BRUCE G. MacDONALD, 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.
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.
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.
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.
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.
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."
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.
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."
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.
Plaintiff reported to Captain Fleck, who made daily evaluations of Plaintiff's overall or basic performance.
Plaintiff acknowledged that he gave up during drills at Station 5.
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."
On November 3, 2015, Burroughs responded to a Full Alarm for smoke coming from an apartment at Ft. Lowell Road and Palo Verde Street.
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.
The Tucson Fire Department ("TFD") Manual of Operations instructs that:
Def.'s SOF (Doc. 46), TFD Manual of Operations § 214.4(1)(a) at Bates No. COTMSJ0001. TFD employees are required to be familiar with and follow all TFD, City of Tucson, and Civil Service rules and regulations, administrative directives, and policies. Id., TFD Manual of Operations § 214.4 at Bates Nos. COTMSJ0001-0003. The TFD Manual of Operations further states that the Probationary Firefighter Training and Evaluation Program "is designed to achieve several objectives:
Id., TFD Manual of Operations, § 204(G)(2)(a) at Bates No. COTMSJ0011. The Manual of Operations directs that "[t]he probationary firefighter has the responsibility to complete all assignments completely and on time, maintain and improve skills learned in the Academy, and integrate themselves fully into the Fire Department team. Those probationary firefighters who are unable to meet these responsibilities will find themselves falling behind and possibly unable to complete their probation."
"The basic duties of a firefighter require that the employee be in good health and physically fit."
The TFD Manual of Operations addresses "Light Duty" assignments, directing "[e]mployees who have temporary work restrictions resulting from an on-the-job illness or injury must have a release from the City Physician for light duty specifying the work restrictions." Id., TFD Manual of Operations, §203.12(A)(4) at Bates No. COTMSJ0029. "Employees who have temporary work restrictions resulting from an off-the job illness or injury must submit a light duty request, by memorandum from the employee to the Fire Chief through channels." Def.'s SOF (Doc. 46), TFD Manual of Operations, § 203.12(B) at Bates No. COTMSJ0029. "The memo must be supported with a documented work status release from the attending physician that includes the work restrictions." Id., TFD Manual of Operations, § 203.12(B) at Bates No. COTMSJ0029.
Section 217 of the TFD Manual of Operations describes the procedures for reporting on-the-job injuries. Id., TFD Manual of Operations, § 217 at Bates No. COTMSJ0032-0035. "All Fire Department personnel are responsible for understanding and adhering to this policy." Id., TFD Manual of Operations, § 217, General at Bates No. COTMSJ0032. Employees are directed to "[n]otify immediate supervisor as soon as reasonably possible (within 24 hours) that an injury was sustained." Id., TFD Manual of Operations, § 217, Responsibility, 1.a. at Bates No. COTMSJ0032. Supervisors are directed that "[o]nce notified that [an] employee sustained an injury[,] [the supervisor must] fill out [a] Supervisor's Report of Injury (Part A)[.]" Def.'s SOF (Doc. 46), TFD Manual of Operations, § 217, Responsibility, 2.a. at Bates No. COTMSJ0032. Supervisors are further directed to "[d]iscuss with [the] employee [the] severity of injury and whether [the] employee needs to seek medical treatment." Id., TFD Manual of Operations, § 217, Responsibility, 2.b. at Bates No. COTMSJ0032. The manual contemplates that "[i]n normal situations the determination is made whether or not the employee can perform their assigned duties." Id. If a determination is made that medical treatment is needed, the supervisor is to "[e]nsure that [the] employee has Part B of Supervisor's Report of Injury with them." Id., TFD Manual of Operations, § 217, Responsibility, 2.b.i. at Bates No. COTMSJ0032. "All industrial injuries require City Physician . . . clearance to return to work." Id., TFD Manual of Operations, § 217, Return to Work, 1.a. at Bates No. COT MSJ0033.
Plaintiff understood that as a firefighter, if he was injured, he needed to be evaluated by the City Physician. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 34:5-19, Bates No. COTMSJ0048.
Plaintiff testified that his disabilities include a hurt back from the sprain at the Academy, and his previous injuries to his back and his hurt knee.
