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Mdamu v. American Traffic Solutions Inc.

United States District Court, D. Arizona

June 24, 2016

Marie A Mdamu, Plaintiff,
American Traffic Solutions Incorporated, Defendant.


          Douglas L. Rayes United States District Judge

         Defendant has filed a motion for summary judgment. (Doc. 34.) The Court held oral argument on the motion on June 21, 2016, and at the conclusion of the hearing, took the matter under advisement. For the reasons stated below, the motion is granted.


         The following facts are undisputed unless otherwise noted. Plaintiff Marie Mdamu worked for Defendant American Traffic Solutions Incorporated (ATS) as a Violations Processor from January 2008 to August 29, 2012. (Doc. 35, ¶ 3.) As a Violations Processor, Mdamu's job was to "view and process video footage of traffic events taken by ATS cameras, which information is provided to ATS' municipal clients for further review." (Id., ¶ 7.) This requires entering data into computers and the ability to process a certain number of potential violations per hour (VPH). (Id., ¶ 8.) The VPH metric is important because it ensures that ATS will meet its contractual obligations to its customers. (Id., ¶ 9.) When Mdamu began working at ATS in 2008, the VPH requirement was 70, meaning that Violations Processors were expected to review and process 70 potential violations per hour. (Id., ¶ 11.) During Mdamu's employment, the VPH increased to 110. (Id.)

         In addition, Violations Processors are subject to certain Attendance Guidelines, which assign point values to certain type of absences. (Id., ¶¶ 12, 14.) The type of disciplinary action depends on the number of points accrued on a rolling 12-month basis. (Id., ¶¶ 15, 16.) For example, if a Violations Processor misses half of a workday or a full workday, she accrues 1 point. (Id., ¶ 14.) If she fails to show up for work without notice, she accrues 3 points. (Id.) If a Violations Processor accrues 5 points, she receives a documented verbal warning. (Id., ¶ 15.) If she accrues 9 points during the 12-month period, her employment is terminated. (Id.)

         In 2010, Mdamu developed "some cramping in her right wrist and hand" and was "diagnosed with Quervian tenosynovitis" by her physician, Dr. Kraig Burgess. (Doc. 42, ¶¶ 4-5.) In 2011, ATS increased the VPH requirement to 110. (Id., ¶ 6.) Mdamu asserts the increase "was causing [her] substantial pain and dramatically affecting her ability to meet the new goal." (Id.) ATS maintains the increase was made "to reflect the productivity of Violations Processors" and that all Violations processors were subject to the increased workload. (Doc. 35, ¶ 11.) Mdamu struggled to keep up with the 110 VPH requirement. (Id., ¶ 31.) In January 2012, Mdamu received a verbal warning for failing to meet the 110 VPH requirement because she had missed it by 20-30 events per hour in each of the previous three months. (Id., ¶ 32.) Mdamu was warned that she needed to come within 95% of the 110 VPH requirement by the end of the thirty-day period. (Id.)

         On March 13, 2012, Mdamu received another verbal warning because she failed to meet the 110 VPH requirement. (Id., ¶ 33.) That same day, Mdamu's chiropractor, Dr. David Campbell, prepared a heath care provider certification in connection with Mdamu's complaints of neck, back, and wrist pain. (Id., ¶ 34.) Dr. Campbell described Mdamu's condition as temporary and advised that she be able to "rest more often" and use a "standing workstation w/ bar stool to sit [at]." (Id., ¶ 35.) A week later, Dr. Burgess submitted a second health care provider certification indicating that Mdamu suffered from temporary "right deQuervains tendonitis." (Id., ¶ 36.) He prescribed Naproxen and recommended that Mdamu be limited to a VPH of 70. (Id.) In response, ATS provided Mdamu a standing workstation, bar stool, and an ergonomic keyboard, mouse, and wrist pad. (Id., ¶ 37.) ATS sought further clarification from Dr. Burgess regarding how many breaks Mdamu required. (Id., ¶ 42.)

