Starling v. Banner Health et al

Filing 296

ORDER - No claims remain against Bessel, Nunley, Helmich, or Davis-Hill. Only Starlings ADEA age discrimination and ADEA retaliatory discrimination case against Banner will proceed. A final pretrial conference will be set by separate order. IT IS THEREFORE ORDERED that Defendants Banner Health, Marjorie Bessel, M.D., Julie Nunley, Cindy Helmich, and Lori Davis-Hill's 218 Motion for Summary Judgment is granted regarding Counts III, IV, V, VI, VII, VIII, IX, X, and XI and denied regarding Counts I and II. IT IS FURTHER ORDERED that Plaintiff's 243 Motion Pursuant to Federal Rule of Civil Procedure 56(d) is denied. See document for complete details. Signed by Senior Judge Neil V Wake on 1/11/2018. (ATD)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mark Starling, M.D., 10 No. CV-16-00708-PHX-NVW Plaintiff, ORDER 11 v. 12 Banner Health, an Arizona corporation; Marjorie Bessel, M.D.; Julie Nunley; Cindy Helmich; and Lori Davis-Hill, 13 14 Defendants. 15 16 TABLE OF CONTENTS 17 18 19 20 21 22 I. SUMMARY JUDGMENT STANDARD ................................................................... 1 II. FACTUAL BACKGROUND ..................................................................................... 2 A. Starling’s First Decade at Banner .......................................................................... 2 B. Allegations Mount Against Starling ...................................................................... 3 C. Starling Accuses Banner of Discrimination .......................................................... 6 D. The Holiday Party and Starling’s Termination ...................................................... 7 23 E. The Report to the Medical Board ........................................................................ 11 24 F. This Action........................................................................................................... 12 25 26 27 28 III. ANALYSIS: SUMMARY JUDGMENT ................................................................ 12 A. Count I (Banner): Violation of ADEA – Age Discrimination – Termination of Employment .................................................................................................................. 12 1. Starling’s Prima Facie Case ............................................................................. 13 1 2. Banner’s Proffered Nondiscriminatory Rationale ............................................ 16 2 3. Starling’s Argument for Pretext ....................................................................... 16 3 Counts II, VI, and X (Banner): Violation of ADEA – Retaliation ...................... 17 B. 4 1. Count II: Termination of Employment ............................................................. 18 2. Count VI: Performance Improvement Plan ...................................................... 19 3. Count X: Complaint to the Arizona Medical Board......................................... 20 5 6 7 C. Count III (Banner): Violation of ADA – Disability Discrimination – Termination of Employment .............................................................................................................. 20 8 9 D. Count IV (Banner, Bessel, and Nunley): Violation of AEPA – Retaliation – Termination of Employment ......................................................................................... 21 10 E. Count V (Banner, Bessel, and Nunley): Violation of AEPA – Retaliation – Termination of Employment ......................................................................................... 22 11 12 F. Count IX (Banner, Bessel, Nunley, Davis-Hill, and Helmich): Invasion of Privacy – Intrusion Upon Seclusion .............................................................................. 23 13 G. Counts VII and VIII (Banner, Bessel, and Nunley): Defamation – False Statements Regarding Job Performance ........................................................................ 25 14 15 H. Count XI (Banner and Bessel): Defamation – False Statements in Complaint to the Arizona Medical Board ........................................................................................... 25 16 17 1. Defamation Generally ...................................................................................... 25 18 2. The Duty to Report and Qualified Privilege .................................................... 25 3. Bessel’s Letter to the Board ............................................................................. 26 19 20 21 IV. STARLING’S RULE 56(d) MOTION ................................................................... 28 A. Depositions of Decision-Makers ......................................................................... 29 C. 23 Comparator Discovery ......................................................................................... 28 B. 22 Waiver of Privilege .............................................................................................. 30 24 25 V. CONCLUSION ......................................................................................................... 30 26 27 28 - ii - 1 Before the Court is Defendants Banner Health, Marjorie Bessel, M.D., Julie 2 Nunley, Cindy Helmich, and Lori Davis-Hill’s Motion for Summary Judgment (Doc. 3 218), the Response, and the Reply. Also before the Court is Plaintiff’s Motion Pursuant 4 to Federal Rule of Civil Procedure 56(d) (Doc. 243), the Response, and the Reply. For 5 the reasons below, Defendants’ motion will be granted in part and denied in part, and 6 Plaintiff’s motion will be denied. 7 I. SUMMARY JUDGMENT STANDARD 8 A motion for summary judgment tests whether the opposing party has sufficient 9 evidence to merit a trial. Summary judgment should be granted if the evidence reveals no 10 genuine dispute about any material fact and the moving party is entitled to judgment as a 11 matter of law. Fed. R. Civ. P. 56(a). A material fact is one that might affect the outcome 12 of the suit under the governing law, and a factual dispute is genuine “if the evidence is 13 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 14 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 15 It is the moving party’s burden to show there are no genuine disputes of material fact. 16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Upon such a showing, however, the 17 burden shifts to the non-moving party, who must then “set forth specific facts showing that 18 there is a genuine issue for trial” without simply resting on the pleadings. Anderson, 477 19 U.S. at 256. To carry this burden, the nonmoving party must do more than simply show 20 there is “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. 21 Zenith Radio Corp., 475 U.S. 574, 586 (1986). Where the record, taken as a whole, could 22 not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for 23 trial. Id. at 587. “A court must view the evidence ‘in the light most favorable to the [non- 24 moving] party.’” Tolan v. Cotton, — U.S. —, 134 S. Ct. 1861, 1866 (2014) (quoting 25 Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). “A ‘judge’s function’ at summary 26 judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine 27 whether there is a genuine issue for trial.’” Id. (quoting Anderson, 477 U.S. at 249). 28 -1- 1 2 3 II. FACTUAL BACKGROUND The following facts are construed in the light most favorable to the plaintiff, the non-moving party. Starling’s First Decade at Banner 4 A. 5 In October 2004, Banner Health (“Banner”) hired Dr. Mark Starling (“Starling”) 6 to serve as the Medical Director of Banner Baywood Heart Hospital. (Doc. 219 at ¶ 1.) 7 He was 56 years old and had previously been a tenured professor of medicine at the 8 University of Michigan. (Id. at ¶ 2; Doc. 210 at ¶ 2.) 9 Dr. John Hensing supervised Starling during his time as Medical Director. (Doc. 10 219 at ¶ 3.) Starling’s performance, in Hensing’s eyes, “exceed[ed] or frequently 11 exceed[ed]” expectations. (Id. at ¶ 4.) In 2006, Starling was promoted to Chief Medical 12 Officer. (Id. at ¶ 5.) 13 Dr. Marjorie Bessel (“Bessel”) became Starling’s direct supervisor in 2010. (Id. at 14 ¶ 6.) She was 47. (Id., Ex. B at ¶ 4.) Overall, Starling continued to receive positive 15 performance reviews. (Doc. 219 at ¶ 7.) But in October 2012, Bessel and the Hospital’s 16 then-CEO, Laura Robertson, placed Starling on a performance improvement plan, which 17 Robertson emailed to him. (Id., Ex. C at Ex. 2.) Starling was expected to become more 18 involved in clinical aspects at the Hospital; to improve his “communication in delivery 19 and accuracy of information,” including avoiding “[v]isible signs of exacerbation [sic]” 20 such as throwing his hands up; to delegate more effectively; and to “[a]ctively engage as 21 a senior leader.” (Id.) Robertson says that she delivered the document during a meeting. 