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Maxwell v. Verde Valley Ambulance Company Incorporated

United States District Court, D. Arizona

September 10, 2014

Matthew Maxwell, Plaintiff,
v.
Verde Valley Ambulance Company Incorporated, Defendant.

ORDER

BRIDGET S. BADE, Magistrate Judge.

In this employment case, [1] Plaintiff Matthew Maxwell (Plaintiff or Maxwell) alleges that Defendant Verde Valley Ambulance Company (Defendant or VVAC) discriminated against him based on disability, in violation of the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act, by terminating his employment and by failing to provide reasonable accommodations. (Doc. 1.) Plaintiff also alleges that VVAC retaliated against him for engaging in protected activity. ( Id. ) Finally, Plaintiff alleges that VVAC violated the Genetic Information Nondiscrimination Act of 2008 (GINA) by acquiring genetic information in an employment medical examination. ( Id. )

Defendant VVAC has moved for summary judgment on Plaintiff's ADA and Rehabilitation Act claims (Counts 1-6). (Doc. 40.) Defendant asserts that Plaintiff cannot establish a prima facie case under the ADA or the Rehabilitation Act because he is not disabled as defined in those Acts and, therefore, Defendant is entitled to judgment as a matter of law. ( Id. ) Defendant also asserts that even if Plaintiff established disability, his claims would nonetheless fail as a matter of law because his employment was not terminated because of any disability and, therefore, he cannot establish causation for his discrimination and retaliation claims. Defendant also moves for summary judgment on Plaintiff's GINA claim (Count 7), arguing that it did not improperly acquire any genetic information. Finally, Defendant moves for summary judgment because it argues that there is no evidence to support an award of punitive damages. (Docs. 37, 38.)

Plaintiff has also moved for summary judgment. He asserts that he is disabled as a matter of law under the ADA and Rehabilitation Act and, therefore, the Court should enter partial summary judgment in his favor on the issue of his disability under the statutes. (Doc. 37.) Plaintiff also moves for summary judgment on his GINA claim because he argues that VVAC acquired genetic information. ( Id. ) For the reasons below, the Court denies Defendant's motion in part, and grants it in part, and denies Plaintiff's motion.

I. Factual Background

In 2000, several years before Plaintiff worked for VVAC, he was in a motorcycle accident and suffered injuries to several ligaments, tendons, nerves, and bones in his left leg (leg injury). (PSOF ¶¶ 3-4.)[2] Plaintiff currently takes over-the-counter medications (Motrin) on a regular basis and does a weekly home exercise program. (PSOF ¶ 12.) Plaintiff asserts that he has drop foot, a limp, and regularly "trips over his toes." (PSOF ¶¶ 9, 17.) He also uses a knee brace whenever he "expects that there is above average danger that he could injure himself, step wrong, twist wrong, or do anything else that concerns him." (PSOF ¶ 11.) Plaintiff complains of "pain, inflammation, crepitus, drop foot, lack of range of motion, [muscle atrophy], [numbness] in his lower extremity, phantom nerve pains, and [hammertoe]." (PSOF ¶ 13.) Plaintiff states that he can only participate in activities that require the use of his legs for a limited amount of time due to restricted blood flow, swelling, and pain. (PSOF ¶ 14.) He also states that he is at risk of injuring himself if he does not pay attention to how he steps. ( Id. )

In 2005, Plaintiff started working at VVAC as a reserve paramedic. (PSOF ¶ 2; DSOF ¶ 3.)[3] He was later promoted to the position of captain paramedic (Captain). (Doc. 1 at 2.) In January 2011, VVAC EMS Chief Kim Moore discovered that Plaintiff had used a VVAC computer assigned to the three captain paramedics (Captains' computer) to create a business plan for a medical marijuana business, Verde Valley Medicinal Supply (VVMS). (DSOF ¶ 5-6.) On January 6, 2011, Moore met with Plaintiff and advised him that his activities violated VVAC's policies prohibiting personal use of company property. (DSOF ¶ 7.) Moore directed Plaintiff to remove the VVMS documents from the VVAC computer. (DSOF ¶¶ 9-10.) Moore prepared a memorandum confirming her meeting with Plaintiff. (DSOF ¶ 8.)

