                           NOT FOR PUBLICATION                           FILED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




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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


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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


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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


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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.




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