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Burroughs v. City of Tucson

United States District Court, D. Arizona

October 16, 2018

Michael Burroughs, Plaintiff,
v.
City of Tucson, a municipal corporation of the State of Arizona, Defendant.

          ORDER

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently pending before the Court is Defendant City of Tucson's Motion for Summary Judgment (Doc. 45). Defendant has also filed a Statement of Facts in Support of Its Motion for Summary Judgment (“SOF”) (Doc. 46). Plaintiff has responded (“Response”) (Doc. 50) and filed his Separate Statement of Facts in Support of Opposition to Defendant's Motion Summary Judgment and Response to Defendant's Statement of Facts (“SSOF”) (Doc. 51), and Defendant replied (Doc. 54). Oral argument was heard on August 22, 2018. Minute Entry 8/22/2018 (Doc. 57). As such, the motion is fully briefed and ripe for adjudication.

         I. FACTUAL BACKGROUND

         A. Plaintiff's Employment with Tucson Fire Department

         1. Pre-hire

         Plaintiff Michael Burroughs worked as a full-time firefighter for Raytheon's Fire Department for approximately three (3) to four (4) years. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 12:19-13:1, Bates Nos. COTMSJ0037-0038. On April 17, 2015, Plaintiff began working as a firefighter for Tucson Fire Department (“TFD”) when the City of Tucson took over the Raytheon Fire Department. Complaint (Doc. 1) at ¶ 9; Answer (Doc. 7) at ¶ 9. Prior to the takeover, TFD personnel met with Raytheon firefighters, including Plaintiff, regarding what was happening with Raytheon's Fire Department, providing the option of trying to become TFD employees, and discussing the physical tests that the firefighters would have to pass. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 18:18-20:10, Bates Nos. COTMSJ0039-0041. Plaintiff recalled TFD personnel discussing what the physical fitness test would consist of, and that passing was a requirement for “mov[ing] on.” Id., Burroughs Depo. 10/26/2017 at 19:21-20:10, Bates Nos. COTMSJ0040-0041.

         On September 16, 2014, Plaintiff participated in the Candidate Physical Ability Test, but failed due to not completing it in the amount of time allotted. Id., Burroughs Depo. 10/26/2017 at 23:10-25:3, Bates Nos. COTMSJ0042-0044 & Exh. “1, ” Bates No. COTMSJ102. On September 30, 2014, Plaintiff again participated in the Candidate Physical Ability Test and passed. Id., Burroughs Depo. 10/26/2017 at 25:4-19, Bates Nos. COTMSJ0044 & Exh. “1, ” Bates No. COTMSJ103. On April 9, 2015, Plaintiff filled out a Fitness Questionnaire, and marked “No” to all of the questions including “Do you have any injuries, illnesses or disabilities that would prevent you from performing a fitness assessment?” Id., Burroughs Depo. 10/26/2017 at 27:16-28:9, Bates Nos. COTMSJ0045-0046 & Exh. “3, ” Bates No. COTMSJ0104. On the same date, City Physician Dr. Wayne Peate evaluated Plaintiff and concluded he was capable of performing the duties of a firefighter. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 28:19-29:24, Bates No. COTMSJ0046-0047 & Exh. “4, ” Bates No. COTMSJ0105.

         Plaintiff completed a New Hire EEO form, and marked “No” next to “Disabled.” Id., Burroughs Depo. 10/26/2017 at 144:23-145:12, Bates Nos. COTMSJ0098-0099 & Exh. “24, ” Bates No. COTMSJ0134. Plaintiff, as one of the firefighters going from Raytheon's Fire Department to TFD, also received the Tucson Fire Academy Guidelines for Recruit Disciplinary Action authored by then Deputy Chief Michael Fischback. Id., Burroughs Depo. 10/26/2017 at 138:11-23, Bates No. COTMSJ0096 & Exh. “22, ” Bates Nos. COTMSJ0110-33. Upon receipt, Plaintiff read through the manual and was aware of the expectations set forth in the document. Id., Burroughs Depo. 10/26/2017 at 140:4- 11, Bates No. COTMSJ0097. Plaintiff was also aware that TFD had its own policies and manual, and that the City of Tucson had administrative directives with which City employees were required to be familiar. Id., Burroughs Depo. 10/26/2017 at 140:12-24, Bates No. COTMSJ0097.

