United States District Court, D. Arizona
Kevin P. Fitzgerald, Plaintiff,
v.
Freightliner of Arizona LLC, Defendant.
ORDER
Honorable John J. Tuchi, United States District Judge.
At
issue is Defendant Freightliner of Arizona LLC's Motion
for Summary Judgment (Doc. 45, MSJ), to which Plaintiff Kevin
P. Fitzgerald filed a Response (Doc. 62, Resp.) and Defendant
filed a Reply (Doc. 64, Reply). Also at issue is
Plaintiff's Motion for Judicial Notice (Doc. 54), to
which Defendant filed a Response (Doc. 58) and Plaintiff
filed a Reply (Doc. 61). The Court finds these matters
appropriate for decision without oral argument.
I.
BACKGROUND
In
2010, Plaintiff began working for Defendant as a Heavy Truck
Part Salesman. (Doc. 46, Defendant's Statement of Facts
(“DSOF”) ¶ 1; Doc. 1, Compl. ¶ 5.)
Plaintiff later became a back counter partsman, and in this
role, Plaintiff's job duties included pulling parts to
fulfill request orders. (DSOF ¶¶ 2, 10.) Plaintiff
worked under the supervision of Jeffrey Hottel
(“Hottel”), who generally regarded Plaintiff as a
“satisfactory employee.” (DSOF ¶ 3.)
While
employed by Defendant, Plaintiff made Defendant aware that he
had diabetes, back issues, and lung issues. (DSOF ¶ 6.)
To accommodate Plaintiff's diabetes, Defendant allowed
Plaintiff to test his blood sugar as needed and take the
earliest possible lunch for a partsman. (DSOF ¶ 8.)
There were instances, however, when the volume of work orders
prevented Plaintiff from taking lunch at the earliest time.
(DSOF Ex. 1 at 8; Doc. 63, Plaintiff's Controverting
Statement of Facts (“PSOF”) ¶
8.)[1]
Defendant also provided Plaintiff with salads at work-related
events to accommodate his diabetes. (DSOF ¶¶
41-42.) To accommodate Plaintiff's back issues, Defendant
directed warehouse staff to pull parts for Plaintiff that
exceeded Plaintiff's lifting restriction. (DSOF ¶
9.) Warehouse staff, however, were not always available to
assist Plaintiff because of their own work obligations. (DSOF
¶ 47.) As an accommodation for his lung issues,
Plaintiff requested that he be allowed to park in a
designated disabled parking space. Although Plaintiff
possessed a disabled parking placard, Defendant required him
to park in general employee parking. (DSOF ¶¶
48-49.)
Throughout
his employment, Plaintiff complained to Hottel about
inappropriate comments that Defendant's employees,
including Hottel, made to him. (DSOF ¶¶ 32, 39.)
Plaintiff alleges that Travis Mobley (“Mobley”)
brought breads, cookies, and candies to the workplace, and
made fun of Plaintiff because he could not eat the foods
because of his diabetes. (DSOF ¶ 34.) Another employee
made remarks to Plaintiff that he would “get the phone
since [Plaintiff's] diabetic back can't do it”
and referred to Plaintiff as “old man.” (DSOF Ex.
1 at 19.) A third employee also made comments to Plaintiff
about his age. (DSOF Ex. 1 at 19.) All of these comments were
made on a weekly basis. (DSOF ¶ 37.) Plaintiff estimates
that on a monthly basis, Hottel referred to Plaintiff as a
“gimp.” (DSOF ¶¶ 36-37.) Plaintiff
testified that these comments “kind of” impacted
his ability to do his job and “anger[ed] [him] a
little.” (DSOF ¶ 38.)
On
December 7, 2016, an altercation between Plaintiff and Mobley
occurred. (DSOF ¶¶ 11-14.) Plaintiff received a
request order for parts but did not fulfill the request
because a service manager gave him permission to take his
lunch break. (DSOF ¶ 11; PSOF ¶ 107.) Mobley,
acting as the lead of the parts department, confronted
Plaintiff about not pulling the requested part. (PSOF Ex. 1
at 94-95; PSOF ¶ 110.) Plaintiff then raised his voice
and cursed at Mobley in front of other
employees.[2] (DSOF Ex. 1 at 15.) Soon after, Plaintiff
texted Hottel, who was not working on that day. (DSOF
¶¶ 15-16.) The texts explained that Plaintiff was
late for his lunch and not feeling well because his blood
sugar was low. (DSOF Ex. 4.) The texts further stated that
Plaintiff lost his temper, and that Hottel may want him to
resign. (DSOF Ex. 4.)
