United States District Court, D. Arizona
Honorable Bruce G. MacDonald United States Magistrate Judge
pending before the Court is Defendant Arizona Board of
Regents' Motion for Summary Judgment (Doc. 52). Defendant
has also filed a Statement of Facts in Support of
Defendant's Motion for Summary Judgment
(“SOF”) (Doc. 53). Plaintiff filed his Motion for
Summary Judgment (Doc. 54), which the Court construed as a
response to Defendant's motion. See Order
11/28/2017 (Doc. 55). Plaintiff also filed a Supplemental
Brief (Doc. 56), per the Court's November 28, 2017 Order
(Doc. 55). Defendant replied (Doc. 59) to both of
Plaintiff's responses. As such, the motion is fully
briefed and ripe for adjudication.
discretion, the Court finds this case suitable for decision
without oral argument. See LRCiv. 7.2(f). The
Parties have adequately presented the facts and legal
arguments in their briefs and supporting documents, and the
decisional process would not be significantly aided by oral
argument. . . . . . . . . .
Plaintiff's Employment at the University of
Wanmei Ni began employment with the University of Arizona
(“U of A” or “University”) in 1987 in
the Tree Ring Laboratory. Def.'s SOF (Doc. 53), U of A
Human Resources file for Pl. (Exh. “2”) at Bates
No. ABOR0446; see also Def.'s SOF (Doc. 53)
Johnson Decl. (Exh. “1”) at ¶ 3. Plaintiff
continued working at the University, and in 1997 began
working in the School of Renewable Natural Resources.
Id., Exh. “2” at Bates No. ABOR0446,
ABOR0449, ABOR0454; see also Def.'s SOF (Doc.
53), Exh. “1” at ¶ 4. Plaintiff resigned
from the U of A in the year 2001. Id., Exh.
“2” at Bates No. ABOR0449, ABOR0454.
returned to the U of A for employment in 2007 as an Animal
Care Technician in the department of University Animal Care.
Def.'s SOF (Doc. 53), Exh. “2” at Bates No.
ABOR0448, ABOR0454. Plaintiff remained in this position for
just over five (5) years, until his dismissal on August 6,
2012. Id., Johnson Ltr. to Ni 8/6/2012 (Exh.
“4”) at Bates No. ABOR0059-ABOR0061. On July 17,
2017, Plaintiff was rehired by the University of Arizona as a
Research Technician in the Geosciences Department.
Id., Dettman Ltr. to Ni 6/22/2017 (Exh.
“2”) at Bates No. ABOR0443- ABOR0445.
University Department of Animal Care
department of University Animal Care is responsible for
ensuring the humane care and use of all animals associated
with the University's research and teaching programs.
Def.'s SOF (Doc. 53), Johnson Decl. 11/6/2017 (Exh.
“1”) at ¶ 9. The department exists under the
auspices of the Vice President for Research. Id.,
Exh. “1” at ¶ 9. The Institutional Animal
Care and Use Committee (“IACUC”) oversees the
University's Animal Care and Use Program, and ensures
compliance with federal and state laws, regulations, and
guidelines governing the care, use and housing of animal
subjects used in research, testing, and teaching.
Id., Exh. “1” at ¶ 10. The
University's Animal Care and Use Program is centralized
under the University Animal Care Department, and meets or
exceeds all requirements set forth by the IACUC.
Id., Exh. “1” at ¶ 10.
Additionally, the facilities and animal care program are
accredited by the Association for Assessment and
Accreditation of Laboratory Animal Care International
(“AAALAC”). Id., Exh. “1” at
¶ 11. Further, the University Animal Care Department is
a Registered Research Facility with the United States
Department of Agriculture, and has a National Institutes of
Health Office of Laboratory Animal Welfare Assurance
Statement. Response (Doc. 53), Exh. “1” at ¶
Animal Technician position paid approximately $9.30 per hour,
and his job responsibilities included cleaning and sanitizing
laboratory mice and rat cages, as well as feeding and
disposing of laboratory mice and rats. Id., Exh.
“1” at ¶ 13. These duties were to be
performed in accordance with strict standard operating
procedures and other policies. Id., Exh.
“1” at ¶ 13. A failure to adhere to the
standard operating procedures and policies risks placing the
University of Animal Care department out of compliance with
applicable legal and regulatory requirements. Id.,
Exh. “1” at ¶ 14. Such a failure could also
invalidate the results of research being conducted.
Id., Exh. “1” at ¶ 14.
Plaintiff's Job Performance
the approximately five (5) years and one (1) month that
Plaintiff worked as an Animal Technician, he made and
repeated basic errors and failed to follow standard operating
procedures and policies more than any other Animal
Technician. Def.'s SOF (Doc. 53), Exh. “1” at
¶ 16. As a result of these errors, Plaintiff's
supervisors, as well as University Animal Care management,
communicated and counseled Plaintiff, and challenged him to
improve. Id., Exh. “1” at ¶ 16.
