United States District Court, D. Arizona
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. (Docs. 118, 119.) For the following
reasons, Banner's motion is granted in part and denied in
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.
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.
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.
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.
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.
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
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
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).
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). 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.
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
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