NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL J. MURRAY, M.D. - a married No. 17-16803 man, D.C. No. 2:14-cv-01314-SPL Plaintiff-Appellant,
v. MEMORANDUM*
MAYO CLINIC, a Minnesota nonprofit corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding
Argued and Submitted June 13, 2019 San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and PEARSON,** District Judge.
Plaintiff Michael Murray timely appeals from the district court’s granting of
Defendants’ motion for partial summary judgment, its instructions to the jury, and
its evidentiary rulings. We address Murray’s challenge to the district court’s jury
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. instruction regarding the applicable causation standard for his ADA discrimination
claim in a concurrently-filed opinion.
1. The district court properly applied the factors under Leisek v. Brightwood
Corp., 278 F.3d 895 (9th Cir. 2002), and correctly granted summary judgment on
Murray’s claim for wrongful discharge in violation of the Uniformed Services
Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311(a),
because no genuine issue of material fact exists regarding whether Murray’s
termination was motivated by antimilitary animus. Viewed in the light most
favorable to Murray, Defendants’ intraoffice emails do not rise to the level of
expressed hostility. Nor is the three-month gap between Murray’s return from
medical leave and Defendants’ investigation of his conduct in the operating room,
in and of itself, sufficient to support an inference of discrimination based on
temporal proximity. Murray experienced no negative treatment from his employer
during this period of time, and his placement on administrative leave occurred
immediately after the incident in the operating room. Moreover, neither
Defendants’ decision not to report Murray’s conduct in the operating room to the
Arizona Medical Board nor Drs. Krahn and Trentman’s questions concerning
Murray’s anger outbursts and concentration issues are inconsistent with
Defendants’ decision to terminate Murray based on his conduct. Finally, Murray
2 17-16803 fails to explain how Dr. Krahn’s involvement in Murray’s medical case after she
handed the matter off to Occupational Medicine is evidence of disparate treatment.
In the alternative, Defendants affirmatively established that they would have
terminated Murray without regard to his military service, based on the incident in
the operating room. By his own admission, Murray grabbed Dr. Chien by the
shoulders, pushed him, and yelled at him not to touch the equipment. Murray then
screamed at Dr. Chien to leave the room. Murray later admitted to Drs. Trentman
and Krahn that his behavior was inappropriate. Murray, aware that Mayo Clinic
Arizona had terminated a Certified Registered Nurse Anesthetist with no military
affiliation for a similar reason, confessed to his psychiatrist shortly after the
incident that he was worried he would be terminated. For the same reasons, the
district court correctly granted summary judgment on Murray’s claim for wrongful
discharge in violation of USERRA, 38 U.S.C. § 4316(c), because there is no
genuine issue of material fact that Defendants lacked cause to terminate Murray.
2. The district court properly granted summary judgment on Murray’s FMLA
and ADA claims against Mayo Clinic on the grounds that Mayo Clinic was not
Murray’s employer under the FMLA and Murray failed to exhaust his
administrative remedies. Murray produced evidence suggesting only that Mayo
Clinic Arizona is a subsidiary of Mayo Clinic. Evidence of a parent-subsidiary
relationship is insufficient to impute liability to the parent corporation. See United
3 17-16803 States v. Bestfoods, 524 U.S. 51, 69 (1998) (corporate personalities are distinct).
Additionally, Murray made his EEOC charge against only one entity—“Mayo
Clinic in Arizona.” He did not exhaust his administrative remedies against Mayo
Clinic.
3. The district court did not abuse its discretion by instructing the jury on Mayo
Clinic Arizona’s “direct threat” affirmative defense. In its original Answer,
Defendant pleaded that Murray’s ADA claims were barred because “[a]ny
requested accommodation would impose a direct threat to the health and safety of
patients and co-workers.” Later, Murray voluntarily dismissed with prejudice his
failure to provide reasonable accommodation claim. After a hearing on the issue,
the district court instructed the jury on the defense. Although Defendants’
affirmative defense was imprecisely pleaded, the district court did not abuse its
discretion by liberally construing Defendants’ operative Answer.
