Rightsell v. Concentric Healthcare Sols.

• Decision Date: 09 March 2022
• Docket Number: CV-19-04713-PHX-GMS
• Court: U.S. District Court — District of Arizona
• Parties: Kendra Rightsell, Plaintiff, v. Concentric Healthcare Solutions LLC, et al., Defendants.

Kendra Rightsell, Plaintiff,
v.
Concentric Healthcare Solutions LLC, et al., Defendants.

No. CV-19-04713-PHX-GMS

United States District Court, D. Arizona

March 9, 2022

ORDER

G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE

Pending before the Court is Kendra Rightsell's (“Plaintiff”) Motion for Partial Summary Judgment (Doc. 66.) Also pending before the Court is Concentric Healthcare Solutions, LLC, dba Concentric Healthcare Staffing, Kyle Silk, and Chris Bollinger's (“Defendants”) Cross-Motion for Partial Summary Judgment (Doc. 72.)^[1] For the reasons below, Plaintiff's Motion is granted in part and denied in part, and Defendants' Motion is denied.^[2]

BACKGROUND

Plaintiff, a former employee of Defendant Concentric, alleges that Defendants

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discriminated against her after she took legally protected leave, in violation of the Family Medical Leave Act (“FMLA”) and the Arizona Fair Wages and Healthy Families Act (“Paid Sick Leave Act”). (Doc. 1.) Plaintiff began working at Concentric in May 2015. (Doc. 73 at 1-2.) While Plaintiff was employed at Concentric, Defendant Silk was President and Chief Operating Officer, and Defendant Jacobs was Vice President. (Doc. 73 at 2-4.) Defendant Jacobs was Plaintiff's immediate supervisor. (Doc. 73 at 2-3.)

In June 2017, Plaintiff submitted an FMLA request to Shannon Riley (“Ms. Riley”), Concentric's Compliance Manager and Human Resources professional. (Doc. 73 at 19); (Doc. 78 at 2.) Plaintiff was approved for intermittent leave. (Doc. 73 at 6-7.) During her time at Concentric, Plaintiff used 142.5 total hours of leave, although the parties contest how many hours were paid vacation time as opposed to FMLA leave. (Doc. 73 at 20); (Doc. 78 at 3.) Less than a year after Plaintiff's FMLA was approved, Defendant Jacobs turned her down for a promotion. (Doc. 73 at 8.) Plaintiff alleges that this was due to her FMLA absences; however, Defendants contend that Plaintiff was not promoted because of her poor job performance. (Doc. 73 at 8.) Allegedly because of this declining job performance, Plaintiff was put on a “Performance Improvement Plan” (“PIP”) on July 13, 2018.^[3] (Doc. 73 at 12.)

On July 16, 2018-the business day after Plaintiff was put on a PIP-Plaintiff texted Defendant Jacobs that her daughter was ill, she was trying to arrange childcare, but she would not be available to start her shift. (Doc. 73 at 13.) Defendants allege that Plaintiff did not have paid time off (“PTO”) available to cover her absence on July 16. (Doc. 73 at 13-14.) Plaintiff alleges that she had 4.4 hours of unused PTO. (Doc. 73 at 13-14.) Regardless, Plaintiff was informed of her termination at 4:45 P.M. on July 16. (Doc. 73 at 15.) Citing both the denial of promotion and her termination, Plaintiff now seeks damages under the FMLA and Arizona Paid Sick Leave Act.

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DISCUSSION

I. Legal Standard

The purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“[A] party seeking summary judgment always 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. Parties opposing summary judgment are required to “cit[e] to particular parts of materials in the record” establishing a genuine dispute or “show[] that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). “Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018) (quoting Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)).

II. Striking Evidence

Plaintiff alleges that Ms. Riley's and Defendant Silk's declarations are “sham” declarations that should not be considered at summary judgment. (Doc. 77 at 5, 8.) Plaintiff also makes several evidentiary objections to these declarations. (Doc. 77 at 5- 11.)