22 (Doc. 219, Ex. C at 52:5-8.) Starling claims he never received any sort of performance 23 improvement plan or any similar document in 2012. (Doc. 267, Ex. 2 at ¶ 16.) He 24 admits only that Robertson expressed concern about Starling’s outside speaking 25 engagements affecting his obligations to the hospital. (Id. at ¶ 17.) Regardless of 26 whether Starling was aware of the plan, Defendants contend that Starling made 27 “sufficient progress” to end it. (Doc. 219 at ¶ 10.) Robertson also recalls several 28 accusations of bias against Starling. (Doc. 267, Ex. 6 at 207:4-23; 211:19-212:7.) -2- 1 Otherwise, Robertson appears to have been quite satisfied with Starling’s 2 performance. Robertson says that Starling was, more than once, responsive to the 3 concerns she expressed. (Id. at 109:18-110:4; 134:18-135:8.) On June 5, 2014, 4 Robertson texted Starling, “Thanks so much for your help. I truly appreciate your 5 courageous leadership and doing the right thing! You are a great partner!!” (Id. at 6 151:23-152:18.) On October 21, 2014, she provided Starling with positive comments at a 7 budget review and, later that day, responded to his grateful text with this message: “You 8 are a great leader and it’s a privilege to work with you.” (Id. at 156:22-157:23.) 9 Plaintiffs attach as exhibits seven notes of encouragement and gratitude, most of which 10 were handwritten, from Robertson to Starling. (See id. at Exs. 12-18.) The dates are 11 sometimes unclear, but Robertson contests the veracity of none. In fact, she 12 acknowledges in her deposition that she found Starling to be a great leader and partner. 13 (Doc. 267, Ex. 6 at 169:6-12.) 14 Robertson was not the only one who appreciated Starling’s work. Each year, 15 Banner gives certain employees the Guardian Award. Those who best embody Banner’s 16 virtues—“wisdom, warmth, strength, integrity and gentleness”—receive the honor. (Doc. 17 267, Ex. 16.) There is a competitive selection and interview process. Starling was 18 nominated “multiple times” throughout his time at Banner and won the award in 19 November 2014. (Doc. 267, Ex. 2 at ¶ 15.) 20 B. 21 In March of 2015, Julie Nunley (“Nunley”) became the Hospital’s CEO. (Doc. Allegations Mount Against Starling 22 219 at ¶ 11.) Shortly thereafter, Dr. Joseph Chatham, the Hospital’s Chief of Staff, met 23 with Nunley. The parties dispute who approached whom. Chatham accused Starling of 24 being uncollaborative, dictating his own agenda without input, playing favorites with 25 staff members, and sending physicians’ cases to peer review selectively. (Id. at ¶ 12.) 26 Starling believes that Chatham was biased against him because of a dispute the two had 27 regarding the (negligent, according to Starling) credentialing of Chatham’s son, also a 28 -3- 1 doctor, for a particular procedure. Starling ultimately won that fight, as Banner took his 2 side. (Doc. 267, Ex. 2 at ¶¶ 172-203.) 3 For her part, Nunley also claims that she saw Starling “slam his fist down on a 4 table” at a medical staff meeting. (Doc. 219, Ex. D at ¶ 3.) Starling denies this, but he 5 does so only insofar as to deny he slammed his fist at a meeting with the Chief of 6 Anesthesiology, Dr. George Scott Gieszl, Jr. (Doc. 267, Ex. 20 at 10-11.) Starling 7 suggests that this is the only candidate for Nunley’s supposed misremembrance. 8 9 Perhaps the fist-slamming accusation stems back to Robertson. Robertson kept notes during her tenure as CEO. On one occasion, she noted that Starling “scream[ed] at 10 Giesle [sic] in the hallway.” (Doc. 267, Ex. 6 at 87:23-88:3.) She says Gieszl heard 11 Starling screaming in the hallway. (Id. at 88:8-12.) Yet Gieszl swears in a declaration 12 that in his ten years of working with Starling, he never “saw him act inappropriately” or 13 “unprofessionally.” (Doc. 267, Ex. 7 at ¶¶ 8-9.) During a disagreement over peer review 14 for anesthesiologists, Gieszl felt all involved conducted themselves properly at all times. 15 (Id. at ¶¶ 11-15.) 16 Starling also made a habit of sending what Defendants describe as unprofessional 17 emails. (Doc. 218 at 3.) For example, on October 12, 2014, Starling sent an email to 18 Banner Health’s Vice President of Operations for the Arizona Region: “Why are you 19 interfering in our process in the [ ] transfer process. You . . . are delaying care.” The 20 Vice President responded, “I don’t have any idea what you’re talking about and I don’t 21 appreciate getting a note like this. If you have specific concerns, I’d like to know what 22 they are and have them addressed in a collaborative, constructive manner.” (Doc. 219 at 23 ¶ 15.) Starling admits that the email “doesn’t invite collaboration.” (Doc. 219, Ex. A at 24 192:18-21.) He later explained his specific concerns in a follow-up email. (Doc. 219, 25 Ex. A, Ex. 13.) Further, he claims to have communicated those concerns in a meeting 26 prior to sending the email. (Doc. 267, Ex. 2 at ¶¶ 22-23.) 27 28 Another exchange occurred on December 31, 2014, when Banner’s Peer Review Quality Director emailed Starling to ask about system-wide changes, including new -4- 1 software, that the company was making to the peer-review process. She noted that she 2 had an invitation on her “calendar for a peer review meeting on January 7th,” and she 3 wanted to be “prepared to support [Starling’s] team and the peer review process at [the 4 Hospital].” (Id., Ex. B at Ex. G.) Starling replied, “You need to watch and learn on the 5 7th how a true [Peer Review Council] functions. This activity will remain untouched.” 6 (Id.) After noting that he was dissatisfied with the changes and tersely demanding 7 training resources, he concluded, “Why this had to be made so difficult is beyond me at 8 this point. Happy New Year.” (Id.) The Quality Director’s supervisor later forwarded 9 the email to Bessel, expressing concern: “Given Dr. Starling’s response below, I am 10 uncertain if he was able to garner support from the local team. I am concerned this will 11 undermine the process.” (Id.) 12 In addition, Defendants assert that Starling failed to attend several meetings. 13 Throughout the year of 2014, they claim, Starling attended only two of the eleven Chief 14 Medical Officer/Chief of Staff system peer review council meetings. (Doc. 219 at ¶ 18.) 15 He also missed a physician succession meeting with Robertson. Yet Starling claims that 16 he did attend more than two meetings—sometimes dialing in via phone, in which case his 17 attendance would not be recorded. (Doc. 267, Ex. 2 at ¶ 224.) Starling’s assistant avers 18 that during the two years she worked for him, he “always communicated very well . . . 19 about his ability, or inability, to attend meetings for which he was scheduled.” (Doc. 267, 20 Ex. 12 at ¶ 7.) 21 Bessel accuses Starling of having been often unprepared to discuss items at the 22 meetings he did attend. (Doc. 219 at ¶ 22.) Starling disputes this last point, asserting that 23 he “always made a good-faith effort to be prepared for [his] meetings.” (Doc. 267, Ex. 2 24 at ¶ 232.) He vigorously contests one particular instance in which Bessel accused him of 25 being unprepared to discuss a lab project. (Doc. 267, Ex. 21 at 19-21 (written statement 26 supplied to Banner as part of its later investigation into Starling’s claims of age 27 discrimination).) 28 -5- 1 Bessel and Starling had regularly monthly meetings. Some of these meetings 2 occurred on January 27, 2015, February 11, 2015, and May 29, 2015. (Doc. 219 at ¶ 23.) 3 During these meetings, the two discussed what Bessel felt was the inappropriate tone of 4 the emails above. Starling claims that he apologized to the persons to whom he sent the 5 messages, but he contends that “Bessel acted as if the [emails] were minor issues.” (Doc. 6 267, Ex. 2 at ¶ 35.) He also does not believe the tone of the emails was inappropriate. 7 (Doc. 267, Ex. 21 at 5-9.) 8 9 At a June 4, 2015 meeting with Chatham and Nunley, Chatham told Starling that he did not believe Starling was objective. (Doc. 267, Ex. 2 at ¶ 217; Doc. 219 at ¶ 25.) 10 Nunley became concerned that Starling had a fractured relationship with the medical 11 staff. (Doc. 219 at ¶ 25.) Starling responds now by pointing to declarations from three 12 colleagues of many years, all of whom swear to his professionalism and decorum. (See 13 Doc. 267 at Exs. 9-11.) And again, he casts aspersions on Chatham, insinuating that 14 Chatham disliked Starling because of the dispute with Chatham’s son. (Doc. 267 at ¶ 25 15 (citing various places in the record).) 16 C. 17 As early as June 9, 2015, Bessel was investigating whether Starling’s Starling Accuses Banner of Discrimination 18 investment/retirement plan had vested and planning for a “soft landing” package—though 19 Defendants do not explain what this package entailed. (Doc. 267, Ex. 5 at Ex. 8; Doc. 20 267, Ex. 5 at 111:6-21; Doc. 267, Ex. 34; Doc. 291 at 7.) On or around the day before, 21 June 8, 2015, Starling met with Bessel and Nunley to discuss his performance issues. 