United States District Court, D. Arizona
Matthew V. Parker, Plaintiff,
State of Arizona, et al., Defendants.
DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE
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). 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.
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).
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.)
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.)
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
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.
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.)
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. ¶
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.)
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.)
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.)
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.)
never submitted forms requesting non-FMLA leave without pay.
(Id. ¶ 49.) Accordingly, the AGO terminated him
on April 8, 2015. (Id. ¶ 51.)
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. (Id.
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.)
October 27, 2016, Parker filed a complaint in Maricopa County
Superior Court against Defendants. (Doc. 1-1.) The complaint
alleges two counts, both arising under the Rehabilitation
Act: (1) failure to accommodate and (2) retaliation.
On March 24, 2017, Defendants removed the action to this
Court. (Doc. 1.)
On September 7, 2018, Defendants moved for summary judgment.
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.)
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.
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.
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.
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.
Defendants' Motion For Summary Judgment
Did Parker Make An Accommodation Request?
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.)
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. 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. 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
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
” 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 ...