On January 26, 2011, VVAC Board Chair, Allen Muma, sent Plaintiff a letter regarding his business activities. (DSOF ¶ 12.) Muma advised Plaintiff that the VVAC Board of Directors was opposed to any VVAC employee being involved in a medical marijuana business. (DSOF ¶ 13) Muma stated that Plaintiff would be "terminated immediately" if VVAC obtained additional information that Plaintiff was still involved in a medical marijuana business. (DSOF ¶ 14.)

In April 2011, Plaintiff failed to provide a required report for two months. (DSOF ¶ 15.) Moore issued Plaintiff a letter of reprimand stating that he had failed to complete his responsibilities as a Captain and that she was reassigning the task of preparing the report for "pre-hospital" to another Captain. (DSOF ¶ 17.)

In May 2011, VVAC moved into a new building. (DSOF ¶ 20.) VVAC asserts that shortly after moving into the new building, Moore found computer files related to VVMS on the Captains' computer and that these files were not the same files she found in January 2011. (DSOF ¶ 23; Doc. 41, Ex. 1 at 45, 84-85.) VVAC asserts that Moore decided to terminate Plaintiff's employment upon that discovery. (DSOF ¶ 24.) During that same time, Moore learned that Plaintiff had been telling co-workers that he was going to sue VVAC if he fell down the stairs due to an alleged disability. (DSOF ¶ 25) Moore discussed this issue with Plaintiff on May 16, 2011 and he advised her that he was disabled as a result of his leg injury and that he needed a first-floor bedroom. (DSOF ¶ 26.)

Moore consulted with Muma about Plaintiff's employment. (DSOF ¶ 28.) Moore told Muma that Plaintiff claimed to have a disability. (Muma depo. at 15.)[4] Muma advised Moore that they should send Plaintiff to a physician to determine if he was disabled before proceeding with termination proceedings. ( Id. ) Muma stated that he concluded that Moore had already decided to terminate Plaintiff when she met with Muma in May 2011. (Muma depo. at 45.)

On May 30, 2011, after meeting with Muma, Moore sent Plaintiff to Scott D. Bingham, D.O., at Verde Valley Urgent Care to determine whether Plaintiff was qualified to engage in his work duties. (PSOF ¶ 21; DSOF ¶ 27.) Dr. Bingham noted that Plaintiff had good motor function in both legs, did not display any difficulty or a limp walking, and he had no difficulty stepping onto a stool with either leg. (Bingham depo at 30; DSOF ¶¶ 33-34.)[5] Dr. Bingham opined that Plaintiff could perform the functions of his job. (DSOF ¶ 38.) On June 1, 2011, Dr. Bingham sent VVAC a letter reporting his May 30, 2011 examination. (DSOF ¶ 39.) The letter stated that Plaintiff had been in an accident in 2000 but was currently in "good physical condition" and could "perform his current job with no limitations." (DSOF ¶ 40.)

After Moore received Dr. Bingham's letter, she terminated Plaintiff on June 1, 2011. (DSOF ¶ 42.) VVAC asserts that it terminated Plaintiff based on Moore's discovery of VVMS documents on a VVAC computer in May 2011, Plaintiff's past disciplinary issues, and dissension caused by Plaintiff's threats to fall down the stairs and sue VVAC. (DSOF ¶ 41.)

