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Starling v. Banner Health

United States District Court, D. Arizona

January 29, 2018

Mark Starling, M.D., Plaintiff,
v.
Banner Health, an Arizona corporation, Defendant.

          ORDER

          Neil V. Wake Senior United States District Judge

         Before the Court is Defendant Banner Health's Motion for Reconsideration of the Court's January 12, 2018 Ruling (Doc. 301). For the following reasons, the motion will be denied.

         I. LEGAL STANDARD

         “The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). “Any such motion shall point out with specificity the matters that the movant believes were overlooked or misapprehended by the Court.” Id. “No motion for reconsideration of an Order may repeat any oral or written argument made by the movant in support of or in opposition to the motion that resulted in the Order.” Id.

         II. ANALYSIS

         Defendant Banner Health (“Banner”) urges reconsideration of the Court's Order regarding its Motion for Summary Judgment (“Order”) (Doc. 296). It presents almost exclusively arguments contained in its previous motions. That alone is grounds for denying its motion. See LRCiv 7.2(g)(1). Nevertheless, the Court addresses the arguments in more detail below.

         A. Count I: ADEA Termination

         Banner argues that the Court “overlooked material facts” and committed “a clear error of law” with respect to Count I. (Doc. 301 at 6.) It is wrong for several reasons.

         Banner ignores Douglas v. Anderson, 656 F.2d 528 (9th Cir. 1981), which the Court explicitly considered in its Order. (See Doc. 296 at 14.) There is no per se rule that a replacement must be a certain number of years younger than the plaintiff in order for the plaintiff to meet his prima facie burden. “If the replacement is only slightly younger than the plaintiff, then it is less likely that an inference of discrimination can be drawn. However, replacement by even an older employee will not necessarily foreclose prima facie proof if other direct or circumstantial evidence supports an inference of discrimination.” Id. at 533 (emphases added). It is a case-by-case determination. As the Ninth Circuit has explained, “In each case the trier must determine whether the evidence identifies age as the likely reason for the discharge.” Id. And the “requisite degree of proof necessary to establish a prima facie case for . . . ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 888-89 (9th Cir. 1994). In Douglas, the court found the plaintiff met his prima facie burden when his replacement was a mere five years younger but the plaintiff had supplied substantial evidence of satisfactory job performance. 656 F.2d at 533. For the reasons explained in the Order, Starling met his prima facie case under Douglas.

         In addition, Banner cites Ferlise v. JP Morgan Chase Bank, Nat'l Ass'n, No. CV-11-01783-PHX-ROS, 2013 WL 5291143 (D. Ariz. Sept. 3, 2013), for the proposition that cases in most circuits have demonstrated that a difference of less than ten years is not significant. (Doc. 301 at 3.) But there the court also noted both that the “Ninth Circuit has not decided what qualifies as ‘substantially younger'” and that “courts routinely require an age difference of at least six years.” 2013 WL 5291143, at *3. Starling's replacement was seven years younger than he, and consistent Douglas, there was more than enough evidence to meet the prima facie burden.

         Banner also argues that the Court improperly focused on “indicia of impairment, ” rather than Banner's Testing Policy, which defines impairment. (Doc. 301 at 4-5 (emphasis removed).) First, whether Starling actually appeared to be impaired is an important issue for the jury with respect to deciding whether Banner had good reason to test him. More importantly, Banner's Testing Policy deems an employee “impaired” if his BAC meets or exceeds 0.02-but only if the employee is working. Despite Banner's contrary assertion, there is evidence to suggest that Starling was not “working” at the Holiday Party. For example, the reminder email was specifically styled as a request; Starling had not attended in previous years and was never disciplined for it; and other Banner officers who were deposed could not say whether it was required. A reasonable juror could conclude that Banner's Testing Policy did not apply under the circumstances.

         Banner makes much of the fact that alcohol was not being served at this event- the Holiday Party. That is irrelevant. What matters is whether Starling was working and could be deemed impaired under Banner's Testing Policy. It is crucial to understand what it means to be “working.” If other employees were “working, ” drinking, and not being tested at events where Banner did serve alcohol, events designed for similar morale-boosting purposes, then Banner may have arbitrarily enforced its Testing Policy.

         It is disingenuous for Banner to assert that Starling “produced no evidence identifying” other employees he believed were impaired at work but who were not subject to Banner's Testing Policy. (Doc. 301 at 4.) Starling does not need to point to specific examples of employees who were tested, blew a 0.02 or above, and were not fired. He did what he needed to do: he showed that other, similarly situated employees drank at official Banner events and were not tested. Given Starling's account of his superiors' hostility toward him, a reasonable juror could conclude that they exhibited discriminatory animus in deciding to test him in a primarily social setting and to fire him for the results.

         Finally, Banner makes this perplexing claim: “Under [the Court's] reasoning, Banner could never have any rule barring a physician from operating with an elevated BAC if it also chose to serve alcohol at an employee retreat or awards ceremony.” (Doc. 301 at 5.) Nothing in the Court's Order justifies such a result. The entire point is that it is unclear whether Starling was “working”; if he was “operating, ” there would be no dispute that he was working. In fact, in ruling in Banner's favor on Starling's defamation claim, the Court ...


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