United States District Court, D. Arizona
Honorable Bruce G. Macdonald United States Magistrate Judge
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.
Plaintiff's Employment with Tucson Fire
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.
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.
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.
Plaintiff's Twelve (12) Weeks at the TFD
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.
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. Id., Wuerfel Depo. 11/6/2017 at
29:21-30:3, Bates Nos. COTMSJ0138-39.
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. 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.
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. 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. 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. 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.
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.
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.” 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. 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.
2, 2015, Dr. Eskay-Auerbach evaluated Burroughs and again
determined that he could perform all of the required tasks of
a firefighter without restriction. 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.
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.” 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.
Plaintiff's Assignment to Station 5
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.
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. 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.
reported to Captain Fleck, who made daily evaluations of
Plaintiff's overall or basic performance. 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.
acknowledged that he gave up during drills at Station
5. 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.
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.” 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
November 3, 2015, Burroughs responded to a Full Alarm for
smoke coming from an apartment at Ft. Lowell Road and Palo
Verde Street. 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.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.
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. Id., Blume Depo. 11/3/2017 at
58:4-16, Bates Nos. COTMSJ0210-11.
Tucson Fire Department's Policies and
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 ...