22 Defendants assert that Bessel told Starling he would be placed on a “non-disciplinary” 23 Performance Improvement Plan (“PIP”). (Doc. 219 at ¶ 27.) Starling claims that the 24 conversation was actually quite hostile, with Bessel saying, “We have no confidence that 25 you can meet our expectations as [Chief Medical Officer].” (Doc. 267, Ex. 2 at ¶ 55.) 26 According to Starling, Bessel continued: “One more mistake and you’re fired.” (Id. at 27 ¶ 56.) Starling says the conversation “frightened [him] into retaining legal counsel that 28 same day.” (Id. at ¶ 61.) -6- 1 On June 16, 2015, Starling met with Banner’s General Counsel to file an internal 2 complaint of discrimination as a result of the meetings with Bessel and Nunley. (Doc. 3 267, Ex. 2 at ¶ 68.) He claims that Bessel and Nunley immediately began to treat him 4 with hostility, ignoring his salutations, walking away from him, and excluding him from 5 meetings. Both appeared to be angry, at least as he saw it, when they did talk to him. 6 (Id. at ¶¶ 74-78.) 7 Nine days after the June 8 meeting, on June 17, 2015, Starling’s counsel sent 8 Banner a letter accusing it of attempting to force Starling into retirement. (Doc. 219 at 9 ¶ 28.) Banner investigated the allegation internally, and its Senior Director of Human 10 Resources concluded that there was no evidence of harassment or discrimination. (Id. at 11 ¶ 29.) Starling contests the internal investigation procedures, alleging that the 12 investigator asked only leading questions and cherrypicked witnesses and facts. (Doc. 13 267, Ex. 2 at ¶¶ 79-84.) 14 On October 28, 2015, after Banner’s investigation concluded, the PIP went into 15 effect. Defendants claim that the PIP “was neither a disciplinary measure nor ‘corrective 16 action.’” (Doc. 219 at ¶ 30.) Starling told Bessel that he thought the PIP “was age 17 discrimination and retaliation.” (Doc. 267, Ex. 2 at ¶¶ 85-89.) Around November 10, 18 2015, Starling’s counsel sent notice of intent to file suit. (See Doc. 267, Ex. 26.) The Holiday Party and Starling’s Termination 19 D. 20 Banner held its annual employee recognition holiday function at Banner Baywood 21 Medical Center on December 15, 2015. There were multiple meals served so that Banner 22 employees who worked later in the day could partake in the festivities. 23 Defendants assert that, as Chief Medical Officer, Starling “was required to work” 24 at the function. (Doc. 219 at ¶ 31.) Nunley’s assistant had emailed members of Hospital 25 management, including Starling, and stated, “All c-suite will be attending and assisting 26 with [the] meals please [sic] sign up for the best times that will work for you.” (Id. at 27 ¶ 32.) Starling asserts that he attended the function of his own accord and did not view it 28 as work/an obligation. (Doc. 267, Ex. 2 at ¶ 137-40.) He further notes that he had -7- 1 declined many times to work the event in the past and “was never disciplined or 2 otherwise admonished in any way.” (Id. at ¶ 146-47.) In his words, “No one ever told 3 me I was required to attend the holiday meal. Nothing ever led me to believe that my 4 attendance was required at the holiday meal.” (Id. at ¶ 148.) Starling’s assistant swears 5 that “no one ever told [her that Starling] was required to attend the holiday meal and 6 serve meals to staff.” She always had the impression that doing so was optional. (Doc. 7 267, Ex. 12 at ¶¶ 14-15.) 8 9 On the evening of the holiday party, Starling had three eight-ounce glasses of wine between 6:00 pm and 8:00 pm. (Doc. 219 at ¶ 36.) Starling emphasizes that he 10 consumed two of these glasses while eating his dinner, “a healthy portion of chicken, 11 rice, and vegetables.” (Doc. 267, Ex. 2 at ¶ 93.) He also had “two cups of coffee and ate 12 dessert.” (Id. at ¶ 95.) He further points out that, at the time, he weighed approximately 13 190 lbs. and “would typically drink 1-2 glasses of wine with dinner, 2-5 times per week.” 14 (Id. at ¶¶ 148-49.) He thus believes that the wine did not in any way affect him. (Doc. 15 219, Ex. A at 20:9-21.) 16 In any case, at around 10:30 pm, Starling drove himself to the party, arriving at 17 about 11:00 pm. (Doc. 219 at ¶ 37.) Alcohol was not being served at the event. (Id. at 18 ¶ 38.) Again, Starling never signed up for a shift and decided, apparently spontaneously, 19 to attend. (Doc. 267, Ex. 1 at Ex. 3; Doc. 267, Ex. 28 at 5.) He also points out that he 20 had been up since 5:00 am. (Doc. 267, Ex. 2 at ¶ 90.) 21 From this point, the stories diverge wildly. Cindy Helmich (“Helmich”), Chief 22 Nursing Officer at Banner Baywood Medical Center, went to say hello to Starling. She 23 says she could smell alcohol on Starling’s breath. His speech cadence was off, and his 24 words were unclear. Further, his arms were “swaying back and forth” more than normal, 25 he was stepping back and forth, and he was “very animated.” (Doc. 267, Ex. 3 at 77:6- 26 78:18.) Otherwise, Helmich remembers almost nothing about it. (See id. at 75:23- 27 86:25.) Some time passed, less than an hour but maybe more than a half-hour, before 28 Helmich reported this to Nunley. (Id. at 84:12-20.) Lori Davis-Hill (“Davis-Hill”), the -8- 1 Hospital’s Chief Human Resources Officer, spoke to Starling at Nunley’s request. Davis- 2 Hill “observed that there was an odor that could be the odor of alcohol.” She further 3 explained that “the cadence of [Starling’s] speech was not what [she was] used to hearing 4 from him. . . . [W]hen he was speaking, he would lose track of his thought and pause, and 5 then come back into the conversation.” He did not, however, slur his speech. (Doc. 219, 6 Ex. F at 75:1-76:23.) 7 Starling tells a different tale. He insists he was sober. Apart from the other 8 administrators and staff members he talked to at the event who apparently did not notice 9 his tipsiness, Starling points out that at one point he performed a feat that would be 10 almost impossible if he were intoxicated. Erin Leuthold, Director of the Cardiac 11 Progressive Care Unit, suggested that they take some meals to staff members who were 12 unable to make it over to the cafeteria. Leuthold “obtained a very large serving platter” 13 upon which she placed four meals. The meals were on plates, with other plates turned 14 upside down to cover them. Starling took the tray over to the dessert table and balanced 15 desserts on top of the upside-down plates. As Starling and Leuthold were leaving, Davis- 16 Hill asked if she could join. Starling carried the tray to an elevator, exited the elevator, 17 walked down “a long hallway,” got on another elevator, and then “walked the entire B 18 and C units of the 4th floor.” In Starling’s words, “During this entire time, I carried the 19 heavy platter with four meals on it balancing desserts on top of those meals. At no time 20 did I ever stumble or display anything that can be viewed as any kind of impairment.” 21 He recalls that the whole process took about 45 minutes before he returned to the 22 cafeteria. (Doc. 267, Ex. 2 at ¶¶ 90-104.) Davis-Hill acknowledges that she walked with 23 Starling, but she does not recall how much he carried. (Doc. 267, Ex. 4 at 85:14-16.) 24 She says he did stumble, but she cannot say it was from having been drinking. (See id. at 25 89:23-90:8.) Finally, Starling emphasizes that he spoke to at least four other persons, in 26 addition to those to whom he served food, who did not complain about his demeanor at 27 the holiday party. (Doc. 267, Ex. 2 at ¶ 99.) 28 -9- 1 Whichever story is correct, at around 1:00 am, Helmich and Davis-Hill 2 approached Starling and told him to accompany them to an empty conference room. 3 (Doc. 219 at ¶ 43.) On the way, when Starling asked why he had been pulled aside, 4 Helmich responded that someone claimed to have smelled alcohol on his breath. (Doc. 5 267, Ex. 2 at ¶¶ 106-07.) Starling says that, prior to the technician arriving, no one asked 6 him for his consent. (Id. at ¶ 112.) The non-Banner-affiliated technician arrived around 7 2:30 am and administered a breathalyzer test, which showed a blood-alcohol content of 8 .043. (Doc. 219 at ¶ 50.) According to Starling, the technician also asked for a urine 9 sample while he recalibrated the breathalyzer to run the test again. (Doc. 267, Ex. 2 at 10 ¶¶ 117-18.) Defendants claim, without adequate citation, that Starling consented to the 11 testing before it began. (Doc. 219 at ¶ 46.) The result of the second breathalyzer test was 12 almost identical to the first. (Doc. 267, Ex. 2 at ¶ 121.) Starling claims that the 13 technician asked him to sign a piece of paper confirming that his blood-alcohol content 14 exceeded .02, the cutoff point for a violation of Banner’s policy. (Id.) That paper 15 included an indemnity provision, in which the signor agrees to “hold harmless, the 16 laboratory, collection facility, above named company, and their agents or representatives 17 from any and all liability arising from this testing and any decision made concerning . . . 18 continued employment based upon the results of these tests.” (Doc. 219, Ex. A at Ex. 5.) 