Liou v. CyraCom International Incorporated

Filing 62

ORDER granting 50 Defendant's Motion for Summary Judgment. The Clerk shall enter judgment. Signed by Judge David G Campbell on 5/20/16.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Glenn Liou, No. CV-15-01167-PHX-DGC Plaintiff, 10 11 v. 12 ORDER CyraCom International Incorporated, 13 Defendant. 14 15 On March 2, 2016, Defendant CyraCom International, LLC filed a motion for 16 summary judgment. Doc. 50. The motion is fully briefed. Docs. 60; 61. Neither party 17 requested oral argument. The Court will grant Defendant’s motion. 18 I. 19 Background. The following facts are undisputed. Defendant CyraCom International, LLC 20 (“CyraCom”) is a privately-held company that provides interpreting services to 21 businesses. Doc. 51-1 at 2, ¶ 2. On August 13, 2012, CyraCom hired Plaintiff Menqiong 22 “Glenn” Liou as a Mandarin interpreter. Id. at ¶ 3. When he was hired, Plaintiff signed 23 documents indicating that he agreed to comply with CyraCom’s policies and procedures 24 and CyraCom’s Interpreter Code of Ethics. Id. at 2, ¶ 3; 7-8; 10. CyraCom’s Interpreter 25 Code of Ethics requires interpreters to provide “interpretation without comment,” where 26 interpreters “render the message in a meaning-for-meaning manner without adding, 27 omitting, or substituting information.” Id. at 2, ¶ 4; 10; 26, ¶ 3. Plaintiff understood that 28 meaning-for-meaning interpretation was important to CyraCom. Id. at 83. 1 CyraCom’s interpreter supervisors periodically monitor their interpreters’ calls 2 with clients. Id. at 64, ¶ 2; 73, ¶ 2. Two of Plaintiff’s supervisors, Brian Ko and Julio 3 Noriega, heard him violate the “interpretation without comment” or “meaning-for- 4 meaning” policy (“Policy”) on numerous occasions. Id. After these incidents, both 5 supervisors provided Plaintiff with counseling and coaching on the Policy. Id. During 6 these coaching sessions, Plaintiff expressed to his supervisors his disagreement with the 7 Policy. Id. On April 29, 2014, Plaintiff was again heard violating the Policy. Id. at 26, 8 ¶ 2. As a result, Plaintiff received a “Needs Improvement” rating based on his lack of 9 compliance with the Policy. Id. at 26, ¶ 2; 31; 84. 10 In May 2014, Plaintiff discussed the “Needs Improvement” rating with Edmundo 11 Alvarez, the CyraCom Call Center Manager. Id. at 26, ¶¶ 1-2. Plaintiff told Alvarez that 12 the “Needs Improvement” rating was coded incorrectly, and asked him to rescind it. Id. 13 at ¶ 2. Plaintiff also told Alvarez that Plaintiff’s supervisors had given him permission to 14 violate the Policy. Id. Alvarez investigated this claim and found that Plaintiff had not, in 15 fact, been given permission to violate the Policy. Id. at ¶ 4. Plaintiff also argued that he 16 should be given permission to violate the Policy. Id. On May 14, 2014, Plaintiff sent 17 Alvarez an email that explained his disagreement with the Policy and argued that 18 interpreters should be permitted to deviate at times from the Policy. Id. at 26-27, ¶¶ 4-5; 19 33-37; 85. Alvarez did not rescind Plaintiff’s “Needs Improvement” rating. Id. at 27, 20 ¶ 6. 21 On June 2, 2014, CyraCom posted an internal job opening for a first-line 22 supervisor of CyraCom’s Mandarin and Cantonese interpreters (“Supervisor Position”). 23 Id. at 3, ¶ 5; 12-15. 24 including providing meaning-for-meaning interpreting and complying with CyraCom’s 25 policies and procedures. Id. at 3, ¶ 5; 13. The job posting also sought candidates who 26 possess certain knowledge, skills, and abilities, including that the candidate be skilled “at 27 communicating, both orally and in writing,” and “in establishing and maintaining 28 effective work relationships.” Id. at 3, ¶ 5; 14. The Supervisor Position had a number of essential functions, -2- 1 On June 5, 2014, Plaintiff applied for the Supervisor Position. Id. at 39-43. 