4. The district court did not err by refusing to adopt Murray’s requested jury
instruction to find causation for Murray’s ADA discrimination claim if Murray’s
termination was “motivated in part by [Defendants’] concern over conduct that
may result from a disability that they regarded him as having[.]” This standard
was derived from Gambini v. Total Renal Care, Inc., in which we held that “a jury
must be instructed that it may find that the employee was terminated on the
impermissible basis of her disability” when the employee establishes a causal link
4 17-16803 between the termination and conduct arising from the disability. 486 F.3d 1087,
1093 (9th Cir. 2007). Gambini’s reasoning does not extend to regarded-as ADA
claims. “[C]onduct resulting from a disability is considered to be part of the
disability, rather than a separate basis for termination.” Mayo v. PCC Structurals,
Inc., 795 F.3d 941, 946 (9th Cir. 2015) (quoting Humphrey v. Mem’l Hosps. Ass’n,
239 F.3d 1128, 1139–40 (9th Cir. 2001)). Furthermore, Murray, who alleged no
disability and requested no accommodations, has not shown that his conduct
resulted from a regarded-as disability.
5. The district court did not err by refusing to adopt Murray’s proposed jury
instruction allowing the jury to impute “his supervisors’ bias and discriminatory
motive . . . to the ultimate decisionmakers, regardless of whether the ultimate
decisionmakers actually regarded Dr. Murray as disabled or held any
discriminatory bias of their own when they decided to terminate Dr. Murray.”
Subordinate bias liability does not apply to FMLA interference claims. “In
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL J. MURRAY, M.D. - a married No. 17-16803 man, D.C. No. 2:14-cv-01314-SPL Plaintiff-Appellant,
v. MEMORANDUM*
MAYO CLINIC, a Minnesota nonprofit corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding
Argued and Submitted June 13, 2019 San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and PEARSON,** District Judge.
Plaintiff Michael Murray timely appeals from the district court’s granting of
Defendants’ motion for partial summary judgment, its instructions to the jury, and
its evidentiary rulings. We address Murray’s challenge to the district court’s jury
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. instruction regarding the applicable causation standard for his ADA discrimination
claim in a concurrently-filed opinion.
1. The district court properly applied the factors under Leisek v. Brightwood
Corp., 278 F.3d 895 (9th Cir. 2002), and correctly granted summary judgment on
Murray’s claim for wrongful discharge in violation of the Uniformed Services
Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311(a),
because no genuine issue of material fact exists regarding whether Murray’s
termination was motivated by antimilitary animus. Viewed in the light most
favorable to Murray, Defendants’ intraoffice emails do not rise to the level of
expressed hostility. Nor is the three-month gap between Murray’s return from
medical leave and Defendants’ investigation of his conduct in the operating room,
in and of itself, sufficient to support an inference of discrimination based on
temporal proximity. Murray experienced no negative treatment from his employer
during this period of time, and his placement on administrative leave occurred
immediately after the incident in the operating room. Moreover, neither
Defendants’ decision not to report Murray’s conduct in the operating room to the
Arizona Medical Board nor Drs. Krahn and Trentman’s questions concerning
Murray’s anger outbursts and concentration issues are inconsistent with
Defendants’ decision to terminate Murray based on his conduct. Finally, Murray
2 17-16803 fails to explain how Dr. Krahn’s involvement in Murray’s medical case after she
handed the matter off to Occupational Medicine is evidence of disparate treatment.
In the alternative, Defendants affirmatively established that they would have
terminated Murray without regard to his military service, based on the incident in
the operating room. By his own admission, Murray grabbed Dr. Chien by the
shoulders, pushed him, and yelled at him not to touch the equipment. Murray then
screamed at Dr. Chien to leave the room. Murray later admitted to Drs. Trentman
and Krahn that his behavior was inappropriate. Murray, aware that Mayo Clinic
Arizona had terminated a Certified Registered Nurse Anesthetist with no military
affiliation for a similar reason, confessed to his psychiatrist shortly after the
incident that he was worried he would be terminated. For the same reasons, the
district court correctly granted summary judgment on Murray’s claim for wrongful
discharge in violation of USERRA, 38 U.S.C. § 4316(c), because there is no
genuine issue of material fact that Defendants lacked cause to terminate Murray.
