United States District Court, D. Arizona
Neil V. Wake United States District Judge
Before the Court is Defendant’s Motion for Summary Judgment (Doc. 59).
I. LEGAL STANDARD
Summary judgment is proper if the evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party must produce evidence and show there is no genuine issue of material fact. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may carry its initial burden of production under Rule 56(c) by producing “evidence negating an essential element of the nonmoving party’s case, ” or by showing, after suitable discovery, that the “nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990).
The party seeking summary judgment bears the initial burden of identifying the basis for its motion and those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden, the nonmoving party must produce evidence to support its claim or defense by more than simply showing “there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To defeat a motion for summary judgment, the nonmoving party must show that there are genuine issues of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact is one that might affect the outcome of the suit under the governing law. Id. at 248. A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
On summary judgment, the nonmoving party’s evidence is presumed true, and all inferences from the evidence are drawn in the light most favorable to the nonmoving party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987); Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). But it is not the Court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The evidence presented by the parties must be admissible. LRCiv 56.1(a), (b); see Fed. R. Civ. P. 56(e). Conclusory and speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). “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 . . . consider the fact undisputed for purposes of the motion.” Fed. R. Civ. 56(e)(2).
II. UNDISPUTED MATERIAL FACTS 
Plaintiff Tresa Floyd is a current employee of Defendant Maricopa County in the Department of Public Health where she has worked for approximately ten years. In February 2010 Plaintiff was diagnosed with multiple sclerosis and told her supervisor Corinne Velasquez. Plaintiff has reported to Velasquez throughout her career with Defendant.
In October 2013, during the time Plaintiff was employed as Operations Supervisor of the Healthcare for the Homeless Clinic, she experienced a flare-up of her multiple sclerosis, with symptoms of “numbness, impairment of muscular coordination, falling down while attempting to walk or stand, weakness, spasticity, leg tremors, great difficulty with fine motor tasks with her hands such as grasping and typing, and severe fatigue.” (Doc. 62-1.) Plaintiff informed Velasquez she needed assistance to deal with the new symptoms of her disability and requested to work from home. Velasquez permitted her to work from home, and Defendant provided the assistive software Plaintiff requested.
After two weeks, on October 24, 2014, Plaintiff told Velasquez her condition was not improving and requested permission to continue telecommuting. Velasquez denied the request, saying the Healthcare for the Homeless Clinic supervisor needed to be on-site. Velasquez suggested that Plaintiff voluntarily step down from her supervisory position to assume a less demanding position. Plaintiff requested leave under the Family Medical Leave Act (“FMLA”), which Defendant granted. Plaintiff was on FMLA leave from approximately October 31, 2013, through January 13, 2014.
On October 31, 2013, Velasquez responded to an email from her supervisor, Dr. Bob England, Director of Public Health, regarding a budget concern. Velasquez commented:
We know Tresa [Plaintiff] is out for 2 weeks, maybe longer. Jane, the Accountant, is going to have surgery and will be out for 4-6 weeks starting mid-December. . . . And Christy, the billing person, is due to have a baby in mid-February. And the close out of the grant has to occur and be reported by the end of January, and the UDS report will be due by the end of March. And guess whose job it is to close the grant and do the report? Tresa’s and Jane’s. And guess who was supposed to attend UDS training and complete the UDS? Tresa, Jane and Christy. And the last Notice of Grant Award for the year starting tomorrow gave us 45 days to fix all the budget documents that were submitted with the application-but now we’re down to 30 days because I don’t think anyone even looked at it (good thing I happened to have looked at it yesterday).
Sorry-I’m just venting.
(Doc. 62-1 at 83.)
During Plaintiff’s FMLA leave, Velasquez initially assumed day-to-day responsibility for the Healthcare for the Homeless Clinic. On November 13, 2013, Plaintiff told Velasquez she was still having difficulty with the symptoms of her multiple sclerosis and would need to extend her FMLA leave until early January 2014. At that point, Velasquez decided to put someone on a special work assignment to cover for Plaintiff at the Clinic on a full-time basis. She told England it was questionable whether Plaintiff would be back in January.
Velasquez assigned Erica Bouton to a special work assignment to cover for Plaintiff. During Plaintiff’s FMLA leave, Velasquez and Bouton observed some aspects of the day-to-day operations that Velasquez thought were improper or inefficient and needed to be changed. Examples of concerns were that the Clinic floors were dirty, the Clinic flow was inefficient, and delegation of duties was insufficient.
On December 31, 2013, Plaintiff told Velasquez she would be returning to work on January 13, 2014, and would need to work only three days per week because she would be continuing physical therapy on Tuesdays and Thursdays. Velasquez approved the request and notified Human Resources. On January 3, 2014, Nurse Supervisor Jennifer Zirzow submitted a complaint to Human Resources regarding Plaintiff. Before Plaintiff returned from leave, Erika Leger also submitted a complaint to Human Resources regarding unprofessional comments made by Plaintiff.
On January 7, 2014, Velasquez emailed to Janice Stratton, Human Resources Manager, a document titled “Notes to discuss with Tresa.” The Notes include concerns about building issues, such as dirty floors, storage areas filled with never used items, and dysfunctional training equipment. The Notes also include concerns about staff training, delegation of responsibility, budget, physician recruitment, staff attendance and schedules, policies and procedures, staff communication, staff equity, and Clinic flow/process changes.
On January 10, 2014, Velasquez told her management team that Plaintiff would be returning to work on January 13, 2014. She also told them and Plaintiff that Bouton would continue for a week to help Plaintiff regarding changes that had been made. Zirzow expressed concern to Velasquez regarding Plaintiff’s anticipated reaction to the changes.
Also on January 10, 2014, Velasquez told Plaintiff that an employee complaint had been made, Velasquez had other concerns about the Clinic, and there would be a meeting with Human Resources about a week after Plaintiff returned to work. Velasquez told Plaintiff that when she returned, she was not to have any interaction in the Clinic and not to make any changes to the Clinic procedures that Velasquez and Bouton had recently implemented.
On January 13, 2014, Plaintiff returned to work, and Velasquez told her that Bouton would be staying on-site at the Clinic for two weeks. During the first two weeks of Plaintiff’s return to work, Plaintiff worked three days per week.
On January 15, 2014, Plaintiff’s second day back to work, she advised Stratton that she had concerns regarding her job role and wanted clarification of her rights upon returning to work after FMLA leave. Stratton asked Plaintiff to put her concerns in writing, but Plaintiff did not do so because she felt ...