United States District Court, D. Arizona
Juanita O. Vasquez, Plaintiff,
Smith's Food & Drug Centers, Inc., Defendant.
David C. Bury, United States District Judge
the Court is Defendant's Motion for Summary Judgment.
a longtime employee of Defendant whose employment was
terminated, has brought a discrimination and retaliation
action against the Defendant under the Americans with
Disabilities Act (ADA) and Rehabilitation Act. Defendant has
moved for summary judgment on all Counts.
AND PROCEDURAL BACKGROUND
filed an Amended Complaint (Doc. 30) against Defendant
listing the following claims for relief: COUNT ONE,
DISCRIMINATION IN EMPLOYMENT: DISABILITY (29 U.S.C.
§§ 794, 794a); COUNT TWO, RETALIATION FOR ASSERTION
OF RIGHTS (29 U.S.C. § 794(a & d)); COUNT THREE,
DISABILITY DISCRIMINATION IN EMPLOYMENT: TERMINATION OF
EMPLOYMENT (42 U.S.C. § 12112(a & b)) (ADA); and,
COUNT FOUR, RETALIATION FOR ASSERTION OF RIGHTS: TERMINATION
OF EMPLOYMENT (42 U.S.C. § 12203(a))(Retaliation).
Defendant is Smith's Food & Drug Centers, Inc. dba
Fry's Food Stores (Defendant).
O. Vasquez (Plaintiff) was a full time employee of the
Defendant. Her employment commenced on or about September 6,
1996, and was terminated on or about January 7, 2014.
2009, Plaintiff submitted a request for accommodations for
her health condition, fibromyalgia, in accordance with
Defendant's Accommodation Policy. In the Medical
Accommodation Questionnaire completed by Plaintiff's
physician, Plaintiff could not stand for more than two (2)
hours, could not lift more than ten (10) pounds, and was
unable to bend or stoop frequently. These were deemed
lifetime restrictions by Plaintiff's physician.
January 7, 2014, Plaintiff learned that her employment was
being terminated for violations of store policies and rules.
The specific reason for terminating Plaintiff was that she
improperly used her override number.
termination, Plaintiff filed a claim for unemployment
benefits with the Arizona Department of Economic Security
(ADES). Plaintiff alleged that she was subjected to adverse
employment actions because of discrimination based on her
disability, as well as retaliation for her repeated requests
for reasonable accommodations.
March 18, 2014, the ADES Appeal Tribunal conducted a hearing
on Plaintiff's application for unemployment benefits. At
the hearing, Fry's Store #58 Assistant Store Manager Mark
Anthony Jaime (Jaime) testified that there was no rule or
policy which prohibited an employee from using his/her own
override number to clock themselves into work. Based on this
testimony, the Tribunal concluded that Plaintiff was
improperly discharged for willful or negligent misconduct
connected with her employment.
17, 2014, Plaintiff filed a charge of disability
discrimination and retaliation with the Arizona Civil Rights
Division and the EEOC. Plaintiff filed her action in federal
court in September 2014 and filed an Amended Complaint in
October 2015 (Doc. 30). Defendant's Motion for Summary
Judgment was filed on March 3, 2016. Plaintiff filed a
Response on September 19, 2016 and Defendant filed a Reply on
October 4, 2016. The parties requested not to have oral
grant summary judgment, this court must find that the record
clearly establishes that there exists "no genuine issue
as to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed.R.Civ.P. 56(c). In
determining whether summary judgment should issue, the facts
and inferences from these facts are viewed in the light most
favorable to the non-moving party and the burden is placed on
the moving party to establish both that there is no genuine
issue of material fact and that he is entitled to judgment as
a matter of law. Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574 (1986). The moving
party may discharge this burden by showing there is an
absence of evidence to support the non-moving party's
case. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The party opposing a motion for summary judgment cannot rest
upon his mere allegation or denials of his pleadings, but
must set forth specific facts showing there is a genuine
issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986).
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment. The requirement is that there be
no genuine issue of material fact. Id. A material
fact is any factual issue which might affect the outcome of
the case under the governing substantive law. A material fact
is genuine if the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Id.
summary judgment stage, the trial judge's function is to
determine whether there is a genuine issue for trial. There
is no issue for trial unless there is sufficient evidence
favoring the non-moving party for a jury to return a verdict
for that party. If the evidence is merely colorable or is not
significantly probative, the judge may grant summary
judgment. Id. Conclusory statements without factual
support are insufficient to ...