Before the Court is Defendants' Motion for Summary Judgment (Dkts. 67, 68). Plaintiff filed a response.*fn1 (Dkt. 73). Plaintiff also filed a Motion to Strike Portions of Defendant Rinaudo's Affidavits (Dkt. 77), and a Motion to Strike Portions of Mary M. Black Tim Martinson-Affidavits For Summary Judgment (Dkt. 78). For the reasons discussed herein, Defendants' Motion for Summary Judgment (Dkts. 67, 68) is granted, and Plaintiff's motions to strike (Dkts. 77, 78) are denied.
This action stems from the decision of the State of Arizona Board of Behavioral Health Examiners (hereinafter "BBHE") to revoke Plaintiff's Clinical Social Work license because it concluded that Plaintiff was a threat to the public's health, welfare, and safety. (Dkt. 14; Dkt. 68; Dkt. 69, Defendants' Statement of Facts ("DSOF") ¶ 10). Defendant, Debra Renaudo, is the Executive Director of the BBHE. (DSOF ¶ 2). The BBHE regulates the behavioral health profession in Arizona. See A.R.S. §§ 32-3251, et seq.; A.A.C. R4-6-8 101, et seq. The other named State Defendants are either present or past members of the Board of Social Work Credentialing Committee (hereinafter "SWCC"). (DSOF ¶ 2).
A. The BBHE's Investigation
In February of 2003, Plaintiff submitted an application for license renewal to the BBHE, disclosing that he had been involuntarily terminated from his position at ValueOptions, a social services company. (DSOF ¶ 3, Ex. B). This disclosure prompted the BBHE to open an investigation. (DSOF ¶ 4). Through its investigation, the BBHE learned that Plaintiff had failed to inform the BBHE that he had also been terminated from two other social service organizations and had resigned from a third. (DSOF ¶ 4). After his termination from ValueOptions, Plaintiff was hired by Arizona Youth Associates, but failed to disclose on his employment application that he had been terminated from ValueOptions. (DSOF ¶ 5). Thereafter, Plaintiff was terminated from Arizona Youth Associates. (DSOF ¶ 4). Following his termination from Arizona Youth Associates, Plaintiff submitted an employment application to Terros, Inc., for a position as a clinician, but did not disclose on his employment application that he had been terminated from either ValueOptions or Arizona Youth Associates. (DSOF ¶ 6). Plaintiff then resigned from Terros, Inc. after his forensic drug test results were positive for marijuana. (DSOF ¶ 6). Plaintiff was subsequently hired by Black Family and Child Services as an independent contractor, but was terminated a few months later.*fn3 (DSOF ¶ 7). The BBHE learned that the employers that had terminated Plaintiff did so for various reasons, including unprofessional and inappropriate behavior with clients, rude and confrontational behavior with co-workers, late submittal of paperwork, poor interpersonal and clinical abilities, and poor documentation skills. (DSOF ¶ 8). Plaintiff offers evidence that he had received an above average performance evaluation at ValueOptions five weeks before his termination and two favorable performance evaluations in prior jobs with different employers, (PSOF ¶ 8), but this evidence does not contradict Defendants' evidence, nor is it relevant to the issues before the Court.
B. The Administrative Hearing & Judicial Review
On December 20, 2004, following its investigation, the BBHE issued a Notice of Hearing and Complaint, and scheduled a formal administrative hearing before the Administrative Law Judge ("ALJ") in the Office of Administrative Hearings. (DSOF ¶ 9, Ex. L). Plaintiff had the opportunity to present evidence and examine witnesses, though Plaintiff claims the ALJ "denied" his "legal right to make a legal 'offer of proof' as it relates to evidence." (DSOF ¶ 9; PSOF ¶¶ 9, 10, 11). On May 24, 2005, before the ALJ's decision, Plaintiff filed the current lawsuit in this Court. (Dkt. 1, DSOF Ex. M). On June 9, 2005, the ALJ recommended that Plaintiff's Social Work license be revoked. (DSOF ¶ 10, Ex. M). On August 25, 2005, Plaintiff filed a Complaint for Judicial Review of Administrative Decision in the Maricopa County Superior Court ("Superior Court"), No. LC2005-000641-001 DT. (DSOF ¶ 11, Ex. O). On July 17, 2006, the Superior Court issued its decision upholding BBHE's decision to revoke Plaintiff's license. (DSOF ¶ 11, Ex. P). The Superior Court specifically held that (1) "The [BBHE's] decision is supported by substantial evidence and is not contrary to law, arbitrary, capricious, or an abuse of discretion[;]" (2) "The [BBHE's] decision was not the result of illegal bias or prejudice[;]" and (3) "Plaintiff was afforded due process of law in the proceedings." (DSOF ¶ 11, Ex. P).
