Parker v. State

          AMENDED ORDER

          DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE

         Pending before the Court are Defendants State of Arizona and Arizona Attorney General Mark Brnovich's (“Defendants”) motion for summary judgment (Doc. 117), Plaintiff Matthew V. Parker's (“Parker”) motion for partial summary judgment (Doc. 119), and Parker's motion for attorney's fees (Doc. 121).^[1] For the following reasons, the Court will grant Defendants' motion for summary judgment in part, deny Parker's motion for partial summary judgment, and grant Parker's motion for attorney's fees in part.

         BACKGROUND

         I. Factual History

         On January 21, 2014, Parker began working at the Arizona Attorney General's Office (the “AGO”) as a Special Agent in the Special Investigations Section. (Doc. 118 ¶ 1.) On Parker's first day of employment, the AGO executed a search warrant at the Biological Resource Center of Arizona (“BRC”), a human biological remains donation center being investigated for fraudulent activity. (Id. ¶ 2.) Parker was assigned to perform administrative searching functions necessary to execute the warrant, such as going through file cabinets and removing hard drives from electronic devices. (Id. ¶ 3.) Defendants contend that Parker “performed [his] work ‘exclusively' on the office side of the BRC, and did not work in the ‘lab side' in which biological remains were stored.” (Id. ¶ 4.) Parker disputes this claim, asserting he observed “multiple frozen, severed human remains, arms, legs, heads, and torsos.” (Doc. 137 at 3).

         In August 2014, Parker sought counseling services from Lorraine Kern (“Kern”) of Brilliant Sky Counseling. (Doc. 118 ¶ 11.) Kern's initial diagnostic impression was that Parker presented with “problems related to intimate relationships & vocational stress.” (Id. ¶ 12.) Parker continued to visit Kern each week, and on October 28, 2014, she referred Parker to a psychiatrist to be evaluated for post-traumatic stress disorder (“PTSD”). (Id. ¶ 13.)

         It is undisputed that, on October 28, 2014, Parker met with Kay Gee (“Gee”), a member of the AGO's Human Resources office, and submitted a claim for workers' compensation benefits. (Id. ¶ 14.)

         One of the key issues in this case is whether Parker also made a request to be removed from the BRC case, as an accommodation for his PTSD, around the same time he submitted his workers' compensation claim. Parker contends he made such a request to three different AGO employees. Defendants deny this. As discussed infra, the evidence produced by Parker potentially implicates the “sham affidavit” doctrine.

         In the immediate aftermath of Parker's alleged request to be removed from the BRC case, Parker claims (and Defendants deny) that his immediate supervisor, Charles Loftus (“Loftus”), “hyper-scrutinized Parker's work and became unreasonably critical of him.” (Doc. 137 at 59-60.) Parker also claims Loftus made false statements in response to Parker's workers' compensation application. (Doc. 1-1 ¶ 17(F).) Parker further asserts that, approximately one month after filing his workers' compensation claim, the AGO's Human Resources office informed him the claim “had been lost.” (Doc. 137 at 60.) In the interim, Parker continued to work on the BRC case.

         On December 12, 2014, Parker completed a Family Medical Leave Act (“FMLA”) form and requested a 12-week leave of absence. (Doc. 118 ¶ 34.) The AGO granted this request and Parker began his 12-week term of FMLA leave on December 15, 2014. (Id. ¶ 36.)

         Parker asserts Loftus “was hostile” to his request to take FMLA leave. (Doc. 137 at 60.) Loftus then directed Parker to write a memo detailing his encounters with corpses and body parts, collected the keys to the AGO vehicle that had been assigned for Parker's use, and collected Parker's AGO service pistol. (Id.) The AGO also suspended Parker's building and email access. (Doc. 118 ¶ 38.) The AGO notified Parker that, while on leave, he was not to perform work for the AGO pursuant to its policy against working while on medical leave. (Id. ¶ 37.)

         At some point after his FMLA leave had commenced, Parker claims he sought access to the AGO building to gather to his personal property but his second-level supervisor, Andy Rubalcava (“Rubalcava”), wouldn't help him and said Parker was “someone else's problem.” (Doc. 137 at 60-61.)

         On March 3, 2015, one week before Parker's FMLA leave was set to expire, the AGO sent Parker paperwork he would need to complete to either return to work or request additional non-FMLA leave without pay. (Doc. 118 ¶ 44.)

         On March 4, 2015, attorney Neil Landeen, on Parker's behalf, sent the AGO a letter lodging a complaint about its deactivation of Parker's badge and email access and alleging that an AGO employee told Parker he no longer worked there. (Id. ¶ 45.)

         On March 9, 2015, the AGO responded to Landeen's letter by assuring him that “Parker is currently an employee of the [AGO]” and that “pursuant to the FMLA, his position awaits his return.” (Id. ¶ 46.) The AGO also stated that Parker's FMLA leave would expire on March 9, 2015, and to remain employed, Parker would need to request non-FMLA leave without pay within 10 days, unless there was a legitimate reason preventing him from doing so. (Id. ¶ 48.)

         Parker never submitted forms requesting non-FMLA leave without pay. (Id. ¶ 49.) Accordingly, the AGO terminated him on April 8, 2015. (Id. ¶ 51.)