2 Because only four employees applied for the position, Alvarez interviewed each of the 3 candidates. Id. at 27, ¶ 7; 39-43; 45-50; 52-56; 58-62. Each candidate was given an 4 identical application packet, and each was asked identical questions. Id. Of the four 5 candidates, Plaintiff was the only interpreter who had received a “Needs Improvement” 6 rating on a recent evaluation and who had expressed disagreement with the Policy. Id. at 7 27-28, ¶ 8. 8 interpreting, rather than management, and “had problems communicating ideas 9 effectively during the interview.” Id. Alvarez concluded that, of the four candidates, 10 Lily Situ had the best interview and was the most qualified person for the Supervisor 11 Position. Id. at 28, ¶ 11. During her interview, Situ “provided specific examples of how 12 she could motivate and coach a team” and “also showed that she was able to 13 communicate more effectively than the other applicants.” Id. Situ received a higher 14 average rating on the interview than the other three candidates. Id. at 43 (Liou: 3/5); 50 15 (England: 3/5); 56 (Xu: 3/5); 62 (Situ: 4/5). Alvarez selected Situ for the Supervisor 16 Position. Id. During his interview, Plaintiff focused on the technical aspects of 17 On June 26, 2014, Plaintiff sent an email to CyraCom’s Vice President, Best 18 Ihegborow, and copying CyraCom’s Chief Executive Officer, Jeremy Woan. Id. at 3, 19 ¶ 6; 17-18. The subject line was “[t]he employment law expressly prohibits deceitful and 20 unfair hiring practices.” Id. at 17; 86. In the email, Plaintiff asked Ihegborow to conduct 21 “a thorough investigation” of the hiring process for the Supervisor Position. Id. at 17. 22 Plaintiff stated that he had “heard some rumors” that Situ had received extra training 23 before her interview, had been asked different interview questions, and had been 24 generally preferred for the Supervisor Position before the interview. 25 Plaintiff stated that this email contained all of his complaints against CyraCom. Id. at 86. 26 Plaintiff’s June 26, 2014 email was shared with CyraCom’s Human Resources 27 Director, Penie Porter. Id. at 2-3, ¶¶ 1, 6. Porter was asked to “investigate and address 28 the selection process” for the Supervisor Position with Plaintiff. Id. at 3, ¶ 6. Prior to -3- Id. at 17-18. 1 meeting with Plaintiff, Porter spoke with Alvarez, who told her about Plaintiff’s 2 expressed disagreement with the Policy and his assessment of the four candidates. Id. at 3 3, ¶ 7; 28, ¶ 12. Porter also spoke with Plaintiff’s supervisor, Ko, who explained “that he 4 had spent time with the other three candidates, who were all on his interpreting team, and 5 that Ms. Situ had shown initiative on receiving training and coaching.” Id. at 3, ¶ 7; 64, 6 ¶ 6. 7 After speaking with Alvarez and Ko, Porter met with Plaintiff to discuss the 8 selection process. Id. at 4, ¶ 8. Porter explained to Plaintiff why he was not selected for 9 the Supervisor Position, but he “did not accept [her] explanation and demanded that the 10 decision be reversed.” Id. Porter then brought up Plaintiff’s email questioning the 11 Policy, at which point Plaintiff raised his voice, slammed his fist on the desk, and 12 demanded to speak with Ihegborow. Id. Plaintiff left Porter’s office. Id. Porter went to 13 Alvarez and explained what had happened. Id. at 4, ¶ 9; 29, ¶ 13. Alvarez and Porter 14 then summoned Plaintiff to Alvarez’s office to discuss the selection process for the 15 Supervisor Position. Id. Plaintiff refused to look at or address Porter during the meeting. 16 Id. Plaintiff again refused to accept the explanations for why Alvarez had chosen Situ, 17 and left the meeting in the middle of the conversation. Id. Both Alvarez and Porter 18 believed that Plaintiff’s “behavior was defiant, unprofessional, and unacceptable.” Id. 19 After meeting with Alvarez and Porter, Plaintiff sent a second email to Ihegborow 20 and Woan. Id. at 4, ¶ 10; 20-21. Plaintiff stated that he had met with Porter twice and 21 thought “she was completely out of it.” Id. at 20. Plaintiff complained that Porter was 22 not focusing on his complaints about the selection process, and that she had “failed to do 23 her homework.” Id. Plaintiff said Porter needed to “dig in for more facts” about whether 24 Ko had shown preferential treatment in preparing Situ for the interview. Id. at 20-21. 