II. Summary Judgment Standard

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III. "Disability" under the ADA and Rehabilitation Act

The parties have filed cross motions for summary judgment arguing that they are entitled to judgment as a matter of law on the issue of disability. For his failure to accommodate and discrimination claims under the ADA and Rehabilitation Act (Counts 1, 2, 4 and 5), Plaintiff must establish that he has a disability, as defined in these statutes.[6]

To establish a prima facie case of discrimination under the ADA, a plaintiff must show that he: (1) is "disabled" within the meaning of the statute; (2) is a "qualified individual" (he is able to perform the essential functions of his job, with or without reasonable accommodations); and (3) suffered an adverse employment action because of his disability. See Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (citing 42 U.S.C. § 12112(a), (b)(5)(A) (requiring reasonable accommodation)).

Defendant acknowledges that Plaintiff was "qualified" and does not dispute that termination is an "adverse employment action." (Doc. 40 at 7.) Instead, Defendant argues that the undisputed facts establish that Plaintiff does not have a disability. Plaintiff argues the opposite, that the undisputed facts establish that he does have a disability. As set forth below, the Court finds that there are disputed issues of fact regarding Plaintiff's alleged disability and denies both motions for summary judgment on this issue.

A. The Definition of "Disability" under the ADA

The ADA defines disability as: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;[7] (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in [42 U.S.C. § 12102](3)." 42 U.S.C. § 12102(1). Plaintiff argues that his leg injury substantially limits the major life activity of walking. (Doc. 37 at 4.) VVAC does not dispute that Plaintiff's leg injury constitutes a physical impairment or that walking is a major life activity under the ADA. (Doc. 40 at 8-11.) Rather, VVAC argues that Plaintiff failed to provide sufficient evidence that his leg injury substantially limited his ability to walk at the time of his termination in June 2011. (Doc. 40 at 8-11.)

Because the alleged discrimination occurred in 2011, after the effective date of the ADA Amendments Act of 2008 (ADAAA), the statute applies to this case. The ADAAA expanded the scope of the term "disability" in the ADA. See Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 861 (9th Cir. 2009). Thus, "disability" is construed to allow coverage to the "maximum extent" allowed by the ADA and the ADAAA. Id .; see also Karr v. Napolitano, 2012 WL 4462919, at *8 (N.D. Cal. Sept. 25, 2012) (stating that the "ADAAA seeks to broaden the scope of disabilities covered by the ADA after that scope had been narrowed by Supreme Court interpretation.").

In Rohr, the Ninth Circuit explained that the phrase "substantially limits" had been interpreted as requiring a greater degree of limitation than Congress intended, and that limitations should be evaluated without considering the ameliorative effects of corrective measures or devices (such as medication, medical supplies, equipment, or appliances). Id. at 861-62; see also 29 C.F.R. § 1630.2(j)(1)(iv) ("[T]he term substantially limits' shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for substantially limits' applied prior to the ADAAA"). Because there is no dispute that Plaintiff's leg injury constitutes a physical impairment or that walking is a major life activity under the ADA, to determine whether Plaintiff was disabled at the time of his termination, the Court applies the "substantially limits" test under the ADAAA.

B. The "Substantially Limits" Test of the ADAAA

The term "substantially limits" is "construed broadly in favor of expansive coverage" and "is not meant to be a demanding standard." 29 C.F.R. § 1630.2(j)(1)(i); see also 42 U.S.C. § 12102(4)(A-C). An impairment "need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." 29 C.F.R. §1630.2(j)(1)(ii). Although courts are to make "an individualized assessment, " 29 C.F.R. § 1630.2(j)(iv), the focus of the court's attention should be primarily on:

whether [employers] have complied with their obligations and whether discrimination has occurred, not [on] whether an individual's impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment "substantially limits" a major life activity should not demand extensive analysis.

29 C.F.R. § 1630.2(j)(2)(iii).

At the summary judgment stage, the Ninth Circuit does not require comparative or medical evidence to establish a genuine issue of material fact regarding the substantial limitation of a major life activity. See Head v. Glacier N.W. Inc., 413 F.3d 1053, 1058 (9th Cir. 2005). "[A] plaintiff's testimony may suffice to establish a genuine issue of material fact." Id. Such testimony, however, must meet the generally required degree of personal knowledge and factual detail needed to withstand summary judgment. See Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir. 2012.) "To survive summary judgment, an affidavit supporting the existence of a disability must not be merely self-serving and must contain sufficient detail to convey the existence of an impairment." Head, 413 F.3d at 1059.

