Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ni v. University of Arizona

United States District Court, D. Arizona

March 19, 2018

Wanmei Ni, Plaintiff,
v.
University of Arizona, Defendant.

          ORDER

          Honorable Bruce G. MacDonald United States Magistrate Judge

         Currently 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.

         In its 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. . . . . . . . . .

         I. FACTUAL BACKGROUND

         A. Plaintiff's Employment at the University of Arizona-Overview

         Plaintiff 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.[1] Id., Exh. “2” at Bates No. ABOR0449, ABOR0454.

         Plaintiff 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.

         B. University Department of Animal Care

         The 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 ¶ 12.

         Plaintiff's 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.

         C. Plaintiff's Job Performance

         1. Overview

         During 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.

         Initially, 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.

         2. Disciplinary warnings and probation

         On 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[2] (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.

         In 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.

         During 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[.]”[3] 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.

         3. Appeal

         Following 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 No. ABOR0251-ABOR0255.

         D. Alleged Harassment

         1. Discriminatory remarks and conduct

         Plaintiff 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.[4] 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.”[5] Pl.'s Response (Doc. 54) at ¶ 1.

         Plaintiff 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.