Captain Wuerfel testified that she did not know that Plaintiff had a disability, and was not aware of his termination until she was contacted by the City Attorneys regarding this lawsuit.
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), "there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law," and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Thus, factual disputes that have no bearing on the outcome of a suit are irrelevant to the consideration of a motion for summary judgment. Id. In order to withstand a motion for summary judgment, the nonmoving party must show "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Moreover, a "mere scintilla of evidence" does not preclude the entry of summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. The United States Supreme Court also recognized that "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).
Defendant seeks summary judgment asserting that Plaintiff cannot present a prima facie case of discrimination under the ADA. Def.'s Mot. for Summ. J. (Doc. 45) at 4-7. Conversely, Plaintiff argues that he was a qualified individual with a disability. Pl.'s Response (Doc. 50) at 7-8. Defendant further asserts that Plaintiff was terminated due to performance issues, and that the evidence does not support that Plaintiff was terminated because he filed a workers' compensation claim, and as such the City did not violate A.R.S. § 23-1501(A)(3)(c)(iii). Def.'s Mot. for Summ. J. (Doc. 45) at 10-15. Plaintiff asserts that sufficient evidence exists to show that TFD knew Plaintiff had a disability and its reasons for termination are pretextual. Pl.'s Response (Doc. 50) at 9-13.
The Americans with Disabilities Act ("ADA") prohibits discrimination against a "qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). A disability, with respect to an individual, means:
42 U.S.C. § 12102(1).
To establish a prima facie case under the ADA, a plaintiff must prove (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job either with or without reasonable accommodation; and (3) he was terminated or subjected to an adverse employment action because of his disability. Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (citations omitted); Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). If a plaintiff has met this initial burden, the burden then shifts to defendant to put forward a legitimate, non-discriminatory reason for its actions. Snead v. Metro. Prop. & Cas Ins. Co., 237 F.3d 1080, 1093 (9th Cir. 2001). If the defendant articulates a legitimate, non-discriminatory reason for its actions, the burden shifts again to the plaintiff to show that the defendant's stated reason is no more than a pretext for discrimination. Id.; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
The ADA defines a "qualified individual" as "an individual with a disability [who] . . . satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such person holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m); see also 42 U.S.C. § 12111(8). Qualification standards include the "skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired." 29 C.F.R. § 1630.2(q). Plaintiff must show the ability to perform the essential functions of the job with or without a reasonable accommodation. 42 U.S.C. § 12112(b)(5)(A), 12111(8); see also Cooper v. Neiman Marcus Group, 125 F.3d 786, 790 (9th Cir.1997) (stating elements); Kennedy, 90 F.3d at 1481 (9th Cir.1996).
As stated above, the term `disability' under the ADA means "a physical or mental impairment that substantially limits one or more of the major life activities of [the] individual" or "[a] record of such an impairment." 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). A plaintiff is "substantially limited" in a major life activity if that individual is "significantly restricted as to the condition, manner, or duration under which [he] can perform a major life activity" in comparison to an "average person in the general population." Fraser v. Goodale, 342 F.3d 1032, 1040 (9th Cir. 2003) (citations omitted). In deciding whether an impairment is substantially limiting, courts consider the nature and severity of the impairment, the duration or expected duration of the impairment, as well as the permanent or long term impact of the impairment. Fraser, 342 F.3d at 1038.
Plaintiff asserts that he is a qualified individual with a disability, because between approximately 2007 and his employment at TFD in 2015, he had suffered a number of injuries, and has daily pain because of these conditions. Pl.'s Response (Doc. 50) at 8-9. Plaintiff further asserts that he "suffers daily pain which prevents him from being able to sit in a chair for more than an hour and a half, including while driving and he has difficulty sleeping." Id. at 8. 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?" Def.'s SOF (Doc. 46), 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 Wayne Peate, M.D. evaluated Plaintiff and concluded he was capable of performing the duties of a firefighter. Id., Burroughs Depo. 10/26/2017 at 28:19-29:24, Bates No. COTMSJ0046-0047 & Exh. "4," Bates No. COTMSJ0105. In so doing, Dr. Peate noted Plaintiff's 2011 right knee injury and conservatively treated herniated lumbar disk as pre-existing conditions. Pl.'s SSOF (Doc. 51), Exh. "1"—Pension Bd. Exam. Results 4/9/2015. The form defines a pre-existing condition as a "medical condition that
Sometime in May or June, Captain Wuerfel counseled Plaintiff regarding some of the issues that he was having, including his inability to complete drills and his poor attitude. Def.'s SOF (Doc. 46), 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.