C. The Evidence of Disability

Plaintiff's evidence that his leg injury substantially limited his ability to walk at the time of his termination includes his deposition testimony that, to manage his symptoms, he regularly uses a knee brace (PSOF ¶ 10-11), takes over the counter medications, and does a home exercise program. (PSOF ¶ 12.) Plaintiff testified that he regularly has pain, inflammation, drop foot, limited range of motion, numbness in his lower leg, and phantom nerve pains. (PSOF ¶ 13.) Plaintiff stated that he can only participate in activities that involve the use of his legs for a limited amount of time due to pain and swelling. (PSOF ¶ 14.) He limps, frequently trips over his toes, and almost fell down the stairs several times while working at VVAC. (PSOF ¶¶ 15, 17.) Plaintiff further testified that his biggest problems when he worked at VVAC were weakness and pain. He explained that he had to be careful about where he was stepping to avoid injuring himself. (PSOF ¶¶16, 18.) To support his claim of disability, Plaintiff also cites Dr. Bingham's report that Plaintiff had "residual disability in his lower leg, " including "numbness and weakness."[8] (PSOF ¶¶ 27-28.)

In opposition, Defendant points to contradictory deposition testimony from Plaintiff's co-workers and Dr. Bingham stating that they did not observe Plaintiff limp. (Doc. 51 at 2, DCSOF ¶¶ 89, 120, 127, 188, 230.)[9] Defendant also submits photographs of Plaintiff participating in various activities, including playing ping-pong, without a knee brace. (Doc. 51 at 2; DCSOF, Ex. 18.) Defendant also offers evidence that Plaintiff's co-workers observed him participating in various sports, working out, and running up and down stairs without a knee brace. (Doc. 51 at 3; DCSOF ¶¶ 115, 116, 143-145, 178, 179, 198, 203, 218, 220, 240.) In addition, Defendant points to Plaintiff's deposition testimony in which he described his disability as "pain and uncertainty as far as where I am stepping" that lasts "15 to 45 seconds" after getting up from resting, sitting, or driving for a long period of time. (PSOF, Ex. 4 at 47-48.)

Defendant also notes that Dr. Bingham's report does not confirm Plaintiff's complaints of limping, drop foot, crepitus, hammer toe, limited range of motion, numbness, or phantom nerve pains. (Doc. 51 at 3.) However, because medical evidence is not required at the summary judgment stage to establish a genuine issue of material fact regarding the substantial limitation of a major life activity, any lack of medical evidence is not dispositve of the parties' motions. See Head, 413 F.3d at 1058; 29 C.F.R. § 1630.2(j)(v).

D. Cases Applying the "Substantially Limits" Test

Plaintiff has offered evidence to raise a genuine issue of material fact regarding his leg injury and whether it caused him to suffer greater weakness and numbness when walking than most people in the community would experience. See 29 C.F.R. § 1630.2(j)(v). This conclusion is supported by recent case law analyzing "substantially limits" under the ADAAA. In Eastman v. Research Pharms., Inc., 2013 WL 3949236 (E.D. Pa. Aug. 1, 2013), the plaintiff offered evidence that because of sporadic "back pain, " she "had significant difficulty moving, walking, sitting, and bending, " even though she was also able to drive and "complete full work days." Id. at *9. The court found a genuine issue of fact as to disability:

Although plaintiff may have been able to drive and work, plaintiff put forth evidence from which a fact finder could reasonably conclude that these activities were more difficult for her as compared to most people in the general population because they caused her significant pain. Accordingly, under the less restrictive standard of the ADAAA, I conclude that Eastman ...

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