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A. Shannon Riley Declaration

1. The Mandatory Initial Discovery Project and “Sham” Declaration

Plaintiff objects to the Riley declaration because Ms. Riley states that she was suspicious of Plaintiff's FMLA use despite this suspicion never having been disclosed to Plaintiff during discovery, and because the declaration is a “sham.” (Doc. 77 at 5-8.) Although Plaintiff is correct that if this information was not disclosed pursuant to the MIDP, then it is inadmissible, (Doc. 29 at 2 n.1), the Court finds that these paragraphs do not affect the outcome of the underlying Motions. Therefore, Plaintiff's objection is overruled.

2. Personal Knowledge

Plaintiff next objects to Ms. Riley's declaration because certain statements lack personal knowledge. (Doc. 77 at 5-8.) At summary judgment, a “declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). “An affiant's personal knowledge and competence to testify are often inferable from the facts stated in the affidavit.” Cleveland v. Groceryworks.com, LLC, 200 F.Supp.3d 924, 940 (N.D. Cal. 2016). However, an “affidavit must include sufficient facts clearly within the affiant's personal knowledge to permit this inference.” Id. “Personal knowledge can be inferred from an affiant's position.” Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 206 F.3d 1322, 1330 (9th Cir. 2000).

Plaintiff first contends that Ms. Riley does not have personal knowledge of the assertions in paragraphs 9, 28, 32, and 33 and therefore these paragraphs are inadmissible and should not be considered at summary judgment. (Doc. 77 at 7.) In the declaration, Mr. Riley states that the declaration is made “based on my own personal knowledge, ” and that she is the current Director of Human Resources and was a Human Resources (“HR”) professional while Plaintiff was employed at Concentric. (Doc. 73-1 at 2-3). Paragraph 9 states, “Frequently, Plaintiff would request FMLA leave when her daughter-who lived

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out-of-state-came to visit.” (Doc. 73-1 at 3-4.) Ms. Riley provides no reason why she has knowledge of when Plaintiff's daughter was visiting, nor does either her position, or her general statement at the beginning of the affidavit that it is based on her personal knowledge, warrant an inference of such knowledge. Plaintiff's objection to this portion of paragraph 9 is sustained. Paragraph 28 states that “[Defendant] Jacobs reached out to Plaintiff[, ] and she informed him she would not be coming to work that day.” (Doc. 73-1 at 7.) This statement is textbook hearsay. The Court does not see how Ms. Riley could have known that fact without consulting with Defendant Jacobs. The objection to this portion of Paragraph 28 is sustained. Paragraphs 32 and 33 relate to Concentric's PTO policy. (Doc. 73-1 at 7-8.) It is a permissible inference that an HR employee would have personal knowledge of Concentric's employment policies. Moreover, Ms. Riley specifically attests that she is “personally aware of Concentric terminating other employees due to the fact that they called off work without sufficient PTO available.” (Doc. 73-1 at 8 (emphasis added).) Given Ms. Riley's attestations, and her position in the company, there is sufficient evidence to infer personal knowledge, at least at the summary judgment stage. Plaintiff's objections are overruled as to paragraphs 32 and 33.

3. Hearsay Objections

Plaintiff next objects to paragraphs 26, 28, and 29 because they contain inadmissible hearsay. (Doc. 77 at 8.) “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). However, evidence need not be in an admissible form to be considered at summary judgment. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Enriquez v. Gemini Motor Trans. LP, No. CV-19-04759-PHX-GMS, 2021 WL 5908208, at *2-3 (D. Ariz. Dec. 14, 2021). Instead, the focus is “on the admissibility of its contents.” Fraser, 342 F.3d at 1036.

“Hearsay” is an out-of-court statement that “a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). Paragraph 26 states that “[Defendant] Jacobs also told [Ms. Riley] that Plaintiff did not have any PTO for the

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day, according to the PTO report from Choice Employer Resource-Concentric's payroll company.” (Doc. 73-1 at 7.) What Defendant Jacobs told Ms. Riley was a “statement” made outside of a courtroom and may be asserted as truth: that Plaintiff, indeed, did not have PTO to cover for her absence. However, the statement may also be used to show belief: that Defendants believed Plaintiff did not have enough PTO, and it was this belief that prompted her termination. To the extent the statements show Defendants' belief, they are admissible. To the extent they are propounded for their truth, they are inadmissible.

Paragraph 28 states, “[Defendant] Jacobs reached out to Plaintiff and she informed him she would not be coming to work that day. . ....