This matter is before the Court on US Airways, Inc.'s ("Defendant") Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. (Doc. 71) Pamela D. April ("Plaintiff") opposes the Motion. (Doc. 75) All parties have consented in writing to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (Doc. 15) After considering the briefing and exhibits submitted on the Motion and the relevant case law, the Court concludes that Defendant is entitled to summary judgment.
Plaintiff's Amended Complaint alleges violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Arizona Civil Rights Act ("ACRA"), Arizona Revised Statutes ("A.R.S.") § 41-1463(B)(1). (Doc. 9) Plaintiff suffers from psoriasis which she alleges is a disability under the ADA. Her claims arise out of her two-year employment as a part-time customer service agent at US Airways' operational hub located at Sky Harbor International Airport. (DSOF ¶ 1-2, 83, 115*fn1 ) It is undisputed that, during the first eighteen months of her employment, Plaintiff received approval for, at least, five leaves of absence for various reasons including a death in the family, childcare issues, an ovarian cyst, and tonsillitis. (DSOF ¶ ¶ 23- 25, 27, 29, 37; PSOF ¶ 23-25, 27, 29, 37)
In October 2007, Plaintiff requested a brief leave of absence due to a medical condition, psoriasis. (DSOF ¶ 34; PSOF 34) In support of her request, Plaintiff submitted a letter from her treating dermatologist, Dr. William Ko, stating that he favored "a short time off work" for Plaintiff to recover from the flare-up of her psoriasis. (DSOF ¶ 35; PSOF ¶ 35) Defendant granted Plaintiff's leave request. (DSOF ¶ 34; PSOF ¶ 34) This was Plaintiff's first request for leave related to psoriasis. (DSOF ¶ 23-33)
In January 2008, Plaintiff requested a leave of absence from January 3 to January 17, 2008. (DSOF ¶ 42-43) There is no dispute that Defendant denied Plaintiff's leave request because Plaintiff's treating dermatologist, Dr. Ko, indicated that Plaintiff did not need leave. Dr. Ko indicated that, although Plaintiff's psoriasis flared up and she was experiencing redness, soreness and discomfort, her ability to perform her job was not restricted. (DSOF ¶ 43-44; PSOF ¶ 43-44) Although Defendant denied Plaintiff's request for medical leave, it granted her a brief personal leave from January 3 to January 17, 2008 to get her affairs in order and return to work. (DSOF ¶ 44; PSOF ¶ 44)
In early February 2008, Plaintiff's psoriasis flared again. The flare was a continuation and worsening of the flare up for which she had seen Dr. Ko in January 2008. (DSOF ¶ 47, 49; PSOF ¶ 47,49) On February 11, 2008, Plaintiff verbally requested a leave of absence based on her psoriasis' flare from Dan Jensen, one of the Shift Supervisors who administered employee leave. (DSOF ¶ 53-54; PSOF § 53-54) Jensen gave Plaintiff a Health Care Provider Form and told Plaintiff that he would take care of processing Plaintiff's leave request after he received the necessary paperwork from Dr. Ko. He also told Plaintiff not to report for her scheduled shift that evening. (DSOF ¶¶ 55-57)
Dr. Ko later submitted paperwork to US Airways, specifying that Plaintiff could return to work in four to six weeks because he believed her psoriasis would improve within four to six weeks under his treatment. (DSOF ¶ 64-66) Plaintiff, however, did not return to work after six weeks. US Airways terminated Plaintiff's employment, effective April 17, 2008, due to job abandonment. (DSOF ¶¶ 106-108; PSOF ¶ 106-108)
Plaintiff alleges that her psoriasis is a disability that Defendant should have accommodated with an indefinite leave of absence. Plaintiff filed an administrative charge and eventually this lawsuit, alleging that US Airways failed to accommodate her disability in violation of the ADA and the ACRA by failing to grant her February 11, 2008 request for an indefinite medical leave of absence. Defendant argues that it is entitled to summary judgment because: (1) Plaintiff's ACRA claim is untimely; (2) Plaintiff is not disabled; and (3) even if Plaintiff were considered disabled, no reasonable accommodation existed that would have allowed Plaintiff to perform the essential functions of her job.
Summary judgment is appropriate when the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994); Fed.R.Civ.P. 56(a) ("[T]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. . . ."). Substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Jesinger, 24 F.3d. at 1130. In addition, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. The dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994).
The party opposing summary judgment may not rest upon the mere allegations or denials of the party's pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Lind Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995); Fed.R.Civ.P. 56(e)(3) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it[.]"). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. However, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor." Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
Whatever facts which may establish a genuine issue of fact must both be in the district court's file and set forth in the response. Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1029 (9th Cir. 2001); Rule 56(c)(3), Fed.R.Civ.P. The trial court may determine whether there is a genuine issue of fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers. Though the court has discretion in appropriate circumstances to consider other materials, it need not do so. The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.