United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Defendant's Motion for Summary Judgment (the "Motion"). (Doc. 53). Defendant has also filed a Separate Statement of Facts. (Doc. 54). Plaintiff has filed a Response to the Motion (Doc. 57) and a Controverting Statement of Facts in Support of Opposition to the Motion (Doc. 58). Defendant has filed a Reply. (Doc. 59). The Court now rules on the Motion.
For purposes of the Court's resolution of the pending Motion, the Court considers the relevant facts and background, viewed in Plaintiff's favor,  to be as follows.
On September 2, 2008, Pamela Ann Wood ("Plaintiff") began working as an Adult Nurse Case Manager for University Physicians Healthcare ("Defendant"). (Plaintiff's Controverting Statement of Facts ("PCSOF"), Doc. 58 ¶¶ 20, 22; Defendant's Statement of Facts ("DSOF"), Doc. 54 ¶¶ 20, 22). As an Adult Nurse Case Manager, Plaintiff was responsible for documenting and caring for patients who were members of Defendant's Health Plan, including advising the patients on hospital discharge, follow-ups, calls to patients, and problem solving with respect to health care and other issues. (PCSOF ¶ 35). Plaintiff's salary was set at $30.00 per hour. (PCSOF ¶ 32). Additionally, until January 2009, Deb Keller ("Keller") served as Plaintiff's supervisor. (PCSOF ¶ 36).
Plaintiff suffered from Crohn's Disease throughout her employment with Defendant. (PCSOF ¶¶ 14, 18). Keller was unaware, however, of Plaintiff's Crohn's Disease when Plaintiff accepted employment with Defendant and when Plaintiff's salary was set. (PCSOF ¶¶ 32, 103). Plaintiff's condition ordinarily causes her to "go to the bathroom a lot" with "major diarrhea, " "fatigue, " and "joint aches" and is aggravated by stress. (PCSOF ¶ 15).
Prior to an October 2008 meeting between Plaintiff and Keller, Keller conferred with Defendant's Medical Director regarding Plaintiff's health. (PCSOF ¶ 55). Keller and the Medical Director decided that there was a chance they would have to reduce Plaintiff's working hours and, as a result, possibly release Plaintiff from her employment obligations altogether. (PCSOF ¶¶ 55, 56). During the October 2008 meeting, after Plaintiff requested time off to attend medical treatment at the Mayo Clinic, Keller commented, "you were sick when I hired you and you didn't tell me?" (PCSOF ¶¶ 71, 73; DSOF ¶ 73). During the meeting, Keller also denied Plaintiff's request to work from home. (PCSOF ¶ 53). At the close of the meeting, Keller asked Plaintiff to send an e-mail to both Keller and Martha Rodriguez ("Rodriguez"), who replaced Keller as Plaintiff's supervisor in early 2009 (PCSOF ¶ 78), which discussed Plaintiff's medical condition and the possibility that Plaintiff would need to "flex [her] working hours outside of the parameters of the Human Resources guidelines from time to time" due to medical treatment. (PCSOF ¶¶ 59-63; Doc. 54-2 at 30). Following the October 2008 meeting, Plaintiff learned that Keller allowed Tonisha Adams, who did not have the same type of job, certifications, or degree as Plaintiff, to work from home. (PCSOF ¶¶ 64-66).
In summer 2009, Rodriguez hired Dyana Carnes ("Carnes") and Margarita Wellman ("Wellman") as Adult Nurse Case Managers for Defendant. (PCSOF ¶ 99). Shortly thereafter, Plaintiff learned that Carnes and Wellman earned $34.00 and $32.00 per hour, respectively. (PCSOF ¶ 106; DSOF ¶ 106). After Plaintiff raised the disparate pay issue with her, Rodriguez informed Plaintiff that she considered Carnes', Wellman's, and Plaintiff's salaries to be fair based on each employee's respective qualifications. (PCSOF ¶¶ 108-10; DSOF ¶¶ 108-10). Rodriguez also informed Plaintiff that she may be eligible to receive a raise at her annual performance review in November 2009. (PCSOF ¶ 110; DSOF ¶ 110).