25 Alvarez and Porter met with Plaintiff’s direct supervisor, Julio Noriega. Id. at 4-5, 26 ¶ 11; 29, ¶ 14; 73, ¶ 4. They discussed Plaintiff’s performance and recent behavior. Id. 27 After this meeting, Porter emailed Woan and copied Ihegborow and Alvarez. Id. at 23- 28 24. Porter summarized the meetings with Plaintiff and with Noriega. Id. Porter also -4- 1 recommended that “Corrective Action” be taken. 2 ultimately recommended that Plaintiff be terminated. 3 Ihegborow agreed, and CyraCom terminated Plaintiff on June 30, 2014. Id. at 4-5, ¶ 11; 4 29, ¶ 14. Prior to his termination, Plaintiff did not mention age discrimination in his 5 meetings with Porter or his emails to Ihegborow and Woan. Id. at 5, ¶ 12; 86. 6 II. Id. at 24. Porter and Alvarez Id. at 4-5, ¶ 11; 29, ¶ 14. Legal Standard. 7 A party seeking summary judgment “bears the initial responsibility of informing 8 the district court of the basis for its motion, and identifying those portions of [the record] 9 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 10 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the 11 evidence, viewed in the light most favorable to the nonmoving party, shows “that there is 12 no genuine dispute as to any material fact and the movant is entitled to judgment as a 13 matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a 14 party who “fails to make a showing sufficient to establish the existence of an element 15 essential to that party’s case, and on which that party will bear the burden of proof at 16 trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome 17 of the suit will preclude the entry of summary judgment, and the disputed evidence must 18 be “such that a reasonable jury could return a verdict for the nonmoving party.” 19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 20 III. Analysis. 21 CyraCom seeks summary judgment on Plaintiff’s age discrimination and unlawful 22 retaliation claims. CyraCom also objects to Plaintiff’s statement of facts, and seeks to 23 recover its attorneys’ fees under A.R.S. § 12-341.01. 24 A. 25 CyraCom objects to Plaintiff’s statement of facts on a number of grounds. 26 Doc. 61 at 1-3, 9. CyraCom objects to Plaintiff’s failure to include a controverting 27 statement of facts as required by LRCiv 56.1(b). Id. at 1-2. Because of this failure, 28 CyraCom argues that all of its facts are deemed admitted, and that it is entitled to Plaintiff’s Statement of Facts. -5- 1 summary judgment on this basis alone. Id. at 2. CyraCom also identifies a number of 2 paragraphs in Plaintiff’s statement of facts that contain several facts, assertions not 3 supported by admissible evidence, or improper argument, or that lack proper foundation. 4 Id. at 9. The Court also notes that Plaintiff’s statement of facts did not comply with the 5 Court’s case management order, which imposed a ten-page limit. Doc. 31 at 3, ¶ 7(c). 6 Although the Court warned Plaintiff of the consequences of failing to comply with the 7 Court’s orders and applicable rules (see Doc. 55), the Court will not grant CyraCom 8 summary judgment on this basis. At the same time, however, the Court will not find 9 CyraCom’s facts to be controverted unless Plaintiff provided admissible evidence to 10 support his assertions. 11 B. 12 Plaintiff alleges that CyraCom’s failure to promote him to the Supervisor Position Age Discrimination. 13 was the result of age discrimination. 14 grounds: (1) Plaintiff failed to establish a prima facie case of age discrimination; and 15 (2) CyraCom had a legitimate non-discriminatory basis for deciding not to hire Plaintiff 16 for the Supervisor Position. Doc. 50 at 6-9. CyraCom seeks summary judgment on two 17 To establish a prima facie case of age discrimination based on circumstantial 18 evidence, a plaintiff must establish that: (1) he was a member of a protected class, ages 19 40-70; (2) he applied for and was qualified for a position that was open to applicants; 20 (3) the employer declined to hire him; and (4) the job was awarded to a substantially 21 younger applicant with equal or inferior