Among those who counseled Plaintiff were his supervisors,
Miguel Diaz and David White, and Director Susan
Wilson-Sanders, subsequent Director David Besselsen, and
Facility Coordinator Cheryl Johnson. Id., Exh.
“1” at ¶¶ 17-18.
Miguel Diaz was Plaintiff's immediate supervisor.
Id., Exh. “1” at ¶ 19. In 2010,
David White was promoted to lead supervisor for the cage wash
area, and took over supervision of Plaintiff with respect to
cage wash related responsibilities. Id., Exh.
“1” at ¶ 19. At that time, Plaintiff's
position included both animal room/animal husbandry related
responsibilities, as well as cage wash related
responsibilities. Def.'s SOF (Doc. 53), Exh.
“1” at ¶ 19. As such, Miguel Diaz continued
to be Plaintiff's supervisor with respect to his animal
room/animal husbandry related responsibilities. Id.,
Exh. “1” at ¶ 19. On August 22, 2011,
Plaintiff was removed from any further animal room/animal
husbandry related responsibilities. Id., Exh.
“1” at ¶ 19. This move was a result of both
restructuring and Plaintiff's performance problems.
Id., Exh. “1” at ¶ 19.
Disciplinary warnings and probation
October 20, 2009, Miguel Diaz issued a written warning to
Plaintiff regarding the latter's “failure to
provide consistent quality attention to work details.”
Def.'s SOF (Doc. 53), Diaz Ltr. to Ni 10/20/2009 (Exh.
“3”) at Bates No. ABOR0041. On July 13, 2011, Mr.
Diaz again warned Plaintiff regarding his “fail[ure] to
perform [his] assigned duties for the day.”
Id., Diaz Ltr. to Ni 7/13/2011 (Exh.
“3”) at Bates No. ABOR0043. On August 17, 2011,
Mr. Diaz warned Plaintiff yet again regarding his
“failure to provide consistent quality attention to
work details.” Id., Diaz Ltr. to Ni 8/17/2011
(Exh. “3”) at Bates No. ABOR0044; see
also Def.'s SOF (Doc. 53), Documentation of
Continual Performance Issues (Exh. “3”) at Bates
No. ABOR0162. Plaintiff appealed this last warning to the
Director, who upheld Mr. Diaz's warning. Id.,
Wilson-Sanders Ltr. to Ni 9/26/2011 (Exh. “3”) at
Bates No. ABOR0047-ABOR0049. David White documented
additional instances regarding Plaintiff's failure to
follow policy in November and December 2011. Def.'s SOF
(Doc. 53), Documentation of Continual Performance Issues
(Exh. “3”) at Bates No. ABOR0163.
early 2012, Plaintiff's ongoing unsatisfactory job
performance resulted in a decision to place him on a
six-month disciplinary probation period, beginning on January
27, 2012. Id., Exh. “1” at ¶ 20
& Johnson & White Ltr. to Ni 1/27/2012 (Exh.
“3”) at Bates No. ABOR0050-ABOR0051. This
decision was made jointly by University Animal Care
management and supervisors. Id., Exh.
“1” at ¶ 20 & Exh. “3” at
Bates No. ABOR0050-ABOR0051. The disciplinary probation
period was to provide Plaintiff with a final opportunity to
improve to a satisfactory level. Id., Exh.
“1” at ¶ 20 & Exh. “3” at
Bates No. ABOR0050-ABOR0051.
Plaintiff's disciplinary probation period, Plaintiff met
with Dr. David Besselsen, Director of the University Animal
Care Department. See Def.'s SOF (Doc. 53),
Besselsen Ltr. to Wagner 11/1/2012 (Exh. “5”) at
Bates No. ABOR0172- ABOR0173. Dr. Besselsen emphasized to
Plaintiff that “it was critical for him to follow
[Standard Operating Procedures] as written, to ask questions
of his supervisors for clarification if needed, to slow down
if needed to ensure he followed [Standard Operating
Procedures] correctly, and to suggest improvements for
[Standard Operating Procedures] to David White, but to not
change [Standard Operating Procedures] himself.”
Id., Exh. “5” at Bates No. ABOR0172. Dr.
Besselsen “also informed [Plaintiff] that he ha[d] a
pattern of not following procedure that extend[ed] over
several years despite coaching and retraining, and that this
ha[d] severely eroded the trust [of his supervisors] . . . in
his ability to correctly follow
procedure[.]” Id., Exh. “5” at
Bates No. ABOR0172. Also during Plaintiff's disciplinary
probation period, Plaintiff made additional errors, and
failed to adhere to applicable Standard Operating Procedures
and policies. See Def.'s SOF (Doc. 53), Johnson
and White Ltr. to Ni 7/27/2012 (Exh. “4”) at
Bates No. ABOR0056-ABOR0058 (pre-discharge letter outlining
additional errors) & Johnson and White Ltr. to Ni
8/6/2012 (Exh. “4”) at Bates No.
