerk shall terminate this case.

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Dated this 21st day of December, 2015.

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Neil V. Wake
United States District Judge

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