19 Starling further claims that the technician would not allow him to leave unless he signed 20 the paper, which is the sole reason he signed it. (Doc. 267, Ex. 2 at ¶ 121.) The 21 technician did not ask him to explain why his blood-alcohol content might have been 22 elevated. Alternative explanations include, according to Starling, medications, lip balm, 23 and mouthwash with alcohol content. The technician also did not offer alternative testing 24 procedures. (Id. at ¶ 122.) 25 Banner had itself served alcohol at various work-related functions in the past. For 26 example, alcohol was sometimes served at the Guardian Award ceremony. (Doc. 267, 27 Ex. 6 at 27:6-8.) Part of former-CEO Robertson’s job was to speak at the ceremony. (Id. 28 at 27:14-18.) She consumed alcohol when attending and was never disciplined for doing - 10 - 1 so. (Id. at 27:23-28:7.) Nor did she have to submit to a drug and alcohol test. (Id. at 2 30:4-6.) Further, she was unaware of other attendees at the ceremony or at meetings 3 where alcohol was served who were disciplined or had to submit to testing as a result of 4 the drinking. (Id. at 30:17-31:15.) Jill Patterson, Vice President of Human Resources, 5 admits that Banner served alcohol to its employees at an annual leadership conference 6 and an event honoring hospital donors. (Doc. 267, Ex. 5 at 131:18-133:13.) Helmich 7 also recalls alcohol being served at certain Banner events. (See Doc. 267, Ex 3 at 183- 8 86.) 9 Nevertheless, on December 17, 2015, Banner terminated Starling’s employment. 10 (Doc. 219 at ¶ 56.) Defendants claim that “[p]er Banner’s Employee Drug and Alcohol 11 Policy, an employee with a blood alcohol content of .02 or greater is in violation of the 12 policy and immediate termination is required.” (Id. at ¶ 55.) Starling was 67 at the time 13 he was terminated. (Id. at ¶ 56.) He was replaced by Dr. Paul Hurst, a 60 year-old 14 physician. (Id. at ¶ 57.) 15 E. 16 On December 28, 2015, Bessel sent to the Arizona State Board of Medical 17 Examiners (“Board”) a letter detailing the incident at the holiday party. (Doc. 267, Ex. 5 18 at Ex. 10.) She prefaced the letter by explaining that an Arizona statute requires hospitals 19 to report “any information that appears to show that a physician is or may be unable to 20 engage safely in the practice of medicine.” (Id.) The relevant factual portion stated as 21 follows: “During the night shift meal on 12/14/15, Dr. Starling was reported to have 22 smelled of alcohol and to have stumbled. His speech differed from its normal pattern. 23 Per policy, Dr. Starling was required to undergo, and did complete, testing. The testing 24 was positive for alcohol above Banner’s acceptable level.” (Id.) She specifically 25 requested that the Board maintain confidentiality in the matter. (Id.) The Board 26 eventually informed Starling that it determined that he had not violated the Arizona 27 Medical Practice Act and dismissed the case. The Report to the Medical Board 28 - 11 - 1 F. 2 Starling filed a charge of discrimination with the Equal Opportunity Employment This Action 3 Commission on January 4, 2016. (Doc. 216 at ¶ 168.) He filed this suit on March 15, 4 2016. On April 25, 2016, the EEOC issued a Notice of Right to Sue Letter. (Id. at 5 ¶ 171.) 6 III. 7 8 9 10 11 12 13 14 15 ANALYSIS: SUMMARY JUDGMENT In evaluating the discrimination claims in this case, the Court bears in mind the following guidance from the Ninth Circuit: A plaintiff alleging employment discrimination need produce very little evidence in order to overcome an employer’s motion for summary judgment. This is because the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by a factfinder, upon a full record. In evaluating motions for summary judgment in the context of employment discrimination, we have emphasized the importance of zealously guarding an employee’s right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses. 16 Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (internal quotation 17 marks and citations omitted). 18 19 A. Count I (Banner): Violation of ADEA – Age Discrimination – Termination of Employment Starling claims that he was terminated because of his age. (Doc. 210 at ¶ 220.) 20 The Age Discrimination in Employment Act of 1967, as amended (“ADEA”), prohibits 21 an employer from discriminating against an individual because of the individual’s age. 22 23 24 25 26 27 28 29 U.S.C. § 623(a). ADEA claims proceed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework. First, a plaintiff must establish a prima facie case of discrimination. If he does so, the burden shifts to the defendants to articulate a legitimate, nondiscriminatory reason for their conduct. Should the defendants succeed, the burden shifts back to the plaintiff to demonstrate that the proffered nondiscriminatory reason is a pretext for discrimination. Wallis v. J.R. Simplot Co., 26 F.3d 885, 888-89 (9th Cir. 1994). - 12 - 1 1. Starling’s Prima Facie Case 2 “The requisite degree of proof necessary to establish a prima facie case for . . . 3 ADEA claims on summary judgment is minimal and does not even need to rise to the 4 level of a preponderance of the evidence.” Id. at 889. “To establish a prima facie case 5 using circumstantial evidence, [ ] employees must demonstrate that they were 6 (1) members of the protected class (at least age 40); (2) performing their jobs 7 satisfactorily; (3) discharged; and (4) replaced by substantially younger employees with 8 equal or inferior qualifications.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th 9 Cir. 2000). 10 Starling has established a prima facie case. He was 67 at the time he was 11 terminated and was thus a member of the protected class. He was performing his job 12 satisfactorily. His own positive assessment of his performance is relevant in so 13 determining. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 660 (9th 14 Cir. 2002) (“[A]t the prima facie stage, [ ] self-assessment of [ ] performance is 15 relevant.”). Further, his official performance reviews from Banner were always 16 satisfactory or better. 17 That is not to say there were no problems. The tangled web of facts in this case 18 indicates a clash of strong personalities. But Defendants routinely emphasize throughout 19 their briefing that the improvement plans were non-disciplinary. As discussed below, 20 they do so to show that there is no evidence of retaliation against Starling. But the lack 21 of disciplinary proceedings might show, in addition or in the alternative, that Starling’s 22 performance as an employee was so strong that nothing he had done warranted discipline. 23 A reasonable juror could so conclude. Being told about areas for improvement is a 24 reality of professional life. If Starling were truly a troublesome employee, Banner could 25 have disciplined him. Instead, its agents consistently gave him very good reviews. 26 Defendants cannot have it both ways. If improvement plans are not adverse employment 27 actions, they cannot be evidence that Starling was a poor employee. 28 - 13 - 1 Defendants also fail to demonstrate that Starling’s demeanor had changed over 2 time. Starling claims, for example, that the tone of his emails was consistent throughout 3 his employment. (Doc. 267, Ex. 2 at ¶¶ 25, 32.) Davis-Hill also admits that members of 4 the independent medical staff never complained to her, the Chief Human Resources 5 Officer, about Starling in any way. (Doc. 267, Ex. 4 at 40:23-41:1.) 6 Starling satisfies the other elements of the prima facie case as well. He was 7 discharged and replaced by a younger employee—although arguably not a substantially 8 younger one, as Starling was 67 and Hurst, his replacement, was 60. But that is not the 9 end of the inquiry. In Douglas v. Anderson, 656 F.2d 528 (9th Cir. 1981), the court 10 found the plaintiff “proved that he was a member of the protected class, was discharged, 11 and was replaced by a person five years younger than he. Further, he produced 12 substantial evidence of satisfactory job performance. This was sufficient to establish a 13 prima facie case and shift the burden . . . .” Id. at 533. The Court finds Starling’s 14 circumstances are similar enough to end the prima facie inquiry. In addition, few persons 15 qualified for Starling’s job—overseeing other doctors—are going to be young. It is 16 plausible that Banner preferred a Chief Medical Officer who likely had ten years before 17 retirement as opposed to three. 