Ramirez v. Kingman Hospital Incorporated et al
Filing
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ORDER granting in part and denying in part 56 Motion for Summary Judgment. The motion is granted in favor of Defendant on Plaintiff's claims of discriminatory termination in violation of Title VIIReligion (Count Two). The motion is denied on P laintiff's claim of discriminatory termination in violation of the ADEA (Count Three). The Court dismisses Plaintiff's retaliation claim in violation of Title VII and the ADEA (Count Five) for lack of jurisdiction. Signed by Magistrate Judge Bridget S Bade on 3/15/19. (DXD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Eddie Ramirez,
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Plaintiff,
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ORDER
v.
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No. CV-17-08026-PCT-BSB
Kingman Hospital Incorporated, et al.,
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Defendants.
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Defendant Kingman Hospital, Inc., d/b/a Kingman Regional Medical Center
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(“KRMC”) moves for summary judgment on the following claims in the First Amended
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Complaint (“FAC”): (1) discriminatory termination in violation of Title VII–Religion
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(Count Two); (2) discriminatory termination in violation of the ADEA (Count Three); and
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(3) retaliation in violation of Title VII and the ADEA (Count Five).1 The motion is fully
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briefed. (Docs. 67, 74.) For the reasons below, the Court grants the motion, in part, and
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denies it, in part.
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I.
Factual Background
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KRMC is a non-profit regional trauma center based in Kingman, Arizona. (DSOF
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¶ 1.)2 Plaintiff is an ear, nose and throat physician and surgeon (“ENT”). (PSSOF ¶ 1.)
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These are the only remaining claims in the FAC. (See Doc. 60; citations to the FAC are
to Doc. 1 at 6-15)
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Citations to “DSOF” are to Defendant’s statement of facts in support of its motion for
summary judgment. (Doc. 57.) Citations to “PCSOF” are to Plaintiff’s controverting
statements of facts. (Doc. 68 at 1-28.) Citations to PSSOF are to Plaintiff’s supplemental
statement of facts. (Id. at 28-63.)
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On November 1, 2008, Plaintiff entered into a three-year employment contract with KRMC
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(the “first agreement”). (DSOF ¶ 2.) Plaintiff’s base salary was $434,693 and was later
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increased to $550,000, with a bonus based on revenue generated from physician-related
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services. (PSSOF ¶¶ 5-6; Ramirez Decl., Ex. 1.)3
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During September 2012, Plaintiff and KRMC began discussing a new employment
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contract. (PSSOF ¶ 48.) On July 31, 2013, Plaintiff entered into a new three-year contract
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(“Agreement”) with KRMC. (DSOF ¶ 3; PSSOF ¶ 50.) Plaintiff’s base salary remained
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$550,000. (DSOF ¶ 3, PSSOF ¶¶ 57-60.) Schedule A of the Agreement provided for a
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potential bonus based on Plaintiff’s work relative value units (“RVUs”). (DSOF ¶ 3;
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PSSOF ¶¶ 70-72.) Schedule A of the Agreement also provided that if Plaintiff’s total
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RVUs in any given fiscal year were less than the 7,500 RVUs required to cover Plaintiff’s
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base salary, his base salary would “be reduced by an amount proportionate to the deficit in
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work RVUs required to cover” his base salary and the RVUs produced. (DSOF ¶ 3, DSOF,
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Ex. 21; PCSOF ¶ 3.)
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Plaintiff asserts that when he signed the Agreement he thought that his bonus
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remained a “collections bonus” that was based on revenues from all physician-related
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services, as it had been in Schedule A of the first agreement. (PSSOF ¶ 60.) Plaintiff
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alleges that at the time he signed the Agreement, Tim Blanchard, KRMC’s CFO, did not
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tell him that the first agreement’s “Schedule A” collections bonus had been replaced by a
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new “Schedule A” that was attached only to the signed original Agreement that Blanchard
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kept for his file. (Id. at ¶ 62.) Plaintiff alleges that he would not have signed the Agreement
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if he had been told about the new Schedule A. (Id. at ¶¶ 67-69.) Plaintiff asserts that
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Schedule A was not attached to the signed original of the Agreement that he was provided.
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(PSSOF ¶ 62.) Plaintiff asserts that he did not notice that Schedule A was missing from
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his copy of the Agreement because Blanchard had not mentioned the change to the bonus
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structure during their negotiations. (Id. at ¶¶ 61-75). During his deposition, Blanchard
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The Ramirez Declaration (“Ramirez Decl.”) is filed at docket 79. (See Doc. 78 (granting
Plaintiff’s motion to file a substitute declaration).) The exhibits are filed at Doc. 68-1.
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stated that he does “not recall” telling Plaintiff about the new Schedule A. (Id. at ¶ 64;
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Blanchard Depo. at 25.)4
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Plaintiff alleges that KRMC is a “Mormon-run” hospital that is controlled by CEO
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Brian Turney, a Mormon.5 (PSSOF ¶¶ 170-94.) Plaintiff alleges that his immediate
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supervisor, Stacy McDaniel (now Stacy Merritt), also had “deep ties to the Kingman area
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Mormon Church and community.” (Id. at ¶¶ 172-74.) Plaintiff alleges that Turney and
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Merritt cultivated a “Mormon Mafia” culture and power structure that favored Mormons
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over non-Mormons. (Id. at ¶¶ 175-84.) Plaintiff asserts that he is Christian and that he
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regularly complained to Merritt about the Mormon culture and power structure. (Id. at
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¶¶ 183-84.)
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Defendant states that in January 2014, Blanchard and Merritt, who was then
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Director of Surgical Specialties, decided to terminate Plaintiff’s employment based on
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Plaintiff’s poor job performance and bad attitude. (DSOF ¶ 4.) Blanchard and Merritt
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informed Turney of their decision to terminate Plaintiff’s employment, and Turney
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supported that decision. (DSOF ¶ 5; PSSOF ¶¶ 99-109.) On January 31, 2014, KRMC
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terminated Plaintiff’s employment pursuant to the “without cause” clause of the
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Agreement. (DSOF ¶ 6.) Plaintiff was the only physician terminated for “performance
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reasons” between January 1, 2013 and December 31, 2014. (PSSOF ¶ 117; Turney Depo.
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at 112.)
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Plaintiff alleges that he was “blindsided” by his termination because he had not been
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warned, disciplined, or informed that any serious issues related to performance or other
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issues might put his job at risk. (PSSOF ¶¶ 17, 90, 108; Turney Depo. at 102, 105, 114,
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162-63; Blanchard Depo. at 33-35, 42, 64-65; Merritt Depo. at 31-22; but see Merritt Depo.
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at 37.) Plaintiff asserts that Defendant has a policy of documenting disciplinary or
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important meetings with physicians. (PSSOF ¶ 18; Turney Depo. at 104-05; Blanchard
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The Turney, Blanchard, and Merritt depositions are filed at DSOF (Doc. 57), Exs. 2, 3,
and 4, respectively.
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Plaintiff refers to members of the Church of Jesus Christ of Latter-day Saints by the
colloquial term “Mormons.”
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Depo. at 34; but see Merritt Depo. at 32-33.) Turney testified the he deferred to KRMC’s
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human resources officer on the issue of KRMC’s policy, but that his “recollection of the
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policy” was that anything “disciplinary in nature” “should be documented and kept on file.”
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(Turney Depo. at 104.)
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Turney stated that he had discussions with Plaintiff about his productivity, but he
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was not aware of any written warning that had been issued to Plaintiff. (Id. at 105.)
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Blanchard testified that KRMC had a policy of documenting conversations with doctors
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about “employment problems.” (Blanchard Depo. at 34.) Blanchard testified that he talked
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to Plaintiff about his RVUs and told Plaintiff that his productivity needed to increase to
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match his compensation, but Blanchard stated that he did not tell Plaintiff that there would
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be any “consequences” or that Plaintiff “was subject to termination if he did not improve
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his RVUs.” (Blanchard Depo. at 36, 63-65.) Blanchard stated that he did not document
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his meetings with Plaintiff. (Id. at 34, 63-64.) Blanchard stated that, other than Plaintiff’s
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productivity, he did not discuss any issues with Plaintiff before his termination. (Id. at 65.)
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Merritt testified that she was unaware of a KRMC policy that required documentation of
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meetings with physicians regarding performance or disciplinary matters. (Merritt Depo. at
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33.)
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Plaintiff, who was 60 years old in October 2013, alleges that KRMC hired
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Dr. Bernadette Braze, a much younger physician, to replace him. (PSSOF ¶¶ 1, 77-85.)
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Dr. Braze was between 42 and 45 years old when she was hired. (DSOF ¶ 85, PSSOF,
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Ex. G.) Dr. Braze began working at KRMC in December 2013. (Ramirez Decl. ¶ 52.)
