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State v. Smith's Food & Drug Centers Incorporated

United States District Court, D. Arizona

March 1, 2019

State of Arizona, et al., Plaintiff,
Smith's Food & Drug Centers Incorporated, Defendant.



         Pending before the Court is Defendant Smith's Food and Drug Centers, Inc. d/b/a Fry's Food Stores motion for summary judgment. Doc. 88 For the following reasons, this Court shall grant the motion as to the retaliation claims for both the State of Arizona and Sarah Cook. The Court will also grant Defendant's motion for summary judgment as to Cook's 100% healed policy claim but deny the motion for Arizona's 100% healed policy claim. Lastly, the Court will deny Defendant's motion as to Cook's and Arizona's disability discrimination claims.

         Standard of Review

         Summary judgment is appropriate where the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A material fact is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The facts are “viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007).


          Fry's is a grocery chain that has locations throughout Arizona. Doc. 89 ¶ 1. Plaintiff Sarah A. Cook began her employment with Fry's in November 1997. Doc. 91 ¶ 1. She worked as a pharmacy technician from 1999 until she was terminated in April 2016. Id. at ¶¶ 1, 18, and 129. A pharmacy technician performs duties at three stations: a product-dispensing station, a release-to-patient station, and a data entry/drop-off station. Doc. 89 ¶¶ 7-29. During a shift, the pharmacy technician rotates through these three stations. Id. Defendant claims that each station requires a significant amount of standing and walking. Id. The job description lists physical demands separately from general duties. Doc. 93 Ex.13.

         In February 2015, Cook fell and injured her left knee. Doc. 91 ¶ 2. Cook sought treatment from her primary care physician and orthopedic specialists. Id. at ¶ 3-4. Cook was ultimately diagnosed with degenerative osteoarthritis, patellar degeneration, and internal derangement of the left knee. Id. at ¶ 16. The conditions limited her ability to stand for long periods of time, walk long distances, kneel, and squat. Id. at ¶ 17.

         In March 2015, Cook received a medical leave of absence due to her knee injury. Doc. 89 ¶ 30. In April 2015, Cook submitted a Progress Report of Disability completed by Dr. Noonan. Doc. 91 ¶ 20. Dr. Noonan diagnosed Cook with “internal derangement of the left knee, osteoarthritis left knee, knee impairment.” Id. In May 2015, Cook informed Fry's that she could return to work on June 1, 2015 with the accommodations of allowing her to use a cane, having a stool to sit on and limiting standing and walking to fifteen minutes per hour. Id. at ¶ 22. Fry's denied Cook's requested accommodation, in part because Fry's was concerned that the stool would be a trip hazard, and extended her unpaid leave. Id. at ¶ 37. In August 2015, Cook's union representative sent Fry's representatives photos of stools in Fry's pharmacies. Id. at ¶ 87. Fry's still denied the accommodation. Id. at ¶ 93.

         In September 2015, Cook filed a charge of discrimination with the Arizona Civil Rights Division (“ACRD”). Doc. 91 ¶ 105. In November 2015, the parties met at the ACRD office for mediation. Id. at ¶ 107. Cook claims that this was the first time that Fry's offered other positions but Fry's disputes this. Id. at ¶ 109. The parties did not reach a resolution.

         In January 2016, Cook modified her restrictions to the availability of a stool, use of her cane and limiting standing and walking to fifteen minutes on and fifteen minutes off per hour for a total of thirty minutes off her feet per hour. Id. at ¶114. Fry's concluded that it could not reasonably accommodate Cook's restrictions as a pharmacy technician after discussing Cook's injuries with Dr. Noonan.

         On April 14, 2016, Fry's terminated Cook's employment. Fry's informed Cook of its decision and invited her to apply to other positions. The State of Arizona then filed this action in Pima County Superior Court alleging failure to accommodate and discrimination under state law. Doc. 1. Cook then filed a complaint in intervention alleging discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”). Doc. 8. The case was removed to this Court. Doc. 1. Defendant then filed this motion for summary judgment. Doc. 88.


         I. Discrimination claim

         To establish a prima facie claim for disability discrimination claim under the ADA and Arizona Civil Rights Act (“ACRA”), a plaintiff must “prove that [s]he is a qualified individual with a disability who suffered an adverse employment action because of [her] disability. Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1353 (9th Cir. 1996).[1]

         A. “Disability” under the ADA

         The ADA defines a disability as: (a) a physical impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such impairment; or (c) being regarded as having such an impairment. 42 USC § 12102(2); see also Fraser v. Goodale, 342 F.3d 1032, 1037 ...

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