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Kitzinger v. Nielson Business Media Co.

United States District Court, D. Arizona

December 17, 2018

Steven M. Kitzinger, Plaintiff,
Nielson Business Media Company, Defendant.



         Pro se Plaintiff Steven M. Kitzinger filed a complaint against Defendant Nielson Business Media Company for discrimination and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and for age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”).[1] Doc. 1. Defendant moves for summary judgment. Doc. 53. The motion is fully briefed, and oral argument will not aid the Court's decision. Docs. 53, 54, 55, 57. For the following reasons, the Court will grant Defendant's motion.

         I. Background.

         The following facts are undisputed unless otherwise noted. The Court will consider a fact undisputed “[i]f 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).” Fed.R.Civ.P. 56(e); LRCiv 56.1(b). Plaintiff fails to properly address Defendant's assertions of fact or properly support his own assertions of fact.[2] See Docs. 55, 57.

         Plaintiff began working for Defendant in July 2007 as a Field Representative. Doc. 54-1 at 71.[3] Plaintiff managed a geographic region of Northern Arizona, which included numerous households participating in Defendant's program. Id. at 73. Plaintiff's job duties included driving up to 200 miles per trip to visit participating households, installing equipment, and ensuring continued participation in the program. Id.

         In June 2015, Plaintiff requested and received permission to take a medical leave of absence due to kidney stone-related symptoms, without knowing his exact day of return. Id. at 20, 76. Plaintiff testified that he was concerned his pain might cause him to pass out while driving for work and injure others. Id. at 24. At the beginning of Plaintiff's leave, Defendant requested supporting medical documentation and notified Plaintiff that “[a]ny unauthorized absences [would be] subject to [Defendant's] attendance policy and may result in an appropriate level of disciplinary action, up to and including termination.” Id. at 80-84. The notification informed Plaintiff that failure to return to work after his leave ended or failure to notify Defendant of his status would constitute voluntary resignation. Id. Plaintiff received and read the letter. Id. at 25-26.

         Plaintiff had surgery on July 10, 2015, and his doctor cleared him to return to work on July 20, 2015. Doc. 54-1 at 86. When Plaintiff's health issues relapsed, he requested and received Family and Medical Leave Act (“FMLA”) leave, which began July 24, 2015 and was exhausted on September 18, 2015. Id. at 88-89. In the letter granting Plaintiff's request for FMLA leave, Defendant again informed Plaintiff that medical absences without appropriate certification could result in termination. Id. at 30-31, 88-89.

         Defendant required Plaintiff to provide certification of his need for continued leave by August 19, 2015. Doc. 54-1 at 92-93. Plaintiff failed to do so, and on August 21, 2015, Defendant sent an additional request for the information, again warning that failure to provide the documentation could result in denial of Plaintiff's leave request and that unauthorized absences could result in termination. Id. at 96. Plaintiff received and understood the warning. Id. at 33-34.

         Plaintiff provided proof of a procedure that he had undergone, but he failed to submit in writing a reasonable estimate of the duration of his leave. Id. at 99-100. In a subsequent conversation with Defendant's third-party leave administrator, Plaintiff scheduled his return to work for October 26, 2015. Id. at 102, 105.

         Plaintiff did not return on that date. Pursuant to its attendance policy, Defendant sent Plaintiff a letter notifying him that his absences after October 26 were unauthorized and that disciplinary action could include termination. Id. at 105. Plaintiff received a copy of Defendant's attendance policy when he was hired and agrees that it applies to him. Doc. 54-1 at 3-8, 10, 12-13. After several back-and-forth communications, Plaintiff was granted extensions to provide documentation until November 5, 2015 (Doc. 54-1 at 110-11), and then again until November 13, 2015 (id. at 114). Both extensions included the warning that failure to provide documentation could result in termination. Id. Plaintiff read and understood these warnings. Id. at 39.

         On November 10, 2015, Plaintiff reported to Defendant that he was “not fixed yet” and could not drive on the medications he was taking. Doc. 54-1 at 116. Plaintiff's medical records, however, indicated that Plaintiff was “discharged home in excellent condition” on November 3, 2015 (Doc. 54-2 at 7), and that he was not prescribed any pain medications at that time (Doc. 54-1 at 43-45). Plaintiff later asserted that his claimed inability to drive due to medications was discrete “code language” for incontinence. Id. Medical records do not support Plaintiff's claimed incontinence, and Plaintiff cites no supporting evidence in the record. See Docs. 54-2 at 3-47; 55, 57. Plaintiff wrote Defendant on November 12, 2015, claiming that he had a medical emergency, was referred to the emergency room, and needed to see a specialist about possible kidney removal. Id. at 53. But the medical records from that visit only prescribed Plaintiff “Tylenol and/or Ibuprofen for pain, ” and noted that Plaintiff could resume “normal home activity” after discharge. Id. at 55-56; Doc. 54-1 at 46-49. Surgery was not scheduled at that visit, and the only follow-up was related to elevated blood pressure. Doc. 54-2 at 55-56.

         On November 17, 2015, Plaintiff had been out of work for just under six months and had failed to provide supporting documentation for the preceding month of his absence. Defendant notified Plaintiff that, pursuant to its attendance policy, it considered Plaintiff's absences a voluntary resignation. Id. at 58. Plaintiff agrees that Defendant did not intend to discriminate against him. Doc. 54-1 at 67.

         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 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 is also appropriate 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, 477 U.S. at 322. Only disputes over facts that might affect ...

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