qualifications. See Nidds v. Schindler Elevator 22 Corp., 113 F.3d 912, 917 (9th Cir. 1996) (citations omitted). Once the prima facie case is 23 established, the burden shifts to the employer to articulate a legitimate, nondiscriminatory 24 reason for awarding the job to a younger applicant. Aragon v. Republic Silver State 25 Disposal Inc., 292 F.3d 654, 658 (9th Cir. 2002) (citing McDonnell Douglas Corp. v. 26 Green, 411 U.S. 792, 802 (1973)). If the employer articulates a nondiscriminatory 27 reason, the burden shifts back to the plaintiff to produce evidence that the employer’s 28 stated reason was pretextual. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th -6- 1 Cir. 1998) (citation omitted). The plaintiff must establish that age was the “but for” 2 cause of the adverse action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176-77 (2009). 3 4 5 1. Prima Facie Case. CyraCom asserts that Plaintiff failed to provide evidence that he had equal or superior qualifications to Situ. Doc. 50 at 6-7. 6 CyraCom provides the following undisputed evidence to support this assertion. 7 Compliance with and enforcement of the Policy is an essential function of the Supervisor 8 Position. Doc. 51-1 at 3, ¶ 5; 13. Plaintiff had expressed disagreement with the Policy, 9 both in an email and while being coached by supervisors. Id. at 33-37; 64, ¶ 2; 73, ¶ 2. 10 Shortly before applying for the Supervisor Position, Plaintiff received a “Needs 11 Improvement” rating for violating the Policy. Id. at 26, ¶ 2; 31; 84. Plaintiff was the 12 only candidate for the Supervisor Position who had received a “Needs Improvement” 13 rating. Id. at 27-28, ¶ 8. Alvarez concluded that Lily Situ had performed the best of the 14 four candidates. Id. at 28, ¶ 11. Situ had provided specific examples of how she could 15 motivate and coach a team and had showed that she was able to communicate more 16 effectively than the other applicants. Id. Plaintiff had difficulty communicating ideas 17 effectively during the interview. Id. at 27-28, ¶ 8. Situ also received a higher average 18 interview score than Plaintiff or the other two applicants. Id. at 43; 50; 56. 19 Although Plaintiff disputes much of CyraCom’s evidence in his papers, he failed 20 to provide any admissible controverting evidence. Plaintiff asserts that he was given 21 permission to violate the Policy by his former supervisor, Sue Deng. Doc. 60 at 2; 11-12, 22 ¶ 7. But Plaintiff fails to provide any admissible evidence to overcome the evidence that 23 supervisors Ko and Noriega had not given him permission to violate the Policy. Doc. 51- 24 1 at 26, ¶ 4. Plaintiff contends that he did not, in fact, receive a “Needs Improvement” 25 rating for violating the Policy. Doc. 60 at 2, 8-10, ¶ 5. But Plaintiff admitted in his 26 deposition that he received the rating because he violated the Policy. Doc. 51-1 at 84. 27 Plaintiff argues that if he did receive such a rating, it was illegitimate and should be 28 reversed. Doc. 60 at 8-10, ¶ 5. CyraCom produced evidence that Plaintiff asked Alvarez -7- 1 to rescind the rating, and that Alvarez investigated the rating and determined that it 2 should be upheld. Doc. 51-1 at 26-27, ¶¶ 1-2, 4, 6. Plaintiff takes issue with the import 3 of the “Needs Improvement” rating and his disagreement with the Policy, arguing that 4 they are discriminatory. Doc. 60 at 13-14, ¶ 8. CyraCom produced evidence to show that 5 compliance with and enforcement of the Policy is an essential function of the Supervisor 6 Position. Doc. 51-1 at 3, ¶ 5; 13. Plaintiff maintains, without providing any admissible 7 evidence, that he was not asked the same questions as Situ. Doc. 60 at 2-3; 15-18, ¶¶ 10- 8 15. Alvarez provided a sworn statement that he asked each of the four candidates the 9 same questions. 10 Doc. 51-1 at 27, ¶ 7. Plaintiff’s unsubstantiated statements and arguments are insufficient to overcome CyraCom’s undisputed facts. 