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Plaintiff alleges that KRMC stated that Dr. Braze was hired to help with his clinical patient
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workload, but she did not help and instead used “his office equipment and staff and
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otherwise ignored him.” (Id.) During proceedings before the EEOC, KRMC initially
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stated that Dr. Braze was hired to replace Plaintiff. (PSSOF ¶¶ 81, 83; PSSOF, EX. G.) In
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a subsequent letter to the EEOC, KRMC stated that because Plaintiff was not terminated
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until 2014 (effective March 31, 2014), Dr. Braze, who was hired in 2013, was not hired to
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replace him. (PSSOF, Ex. H.) KRMC states that it has not hired an ENT doctor to replace
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Plaintiff. (Id.) As set forth below, Defendant provides several reasons for terminating
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Plaintiff, which the parties dispute. (Doc. 56 at 2.)
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A.
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Defendant’s Stated Reasons for Terminating Plaintiff’s Employment
1.
Plaintiff’s Productivity
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Defendant asserts that in 2013, based on a “pool of data of similarly situated ENT
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doctors in similar practices from the Medical Group Management Association (MGMA),”
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Blanchard discovered that Plaintiff generated less revenue than most doctors in the pool.
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(DSOF ¶¶ 9, 10.) Based on a review of KRMC’s physician’s RVUs, Blanchard discovered
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that Plaintiff’s productivity fell beneath his compensation level. (DSOF ¶ 8.) Plaintiff
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alleges that Blanchard had no reason to scrutinize his productivity and had not done so in
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the past. (PSSOF ¶¶ 20-22.) Plaintiff asserts that Blanchard did not tell him that he was
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compiling this data to compare it to Plaintiff’s RVU numbers and salary. (PSSOF ¶¶ 32-
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37, 42-47.)
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Defendant asserts that starting in late 2012 Blanchard and Plaintiff “met multiple
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times to discuss his productivity.” (DSOF ¶ 11.) In his deposition, Plaintiff admits that
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during two meetings in late 2013 Blanchard informed him that his salary needed to be
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reduced, but Plaintiff refused to accept a reduction in his pay. (DSOF ¶ 12; Ramirez Depo.
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at 277-78.)6 Blanchard testified that he talked to Plaintiff about his RVUs and told Plaintiff
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that his productivity needed to increase to match his compensation, but Blanchard did not
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tell Plaintiff that there would be any “consequences” or that Plaintiff “was subject to
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termination if he did not improve his RVUs.” (Blanchard Depo. at 36, 63-65.)
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2.
Plaintiff’s Use of Operating Room Block Time
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Defendant asserts that in December 2013 it learned that more than twenty percent
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of the time Plaintiff was starting late in his morning operating room (“OR”) block time.
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(DSOF ¶ 15; DSOF, Exs. 23, 29.) KRMC revoked Ramirez’s morning block time. (DSOF
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¶ 15.) Plaintiff denies this assertion and asserts that KRMC falsely stated that he referred
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The Ramirez deposition is filed at DSOF, Ex. 1.
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to himself as a “chronic late starter.” (PSOF ¶ 15; PSSOF ¶ 168.) Plaintiff, however, does
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not offer any evidence disputing that he started late in his OR block time.
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3.
Plaintiff’s Resistance to KRMC’s Implementation of Electronic
Medical Records
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By January 1, 2014, KRMC was required to meet a federal mandate that required
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medical institutions and physicians to use electronic medical records (“EMR”) or incur
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financial penalties. (DSOF ¶ 16; PCSOF ¶ 16.) KRMC implemented an EMR system
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called NextGEN. (DSOF ¶ 17; PCSOF ¶ 17.) Defendant asserts that it terminated Plaintiff
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because of his resistance to KRMC’s implementation of EMR. (Doc. 56 at 2; Turney
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Depo. at 146; Merritt Depo. at 37-39; Ex. I.) In a June 2012 email to Merritt, Plaintiff
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stated that it was after 6:00 p.m., but he still had several hours of charting to complete.
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(DOSF, Ex. 8.) Plaintiff stated that “my contract needs to be renegotiated considering I
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will be working 12 hours continuously.” (Id.; see Ramirez Depo. at 223-25 (agreeing that
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physicians should be paid for time spent using NextGEN).)
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Plaintiff admits that he was critical of NextGEN based on his belief that it was
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inefficient. (PSSOF ¶¶ 127, 130-36.) In his deposition, Turney testified that NextGEN
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was difficult to implement and to use and negatively impacted physicians’ productivity.
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(Turney Depo. at 146, 149.) KRMC approved Plaintiff’s use of Dragon Medical, a scribe
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and voice-recognition software and provided him with a home computer to assist with
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implementation of NextGEN. (DSOF ¶ 19; PCSOF ¶ 19.) Other physicians reported
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difficulty using NextGEN. (Turney Depo. at 146; Merritt Depo. at 38 (stating that she
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thought the “majority of doctors” did not like using EMR).) KRMC permitted physicians
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to use a hybrid system of NextGEN and paper charts. (Turney Depo. at 146-47; Ramirez
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Decl. ¶ 68.) Plaintiff asserts that he did not think that the use of NextGEN was mandatory
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based on KRMC’s approval of a hybrid EMR and paper chart system that it permitted
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Plaintiff and other physicians to use. (PCSOF ¶¶ 17; PSSOF ¶¶ 119-38.)
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Defendant asserts that in an email to the Chief Medical Officer, Plaintiff stated that
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he would not use NextGEN. (DSOF ¶ 20.) Plaintiff disputes that assertion. (PCSOF ¶ 20;
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DSOF, Ex. 8 (August 31, 2012 email).) However, in an August 31, 2012 email to Merritt
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and several other physicians, Plaintiff wrote that NextGEN “ha[s] to go!” (DSOF, Ex. 8.)
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Plaintiff described the inefficiencies of using NextGEN and wrote that he would “NOT
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WORK ON NEXTGEN EVER AGAIN.”
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physicians went to Tucson to observe the Arizona Community Surgeons use of the
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NextGEN system. (PSSOF ¶¶ 127-28.) In a November 27, 2012 email, Plaintiff suggested
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to Turney that KRMC purchase the newer version of NextGEN that he had observed in
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Tucson. (PSSOF ¶¶ 128-27; Turney Depo. at 150-51, 154.)
(Id.)
Later in 2012, Plaintiff and other
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In a May 2013 email, Plaintiff stated that NextGEN was inefficient and suggested
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that KRMC bring in Gabriel Choza, “a proven leader at Tucson Surgical,” to help them
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optimize NextGEN, which Plaintiff stated was created for primary care doctors, not for
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surgeons. (DSOF, Ex. 8.) In response, Dr. Jeffrey Lynn stated that he appreciated
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Plaintiff’s perspective, but that NextGEN was approved by the “highest levels” and that
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KRMC needed a solution that was good for the aggregate. (Id.) He noted that some
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physicians had refused to use NextGEN but stated “that will not continue.” (Id.)
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Defendant asserts that Plaintiff’s use of the “hybrid system” and his refusal to use
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NexGen, and his attitude about using NextGEN, were among the reasons for terminating
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Plaintiff. (Turney Depo. at 154; Blanchard Depo. at 68-69; Merritt Depo. at 39.) At the
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time of Plaintiff’s termination in January 2014, other KRMC physicians were still using
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the hybrid system and as of 2018 there was not “100 percent” usage of NextGEN. (PSSOF
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¶ 136-36; Kjelgaard Depo. at ¶¶ 59-60, 142; Merritt Depo. at 39.)
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4.
Plaintiff’s Use of Tylenol with Codeine for Pediatric Patients
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Defendant stated that another reason for Plaintiff’s termination was his refusal to
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stop prescribing Tylenol with Codeine after the June 2013 death of pediatric patient, M.G.,
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following a tonsillectomy that Plaintiff performed. (DSOF ¶ 22; PSSOF ¶¶ 150-67.) On
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May 5, 2014, M.G.’s parents and his estate sued KRMC and its physicians, including
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Plaintiff, for wrongful death and medical negligence (the “M.G. Lawsuit”). (DSOF ¶ 23;
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PCSOF ¶ 23.) It was alleged that M.G.’s death resulted, in part, from Plaintiff’s decision
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to prescribe Tylenol with Codeine to him after his surgery. (DSOF ¶ 23.)
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Plaintiff states that, “as was his usual practice,” he had prescribed Tylenol 3 with
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codeine for pain. (PSSOF ¶ 152.) The use of Tylenol with Codeine was contrary to the
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FDA’s black box warning in effect at the time, which warned against administering it to
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pediatric patients post-surgery (“Box Warning”). (DSOF ¶ 24, PCSOF ¶ 24.) At the time
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of M.G.’s death, Plaintiff did not know about the Box Warning, which the FDA sends out
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by mail because he did not open his mail. (DSOF ¶ 26; PSSOF ¶ 157; Ramirez Decl. ¶ 87;
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Ramirez Depo. at 143-44.)
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Plaintiff admits he became aware of the Box Warning after M.G. died. (DSOF ¶ 26;
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PCSOF ¶ 26; Ramirez Depo. at 143-45, 265-66.) During his deposition, Plaintiff testified
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that after M.G.’s death, he prescribed Tylenol with Codeine “a few times” but after he read
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the Box Warning he started prescribing Lortab instead. (Ramirez Depo. at 144, 147-48.)
