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Vasquez v. Smith's Food & Drug Centers Inc.

United States District Court, D. Arizona

April 4, 2017

Juanita O. Vasquez, Plaintiff,
Smith's Food & Drug Centers, Inc., Defendant.


          Hon. David C. Bury, United States District Judge

         Before the Court is Defendant's Motion for Summary Judgment. (Doc. 45.)


         Plaintiff, 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.


         Plaintiff 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).

         Juanita 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.

         In 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.

         On 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.

         After 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.

         On 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.

         On June 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 argument.


         To 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).

         The 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.

         At the 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 ...

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