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Pickard v. City of Tucson

United States District Court, D. Arizona

March 12, 2019

Charles Pickard, Plaintiff,
City of Tucson, et al., Defendant.


          HonorableRanerC. Collins Senior United States District Judge.

         Pending before the Court is Defendant City of Tucson's (“City”) Motion for Summary Judgment. (Doc. 34.) Only one claim remains: Count Two, alleging discrimination and retaliation under the Americans with Disabilities Act (“ADA”). (Doc. 1 at 14-15.) Plaintiff Charles Pickard claims that the City regarded his hand tremor as a disability and engaged in discriminatory and retaliatory actions based on this perceived disability. Id. at 14. These actions included: moving him from the Bomb Squad to Homeland Security;[1] temporarily prohibiting him from handling explosives and chemicals (Id. at ¶ 130); “requiring him to undergo a fitness for duty examination process at his own expense” (Id.); and groundlessly “requiring him to be driven by another Tucson Police Department (“TPD”) officer . . . to a medical appointment relating to his tremor” (Id.). The parties have fully briefed the issue (Docs. 43, 47) and the motion is ripe for ruling. Upon review of the record the Court finds that Plaintiff has not raised a genuine issue of material fact demonstrating he is entitled to relief. The Court will grant Defendant's Motion.

         I. Summary Judgment Standard

         A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, “show that there is 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A material fact is one “that might affect the outcome of the suit under the governing law. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In addition, the dispute must be genuine; that is, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248.

         Initially, the movant must demonstrate why there is no genuine issue of material fact by citing to pleadings, depositions, interrogatory answers, admissions, and affidavits in support, if available. Celotex, 477 U.S. at 323. If the movant has “the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). However, when the burden of proof is nonmovant's, “the moving party need only prove that there is an absence of evidence to support the non- moving party's case.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

         If the moving party does not meet this initial burden, the non-moving party need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But, if the moving party has established that there is no genuine issue of material fact, then the non-movant must come forth with evidence that there is a genuine disputed factual issue that may change the outcome of the lawsuit in the non- movant's favor. Anderson, 477 U.S. at 248, 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). This showing does not have to be unquestionable; however, the non-movant “may not rest upon the mere allegations or denials of [his] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248; Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (nonmovant must present more than “some metaphysical doubt as to the material facts”); see Varig Airlines v. Walter Kidde & Co., 690 F.2d 1235, 1238 (1982) (barren allegations do not raise genuine issue). For instance, a “conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.” Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2007). Speculation is also insufficient. Nelson v. Pima Cmty. College, 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“mere allegation and speculation do not create a factual dispute for purposes of summary judgment”); Soremekun, 509 F.3d at 985 (same).Furthermore, “[l]ike affidavits, deposition testimony that is not based on personal knowledge and is hearsay is inadmissible and cannot raise a genuine issue of material fact sufficient to withstand summary judgment.” See Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 (9th Cir. 1990).

         In essence, there is no issue for trial unless the non-moving party has presented the court with sufficient, admissible evidence in its favor; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50.

         II. Factual Summary

         Pickard's summary of the facts alleges that he suffers from a minor hand tremor that does not affect his ability to perform his job on the Bomb Squad as a Police Hazardous Devices Technician. (Doc. 43 at 3.) He states that in December 2012, he was informed by Chief of Police Kathy Robinson that another bomb technician had reported concern over whether Pickard's shaking hands were affecting his work. (Id. at 5; Doc. 1 at 8, ¶ 69.) At that time, no action was taken, Pickard was not required to submit to any physical tests, and Chief Robinson stated that “the issue had been thoroughly examined by the Chiefs and the City legal department and would not be raised again.” (Doc. 1 at 9, ¶ 84.)

