Floyd v. Maricopa, County of

Filing 64

ORDER granting 59 Defendant's Motion for Summary Judgment. The Clerk shall enter judgment in favor of Defendant and against Plaintiff and that Plaintiff take nothing. The Clerk shall terminate this case. Signed by Judge Neil V Wake on 02/25/16.(GAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tresa Floyd,

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No. CV-14-02617-PHX-NVW
Plaintiff,

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ORDER

v.
Maricopa County,

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Defendant.

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Before the Court is Defendant’s Motion for Summary Judgment (Doc. 59).

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I.

LEGAL STANDARD
Summary judgment is proper if the evidence shows there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). The moving party must produce evidence and show there is no genuine
issue of material fact. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d
1099, 1102 (9th Cir. 2000).

If the burden of persuasion at trial would be on the

nonmoving party, the party moving for summary judgment may carry its initial burden of
production under Rule 56(c) by producing “evidence negating an essential element of the
nonmoving party’s case,” or by showing, after suitable discovery, that the “nonmoving
party does not have enough evidence of an essential element of its claim or defense to
carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz
Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000); High Tech Gays v. Defense Indus. Sec.
Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990).

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The party seeking summary judgment bears the initial burden of identifying the
basis for its motion and those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which
demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). When the moving party has carried its burden, the nonmoving
party must produce evidence to support its claim or defense by more than simply showing
“there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To defeat a motion for summary
judgment, the nonmoving party must show that there are genuine issues of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact is one that
might affect the outcome of the suit under the governing law. Id. at 248. A factual issue
is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
On summary judgment, the nonmoving party’s evidence is presumed true, and all
inferences from the evidence are drawn in the light most favorable to the nonmoving
party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987);
Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). But it is not the
Court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v.
Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The evidence presented by the parties must be
admissible. LRCiv 56.1(a), (b); see Fed. R. Civ. P. 56(e). Conclusory and speculative
testimony in affidavits and moving papers is insufficient to raise genuine issues of fact
and to defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d
730, 738 (9th Cir. 1979). “If a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court
may . . . consider the fact undisputed for purposes of the motion.” Fed. R. Civ. 56(e)(2).

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II.

UNDISPUTED MATERIAL FACTS1

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Plaintiff Tresa Floyd is a current employee of Defendant Maricopa County in the

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Department of Public Health where she has worked for approximately ten years. In

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February 2010 Plaintiff was diagnosed with multiple sclerosis and told her supervisor

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Corinne Velasquez.

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Defendant.

Plaintiff has reported to Velasquez throughout her career with

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In October 2013, during the time Plaintiff was employed as Operations Supervisor

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of the Healthcare for the Homeless Clinic, she experienced a flare-up of her multiple

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sclerosis, with symptoms of “numbness, impairment of muscular coordination, falling

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down while attempting to walk or stand, weakness, spasticity, leg tremors, great difficulty

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with fine motor tasks with her hands such as grasping and typing, and severe fatigue.”

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(Doc. 62-1.) Plaintiff informed Velasquez she needed assistance to deal with the new

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symptoms of her disability and requested to work from home. Velasquez permitted her

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to work from home, and Defendant provided the assistive software Plaintiff requested.

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After two weeks, on October 24, 2014, Plaintiff told Velasquez her condition was

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not improving and requested permission to continue telecommuting. Velasquez denied

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the request, saying the Healthcare for the Homeless Clinic supervisor needed to be on-

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site. Velasquez suggested that Plaintiff voluntarily step down from her supervisory

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position to assume a less demanding position. Plaintiff requested leave under the Family

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Medical Leave Act (“FMLA”), which Defendant granted. Plaintiff was on FMLA leave

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from approximately October 31, 2013, through January 13, 2014.

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Each party has objected to some of the other party’s purported statements of fact
for various reasons, primarily for mischaracterizing the evidence cited, relevance, and/or
inadmissible hearsay. Defendant also objects because Plaintiff’s controverting statement
of facts includes arguments rather than only references to the specific admissible portion
of the record supporting her position as required by LRCiv 56.1(b). The Court has not
relied on the parties’ characterization of evidence regarding material facts, but has
considered the evidence cited and submitted by the parties with respect to all facts that
actually are material. Assertions regarding facts that are immaterial have not been
considered. Therefore, all evidentiary objections are denied as moot.