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Plaintiff later explained that he had prescribed Tylenol with Codeine for twenty-five years
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without a problem and he thinks that after M.G.’s death he prescribed Tylenol with Codeine
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to a “handful of patients” and then switched to Lortab “eventually when [he] read the Black
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Box Warning.” (Id. at 147-48.)
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Defendant asserts that Plaintiff’s medical assistant (“MA”), Melissa Kjelgaard, who
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was responsible for calling in prescriptions for surgery patients, testified during her
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deposition that Plaintiff continued to prescribe Tylenol with Codeine to pediatric patients
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until his termination from KRMC in 2014. (DSOF ¶ 28; Kjelgaard Depo. at 89, 90, 102-
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03.) Plaintiff disagrees with this characterization of her testimony. (PCSOF ¶ 28.)
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However, the record reflects that Kjelgaard testified that she called in the prescriptions for
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M.G. (Kjelgaard Depo. at 89, 90.) She also testified that “after M.G.,” Plaintiff “usually
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stuck with Tylenol with Codeine or Lortab . . . until he left.” (Id. at 102-03.)
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Defendant asserts that on December 20, 2013, KRMC asked Plaintiff to provide his
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standard post-op orders for pediatric patients and that, in response, Plaintiff confirmed that
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he “used Tylenol with Codeine for moderate pain” in his pediatric post-op orders. (DSOF
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¶ 29; DSOF, Exs. 28, 30.) Plaintiff disputes this assertion and states that the referenced
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email, DSOF, Ex. 28, does not support it. (DSOF ¶ 29.) However, in response to a January
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3, 2014 email that asked Plaintiff to indicate his pediatric post-op procedure, Plaintiff stated
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that he used “Tylenol with Codeine for moderate pain.” (DSOF, Ex. 28.)
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Defendant asserts that Blanchard’s notes from Plaintiff’s January 31, 2014
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termination meeting reflect that, at that meeting, Plaintiff “stated he would continue to
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prescribe [Tylenol with Codeine] to children.” (DSOF ¶ 30; DSOF, Ex. 32.) Plaintiff
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denies this assertion and the “authenticity” of Blanchard’s purported notes. (DSOF ¶ 30.)
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During his deposition, Plaintiff stated that he did not recall telling anyone that he would
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continue prescribing Tylenol with Codeine for pediatric patients. (DSOF ¶ 31; PCSOF
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¶ 31; Ramirez Depo. at 144-45.)
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5.
Plaintiff’s Failure to Respond to ER while On-Call
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KRMC is subject to the Emergency Medical Treatment and Active Labor Act
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(“EMTALA”), which creates liability if a physician fails or declines to respond to a call
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from a hospital’s emergency department. (Doc. 56 at 5.) On December 4, 2013, Plaintiff
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was listed as the ENT on-call for the emergency room (“ER”). When the ER received a
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patient who needed ENT services, it called Plaintiff repeatedly without response. (DSOF
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¶ 37; PCSOF ¶ 37.) Plaintiff eventually notified KRMC that he was in New York. (Id.)
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Plaintiff does not dispute he was listed on-call that day, or that he was unavailable to take
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the call. (Id.)
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Rather, Plaintiff asserts that in November 2013 he made plans to attend a medical
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conference in New York City and that, a week before the conference, he told KRMC’s on-
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call scheduler, Suzie Frisbie, not to schedule him for on-call duty during the dates of the
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conference. (PSSOF ¶ 142.) Plaintiff asserts that Frisbie mistakenly put him on the on-
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call schedule. (Id. at 143; Kjelgaard Depo. at 86-89; Ramirez Decl. ¶ 78; Ramirez Decl.,
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Ex. 4.) Consistent with that assertion, during his deposition, Plaintiff asserted that staff
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failed to notify the ER that he was unavailable on the assigned on-call date. (Ramirez
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Depo. at 362-63.) In a November 2, 2014 letter, Frisbie stated that on December 2, 2013,
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Plaintiff informed staff members that his airline itinerary for his trip to New York had
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changed and asked them to reschedule the afternoon of December 4, 2013. (Ramirez Decl.,
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Ex. 4.)
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B.
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On September 21, 2014, Plaintiff filed with the Equal Employment Opportunity
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Commission (“EEOC”) a charge of discrimination alleging discrimination based on
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religion, age, and national origin (the “EEOC Charge”). (PSSOF, Ex. J.)
The EEOC Charge
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C.
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The M.G. Lawsuit settled in November 2015. Plaintiff objected to the settlement.
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(DSOF ¶ 32.) Plaintiff states that only one physician who had been sued, Dr. Burton, was
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allowed to “get out of the case before it was dismissed.” (PSSOF ¶¶ 198-99.) Plaintiff
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states that he requested the same courtesy. (Id. at ¶ 200.) Once a settlement was reached,
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federal law obligated KRMC to report Plaintiff to the National Practitioner Data Bank
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(“NPDB”) for monies paid and attributed to him. (DSOF ¶ 33.) This report led to an
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Arizona Medical Board (“AMB”) inquiry, which required Plaintiff’s participation.
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Plaintiff ultimately consented to the entry of an order by the AMB finding that Plaintiff
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engaged in “unprofessional conduct when he departed from the standard of practice in his
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care and treatment of [M.G.]” by failing to admit M.G. overnight and by treating M.G. with
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Tylenol with Codeine. (DSOF ¶ 36.) The AMB placed Plaintiff on probation for six
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months. (Id.) Plaintiff asserts that KRMC settle the M.G. Lawsuit to retaliate against him
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for filing the EEOC charge in September 2014. (Doc. 67 at 10-11.)
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II.
The M.G. Lawsuit Settlement and the Medical Board Inquiry
Summary Judgment Standard
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A party seeking summary judgment “bears the initial responsibility of informing the
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district court of the basis for its motion and identifying those portions of [the record] which
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it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
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Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence,
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viewed in the light most favorable to the nonmoving party, shows “that there is no genuine
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issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
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Fed. R. Civ. P. 56(a).
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unsupported by factual evidence, are insufficient to defeat a motion for summary judgment.
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Lucas Auto. Eng’g, Inc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228, 1237 (9th Cir.
4
1998). Similarly, an affidavit that recites conclusory allegations will not defeat summary
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judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990); see also
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Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995) (while plaintiff's burden at
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the summary judgment stage is not overly burdensome, plaintiff cannot merely rely on
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generalizations). Only disputes over facts that might affect the outcome of the suit will
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preclude the entry of summary judgment, and the disputed evidence must be “such that a
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reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers Defendant’s motion for
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summary judgment under these standards.
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III.
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Conclusory allegations contained in the pleadings, which are
Count Two—Title VII Claims
Title VII of the Civil Rights Act of 1964, as amended, prohibits two categories of
employment practices. It is unlawful for an employer:
(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants
for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because
of such individual’s race, color, religion, sex, or national
origin.
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42 U.S.C. § 2000e-2(a). “These proscriptions often referred to as the ‘disparate treatment’
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(or ‘intentional discrimination’) provision and the ‘disparate impact’ provision, are the only
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causes of action under Title VII.” EEOC v. Abercrombie & Fitch Stores, Inc., ___ U.S.
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___, 135 S. Ct. 2028, 2032. (2015).
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In Count Two, Plaintiff alleges that Defendant violated Title VII by terminating him
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based on his religion. (FAC ¶¶ 51-56.) Specifically, Plaintiff asserts a claim of reverse-
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discrimination by alleging that Defendant terminated him because he was a non-Mormon
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and, therefore, was not a member of the same religion as those in charge at KRMC. (Id.)
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Plaintiff alleges that Defendant treated similarly situated employees more favorably by
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permitting them to use Defendant’s previous health records program while terminating
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Plaintiff “for not using the new electronic health record system properly.” (Id. at ¶ 53.)
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Plaintiff also asserts that Defendant’s policies had a discriminatory impact on non-
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Mormons, including Plaintiff. (Id. at ¶ 54.) Thus, Plaintiff alleges a disparate treatment
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claim and a disparate impact claim. Defendant moves for summary judgment on Plaintiff’s
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Title VII claims asserted in Count Two. (Doc. 56.) As set forth below, the Court grants
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Defendant’s motion for summary judgment on both claims asserted in Count Two.
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A.
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The parties agree that, at the summary judgment stage, Plaintiff’s Title VII claims
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are subject to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
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U.S. 792 (1973). (FAC at ¶¶51-56; Doc. 56 at 5; Doc. 67 at 12.) Under this burden-shifting
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framework, Plaintiff must first establish a prima facie case of discrimination. Defendant
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asserts that the Court should analyze Plaintiff’s prima facie case of a reverse discrimination
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claim under the framework the Tenth Circuit set forth in Shapolia v. Los Alamos Nat’l.
