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Ward v. Life Care Centers of America Inc.

United States District Court, D. Arizona

August 17, 2018

Bill Ward, Plaintiff,
v.
Life Care Centers of America, Inc., Defendant.

          REPORT AND RECOMMENDATION

          HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE JUDGE.

         Pending 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.

         I. Facts

         On 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).

         On 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).

         As part 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 § 4.3.5.2.2(b)(2). (DSOF Exh. 5, pp 88-89).

         The 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).

         Renn 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).

         On 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 ¶ 65).

         II. Discussion

         A. ...


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