         2. Plaintiff's Twelve (12) Weeks at the TFD Academy

         On April 20, 2015, Plaintiff began the twelve-week training at the Academy. Compl. (Doc. 1) at ¶ 10; Answer (Doc. 7) at ¶ 10. Captain Vera Wuerfel was the lead training captain. Pl.'s SSOF (Doc. 51), Wuerfel Depo. 11/6/2017 (Exh. “3”) 10:22-25. Captain Ed Lopez, Jr. was also a training captain at the Academy. Id., Lopez Depo. 11/6/2017 (Exh. “4”) at 7:4-10. Chief Mike Fischback was the department chief in charge of training. Id., Exh. “3” at 12:12-14. Plaintiff reported to Captains Wuerfel and Lopez at the Academy. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 34:20- 35:3, Bates Nos. COTMSJ0048-49. Paramedic Tyler Berndt assisted these Captains. Id., Burroughs Depo. 10/26/2017 at 34:20-35:7; Pl.'s SSOF (Doc. 51), Exh. “3” at 11:8- 21.

         On approximately May 21, 2015 and again on or about June 16, 2015, Captain Wuerfel authored memoranda providing feedback to Plaintiff. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 43:8-45:19, Bates Nos. COTMSJ0056-58. Plaintiff does not recall receiving the memoranda, but does recall getting feedback at least twice during his time at the academy. Id. Captain Wuerfel did not recall the June 16th date or the specifics of a counseling session regarding the June 16th memorandum; however, Captain Wuerfel recalled having several counseling sessions with Plaintiff. Def.'s SOF (Doc. 46), Wuerfel Depo. 11/6/2017 at 27:24-28:7, Bates Nos. COTMSJ0136-37. Captain Wuerfel testified that the only counseling session with Plaintiff that she really remembered was talking to him about some of the issues that he was having, including an inability to complete drills and his poor attitude. Id., Wuerfel Depo. 11/6/2017 at 28:11- 29:5, Bates Nos. COTMSJ0137-38. Captain Wuerfel asked Plaintiff if there was something going on that he wanted them to know, and he responded that he was thinking about quitting the academy. Id. Plaintiff began to cry and explained that the academy was too hard for him; his wife was not letting him see his child; and he was having personal issues. Def.'s SOF (Doc. 46), Wuerfel Depo. 11/6/2017 at 28:11-29:5, Bates Nos. COTMSJ0137-38. Captain Wuerfel noticed Plaintiff was not completing his drills, he had a poor attitude, and was not as motivated as when he first came in to the Academy.[1] Id., Wuerfel Depo. 11/6/2017 at 29:21-30:3, Bates Nos. COTMSJ0138-39.

         On June 22, 2015, approximately two (2) months into the Academy, Plaintiff was flipping a tire when he “went to stand up with it and flip it, and [he] got this shooting pain down both of [his] legs and pain in [his] back, and [he] fell to the ground . . . .” Id., Burroughs Depo. 10/26/2017 at 35:8-23, Bates No. COTMSJ0049. All of the TFD recruits were required to perform the task of flipping a tire as part of their circuit training that day. Id., Burroughs Depo. 10/26/2017 at 36:10-14, Bates No. COTMSJ0050. Plaintiff recalls Paramedic Berndt, Captain Wuerfel, and then the rest of his class coming to his aid. Id., Burroughs Depo. 10/26/2017 at 36:15-20, Bates No. COTMSJ0050. Plaintiff further recalls that he was given a bag of ice, he was put on the golf cart, and then he was taken to the City physician for evaluation. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 36:21-37:4, Bates Nos. COTMSJ0050-51. Plaintiff was evaluated by Dr. Marjorie Eskay-Auerbach and diagnosed with a “lumbar strain.” Id., Burroughs Depo. 10/26/2017 at 37:14-38:18, Bates Nos. COTMSJ0051-52 & Exh. “5”-City of Tucson Supervisor's Report of Injury (Part B) to be Completed by Evaluating Physician, Bates No. COTMSJ0106. Dr. Eskay-Auerbach released Plaintiff back to work without restriction.[2] Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 38:19-40:11, Bates Nos. COTMSJ0052-54 & Exh. “5, ” Bates No. COTMSJ0106 & Exh. “6”-Tucson Fire Training Academy-Training Activity Restrictions, Bates No. COTMSJ0107. Plaintiff returned to the academy following his evaluation by Dr. Eskay-Auerbach, and upon his return Captain Wuerfel saw his fit for duty paperwork. Def.'s SOF (Doc. 46), Wuerfel Depo. 11/6/2017 at 36:18-37:10, Bates Nos. COTMSJ0140-41. Captain Wuerfel did not specifically ask Plaintiff what his injuries were, what they diagnosed him with, or what his treatment plan was. Id., Wuerfel Depo. 11/6/2017 at 37:2-10, Bates No. COTMSJ0141. Captain Wuerfel's conversation with Paramedic Berndt on the same date regarding Plaintiff was inquiring if he got a fit for duty form returned, and he said “yes.” Id., Wuerfel Depo. 11/6/2017 at 37:11-14, Bates No. COTMSJ0141. Paramedic Berndt may have also told Captain Wuerfel that Plaintiff had a back strain, but she did not recall the conversation. Id., Wuerfel Depo. 11/6/2017 at 37:15-19, Bates No. COTMSJ0141.

