Zaki v. Banner Pediatric Specialists LLC

          ORDER

         Plaintiff Emad Zaki brings this employment discrimination lawsuit against Defendants Banner Pediatric Specialists LLC, Banner Medical Group (“BMG”), and Banner Health Network (collectively “Banner”), with claims arising under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Family and Medical Leave Act (“FMLA”). Zaki also brings a claim for breach of the covenant of good faith and fair dealing. Banner moves for summary judgment on all claims. (Doc. 111.) The motion is fully briefed.^[1] (Docs. 118, 119.) For the following reasons, Banner's motion is granted in part and denied in part.

         BACKGROUND ^[2]

         Zaki is a pediatric nephrologist. He began working for Banner on October 1, 2010. On June 3, 2014, Zaki informed Banner that he was going to Egypt to care for his ailing father. On June 16, 2014, while still in Egypt, Zaki was in an automobile accident in which he suffered a serious traumatic brain injury. Medically unable to return to work, Zaki took FMLA leave. As of September 23, 2014, Zaki had exhausted his FMLA leave, but still was medically unable to return to work. As a result, Banner provided Zaki with additional unpaid leave.

         On October 13, 2014, Jane Goeckel, a Human Resources Consultant with Banner, informed Zaki that he had exhausted his FMLA leave and sought a return-to-work (“RTW”) date. On October 22, 2014, Dr. Carter, Banner's Regional Medical Director, received a text message from Zaki explaining that he still was waiting on a RTW date from his treating providers. On October 27, 2014, Goeckel sent Zaki a letter requesting that he update Banner with the status of his medical leave. The following day, October 28, Zaki informed Goeckel that his RTW date remained uncertain because he had yet to be medically cleared.

         On November 11, 2014, Maria Baier, Zaki's primary care physician, stated that she anticipated Zaki would be medically cleared to return to work within 3 to 5 months. Baier, however, was unable to provide a specific RTW date. Baier also stated that it still was too early for her to predict any accommodations Zaki would require upon his return to work. On November 20, 2014, Zaki emailed Goeckel corroborating Baier's report, stating that he still lacked an exact RTW date, but that his treating physicians estimated he could return within 3 to 5 months.

         On December 5, 2014, Goeckel sought an update from Zaki on his RTW date. On December 21, 2014, Zaki emailed Goeckel, attaching a letter from Baier, in which she estimated that Zaki could return to work in approximately 2 to 4 months.

         During Zaki's ongoing leave of absence, Banner's Human Resources personnel and its physician leadership group had multiple discussion regarding Zaki and the status of his employment. In December 2014, Banner terminated Zaki, offering as its rationale that Zaki's absence and inability to provide a specific RTW date left Banner unable to offer pediatric nephrology services and unable to formulate a plan to provide for such services.

         On December 29, 2014, Dr. Carter and Lisa Phalen, Chief Human Resources Officer of BMG-Arizona East Region, provided Zaki with notice of his termination. The notice explained that Zaki's termination would be effective March 29, 2015, and that if Zaki was released by his physician to return to work during the 90-day notice period, Banner would pay him his base salary for the remainder of the notice period. The next day, Goeckel emailed Zaki with additional notice of his termination. Zaki was not medically cleared to return to work until June 1, 2017, and, even then, it was with limitations and accommodations.

         LEGAL STANDARD

         Summary judgment is appropriate when there is no genuine dispute as to any material fact and, viewing those facts in a light most favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could find for the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The burden then shifts to the non-movant to establish the existence of a genuine and material factual dispute. Id. at 324. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and instead “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation omitted). Conclusory allegations, unsupported by factual material, are insufficient to defeat summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). If the non-movant's opposition fails to cite specifically to evidentiary materials, the court is not required to either search the entire record for evidence establishing a genuine issue of material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988).

         DISCUSSION

         The majority of Zaki's claims arise under Title VII, ADA, ADEA, and FMLA, each of which prohibits various types of employment discrimination. Generally, employment discrimination claims are governed by the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).^[3] See Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000) (Title VII); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988) (ADEA); Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1092 (9th Cir. 2001) (ADA). Under this framework, the plaintiff bears the initial burden of demonstrating a prima facie case of discrimination or retaliation. “The requisite degree of proof necessary to establish a prima facie case . . . on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Chuang, 225 F.3d at 1124; see also Pejic, 840 F.2d at 874.

         If a plaintiff makes this threshold showing, “[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action.” Chuang, 225 F.3d at 1123-24. If the employer does so, the burden shifts back to the plaintiff to demonstrate that the employer's proffered reason is a pretext for discrimination, “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

         “Pretext means more than a mistake on the part of the employer; pretext means a lie, specifically a phony reason for some action.” Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996) (internal quotation and citation omitted). A plaintiff “cannot simply show that the employer's decision was wrong, mistaken, or unwise.” Dep't of Fair Emp't & Housing v. Lucent Techs., Inc., 642 F.3d 728, 746 (9th Cir. 2011) (internal quotation and citation omitted). Instead, he must show “such weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.” Id. A plaintiff's evidence on ...