United States District Court, D. Arizona
Steven M. Kitzinger, Plaintiff,
Nielson Business Media Company, Defendant.
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
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”). 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.
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. See Docs. 55, 57.
began working for Defendant in July 2007 as a Field
Representative. Doc. 54-1 at 71. 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.
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
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.
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.
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.
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.
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.
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.
Summary Judgment Standard.
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 ...