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On October 31, 2013, Velasquez responded to an email from her supervisor, Dr.
Bob England, Director of Public Health, regarding a budget concern.

Velasquez

commented:
We know Tresa [Plaintiff] is out for 2 weeks, maybe longer. Jane, the
Accountant, is going to have surgery and will be out for 4–6 weeks starting
mid-December. . . . And Christy, the billing person, is due to have a baby
in mid-February. And the close out of the grant has to occur and be
reported by the end of January, and the UDS report will be due by the end
of March. And guess whose job it is to close the grant and do the report?
Tresa’s and Jane’s. And guess who was supposed to attend UDS training
and complete the UDS? Tresa, Jane and Christy. And the last Notice of
Grant Award for the year starting tomorrow gave us 45 days to fix all the
budget documents that were submitted with the application—but now we’re
down to 30 days because I don’t think anyone even looked at it (good thing
I happened to have looked at it yesterday).
Sorry—I’m just venting.
(Doc. 62-1 at 83.)
During Plaintiff’s FMLA leave, Velasquez initially assumed day-to-day
responsibility for the Healthcare for the Homeless Clinic. On November 13, 2013,
Plaintiff told Velasquez she was still having difficulty with the symptoms of her multiple
sclerosis and would need to extend her FMLA leave until early January 2014. At that
point, Velasquez decided to put someone on a special work assignment to cover for
Plaintiff at the Clinic on a full-time basis. She told England it was questionable whether
Plaintiff would be back in January.
Velasquez assigned Erica Bouton to a special work assignment to cover for
Plaintiff. During Plaintiff’s FMLA leave, Velasquez and Bouton observed some aspects
of the day-to-day operations that Velasquez thought were improper or inefficient and
needed to be changed. Examples of concerns were that the Clinic floors were dirty, the
Clinic flow was inefficient, and delegation of duties was insufficient.
On December 31, 2013, Plaintiff told Velasquez she would be returning to work
on January 13, 2014, and would need to work only three days per week because she

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would be continuing physical therapy on Tuesdays and Thursdays. Velasquez approved
the request and notified Human Resources. On January 3, 2014, Nurse Supervisor
Jennifer Zirzow submitted a complaint to Human Resources regarding Plaintiff. Before
Plaintiff returned from leave, Erika Leger also submitted a complaint to Human
Resources regarding unprofessional comments made by Plaintiff.
On January 7, 2014, Velasquez emailed to Janice Stratton, Human Resources
Manager, a document titled “Notes to discuss with Tresa.” The Notes include concerns
about building issues, such as dirty floors, storage areas filled with never used items, and
dysfunctional training equipment. The Notes also include concerns about staff training,
delegation of responsibility, budget, physician recruitment, staff attendance and
schedules, policies and procedures, staff communication, staff equity, and Clinic
flow/process changes.
On January 10, 2014, Velasquez told her management team that Plaintiff would be
returning to work on January 13, 2014. She also told them and Plaintiff that Bouton
would continue for a week to help Plaintiff regarding changes that had been made.
Zirzow expressed concern to Velasquez regarding Plaintiff’s anticipated reaction to the
changes.
Also on January 10, 2014, Velasquez told Plaintiff that an employee complaint
had been made, Velasquez had other concerns about the Clinic, and there would be a
meeting with Human Resources about a week after Plaintiff returned to work. Velasquez
told Plaintiff that when she returned, she was not to have any interaction in the Clinic and
not to make any changes to the Clinic procedures that Velasquez and Bouton had recently
implemented.
On January 13, 2014, Plaintiff returned to work, and Velasquez told her that
Bouton would be staying on-site at the Clinic for two weeks. During the first two weeks
of Plaintiff’s return to work, Plaintiff worked three days per week.

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On January 15, 2014, Plaintiff’s second day back to work, she advised Stratton
that she had concerns regarding her job role and wanted clarification of her rights upon
returning to work after FMLA leave. Stratton asked Plaintiff to put her concerns in
writing, but Plaintiff did not do so because she felt that everyone was conspiring against
her and Human Resources would not support her.
On January 21, 2014, Plaintiff met with Velasquez and Stratton. Stratton told
Plaintiff that an employee filed a complaint about Plaintiff during Plaintiff’s absence,
which would be investigated by Human Resources and there could be consequences if the
complaint was substantiated. Plaintiff questioned Velasquez regarding Bouton remaining
at the Clinic.