18 Contrary to Defendants’ argument, this holding does not conflict with France v. 19 Johnson, 795 F.3d 1170 (9th Cir. 2015), in which the circuit adopted a “rebuttable 20 presumption” approach: “We hold that an average age difference of ten years or more 21 between the plaintiff and the replacements will be presumptively substantial, whereas an 22 average age difference of less than ten years will be presumptively insubstantial.” Id. at 23 1174 (emphases added). France was a case, as the preceding sentence demonstrates, 24 about a slew of new promotions and the average age of the promotees. It does not draw a 25 bright-line rule about age in the run-of-the-mill, single termination case. And even if it 26 did, the analysis did not end there: the court examined additional evidence, direct and 27 circumstantial, that the employer considered the employee’s “age to be significant.” Id. 28 - 14 - 1 Defendants tacitly concede that Starling was one of the two oldest Chief Medical 2 Officers reporting to Bessel. (Doc. 218 at 9 (noting that the two oldest employees, 3 including Starling, were 67).) To be sure, Starling admits that no defendant ever made 4 any explicitly ageist remark to him. (Doc. 219, Ex. A at 155:23-157:24.) Bessel also 5 says she did not know Starling’s age until his attorneys sent the June 17, 2015 letter 6 “claiming that he was being discriminated against because of his age.” (Doc. 219, Ex. B 7 at ¶ 32.) Nunley, too, claims she did not know “Starling’s age prior to his 8 termination.” (Doc. 219, Ex. D at ¶ 12.) Yet Bessel and Nunley’s statements do not hold 9 as a matter of law: “[O]n-the-job contact is sufficient to warrant an inference of an 10 employer’s knowledge of age,” especially when viewing the facts in the light most 11 favorable to the plaintiff on summary judgment. Diaz v. Eagle Produce Ltd. P’Ship, 523 12 F.3d 1201, 1210 (9th Cir. 2008) (citing Woodman v. WWOR-TV, Inc., 411 F.3d 69. 80 13 (2d Cir. 2005)). 14 Bessel and Nunley further acknowledge that they more than once asked Starling 15 about succession planning. Such conversations are normally innocuous, but Starling 16 points out that he made clear in March of 2014 he did not plan to retire for at least three 17 to five years. Nevertheless, Bessel asked about his retirement plans again the following 18 March, which is when Nunley became the new CEO. (Doc. 284 at 4.) As a matter of 19 course, this was fine. But Starling’s June 8, 2015 conversation with Bessel and Nunley 20 was serious enough to prompt him to file an internal discrimination complaint and to 21 retain counsel. According to Starling, the two were aggressive and threatening “and 22 invited him to find another job.” (Doc. 284 at 16.) Unbeknownst to Starling, various 23 Banner executives were, at this time, discussing a “soft landing” package for him, despite 24 his stated plans not to retire. (Doc. 267, Ex. 34.) They did not present the package, 25 whatever it was, once Starling filed his internal discrimination complaint. Considered in 26 total, these circumstances are enough to satisfy the lenient standard on summary 27 judgment. 28 - 15 - 1 As emphasized above, the standard of proof is very low at this stage, particularly 2 for summary judgment. Because he has made a prima facie case, the burden shifts to 3 Banner to provide a nondiscriminatory basis for Starling’s termination. 4 5 2. Banner’s Proffered Nondiscriminatory Rationale Banner fired Starling for allegedly failing to comply with its Employee Drug and 6 Alcohol Testing Policy. Both parties agree that this suffices as a nondiscriminatory basis 7 for his termination. The burden shifts back to Starling to demonstrate that this basis was 8 a pretext. 9 10 3. Starling’s Argument for Pretext “[A] plaintiff can prove pretext in two ways: (1) indirectly, by showing that the 11 employer’s proffered explanation is ‘unworthy of credence’ because it is internally 12 inconsistent or otherwise not believable, or (2) directly, by showing that unlawful 13 discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis, Bd. 14 of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). 15 Banner’s Employee Drug and Alcohol Testing Policy allows for drug/alcohol 16 testing “[w]hen a manager and or supervisor has reasonable suspicion/just cause to 17 suspect an employee of being impaired during work hours.” (Doc. 219, Ex. B at Ex. D at 18 1.) It is unclear whether the holiday party counted as “work hours” for Starling. Starling 19 never signed up for a shift and attended of his own accord. Further, the email subject for 20 the reminder email was “FINAL REQUEST - HOLIDAY MEAL SERVING.” (Doc. 21 267, Ex. 1 at Ex. 3 at 1 (emphasis added).) Starling had not attended in prior years and 22 had never been disciplined for failing to do so. Helmich, the Chief Nursing Officer, 23 never checked to make sure that the nursing directors who served under her signed up for 24 shifts or showed up to serve food. (Doc. 267, Ex. 3 at 150:10-23.) Davis-Hill could not 25 say whether she, as a C-Suite member, was required to work at the holiday party—only 26 that it was “expected” of her. (Doc. 267, Ex. 4 at 68:1-22.) 27 28 Starling acknowledges that part of his job was to boost morale among the Hospital’s staff and that being at the holiday party was one way to do that. (See Doc. - 16 - 1 267, Ex. 1 at 44.) Yet if that counts as “work hours,” surely so do the Hospital events 2 where alcohol was actually served. After all, those were designed to advance similarly 3 abstract Hospital goals, such as boosting morale or recognizing achievement. 4 Nor is it clear, given the conflicting reports of Starling’s behavior at the party, that 5 Starling was “impaired” or that it was reasonable to suspect that he was. Even assuming 6 he appeared to be, a reasonable juror could find that he was simply tired (he had been up 7 since 5:00 am) or that he was in a festive mood. Starling swears under penalty of perjury 8 and based on personal knowledge that the accounts of his behavior at the party are false. 9 That creates a genuine dispute. 10 Whether Starling was working or impaired are both open questions. A reasonable 11 juror could find that Banner’s Alcohol Policy was arbitrarily enforced against one of 12 Banner’s oldest executive employees—and, therefore, that it was a pretext. The Court 13 will deny summary judgment on the ADEA termination claim. Counts II, VI, and X (Banner): Violation of ADEA – Retaliation 14 B. 15 The ADEA contains an anti-retaliation provision. See 29 U.S.C. § 623(d). The 16 provision “makes it unlawful for an employer to retaliate against an employee for 17 opposing the employer’s discriminatory practices or participating in any investigation or 18 proceeding under the ADEA.” O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 19 756, 763 (9th Cir. 1996). “To make out a [prima facie] claim of retaliation, an employee 20 must establish three things: first, that he engaged in statutorily protected activity; second, 21 that he was discharged or suffered some other adverse employment decision; and third, 22 that there is a causal connection between the two.” Id. “[T]he causation element . . . 23 requires the plaintiff to show by a preponderence [sic] of the evidence that engaging in 24 the protected activity was one of the reasons for the firing and that but for such activity 25 the plaintiff would not have been fired.” Ruggles v. Cal. Polytechnic State Univ., 797 26 F.2d 782, 785 (9th Cir. 1982) (internal quotation marks omitted). If the employee makes 27 the prima facie case, the McDonnell Douglas burden-shifting framework applies. 28 - 17 - 1 Internal complaints of harassment are a statutorily protected activity under Title 2 VII. See Villiarimo, 281 F.3d 1054, 1064 (9th Cir. 2002). This reasoning extends to 3 ADEA cases. Cf. Wallis, 26 F.3d at 888-89 (“We combine the Title VII and ADEA 4 claims for analysis because the burdens of proof and persuasion are the same.”). 5 Starling believes that Banner retaliated against him for his internal complaints of 6 discrimination and his notice of intent to sue. He alleges that three of Banner’s acts were 7 retaliation: (1) the termination; (2) the performance improvement plan; and (3) the letter 8 Bessel sent to the Medical Board. Starling’s complaints are a protected activity under 9 Villiarimo. The issues, then, turn on the adverse-employment-action and causation 10 11 12 elements. 1. Count II: Termination of Employment Termination is plainly an adverse employment action. Thus, Starling must prove 13 causation. He must show that but for his discrimination complaint, Banner would not 14 have terminated his employment. 15 “[I]n some cases, causation can be inferred from timing alone where an adverse 16 employment action follows on the heels of protected activity.” Villiarimo, 281 F.3d at 17 1065. “[E]vidence based on timing can be sufficient to let the issue go to the jury, even 18 in the face of alternative reasons proffered by the defendant.” Passantino v. Johnson & 19 Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000). The Ninth Circuit 20 has held that being laid off within 59 days of filing an EEOC complaint is sufficient to 21 establish a prima facie case of causation. Miller v. Fairchild Indus., Inc., 885 F.2d 498, 22 505 (9th Cir. 1989). 