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Lab., 992 F.2d 1033 (10th Cir. 1993), and the Ninth Circuit recognized in Noyes v. Kelly
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Servs., 488 F.3d 1163, 1168-69 (9th Cir. 2007). (Doc. 56 at 6.) Plaintiff does not dispute
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that assertion. (Doc. 67 at 12-14.)
McDonnell Douglas Burden-Shifting Analysis
21
In Noyes, the Ninth Circuit noted that it had not previously articulated the prima
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facie showing applicable to a claim of reverse religious discrimination. Noyes, 488 F.3d
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at 1168. The court found Shapolia instructive on the “protected class” element required in
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traditional claims of discrimination, but found that element did not apply to a “non-
25
adherence or reverse religious discrimination claim because ‘it is the religious beliefs of
26
the employer, and the fact that [the employee] does not share them, that constitutes the
27
basis of the [religious discrimination] claim.’” Noyes, 488 F.3d at 1168-69 (quoting
28
Shapolia, 992 F.2d at 1038) (alterations in original). Instead, the court recognized that it
- 12 -
1
is appropriate to tailor the elements of the prima facie case according to the circumstances
2
of each case. Noyes, 488 F.3d at 1169. In Shapolia, the court replaced the “protected
3
class” element with an “additional evidence” element. Shapolia, 992 F.2d at 1038.
4
Considering the Ninth Circuit’s decision in Noyes, the Court finds that the prima facie case
5
articulated in Shapolia is appropriate to the circumstance of this case.
6
Thus, to make a prima facie showing of discrimination based on Plaintiff’s failure
7
to adhere to his employer’s religious beliefs, Plaintiff must show: (1) that he was subjected
8
to an adverse employment action; (2) at the time the employment action was taken, his job
9
performance was satisfactory; and (3) some additional evidence to support the inference
10
that the employment action was taken because of a discriminatory motive based upon the
11
employee’s failure to hold or follow his employer’s religious beliefs. Shapolia, 992 F.2d
12
at 1038; see Noyes, 488 F.3d at 1069; Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603
13
(9th Cir. 2004) (stating that to make a prima facie showing of discrimination based on
14
religion a plaintiff must show, among other factors, that “similarly situated individuals
15
outside his protected class were treated more favorably, or other circumstances surrounding
16
the adverse employment action give rise to an inference of discrimination.”) Although the
17
burden at the prima facie stage is “not onerous,” a plaintiff must still produce some
18
evidence to meet his burden. Lyons v. England, 307 F.3d 1092, 1112-13 (9th Cir. 2002).
19
If Plaintiff makes that prima facie showing, the burden of production then shifts to
20
Defendant “to articulate a legitimate, nondiscriminatory reason for its adverse employment
21
action.” Noyes, 488 F.3d at 1169. If Defendant satisfies its burden to articulate a
22
nondiscriminatory reason for the adverse employment action, the burden shifts back to
23
Plaintiff “to come forward with evidence that the proffered reasons were a pretext for
24
discrimination.” Id. The Ninth Circuit has emphasized “the shift back to the plaintiff does
25
not place a new burden of production on the plaintiff.” Id. The jury may infer the ultimate
26
fact of intentional discrimination from the evidence presented in the prima facie case “if
27
the factfinder rejects the employer’s proffered nondiscriminatory reasons as unbelievable.”
28
Id. at 1169-70. A plaintiff can prove pretext indirectly “by showing the employer’s
- 13 -
1
proffered explanation is unworthy of credence because it is internally inconsistent or
2
otherwise not believable,” or directly by showing unlawful discrimination more likely
3
motivated the employer. Id. at 1170. The court considers the evidence of pretext
4
cumulatively and “in the context of Title VII claims, the burden on plaintiffs to raise a
5
triable issue of fact as to pretext is hardly an onerous one.” Id.
6
B.
7
To establish a prima facie case for his disparate treatment claim, Plaintiff must show
8
an adverse employment action, satisfactory job performance at the time of that action, and
9
some additional evidence to support the inference that the employment action was taken
10
because of a discriminatory motive based upon his failure to hold or follow his employer’s
11
religious beliefs. Shapolia, 992 F.2d at 1038. The parties do not dispute that Plaintiff’s
12
termination is an adverse employment action. Thus, Plaintiff has established the first
13
element of his prima facie case for his claim.
Disparate Treatment Claim
14
Additionally, on the second element, Plaintiff presented enough evidence to create
15
a genuine dispute regarding whether his job performance was satisfactory at the time of his
16
termination. As set forth above in Section I.A, Defendant asserts that Plaintiff’s job
17
performance was unsatisfactory because Plaintiff’s productivity fell below his
18
compensation level, he started late for his morning OR block time, he resisted or had a bad
19
attitude about NextGEN, he continued to prescribe Tylenol with Codeine to pediatric
20
patients after the 2013 death of a pediatric patient, and he was unavailable when he was
21
“on call” in December 2013. See Section I.A.1-5. However, there are genuine disputed
22
issues of fact on at least some of these asserted areas of job performance.
23
For example, while Plaintiff admits that he used a hybrid system of NextGEN and
24
paper charts, Defendant admits that it permitted physicians to use that system. (Turney
25
Depo. at 146-47; Ramirez Decl. ¶ 68; see Section I.A.3.) Additionally, there is evidence
26
that at the time of Plaintiff’s termination in January 2014, other KRMC physicians were
27
still using the hybrid system and, as of 2018, the usage of NextGEN was not “100 percent.”
28
(Kjelgaard Depo. at 59-60, 142; Merritt Depo. at 39.) Additionally, the evidence regarding
- 14 -
1
Plaintiff’s continued prescription of Tylenol with Codeine is disputed.
2
deposition, Plaintiff testified that he continued to prescribe Tylenol with Codeine to
3
pediatric patients “a few times” after the death of the pediatric patient, but other evidence
4
indicates that Plaintiff continued to prescribe that medication until he was terminated in
5
2014. See Section I.A.4. Additionally, although Plaintiff admits he was unavailable when
6
he was on-call on December 4, 2013, he provided a reasonable explanation for his
7
unavailability that is supported by other evidence in the record. See Section I.A.5.
During his
8
For the third element of his prima facie case of disparate treatment claim, Plaintiff
9
must present some additional evidence to support the inference that the employment
10
actions were taken because of a discriminatory motive based upon his failure to hold or
11
follow his employer’s religious beliefs. Shapolia, 992 F.2d at 1038. Plaintiff presents
12
several different categories of evidence related to issue of discriminatory motive.7 (Doc. 67
13
at 7, 14-15.) The Court discusses this evidence below. Although the Court separates the
14
categories of evidence in the interest of clarity, the Court considers the evidence
15
cumulatively.
16
1.
Plaintiff did not the Share Religious Beliefs of his Employers
17
Plaintiff, who identifies himself as Christian, asserts that KRMC is a Mormon-run
18
hospital. (Doc. 67 at 7.) It is undisputed that the CEO Turney is Mormon and has
19
connections to the Mormon community. (PSSOF ¶¶ 170-94; DSOF ¶ 49; Turney Depo. at
20
29-37.) The majority of the KRMC board of directors is Mormon. (Turney Depo. at 28.)
21
Defendant states that in January 2014 Blanchard and Merritt decided to terminate Plaintiff.
22
(DSOF ¶¶ 4, 5.) Merritt is Mormon, but Blanchard is not. (DSOF ¶¶ 4, 54, 55; PCSOF
23
¶¶ 53, 54.) In his deposition, Turney testified that the decision to terminate Plaintiff was a
24
“group decision,” and he “supported the decision.” (Turney Depo. at 46-47, 66; Blanchard
25
Depo. at 88-89.) Considering the role of Turney and Merritt in the decision to terminate
26
Plaintiff, there is undisputed evidence that Plaintiff did not share the religious beliefs held
27
by some individuals involved in the decision to terminate him.
28
7
Plaintiff relies on the same evidence to support his prima facie case and to argue pretext.
(Doc. 67 at 12-13.)
- 15 -
1
2.
Mormon Culture and Favoritism at KRMC
2
Plaintiff asserts that he was terminated because he was a “disfavored non-Mormon.”
3
(PSSOF at¶ 194.) However, Plaintiff admits that no one at KRMC asked him about his
4
own religion, including during the “onboarding or recruiting process.” (DSOF ¶ 55;
5
PCSOF 55.) As evidence that his termination was motivated by his failure to share the
6
religious beliefs of his employer, Plaintiff argues that Turney and “like-minded Mormons
7
regularly socialize,” know which employees at KRMC are Mormon and which are not, and
8
favor Mormons. (Doc. 67 at 7; PSSOF ¶¶ 175-84 (citing Ramirez Decl. ¶¶ 97-98, 100;
9
Turney Depo. at 28-29, 121-22, 174; Merritt Depo. at 16-19, 22-23; Kjelgaard Depo. at
10
118-19, 134-36, 145-56).) Plaintiff also asserts that he complained about the “Mormon
11
culture and power structure” at KRMC to his supervisor Merritt and that Turney knew of
12
his complaints. (PSSOF at ¶¶ 183-84 (citing Ramirez Decl. ¶ 101; Merritt Depo. at 16-19;
13
Turney Depo. at 174).)