On January 28 through February 5, 2014, nine employees were

interviewed, during which additional allegations regarding Plaintiff were made. On
January 29, 2014, Velasquez again suggested Plaintiff voluntarily step down from her
supervisory position.
On February 20, 2014, Stratton and Laiza Madrid, Human Resources Analyst,
interviewed Plaintiff about all of the allegations that had been identified.

Stratton

identified four primary areas of concern: (1) kicking Zirzow during two meetings; (2)
allowing employees to work “off the clock” or improperly flex time; (3) using profanity
speaking with staff and referring to clients of the Healthcare for the Homeless Clinic; and
(4) allowing Plaintiff’s sister to use Healthcare for the Homeless Clinic services
improperly. During the interview, Plaintiff admitted that she had kicked Zirzow under
the table during a meeting to get her attention to tell her to stop talking. Plaintiff also
admitted that it was not uncommon for her to use profanity and that she allowed her staff
to use profanity even though it was a violation of Maricopa County policy to do so.
Plaintiff denied that homeless services, such as transportation, were provided to her sister
that were not provided to other clients. Other witnesses said that the medical van driver
was used only to transport clients to medical appointments, not other case management
appointments.

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Max Porter is the Deputy Director of Public Health and Appointing Authority for
the Maricopa County Department of Public Health. As the Appointing Authority, Porter
makes final decisions for the Department on personnel actions, such as suspension,
demotion, and dismissal.
Stratton briefed Porter about the investigation of Plaintiff by Human Resources
during the course of the investigation and prior to completion of the investigation report.
Porter concluded that Plaintiff should not continue in a supervisory role. He directed
Stratton to prepare a disciplinary notice with intent to demote Plaintiff from her position
as Operations Supervisor at Healthcare for the Homeless. There is no evidence in the
record that Porter was aware of Plaintiff’s disability when he directed Stratton to prepare
the disciplinary notice.
On March 26, 2014, Plaintiff was notified by a hand-delivered letter from Porter
that he intended to demote Plaintiff because she used County resources for her personal
use, willingly ignored her supervisor’s direction, used and allowed staff to use profanity,
willingly violated County and Public Health policies and procedures, and demonstrated
behavior inappropriate for a supervisor. The letter informed Plaintiff she had the right to
meet with Porter on March 31, 2014, and present orally or in writing, or both, her
explanation of why the proposed disciplinary action was not appropriate. On March 31,
2014, Plaintiff presented a written response, denying that certain actions had occurred
and stating that she did not believe her actions had violated County policy.2 Porter
requested that Stratton follow up with certain employees about the statements made by
Plaintiff.
On April 10, 2014, Plaintiff was notified by a hand-delivered letter from Porter
that she was demoted from her position as Operations Supervisor of the Healthcare for
the Homeless Clinic to the position of Client Services Coordinator for the Refugee Clinic

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It appears that Plaintiff met with Porter in person on March 31, 2014, in addition
to submitting a written response to Porter’s letter.

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effective April 14, 2014. The letter stated that the reasons for her demotion were she
used County resources for her personal use, willingly ignored her supervisor’s direction,
used and allowed staff to use profanity, willingly violated County and Public Health
policies and procedures, and demonstrated behavior inappropriate for a supervisor. The
letter notified Plaintiff of her right to appeal the demotion to the Merit System
Commission within ten business days of the hand delivery of the notice. Plaintiff did not
appeal the demotion.
On April 14, 2014, Plaintiff did not report to work, indicating she needed to see
her doctor and would not be able to work. Subsequently she requested additional FMLA
leave and an extended absence under the Americans with Disabilities Act (“ADA”).
Both requests were granted. Subsequently, Plaintiff requested and was granted a parttime work schedule and some restrictions during the summer.
On May 29, 2014, Velasquez met with Plaintiff to discuss Plaintiff’s annual
performance evaluation. During the meeting, Plaintiff accused Velasquez of engaging in
a “witch hunt.”

