Michael Burroughs v. City of Tucson ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL BURROUGHS, No. 18-16994
Plaintiff-Appellant, D.C. No. 4:16-cv-00724-BGM
v.
MEMORANDUM*
CITY OF TUCSON,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Bruce G. Macdonald, Magistrate Judge, Presiding
Submitted March 3, 2020**
Phoenix, Arizona
Before: HAWKINS, OWENS, and BENNETT, Circuit Judges.
Michael Burroughs appeals the adverse summary judgment in favor of the
City of Tucson on his claims of disability discrimination in violation of Title I of the
Americans with Disabilities Act, 42 U.S.C. §§ 12111–12117 (“ADA”), and
retaliation for exercising his workers’ compensation rights in violation of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Arizona Employment Protection Act, A.R.S. § 23-1501(A)(3)(c)(iii). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The record fails to show Burroughs has a “disability” as defined by the ADA.
See 42 U.S.C. § 12102(1). Burroughs was a full-time firefighter with his previous
employer for three to four years. Before joining the Tucson Fire Department, he
completed and passed a physical ability test, submitted a questionnaire stating he
had no “injuries, illnesses or disabilities” that might prevent his completion of a
subsequent fitness assessment, and upon completing said assessment, received
clearance from a City physician that he was capable of performing the duties of a
firefighter. He then submitted a new hire form in which he marked “No” next to the
box asking whether he was disabled. When Burroughs hurt his back at the fire
academy, a City physician evaluated his injury, diagnosed him with a “lumbar
strain,” and released him back to work without restriction. Another City physician
reached the same conclusion two days later when Burroughs complained of
difficulty sitting. And finally, after yet another medical evaluation deeming him fit
for duty, Burroughs graduated from the fire academy and started working at his first
station. Faced with these medical opinions based on physical examinations,
Burroughs’s only contrary evidence is his own conclusory self-assessment. Not
quite a genuine factual dispute. See FTC v. Publ’g Clearing House, Inc., 104 F.3d
1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit, lacking detailed
2
facts and any supporting evidence, is insufficient to create a genuine issue of material
fact.”); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (“When 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.”).
Nor does the record allow one to infer a retaliatory motive for Burroughs’s
termination. Even assuming close temporal proximity between his workers’
compensation claim and subsequent termination,1 Burroughs still “must make some
showing sufficient for a reasonable trier of fact to infer that the [City] was aware that
[he] had engaged in protected activity.” Raad v. Fairbanks N. Star Borough Sch.
Dist., 323 F.3d 1185, 1197 (9th Cir. 2003).2 Not so here. Regardless of who ordered
his termination, Burroughs can at most point to their awareness of the supervisor’s
injury report—which, we note, cleared Burroughs for regular duty. Yet that alone
scarcely alerts one to Burroughs’s efforts to exercise his workers’ compensation
rights. See A.R.S. § 23-1501(A)(3)(c)(iii); cf., e.g., Whitmire v. Wal-Mart Stores,
1
We are uncertain when Burroughs filed his workers’ compensation claim.
Indeed, aside from the supervisor’s injury report, the pages of which bear headers
“Wkr Comp Form 100-A” and “Wkr Comp Form 100-B,” the record contains no
evidence of Burroughs having filed such a claim.
2
Arizona courts rely on federal case law when interpreting state employment
retaliation claims. See Najar v. State, 9 P.3d 1084, 1086 (Ariz. Ct. App. 2000)
(turning to federal courts’ interpretation of Title VII retaliation claims to interpret an
analogous Arizona statute).
3
Inc., 359 F. Supp. 3d 761, 797–98 (D. Ariz. 2019) (imputing knowledge where
employee filed accident report that set workers’ compensation process in motion).
The requisite knowledge is therefore lacking.
AFFIRMED.
4