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McElmurry v. Arizona Department of Agriculture

United States District Court, D. Arizona

May 2, 2014

Barbara Joy McElmurry, Plaintiff,
Arizona Department of Agriculture, Defendant.


G. MURRAY SNOW, District Judge.

Pending before the Court are Defendant's Motions for Summary Judgment (Doc. 57) and to Strike Plaintiff's Reply in Support of Opposition to Summary Judgment (Doc. 65). For the following reasons, the Motions are granted.


This case arises from Plaintiff Barbara Joy McElmurry's employment with Defendant Arizona Department of Agriculture (the "Department"). The Department hired McElmurry on February 1, 2010 as an Agriculture Inspector II in the Department's Plant Services Division in Yuma, Arizona. (Doc. 60 ("PSOF") ¶ 2; Doc. 58 ("DSOF") ¶ 1.) Her role was part of the Department's efforts to combat the Asian citrus psyllid (ACP), a small insect. (DSOF ¶¶ 2-4.) Agriculture Inspectors at the Department have two major responsibilities. (DSOF ¶ 3.) First, they do field work in which they monitor and inspect plants, plant materials, and commodities for specific pests. ( Id. ) Second, they do screening, in which they screen traps for pests by viewing the traps under a microscope. ( Id. )

When Plaintiff was hired in 2010, some of her fellow new Inspectors were assigned to screening duties, some of them were assigned field work duties, and some were allowed to rotate between the two roles. (DSOF ¶ 2.) Plaintiff was assigned to screening duties. (PSOF ¶ 3.) In fall 2010, following complaints about physical discomfort from some employees assigned to screening duties, Yuma Operations Manager Jerry Reiffenberger and the Department implemented a formal rotation of duties for qualified ACP Agriculture Inspectors. (DSOF ¶ 9.) This rotation program did not actually begin until June 2011. (PSOF ¶ 9.)

In July 2010, Department employee Mary Garman was appointed Agriculture District Supervisor of the ACP program. (PSOF ¶ 8; DSOF ¶ 11.) At some point later, Reiffenberger began hearing reports from ACP Agriculture Inspectors that there was ongoing conflict between Garman and McElmurry. (PSOF ¶ 8; DSOF ¶ 11.) On August 25, 2010, McElmurry met with Reiffenberger and Garman and discussed "harassment that Ms. Garman was perpetrating on [Plaintiff] and other employees." (PSOF ¶ 4.) After the meeting, this harassment escalated. ( Id. ) Garman constantly watched McElmurry, threatened to fire her, made comments about her short stature, and touched her. ( Id. ) Garman also moved some screening employees to the field, leaving McElmurry to have to screen a higher number of traps. ( Id. ) No field employees were brought into the lab to make up for this shift. ( Id. )

On September 29, 2010, Garman again threatened McElmurry and McElmurry told Reiffenberger that she was going to file harassment charges against Garman. (PSOF ¶ 11.) Reiffenberger suggested there would be consequences for McElmurry if she did so. ( Id. ) On September 30, 2009, McElmurry called into work sick and left a voicemail message on Garman's answering machine. ( Id. ) McElmurry states that Garman called Reiffenberger to report that McElmurry said sarcastic things in this message, but that this was not the case. ( Id. )

At this point, Reiffenberger spoke to Department Human Resources Manager Anna Villa and discussed McElmurry's alleged inappropriate conduct, including her inability work with Garman and poor attitude in the workplace. (DSOF ¶ 14.) He decided to terminate McElmurry, and Villa began to prepare the paperwork to do so. ( Id. )

In early October 2010, McElmurry gave a written complaint of harassment to Reiffenberger. (PSOF ¶ 12; DSOF ¶ 15.) The written complaint describes that Garman had been rude to McElmurry and to other employees, that both McElmurry and other employees had suffered from eyestrain from their screening duties, and that Garman was angry with her "because [she] asked [Garman] not to touch me, grab my arm, put her head on top of my head and put her arms around my shoulders and not to call me hon'" because these behaviors made McElmurry "very uncomfortable." (Doc. 58-1, Ex. 5.) McElmurry states that Villa spoke to her and others about the charge and "focused on this charge as if it was about sexual harassment' and not the true harassment that was happening.'" (PSOF ¶ 14.) Defendant conducted an investigation into McElmurry's charge and found that no other Department employees had witnessed Garman touching, hugging, or grabbing McElmurry or calling her "hon." (DSOF ¶ 21.) McElmurry told Reiffenberger that Garman had touched her arm to get her attention and Villa instructed Garman to not touch employees in order to get their attention. (DSOF ¶ 22.) In late October, Villa met with McElmurry about the results of investigation, informed her she had been unable to sustain McElmurry's harassment allegations, and told her she needed to follow her supervisor's direction even when she did not agree with it. (DSOF ¶ 23.)

