Dawson v. AKAL Security Incorporated

Filing 20

ORDER, Defendant AKAL Security, Inc.'s Response to Plaintiff's Statement of Facts in Support of Response to the Motion for Summary Judgment 19 is stricken; the Clerk shall leave the document imaged in the electronic record; Defendant AKAL Security, Inc.'s Motion for Summary Judgment 15 is granted; the Clerk shall enter judgment in favor of Defendant and against Plaintiff and that Plaintiff take nothing; the Clerk shall terminate this case. Signed by Judge Neil V Wake on 7/17/12. (REW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Larry Dawson,
Plaintiff,

10
11

vs.

12
AKAL Security, Inc.,
13
Defendant.
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 11-00420-PHX-NVW
ORDER

15
16

Before the Court are Defendant AKAL Security, Inc.’s Motion for Summary

17

Judgment (Doc. 15) and separate statement of facts (Doc. 15-1), Plaintiff Larry Dawson’s

18

response (Doc. 16) and statement of facts (Doc. 17), and AKAL’s reply (Doc. 18).

19

LRCiv 56.1 requires any party filing a motion for summary judgment to file a

20

separate statement of facts supporting the motion, each of which refers to a specific

21

admissible portion of the record where the fact finds support. The rule requires any party

22

opposing the motion to file a statement responding to each paragraph of the moving

23

party’s statement of facts and presenting any additional facts that establish a genuine

24

issue of material fact or otherwise preclude judgment in favor of the moving party. For

25

each disputed fact and each additional fact, the opposing party must refer to a specific

26

admissible portion of the record where the opposing party’s position finds support.

27

LRCiv 56.1(b). Dawson’s additional statements of fact are not supported by admissible

28

evidence as required by LRCiv 56.1(b), and most of Dawson’s comments responding to

1

AKAL’s statement of facts do not refer to the specific admissible portion of the record

2

supporting his position. Therefore, only Dawson’s statements supported by admissible

3

evidence, i.e., AKAL’s exhibits attached to the Declaration of Janet Gunn (Doc. 15-3),

4

are considered in deciding this motion for summary judgment. See Fed. R. Civ. P. 56(e)

5

(if a party fails to properly support an assertion of fact, the court may consider the fact

6

undisputed for purposes of the motion).

7

In addition, AKAL filed a response to Dawson’s statement of facts (Doc. 19).

8

LRCiv 56.1 permits the moving party to file a reply memoranda, but does not permit the

9

moving party to file a separate response to the opposing party’s statement of facts. Thus,

10

any evidentiary objections to the opposing party’s statement of facts must be made within

11

the reply memoranda. AKAL’s response to Dawson’s statement of facts (Doc. 19) will

12

therefore be stricken, and the Court does not consider it in deciding the motion for

13

summary judgment.

14

Finally, AKAL’s request for judicial notice of Dawson’s Complaint filed in this

15

action is unnecessary and is not construed to be a motion.

16

I.

Legal Standard

17

Summary judgment is proper if the evidence shows there is no genuine issue as to

18

any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.

19

Civ. P. 56(c). The moving party must produce evidence and show there is no genuine

20

issue of material fact. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d

21

1099, 1102 (9th Cir. 2000). If the burden of persuasion at trial would be on the

22

nonmoving party, the party moving for summary judgment may carry its initial burden of

23

production under Rule 56(c) by producing “evidence negating an essential element of the

24

nonmoving party’s case,” or by showing, after suitable discovery, that the “nonmoving

25

party does not have enough evidence of an essential element of its claim or defense to

26

carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz

27

Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000); High Tech Gays v. Defense Indus. Sec.

28

Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990).
-2-

1

The party seeking summary judgment bears the initial burden of identifying the

2

basis for its motion and those portions of the pleadings, depositions, answers to

3

interrogatories, and admissions on file, together with the affidavits, if any, which

4

demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett,

5

477 U.S. 317, 323 (1986). When the moving party has carried its burden, the nonmoving

6

party must produce evidence to support its claim or defense by more than simply showing

7

“there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.

8

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To defeat a motion for summary

9

judgment, the nonmoving party must show that there are genuine issues of material fact.

10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

11

On summary judgment, the nonmoving party’s evidence is presumed true, and all

12

inferences from the evidence are drawn in the light most favorable to the nonmoving

13

party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987);

14

Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). But the evidence

15

presented by the parties must be admissible. LRCiv 56.1(a), (b); see Fed. R. Civ. P.

16

56(e). Conclusory and speculative testimony in affidavits and moving papers is

17

insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill

18

Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

19

II.

20

Background
Dawson was employed by AKAL Security, Inc., from February 2009 until October

21

2010 as an armed security guard. AKAL is a private security company that provides

22

security services to the federal government throughout the United States. In April 2001,

23

the U.S. Immigration and Customs Enforcement (“ICE”) contracted with AKAL to

24

provide security services at the Florence Processing Center in Florence, Arizona.