Plaintiff said that Velasquez, England, Porter, and Stratton had

“manipulated this whole thing to get rid of her when she returned from leave.”
Velasquez reminded Plaintiff that she had tried to talk to her about finding something else
for her, Plaintiff had refused a less demanding position, and Plaintiff had said if
Velasquez wanted her gone, she would have to make it happen.3
Subsequently Plaintiff requested a higher review of her performance evaluation.
Porter provided the higher review as requested by Plaintiff and responded to each of the
four concerns she had raised. He explained that objections to her demotion should have

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Plaintiff misinterprets Velasquez’s restatement of Plaintiff’s assertion that if
Velasquez wanted her gone, Velasquez would need to do something, as Defendant’s
admission of improper motive. It merely shows that Plaintiff announced she would not
voluntarily resign. Velasquez did not say she wanted Plaintiff “gone.”

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been brought in an appeal to the Merit System Commission and were not properly raised
in the review of her performance evaluation for her current position.
III.

ANALYSIS
A.

Count I:
Rights

Interference with Family Medical Leave Act (“FMLA”)

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Under the FLMA, an employee may take up to twelve weeks of leave for personal

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medical reasons, and, upon return from leave, the employee has the right to be restored to

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her original position or a position with equivalent benefits, pay, and conditions of

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employment. Liu v. Amway Corp., 347 F.3d 1125, 1132 (9th Cir. 2003) (citing 29 U.S.C.

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§ 2614(a)). The FMLA guarantees that an employee’s taking leave will not result in any

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adverse employment actions, but it does not entitle the employee to any right, benefit, or

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position she would not have been entitled to had she not taken FMLA leave. Id.

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The FMLA prohibits employers from interfering with an employee’s exercise of

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her rights under the FMLA. Id. (citing 29 U.S.C. § 2615(a)(1)). An employee can prove

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an employer interfered with her FMLA rights by showing by a preponderance of the

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evidence that the employer considered her taking of FMLA leave as a factor in the

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decision to terminate her. Id. at 1135–36. When an employee is subjected to negative

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consequences simply because she has used FMLA leave, the employer has interfered

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with the employee’s FMLA rights. Id.; 29 C.F.R. § 825.220 (“[E]mployers cannot use

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the taking of FMLA leave as a negative factor in employment actions, such as hiring,

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promotions or disciplinary actions.”).

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Plaintiff does not dispute that when she returned from FMLA leave, she returned

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to the position she had before the leave and she remained in that position for three

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months. Plaintiff states that her FMLA claim does not depend on whether she was

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properly reinstated, but rather on evidence that her use of FMLA leave constituted a

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negative factor in the decision to demote her. (Doc. 61 at 10.)

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Plaintiff contends that the following evidence shows that Defendant considered

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Plaintiff’s use of FMLA leave as a factor in its demotion decision: (1) Velasquez
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suggested to Plaintiff multiple times that she voluntarily leave her supervisor position; (2)
Velasquez complained to England that certain projects were coming due when the three
employees responsible for those projects would all be on medical leave; (3) Velasquez
discounted Zirzow’s complaints about Plaintiff when she thought Plaintiff would not be
able to return to work, but investigated them after she returned; and (4) Defendant’s
efforts to demote Plaintiff began immediately upon her return from FMLA leave. The
specifics from which Plaintiff would infer wrongful consideration of her FMLA leave
would be present if there were no such consideration. Plaintiff’s proffered evidence may
fail the test for relevance because it does not tend to make it more probable that
Defendant considered Plaintiff’s use of FMLA leave as a factor in its demotion decision.
See Fed. R. Evid. 401.

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1.

Suggesting Voluntary Demotion

In October 2013 Plaintiff experienced exacerbation of her multiple sclerosis with
severe symptoms, and Velasquez permitted her to work from home temporarily. After
two weeks, Plaintiff told Velasquez her condition was not improving and requested
permission to continue telecommuting.

Velasquez denied the request because the

Healthcare for the Homeless Clinic needed an on-site supervisor. In the context of
Plaintiff saying she was unable to perform on-site supervisory duties, Velasquez
suggested that Plaintiff step down from the supervisory position, and Plaintiff requested
FMLA leave.
Before October 2013, Plaintiff was capable of performing her supervisory duties
on-site. Therefore, it is not “notable” that before October 2013 no one had suggested that
Plaintiff step down from her supervisory position.

After Plaintiff reported that her

condition was not improving after two weeks, despite working from home and treatment,
it was reasonable for Velasquez to question whether Plaintiff would be able to return to
performing the essential tasks of the supervisory position, including being present on-site.