23 Defendants focus exclusively on Starling’s first internal complaint, which he made 24 in June. The gap between that complaint and his termination would be too long to 25 support a causation inference. See Villiarimo, 281 F.3d at 1065 (citing Filipovic v. K & R 26 Express Sys., Inc., 176 F.3d 390, 398-99 (7th Cir. 1999)). Yet Starling also complained 27 in November and December. His lawyers sent notice of intent to sue on or around 28 November 10, 2015. (Doc. 267, Ex. 26.) Starling points out that Banner decided to test - 18 - 1 him for the first time a month after he gave notice of his intent to sue—even though he 2 had consumed wine at Banner-related events in the past. (Doc. 210 at ¶ 16.) Viewed in 3 the light most favorable to Starling, Banner’s decision to test and terminate Starling could 4 have been the result of his later complaints and his announced intent to sue. 5 Starling has therefore met his prima facie case on Count II. The McDonnell 6 Douglas burden-shifting analysis now applies. As explained above, Banner had a facially 7 nondiscriminatory reason for firing Starling. But a reasonable juror could find that the 8 reason was pretextual. In the retaliation context, such a juror could conclude that 9 Starling’s supervisors were irritated that he was asserting his rights under the ADEA— 10 forcing the company to investigate and defend against his allegations. Whether those 11 allegations were true is a question for the jury, as is whether Banner arbitrarily enforced 12 its Alcohol Policy against a complaining employee. Therefore, the Court will deny 13 summary judgment on Count II. 14 2. Count VI: Performance Improvement Plan First, the PIP was not an adverse employment action. As discussed (and was 15 16 crucial to the ADEA termination holding) above, it was non-disciplinary and spelled out 17 the manner in which Banner expected Starling to improve. Also, it did not explicitly 18 form the basis for any adverse employment action. See James v. C-Tran, 130 Fed. Appx. 19 156, 157 (9th Cir. 2005). The PIP itself had no effect other than to point out areas on 20 which Banner expected Starling to improve. Such a course of action is perfectly 21 reasonable for any employer. Although Starling denies having received it, he had been 22 placed on a PIP several years before the one in question (when Robertson was CEO) and 23 had, according to Defendants, made enough progress to end it. Starling argues that Banner penalized him by withdrawing its secret “soft landing” 24 25 plan and placing him on the PIP. Starling’s argument is akin to saying that Banner 26 retaliated against him by not terminating his employment. This contention makes little 27 sense. 28 - 19 - 1 Further, Starling must also prove causation. He must show that but for his 2 discrimination complaint, Banner would not have placed him on the PIP. But Bessel 3 discussed the PIP with Starling on June 8, 2015—before any of Starling’s complaints. 4 Thus, it is illogical to assert that any of his complaints caused the PIP. Count VI fails as 5 a matter of law. 6 3. Count X: Complaint to the Arizona Medical Board 7 Starling must show that but for his discrimination complaint(s), Bessel would not 8 have sent the letter to the Medical Board. Toward that end, Starling argues only that the 9 timing of the report to the Board suggests that his complaints caused Bessel (and Banner 10 by extension) to send the letter. Yet unlike Starling’s termination, it makes no sense to 11 infer anything based on the timing of the letter. A.R.S. § 32-1451(A) requires health care 12 institutions to report, in good faith, any basis they have to believe a physician is unable to 13 engage safely in the practice of medicine. Banner’s statutory obligation to report Starling 14 would have arisen as soon as it was aware of that duty. Even if Banner did discriminate 15 in administering the test and in firing Starling, given the positive test results, its statutory 16 duty to report him would have immediately applied. In the defamation discussion below, 17 the Court explains that Starling has failed to prove that Banner acted in bad faith in 18 sending the letter. Therefore, summary judgment will be granted on Count X. 19 20 21 22 23 24 25 26 27 28 C. Count III (Banner): Violation of ADA – Disability Discrimination – Termination of Employment A prima facie case under the Americans with Disabilities Act (“ADA”) requires the plaintiff to demonstrate that: “(1) he is disabled within the meaning of the ADA; (2) he is a qualified individual able to perform the essential functions of the job with reasonable accommodation; and (3) he suffered an adverse employment action because of his disability.” Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003). 42 U.S.C. § 12102(3)(A) says that an individual is “regarded as” being disabled if he establishes that he “has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is - 20 - 1 perceived to limit a major life activity.” If the plaintiff establishes his prima facie case, 2 the McDonnell Douglas burden-shifting analysis applies. 3 Starling contends that Banner violated the ADA by terminating him when it 4 regarded him “as having a physical or mental impairment.” (Doc. 210 at ¶ 241.) He does 5 not claim to be an alcoholic or to have requested an accommodation. His only proof that 6 Banner regarded him as an alcoholic is Bessel’s letter to the Medical Board. On its face, 7 the letter states only the exact facts as Banner received them; it recounts the events of the 8 holiday party. Yet there is a subtext: a concern that Starling’s behavior rendered him 9 unfit to practice medicine. After all, the letter begins by announcing the duty to report on 10 “any information that appears to show that a physician is or may be unable to engage 11 safely in the practice of medicine.” (Doc. 267, Ex. 5 at Ex. 10.) Starling points out the 12 “conundrum” the letter presents: either Bessel had reason to believe, at least in some way, 13 that Starling had a substance abuse issue that rendered him unable to engage in the 14 practice of medicine, or she lied to the Board. (Doc. 284 at 17.) 15 But Starling has not demonstrated that he was terminated as a pretext for his 16 perceived disability of alcoholism. There is enough evidence in the record for a 17 reasonable juror to conclude that age played a role in his firing. But there is no evidence 18 at all that Banner was aware of Starling’s supposed alcoholism prior to the holiday party 19 or that it wanted him fired for it. Starling thinks the letter alone is enough to demonstrate 20 that he was regarded as an alcoholic. Allowing such a threadbare case to proceed at the 21 summary judgment stage would discourage physicians’ employers from ever reporting 22 them after even an isolated incident. For these reasons, and those discussed in the 23 defamation analysis below, Starling’s claim must fail on Count III. 24 25 26 27 28 D. Count IV (Banner, Bessel, and Nunley): Violation of AEPA – Retaliation – Termination of Employment The Arizona Employment Protection Act (“AEPA”) prohibits retaliatory termination in certain circumstances. A plaintiff must show that: “(1) [he] had information or a reasonable belief that [his] employer or another employee had violated an Arizona statute or constitutional provision; (2) [he] disclosed the information or belief - 21 - 1 to an employer or a representative of the employer whom [he] reasonably believed was in 2 a managerial or supervisory position and had the authority to investigate the information 3 and take action to prevent further violations of the Arizona constitution or statutes; and 4 (3) [he] was terminated because of the first two steps.” Revit v. First Advantage Tax 5 Consulting Servs., LLC, 2012 WL 1230841, at *2 (D. Ariz. April 12, 2012) (citing A.R.S. 6 § 23-1501(3)(c)). 7 Starling’s complaint alleges that he “opposed decisions by Banner Health 8 executive that he believed . . . would substantially harm patient care in violation of 9 [A.R.S.] § 36-405 and the accompanying rules . . . .” (Id. at ¶ 254.)1 In other words, 10 Banner retaliated against him because he advocated for better patient care. Starling bases 11 this peculiar claim on the conflict he had with Chatham over credentialing standards and 12 “Chatham’s attempts to negligently credential his son.” (Doc. 210 at ¶ 252.) The idea 13 seems to be that that Chatham accused him of being biased and that this poisoned Nunley 14 against him. (See Doc. 267, Ex. 2 at ¶¶ 216-18.) In that light, Starling suggests that the 15 “soft landing” package—which never came to fruition—was based in part on Chatham’s 16 accusations. (Doc. 284 at 18.) 17 There is no evidence to support this theory. Banner ultimately agreed with 18 Starling’s position and did not lower the credentialing standards. (Doc. 267 at ¶ 76.) 