United States District Court, D. Arizona
Douglas L. Rayes, United States District Judge
the Court is Defendants Banner Pediatric Specialists, LLC,
Banner Health Network, and Banner Medical Group's
(collectively Banner) Partial Motion to Dismiss. (Doc. 12.)
The motion is fully briefed, and neither party requested oral
argument. For the reasons below, the motion is granted.
Emad Zaki is a physician specializing in pediatric
nephrology. (Doc. 18, ¶ 16.) In 2010, Banner hired Zaki
to provide pediatric nephrology care and on-call coverage.
(Id., ¶ 25.) Pursuant to a Physician Employment
Agreement (PEA), Zaki's on-call coverage obligation was
not to exceed “fifty percent (50%) of [Banner's]
coverage burden for the Physician's specialty.”
(Id., ¶ 27.) Banner assured Zaki that it would
hire a second pediatric nephrologist so that Zaki would not
be responsible for all on-call coverage for his specialty.
(Id., ¶ 29.) In the event Zaki worked more than
his contractual on-call coverage obligation, he was to
receive ninety dollars per hour for such work. (Id.,
¶ 31.) The PEA further provided that Zaki was entitled
to twenty-eight days of paid time off (PTO) annually.
(Id., ¶ 32.) Banner, however, did not hire
another pediatric nephrologist during Zaki's tenure,
which caused him to perform all on-call coverage
responsibilities for his medical specialty and not use any
PTO. (Id., ¶¶ 33-35.)
3, 2014, Zaki took leave from Banner to care for his father
in Egypt. (Id., ¶ 38.) While there, Zaki
suffered a serious brain injury in a car accident.
(Id., ¶ 39.) Due to his injury, Zaki was unable
to obtain medical clearance to resume work at Banner.
(Id., ¶ 40.) On December 29, 2014, Banner sent
Zaki an email informing him that he would be terminated
without cause, effective March 29, 2015. (Id.,
in April 2015, after Zaki's effective termination date,
several physicians employed by Banner received incentive
payments under Banner's Physician Incentive Plan (PIP)
for their performance in 2014. (Id., ¶ 43.)
Zaki did not receive an incentive payment for his performance
in 2014, despite his performance metric being equal to or
better than many of the physicians who received incentive
payments. (Id., ¶ 44.)
October 26, 2015, Zaki filed a charge with the Equal
Employment Opportunity Commission (EEOC) alleging various
forms of discrimination during his tenure at Banner.
(Id., ¶ 45.) He received notice of right to sue
from the EEOC on May 20, 2016. (Id., ¶ 47.) On
April 25, 2016, Zaki filed a complaint against Banner in
Maricopa County Superior Court. (Id., ¶ 51.)
Zaki voluntarily dismissed his state court complaint on June
14, 2016 and concurrently filed an identical lawsuit in this
Court. (Id., ¶ 52.) On August 22, 2016, Banner
filed a partial motion to dismiss, arguing that several of
Zaki's claims are time-barred. (Doc. 12.)
task when ruling on a motion to dismiss “is to evaluate
whether the claims alleged [plausibly] can be asserted as a
matter of law.” See Adams v. Johnson, 355 F.3d
1179, 1183 (9th Cir. 2004); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). When analyzing the
sufficiency of a complaint, the well-pled factual allegations
are taken as true and construed in the light most favorable
to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009). Legal conclusions couched as factual
allegations, however, are not entitled to the assumption of
truth, Iqbal, 556 U.S. at 680, and therefore are
insufficient to defeat a motion to dismiss for failure to
state a claim, In re Cutera Sec. Litig., 610 F.3d
1103, 1108 (9th Cir. 2008).
moves to dismiss as untimely Zaki's breach of contract
and statutory unpaid wage claims, as well as those of his
discrimination claims that are based on alleged adverse
actions that occurred on or before June 3, 2014, the last day
of Zaki's active employment.
Breach of Contract Claims
Count VI of the Amended Complaint, Zaki alleges that Banner
breached the PEA by failing to: (1) compensate him for excess
on-call coverage, (2) hire an additional physician
specializing in pediatric nephrology, thereby causing him to
be unable to use his accrued PTO, (3) compensate for his
unused PTO, (4) pay his base salary during the ninety-day
termination notice period, and (5) pay him a PIP incentive
for 2014. (Doc. 18, ¶¶ 103-107.) Under Arizona law,
breach of employment contract actions must be brought within
one year of accrual. A.R.S. § 12-541(3). A breach of
contract action generally accrues at the time the contract is
breached. See Angus Med. Co. v. Digital Equip.
Corp., 840 P.2d 1024, 1027 (Ariz.Ct.App. 1992). Under
the discovery rule, however, “a plaintiff's cause
of action does not accrue until the plaintiff knows or, in
the exercise of reasonable diligence, should know the facts
underlying the cause.” Gust, Rosenfeld &
Henderson v. Prudential Ins. Co., 898 P.2d 964, 966
(Ariz. 1995). Thus, Zaki's contract claims are timely
only if they were brought within a year after he knew or
reasonably should have known the underlying facts.
contract claims are time-barred because they accrued over a
year before June 14, 2016, the date he filed this action.
Several of the alleged breaches occurred sometime in 2014.
First, the PEA required Banner to compensate Zaki for excess
on-call coverage “within thirty (30) days of the end of
each calendar quarter.” (Doc. 18-1 at 18.) Zaki's
last day of active employment was June 3, 2014. Thus,
Zaki's claim that Banner failed to compensate him for
excess on-call coverage accrued on July 30, 2014, the last
date upon which Banner would have owed him compensation from
excess on-call coverage. Similarly, Zaki's claim that
Banner failed to provide relief from excess on-call coverage
by hiring an additional specialist accrued, at the latest, on
June 3, 2014. Given that Banner allegedly failed to provide
relief from excess on-call coverage throughout Zaki's
employment, Zaki certainly would have known that a cause of
action existed by his last day of work. Finally, Zaki's
claim that Banner failed to compensate him for unused PTO
accrued, at the latest, by the end of 2014, the last year in
which Zaki could have accrued PTO. The PEA provides that Zaki
was entitled to twenty-eight days of PTO per year, and that
unused PTO does not carry over from year to year. (Doc. 18-1
at 19.) Notably, the PEA does not state that ...