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Suggesting Plaintiff consider a less demanding position does not provide a basis for
inferring her FMLA leave was considered in the demotion decision.
Plaintiff rejected the suggestion to step down from her supervisory position and
chose to take FMLA leave without pay instead. There is no evidence showing that in
making the demotion decision Porter considered Plaintiff’s rejection of Velasquez’s
suggestion as a negative factor.
2.

Velasquez Complaining to England

There is no evidence that Porter’s demotion decision considered the inconvenience
caused by Plaintiff’s FMLA leave. Velasquez’s email that Plaintiff relies on complains
about trying to meet certain demands while all three of the employees responsible for
those demands would be on leave. It concludes with the comment, “Sorry—I’m just
venting.” Plaintiff does not contend the other two employees were demoted.
There is no evidence showing that in making the demotion decision Porter
considered that Plaintiff’s FMLA leave was inconvenient for Velaquez. Moreover, the
inconvenience does not provide a basis from which it can reasonably be inferred that
Plaintiff’s FMLA leave was considered in the demotion decision.
3.

Investigating Zirzow’s Complaints

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Plaintiff contends Velasquez knew that Zirzow’s complaints about Plaintiff were

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in retaliation for Plaintiff’s role in Zirzow’s probationary period being extended and

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Zirzow not receiving a pay increase, and as a result Velasquez initially discounted

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Zirzow’s complaints about Plaintiff.

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investigate the Zirzow’s concerns after Plaintiff returned from FMLA leave, but not

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before, shows that the leave was considered in her demotion. However, the evidence

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shows that the investigation was conducted by Human Resources as a result of Zirzow

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submitting a complaint to Human Resources, not because of Zirzow’s complaints to

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Velasquez on January 3, 2014.

Plaintiff reasons that Velasquez’s decision to

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Plaintiff relies on a December 13, 2013 email exchange between Velasquez and
Bouton in which Bouton stated that Zirzow was “really upset that her inability to get an
increase in salary was based on things that Tresa said that ‘simply are not true,’” and that
Zirzow said she was going to file a complaint with Human Resources.

Velasquez

responded to Bouton that she would like to meet with Bouton and Zirzow together so that
they all would hear the same thing and Bouton would know what Velasquez said to
Bouton. Velasquez also said that Zirzow “doesn’t listen well,” and she had already told
Zirzow that Velasquez does not control the things that Zirzow complained about, i.e.,
working for Plaintiff and her salary.
The December 13, 2013 email exchange suggests that Velasquez attempted to
resolve Zirzow’s concerns without involving Human Resources. There is no evidence
supporting Plaintiffs’ contention that Velasquez initiated the investigation because she
learned that Plaintiff was going to return from FMLA leave. There is no evidence that
Velasquez had any control over the investigation once Zirzow submitted a complaint to
Human Resources. Moreover, it is not surprising that on January 7, 2014, Velasquez
forwarded to Human Resources her notes regarding concerns she had identified during
the previous months when she had covered Plaintiff’s responsibilities because they were
relevant to Zirzow’s complaint submitted to Human Resources on January 3, 2014.
The investigation of Zirzow’s complaint does not provide a basis from which it
can reasonably be inferred that in making the demotion decision Porter considered
Plaintiff’s FMLA leave.
4.

Temporal Proximity

Plaintiff contends that the timing of Defendant’s efforts to demote Plaintiff,
immediately after her return from FMLA leave, is suspicious. However, Velasquez
began identifying concerns about Plaintiff’s performance during Plaintiff’s absence when
Velasquez covered Plaintiff’s duties on a part-time basis, and more concerns were
identified by Bouton when she filled in on a special assignment. The Human Resources

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investigation was initiated by Zirzow’s complaint filed on January 3, 2014, before
Plaintiff returned from FMLA leave.
Although the investigation of Zirzow’s complaint unearthed evidence of Plaintiff’s
inappropriate conduct throughout 2013, there is no evidence showing that Zirzow filed
her complaint or Human Resources began its investigation because Plaintiff took FMLA
leave. There is no basis for speculating that, but for her FMLA leave, Defendant would
have overlooked Plaintiff’s violations of County and Public Health policies and
procedures, disregard for direction from supervisors, and misuse of public resources.
Rather, these deficiencies were exposed because Velaquez and Bouton fulfilled
Plaintiff’s responsibilities in her absence.
Plaintiff has not shown that there are genuine issues of material fact such that a
reasonable jury could return a verdict in her favor on Count I.