II. Plaintiff's Motion to Strike & Objections to Defendants' Evidence
Plaintiff filed objections to Defendants' evidence as well as two motions to strike portions of the affidavits of Debra Rinaudo, Mary M. Black, and Tim Martinson. (Dkts. 77, 78). Plaintiff is correct that only admissible evidence offered by the moving party in support of a motion for summary judgment may be considered. See Fed. R. Civ. P. 56(e); Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). Nonetheless, at the summary judgment stage, the Court does not focus on the admissibility of the form of evidence. Instead, the Court focuses on the admissibility of the content of the evidence and whether it could be presented in any form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
Plaintiff first moves to strike portions of Defendant Rinaudo's affidavit on the basis that Defendant Rinaudo makes "inadmissible statements," does not have "personal knowledge" to make an affidavit, and relies on hearsay. Plaintiff's argument that Defendant Rinaudo lacks personal knowledge is based upon the fact that she conducted interviews with agency heads and some of Plaintiff's peers as part of her investigation and created investigative reports with summaries of her findings from those interviews. Defendant Rinaudo later testified regarding the results of the investigation at Plaintiff's administrative hearing. Defendant Rinaudo has sufficient personal knowledge to testify on the matters in her affidavit. See Fed. R. Evid. 602. Plaintiff's objection really goes to whether the underlying facts upon which Rinaudo bases her conclusions are inadmissible hearsay. Plaintiff's hearsay objections to the documents and statements relied upon by Defendant Rinaudo are unavailing. Under Arizona's Administrative Hearing Procedures, "[a] hearing may be conducted in an informal manner and without adherence to the rules of evidence required in judicial proceedings." A.R.S. § 41-1092.07(F)(1). Moreover, at trial in this matter, these statements and documents could be admitted in some admissible form, whether for a non-hearsay purpose, or via one of the numerous exceptions to the hearsay rule. See, e.g., Fed. R. Evid. 803(5) (written statements can be entered into evidence as a recorded recollection); Fed. R. Evid. 803(8) (the "public records and reports" exception admits "factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."). Thus, the Court will not strike the affidavit of Defendant Rinaudo. Plaintiff next moves to strike portions of the Mary M. Black and Tim Martinson affidavits. Defendants point out that Plaintiff filed this very same motion in Robinson v. Black Family & Child Services, et. al, Case No. 03-1534-PHX-RCB. The Court hereby incorporates the opinion in that prior case by reference, and adopts the holding therein. See Dkt. 103, Case No. 03-1534-PHX-RCB. Plaintiff's motion to strike these affidavits is denied in its entirety for the reasons discussed by the Court in Plaintiff's prior case against Black Family & Child Services, all which apply equally here.
III. Summary Judgment Standard
Summary judgment is appropriate "when there is no genuine issue of material fact" such that "the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). All reasonable inferences are drawn in favor of the non-movant. Gibson v. County of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the moving party presents evidence that, taken by itself, would establish the right to a directed verdict at trial, the motion for summary judgment must be granted in the absence of any significant probative evidence tending to support the opposing party's theory of the case. First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968); THI-Hawaii, Inc. v. First Commerce Fin. Corp., 627 F.2d 991, 993-94 (9th Cir. 1980). Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. A factual dispute is genuine if the evidence is such that a rational trier of fact could resolve the dispute in favor of the nonmoving party. Anderson, 477 U.S. at 248. A fact is material if determination of the issue might affect the outcome of the case under the governing substantive law. Anderson, 477 U.S. at 248. Thus, a party opposing a motion for summary judgment cannot rest upon bare allegations or denials in the pleadings, but must set forth specific facts ...