On June 22, 2015, Plaintiff suffered a "lumbar strain" while performing a tire flipping exercise at the Academy. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 35:8-23, 36:21-37:4, 37:14-38:18, Bates Nos. COTMSJ0049, COTMSJ0050-52, & 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. Id., 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. The physical activities Dr. Eskay-Auerbach cleared Plaintiff to perform included running up to five (5) miles; sprinting short distances; basic calisthenics (including but not limited to: push-ups, pull-ups, sit-ups, core strength exercises and stretching); pushing, pulling and controlling charged hose lines with a nozzle reaction of 75 pounds of pressure directed against the recruit; executing fire ground evolutions (such as dragging a fire hose, raising ladders, operating gasoline powered equipment, etc.) while wearing up to 60 pounds of equipment; climbing a 100; aerial ladder with up to 100 pounds of safety equipment and tools; climbing a six-story staircase up to 20 times in succession; dragging and/or lifting a 180 pound person while wearing up to 60 pounds of safety equipment with the assistance of one other person; raising and carrying ground ladders weighing 30 to 50 pounds while wearing 60 pounds of safety equipment; working in extreme temperatures (350 plus degrees for 10 to 15 minutes while wearing up to 60 pounds of safety equipment); and hoisting up to 50 pounds of equipment to the top of a six-story building with a rope while wearing up to 60 pounds of safety equipment. Id., Burroughs Depo. 10/26/2017, 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. Subsequently, on June 24, 2015, Plaintiff was again evaluated by the City Physician. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 40:17-41:16, Bates Nos. COTMSJ0054-55 & Exh. "7"—Tucson Fire Training Academy—Training Activity Restrictions 6/25/2015, Bates No. COTMSJ0108. Dr. Stephanie Lundell determined that he could perform the tasks required of a firefighter and released him back to the Academy without restriction. Id. Plaintiff acknowledges that he 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 July 2, 2015, Dr. Eskay-Auerbach evaluated Plaintiff a second time, and again determined that he could perform the tasks required of a firefighter without restriction. Id., Burroughs Depo. 10/26/2017 at 62:3-63:8 & Exh. "14," Tucson Fire Training Academy—Training Activity Restrictions 7/2/2015, Bates Nos. COTMSJ0065-66, COTMSJ0109.
After the Academy Plaintiff was assigned to Station 16, and during his time there was never under work restrictions or requested light duty. Id., Burroughs Depo. 10/26/2017 at 75:12-21, 79:23-24, Bates Nos. COTMSJ0071, COTMSJ0073. Plaintiff was later assigned to Station 5, and again never requested light duty, was under work restrictions, or told his supervising Captain that he had an injury or needed medical treatment. Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 at 75:11-16, 81:10-12, 145:14-16, Bates Nos. COTMSJ0099, COTMSJ0184-85. During this time, Plaintiff worked out almost daily doing both weightlifting and/or cardio exercise. Id., Burroughs Depo. 10/26/2017 at 90:9-16, Bates No. COTMSJ0077.
Plaintiff's statements regarding the degree and nature of his pain are inconsistent with the evidence of his activity levels during and after the Academy, as well as the medical evaluations. See F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997), as amended (Apr. 11, 1997) ("A conclusory, self-serving affidavit, lacking . . . any supporting evidence, is insufficient to create a genuine issue of material fact."). Furthermore, when asked about his difficulties, he pointed to personal issues other than physical ailments. The record does not support a conclusion that Plaintiff was substantially limited by his impairments. See Fraser, 342 F.3d at 1040. As such, Plaintiff has failed to establish a prima facie case of disability under the ADA.