         On or about June 24, 2015, Captain Wuerfel prepared a Special Counseling memorandum to address the issues Plaintiff was having, and provide him the opportunity to change his behavior prior to any actual discipline.[3] Def.'s SOF (Doc. 46), Wuerfel Depo. 11/6/2017 40:22-42:3, Bates Nos. COTMSJ0142-44. Captain Wuerfel obtained the information for the Special Counseling memorandum from one-line notes on a page, which was sometimes the daily activity sheet.[4] Id., Wuerfel Depo. 11/6/2017 at 43:6- 44:14, Bates Nos. COTMSJ0145-46. Plaintiff did not remember receiving the memorandum while at the academy, nor does he remember receiving special counseling; however, he did remember some of the events outlined.[5] Id., Burroughs Depo. 10/26/2017 at 52:3-55:11, Bates Nos. COTMSJ0059-62. Plaintiff did not remember the Captains telling him that he “needed to improve” in the areas of “TFD core values of teamwork and professionalism, ” but conceded that he was told he was not performing to standards. Id., Burroughs Depo. 10/26/2017 at 56:19-57:14, Bates Nos. COTMSJ0063- 64.

         On the same date, Captain Wuerfel was informed that Plaintiff was having trouble sitting during PT class. Pl.'s SSOF (Doc. 51), Wuerfel Depo. 11/6/2017 at 48:16-49:24. Plaintiff was sent by Captain Wuerfel to the City Physician for evaluation. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 40:17-41:16, Bates Nos. COTMSJ0054-55; Pl.'s SSOF (Doc. 51) Wuerfel Depo. 11/6/2017 at 48:16-49:24. Dr. Stephanie Lundell evaluated Plaintiff, determined that he could perform the tasks required of a firefighter, and released him back to the Academy without restriction. Def.'s SOF (Doc. 46), Exh. “7”-Tucson Fire Training Academy-Training Activity Restrictions 6/24/2015, Bates No. COTMSJ0108. Plaintiff did not have any work restrictions while at the Academy. Id., Burroughs Depo. 10/26/2017 at 29:22-24, Bates No. COTMSJ0047 & Exhs. 4, 5, 6 & 14, Bates Nos. COTMSJ0105-07, COTMSJ0109.

         On June 25, 2015, Captain Wuerfel recommended that Plaintiff be terminated, “[a]fter he snapped at a co-worker and snapped at [her], the totality of disciplinary stuff that went on and the fact that he snapped at a training officer and was aggressive in his tone[.]” Def.'s SOF (Doc. 46), Wuerfel Depo. 11/6/2017 at 53:6-54:23, Bates Nos. COTMSJ0147-48 & Exh. “7”-Memo. from Wuerfel to Fischback 6/25/2015, Bates Nos. COTMSJ0157-58. Captain Wuerfel spoke with Chief Fischback regarding the recommendation, indicating that it was appropriate “[b]ased on [Plaintiff's] past performance and the fact that he violated one of our rules which was basically being aggressive with an instructor[-][n]ot only me but his teammate.”[6] Id., Wuerfel Depo. 11/6/2017 at 54:10-23, Bates No. COTMSJ0148. Captain Wuerfel testified that her request for termination was denied, because she had not previously given Plaintiff a “job in jeopardy” for snapping at his classmate. Id., Wuerfel Depo. 11/6/2017 at 55:3-56:5, Bates Nos. COTMSJ0149-50. Captain Wuerfel further testified that because she had not given Plaintiff “special counseling, ” he was not given the opportunity to change his behavior, so administration asked her to change the termination into a “job in jeopardy.” Id., Wuerfel Depo. 11/6/2017 at 55:10-56:22, Bates Nos. COTMSJ0149-50. Chief Fischback requested that Captain Wuerfel to make the job in jeopardy last throughout Plaintiff's probationary year, because the class was so close to graduating, there was insufficient time to evaluate Plaintiff further. Id. Plaintiff was told that he was on “job in jeopardy” status before he finished the Academy. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 63:22-24, Bates No. COTMSJ0066. Plaintiff acknowledges the status was due to two incidents that occurred toward the end of the academy.[7] Id., Burroughs Depo. 10/26/2017 at 63:22-6, Bates Nos. COTMSJ0066-67. Plaintiff understood that job in jeopardy status meant that he could lose his job. Id., Burroughs Depo. 10/26/2017 at 64:7-16, Bates No. COTMSJ0067.