         Sometime after Parker's last day of work, Rubalcava was informed that Parker may have failed to disclose relevant information on his employment application to the AGO. This information concerned the number of times Parker had been the subject of an internal affairs investigation during his previous employment with the Arizona State University police department. (Id. ¶ 52.) Rubalcava requested that Assistant Chief Daniel Woods (“Woods”) investigate. (Id. ¶ 53.) Woods eventually determined Parker had failed to disclose the correct number of internal investigations on his application.^[2] (Id. ¶ 54.)

         The AGO then reported this finding to the Arizona Peace Officer Standards and Training Board (“AZ POST”). (Id. ¶ 55.) AZ POST concluded, however, that the information provided by the AGO didn't warrant revocation of Parker's peace officer certification. (Id. ¶ 57.)

         II. Procedural History

         On October 27, 2016, Parker filed a complaint in Maricopa County Superior Court against Defendants.^[3] (Doc. 1-1.) The complaint alleges two counts, both arising under the Rehabilitation Act: (1) failure to accommodate and (2) retaliation. (Id.)

On March 24, 2017, Defendants removed the action to this Court. (Doc. 1.)

On September 7, 2018, Defendants moved for summary judgment. (Doc. 117.)

On September 7, 2018, Parker moved for partial summary judgment. (Doc. 119.)

On September 26, 2018, Parker filed a motion for attorney's fees. (Doc. 121.)

         SUMMARY JUDGMENT STANDARD

         A party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' 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 when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018) (quoting Fed.R.Civ.P. 56(a)). “A genuine dispute of material fact exists if ‘there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'” United States v. JP Morgan Chase Bank Account No. Ending 8215 in Name of Ladislao V. Samaniego, VL: $446, 377.36, 835 F.3d 1159, 1162 (9th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). The court “must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferen ce in the nonmoving party 's favor.” Rookaird, 908 F.3d at 459. 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.

         DISCUSSION

         I. Preliminary Matters

         In his response to Defendants' separate statement of facts (“SSOF”), Parker moved to strike several pieces of evidence pursuant to LRCiv 7.2(m)(2). (Doc. 137). Defendants didn't respond to these requests. Because none of the evidence Parker seeks to strike has any bearing on the outcome of the matters presently before the Court, the Court will deny his requests as moot.

         Next, Parker asks the Court to take judicial notice of Exhibit 110, a document “from the ICA file on Parker's unresolved and still-pending Workers' Compensation claim.” (Doc. 137 at 6.) The Court will deny this request. Exhibit 110 is an internal report “prepared in anticipation of litigation” by the Attorney General's Litigation Management Section that includes a summary of facts regarding the BRC case. (Doc. 137-1 at 71-75.) These facts are “subject to reasonable dispute” and are not the type that are “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). Thus, they aren't subject to judicial notice.

         Last, Parker argues Defendants made various admissions in a joint proposed discovery plan. (Doc. 139 at 12-13.) Although “statements of fact contained in a brief may be considered admissions of the party in the discretion of the district court, ” Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988), the Court will exercise its discretion and decline to characterize the particular statements at issue here as judicial admissions. They were contained in the parties' joint Rule 26(f) report, filed during the early stages of the case (Doc. 22), and simply represented Defendants' attempt to provide an overview of the anticipated facts.

         II. Defendants' Motion For Summary Judgment

         A. Count One

         1. Did Parker Make An Accommodation Request?

         “A failure to provide reasonable accommodation can constitute discrimination under section 504 of the Rehabilitation Act.” Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). However, “an employer cannot be held liable for failing to accommodate in the absence of an employee request for accommodation.” Maes v. Henderson, 33 F.Supp.2d 1281, 1290 (D. Nev. 1999). Defendants argue they're entitled to summary judgment on Count One because Parker “simply did not request any disability accommodations that were not granted.” (Doc. 117 at 11.)

         At first blush, this argument appears weak. During his deposition in this case (and in a declaration submitted following his deposition), Parker testified that he made an accommodation request to three different AGO employees. Specifically, Parker contends he met with his second-level supervisor (Rubalcava) on October 27, 2014 to report his PTSD diagnosis and ask to be removed from the BRC case and that he repeated this case-removal request to his direct supervisor (Loftus) and to the AGO's Human Resources representative (Gee) during separate meetings on October 28, 2014.^[4] In contrast, Rubalvaca, Loftus, and Gee each stated under oath, as part of the discovery process in this case, that Parker never asked to be removed from the BRC case.^[5] Summary judgment is usually unavailable in this circumstance-it's the role of the jury to sort out who's telling the truth in the face of such conflicting evidence.

         The added complication here, however, is that Parker also provided sworn testimony on this topic during a different proceeding. In April 2015, Parker was deposed as part of his application for workers' compensation benefits. During that deposition, Parker suggested that, during his October 2014 meeting with Rubalcava, he didn't ask to be removed from the BRC case-“I told him . . . I'm going to keep working and I'm going to see how it goes”-and separately admitted that it was “around December 15th [2014]” when “I was telling Charlie [Loftus] . . . ‘You know, I can't work on this case anymore.'” (Doc. 118 ¶ 23, citing Doc. 118-1 at 38-48.) Defendants argue that Parker's 2015 ...