Hottel
investigated the incident. (DSOF ¶ 16.) Hottel spoke
with Mobley and the employees that witnessed the altercation,
but Hottel did not further discuss the incident with
Plaintiff. (DSOF ¶ 16; PSOF ¶ 126.) Hottel then
relayed the information to the regional manager, and the
regional manager instructed Hottel to terminate
Plaintiff's employment. (PSOF Ex. 1 at 108-09.) On
December 13, 2016, Defendant terminated Plaintiff's
employment. (DSOF ¶ 20.)
Plaintiff
later applied for disability benefits from the Social
Security Disability Insurance (“SSDI”) program.
(DSOF ¶ 25.) The Social Security Administration
(“SSA”) determined Plaintiff became disabled on
December 7, 2016 under SSA guidelines and awarded him SSDI
benefits. (DSOF ¶ 26.)
On
January 11, 2017, Plaintiff filed a charge of disability
discrimination and retaliation with the Civil Rights Division
of the Arizona Attorney General's Office
(“ACRD”) and the Equal Employment Opportunity
Commission (“EEOC”). (DSOF ¶ 29.) The ACRD
issued notice of Plaintiff's right to sue on September
15, 2017. (PSOF Ex. 3 at 34.) On December 13, 2017, Plaintiff
filed a Complaint alleging the following: (Count I-A)
discriminatory discharge in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§
12112 et seq.; (Count I-B) failure to provide
reasonable accommodations in violation of the ADA; (Count
I-C) hostile work environment in violation of the ADA; (Count
II) retaliation in violation of the ADA; and (Count III)
disability discrimination and retaliation in violation of the
Arizona Civil Rights Act (ACRA), A.R.S. §§ 14-1461
et seq.[3]
Defendant
now moves for summary judgment on all claims against it. In
addition to opposing summary judgment, Plaintiff also moves
the Court to take judicial notice that “[s]ymptoms of
low blood sugar (hypoglycemia) tend to come on quickly and
can include a person being irritable, argumentative or
combative, changed behavior or personality (such as anger),
and feeling weak.” (Doc. 54 at 1.)
II.
LEGAL STANDARD
Under
Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is appropriate when: (1) the movant shows that there
is no genuine dispute as to any material fact; and (2) after
viewing the evidence most favorably to the non-moving party,
the movant is entitled to prevail as a matter of law.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am.,
815 F.2d 1285, 1288-89 (9th Cir. 1987). Under this standard,
“[o]nly disputes over facts that might affect the
outcome of the suit under governing [substantive] law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A “genuine issue” of material fact arises
only “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id.
In
considering a motion for summary judgment, the Court must
regard as true the non-moving party's evidence, if it is
supported by affidavits or other evidentiary material.
Celotex, 477 U.S. at 324; Eisenberg, 815
F.2d at 1289. However, the non-moving party may not merely
rest on its pleadings; it must produce some significant
probative evidence tending to contradict the moving
party's allegations, thereby creating a material question
of fact. Anderson, 477 U.S. at 256-57 (holding that
the plaintiff must present affirmative evidence in order to
defeat a properly supported motion for summary judgment);
First Nat'l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 289 (1968).
“A
summary judgment motion cannot be defeated by relying solely
on conclusory allegations unsupported by factual data.”
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
“Summary judgment must be entered ‘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.” United States v. Carter, 906 F.2d
1375, 1376 (9th Cir. 1990) (quoting Celotex, 477
U.S. at 322).
III.
ANALYSIS
Defendant
moves for summary judgment on each of Plaintiff's claims.
(MSJ at 1.) The Court will first address Plaintiff's
Discrimination Claims under the ADA. In doing so, the Court
will also resolve Plaintiff's Motion for Judicial Notice.
The Court will then address Plaintiff's retaliation claim
under the ADA, followed by Plaintiff's ACRA claims.
A.
Count I: Discrimination Claims
a.
Count I-A: Discriminatory Discharge
Plaintiff
alleges that Defendant unlawfully discriminated against him
by firing him because of his disability. (Compl. ¶ 56.)
Defendant argues that (1) Plaintiff failed to prove a
prima facie case of discrimination and (2) Defendant
fired Plaintiff for a legitimate, non-discriminatory reason.
(MSJ at 8-10.)
i.
Plaintiff's Prima Facie Case
The ADA
prohibits an employer from discriminating “against a
qualified individual on the basis of a disability.” 42
U.S.C. § 12112(a). Claims brought under the ADA are
“subject to the burden-shifting framework” laid
out in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973). See Curley v. City of N. Las
Vegas, 772 F.3d 629, 632 (9th Cir. 2014). Under the
McDonnell Douglas framework, a plaintiff bears
“the initial burden of establishing a prima
facie case of discrimination.” Id. To
establish a prima facie case under the ADA, a
plaintiff must show that: “(1) he is disabled within
the meaning of the ADA; (2) he is a qualified individual able
to perform the ...