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B.

Count II: Disability Discrimination in Violation of the Americans with
Disabilities Act (“ADA”)

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Plaintiff alleged that Defendant demoted her from a supervisory position because

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of her disability. To state a prima facie case under the ADA, Plaintiff must show that (1)

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she is a disabled person within the meaning of the ADA; (2) she can perform the essential

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functions of her job, with or without reasonable accommodation; and (3) Defendant

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demoted her because of her disability. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243,

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1246 (9th Cir. 1999). Defendant does not dispute that Plaintiff is a disabled person

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within the meaning of the ADA and she can perform the essential functions of her job.

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Plaintiff bears the burden of proving, by a preponderance of the evidence, that her

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disability actually played a role in Defendant’s demotion decision. Hernandez v. Hughes

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Missile Sys. Co., 362 F.3d 564, 568 (9th Cir. 2004). She may meet this burden by

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producing direct evidence from which a reasonable jury could conclude her disability

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actually motivated the demotion decision and/or by evidence discrediting Defendant’s

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proffered non-discriminatory explanation. Id.; Snead v. Metro. Prop. & Cas. Ins. Co.,
237 F.3d 1080, 1093–94 (9th Cir. 2001).
Plaintiff’s proffered evidence of discriminatory motive is essentially the same as
that discussed above: attempts to persuade Plaintiff to voluntarily step down from her
supervisory position, inconvenience caused by Plaintiff’s FMLA leave, investigation of a
disgruntled employee’s complaint, Velasquez’s list of concerns sent to Human
Resources, and suspicious timing. This evidence does not show a discriminatory motive
any more than it shows that FMLA leave was considered in the demotion decision.
In addition, Plaintiff contends that the Human Resources investigation was mere
pretext. Plaintiff argues that the investigation was not officially completed until March
26, 2014, because that is the date on the final investigation report, and Porter’s letter
notifying her of his intent to demote and her opportunity to respond had the same date, so
his intent to demote must have been formed before the investigation was completed.
Plaintiff points to drafts of the letter created and reviewed before March 26, 2014, as
evidence that Stratton, Porter, and Velasquez had predetermined the outcome of the
Human Resources investigation. However, creating a final version of the investigation
report on March 26, 2014, does not mean the investigation was incomplete until March
26, 2014. A draft letter dated March 18, 2014, a month after interviews were completed,
proves nothing.
Plaintiff also has not produced evidence discrediting Defendant’s nondiscriminatory explanation for its demotion decision. Porter stated Defendant’s reasons
for demoting Plaintiff in his April 10, 2014 disciplinary action letter: Plaintiff used
County resources for her personal use, willingly ignored her supervisor’s direction, used
and allowed staff to use profanity, willingly violated County and Public Health policies
and procedures, and demonstrated behavior that is inappropriate for a supervisor. Those
reasons are legitimate, non-discriminatory, and supported by evidence in the record.

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1.

Personal Use of County Resources

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On two occasions Plaintiff directed the Healthcare for the Homeless van driver to

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transport Plaintiff’s sister. The driver’s responsibility to transport clients is limited to

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picking them up and transporting them to medical appointments.

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responsible for finding transportation back to transitional housing. On the first occasion,

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Plaintiff directed the driver to pick up her sister at her hotel and transport her to the

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Healthcare for the Homeless Clinic to complete an application for health insurance. On

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the second occasion, Plaintiff directed the driver to pick up her sister at her apartment,

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transport her to meet with an employment agency located on the Clinic campus, and then

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transport her to work. Plaintiff’s sister did not receive any medical services on either

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occasion, and on the second occasion she was not homeless. Moreover, Plaintiff’s sister

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could have completed the health insurance application and obtained employment services

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at locations other than the Healthcare for the Homeless Clinic.

The client is

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During the Human Resources investigation, Plaintiff said that it was normal for

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the van driver to pick up clients from their homes and bring them to the Clinic for

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services even though all of the others interviewed said the van driver was only authorized

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to transport them to medical appointments. The van driver reported that Plaintiff had

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directed him to pick up Plaintiff’s sister and transport her as needed. Plaintiff denied that

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she had directed him to provide transportation for her sister.