         On July 2, 2015, Dr. Eskay-Auerbach evaluated Burroughs and again determined that he could perform all of the required tasks of a firefighter without restriction.[8] Id., Burroughs Depo. 10/26/2017 at 62:3-63:8, Bates Nos. COTMSJ0065-66, & Exh. “14, ” Tucson Fire Training Academy-Training Activity Restrictions 7/2/2015, Bates No. COTMSJ0109. On July 9, 2015 Plaintiff successfully completed the Tucson Fire Transitional Academy and was provided a certificate in recognition of his completion. Def.'s SOF (Doc. 46), Certificate of Completion, Bates No. COTMSJ0162.

         3. Plaintiff's Assignment to Station 16

          Plaintiff was assigned to Station 16 when he finished the Academy. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 65:1-5, Bates No. COTMSJ0068. Captain Greene kept daily notes on Plaintiff's performance. Id., Greene Depo. 11/7/2017 at 19:17-22 & Exh. “2, ” Bates Nos. COTMSJ0164, COTMSJ0167-69. Captain Greene noted Plaintiff “ha[d] no experience in swift water rescue and need[ed] a lot of work and training[;] . . . [needed to be] more aggressive around the station and on E[mergency ]M[edical ]S[ervice] calls[;] . . . [was] asking the other firefighters questions from his module instead of looking them up in his book[;] . . . struggled with cutting a vent[ilation] hole[;] . . . did not know how to connect into the EBSS (emergency breathing support system) during a rescue drill[;] . . . could not start the saw[;] . . . struggled knowing where all the tools and equipment were located on LD16[;] . . . [became] exhausted and dizzy and was unable to drill[;] . . . and could not don an airpack under 45 seconds.”[9] Id., Greene Depo 11/7/2017 at Exh. “2, ” Bates Nos. COTMSJ0167- 69. Captain Greene discussed Plaintiff's physical performance, telling him that he “just needed to get better at [his] conditioning[.]” Id., Burroughs Depo. 10/26/2017 at 68:23- 69:9, Bates Nos. COTMSJ0069-70. While assigned to Station 16, Plaintiff saw a Peer Fitness Trainer one time, and “he may have” given Plaintiff advice on how to improve his physical conditioning. Id., Burroughs Depo. 10/26/2017 at 78:15-25, Bates No. COTMSJ0072. Plaintiff testified that his understanding of physical conditioning is physical fitness level. Id. Plaintiff was never under work restrictions during his time at Station 16. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 75:12-21, Bates No. COTMSJ0071. Neither did Plaintiff ever request light duty while assigned to Station 16. Id., Burroughs Depo. 10/26/2017 at 79:23-24, Bates No. COTMSJ0073.

         4. Plaintiff's Assignment to Station 5

         On September 15, 2015, Plaintiff was assigned to Station 5. Def.'s SOF (Doc. 46), Fleck Depo. 10/24/2017 at 26:24-27:8, Bates Nos. COTMSJ0172-73. Plaintiff understood that he was still on job-in-jeopardy status when he was assigned to Station 5. Id., Burroughs Depo. 10/26/2018 at 85:22-25, Bates No. COTMSJ0074. When Plaintiff started at Station 5, Captain Glenn Fleck met with Plaintiff and the engine crew and explained to Plaintiff the expectations regarding his performing duties, as well as that they wanted him to succeed. Id., Fleck. Depo. 10/24/2017 at 24:11-26:3, Bates No. COTMSJ0171-72.

