United States District Court, D. Arizona
HONORABLE RANER C. COLLINS, UNITED SLATES DISTRICT JUDGE
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.
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
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
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.
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.
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.
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.
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).
“Disability” under 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,