Even if the Court finds that Plaintiff could establish a prima facie case of disability, the City of Tucson has provided a legitimate, non-discriminatory reason for his termination. As early as his time at the Academy, Plaintiff was counseled regarding issues such as a poor attitude and an inability to complete drills. Def.'s SOF (Doc. 46), Wuerfel Depo. 11/6/2017 at 28:11-29:5, 29:21-30:3, Bates Nos. COTMSJ0137-39. Plaintiff's physical conditioning continued to be an issue at his first post-Academy assignment to Station 16. Id., Greene Depo. 11/7/2017 at 19:17-22, Bates No. COTMSJ0164 & Exh. "2," Bates Nos. COTMSJ0167-69. At Station 5, Plaintiff's areas of weakness were not limited to physical conditioning. See id., TFD Perf. Eval. for Probationary Firefighter 10/19/2015, Bates Nos. COTMSJ0203-05 ("General Work Habits," "Safety," "Knowledge of Policies & Procedures," "Communications Equipment & Procedures," and "EMT Skills" were listed as areas requiring improvement). Plaintiff was terminated after a call in which he did not follow his senior firefighter into an apartment. Id., Burroughs Depo. 10/26/2017 at 104:11-105:5, 107:10-16, Bates Nos. COTMSJ0081-83. Captain Fleck noted that Plaintiff's failure to communicate with either his Captain or partner resulted in this error. 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. In recommending Plaintiff's termination, Captain Fleck further noted Plaintiff's "difficulty retaining information and skills taught to him, demonstrated, and practiced[,]" difficulty with EMT skills, and ongoing inability to meet all of the standards required of firefighters. Id. The City has demonstrated that Plaintiff's ongoing performance issues were the reason for his termination.
Plaintiff asserts that the City's reasons for firing him were pretext, as evidenced by
Captain Wuerfel's attempt to terminate him three (3) days after his injury. Pl.'s Response (Doc. 50) at 11-12. Plaintiff further argues that Plaintiff's actual termination four and a half months later, and his supervisors giving him more onerous exercises, demonstrate that he was targeted because of his disabilities. Id. The admissible evidence does not support Plaintiff's claim.
As discussed in Section III.A.3., supra, the record reflects that Plaintiff had ongoing performance issues regarding his physical fitness, mental focus, and attitude. Plaintiff graduated the Academy and continued working at two different stations prior to his termination. Plaintiff's allegation that he was "targeted" is unsupported by the documented ongoing concerns. Even if the Court accepts Plaintiff's allegation that he was given more onerous fitness drills than other firefighters, this does not negate the issues with communication, mental focus, and poor attitude that were also grounds for his termination. Accordingly, Plaintiff has not shown that the City's proffered reasons for firing were pretextual.
Arizona's Employment Protection Act, A.R.S. § 23-1501(A)(3)(c)(iii), provides that an employee has a claim against an employer for wrongful termination if the employer has terminated the employment relationship in retaliation for "[t]he exercise of rights under the workers' compensation statutes prescribed in chapter 6 of this title." A.R.S. § 23-1501(A)(3)(c)(iii). To succeed on such a claim, Plaintiff must show that (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there is a causal link between the two. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1113 (9th Cir. 2003).
Plaintiff cannot show that there is a causal link between his worker's compensation claim and his termination. The evidence shows that Chief Blume did not know that Plaintiff had made a worker's compensation claim. Def.'s SOF (Doc. 46), Blume Depo. 11/3/2017 at 80:21-81:9, Bates Nos. COTMSJ0212-13. Moreover, the evidence does not support Plaintiff's claim that Captain Fleck knew of the claim. Id., Burroughs Depo. 10/26/2017 at 114:11-118:24, Bates Nos. COTMSJ0089-91. Further, the ultimate decision to terminate Plaintiff was made by Assistant Chief Brad Olson. Id., Blume Depo. 11/3/2017 at 58:4-16, Bates Nos. COTMSJ0210-11. Plaintiff has failed to meet his burden. The record demonstrates that he was fired because of poor performance, and there is no evidence of retaliation.
Based upon the foregoing, the Court finds that Plaintiff has failed to meet his burden in opposing Defendant's motion for summary judgment. Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (Doc. 45) is GRANTED. IT IS FURTHER ORDERED that this matter is DISMISSED WITH PREJUDICE.
Def.'s SOF (Doc. 46), Burroughs Depo. 10/26/2017 64:1-6, Bates No. COTMSJ0067. Plaintiff unequivocally testified regarding two separate incidents, whether or not they occurred on the same day is immaterial.