         Probationary firefighters must complete a module packet that shows they have the skills needed to demonstrate that s/he can perform firefighter tasks, and which must be signed off by a supervisor. Id., Fleck Depo. 10/24/2017 at 30:2-13, Bates No. COTMSJ0175. Drills are a part of this probationary firefighter module. Id., Fleck Depo. 10/24/2017 at 30:25-31:12, Bates Nos. COTMSJ0175-76. At Station 5, Plaintiff was required to do drills which Captain Fleck set up and facilitated. Def.'s SOF (Doc. 46), Fleck Depo. 10/24/2017 at 29:24-30:3, Bates Nos. COTMSJ0174-75. Captain Fleck has everyone at his station perform drills to make sure that they have kept up with their firefighting skills and knowledge.[10] Id., Fleck Depo. 10/24/2017 at 31:5-12, Bates No. COTMSJ0176. Typically, Captain Fleck verbally and mentally review the steps needed to complete the drill with his crew, and then the firefighters go out and perform it. Id., Fleck Depo. 10/24/2017 at 30:4-13, Bates No. COTMSJ0175.

         Plaintiff reported to Captain Fleck, who made daily evaluations of Plaintiff's overall or basic performance.[11] Id., Fleck Depo. 10/24/2017 at 26:9-20, Bates No. COTMSJ0172. Captain Fleck's notes included observations, including but not limited to: struggling with his Self-Contained Breathing Apparatus (SCBA) on several occasions; becoming tired and frustrated, stating “I can't do it, ” and then stopped trying; difficulty making a hose connection because he was tires; and slow getting station chores and cleaning done and failing to meet standards for performing routine station duties. Id., Fleck Notes, Bates Nos. COTMSJ0187-201. On September 26, 2015, during a drill had poor search technique; difficulty advancing a charged transverse hose; and difficulty dragging out the “victim.” See Def.'s SOF (Doc. 46), Fleck Notes, Bates No. COTMSJ0189. On that same date, Captain Fleck noted that Plaintiff “would have difficulty performing task [sic] under pressure and fire conditions.” Id. On September 26, 2015, Plaintiff “potentially caused an exposure to a paramedic while on a call this evening[;] [h]e had blood on his gloves and was removing them[, ] . . . snapped off his glove splattering blood on the face of a nearby paramedic.” Id., Fleck Notes, Bates No. COTMSJ0189. Captain Fleck noted that this “did not meet standards in safety.” Id. On September 28, 2015, Plaintiff responded to “an early morning code arrest at a rehab facility[, ]” and had some difficulty with techniques during the call; Captain Fleck noted that Plaintiff “did not meet standard in performing EMS skill.” Id., Fleck Notes, Bates No. COTMSJ0190. On October 2, 2015, Captain Fleck noted that while on scene with a patient trapped in a vehicle, he “didn't have enough confidence in [Plaintiff's] abilities to perform the extrication when it mattered, so [Captain Fleck] had [Plaintiff] observe.” Def.'s SOF (Doc. 46), Fleck Notes, Bates No. COTMSJ0192.

         Plaintiff acknowledged that he gave up during drills at Station 5.[12] Id., Burroughs Depo. 10/26/2017 at 87:17-19, Bates No. COTMSJ0076. Plaintiff agreed that a firefighter cannot just decide to give up during an emergency call, because “lives can be lost.” Id., Burroughs Depo. 10/26/2017 at 95:13-17, Bates No. COTMSJ0079. Burroughs worked out on an almost daily basis, with workouts that consisted of weightlifting and/or cardio exercise. Id., Burroughs Depo. 10/26/2017 at 90:9-16, Bates No. COTMSJ0077. While assigned to Station 5, Plaintiff met with a Peer Fitness trainer once. Id., Burroughs Depo. 10/26/2017 at 86:17-19, Bates No. COTMSJ0075. Further, Plaintiff never requested light duty while assigned to Station 5. Id., Burroughs Depo. 10/26/2017 at 145:14-16, Bates No. COTMSJ0099. Neither did Plaintiff ever tell Captain Fleck that he had an injury or needed medical treatment. Def.'s SOF (Doc. 46), Fleck Depo. 10/24/2017 at 75:11-13 & 81:10-12, Bates Nos. COTMSJ0184-85. Additionally, Plaintiff was never placed on work restrictions while assigned to Station 5. Id., Fleck Depo. 10/24/2017 at 75:14-16, Bates No. COTMSJ0184.