ABOR0059-ABOR0061 (discharge letter reiterating errors by
Plaintiff during disciplinary probation) & White Mem. to
File (Exh. “4”) at Bates No. ABOR0164-ABOR0171
(recounting ongoing issues with Plaintiff's work).
Plaintiff claims that in “late June or early July, . .
. the department supervisor Cheryl Johnson, with another
management person, brought a document of the discharge
warning for one [sic] month probation period[, ] . . . and
hurried the Plaintiff to sign the paper[.]” Response
(Doc. 54) at 4. Plaintiff claims he did not receive a copy of
the document. Id. As a result of Plaintiff's
ongoing shortcomings, Plaintiff was discharged from his
position as an Animal Care Technician with the U of A's
University Animal Care Department on August 6, 2012.
See Def.'s SOF (Doc. 53), Exh. “4”
at Bates No. ABOR0056-ABOR0061. No other University Animal
Care Department employee was on disciplinary probation for
unsatisfactory job performance, or otherwise, from December
20, 2011 through August 6, 2012. Id., Exh.
“1” at ¶ 25.
his discharge, Plaintiff appealed the action pursuant to
University of Arizona procedure. See Def.'s SOF
(Doc. 53), U of A Staff Dispute Resolution Proc. Hr'g
Rpt. 10/19/2012 (Exh. “7”) & Comrie Ltr. to
Ni 3/12/2013 (Exh. “8”). “On October 19,
2012, an appeal hearing was held concerning the discharge of
Wanmei Ni . . . by the University of Arizona Animal Care
Department[.]” Def.'s SOF (Doc. 53), Exh.
“7” at ABOR0245. At that hearing, the University
Animal Care Department was represented by Cheryl Johnson, and
Plaintiff was also present. Id., Exh.
“7” at Bates No. ABOR0245. Neither party was
represented by legal counsel. Id., Exh.
“7” at Bates No. ABOR0245. Upon making findings
of fact and conclusions, “the three panel members
unanimously recommend[ed] that the termination of Ni's
employment be upheld, and that his appeal with respect
thereto be denied.” Id., Exh. “7”
at Bates No. ABOR0250. On March 12, 2013, Senior Vice
President for Academic Affairs and Provost Dr. Andrew C.
Comrie reviewed Plaintiff's appeal pursuant to university
policy. Id., Exh. “8” at Bates No.
ABOR0251-ABOR0255. After review of “the entire record
presented in this matter, including the transcript of the
appeal hearing, the various notices related to
[Plaintiff's] discharge, and the exhibits offered by the
parties and admitted into the record, and careful
consider[ation] [of] the Panel's Findings, Conclusions
and Recommendations[, ]” Dr. Comrie “accept[ed]
the Hearing Panel's findings of fact, conclusions, and
recommendation, . . . [and] reject[ed] [Plaintiff's]
appeal.” Id., Exh. “8” at Bates
Discriminatory remarks and conduct
alleges that “one morning [in] May, 2012, one coworker
Mr. Michael Anderson, who is very closed [sic] to the
supervisor of Mr. David White, came to the plaintiff in the
lunch break room of the facility, point on [sic] the
plaintiff and said, “you, Chinese, Chink[.]”
Amended Compl. (Doc. 26) at 2:39-42. Plaintiff again mentions
this incident in his Supplemental Brief (Doc. 56) responding
to Defendant's motion for summary judgment. Plaintiff
states that there was a witness, whose name he has
forgotten. Plaintiff suggests that “this
happened on several occasions[, ]” and alleges that
“Mr. David White . . . simply turned a deaf-ear of
[sic] Mr. Michael Anderson [sic] slurs and never stopped Mr.
Michael Anderson's such [sic] behavior, even though he
was fully aware of the nature of what's [sic]
happening.” Pl.'s Response (Doc. 54) at ¶ 1.
also states that “[d]uring the breaks, the colleagues,
including Mr. David White, often gathered to chat and tell
jokes, but the Plaintiff liked to make better use of the time
by practising [sic] writing Chinese and Tibetan characters on
waste papers, which irritated Mr. David White[.]”
Response (Doc. 54) at ¶ 2. Plaintiff alleges that
“on several occasions during the break, Mr. David White
was laughing or joking with other co-workers, but immediately
stopped smile and changed to a scowl face when he saw the
Plaintiff walked into the working place[, ] [and] . . . Mr.
David White told the Plaintiff to stop writing the Chinese