25

Through its contract with ICE, AKAL provides 24 hours a day, 7 days a week, security

26

for the illegal immigrants who are housed at the Florence Processing Center. AKAL’s

27

custody officers are responsible for the security, care, and supervision of detainees and of

28

the facility.
-3-

1

The contract between ICE and AKAL provides:

2

[AKAL] shall fully staff the facility to secure, control, and supervise
detainees in custody regardless of the detainee population. Staffing must be
sufficient to cover the posts as listed in the solicitation. [AKAL] shall
ensure daily Custody Officer assignment rosters, by shift, for the duration
of the contract. The assignment rosters shall indicate the number of staff,
job titles, names, hours, and days of work for each post. The daily roster
shall be posted 24 hours in advance. Shift rosters must be provided to the
[Contracting Officer’s Technical Representative] on a daily basis upon
completion of the third shift.

3
4
5
6
7

The contract requires that AKAL assign only employees who are in good health to work

8

under the contract. Employees must not have “physical defects or abnormalities that

9

would interfere with performing duties.” All custody officers who work under the

10

contract must pass a medical examination conducted by a licensed physician within 30

11

days prior to initial assignment, and AKAL must certify in writing that each custody

12

officer satisfies eight categories of health requirements. These requirements include

13

being “free from any serious physical illnesses, ailments, or maladies” and “mentally alert

14

and emotionally stable with an absence of detectable neurotic or psychoneurotic

15

conditions that would affect their ability to act during a stressful situation involving

16

mental stress.” AKAL must immediately report any changes in a custody officer’s health

17

status to the Contracting Officer’s Technical Representative, who may require that the

18

custody officer undergo a “fitness for duty” examination.

19

AKAL custody officers are members of the United Government Security Officers

20

of America, a labor union. The collective bargaining agreement between the union and

21

AKAL provides that shifts are awarded by seniority and custody officers may be required

22

to work up to four hours of overtime per shift.

23

AKAL has an Anti-Harassment, Discrimination, and Retaliation policy that,

24

among other things, prohibits discrimination based upon physical or mental disability.

25

AKAL upholds all rights granted to employees under Title VII and other fair employment

26

practice statutes.

27
28

On February 2, 2009, AKAL hired Dawson as a custody officer. Dawson was
assigned to be a “floater,” which mean that he could be assigned to any of three shifts.
-4-

1

On February 18, 2009, Dawson completed a “Floater Shift Preference” form and listed

2

his first preference as “swing,” his second as “grave,” and his third as “day.” Initially,

3

Dawson was placed on the swing shift; he worked that shift from February through May

4

2009 without incident. On May 27, 2009, an armed custody officer was required on the

5

graveyard shift. As a floater and an armed custody officer, Dawson was assigned the

6

graveyard shift. After working the graveyard shift for one day, Dawson reported to his

7

immediate supervisor that he could not work that shift because he could not sleep during

8

the day.

9

As a result, on June 5, 2009, Dawson was placed on paid administrative leave,

10

pending the outcome of a fitness for duty evaluation based on Dawson’s report of having

11

a sleep disorder that required an accommodation. On June 9, 2009, Dawson was placed

12

on unpaid administrative leave. AKAL’s stated purpose in seeking a fitness for duty

13

evaluation was to ensure that Dawson’s condition did not pose a danger to his co-

14

workers, ICE staff, detainees, or himself as each custody officer is expected to control the

15

physical actions of detainees. On July 7, 2009, AKAL requested that Dawson undergo a

16

fitness for duty evaluation to be performed by MBI Healthcare clinic.

17

On July 16, 2009, AKAL received correspondence stating that Dawson had been

18

cleared to return to work in full capacity as of July 19, 2009, and had been instructed not

19

to work the graveyard shift due to a sleep disorder. On July 24, 2009, AKAL received an

20

assessment from the fitness of duty evaluation that stated Dawson had a sleep disorder

21

and was unable to adjust to the night shift. Thereafter, AKAL accommodated Dawson’s

22

sleep disorder by allowing him to work the day or swing shifts. On July 31, 2009,

23

Dawson signed an agreement that acknowledged the accommodation and stated that he

24

would work the mandatory four-hour overtime as required by the collective bargaining

25

agreement, but not work a full graveyard shift. It appears that Dawson returned to work

26

on August 19, 2009.

27
28
-5-

1

On October 22, 2009, Dawson filed a Charge of Discrimination with the Arizona

2

Attorney General’s Office, Civil Rights Division, and the Equal Employment Opportunity

3

Commission. On the Charge of Discrimination form, Dawson stated, in part:

4
5

On or about June 5, 2009, Antunez place me on paid administrative leave.
On or about June 9, the paid administrative leave was changed to unpaid,
and, to date, I remain on this employment status.

6

....

7

I believe I have been discriminated against because of my disability in
violation of the Americans with Disabilities Act of 1990 (ADA), as
amended, and retaliated against with unpaid suspension by Antunez for
requesting a reasonable accommodation due to my disability.