         On or about October 19, 2015, Plaintiff was given TFD's Performance Evaluation for Probationary Firefighter. Id., TFD Perf. Eval. for Probationary Firefighter 10/19/2015, Bates Nos. COTMSJ0203-05. Plaintiff's evaluation indicated that he needed improvement on eight (8) out of seventeen (17) categories for which he was provided feedback. Id. The evaluation also contained a narrative portion in which Plaintiff was given specific feedback related to his failure to meet standards and was notified that “[i]f [he] fail[ed] to meet standards or slid[] backwards into [his] old work habits, dismissal may still be an option.”[13] Id. Plaintiff and each TFD employee in his chain-of-command signed off on the evaluation-Assistant Chief Brad Olson, Deputy Chief Jeff Thompson, Battalion Chief Kristopher Blume, and Captain Glenn Fleck.[14] Id.

         5. Plaintiff's Termination

         On November 3, 2015, Burroughs responded to a Full Alarm for smoke coming from an apartment at Ft. Lowell Road and Palo Verde Street.[15] Def.'s SOF (Doc. 46) at ¶ 68; see also Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 104:11-105:5, 107:10-16, Bates Nos. COTMSJ0081-83. Plaintiff was given orders to follow a senior firefighter, Sean Palese. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 107:10- 16, Bates No. COTMSJ0083. Plaintiff “vaguely” remembers this incident, and testified that he followed Senior Firefighter Palese into the apartment complex, but not into the apartment. Id. Plaintiff was trained to stay with his partner and not go off on his own. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 109:8-18, Bates No. COTMSJ0084. On November 10, 2015, Captain Mark Maibauer sent an e-mail to Battalion Chief Kristopher Blume regarding Plaintiff and the November 3, 2015 call.[16]Id., Maibauer E-mail to Blume 11/10/2015, Bates No. COTMSJ0206. That same date, Captain Fleck spoke with Senior Firefighter Palese and Captain Maibauer about the November 3, 2015 incident. Id., Fleck Depo. 10/24/2017 at 44:22-47:7, Bates Nos. COTMSJ0177-80. Also on that date, Captain Fleck authored a Memorandum to Chief Blume for Recommendation for Termination of Probationary FF Michael Burroughs. Id., Fleck Depo. 10/24/2017 at 49:16-50:10, Bates Nos. COTMSJ0181-82 & Exh. “3”- Fleck Memo to Blume 11/10/2015, Bates No. COTMSJ0202. Prior to authoring the memorandum, Captain Fleck spoke with Chief Blume about the incident, which Captain Fleck considered a “severe safety issue, ” and that Plaintiff was still not performing up to standards. Id., Fleck Depo. 10/24/2017 at 50:11-19, Bates No. COTMSJ0182. Chief Blume agreed with Captain Fleck's assessment. Def.'s SOF (Doc. 46), Fleck Depo. 10/24/2017 at 50:23-24, Bates No. COTMSJ0182. Chief Blume recalls receiving the memorandum from Captain Fleck, as well as having a telephone conversation with him. Def.'s SOF (Doc. 46), Blume Depo. 11/3/2017 at 56:18-58:1, Bates Nos. COTMSJ0208- 10. Chief Blume then called Assistant Chief of Operations Brad Olson, and said, “Chief, here's where we're at. Here's the recommendation I have and I'm supporting the recommendation.” Id. Chief Blume wrote a memo recommending termination to Assistant Chief Olson; met with Plaintiff and Captain Fleck; then the three of them were to go to fire central and sit down with the Assistant Chief to discuss termination of Plaintiff's employment. Id.

         Plaintiff was terminated on November 10, 2015, his next shift following the November 3, 2018 fire call. Def.'s SOF (Doc. 46), Burroughs Depo. at 110:15-111:2, Bates Nos. COTMSJ0085-86. Plaintiff was told that he failed probation, and understood that he was a probationary firefighter and if he did not meet standards he would be terminated. Id., Burroughs Depo. 10/26/2017 at 111:3-16, Bates No. COTMSJ0086 & Personnel Action Request, Bates No. COTMSJ0218. Captain Fleck and Chief Blume recommended termination; however, the ultimate decision to terminate Plaintiff was made by Assistant Chief Brad Olson, a higher ranking TFD employee.[17] Id., Blume Depo. 11/3/2017 at 58:4-16, Bates Nos. COTMSJ0210-11.

         B. Tucson Fire Department's Policies and Procedures

The Tucson Fire Department (“TFD”) Manual of Operations instructs that:
Every member of the TFD, regardless of rank or position, is expected to behave in a professional manner, on and off duty, which reflects the department's mission, values, and purpose. Every member is responsible for observing the Rules of Conduct as listed below. Failure to do so may result ...

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