While implementing the formal rotation of Inspectors, the Department discovered that many Inspectors had not undergone the physical examinations required to do field work. (DSOF ¶¶ 24-28.) The Department required these employees to have the examinations completed. ( Id. ) McElmurry had her physical on October 27, 2010 and was cleared for duty without any restrictions. (PSOF ¶¶ 15-16; DSOF ¶ 32.)

On October 31, 2010, McElmurry was scheduled to begin field work training, but this was put on hold because McElmurry made a verbal request for a workplace accommodation. (DSOF ¶ 33.) On November 3, 2010, McElmurry submitted a letter from a physician's assistant stating that she "is of short stature at 58 inches tall" and requires accommodations to drive large trucks and field cars." (DSOF ¶ 34; Doc. 58-1, Ex. 7.) In response to this request, Lisa Laird, a Loss Prevention Consultant for the State of Arizona's Risk Management Division, conducted a workplace assessment in the presence of Anna Villa. (DSOF ¶ 36.) During this assessment, McElmurry "was subjected to having two [Department] employees crawl over her seated in a vehicle while the measured her from buttocks to feet" and "[n]o explanation was given to her for this action." (PSOF ¶ 19.) McElmurry challenged Laird's qualifications during the assessment and asked Villa if she was being retaliated against for being required to perform field work duties. (DSOF ¶ 37.) McElmurry states that it is alleged that she received a Memorandum of Concern for her behavior during the assessment, but that this is not true because the Department cannot provide a copy of the Memorandum that is signed by McElmurry. (PSOF ¶ 22.)

After the assessment, Laird recommended to Villa that McElmurry be allowed to drive a smaller car and that a seat cushion would allow her to do so safely. (DSOF ¶ 39.) Laird also suggested that the Department put in writing that McElmurry's field work route not involve orchards, but instead involve traps placed at lower heights. (DSOF ¶ 40.) While a cushion was ordered, McElmurry never received it. (PSOF ¶ 23.) McElmurry was then transferred to the field and Garman told her she would never return to screening. (PSOF ¶ 24.) McElmurry injured her ankle while in the field and Garman denied her a Worker's Compensation Claim. ( Id. ) McElmurry took time off work and, upon her return, Reiffenberger told her to return to the lab for screening duties. ( Id. ) That same day, ACP program Administrative Secretary Coleen Nelson called Reiffenberger to complain that McElmurry had used loud, inappropriate language at work. (DSOF ¶ 45.) McElmurry was terminated later that day. (PSOF ¶ 25; DSOF ¶ 46.) McElmurry talked to Anna Villa and was told that the Department did not need to have a reason to fire her because Arizona is a right-to-work state. (PSOF ¶ 25.) McElmurry contacted the Department Division of Occupational Safety and Health and they did an investigation into her discrimination claims. (PSOF ¶ 26.)

On July 13, 2011, McElmurry filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). (DSOF ¶ 49.) On August 8, 2012, the EEOC issued a Dismissal and Notice of Rights to McElmurry. (DSOF ¶ 50.) On October 5, 2011, the Arizona Civil Rights Division ("ACRD") issued McElmurry a Notice of Right to Sue, noting that she had filed a charge on January 14, 2011 and that she had approximately 90 days remaining "before the expiration of the one year deadline for filing a civil action in Superior Court." (DSOF ¶ 51.)

McElmurry filed the present action in this Court on October 18, 2012, alleging various forms of discrimination. (Doc. 1.) On June 11, 2013, the Court granted Defendant's Motion to Dismiss McElmurry's age discrimination claims, disability discrimination claims under the Arizona Civil Rights Act ("ACRA"), and her wrongful termination claim. (Doc. 15.) The Court denied Defendant's Motion with respect to Plaintiff's disability claims under the Americans with Disabilities Act ("ADA") and ...

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