United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE
before the Court is Defendant's Motion for Summary
Judgment (Doc. 51) filed on March 30, 2018. Plaintiff Bill
Ward responded on April 30, 2018 (Doc. 56) and Defendant Life
Care Centers of America, Inc. replied on May 15, 2018 (Doc.
58). The Magistrate Judge recommends that Life Care's
Motion be granted.
September 2014, Plaintiff Bill Ward (“Plaintiff”)
began working for Life Care Centers of America, Inc.
(“Life Care”) as a Maintenance Supervisor in a
nursing facility in Sierra Vista, Arizona (the
“Facility”). (Plaintiff's Amended Complaint
(“Compl.”), III; Defendant's Separate
Statement of Facts in Support of Motion for Summary Judgement
(“DSOF”) ¶ 1). Plaintiff reported to Joe
Renn, the Executive Director of the Facility. (Amdnded
Compl., ¶ II; DSOF ¶ 2). One of Plaintiff's
duties was to ensure that the Facility was in compliance with
the 2012 edition of the National Fire Protection Association
(“NFPA”) 101: Life Safety Code (hereinafter
“Life Safety Code”). (DSOF ¶ 28).
September 1, 2015, John Fiorentino, a Life Safety Code
Surveyor working for the Arizona Department of Health,
conducted a life safety survey of the Facility. (Compl. IV;
DSOF ¶¶ 25-29). Fiorentino is responsible for
surveying health care facilities for violations of the Life
Safety Code. (Plaintiff's Separate Statement of Facts in
Opposition of Defendant's Statement of Facts in Support
of Its Motion for Summary Judgement (“PSOF”)
¶ 12; DSOF ¶ 26). Additionally, Fiorentino provides
technical assistance to maintenance people who do not have
experience with the Life Safety Code requirements.
(Defendant's excerpts of the Deposition of John
Fiorentino (Fiorentino Dep. #1) p. 32:12-20).
of his job, Fiorentino completed a Life Safety Code Survey,
which listed the specific provisions of the Life Safety Code
or Health Care Facilities Code with which the Facility was
not in compliance. (DSOF ¶ 30). In this survey, among
other things, Fiorentino indicated that full oxygen tanks
were not segregated from the empty tanks in the room where
the Facility stored oxygen tanks (the “oxygen
room”). (DSOF ¶ 32(i)). Fiorentino identified the
failure to segregate the tanks as a violation of Life Safety
Code § 126.96.36.199.2(b)(2). (DSOF Exh. 5, pp 88-89).
oxygen room normally contains 30 to 40 oxygen cylinders, and
sometimes up to 120. (Plaintiff's excerpts of the
Deposition of John Fiorentino (Fiorentino Depo. #2) p.
39:3-7). Due to the sheer quantity of oxygen cylinders in the
oxygen room, Plaintiff sought advice from Fiorentino on what
to do with the partially empty oxygen tanks (to comply with
the code). (Id. p. 39:7-11). Fiorentino gave some
technical assistance to Plaintiff by suggesting that all the
partially full oxygen tanks be placed in a single separate
rack marked “partial.” (Id. p. 39:9-14).
received a copy of the September 2015 Survey on October 5.
(DSOF ¶ 47). Two days later, Plaintiff told Renn he
wanted to add a third rack to the oxygen room based on
Fiorentino's suggestion. (DSOF ¶ 50). Renn
researched the Life Safety Code himself and confirmed with
the director of another medical facility in town that third
rack in the oxygen room is not required. (DSOF ¶ 52)
Renn told Plaintiff that he had done research, and he did not
want a “half full rack” in the oxygen room. (DSOF
¶ 53). Renn inspected the oxygen room twice between
October 7 and October 14, 2015, and found that the oxygen
room still did not have full and empty oxygen cylinders
separated. (DSOF ¶ 55-56). On October 14, 2015, Renn
inspected the oxygen room again and found a third rack still
in the room and told Plaintiff he did not want a half-full
cylinder rack. (DSOF ¶ 57-58).
October 15, 2015, Renn terminated Plaintiff. (DSOF Exh. 2,
S). Renn testified that he fired Plaintiff in part because of
the oxygen room. (Plaintiff's excerpts of the Deposition
of Joseph Renn (Renn Depo. #1) p. 22:7-11). Plaintiff's
Termination Form states:
On 10/5/15, the results of the state survey [were] received.
There were several Life Safety issues that were identified.
During the survey on 9/2/15, per the LS surveyor, John
Fiorentino, Mr. Ward's documentation was not available
nor readily accessible. One major issue was the mixing of
full and empty O2 cylinders . . . .
There have been several occasions since 9/3/15 that Mr. Ward
and I have inspected the O2 Cylinder . . . there were still
mixed O2 cylinders, a rack on the floor of the storage room,
and a ½ full sign that I had asked Mr. Ward to remove
the previous week . . . .
(DSOF ¶ 64). Additionally, the Reason for Termination
section of the Termination Form reads, “Mr. Ward's
unsatisfactory performance of the annual life safety survey
and overall unsatisfactory job performance.” (DSOF