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Fitzgerald v. Freightliner of Arizona LLC

United States District Court, D. Arizona

October 28, 2019

Kevin P. Fitzgerald, Plaintiff,
Freightliner of Arizona LLC, Defendant.


          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.)


         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 ...

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