2. The district court properly granted summary judgment on Murray’s FMLA
and ADA claims against Mayo Clinic on the grounds that Mayo Clinic was not
Murray’s employer under the FMLA and Murray failed to exhaust his
administrative remedies. Murray produced evidence suggesting only that Mayo
Clinic Arizona is a subsidiary of Mayo Clinic. Evidence of a parent-subsidiary
relationship is insufficient to impute liability to the parent corporation. See United
3 17-16803 States v. Bestfoods, 524 U.S. 51, 69 (1998) (corporate personalities are distinct).
Additionally, Murray made his EEOC charge against only one entity—“Mayo
Clinic in Arizona.” He did not exhaust his administrative remedies against Mayo
Clinic.
3. The district court did not abuse its discretion by instructing the jury on Mayo
Clinic Arizona’s “direct threat” affirmative defense. In its original Answer,
Defendant pleaded that Murray’s ADA claims were barred because “[a]ny
requested accommodation would impose a direct threat to the health and safety of
patients and co-workers.” Later, Murray voluntarily dismissed with prejudice his
failure to provide reasonable accommodation claim. After a hearing on the issue,
the district court instructed the jury on the defense. Although Defendants’
affirmative defense was imprecisely pleaded, the district court did not abuse its
discretion by liberally construing Defendants’ operative Answer.
4. The district court did not err by refusing to adopt Murray’s requested jury
instruction to find causation for Murray’s ADA discrimination claim if Murray’s
termination was “motivated in part by [Defendants’] concern over conduct that
may result from a disability that they regarded him as having[.]” This standard
was derived from Gambini v. Total Renal Care, Inc., in which we held that “a jury
must be instructed that it may find that the employee was terminated on the
impermissible basis of her disability” when the employee establishes a causal link
4 17-16803 between the termination and conduct arising from the disability. 486 F.3d 1087,
1093 (9th Cir. 2007). Gambini’s reasoning does not extend to regarded-as ADA
claims. “[C]onduct resulting from a disability is considered to be part of the
disability, rather than a separate basis for termination.” Mayo v. PCC Structurals,
Inc., 795 F.3d 941, 946 (9th Cir. 2015) (quoting Humphrey v. Mem’l Hosps. Ass’n,
239 F.3d 1128, 1139–40 (9th Cir. 2001)). Furthermore, Murray, who alleged no
disability and requested no accommodations, has not shown that his conduct
resulted from a regarded-as disability.
5. The district court did not err by refusing to adopt Murray’s proposed jury
instruction allowing the jury to impute “his supervisors’ bias and discriminatory
motive . . . to the ultimate decisionmakers, regardless of whether the ultimate
decisionmakers actually regarded Dr. Murray as disabled or held any
discriminatory bias of their own when they decided to terminate Dr. Murray.”
Subordinate bias liability does not apply to FMLA interference claims. “In
interference claims, the employer’s intent is irrelevant to a determination of
liability.” Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011). Liability
under a “cat’s paw” theory, by contrast, is predicated on the imputation of a
supervisor’s bias onto an employer. See Staub v. Proctor Hosp., 562 U.S. 411,
414, 421 (2011) (“The employer is at fault because one of its agents committed an
action based on discriminatory animus that was intended to cause, and did in fact
5 17-16803 cause, an adverse employment decision.”). Moreover, the district court adequately
instructed the jury on Murray’s theory of subordinate bias liability with regard to
his ADA discrimination claim.
6. The district court did not abuse its discretion in excluding evidence of a
witness’s drug use and of Defendants’ intraoffice emails. The district court
reasonably determined that the witness’s drug use 21 months after the operating
room incident was too remote in time to be relevant. See United States v. Bibo-
Rodriguez, 922 F.2d 1398, 1400 (9th Cir. 1991). Additionally, the excluded
intraoffice emails are irrelevant to Murray’s FMLA and ADA claims. See Fed. R.
Evid. 402. Even assuming arguendo that the emails had relevance, any probative
value is substantially outweighed by the danger of confusing the issue of Murray’s
dismissed USERRA claims with his FMLA and ADA claims. See Fed. R. Evid.
403.
AFFIRMED.
6 17-16803