         Pickard contends it was his supervisor, Sergeant Ardan Devine, who reported concern over Pickard's hand tremors. (Id. at 8, ¶ 74.) Sgt. Devine had become hostile toward Pickard for questioning TPD procedures, and Pickard believes Sgt. Devine improperly reported Pickard's hand tremors to try to remove him from duty. (Doc. 43 at 5.) Pickard claims that Sgt. Devine's hostility escalated to the point that Chief Robinson determined that she would need to take action. (Doc. 1 at 9, ¶ 76.) In April 2013, after a heated meeting involving Chief Robinson, Sgt. Devine, and Pickard, Chief Robinson transferred Pickard from Bomb Squad to Homeland Security stating “he had to be physically separated from Sgt. Devine.” (Id. at 9, ¶ 85.) Liberally construed, Pickard's response contends that the City moved him because Sgt. Devine had convinced Chief Robinson that his hand tremors were a liability to TPD. (Doc. 43 at 12.) Pickard was not returned to the Bomb Squad until March 24, 2014, when Sgt. Devine retired from TPD. (Doc. 1 at 13, ¶ 118-19; Doc. 35-2 at 26, ln. 22-25.)

         In September 2013, Pickard admits that during a NIEF demonstration course he spilled nitromethane, a liquid chemical. (Doc. 43 at 7.) He claims it was a minute spill and a common occurrence. (Id. at 14-15.) He did not believe the spill was caused by his tremor. (Id. at 7-8.) A week after the incident, he was informed that he would not be able to handle explosives or chemicals until he submitted to a fitness for duty exam. Id. at 8. At that time, the City precluded him from handling explosives or chemicals until he submitted to a fitness for duty examination wherein the City physician could evaluate him. (Id. at 8, Doc. 1 at 11, ¶ 99.)

         The City physician evaluated Pickard on October 8, 2013. (Doc. 35-2 at 39-42.) Another TPD employee drove Pickard to the appointment, which he believed was unnecessary and discriminatory. (Doc. 1 at 12 ¶ 109.) The physician determined that Pickard's tremors would not likely prevent him from working on the Bomb Squad, but “due to the nature of the Officer's work duties, it would be . . . appropriate to refer [Pickard] for a . . . neurological evaluation.” (Doc. 35-2 at 41.) Pickard claims he was forced to pay for the unnecessary neurological exam out of pocket. (Doc. 1 at 13, ¶ 115.) On December 10, 2013, the neurologist found no reason the tremors would cause problems with his work as a Hazardous Devices Technician. (Doc. 35-2 at 45.) As soon as Pickard submitted the neurologist and the City physician's conclusions to the City, he was permitted to again handle dangerous substances on January 7, 2014. (Doc. 1 at 13 ¶ 117; Doc. 35-2 at 23 ln. 17-23; Doc. 35-2 at 47.)

         III. The City's Motion for Summary Judgment

         The City's Summary Judgment Motion attacks the adequacy of Pickard's claim for three reasons. First, the City argues Pickard has not shown that the City regarded him as disabled. (Doc. 34 at 4-5.) The move to Homeland Security was due to his conflict with Sgt. Devine, not because of a perceived impairment. Further, the City contends that the fitness for duty evaluation was initiated as a direct result of Pickard's spill, not because the City thought Pickard was disabled. Spills pose a significant safety concern specific to the Hazardous Devices Technician job, which involves delicate handling of explosives, chemicals, and weapons of mass destruction (see Doc. 35-2 at 58). (Doc. 34 at 8) The City attached reports from four separate co-workers describing their safety concerns over Pickard's handling dangerous chemicals and explosives because of the spill, and because of the mechanical accuracy needed for this particular job. (Doc. 35-2 at 49-55.)

         Second, the City argues that Pickard has not shown he suffered an adverse action due to any perceived disability by the City. (Doc. 34 at 5.) As Pickard's own statements show, the temporary transfer to Homeland Security occurred because animus existed between Pickard and Sgt. Devine. (Doc. 44 at 14, ¶¶ 60-63.) The Complaint did not assert that the move to Homeland Security was because of his hand tremors and Pickard has not presented evidence that connects the move to anything related to his hand tremor, therefore, Pickard has failed to support his claim. (Doc. 47 at 6.) Furthermore, the move was not adverse because he maintained both his FBI certification as a Bomb Technician and his rank of Police Hazardous Device Technician. (Doc. 35-2 at 6.) The City also argues that by Pickard's own ...

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