8
9

The Charge of Discrimination does not mention AKAL’s overtime requirement.
10
On March 4, 2011, Dawson filed his Complaint alleging disability discrimination
11
and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and
12
violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq. The Complaint alleges that
13
Dawson suffers from a sleep disorder that meets the definition of “disability” as defined
14
in 42 U.S.C. § 12102(2)(A), (B), and (C). Count One alleges that AKAL discriminated
15
against Dawson by failing to accommodate his disability by refusing to allow him to
16
continue working only day or swing shifts, forcing him to continue on unpaid leave when
17
he had been released to return to work without restrictions other than the requested
18
accommodation, and suspending his employment without cause to believe that any
19
business necessity required this suspension. Count Two alleges that AKAL unlawfully
20
retaliated against Dawson by demanding that he undergo unnecessary medical testing and
21
suspending his employment. Count Three alleges that AKAL received federal funds as a
22
federal contractor and its discrimination on account of disability also violates the
23
Rehabilitation Act. The Complaint alleges that “Dawson has suffered a loss of earnings
24
and benefits, as well as extreme frustration, emotional distress, humiliation and
25
embarrassment” and seeks award of back pay to equal his loss of earnings and benefits
26
during his suspension and other unspecified damages to be proved at trial.
27
28
-6-

1

III.

Analysis

2

A.

3

The Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.,

4

prohibits an employer from discriminating against an individual on the basis of disability

5

in the terms and conditions of employment by “not making reasonable accommodations

6

to the known physical or mental limitations of an otherwise qualified individual with a

7

disability who is an applicant or employee, unless such [employer] can demonstrate that

8

the accommodation would impose an undue hardship on the operation of the business of

9

such [employer].” 42 U.S.C. § 12112(a), (b)(5)(A). The standards used to determine a

Counts One and Three: Discrimination on the Basis of Disability

10

violation of the Rehabilitation Act are the same as those applied under the ADA. 29

11

U.S.C. § 793(d).

12

Dawson alleges that AKAL discriminated against him by placing him on unpaid

13

leave from June 9, 2009, until August 19, 2009. AKAL’s contract with ICE requires

14

AKAL to ensure that each of its custody officers is in good health, does not have any

15

physical defects that would interfere with performing duties, and is mentally alert.

16

AKAL must immediately report any changes in a custody officer’s health status. When

17

Dawson reported to AKAL that he had developed a sleep disorder, of which he was

18

unaware when he began his employment, AKAL had a contractual duty to ensure that

19

Dawson was fully capable of performing the duties of an armed custody officer. There is

20

no evidence that the medical examinations were unnecessary. Under these circumstances,

21

seeking a fitness of duty evaluation before permitting Dawson to return to serving as an

22

armed custody officer in an ICE detention center does not constitute discrimination.

23
24

In his response to the motion for summary judgment, Dawson also contends,

25

apparently for the first time, that AKAL failed to engage in the interactive process

26

required by the ADA. The ADA imposes a mandatory obligation on employers:

27
28

Once an employer becomes aware of the need for accommodation,
that employer has a mandatory obligation under the ADA to engage in an
interactive process with the employee to identify and implement appropriate
-7-

1
2
3

reasonable accommodations. An appropriate reasonable accommodation
must be effective in enabling the employee to perform the duties of the
position. The interactive process requires communication and good-faith
exploration of possible accommodations between employers and individual
employees, and neither side can delay or obstruct the process.

4

Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001) (internal

5

quotation marks and citations omitted). Here, AKAL must have interacted with Dawson

6

to reach the July 31, 2009 agreement that AKAL would exclude Dawson from graveyard

7

shift assignment and Dawson would work up to 4 hours overtime per shift.

8

B.

9

An employer may not retaliate against an employee who has opposed an

Count Two: Retaliation

10

employment practice that is unlawful under Title VII. 42 U.S.C. § 2000e-3(a). To show

11

a prima facie retaliation claim, Dawson must produce evidence that (1) he engaged in a

12

protected activity, (2) he suffered an adverse employment action, and (3) there was a

13

causal link between the protected activity and the adverse employment action. See Davis

14

v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008).

15

Dawson contends that placing him on unpaid administrative leave was an adverse

16

employment action taken in retaliation for his requesting a reasonable accommodation.

17

As found above, in order to fulfill its contractual obligations to ICE, AKAL was required

18

to ensure that Dawson was in good mental and physical condition after he reported that he

19

had developed a sleep disorder. Putting him on unpaid leave while evaluating his fitness

20

for duty consitutes neither discrimination nor retaliation.

21

IT IS THEREFORE ORDERED that Defendant AKAL Security, Inc.’s Response

22

to Plaintiff’s Statement of Facts in Support of Response to the Motion for Summary

23

Judgment (Doc. 19) is stricken. The Clerk shall leave the document imaged in the

24

electronic record.

25
26

IT IS FURTHER ORDERED that Defendant AKAL Security, Inc.’s Motion for
Summary Judgment (Doc. 15) is granted.

27
28
-8-

1
2
3

IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Defendant
and against Plaintiff and that Plaintiff take nothing. The Clerk shall terminate this case.
DATED this 17th day of July, 2012.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-9-