14
During his deposition, Turney stated that “over time” he could “figure . . . out who
15
was Mormon.” (Turney Depo. at 29-30, 32, 33.) Turney stated that he had not heard from
16
any KRMC employee that there was a perception that Mormons were favored over non-
17
Mormons, but he would not have been shocked if someone said that because people said
18
“a lot of things.” (Id. at 121-22.) Turney also stated that, since Plaintiff’s termination, he
19
had heard “chatter” that KRMC employees thought Mormons were in “power,” and that
20
he was aware that Plaintiff had “made a couple of comments before he left,” but did not
21
know Plaintiff had that “degree of animus toward” Mormons. (Id. at 173-74.)
22
During her deposition, Merritt testified that she had heard Plaintiff use the term
23
“Mormon mafia,” and that he complained about the hospital being run by Mormons.
24
(Merritt Depo. at 16-17.) Merritt testified that she and Turney talked about church
25
activities, such as choir practice, at work.
26
conversations about her faith with Plaintiff consisted of him asking about who the
27
Mormons were at KRMC. (Id. at 24.)
28
- 16 -
(Id. at 21-22.)
Merritt stated that her
1
As Plaintiff notes, Kjelgaard testified at her deposition that she understood
2
Plaintiff’s lawsuit to be claiming that a majority of KRMC administrators and staff have
3
religious beliefs not shared by Plaintiff and that “people seem to move further up the chain
4
if they know admin and have that group [Mormons].” (Kjelgaard Depo. at 118-19, 134-
5
35.)
6
employee. (Id. at 118-119, 136-37.) Kjelgaard, who identified herself as Catholic, testified
7
that she did not recall being asked about religion at work. (Id. at 119-20.) She stated that
8
KRMC employees talked about their religion in the context of their children’s or family’s
9
activities. (Id. at 120.) Kjelgaard stated that no administrators or doctors talked to her
10
about religion. (Id.) She testified that she had heard rumors that there were a lot of
11
Mormons in the KRMC administration. (Id. at 136, 147.) She also testified that she had
12
heard the term “Mormon mafia” “around the community” and that it was common
13
knowledge in the Kingman area that “Mormons run KRMC.” (Id. at 137, 139, 145, 148.)
14
Kjelgaard testified that she did not discuss religion, “Mormon culture,” or the “Mormon
15
mafia” at KRMC because she wanted to “make sure nobody was upset and/or felt it was
16
necessary to be upset with her and possibly . . . risk [her] job.” (Id. at 146.) She also
17
testified that she had no reason to believe that her faith or religion would negatively impact
18
her job, and that she avoided conversations about faith or religion because she felt people
19
should not be judged based on that issue. (Id. at 120, 147-47.)
She did not, however, describe any instance of favoritism toward a Mormon
20
To support his allegations of favoritism, Plaintiff asserts that KRMC allowed
21
Mormon physicians (Drs. Knievel, Taylor, Oldham, and Oldham’s partner) to use paper
22
charts after KRMC transitioned to the NextGEN/EMR system. (DSOF ¶ 60; PCSOF ¶ 60.)
23
Plaintiff admits that this allegation is not based on his first-hand knowledge or information
24
from KRMC management but is based on what Kjelgaard told him. (DSOF ¶ 63; PCSOF
25
¶ 63.) Plaintiff admits that he did not “do anything to verify whether or not [the] doctors
26
were indeed permitted to continue to use the paper charting,” and does not know for how
27
long the doctors were allowed to use paper charts, or if the doctors used the paper charts
28
as part of a hybrid system, like the hybrid system KRMC permitted Plaintiff to use.
- 17 -
1
(DSOF ¶ 64; PCSOF ¶ 64.) Additionally, Plaintiff admits that KRMC permitted him to
2
use a hybrid system of paper charting and EMR after the implementation of NextGEN.
3
PCSOF ¶ 62.)
4
The evidence that Plaintiff cites to support his claims of Mormon culture and
5
favoritism at KRMC, and his complaints about those issues, is insufficient to create a
6
genuine issue of disputed fact on the third element of the prima facie—whether Plaintiff
7
has presented some evidence to support an inference that Defendant terminated him
8
because he did not share his employer’s religious beliefs. But see Fischer v. Forestwood
9
Co., 525 F.3d 972, 986 (10th Cir. 2008) (concluding that the district court erred in failing
10
to find that plaintiff established a prima facie case of failure to hire when there was
11
evidence that plaintiff sought reinstatement directly from the president of the company, the
12
president was aware that plaintiff was not a member of the FLDS church and that since at
13
least 1999 the company had not hired or interviewed anyone who was not a member of the
14
FLDS church); Sattar v. Motorola, Inc., 138 F.3d 1164, 1167, 1170 (7th Cir. 1998) (finding
15
sufficient evidence to raise an inference that plaintiff’s discharge was based on an
16
impermissible reason when the record was “replete with examples” of the plaintiff’s
17
supervisor “hound[ing]” him about his religion including advising him to follow the Koran,
18
inviting him to weekly prayer sessions in the supervisor’s office, sending the plaintiff
19
hundreds of emails with citations to the Koran and dire warnings about punishments to
20
those who turned their back on Islam, and telling the plaintiff that his standing with his
21
superiors would improve if he returned to Islam); Scott v. Montgomery Cty Sch. Bd., 963
22
F. Supp. 2d 544, 548, 556 (W.D. Va. Aug. 5, 2013) (finding a genuine dispute on the issue
23
of motive when the plaintiff offered undisputed evidence that she did not join a bible study
24
group or attend a religious group when asked by her immediate supervisor, told her
25
immediate supervisor she was not comfortable starting each work day with a prayer or
26
devotional, her immediate supervisor knew she was not comfortable with the overtures but
27
left religious materials in the plaintiff’s work area, during an evaluation plaintiff’s
28
- 18 -
1
supervisor said she felt a “righteous anger toward” plaintiff, and plaintiff’s immediate
2
supervisor participated in the termination decision).
3
There is evidence that Turney and Merritt discussed activities related to their church
4
at work, such as choir practice, but there is no evidence Plaintiff was asked about his
5
religion or asked to participate in any religious activities. There is evidence that there were
6
rumors in Kingman that KRMC was run by Mormons, and that Kjelgaard avoided
7
discussing religion because she did not want to “possibly . . . risk her job,” or because she
8
felt people should not be judge on that issue (Kjelgaard Depo. at 120, 146-47), but she also
9
stated that she had no reason to believe that her faith or religion would negatively impact
10
her job. (Id. at 146-47.) Additionally, Plaintiff claims that he complained to his supervisor
11
Merritt about the Mormon culture and power structure, but he does not provide any details
12
about those complaints. Similarly, Merritt testified that Plaintiff complained, but did not
13
provide any specifics. Turney testified that he was aware that Plaintiff had “made a couple
14
of comments before he left,” but did not know Plaintiff had “the degree of animus toward”
15
Mormons. (Turney Depo. at 173-74.) The Court concludes that this evidence does not
16
create a genuine dispute on the issue on motive.
17
3.
Biased Comment at September 2012 Medical Staff Meeting
18
Plaintiff alleges that during a September 2012 medical staff meeting, he heard
19
Turney tell another administrator, Larry Lewis, “we are hiring two more Mormons, and I
20
don’t care what anyone thinks. If I had my way I would hire all Mormons.” (“September
21
2012 comment”). (PSSOF ¶ 180; Ramirez Decl. ¶ 100.) Plaintiff claims that this comment
22
referred to the non-Mormon physicians whose contracts were terminated and replaced by
23
Mormon physicians. (PSSOF ¶¶ 192-93.) In his deposition, Turney denied making the
24
September 2012 comment. (Turney Depo. at 34-35.)
25
Thus, Plaintiff asserts that Turney made one comment that exhibited his bias against
26
individuals who were not Mormon. However, Plaintiff admitted in his deposition that this
27
comment was not directed to, or about, Plaintiff. (Doc. 74 at 5; DSOF; Ex. 1, Ramirez
28
Depo. at 164-65.) Isolated remarks, unrelated to the disputed employment action, are
- 19 -
1
insufficient to demonstrate discriminatory animus. See Nesbit v. Pepsico, Inc., 994 F.2d
2
703, 705 (9th Cir. 1993) (comment uttered in an ambivalent manner and not tied to
3
employee’s termination was insufficient to create an inference of age discrimination);
4
Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) (stray comments
5
unrelated to the decisional process were not sufficient to raise triable issues concerning the
6
discriminatory nature of a discharge). Plaintiff alleges that the September 2012 comment
7
was made at the beginning of a “set up” that led to his termination in 2014. (Doc. 67 at 3.)
8
However, nothing in the record ties the September 2012 comment to the decision to
9
terminate Plaintiff.