         Mdamu's average VPH for March 2012 was 89.66. (Id., ¶ 39.) She claims the Naproxen helped her process faster, but also made her drowsy, which interfered with her production. (Doc. 42, ¶ 15.) On April 6, 2012, she received a written warning and her supervisor, Scott Darnell, arranged for another Violations Processor to observe Mdamu's work practices and help her attain the 110 VPH. (Doc. 35, ¶ 41.) The observer noted that "Mdamu engaged in unnecessary tasks, such as watching videos from beginning to end when traffic events appeared at the beginning of the footage and cropping photos before confirming a traffic event had occurred." (Id.) The observer also noted that Mdamu also struggled with her mouse and keyboard. (Doc. 35-2 at 34.)

         On April 19, 2012, ATS posted an internal job opening for several Safety Processing Training Subject Matter Experts (SMEs), "who would perform their duties as Violations Processors, but also coach and train new hires for up to six months." (Doc. 35, ¶ 49.) The post noted that it was available only to ATS employees "not currently on written or final disciplinary action." (Id., ¶ 50.) Mdamu applied, but did not meet the requirements because she was on written disciplinary warning. (Id., ¶ 51.)

         On May 3, 2012, Mdamu filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). (Id., ¶ 53.) She alleged ATS denied her requests for reasonable accommodation and transfer to a new position. (Doc. 35-2 at 95.) She also alleged she was "subjected to write-ups and placed on a Performance Improvement Plan" because of her disability. (Id.)

         On May 22, 2012, Mdamu received a written warning after she accumulated 7 attendance points. (Doc. 35, ¶ 18.) The warning stated that Mdamu would be "subjected to further action (up to and including termination) at any time during or after the performance notice period" if she failed to immediately improve her performance and attendance. (Id., ¶ 19.) In addition, Mdamu was precluded from applying to other open positions at ATS until the warning period expired. (Id., ¶ 18.) Although the warning was subject to expire on June 22, 2012, it was extended until January 20, 2013 because Mdamu was late to work on May 30, 2012 and June 11, 2012. (Id., ¶ 20.)

         On May 31, 2012, Dr. Burgess responded to ATS' request for clarification regarding Mdamu's breaks. (Id., ¶ 42.) He recommended that Mdamu's VPH be reduced to 70 and that she be able to work a reduced schedule of four hours per day, five days per week, for six months. (Id.) As a result, effective June 4, 2012, ATS placed Mdamu on the recommended reduced schedule and permitted Mdamu to take a 5-10 minute break each hour, which was not counted against her VPH requirement. (Id., ¶ 43.) ATS did not, however, reduce the VPH requirement to 70. (Id., ¶ 45.)

         Mdamu missed full days of work without providing notice on July 27 and August 1. (Id., ¶ 23.) In the middle of August, Mdamu left work three hours early and was given a final written warning. (Id., ¶ 21.) When asked about missing work on July 27 and August 1, Mdamu told ATS that her absence was due to a health issue. (Id., ¶¶ 24-25.) But Dr. Burgess never responded to ATS' request for medical certification, and thus ATS assessed points to Mdamu's unexcused absences, bringing her twelve month total to 10 points, which resulted in termination of her employment. (Id., ¶¶ 26-27.)

         Mdamu's last day at ATS was August 29, 2012. (Id., ¶ 29.) On August 30, 2012, Mdamu filed another EEOC charge, alleging that she was "given multiple write-ups" and fired after requesting reasonable accommodation. (Doc. 35-2 at 97.) The EEOC dismissed both charges and issued a right to sue notice. (Id. at 104-08.)

         Mdamu brought suit on February 23, 2015, and filed an amended complaint on October 30, 2015, alleging claims of disability discrimination and retaliation under the Americans with Disabilities Act (ADA). (Docs. 1, 25.) ATS now moves for summary judgment on both claims. (Doc. 34.)


         Summary judgment is appropriate when, viewing the facts in a light most favorable to the nonmoving party, "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). Summary judgment may also be entered "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). The 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." Id. at 323. The burden then shifts to the non-movant to establish the existence of a material fact. Id. at 324. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts, " and instead must "come forward with ‘specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 4 ...

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