19 Starling brought a potential problem to Banner’s attention, and in the end Banner sided 20 with him. There is no evidence this played any significant role—or any role at all—in his 21 termination. Even viewed in the light most favorable to Starling, this claim must fail. 22 E. 23 24 25 26 Count V (Banner, Bessel, and Nunley): Violation of AEPA – Retaliation – Termination of Employment Starling alleges that Banner violated another section of AEPA: A.R.S. § 231501(A)(3)(b). That portion supplies a cause of action when “[t]he employer has terminated the employment relationship of an employee in violation of a statute of this 27 1 28 A.R.S. § 36-405 deals with the duties of the Director of the Department of Health Services. The Court assumes without deciding that the statute has at least some relevance to Starling’s claim. - 22 - 1 state.” The provision further provides that where a statute provides a remedy, that 2 remedy is exclusive. 3 Starling points to no state statute that his termination violated. Instead, he 4 separately argues that Banner violated Article 18, Section 6 of the Arizona Constitution, 5 which says, “The right of action to recover damages for injuries shall never be abrogated, 6 and the amount recovered shall not be subject to any statutory limitation . . . .” He 7 contends that he was terminated for pursuing his age discrimination lawsuit. 8 9 The Arizona Supreme Court has explained that Article 18, Section 6 was designed to “preserv[e] the ability to invoke judicial remedies for those wrongs traditionally 10 recognized at common law.” Boswell v. Phx. Newspapers, Inc., 152 Ariz. 9, 17, 730 P.2d 11 186, 195 (1986). Starling cannot point to a common law action that the Legislature has 12 abrogated in violation of Article 18, Section 6, and the constitutional provision does not 13 itself supply a cause of action or remedy. Instead, Starling looks to two Ohio cases 14 interpreting completely different language in a completely different state’s constitution. 15 (Doc. 284 at 18.) That strategy is wholly unpersuasive. 16 As noted above, a separate section of the AEPA contemplates both the State 17 Constitution and its statutes. Here, by expressio unius, the relevant portion was intended 18 to target only statutory violations. With no Arizona statute to which Starling can cite, 19 summary judgment is appropriate on Count V. 20 21 22 23 24 25 26 27 28 F. Count IX (Banner, Bessel, Nunley, Davis-Hill, and Helmich): Invasion of Privacy – Intrusion Upon Seclusion Arizona courts have adopted the Restatement (Second) of Torts to define the tort of intrusion upon seclusion. “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Hart v. Seven Resorts, Inc., 190 Ariz. 272, 279, 947 P.2d 846, 853 (Ct. App. 1997) (quoting Restatement (Second) of Torts § 652B). The comments to the Restatement, which the Hart court found controlling, make clear that the plaintiff must have intentionally secluded himself in a private place, such as his home. A - 23 - 1 defendant is liable if he forces himself into the home; uses aids, such as wiretaps or 2 binoculars, to invade the plaintiff’s privacy; or rifles through the plaintiff’s personal and 3 confidential documents. Id. (quoting Restatement (Second) of Torts § 652B, cmts. b-c). 4 In Hart, the plaintiffs were employees subject to drug testing at any time. Id. at 5 274-75, 848-49. They were required to get into a van and taken off site for drug testing. 6 Id. at 257, 849. As the court put it, the plaintiffs “fail[ed] to explain how [their 7 employer’s] demand that they take a drug test was an invasion of their seclusion, and 8 instead [ ] merely enumerate the inconveniences they experienced. [Their] ‘evidence’ 9 clearly does not even approach establishing the tort set forth by the Restatement.” Id. at 10 279-80, 853-54. In another case, the Arizona Court of Appeals cited approvingly a case 11 from Colorado in which unauthorized testing, performed on a blood sample taken for 12 another purpose, was sufficient to state a claim for intrusion upon seclusion. Havasupai 13 Tribe of Havasupai Reservation v. Ariz. Bd. of Regents, 220 Ariz. 214, 227, 204 P.3d 14 1063, 1076 (Ct. App. 2008) (citing Doe v. High-Tech Institute, 972 P.2d 1060, 1064 15 (Colo. App. 1998)). That appears to be the extent of the published case law on the tort in 16 Arizona. 17 Starling alleges that Defendants intruded upon his seclusion when they required 18 him to undergo the drug and alcohol testing. (Doc. 210 at ¶¶ 305-08.) As Defendants 19 point out, Starling was on Banner property when he was tested. Starling counters by 20 arguing that “[b]y testing [ ] Starling without cause while on his own personal time, 21 Defendants intruded on his privacy.” (Doc. 284 at 19.) 22 Unlike as in Hart, it is ambiguous whether Starling was working. By statute 23 employers who establish a policy of drug or alcohol testing are immune from liability if 24 they have a “good faith belief that an employee had an impairment while working while 25 on the employer’s premises or during hours of employment.” A.R.S. § 23-493.06(A)(6). 26 It may well be that a good faith belief that Starling was on duty suffices for this defense. 27 But the Court need not decide this because the claim fails before even reaching this 28 defense. - 24 - 1 Irrespective of whether Starling was working, Banner did not intrude upon his 2 seclusion. He voluntarily entered Banner’s premises. He was free to leave, and the 3 testing procedure, a simple breathalyzer and urine sample, was not “highly offensive to a 4 reasonable person.” The reasons for the test were known to Starling; Defendants did not 5 lie about those reasons. He was willing to take the breathalyzer twice and to provide a 6 urine sample, which was obtained in private. Count IX fails as a matter of law. 7 G. 8 9 10 11 12 13 14 15 16 17 Counts VII and VIII (Banner, Bessel, and Nunley): Defamation – False Statements Regarding Job Performance Starling does not defend these claims. He complains that he has been hindered in gathering evidence. (See Doc. 284 at 18.) He also points to his Controverting Statement of Facts, an impermissible place to make a legal argument. The Court considers the claims abandoned, especially in light of its ruling below on Starling’s Rule 56(d) motion. H. Count XI (Banner and Bessel): Defamation – False Statements in Complaint to the Arizona Medical Board Starling alleges that Bessel and Banner defamed him by sending Bessel’s letter to the Medical Board. 1. Defamation Generally “One who publishes a false and defamatory communication concerning a private 18 person . . . is subject to liability, if, but only if, he (a) knows that the statement is false 19 and it defames the other, (b) acts in reckless disregard of these matters, or (c) acts 20 negligently in failing to ascertain them.” Rowland v. Union Hills Country Club, 157 21 Ariz. 301, 306, 757 P.2d 105, 111 (Ct. App. 1988) (quoting Restatement (Second) of 22 Torts § 580(B)) (emphasis removed). “To be defamatory, a publication must be false and 23 must bring the defamed person into disrepute, contempt, or ridicule, or must impeach 24 plaintiff’s honesty, integrity, virtue, or reputation.” Godbehere v. Phx. Newspapers, Inc., 25 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989). 26 2. The Duty to Report and Qualified Privilege 27 The Arizona State Board of Medical Examiners regulates the practice of medicine 28 in Arizona. A.R.S. § 32-1451(A) requires medical doctors and health care institutions to - 25 - 1 “report to the [Board] any information that appears to show that a doctor of medicine is 2 or may be medically incompetent, is or may be guilty of unprofessional conduct[,] or is 3 or may be mentally or physically unable to safely engage in the practice of medicine.” 4 The statute further provides, “Any person or entity that reports or provides information to 5 the [Board] in good faith is not subject to an action for civil damages.” Id. In fact, “[i]t 6 is an act of unprofessional conduct for any doctor of medicine to fail to report as 7 required” by the statute. Id. 8 9 Yet there is no absolute privilege in reporting. The statute, with its emphasis on good faith, “abrogate[s] the common law absolute privilege in the context of reports 10 involving medical malfeasance.” Advanced Cardiac Specialists, Chartered v. Tri-City 11 Cardiology Consultants, P.C., 222 Ariz. 383, 386, 214 P.3d 1024, 1027 (Ct. App. 2009). 12 Arizona law instead provides a qualified privilege to defendants in these cases. “To 13 avoid summary judgment pursuant to the qualified privilege that protects such reports, 14 plaintiffs must produce clear and convincing evidence” that the reporting party abused 15 the privilege. Id. at 387, 1028. “[T]he plaintiff may [ ] prove an abuse of [the] privilege 16 either by proving publication with ‘actual malice’ or by demonstrating excessive 17 publication.” Green Acres Trust v. London, 141 Ariz. 609, 616, 688 P.2d 617, 624 18 (1984). “An abuse through ‘actual malice’ occurs when the defendant makes a statement 19 knowing its falsity or actually entertaining doubts about its truth.” Id. “Abuse through 20 excessive publication results from publication to an unprivileged recipient not reasonably 21 necessary to protect the interest upon which the privilege is grounded.” Id. The burden 22 is on the plaintiff to prove that the defendant abused the privilege—in this case, “actually 23 entertain[ing] serious doubt about the truth of [the] statement” or knowing it is probably 24 false. Advanced Cardiac, 222 Ariz. at 388, 214 P.3d at 1029. 