On August 3, 2009, shortly after learning about Carnes' and Wellman's higher salaries, Plaintiff complained to Defendant's Ethics Hotline that Wellman and Carnes were not qualified to make more money than her. (PCSOF ¶¶ 111, 114; DSOF ¶¶ 111, 114). During the hotline call, Plaintiff also complained about being "mistreated and harassed" by Keller and not being allowed to work from home. ( Id. ). Plaintiff's call was referred to Human Resources Partner Cathy Coulter ("Coulter") who investigated and discussed the substance of the issues raised by Plaintiff with Keller and Rodriguez. (PCSOF ¶¶ 117, 118; DSOF ¶¶ 117, 118). Coulter, along with Keller and Rodriguez, reviewed Plaintiff's salary in comparison to Defendant's other Case Managers and determined that no adjustment was necessary. (PCSOF ¶ 119; DSOF ¶ 119). Coulter told Plaintiff to meet with Keller on August 24, 2009 to discuss Plaintiff's concerns about Keller's alleged unfair treatment. (PCSOF ¶¶ 127, 128; Doc. 57 at 3).
Unbeknownst to Keller, Plaintiff recorded the August 24, 2009 meeting. (PCSOF ¶ 132; DSOF ¶ 132). During the meeting, Keller asked to have Plaintiff's doctor fill out a Medical Provider Documentation of Disability form to determine whether Plaintiff required accommodation for her medical condition. (PCSOF ¶¶ 122, 135; DSOF ¶¶ 122, 135). Defendant regularly used this form for Americans with Disabilities Act ("ADA") accommodation requests. (PCSOF ¶ 122; DSOF ¶ 122). Keller premised a decision on whether Plaintiff could work from home on receiving this documentation from Plaintiff's doctor. (Doc. 54-2 at 33). Also during the meeting, Keller stated that she would ask Rodriguez to have weekly one-on-one meetings with Plaintiff so that Plaintiff could receive Rodriguez's "feedback" and so that Rodriguez would be "more available" to Plaintiff. (Doc. 54-2 at 34, 37). Keller also stated that Rodriguez would review Plaintiff's salary at an upcoming annual performance review in November 2009 and make any warranted adjustments. ( Id. at 34). On August 27, 2009, three days after her meeting with Keller, Plaintiff submitted her resignation letter to Rodriguez. (PCSOF ¶ 150). Plaintiff volunteered to work an additional two weeks after her resignation despite knowing that she would be paid for that time period regardless of whether she worked. (PCSOF ¶¶ 158, 159; DSOF ¶¶ 158, 159). Rodriguez declined Plaintiff's offer to work for the additional two weeks. (PCSOF ¶ 160; Doc. 57 at 4).
On September 22, 2009, Plaintiff filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC") against Defendant. (PCSOF ¶ 3; Doc. 58-1 at 25). The EEOC referred the Charge to the Arizona Civil Rights Division ("ACRD") pursuant to a work sharing agreement between the two agencies. (Doc. 58-1 at 48). The EEOC issued its notice of right to sue on March 27, 2012 ( id. at 40-41), a "number of... months" after the "[ACRD] issued the Right to Sue" (Doc. 57 at 11). On November 16, 2012, Plaintiff filed this action in the Maricopa County Superior Court, and on January 10, 2013, Defendant removed this action to this Court. (Doc. 1). On December 4, 2013, Plaintiff amended the Complaint alleging two claims under the ADA and one claim under the Arizona Civil Rights Act ("ACRA"), Ariz. Rev. Stat. §§ 41-1461-1465. (Doc. 50). In the Amended Complaint, Plaintiff alleges that Defendant unlawfully discriminated against Plaintiff in violation of § 102 of Title I of the ADA, 42 U.S.C. § 12112. ( Id. at 5). Further, Plaintiff alleges that Defendant unlawfully retaliated against Plaintiff in violation of § 503(a) of Title V of the ADA, 42 U.S.C. § 12203(a). ( Id. at 5-6). Finally, Plaintiff alleges that she was constructively discharged by Defendant in violation of A.R.S. § 23-1502 and that Defendant unlawfully retaliated against Plaintiff in violation of the ACRA. ( Id. at 6-7).