10
Therefore, considering the evidence related to the third element of the prima facie
11
case, the Court concludes that Plaintiff has not provided evidence to create a genuine
12
disputed issue of fact on that element. Therefore, the Court grants summary judgment in
13
favor of Defendant on Plaintiff’s Title VII claim of disparate treatment asserted in Count
14
Two. (FAC ¶¶ 51-56.)
15
C.
16
In Count Two, Plaintiff also asserts that Defendant’s policies had a discriminatory
17
impact on non-Mormons, including Plaintiff.8 (FAC at ¶ 54.) A disparate impact claim
18
challenges “employment practices that are facially neutral in their treatment of different
19
groups but that in fact fall more harshly on one group than another and cannot be justified
20
by business necessity.” Stout v. Potter, 276 F.3d 1118, 1121 (9th Cir. 2002). A prima
21
facie case of disparate impact requires the plaintiff to: (1) identify the specific practices or
22
policies being challenged; (2) show disparate impact; and (3) prove causation. Rose v.
23
Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990). To survive summary judgment
24
on a disparate impact claim, a plaintiff must provide at least some evidence, direct or
Disparate Impact Claim
25
8
26
27
28
Defendant moves for summary judgment on Plaintiff’s disparate impact claims based on
religious and age discrimination. (Doc. 56 at 10-13.) The Court does not consider
Defendant’s argument related to a disparate impact claim based on age because Plaintiff
states that Defendant “mischaracterizes” his age discrimination claim as a disparate impact
claim. (Doc. 67 at 15 n.6.) Based on Plaintiff’s statement, the Court concludes that he
does not present an age-related disparate impact claim.
- 20 -
1
circumstantial, that a facially neutral policy falls more harshly on a protected group than
2
the whole. Lopez v. Pac. Maritime Ass’n, 657 F.3d 762, 766 (9th Cir. 2011). To establish
3
causation, the plaintiff must offer “statistical evidence of a kind and degree sufficient to
4
show that the practice in question has caused the exclusion of [a particular group] because
5
of their membership in a protected group.” Rose, 902 F.2d at 1424 (citing Watson v. Fort
6
Worth Bank & Trust, 487 U.S. 977 (1988)). Although statistical data alone may be
7
adequate to prove causation, the statistical disparities must be sufficiently substantial that
8
they raise an inference of causation. Stout, 276 F.3d at 1122.
9
As discussed below, Plaintiff’s disparate impact claim fails. To establish a disparate
10
impact claim, Plaintiff must identify “the specific . . . practice[s] that are allegedly
11
responsible for any observed statistical disparities.” Smith v. City of Jackson, 544 U.S.
12
228, 241 (2005). As Defendant argues, Plaintiff has not identified the specific employment
13
practice or selection criteria at issue. (Doc. 56 at 11.) Plaintiff does not respond to this
14
argument. (Doc. 67.) However, the FAC alleges that KRMC’s use of “facially neutral
15
employment practices” and “excessive subjective standards for selection of those to be
16
promoted demoted, discharged or disciplined” disparately impacts non-Mormon
17
employees. (FAC at ¶ 54.) Additionally, in response to the motion for summary judgment
18
Plaintiff generally asserts that KRMC had “Well-Known Discriminatory Employment
19
Practices,” however, Plaintiff does not dispute that he has failed to identify any specific
20
employment practices or selection criteria that caused an adverse disparate impact on non-
21
Mormons. (Doc. 67 at 7-8, 12-13); see Stout, 276 F.3d at 112.
22
Additionally, Plaintiff has not presented evidence to establish a genuine issue of fact
23
on causation. To satisfy this element, Plaintiff must produce evidence to justify an
24
inference that the challenged employment practice caused a substantial disproportionate
25
exclusionary impact on the protected class. See Shutt v. Sandoz Crop Prot. Corp., 944 F.2d
26
1431, 1433 (9th Cir. 1991). The primary means of proving such an impact is to present
27
statistical evidence. Id. In its motion for summary judgment, Defendant asserts that the
28
only potential statistical evidence is a chart that Plaintiff created and submitted to the
- 21 -
1
EEOC in April 2015 (the “chart”). (Doc. 56 at 12; DSOF ¶ 71.) Defendant argues that the
2
chart is unreliable. (Doc. 56 at 12); see More v. Hughes Helicopters, Inc., a Div. of Summa
3
Corp., 708 F.2d 475, 481 (9th Cir. 1983) (stating that an employer may rebut the
4
employee’s prima facie case by showing the inaccuracy of the employee’s statistics).
5
Plaintiff does not rely on this chart, or any other statistical evidence, to oppose the motion
6
for summary judgment. (Doc. 67 at 12-14.) Because Plaintiff does not rely on the chart,
7
the Court will not consider it as evidence. Upon review of Plaintiff’s response to the
8
motion for summary judgment, the Court concludes that Plaintiff has not offered evidence
9
that is sufficient to create a disputed issue of fact on the causation element of a prima facie
10
case for a disparate impact claim under Title VII. Therefore, the Court grants summary
11
judgment in favor of Defendant on Plaintiff’s disparate impact claim asserted in Count
12
Two of the FAC.
13
IV.
Count Three—ADEA Claim
14
In Count Three, Plaintiff alleges a disparate treatment claim based on age
15
discrimination in violation of the ADEA.9 (FAC ¶¶ 57-62.) The ADEA makes it unlawful
16
“to discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1).
17
This prohibition is “limited to individuals who are at least 40 years of age.” 29 U.S.C.
18
§ 631(a). To survive summary judgment on his claim for a violation of the ADEA under
19
a disparate treatment theory of liability, Plaintiff must first establish a prima facie case of
20
age discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1280-81 (9th Cir. 2000).
21
If he succeeds, the burden of production shifts to Defendant to articulate a legitimate
22
non-discriminatory reason for its adverse employment action. Id. at 1281. Then, Plaintiff
23
must demonstrate that there is a material genuine issue of fact on whether Defendant’s
24
proferred reason is pretext for age discrimination. Id. At trial, Plaintiff has the burden of
25
proving that age was the “but-for” cause of the adverse employment action. See Shelley v.
26
Geren, 666 F.3d 559, 607 (9th Cir. 2012) (explaining that, following the decision in Gross
27
9
28
Plaintiff has clarified that he is not bringing a disparate impact claim of age
discrimination. (Doc. 67 at 15 n.6.)
- 22 -
1
v. FBL Fin. Servs, Inc., 557 U.S. 167, 176-177 (2009), the McDonnell Douglas framework
2
still applies to decide summary judgment motions and that at trial a plaintiff must show
3
that age was the “but for” cause of the employer’s adverse action).
4
A.
5
To state a prima facie case of age discrimination under the ADEA, Plaintiff must
6
show that (1) he belongs to a protected class, (2) he was performing his job satisfactorily,
7
(3) he suffered an adverse employment action, and (4) he was replaced by substantially
8
younger employees with equal or inferior qualifications. Coleman, 232 F.3d at 1281; see
9
also O’Connor v Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) (“Because the
10
ADEA prohibits discrimination on the basis of age and not class membership, the fact that
11
a replacement is substantially younger than the plaintiff is a far more reliable indicator of
12
age discrimination than is the fact that the plaintiff was replaced by someone outside the
13
protected class.”). The requisite degree of proof to establish a prima facie case is
14
“minimal,” and plaintiff “need only offer evidence which gives rise to an inference of
15
unlawful discrimination.” Wallis v. J.R. Simplot, 26 F.3d 885, 889 (9th Cir. 1994).
Plaintiff’s Prima Facie Case of Age Discrimination
16
The parties agree that Plaintiff has established the first element (member of
17
protected class) and third element (suffered an adverse employment action) of his prima
18
facie case. The parties, however, dispute the second element (satisfactory job performance)
19
and fourth element (replaced by substantially younger, less qualified employee) of the
20
prima facie case. As set forth above in Sections I.A and III.B, the Court concludes there is
21
sufficient evidence to create a genuine dispute whether Plaintiff was performing his job
22
satisfactorily at the time of his termination. Thus, Plaintiff has established this element for
23
purposes of defeating summary judgment. On the fourth element, Defendant argues that
24
Plaintiff fails to establish that he was discharged under circumstances giving rise to an
25
inference of age discrimination. A plaintiff can satisfy this element by showing the
26
employee was “replaced by [a] substantially younger employee[ ] with equal or inferior
27
qualifications.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207-08 (9th Cir.
28
2008). As discussed below, Defendant disputes whether Dr. Braze was substantially
- 23 -
1
younger, whether she replaced Plaintiff, and whether there is evidence to support an
2
inference of discrimination.
3
1.