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2.

Inadequate Supervision of Timesheet Compliance

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Plaintiff did not ensure that her staff worked their assigned hours, reported time

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worked accurately, and did not work overtime for which they were not compensated.

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Plaintiff said she did not pay attention to whether her subordinates were working “off the

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clock.”

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“punched out” at 4:00 p.m. and then returned to her office to organize her work for the

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next day. However, in an April 2013 email, Plaintiff admitted that her administrative

Plaintiff said she never noticed that her administrative assistant routinely

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assistant worked on and off the clock to meet the needs of the Healthcare for the
Homeless Clinic.
3.

Intentional Disregard of Direction from Supervisors

In late October 2013, Plaintiff met with the Interim Medical Director, Plaintiff’s
supervisor Velasquez, and Zirzow regarding moving patients through the Clinic
efficiently. They decided that a new process or “flow” would be implemented. Plaintiff
was directed to begin implementing the new process the following day.

In early

November 2013, when Plaintiff was on leave, Velasquez asked Zirzow why the changes
had not been made. Zirzow said that after Velasquez and the Interim Medical Director
left the October meeting, Plaintiff told her to forget what she had just heard, and the new
process would not be implemented.
Plaintiff denied that she told Zirzow to ignore what they were told, but said she
told Zirzow that when someone gives her a lot of information, she just takes what she can
use. Plaintiff also said she told Zirzow that in her opinion the problem was not the
process of moving patients through the Clinic, but rather confusing staff by being
inconsistent, so she and Zirzow should just pick a process and stick with it. In other
words, Plaintiff told Zirzow they should not implement the process directed by the
Interim Medical Director and Velasquez. Plaintiff’s interpretation of the meeting is that
many items were discussed, but she received no specific instruction.
4.

Use of Profanity

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Plaintiff admitted to frequently using profanity, including references to staff and

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clients, and allowing her staff to use profanity even though it violated County policy, HR

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2406, which prohibits the use of “foul language” in the workplace. Plaintiff said that she

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used profanity only with staff who used profanity with her and would not be offended.

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She also said that she had staff who come from different backgrounds, and if she tried to

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silence them or teach them social skills, they would not come in to talk to her. She said

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that she knew that the use of profanity violated County policy, but “There are a lot of
County policies that don’t fit into what I have to go through every day.”
Plaintiff contends that her cursing in private conversations with co-workers was
well known to her superiors prior to her request for FMLA leave.
5.

Inappropriate and Unprofessional Behavior

In February 2013, Plaintiff had a telephone conversation with one of the Clinic
nurses who had just suffered a miscarriage and requested to be off work after twelve
hours of labor. Plaintiff said, “What do you mean you aren’t ready to come back yet?
Are you kidding me, when I had my son I was in labor for twelve hours and he’s still
alive?” Plaintiff denied that she made any statement about her subordinate’s miscarriage.
In June 2013, during a meeting with State of Arizona representatives, Plaintiff
kicked Zirzow hard under the table. During a break, when Zirzow asked why Plaintiff
kicked her, Plaintiff said that she wanted Zirzow to “shut the fuck up.” Plaintiff initially
said that she told Zirzow that she tapped her foot to get her attention, but not using that
language. Later, Plaintiff said that after the meeting, they discussed the state audit, but
not the kicking/tapping.
If Porter’s demotion decision rested on nothing more than these two incidents, it
could be inferred that he had an improper motive. However, Porter’s findings regarding
profanity, policy violations, and disregard for direction from her supervisors form a
sufficient basis upon which Porter reasonably could have concluded that Plaintiff did not
convey the professional demeanor appropriate for a supervisor and did not exercise
appropriate judgment.
Porter’s reasons for demoting Plaintiff were legitimate and nondiscriminatory.
Plaintiff has not shown that Porter demoted Plaintiff because of her disability. Plaintiff
has not produced evidence from which a reasonable jury could infer that Porter’s reasons
for his demotion decision were mere pretext. Plaintiff has not shown that there are

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genuine issues of material fact such that a reasonable jury could return a verdict in her
favor on Count II.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment
(Doc. 59) is granted.
IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Defendant
and against Plaintiff and that Plaintiff take nothing. The Clerk shall terminate this case.
Dated this 25th day of February, 2016.

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Neil V. Wake
United States District Judge

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