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "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." Fed.R.Civ.P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must support that assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations... admissions, interrogatory answers, or other materials, " or by "showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Id. at 56(c)(1)(A), (B). Thus, summary judgment is mandated "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e) (1963) (amended 2010)). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. Further, because "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, ... [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) ("Issues of credibility, including questions of intent, should be left to the jury.") (internal citations omitted).
Moreover, the Ninth Circuit "has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). As the Ninth Circuit has explained, "[w]e require very little evidence to survive summary judgment' in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry'-one that is most appropriately conducted by the factfinder, upon a full record.'" Lam v. Univ. of Haw., 40 F.3d 1551, 1564 (9th Cir. 1994) (quoting Sischo-Nownejad v. Merced Cmty. College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991)).
Plaintiff's Amended Complaint alleges three counts: (1) disability discrimination in violation of the ADA; (2) retaliation in violation of the ADA; and (3) retaliation and constructive discharge in violation of the ACRA and A.R.S. § 23-1502. (Doc. 50 at 5-7). Defendant moves for summary judgment on all three counts. (Doc. 53). The Court will consider each count in turn.
A. Count I: Disability Discrimination (ADA)
Plaintiff's first cause of action alleges that Defendant violated the ADA, 42 U.S.C. §§ 12101-12213, by discriminating against Plaintiff in its employment decisions because of Plaintiff's Crohn's Disease. (Doc. 50 at 5). The ADA makes it unlawful to "discriminate against a qualified individual with a disability because of the disability of such individual in regard to... terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
1. Exhaustion of Administrative Remedies
Defendant argues that Plaintiff is barred from asserting a disability discrimination claim under the ADA because "she did not pursue, let alone exhaust, her administrative remedies." (Doc. 53 at 6). Specifically, Defendant contends that Plaintiff did not fulfill the administrative charge requirement for the disability discrimination claim and, alternatively, that claims accrued during and before Plaintiff's October 2008 meeting with Keller are time-barred because they occurred over 300 days before Plaintiff filed her charge with the EEOC on September 22, 2009. ( Id. at 6-9).
a. Fulfillment of the Administrative Charge Requirement
Defendant first argues that Plaintiff's claim for disability discrimination should be dismissed because Plaintiff's Charge identified "Retaliation" as its sole basis and contained factual allegations focusing "exclusively on retaliatory constructive discharge." ( Id. at 7).
A plaintiff must first exhaust her administrative remedies before filing an ADA civil complaint. See 42 U.S.C. § 12117(a) (adopting Title VII remedies and procedures for implementing the ADA); see also B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002) (summarizing the steps a plaintiff must take to exhaust administrative remedies under a Title VII claim). The Court's subject matter jurisdiction is limited to "allegations of discrimination that either fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" B.K.B., 276 F.3d at 1100 (quoting EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994)) (emphasis in original). While the EEOC charge should be liberally construed, the claims in the civil complaint must at least be "like or reasonably related to the allegations contained in the EEOC charge" and consistent with the plaintiff's original theory of the case. Id. (quoting Green v. L.A. Cnty. Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989)) (internal quotation marks omitted).
In assessing whether a claim is within the scope of the EEOC investigation and can be reasonably expected to grow out of the charge of discrimination, a court should examine whether the plaintiff described "the facts and the legal theory with sufficient clarity to notify the [EEOC]." Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981) (quoting Cooper v. Bell, 628 F.2d 1208, 1211 (9th Cir. 1980)) (internal quotation marks omitted), accord Greenlaw v. Garrett, 59 F.3d 994, 999 (9th Cir. 1995). "The crucial element of the charge of discrimination is the factual statement contained therein." Kaplan v. Int'l Alliance of Theatrical and Stage Emps., 525 F.2d 1354, 1359 (9th Cir. 1975) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (9th Cir. 1970)). Additionally, when construing whether a charge is within the scope of the EEOC investigation, a court may examine evidence contained in the EEOC Intake Questionnaire or explicit notifications within the EEOC's investigation. See Liaosheng ...