Substantially Younger Employee
4
Defendant argues that Plaintiff cannot satisfy the fourth element of the prima facie
5
case because Dr. Braze was over 40 years old when KRMC hired her. (Doc. 56 at 15-16;
6
DSOF ¶¶ 94-95.) Although Dr. Braze was in the protected class for purposes of the
7
ADEA, that does not defeat Plaintiff’s claim of age discrimination. See O’Connor, 517
8
U.S. at 312 (stating that the fact that “one person in the protected class has lost out to
9
another person in the protected class is thus irrelevant, so long as he has lost out because
10
of his age.”); see also Harris v. Potter, 2002 WL 31298852, at *3-*4 (N.D. Cal. Oct. 8,
11
2002) (stating that regardless of the replacement’s age, a significant age difference is
12
sufficient to make out a “low threshold” prima facie case) (citing Douglas v. Anderson,
13
656 F.2d 528, 538 (9th Cir. 1981) (finding that the replacement of a 54-year-old plaintiff
14
by a 50-year-old person was sufficient to state a prima facie case). Plaintiff was 56 years
15
old at the time of his termination and Dr. Braze was no older than 45 years old. (Doc. 67
16
at 8; DSOF ¶ 85, PSSOF, Ex. G.) Thus, the age difference between Plaintiff and Dr. Braze
17
is sufficient to state a prima facie case.
18
2.
Replaced Plaintiff
19
Defendant also asserts that Plaintiff cannot make a showing at the fourth element of
20
the prima facie case because there is no evidence that Dr. Braze replaced Plaintiff because
21
she was hired several months before Plaintiff was terminated. (Doc. 56 at 14.) Defendant
22
states that three months before Plaintiff’s termination, it hired Dr. Braze to service new
23
patients in KRMC’s ENT practice. (DSOF ¶¶ 81-86.) Defendant asserts that Plaintiff did
24
not believe that Dr. Braze “[took] over [his] practice” and admitted that they did not share
25
patients during the several months they worked together. (Id. at ¶¶ 84-87.) Additionally,
26
Dr. Braze hired her own medical assistant. (Id.) Defendant admits that it did not hire a
27
second ENT doctor after Plaintiff’s termination but claims it was not necessary because
28
Dr. Braze had improved the efficiency of the ENT practice. (Id. at ¶ 88.)
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1
Plaintiff alleges that Dr. Braze did not help with his patient work load, but rather
2
used “his office equipment and staff and otherwise ignored him.” (Ramirez Decl. ¶ 52.)
3
Furthermore, as Plaintiff argues, in its communications with the EEOC, KRMC initially
4
stated that Dr. Braze was hired to replace Plaintiff in a response to the EEOC’s request for
5
information, but later retracted that statement. (PSSOF ¶¶ 81, 83; PSSOF, Exs. H, G.)
6
Although Dr. Braze was hired before Plaintiff was terminated, Defendant initially stated to
7
the EEOC that Dr. Braze was hired to replace Plaintiff, Dr. Braze did not work with
8
Plaintiff in KRMC’s ENT practice, and Defendant did not hire an ENT doctor after
9
terminating Plaintiff. Thus, the Court concludes that Plaintiff has provided sufficient
10
11
evidence to state a prima facie case on the “replacement” aspect of the fourth element.
3.
Inference of Discrimination
12
Defendant further argues that Plaintiff cannot establish the fourth element of the
13
prima facie case because he was not terminated under circumstances giving rise to an
14
inference of age discrimination. (Doc. 56 at 15 (citing Diaz, 521 F.3d at 1207. Plaintiff
15
can satisfy the fourth element of the prima facie case either by showing that he was replaced
16
by a substantially younger employee with equal or inferior qualifications or that he was
17
discharged under circumstances otherwise “giving rise to an inference of age
18
discrimination.” Coleman, 232 F.3d at 1281. As set forth above, there is evidence that
19
Dr. Braze was substantially younger than Plaintiff and was hired to replace Plaintiff. Thus,
20
there is a genuine issue on whether Plaintiff was replaced by a younger worker and the
21
Court need not consider this alternative manner for satisfying the fourth element of the
22
prima facie case.
23
At trial, Plaintiff will have the burden of proving that age was the “but-for” cause
24
of the adverse employment action. See Shelley, 666 F.3d at 607. But he does not need to
25
make that showing on summary judgment. Id. (explaining that, following the decision in
26
Gross, 557 U.S. at 176-177, the McDonnell Douglas framework still applies to decide
27
summary judgment motions, but at trial a plaintiff must show that age was the “but for”
28
cause of the employer’s adverse action).
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1
B.
2
Defendant argues that, even if Plaintiff has established a prima facie case, it had
3
legitimate, nondiscriminatory reasons for terminating Plaintiff based on his “poor
4
performance.” (Doc. 56 at 10.) Defendant identifies those “performance issues” as
5
Plaintiff’s poor productivity, his late starts in the operating room, his resistance to the
6
implementation of EMR, his continued prescription of Tylenol with Codeine, and the
7
potential EMTALA violation. (Id. at 2-6.) Defendant’s proffered reasons for terminating
8
Plaintiff are sufficient to satisfy its burden at this step of the McDonnell Douglas analysis.
9
See Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 142 (2000) (“Th[e] burden
10
[of showing a legitimate and non-discriminatory reason for an adverse employment action]
11
is one of production, not persuasion; it ‘can involve no credibility assessment.’”) (citation
12
omitted). Thus, the burden shifts to Plaintiff to show evidence of pretext.
Defendant’s Legitimate Non-Discriminatory Reasons for Termination
13
C.
14
At the final stage of the McDonnell Douglas analysis, the burden shifts back to
15
Plaintiff to raise “a triable issue of material fact” on whether Defendant’s proffered reasons
16
for the adverse employment actions are “mere pretext for unlawful discrimination.” Hawn
17
v. Exec. Jet Mgmt, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). “A plaintiff can show pretext
18
directly, by showing that discrimination more likely motivated the employer, or indirectly,
19
by showing that the employer’s explanation is unworthy of credence.” Vasquez v. Cty. of
20
Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). Direct evidence usually consists of
21
“clearly sexist, racist, or similarly discriminatory statements or actions by the employer.”
22
Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094–95 (9th Cir. 2005); Earl v. Nielsen
23
Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011) (holding that “comments from
24
supervisors betraying bias or animus against older workers” constitute direct evidence of
25
age discrimination). “Because direct evidence is so probative, the plaintiff need offer ‘very
26
little direct evidence to raise a genuine issue of material fact.’” Id. at 1095. In contrast,
27
circumstantial evidence constitutes “evidence that requires an additional inferential step to
28
demonstrate discrimination.” Id. at 1095. A plaintiff’s circumstantial evidence must be
Demonstrating Pretext for Discrimination
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1
both specific and substantial to survive summary judgment.
2
Assessor’s Office, 587 F.3d 1162, 1163 (9th Cir. 2009).
Becerril v. Pima Cty.
3
Plaintiff argues that he has offered evidence of pretext to survive a motion for
4
summary judgment. (Doc. 67 at 8-11, 13, 15-16.) Plaintiff relies on the same evidence to
5
establish pretext that he relied on to state a prima facie case. (See id. at 13.) Specifically,
6
Plaintiff alleges that he can meet this burden because KRMC deviated from its policy.
7
(Doc. 67 at 13 (citing Franks v. City of Santa Ana, 735 Fed. App’x 305, 306(9th Cir.
8
2018).) In Franks, the Ninth Circuit stated that plaintiff can show pretext by showing “that
9
there was a deviation from [his employer’s procedure] that worked to her disadvantage.”
10
Franks, 735 Fed. App’x at 307 (finding that plaintiff met her burden of showing pretext
11
when there was evidence of numerous violations regarding police force procedure related
12
to an investigation of a complaint against plaintiff that led to her placement on
13
administrative leave) (citing Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1117
14
(9th Cir. 2011)). In his discussion of pretext, Plaintiff does not specifically identify the
15
policy from which KRMC deviated. (Doc. 67 at 13.) However, in support of his statement
16
of facts, Plaintiff cites evidence that KRMC had a policy of documenting disciplinary or
17
important meetings with physicians and that Turney and Blanchard did not document
18
meetings with Plaintiff regarding his productivity. See Section I.
19
Plaintiff also cites Riddle v. Washington, 2011 WL 5024195, at *2 (9th Cir. 2011),
20
for the proposition that a plaintiff can establish pretext based on a “lack of documentation.”
21
(Doc. 67 at 13.) In Riddle, the court noted that the plaintiff’s “evidence of pretext [was]
22
speculative, hearsay or self-serving, but there [was] enough admissible evidence that,
23
construed most favorably to [plaintiff was] sufficient to defeat [the] motion for summary
24
judgment. Riddle, 2011 WL 5024195, at *1. That evidence was an absence from the
25
plaintiff’s employment file of “references to the violations the purportedly caused
26
[defendant] to lose all faith in [plaintiff].” Id. In this case, similar to Riddle, Plaintiff has
27
presented Turney’s and Blanchard’s deposition testimony that they did not document their
28
meetings with Plaintiff regarding his productivity, one of the asserted reasons for his
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1
termination, and that Blanchard did not add anything to Plaintiff’s personnel file. See
2
Section I.
3
Plaintiff further argues that he can establish pretext because KRMC gave shifting,
4
changing, or inconsistent reasons for his termination. (Doc. 67 at 13 (citing Maxwell v.