25 3. Bessel’s Letter to the Board 26 “Substantial truth is a complete defense to an action for defamation.” Morris v. 27 Warner, 160 Ariz. 55, 63, 770 P.2d 359, 367 (Ct. App. 1988). Yet as the Ninth Circuit 28 has explained, “Statements, although perhaps ‘true’ when viewed in isolation, may create - 26 - 1 an overall false impression when considered in context.” Van Buskirk v. Cable News 2 Network, Inc., 284 F.3d 977, 984 (9th Cir. 2002). 3 Under Arizona law, Starling bears the burden of proving by clear and convincing 4 evidence that Bessel abused her qualified privilege—i.e., that she acted with actual 5 malice or published the statement excessively. The private letter to the Board was not 6 excessive publication. Thus, a reasonable juror must be able to find clear and convincing 7 evidence that Bessel actually entertained serious doubts about the truth of her letter or 8 knew it was, on the whole, probably false. 9 All Bessel did was report on exactly what happened at the events of the holiday 10 party, as she may have been legally obligated to do. Her letter refers to A.R.S. § 32- 11 1451(A) and Banner’s duty “to report to the Board any information that appears to show 12 that a physician is or may be unable to engage safely in the practice of medicine.” (Doc. 13 267, Ex. 5 at Ex. 10.) The letter draws no conclusions from the bare clinical facts recited. 14 Everything Bessel reported to the Board was true. 15 Starling believes that Bessel impliedly accused him of being an alcoholic in her 16 report to the Board. (Doc. 219, Ex. A at 414:18-415:5.) He asserts that there was no 17 basis to believe that he had a “substance abuse problem,” which he admits would have 18 required a report to the Board. 19 The reporting statute draws a fine line. It is professional misconduct for a doctor 20 or hospital to fail to report incompetent physicians, but the reporting party still must have 21 a good-faith basis for the report. Under Advanced Cardiac, the employer gets the benefit 22 of any doubt. Consider a different case, where it is undisputed that the physician was 23 inebriated—but only once—while performing surgery. An employer in such a case 24 might be unwilling to report that physician, even after firing him, if Arizona law exposed 25 employers to potential liability for reporting solitary cases. Such policy would plainly be 26 unwise and has no basis in either the reporting statute or the Arizona courts’ qualified- 27 privilege jurisprudence. The fact that Bessel’s was a report based on a single, factually 28 - 27 - 1 correct incident is a matter for the Medical Board to consider—which it did, dismissing 2 the case against Starling. Count XI must fail. 3 IV. 4 STARLING’S RULE 56(D) MOTION Federal Rule of Civil Procedure 56(d) provides as follows: “If a nonmovant shows 5 by affidavit or declaration that, for specified reasons, it cannot present facts essential to 6 justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow 7 time to obtain affidavits or declarations or to take discovery; or (3) issue any other 8 appropriate order.” 9 10 Starling’s motion rehashes the following discovery arguments that the Court has already addressed and ruled on. 11 A. 12 Starling argues that the Court was too restrictive in “limiting [comparator 13 discovery] to the two decision-makers,” Bessel and Nunley. (Doc. 243 at 13.) He cites 14 Hawn v. Executive Jet Management, Inc., 615 F.3d 1151 (9th Cir. 2010), for the 15 proposition that it is error to impose a strict “same supervisor” requirement. Id. at 1157. 16 What the Hawn court actually found was as follows: “Similarity between two persons or 17 groups of people is a question of fact that cannot be mechanically resolved by 18 determining whether they had the same supervisor without attention to the underlying 19 issues.” Id. at 1158. Further, the court did “not exclude the possibility that the presence 20 or absence of a shared supervisor might be relevant in some cases.” Id. at 1157. Here, 21 the Court gave attention to the underlying issues, as Hawn requires. Starling seeks 22 discovery on the entire company, when an employee similarly situated to Starling would 23 have to be an executive physician in a position to effect change in company policy. The 24 Court allowed comparator discovery concerning the supervisors of such employees. 25 (Doc. 171.) 26 Comparator Discovery Starling also points to Garrett v. City & County of San Francisco, 818 F.2d 1515 27 (9th Cir. 1987), a case in which the court actually made clear that “a trial court’s exercise 28 of discretion will rarely be disturbed.” Id. at 1518. But in that case, the district court - 28 - 1 failed to exercise any discretion; it denied the motion as moot after having granted 2 summary judgment. Id. Further, the information the plaintiff sought in that case was not 3 overly broad. See id. at 1518-19. In this case, the Court specifically exercised its 4 discretion in finding that the comparators plaintiffs sought were “wildly over-broad and 5 burdensome.” (Doc. 171 at 1.) 6 Starling claims that the discovery he seeks is “essential to opposing summary 7 judgment.” (Doc. 243 at 13.) Apparently not, since he prevailed on the age 8 discrimination issue. The Court stands by what it said when Starling last complained 9 about the lack of comparator discovery: “Defendants have complied literally with the 10 limited discovery ordered. Moreover, extrapolation to matters about which the people in 11 question had only peripheral information is the kind of sweeping, burdensome, and 12 attenuated discovery the Court found improper.” (Doc. 294 at 1.) 13 B. 14 Starling argues that discovery should reopen because he did not get to depose Depositions of Decision-Makers 15 Bessel or Nunley. Starling once again cites Noyes v. Kelly Services, 488 F.3d 1163 (9th 16 Cir. 2007), contending that the Ninth Circuit has found that a plaintiff is diligent any time 17 he notices a deposition prior to the cutoff of discovery. (Doc. 285 at 5.) In reality, the 18 Noyes court found it an abuse of discretion not to modify a scheduling order when there 19 were no unusual circumstances and the defendant had repeatedly requested to delay the 20 deposition. 488 F.3d at 1174. “Rule 16(b)’s ‘good cause’ standard primarily considers 21 the diligence of the party seeking the amendment” of a scheduling order. Johnson v. 22 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 23 In this case, there were plenty of unusual circumstances and a complete lack of 24 diligence from Starling. Following a July 29, 2016 Scheduling Conference, the Court set 25 a discovery deadline of May 26, 2017. (Doc. 45 at 2.) The Court subsequently granted, 26 after lengthy oral argument, Defendants’ Motion for Protective Order (Doc. 158) to 27 prevent Starling’s late-noticed depositions. It found that Starling failed “for nearly ten 28 months to schedule the depositions of the Banner defendants, who are physicians or - 29 - 1 senior managers, despite repeated requests to do so.” (Doc. 224 at 1.) Yet “[o]n the eve 2 of the discovery cutoff, [Starling] unilaterally noticed the deposition.” (Id.) He did not 3 notify opposing counsel, and the witnesses were unavailable. This case is not at all like 4 Noyes: Starling was not diligent, despite Banner’s outreach. So egregious was the 5 unprofessionalism that the Court assessed fees under Rule 37(a)(5)(A)(ii). (Doc. 224 at 6 2.) 7 C. 8 Starling seeks discovery on various documents that Defendants claim are Waiver of Privilege 9 privileged. Starling’s Reply does not even attempt to defend this issue, other than to note 10 he is preserving it for appeal purposes. (Doc. 285 at 3.) Defendants point out that, in an 11 order following oral argument (Doc. 193), the Court rejected Starling’s privilege 12 arguments. Starling conceded this point in his motion (Doc. 243 at 10), and he offers no 13 reason whatsoever to revisit the Court’s holding. (See Doc. 243 at 16.) 14 V. CONCLUSION 15 No claims remain against Bessel, Nunley, Helmich, or Davis-Hill. Only 16 Starling’s ADEA age discrimination and ADEA retaliatory discrimination case against 17 Banner will proceed. A final pretrial conference will be set by separate order. 18 IT IS THEREFORE ORDERED that Defendants Banner Health, Marjorie Bessel, 19 M.D., Julie Nunley, Cindy Helmich, and Lori Davis-Hill’s Motion for Summary 20 Judgment (Doc. 218) is granted regarding Counts III, IV, V, VI, VII, VIII, IX, X, and XI 21 and denied regarding Counts I and II. 22 23 24 IT IS FURTHER ORDERED that Plaintiff’s Motion Pursuant to Federal Rule of Civil Procedure 56(d) (Doc. 243) is denied. Dated this 11th day of January, 2018. 25 26 27 28 - 30 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?