11 Plaintiff also contends that Situ was not qualified to be an interpreter at CyraCom 12 because she did not have one year of experience. Docs. 60 at 7, ¶ 3; 60-1 at 24. Whether 13 Situ was eligible to be an interpreter at CyraCom is not the proper inquiry. Instead, the 14 issue is whether Situ was as qualified or less qualified for the Supervisor Position than 15 Plaintiff. The Supervisor Position did seek candidates with two years of professional 16 interpreter experience, which Situ lacked. Doc. 51-1 at 14, 59. But Plaintiff and the 17 other two candidates also fell short of this requirement. Id. at 40, 46, 53. If anything, this 18 shows that CyraCom did not strictly enforce the length-of-experience requirement. It 19 does not establish that Plaintiff had equal or superior qualifications to Situ. 20 Plaintiff has failed to present sufficient evidence for a reasonable jury to find that 21 he had equal or superior qualifications to Situ. Because this is an essential element of his 22 prim facie case of age discrimination, the Court will enter summary judgment on the age 23 discrimination claim. Celotex, 477 U.S. at 322. 24 2. Legitimate, Nondiscriminatory Basis. 25 The undisputed evidence shows that CyraCom had a legitimate, nondiscriminatory 26 basis for promoting Situ over Plaintiff, and Plaintiff has not presented evidence from 27 which a reasonable jury could find that the basis was pretextual. This too supports 28 summary judgment in favor of CyraCom. -8- 1 C. 2 Plaintiff alleges that CyraCom’s decision to terminate his employment was 3 unlawful retaliation for Plaintiff’s request that CyraCom investigate the hiring of Situ for 4 the Supervisor Position and for his age discrimination claim. CyraCom seeks summary 5 judgment on two grounds: (1) CyraCom had a legitimate, nonretaliatory basis for 6 terminating Plaintiff; and (2) Plaintiff cannot show that this basis was a pretext for 7 unlawful retaliation. Doc. 50 at 9-10. Unlawful Retaliation. 8 To establish a prima facie case of unlawful retaliation, an employee must establish 9 that (1) the employee engaged in a protected activity; (2) the employer took an adverse 10 employment action against the employee; and (3) the employer would not have taken the 11 adverse employment action but for a design to retaliate. Nilsson v. City of Mesa, 503 12 F.3d 947, 953-54 (9th Cir. 2007); see Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 13 2517, 2535 (2013) (clarifying that employee must show “but for” causation). If the 14 employee establishes a prima facie case of unlawful retaliation, the burden shifts to the 15 employer to articulate a legitimate, nonretaliatory reason for its actions. Id. at 954. If the 16 employer articulates such a reason, the employee bears the burden of producing evidence 17 to establish that the employer’s proffered reason was merely a pretext for a retaliatory 18 motive. Id. 19 1. Legitimate, Nonretaliatory Basis. 20 CyraCom contends that Plaintiff’s insubordinate and unprofessional behavior 21 constitutes a legitimate, nonretaliatory basis for terminating Plaintiff’s employment. 22 Doc. 50 at 10. 23 CyraCom provided the following undisputed evidence. After he was informed 24 that Situ had been selected for the Supervisor Position, Plaintiff emailed CyraCom 25 executives and requested an investigation of the hiring process. Doc. 51-1 at 3, ¶ 6; 17- 26 18. Porter was tasked with conducting the investigation. Id. at 3, ¶ 6. Porter spoke with 27 Alvarez and Ko, and then met with Plaintiff to discuss her investigation and findings. Id. 28 at 4, ¶¶ 7, 8. During the meeting, Plaintiff did not accept Porter’s explanation. Instead, -9- 1 he became agitated, raised his voice, slammed his fist on the desk, demanded to speak 2 with CyraCom executives, and abruptly departed. Id. 3 explained what had occurred. Id. at 4, ¶ 9; 29, ¶ 13. Porter went to Alvarez and 4 Porter and Alvarez summoned Plaintiff for a second meeting. Id. During this 5 meeting, Plaintiff refused to address or look at Porter. Id. Plaintiff again refused to 6 accept the explanation for why Situ had been chosen for the Supervisor Position, and he 7 abruptly departed. Id. Plaintiff sent a second email to CyraCom executives demanding 8 an investigation into the hiring process. Id. at 4, ¶ 10; 20-21. Porter and Alvarez 9 discussed Plaintiff’s behavior with Plaintiff’s direct supervisor. Id. at 4-5, ¶ 11; 29, ¶ 14; 10 73, ¶ 4. Porter reported Plaintiff’s behavior to CyraCom executives. Id. at 23-24. Porter 11 and Alvarez ultimately recommended Plaintiff’s termination. Id. at 4-5, ¶ 11; 29, ¶ 14. 