5
Verde Valley Ambulance Co., Inc., 2014 WL 4470512, at *10-*11 (D. Ariz. Sept. 11,
6
2014).)
7
employee tend to show that an employer’s proffered reason for terminating that employee
8
is pretext.” Maxwell, 2014 WL 4470512, at *11 (citing Payne v. Norwest Corp., 113 F.3d
9
1079, 1080 (9th Cir. 1997) (holding that the shifting explanation creates a material issue
10
of fact because a “rational trier of fact could find that the [ ] varying reasons show that the
11
stated reason was pretextual”)).
“Inconsistences, contradictions, or shifting explanations for terminating an
12
Plaintiff has presented evidence that Defendant offered various reasons for his
13
termination. (See Doc. 67 at 8.) In a January 31, 2014 termination letter, Defendant stated
14
that it was terminating Plaintiff without cause and did provide any specific reason for his
15
termination. (See DSOF, Exs. 21, 31.) In a December 2014 position statement with the
16
EEOC, Defendant stated that it terminated Plaintiff’s employment contract without cause.
17
(PSSOF, Ex. F.) In the portion of its EEOC position statement discussing the legitimate
18
reasons for Plaintiff’s termination, Defendant stated that it terminated Plaintiff due to his
19
“utter lack of productivity.” (Id.; Doc. 68-1 at 365.) Defendant stated that it gave Plaintiff
20
the opportunity to keep his job by improving his productivity or by decreasing his salary
21
to reflect his low productivity. (Id.) In a section of its EEOC position statement describing
22
Plaintiff’s “poor productivity,” Defendant discussed ways in which Plaintiff had “cost
23
KRMC money” including his failure to generate sufficient RVUs compared to his
24
compensation, inefficient use of OR block time, referral of patients to outside clinics,
25
refusal to collect co-pays from patients, and a failure to comply with EMR protocols, which
26
cost KRMC because it led to bills not being collected. (PSSOF, Ex. F.) In its EEOC
27
position statement, Defendant cast these productivity issues as financial burdens to KRMC.
28
(Id.)
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1
In this proceeding, Defendant has stated that it terminated Plaintiff because of his
2
“multiple concerns” about his “performance and attitude.” (DSOF ¶ 4; Blanchard Depo. at
3
66-69, 88-89; Merritt Depo. at 39, 88-89; Turney Depo. at 154.) In addition to the reasons
4
provided in its EEOC position statement, Defendant asserts that that it terminated Plaintiff
5
based on his “attitude,” his continued prescription of Tylenol with Codeine after the death
6
of pediatric patient in June 2013, and a potential EMTALA violation. (DSOF ¶ 4; Doc. 56
7
at 4-5, 7-8.)
8
termination in this proceeding that it did not include its EEOC position statement is
9
sufficient to create a triable issue on pretext.
Evidence that Defendant offered at least some reasons for Plaintiff’s
10
The Court concludes that Plaintiff has shown a material issue of fact regarding
11
whether Defendant’s proffered reasons for his termination were pretextual. The Court,
12
therefore, denies Defendant’s motion for summary judgment on the ADEA disparate
13
treatment claim asserted in Count Three.
14
V.
Retaliation Claim
15
In Count Five, Plaintiff asserts a claim of retaliation in violation of Title VII and the
16
ADEA. (FAC at ¶ 65-68.) Plaintiff alleges KRMC retaliated against him in violation of
17
Title VII and the ADEA when, after he filed his post-termination EEOC charge in
18
September 2014, KRMC settled the M.G. Lawsuit against Plaintiff’s wishes in
19
approximately November 2015 and refused “to provide Plaintiff either with counsel or
20
reimbursement for his legal costs associated with the Arizona Medical Board inquiry” on
21
or about December 8, 2015. (FAC ¶ 65; DSOF ¶ 36.) Defendant argues that these claims
22
were not asserted in Plaintiff’s EEOC charge of discrimination and are time barred.
23
(Doc. 56 at 16-17.)
24
Exhausting administrative remedies by filing a timely charge with the EEOC or the
25
appropriate state agency is a statutory pre-requisite for an employee to pursue litigation
26
under both Title VII and the ADEA. See Alexander v. Gardner-Denver Co., 415 U.S. 36,
27
47 (1947); 29 U.S.C. § 626(d)(1).
28
discrimination not included in an EEOC charge” if “the new claims are like or reasonably
The court’s jurisdiction includes “[i]ncidents of
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1
related to the allegations contained in the EEOC charge.” Green v. Los Angeles Cty
2
Superintendent of Sch., 883 F.2d 1472, 1475–76 (9th Cir. 1989) (internal quotation marks
3
omitted); see also Lyons v. England, 307 F.3d 1092, 1104 (9th Cir. 2002)). When
4
“determining whether an allegation . . . is like or reasonably related to allegations
5
contained in a previous EEOC charge, the court inquires whether the original EEOC
6
investigation would have encompassed the additional charges.” Green, 838 F.2d at 1475-
7
76. The court “should consider a plaintiff’s claims to be reasonably related to allegations
8
in the charge to the extent that those claims are consistent with the plaintiff’s original theory
9
of the case.” B.K.B. v. Maui Police Dep’t., 276 F.3d 1091, 1100 (9th Cir. 2002).
10
Plaintiff does not directly address whether his EEOC charge did not include a
11
retaliation claim. (Doc. 67 at 16.) Rather, Plaintiff argues that he was not required to
12
exhaust his claims of retaliation because the alleged retaliation occurred after he filed his
13
EEOC charge, but before the EEOC issued its right to sue letter. (Doc. 67 at 16 (citing
14
Lyons, 307 F.3d at 1104).) Lyons, however, does not support Plaintiff’s argument that his
15
claims of retaliation that were not included in his EEOC charge are automatically
16
administratively exhausted simply because the charge was pending when the alleged
17
retaliation occurred. Rather, Plaintiff must demonstrate that those alleged incidents of
18
retaliation are like or reasonably related to the allegations in the charge. See Green, 883
19
F.2d at 1475-76; see also Lyons, 307 F.3d at 1108. Plaintiff does not provide any argument
20
that his retaliation claims are like or reasonably related to the allegations in his EEOC
21
charge. (Doc. 67.)
22
Defendant argues that Plaintiff’s retaliation claims do not meet this standard.
23
(Doc. 74 at 10.) The Court agrees. Plaintiff’s relation claims relate to the M.G. Lawsuit
24
and the AMB inquiry and are unrelated to the allegations of discrimination related to his
25
termination. The allegations in the EEOC charge of discrimination relate to Plaintiff’s
26
termination and KRMC’s alleged discriminatory hiring and firing practices, and do not
27
mention retaliation. Additionally, the events alleged in the charge of discrimination
28
occurred between late 2012 and January 2014, well before Defendant resolved the M.G.
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1
Lawsuit in November 2015, and considered Plaintiff’s request for legal counsel associated
2
with the AMB inquiry in December 2015. Thus, the EEOC could not have been reasonably
3
expected to investigate Plaintiff’s allegations of retaliation as related to the allegations in
4
the EEOC charge. Plaintiff did not exhaust his retaliation claims and those claims are not
5
“like or reasonably related to” the claims he exhausted.
6
“[S]ubstantial compliance with the presentment of discrimination complaints to an
7
appropriate administrative agency is a jurisdictional prerequisite.” Sommatino v. United
8
States, 255 F.3d 704, 708 (9th Cir. 2001). When an employee entirely fails to exhaust a
9
claim and the claim is not “like or reasonably related to” one that has been exhausted, the
10
court lacks jurisdiction to consider the claim. Id. at 709 (stating that “[i]n cases where the
11
plaintiff has never presented a discrimination complaint to the appropriate administrative
12
authority, the district court does not have subject matter jurisdiction.”). Because Plaintiff
13
has not substantially complied with the exhaustion requirement for his retaliation claims,
14
those claims must be dismissed for lack of jurisdiction.
15
VI.
Conclusion
16
For these reasons, the Court grants summary judgment in favor of Defendant on
17
Plaintiff’s claims of discriminatory termination in violation of Title VII-Religion (Count
18
Two) and denies summary judgment on Plaintiff’s claim of discriminatory termination in
19
violation of the ADEA (Count Three). The Court also dismisses Plaintiff’s retaliation
20
claims in violation of Title VII and the ADEA (Count Five) for lack of jurisdiction.
21
Accordingly,
22
IT IS ORDERED that Defendant’s motion for summary judgment (Doc. 56) is
23
24
25
26
27
GRANTED in part and DENIED in part as follows:
1.
The Court GRANTS summary judgment in favor of Defendant on Plaintiff’s
claims of discriminatory termination in violation of Title VII–Religion (Count Two).
2.
The Court DENIES summary judgment on Plaintiff’s claim of
discriminatory termination in violation of the ADEA (Count Three).
28
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1
2
3
3.
The Court DISMISSES Plaintiff’s retaliation claim in violation of Title VII
and the ADEA (Count Five) for lack of jurisdiction.
Dated this 15th day of March, 2019.
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