12 Although Plaintiff disputes much of CyraCom’s evidence in his papers, he has 13 failed to provide any admissible controverting evidence. Plaintiff states that he never had 14 any issues of professionalism with one of his supervisors, Julio Noriega. Doc. 60 at 3. 15 Even if this is true, it does not bear on the events that transpired after he was denied the 16 Supervisor Position. Plaintiff claims that, during his meeting with Porter, he “acted in a 17 calm and professional manner. . . . as a prudent professional would.” Id. at 3-4; 19-22, 18 ¶¶ 17-20. In fact, Plaintiff’s response actually accuses Porter of losing her composure 19 during the meeting, stating “[o]ut of nowhere she flew to a rage, lost her composure, and 20 yelled ‘If you walk out of my office, you are fired.’” Id. at 19-20, ¶ 18. Properly 21 presented, this could be sufficient to raise a genuine issue of disputed material fact, but 22 Plaintiff failed to provide any admissible evidence to support this assertion. 23 Plaintiff also asserts that “Defendant made unsubstantiated claims without an[y] 24 evidence.” Id. at 4. As an example, Plaintiff argues that CyraCom failed to produce 25 phone recordings to prove its claim that he violated the Policy. Id. CyraCom provided 26 admissible evidence to prove this assertion when it submitted the affidavits of Brian Ko 27 and Julio Noriega. Doc. 51-1 at 64, ¶ 2; 73, ¶ 2. Affidavits may be used to establish that 28 there is no genuine dispute of material fact in support of a summary judgment motion. - 10 - 1 See Fed. R. Civ. P. 56(c)(1)(A). Plaintiff’s assertion that CyraCom made unsubstantiated 2 claims is without merit. 3 CyraCom has produced undisputed evidence that it had a legitimate, nonretaliatory 4 basis for terminating Plaintiff. The burden therefore shifts to Plaintiff to prove that there 5 is a genuine dispute of material fact that must be resolved at trial as to whether 6 CyraCom’s basis for terminating Plaintiff was a pretext. 7 2. Pretext. 8 Plaintiff attempts to dispute CyraCom’s reasons for terminating him by presenting 9 his version of events – dubbed “the hiring plot” – in which Situ was groomed for the 10 Supervisor Position before CyraCom even began soliciting applications for the position. 11 Doc. 60 at 25-26, ¶ 23. According to Plaintiff, CyraCom’s basis for terminating his 12 employment was pretextual because “Defendant was not willing to accept and deal with 13 Plaintiff’s age discrimination claim and to investigate the hiring plot.” Id. at 22, ¶ 20. 14 But Plaintiff failed to produce any evidence to support these assertions. Based on the 15 undisputed evidence produced by CyraCom, the Court concludes that no reasonable jury 16 could find for Plaintiff on this issue. CyraCom is therefore entitled to summary judgment 17 on Plaintiff’s unlawful discrimination claim. Celotex, 477 U.S. at 322. 18 D. 19 CyraCom requests attorneys’ fees under A.R.S. § 12-341.01. Docs. 50 at 11; 61 at 20 9. Arizona courts have declined to award attorneys’ fees in the employment context 21 when the action “sounded in tort and not contract,” as in the case of an age discrimination 22 or wrongful termination claim. See Thompson v. Better-Bilt Aluminum Prods. Co., 927 23 P.2d 781, 790 (Ariz. Ct. App. 1996) (citing Morris v. Achen Constr. Co., Inc., 747 P.2d 24 1211, 1213 (Ariz. 1987)). For this reason, and because Plaintiff is proceeding pro se, the 25 Court exercises its discretion to decline an award of fees. Attorneys’ Fees. 26 27 28 - 11 - 1 IT IS ORDERED: 2 1. Defendant’s motion for summary judgment (Doc. 50) is granted. 3 2. The Clerk of Court shall enter judgment accordingly. 4 Dated this 20th day of May, 2016. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -

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